Case number: OIC-109589-D5M3W6

Whether MTU was justified in refusing access, under sections 29(1) and 37(1) of the FOI Act, to records regarding communications relating to the applicant’s course of study

 

OIC-109589-D5M3W6

 

Background

 

In a request dated 15 March 2021, the applicant submitted a request to MTU for access to all records made by a named individual staff member of MTU that related to the second year of his Professional Masters of Education (PME) course, covering the years 2016-2017. In particular, he requested access to any records or notes made by that staff member arising from a meeting on 27 February 2017. He further requested access to notes made by a second named staff member relating to his school inspection covering years 2016-2017. He further requested access to records relating to his three inspection reports from 2016-2017, as well as access to records or notes arising from a meeting between himself and the two named MTU staff members in March 2017 in relation to his school placement of that year.

Subsequently, on 21 March 2017, the applicant amended his original request to also seek access to a number of other specific records comprising certain external and internal correspondence in relation to his PME between MTU members and named external organisations. The applicant also sought access to any records or notes made by a named MTU staff member, or any other staff members, in the context of MTUS’s Critical Incident Policy, Duty of Respect and the Right to Dignity at work policy in relation to his 2016-2017 work placement undertaken as part of his PME course. Finally, the applicant sought access to any notes or records pertaining to a meeting between him and two named MTU staff members on 26 November 2018, including the purpose of the meeting and any notes or records related to the outcome of the meeting.

When the applicant had not received a response to his request by 7 May 2021, he sought an internal review of the deemed refusal of his request. On 24 May 2021, MTU issued its internal review decision, wherein it part-granted the applicant’s request. It identified five sets of records as coming within the scope of the request: Set 1 was released in full; Set 2 was released with information in two of the records redacted under section 37(1) of the Act; Set 3 was released with information in 12 of the records redacted on the same basis; Set 4 was released with information in 18 of the records redacted pursuant to section 37(1); and the nine records comprising Set 5 were refused in whole or in part under section 29(1) of the Act. On 28 June 2021, the applicant sought a review by this Office of the decision of MTU.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence exchanged between MTU and the applicant in the course of the request and to the communications between this Office and both MTU and the applicant on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

 

Scope of the Review

 

This review is concerned solely with whether MTU was justified in redacting certain information contained in the records under section 37(1) of the FOI Act, and in refusing access to certain records under section 29(1) of the Act.

 

Analysis and Findings

Section 37(1)

MTU sought to rely on section 37(1) of the Act as the basis for partially withholding access to Records 143 and 144 from Record Set 2; Records 1, 4-5, 8, 15-21 and 27 from Record Set 3; and Records 28, 50, 66, 70, 80, 85-86, 121-122, 144-146, 148-151, and 153-154 from Record Set 4.

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a), namely a personnel record. It is sufficient for the information at issue to fall within one or more of the fourteen categories for it to be deemed personal information for the purposes of the Act.

Under Paragraph (I) of section 2 of the Act, certain information is excluded from the definition of personal information, including the name of a staff member of a public body or information relating to the position held or its functions or the terms and conditions upon and subject to which the individual occupies that position.

In its submissions to this Office, MTU argued that section 37(1) applied in respect of the redactions it had made to the records on the basis that the redacted material constituted the personal information of individuals other than the applicant. Specifically, MTU indicated that the redacted information related to students other than the applicant, external examiners and individuals in organisations that contributed to its PME programme. In particular, MTU indicated that the information at issue was primarily the names, email addresses, other contact details and academic records of individuals besides the applicant.

MTU argued that some communications between course team members referred to multiple students, as was common in an academic environment. It stated that these were not general class communications issued to all course students but are specific to a small number of the group. It stated, for example, that some of the communications relate to student absences or to submissions of project material. MTU outlined its belief that redacting other students’ names did not affect the overall record content. It stated that other redacted information related to external examiners who are engaged to carry out a specific task and whose details would not normally be known to students.

I have examined unredacted versions of the records at issue, and I am satisfied that the redacted information is personal information for the purposes of the Act, and as such falls within the scope of section 37(1), with the following exceptions:

  • Record Set 3, Records 1, 4, 5, 8, 15, 16, 17, 18, 19, 20 and 21, and Record Set 4, Record 50: These records contain, variously the name and/or email address and/or work address and telephone number of a staff member of the National College of Art and Design (NCAD), which have been redacted from the released records. Such details do not constitute personal information for the purposes of the Act, as per Paragraph (I) of section 2 which specifically excludes from the definition of personal information the name of a staff member of a public body or information relating to the position held or its functions.
  • Record Set 3, Record 16 contains (at pages 30 and 33) the name, job title, work address and email address, and work telephone number, of a staff member of MTU, which have been redacted from the released record. Such details do not constitute personal information for the purposes of the Act, for the reasons outlined above.
  • Record Set 4, Record 80 contains the name, job title, work address and email address, and work telephone number, of a staff member of University College Cork (UCC), which have been redacted from the released record. Such details do not constitute personal information for the purposes of the Act, for the reasons outlined above. This record also contains text which has been redacted from the body of a number of emails which does not constitute personal information, as it is not information about an identifiable individual.
  • Record Set 4, Record 85 contains the names and email addresses of a number of staff members of the Teaching Council and of UCC, which have been redacted from the released record. Such details do not constitute personal information for the purposes of the Act, for the reasons outlined above. This record also contains text which has been redacted from the body of a number of emails which does not constitute personal information, as it is not information about an identifiable individual.
  • Record Set 4, Record 148 contains the name and email address of two staff members of UCC and the name of a staff member of NCAD, which have been redacted from the released record. Such details do not constitute personal information for the purposes of the Act, for the reasons outlined above.
  • Record Set 4, Record 149 contains the same details as set out above in respect of Record Set 4, Record 148.

 

However, the fact that certain information falls within the scope of section 37(1) is not the end of the matter as subsection (1) is subject to the other provisions of section 37. Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the 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 [2011] IESC 26 (“the Rotunda case”). It is noted 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 FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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.

It is also important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.

In its submissions on the applicability of section 37(5)(a), MTU did not identify any public interest factors in favour of release of the material that it considered fell within the scope of section 37(1). Against release, it said it had considered the right to privacy of individuals other than the applicant, and argued that the information of other individuals was not relevant to his request. It argued that withholding this personal information did not affect the record context for the applicant. It argued that by withholding this information, it maintained the confidentiality of other individuals, and argued that It would not be in the public interest to release, for example, the attendance records of other students.

The information in the records at issue that I have identified as being personal for the purposes of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of any individuals identified in the records. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, and with the exception of the information that I have identified above that does not constitute personal information for the purposes of the Act, I find that MTU was justified in withholding access to the information in the records that it redacted under section 37(1).

Section 29(1)

MTU cited section 29(1) of the Act as a basis for partially withholding access to Records 1-4 of Record Set 5, and for refusing access in full to Records 5-9 of Record Set 5. Each of the nine records in total that make up Record Set 5 takes the form of email correspondence exchanged between parties to the discussion regarding work placements undertaken by the applicant as part of his PME course.

Section 29(1) of the Act provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2) of the Act. Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must also consider whether section 29(2) applies in relation to the record concerned.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. In this regard, in its submissions MTU stated that the deliberative process to which the records at issue related was the discussion about how to manage an academic issue relating to the applicant.

I have examined the records comprising Record Set 5 in order to determine the applicability of section 29(1)(a) of the Act to each record. In the case of Records 1, 2 and 9 of Record Set 5, I do not consider that the redacted text contains opinions, advice, recommendations or the results of consultations considered by the body for the purposes of its deliberative processes. In the case of Records 1 and 2, the redacted text is at the level of the conveyance of general information regarding progress made in the matter at issue, while the information in Record 9 appears to constitute the relating by an MTU staff member to a colleague of a factual series of events. It should be noted that ‘factual information’ is specifically excluded from the scope of section 29(1) by section 29(2)(b).

In addition, in relation to Records 3 to 8 of Record Set 5, I find that, while it may be possible to argue, as MTU has, that the records contain opinions and advice about the manner in which the issue at hand was to be addressed, it seems to me that the information at issue essentially concerns MTU’s handling of a dispute it has with a student over his completion, or non-completion, of a particular year of his course. This is not, in my view, the type of information that can be said to constitute a “deliberative process” for the purposes of section 29(1)(a). The fact that the outcome is not pre-determined and that different options may have been be available to MTU as a means of progressing the matter does not, in my view, mean that it was engaged in a deliberative process. Moreover, even if I was to accept that section 29(1)(a) applied to the records, I would also find it difficult to accept that their release issue would impair co-operation with external organisations which provide placements to students.

Accordingly, I am of the view that the none of the records in respect of which MTU sought to rely on section 29(1) can be said to fall within the scope of the exemption. In circumstances where the first requirement of section 29(1) has not been met, it is not necessary for me to consider the applicability of section 29(1)(b). In my view, in respect of the records withheld under section 29(1), MTU has not discharged the burden placed upon it by section 22(12)(b) of the Act to show to the satisfaction of the this Office that the decision to refuse access to the records was justified. In those circumstances, I find that the records should be released.

 

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of MTU in this case. I find that the MTU was justified in its decision to refuse access to those records that it withheld under section 37(1) of the FOI Act, with the exception of the information I have identified above that does not constitute personal information for the purposes of the Act (and which therefore do not fall within the scope of section 37(1) of the Act), which I direct should be released. In addition, I find that MTU was not entitled to refuse access to the records that it withheld under section 29(1) of the Act, and I direct the release of those records.

 

Right of Appeal

 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Stephen Rafferty
Senior Investigator