Case number: 180102
25 January 2019
On 25 November 2017, the applicant sought access to records relating to the acquisition of the papers of the playwright Tom Murphy by the Library of TCD. This acquisition took place in April 2017 and was the second tranche of papers from Mr. Murphy acquired by the Library.
On 7 February 2018, TCD issued its decision wherein it refused access to 26 records it identified as falling within the scope of the applicant's request under sections 30 and 36 of the FOI Act. The applicant sought an internal review of that decision. On 9 March 2018 TCD granted partial access to record 3 (a transcript of a handwritten note by the Library's Head of Research Collections & Keeper of Manuscripts) and full access to record 26 (a catalogue of the papers acquired) but refused access to the remaining records, citing sections 37 and 40 as additional exemptions in support of its refusal. On 14 March 2018 the applicant sought a review by this Office of TCD's decision.
During the course of the review, TCD also sought to rely on section 35 in support of its refusal to release the remaining records. It is also sadly noted that in the course of the review Mr Murphy passed away. In subsequent correspondence with this Office, TCD also sought to extend arguments which it had made in relation to the rights of the late Mr Murphy to his estate and personal representatives. This Office contacted the estate of the late Mr Murphy, through his agent, to seek their views in relation to the possible release of the records. In response, the Estate of the late Mr Murphy indicated their vigorous opposition to the release of the relevant records and relied specifically on the provisions of section 35.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to TCD's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and TCD on the matter as well as the consultation with the late Mr Murphy's Estate. I have also had regard to the contents of the records at issue.
This review is concerned solely with whether TCD was justified in refusing to grant access to the relevant records relating to the acquisition of the papers of the late playwright Tom Murphy under the relevant provisions of the FOI Act.
Before I make my findings in this case, I wish to make the following points on certain issues arising in this case.
Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record 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 speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
It is also noted that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restriction on the type or extent of the subsequent use to which a record may be put.
The records at issue relate to engagements between TCD and the representative of the late Mr. Murphy in connection with the acquisition of the second tranche of his papers. In the main the records comprise email exchanges between Mr. Murphy's literary agent and three members of staff at the Library of TCD seeking to agree the terms of the acquisition of the papers. As set out above TCD has relied on a number of exemptions to refuse access to the relevant records. As I consider sections 35 and 37 to be the most relevant I propose to examine them first.
It is clear that TCD's arguments for refusing the request relate primarily to its concerns as to the potential harms arising as a result of the disclosure of the price it paid for the papers. Record 25 contains a letter from TCD's Principal Curator of Manuscripts and Archives to the late Mr. Murphy's agent at the conclusion of the negotiation which describes the agreement reached between the parties in relation to the acquisition. It is the terms of this agreement that the parties argue should remain confidential.
Section 35(1)(a) provides for the mandatory refusal of a request where the record sought contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential, and where the body considers that the disclosure of the record would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information should continue to be given to it.
Section 35(1)(b) provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by agreement, enactment or otherwise by law.
Section 35(2) provides that section 35(1) does not apply to a record which is prepared by a member of the staff of an FOI public body or service provider, unless disclosure of the information would constitute a breach of a duty of confidence owed to a person other than an FOI body or a member of the staff of an FOI body or service provider. The record which sets out the terms of the agreement reached is a letter that was prepared by TCD. As such, section 35 cannot apply unless disclosure of the information contained in the record would constitute a breach of a duty of confidence owed to a person other than an FOI body or a member of the staff of an FOI body or service provider. Accordingly, I have considered whether the release of the letter in question would constitute a breach of a duty of confidence owed to the Estate of the late Mr. Murphy.
In its submission to this Office, TCD stated that it regularly engages with donors, literary agents, writers, poets and academics regarding acquisitions to ensure it has the resources in place to facilitate its academic community and scholars. With regard to the first tranche of the late Mr. Murphy's papers which were acquired in 2001, TCD indicated that it is among the most heavily used of Library's literary collections. The acquisition of the second tranche of papers at issue in the current case sought to complete this collection of works.
TCD stated that it engaged with the late Mr. Murphy's literary agent on the premise that all negotiations and, in particular, the final purchase price agreed would be kept confidential. It argued that this is in keeping with international norms around the acquisition of literary collections by universities and libraries, which require that such institutions operate on a basis of discretion and confidentiality. It argued that the existence of such accepted norms means that the engagement by a prospective vendor with a university or library seeking to acquire their collection is undertaken on the basis of an understanding of confidentiality. It further argued that all parties understood themselves to be operating under an understanding of confidence. It added that in the absence of such an understanding of confidentiality prospective vendors would decline to engage with academic institutions seeking to acquire their papers and this could prejudice the Library's ability to acquire future collections of this nature.
TCD also specifically argued that the letter which contains details of the agreement reached between the parties in relation to the acquisition is an agreement within the meaning of section 35(1)(b). Point 7 in this letter states 'details of this agreement will remain confidential' and TCD argued that this is evidence that both parties had entered a confidentiality agreement.
In a submission to this Office, the late Mr Murphy's literary agent, speaking on behalf of the Trustees of his Estate, expressed their strong opposition to the release of the relevant records. Specific mention was made of section 35 and it was argued that any release of the records would be a breach of a confidentiality agreement made between TCD and Mr Murphy's literary agent.
On other hand, the applicant argued that while many FOI bodies receive information purportedly 'in confidence', not all such information can be deemed to be confidential. In particular the applicant argued that the mere fact that information might be marked as 'confidential' is not sufficient to meet the requirements of section 35. He argued that if this were to be the case then FOI bodies could routinely circumvent the legislative intention behind the FOI Act by marking records as confidential. Finally the applicant argued that as TCD is in receipt of substantial public funds that there should be compelling reasons for withholding the relevant records.
Based on the nature of the transaction concerned, I am satisfied that all parties to the negotiation in this case were operating on the expectation and understanding that information in relation to the acquisition of the late Mr. Murphy's papers would be treated as confidential. It is clear that from the initial contact between Mr. Murphy's agent and representatives of TCD that an understanding of confidentiality underpinned all of the interactions between the parties. This understanding of confidentiality was formally expressed in the letter which described the details of the agreement reached. I am satisfied that it can be considered an agreement which provides for a duty of confidence within the meaning of section 35(1)(b). I am therefore satisfied that the release of information contained in record 25 would constitute a breach of this agreement and find that TCD was justified in refusing access to record 25 on the basis of section 35(1)(b).
Section 35(1)(b) is not subject to the general public interest balancing test under section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence. This Office takes the view that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, no such public interest grounds arise in this case.
Accordingly I find that TCD was justified in refusing access to record 25 on the basis of section 35(1)(b) on the basis that disclosure of the information contained in the record would constitute a breach of a duty of confidence provided for by agreement
In my view, section 37 is of relevance to all of the remaining records at issue. Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the requester (including personal information relating to deceased individuals). Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated as confidential.
The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the medical history etc. of the individual, (ii) information relating to the financial affairs of the individual and (xiii) information relating to property of the individual.
The records at issue are concerned with the acquisition of the late Mr. Murphy's private papers. Among other things they contain details of the value attributed to those papers by the late Mr Murphy, as well as information concerning his financial affairs and his health. They also contain information and exchanges of correspondence on the nature and extent of the papers held and of the papers that were transferred to TCD in the first tranche. Having regard to the definition of personal information as set out above, I am satisfied that the release of the records sought would involve the disclosure of personal information relating to the late Mr. Murphy and that section 37(1) applies.
Section 37 is subject to the other provisions of the section, the relevant ones in this case being subsections (2) and (5). I am satisfied that the subsection (2) does not apply in this case. Subsection (5) provides that a record which is otherwise exempt under subsection (1) may be released if (a) on balance the public interest that the request should be granted outweighs 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. I do not consider that the release of the information at issue would benefit the individual concerned as envisaged by section 37(5)(b) of the FOI Act.
On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in releasing the records at issue, on balance, outweighs the right to privacy of the individuals concerned. In considering the public interest test at section 37(5)(a), I have had 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,  1 I.R. 729,  IESC 26) (''the Rotunda case''). In that judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).
In relation to where the balance of the public interest lies, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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 seems to me that the public interest in the enhancement of transparency and accountability in relation to this matter has been served to some extent by the release of the catalogue of works acquired by TCD in the current acquisition (Record 26). The question I must consider is whether the public interest in further enhancing that transparency and accountability by the release of the remaining records outweighs, on balance, the privacy rights of the late Mr. Murphy and other individuals. In light of the nature of the records and the context in which they were created, I find that it does not. I find, therefore, that section 37(5)(a) does not apply to records 1-24 (including the redacted parts of record 3).
Having found sections 35 and 37 to apply to the relevant records, I do not find it necessary to consider the decision of TCD to refuse access to records on the basis of other exemptions in the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TCD to refuse access to the relevant records relating to the acquisition of the papers of the late playwright Tom Murphy under sections 35 and 37 of the Act.
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.