Whether the third level institution is justified in refusing to grant the applicant's request for a record comprising a student's appeal of a thesis assessment
01 July 2019
Part 1 of the applicant's FOI request to the third level institution of 28 January 2019 sought a copy of an appeal document submitted by a named student (Y) regarding an assessment of a thesis that was carried out by the applicant and another party. The third level institution's decision of 26 March 2019 refused access to the record concerned under sections 30(1)(a) (tests carried out by an FOI body) and 37(1) (personal information) of the FOI Act. The applicant sought an internal review of that refusal on 27 March 2019. The third level institution's internal review decision of 18 April 2019 affirmed its refusal of the record under section 37. On 29 April 2019, the applicant sought a review by this Office of the decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the third level institution, and the applicant. I have had regard also to the requested record and to the provisions of the FOI Act.
Scope of Review
This review is confined to whether the third level institution is justified in refusing to grant access to the appeal document.
Section 37 - personal information
In considering section 37 in this case it is not relevant whether the third level institution granted Y access to emails concerning the applicant's assessment of the thesis.
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.
Section 2 of the FOI Act contains a two-part definition of the term "personal information" and also lists 14 non-exhaustive examples of what must be considered to be personal information. It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met. These examples include (i), "information relating to the educational ... history of the individual" and (iii) "information relating to the employment or employment history of the individual".
The applicant says that the appeal was made on the grounds of an alleged procedural irregularity and therefore that the requested record cannot contain personal information about Y. Having examined the record, I am satisfied that it contains information falling into the above examples of what comprises personal information about a number of identifiable individuals, including Y.
The applicant says that any personal information about Y could be redacted from the record so that, in particular, she could get access to details of allegations of procedural irregularity on her behalf. However, I cannot disregard the context of part 1 of the applicant's request, which seeks a record that specifically concerns Y. It follows that any details in the record that may refer only to the applicant are inextricably linked to personal information relating to Y. In the circumstances, it is not appropriate to consider directing that partial access be granted to the record.
I find that section 37(1) of the FOI Act applies to the appeal document. This is subject to the consideration of sections 37(2) and (5), however.
Section 37(2) - exceptions to section 37(1)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. The applicant may consider that she is accordingly entitled to access to the record. However, section 37(7) provides for refusal of a record that would, in addition to disclosing personal information relating to the requester, disclose personal information relating to an individual or individuals other than the requester. I am satisfied that section 37(2)(a) does not apply in this case. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of where the public interest lies, 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). 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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.
Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Supreme Court, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”
The applicant says that she was not informed of Y's appeal against her assessment of the thesis or given any right of reply. She says that she heard unofficially about the outcome of the appeal and sought information about the matter but was eventually obliged to make an FOI request. She says that others in the third level institution received a copy of the appeal, however, and were allowed to respond. She says that her reputation has been damaged within and outside of the third level institution by the allegations concerned, and that to defend her reputation she needs to get access to the substantive issues raised by Y in the appeal. She also makes various comments about the third level institution's assessment of Y's appeal.
It is clear from the Rotunda and F.P. cases that I cannot take into account the applicant's private interests in the grant of access to the withheld information. It is not appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis that the outcome of Y's appeal may have impacted on the applicant's reputation.
Neither is it appropriate for me to direct the third level institution to grant access to the record on the basis of assertions to the effect that the appeals process may have been inadequate or did not comply with fair procedures. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
In this case, there is a public interest, recognised by the FOI Act, in establishing that the third level institution carried out its functions in relation to the applicant in a way that was consistent with the principles of natural and constitutional justice. It is entitled to significant weight in this case. While this public interest has been served to some extent by other records released on foot of the entirety of applicant's FOI request, I accept that it would be further served if access to the appeal document was granted.
On the other hand, both 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. I am satisfied that placing the appeal document in the public domain would significantly breach Y's rights to privacy.
I find that the public interest in favour of granting access to the appeal document does not outweigh the public interest that Y's right to privacy should be upheld.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the third level institution's refusal to grant access to the appeal document under section 37(1) of the FOI Act.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.