Case number: 130268
The circumstances of this review are unusual in that the original FOI request was made by the applicant's solicitor to solicitors acting on behalf of the College. It is difficult to determine the exact timeline of various requests from the applicant and the subsequent decisions of the College in terms of the statutory FOI process. For example, records forwarded to this Office for the purposes of this review indicate that an original request was made by the applicant's solicitors on 19 December 2012 directly to the College's solicitors. However, other records indicate that an FOI request was made to the College in February 2013. I have examined all the records associated with the FOI request and for the purposes of conducting a review, I have had to adopt a pragmatic approach to certain dates and decisions. It is not clear to me why this FOI request was not addressed to and dealt with by the designated FOI decision makers in the normal way.
In February 2013, the College accepted an FOI request from the applicant's solicitor, which was subsequently clarified as a request for access to "copies of all notes, documentation, information and records held by the College" relating to the period when the applicant was a student teacher at the College. The College issued a decision on 15 March 2013 and partially granted the request. It withheld certain parts of records under section 28(1) of the FOI Act on the basis that the information was personal information of individuals other than the applicant. In addition, the College refused access to other records under section 10(1)(a) of the FOI Act, on the basis that such records did not exist or were not held. A series of letters was sent by the respective firms of solicitors and, in this regard, it is difficult to determine if, or when, the applicant applied for an internal review. In any event, on 1 May 2013, the applicant's solicitor wrote to the College's solicitor and I am taking it that this letter, while not expressly stated as such, was intended as an application for an internal review. A response was issued by the College's solicitors on 13 June 2013 but this did not constitute an internal review decision by the College under section 14 of the Act. In this situation, I am prepared to accept that the applicant was entitled to a "deemed refusal" under section 41(2) of the Act which allowed her to avail of the review process in this Office. In this regard, on 25 October 2013, the applicant applied to this Office for a review of the decision of the College drawing attention, inter alia, to records which she contended had not been furnished.
In July 2014, a former Investigator of this Office, Mr Richie Philpott, wrote to the applicant to clarify the scope of the application for review. The case was subsequently allocated to Mr Edmund McDaid, Investigator. The applicant's reply of 19 August 2014 to Mr Philpott's letter listed 10 points which she requested the Office to consider. Throughout this review process, the applicant, the College and this Office relied on numbered points concerning the matters at issue and I refer to those points in my decision.
Following Mr McDaid's examination of the records and his contacts arising from this, the College provided clarification on certain records to the applicant. The College's responses to this Office provided the basis for a number of letters of explanation and clarification from Mr McDaid to the applicant, and in a letter of 26 November 2014, the applicant responded to Mr McDaid's observations on the remaining records at issue. Consequently, I have decided to conclude this review by issuing a formal binding decision.
In conducting this review I have taken account of the decision of the College and its communications with this Office, the applicant's communications with this Office and the College, and the provisions of the FOI Act. I do not intend to address every comment which each party made in their submissions, nor do I intend to repeat the details of each point explained by Mr McDaid to the applicant. In particular, while I consider that all of the substantive issues in the review are dealt with in this decision, I do not intend to address in any detail each of the applicant's comments and queries in her letter of 26 November 2014. One issue that I will address is the applicant's apparent belief that Mr McDaid and I might not have examined the records adequately or at all. I wish to make it clear that when this Office requests records from a public body, what is forwarded is both a copy of any records or parts of records issued to the applicant and un-redacted copies of all the extant records within the scope of the review. I confirm, as Mr McDaid has done, that I have examined all the records at issue which were provided to this Office by the College for the purpose of this review.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 and 2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
This review is concerned solely with the question of whether St Patrick's College was justified in deciding to refuse access to the withheld records in accordance with the provisions of section 10(1)(a), and to those parts of records containing information relating to third parties, in accordance with the provisions of section 28(1), of the FOI Act.
Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give concerning one of the records at issue is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires a public body to show to my satisfaction that its decision to refuse to grant the request was justified.
In various contacts with the applicant, Mr McDaid set out his observations on each numbered point that she had identified. In one letter, Mr McDaid advised the applicant that the subject matter of points 2 and 5 were, in fact, matters to which section 17 of the FOI Act applied. I am satisfied that this approach is correct since points 2 and 5 refer to alleged inaccuracies in minutes released by the College and cannot be taken as being included in the scope of the FOI request. As has been explained to the applicant, this review is confined to the question of access to records held and amendment of personal information in records requires a separate application under section 17 of the Act. Therefore, points 2 and 5 are outside the scope of this review.
In relation to point 3, I am satisfied that the applicant has been provided with a copy of the relevant record (referred to in an email of 16 July 2012) which the College has confirmed to be Document 4. I am satisfied with the response of the College in establishing the accuracy of the record at issue. In relation to point 6, I confirm this Office's examination of a copy of Document 8(5); the issue of the redactions made of exempt material is dealt with under Section 28 below.
I now turn to records identified at points 1, 4, 7, 8, 9, and 10 to which access was refused under section 10(1)(a) of the FOI Act on the basis that such records are not held by it.
Section 10(1)(a) of the FOI Act provides as follows:
"(1) A head to whom a request under section 7 is made may refuse to grant the request if-
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"
The Commissioner's role in a case such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie). However, the Act neither provides for a right of access to records which ought to exist, nor does it confer a general right of access to information. Furthermore, the FOI Act does not require a public body to create records.
Mr McDaid explained in several letters to the applicant the position as notified to this Office by the College and its reasons for relying on section 10(1)(a). The applicant's solicitor disputed the application of section 10(1)(a) and forwarded information which, she contended, supported her position. She clearly believes that the College should hold certain records and does not accept its explanations. I have examined the request of the applicant and supporting documentation and I note the position explained by the College, both to the applicant and to Mr McDaid about why records, including a deleted email, do not exist. The position of the College is that it cannot find any further records relevant to the applicant's FOI request. Having reviewed the steps taken by the College to locate the records at issue, I agree with Mr McDaid's view that all of the relevant points have been addressed by the College in a reasonable manner. I do not intend to set out here in detail, all of the various background material and answers to queries which have already been supplied to the applicant.
In her letter of 26 November 2014, the applicant also queried the records retention policy of the College and why some of the records may no longer exist. She questioned why the College is not in a position to retrieve a deleted email. While the applicant is dissatisfied with the position, it is not the function of the Information Commissioner in a review such as this under section 34 of the Act, to make detailed findings about the record management practices of a public body. As regards the steps required in relation to the search for records, the Act was not intended to create an unreasonable administrative burden on public bodies and, indeed, it allows for refusal of a request where the nature of the record sought would require retrieval and examination of such kind as to cause substantial and unreasonable interference with or disruption of the work of the public body involved (section 10(1)(c) refers).
I am satisfied in all the circumstances that the College has taken reasonable steps to locate the records within the scope of this request and that it was justified in its decision to refuse access to further records under section 10(1)(a).
The College refused access to parts of certain records on the basis of section 28(1) of the FOI Act. Therefore, I will examine whether the decision to redact parts of records by removing the personal information of individuals other than the applicant is justified.
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The list of information in the definition includes, inter alia, information relating to an individual's educational history. I am satisfied from an examination of the redacted records - which include specific references to students other than the applicant - that they all contain "personal information" as defined by section 2 of the FOI Act.
Section 28(1) provides that, subject to certain exceptions examined below, a public body shall refuse to grant access to a record where access would involve the disclosure of personal information. Section 28(5B) of the FOI Act provides that, notwithstanding section 28(2)(a), where a record contains personal information relating to a requester but also contains personal information relating to other individuals, it must remain protected from disclosure, subject to the other provisions of section 28 which I deal with below.
I am satisfied that the records which have been withheld by the College are records to which section 28(1) applies, subject to my examination of the exceptions which follows; I find accordingly.
Section 28(2) provides for the release of a record to which section 28(1) applies in a number of circumstances. These are: where the record relates to the applicant; where the third party consents to the release of the records to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.
I do not consider that the exception at section 28(2)(a) can apply since the information does not relate to the requester alone. Indeed, section 28(5B) applies to exempt such "joint personal information". I am not persuaded that any of the other exceptions identified at section 28(2) apply. I find, therefore, that section 28(2) does not apply in this case.
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1), may still be granted where:
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the request would benefit the individual aforesaid,"
In relation to the question of where the public interest lies under section 28(5)(a), I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
I further note that the FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the right to privacy.
On the other hand, the FOI Act itself also recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Having considered the contents of the records at issue, I cannot see how release of the information redacted in this particular case would enhance, to any significant extent, the public interest in ensuring such openness, transparency or accountability so that a breach of the individuals' rights to privacy would be justified.
Accordingly, I am satisfied that, on balance, the public interest in granting the request does not outweigh the public interest that the right to privacy of the individual or individuals to whom the information relates should be upheld. Thus, I find that the College's decision to refuse the request in this case pursuant to section 28 of the FOI Act was justified.
Section 28(5)(b) provides that personal information of a party other than the requester may be released where, on balance, the grant of the request would be to the benefit of the person to whom the information relates. No evidence has been presented to this Office to suggest that the release of the personal information relating to third parties would be to their benefit. I find, therefore, that section 28(5)(b) does not apply in this case.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the College in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.