Case number: 160136
On 1 November 2015, the applicant sought access to records relating to UCC's decision to allow a named Minister of State to complete a degree programme he had commenced a number of years previously. On 16 December 2015, UCC refused the request on the ground that the records sought contain personal information relating to a third party, namely the Minister. Following the applicant's request for an internal review, UCC affirmed its original decision on 19 February 2016. On 27 March 2016, the applicant sought a review by this Office of UCC's decision.
I have decided to conclude this review by way of a formal, binding decision. In conducting this review, I have had regard to correspondence between the applicant and UCC as outlined above, to correspondence between this Office and both the applicant and UCC on the matter, and to the content of the records at issue.
This review is concerned solely with the question of whether UCC was justified in its decision to refuse access to records relating to its decision to allow the Minister in question to complete a degree programme on the ground that the records contain personal information relating to the Minister.
While I am required by section 22(1) to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. Therefore, the description that I can give of the records at issue and the circumstances of their creation, and the level of detail I can provide in relation to the reasons for my decision, are limited.
Furthermore, section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). Neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, I am mindful that under FOI, records are released without any restriction as to how they may be used and thus, such release is regarded as being, in effect, to the world at large.
Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record(s) concerned would involve the disclosure of personal information relating to individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(i) information relating to the educational ... history of the individual" and "(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual". Having regard to the definition of personal information, and having reviewed the records at issue, I am satisfied that the vast majority of the content therein is personal information relating to a party other than the applicant and that section 37(1) of the Act therefore applies.
I note that the applicant has argued for the partial release of some records on the basis that they are likely to refer to matters of established fact regarding the third party concerned. Having considered section 18 of the FOI Act, detailed above, I do not consider it appropriate to direct such release.
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Having examined the records at issue, I am satisfied that none of the circumstances identified at section 37(2) arise in this case.
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I find no basis for concluding that the release of the withheld information would be to the benefit of the individual in question in this instance. I find, therefore, that section 37(5)(b) does not apply.
Section 37(5)(a) - The Public Interest
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. In determining this question, I have had regard to the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- the Information Commissioner  IESC 26;  1 I.R. 1;  1 I.L.R.M. 301 (the Rotunda case), wherein I note that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
The applicant's FOI request followed a report in the media that the Minister in question was allowed to complete a degree programme he had commenced some years previously. The applicant sought access to records relating to UCC's decision to allow the Minister to complete the programme, which necessitated the waiver of a particular rule applying to the completion of the programme, referred to as the "Three Year Rule". She argued that as a member of Government, the Minister has a say in decisions that can affect UCC as a publicly funded body and that there is a public interest in establishing the basis on which the decision was made to allow him to complete the programme.
I accept that there is a strong public interest in ensuring the openness and accountability of public bodies in how they perform their functions and in how they apply their processes and procedures. UCC has published on its website the rules and procedures relating to its programmes. The UCC Calendar sets out the "Three Year Rule" for the relevant course as follows:
"Students must pass the Second and Third Arts Examinations within three academic years from the date of first registration for Second and Third Arts as appropriate. Failure to comply with this rule means that the student will be ineligible to proceed further with his/her studies. Exceptions to this rule may be granted by the College of Arts, Celtic Studies and Social Sciences only for very serious reasons."
UCC stated that students may apply to the Student Affairs Committee of the College of Arts, Celtic Studies and Social Sciences seeking an exemption from that rule by requesting that the rule be waived. It stated that such applications are treated on a case-by-case basis and the "serious reasons" will vary from individual to individual. It stated that each request will be specific to the student concerned. It further stated that the Student Affairs Committee invariably decides on the basis of what is in the best interests of the student concerned, and applications are more often than not approved, following consultation with the Schools or Departments in question, though usually with certain stipulations. It stated that this was the outcome in the Minister's case. UCC also stated that from its perspective, the Minister was a student of UCC and thus a private individual and that all records in relation to his interactions with the University are his personal information.
It seems to me that the public interest in ensuring the openness and accountability of UCC in relation to how it applies its processes and procedures has been met to some extent by virtue of the fact that a wide range of information on those policies and procedures is publicly available on its website. It is clear, for example, that the procedures relating to waiver of the "Three Year Rule" in respect of passing examinations provide for a degree of discretion on the part of the relevant decision maker(s). The question I must consider is whether the public interest in releasing the records at issue, thereby providing for further transparency and accountability in relation to its engagements with the Minister, as a student, is sufficiently strong to outweigh the privacy rights of the Minister. In my view, it is not.
The public interest in protecting the right to privacy is a very strong public interest and is recognised in the language of section 37 of the FOI Act. This public interest in protecting privacy rights is also reflected 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"). Also, the right to privacy has been recognised as an unenumerated right under the Constitution. I am also mindful that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in 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 privacy.
I accept that the publication of details of circumstances where UCC has agreed to waive the "Three Year Rule", including the factors taken into account in arriving at such decisions, would provide greater openness and accountability in the exercise of its discretion in relation to such decisions. However, I also accept UCC's statement that each request will be specific to the student concerned and that the Student Affairs Committee invariably decides on the basis of what is in the best interests of the student concerned. In such circumstances, I do not consider that the fact that the student in this case is also a Minister diminishes his right to privacy in relation to UCC's decision. In any event, having regard to the contents of the records at issue in this case, it is not apparent to me that their release would enhance the accountability or transparency of UCC in its exercise of its discretion to any significant extent. In my view, the public interest in the release of the withheld records in this instance does not outweigh, on balance, the significant public interest in protecting the privacy rights of the individual to whom the information contained in the records relates. I find, therefore, that section 37(5)(a) does not apply to the records in question.
Accordingly, I am satisfied that UCC was justified in its decision to refuse access to the records withheld under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of UCC in this case.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.