Decision
Mr B & Trinity College Dublin
From Office of the Information Commissioner (OIC)
Case number: OIC-165360-W1Q9Y8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-165360-W1Q9Y8
Published on
Whether TCD was justified in refusing access, under sections 15(1)(a) and 15(1)(i)(i) of the FOI Act, to further records relating to the applicant’s grievance procedure on the grounds that no further records exist or can be found and that some of the information was previously released to the applicant; and whether TCD was justified in refusing access to third party personal information in the records it released to the applicant under section 37(1) of the Act
14 May 2026
By way of background, the applicant is a former faculty employee of TCD’s School of Medicine who availed of TCD’s grievance procedure.
On 17 January 2025, the applicant’s representative requested access to the files regarding his grievance procedure, particularly correspondence held in August 2021. On 3 March 2025, TCD part-granted the representative’s request. It identified eight records as falling with the scope of the applicant’s request and it refused access to certain information in these records on the basis of section 37(1) of the Act.
On 30 March 2025, the applicant’s representative requested an internal review of TCD’s original decision, specifically asking for:
- Disclosure of the internal correspondence following the issues raised about research integrity (anonymized if needed).
- Disclosure of the E-Mail sent from [named TCD staff member 1] to [named TCD staff member 2] on the 22nd of July 2021 at 15:20 in unredacted format and the following correspondence.
On 19 June 2025, TCD varied its original decision. It released more of the email of 22 July 2021 but continued to withhold parts of it under section 37(1). TCD also refused access to internal correspondence following the issues raised about research integrity under section 15(1)(i)(i) as it said that the applicant had access to all but one email, which TCD withheld in full under section 37(1), as containing personal information of another individual.
On 6 December 2025, the applicant applied to this Office for a review of TCD’s internal review decision. In his application, he said that he believed that sections 15(1)(i)(i) and 37(1) were applied incorrectly, as the internal correspondence sought was never made available to him and relates to institutional rather than personal matters. In subsequent correspondence with this Office, the applicant said that he believed that additional internal communications must have taken place among TCD staff regarding the concerns he raised. He said that these communications have not been made available to him.
I have now completed my review in accordance with section 22(2) of the FOI Act. During the course of this review, the Investigating Officer requested submissions from TCD. While I do not intend to repeat these submissions or those of the applicant in full here, I can confirm that I have had regard to both for the purposes of this review. I have decided to conclude this review by way of a formal, binding decision.
Firstly, the applicant’s position is that TCD did not provide all relevant records coming within the scope of his request. Accordingly, this review is concerned with whether TCD was justified in refusing access, under section 15(1)(a) of the Act, to further records within the scope of the applicant’s request.
Secondly, TCD has also refused to grant access to part of one record under section 15(1)(i)(i) of the Act on the basis that this part of the record was previously released to the applicant and that he is in possession of it. Accordingly, this review is also concerned with whether TCD was justified in refusing the applicant’s request under section 15(1)(i)(i) of the FOI Act.
Thirdly, the applicant also requested a review of the information TCD redacted in the records it released to him. This review is therefore also concerned with whether TCD was justified in redacting certain information under section 37(1) of the Act from those records it released when processing the applicant’s request.
Fourthly, I am satisfied that at internal review stage the applicant’s representative narrowed the scope of this request to two specific groups of records: (i) those relating to internal correspondence following the issues raised about research integrity and (ii) the email of 22 July 2021 between [named TCD staff member 1] and [named TCD staff member 2] and the following correspondence. Therefore, this Office’s review is limited to records that fall within this reduced scope.
Finally, I also wish to comment on TCD’s numbering of the records it part-released to the applicant. As set out above, TCD identified eight records as falling within the scope of the applicant’s request. In addition, the internal reviewer released to the applicant further information in the email dated 22 July 2021. When providing the relevant records to this Office, TCD provided a schedule which referred to 17 records. However, having reviewed these records I am satisfied that Records 1-8 provided to this Office comprise the records released in part or refused to the applicant following the original decision. I am also satisfied that what TCD calls Record 17 is the same as Record 8 but contains the full version of the email of 3 August 2021. I am equally satisfied that Record 9 comprises the version of the email dated 22 July 2021 which was released to the applicant following the internal review decision. Record 1 comprises the version of this record released to the applicant at the original decision stage. Finally, records 10-16 comprise the clean unredacted versions of these records. In light of this, when referring to the records at issue in this case, I will refer to records 2-9 as comprising the records at issue in this case.
At the outset I wish to make some preliminary comments.
Firstly, in submissions to this Office, the applicant mentioned the handling of the various stages of his grievance with TCD and how he was made redundant during the process. As the Investigating Officer told the applicant, this Office has no remit to investigate complaints, or to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role is confined to reviewing the decision taken by the FOI body on the applicant’s request for records.
Secondly, while section 22(10) of the FOI Act requires that I give reasons for my decisions, section 25(3) requires that I take all reasonable precautions to prevent the 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. Therefore, the extent to which I can describe the content of the records at issue is somewhat limited.
Finally, I also wish to note that release of records under FOI is generally understood to have the same effect as disclosing them “to the world at large”. This is because there are no restrictions placed on the use to which information released under FOI may subsequently be put.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI 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 to the reasoning used by the decision maker in arriving at his/her decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the records management practices of the FOI body, insofar as those practices relate to the records in question.
While I do not intend to repeat TCD’s submissions or those of the applicant in full here, I can confirm that I have had regard to them for the purposes of this review.
TCD’s submissions
In its submissions to this Office, TCD provided some information on its record retention policy in relation to this request. It said that staff accounts are generally wiped 90 days after employment ceases and that information cannot be recovered after 120 days. TCD also said that all Teams messages are deleted 90 days after their creation and that any messages from 2021 would therefore no longer exist. TCD provided record retention policy documentation in support of its submissions.
TCD said that it had engaged with staff in its HR Department as well as staff in the School of Medicine and the Department of Pharmacology and Therapeutics in relation to this request. According to TCD, staff in the three areas would have used key search terms to locate relevant records within systems such as Outlook, SharePoint, HR folders, etc. With respect to the Department of Pharmacology and Therapeutics, TCD explained that both the former Head and his Personal Assistant (PA) had retired by the time the request was received. According to TCD, the PA’s account was deleted in line with its retention policy, but TCD ultimately confirmed that the account of the former Head of Department had been kept open. According to TCD, relevant correspondence held by both individuals as well as by the former Head of the School of Medicine had been forwarded to its HR Department. With respect to its HR Department, TCD said that one member of staff no longer works at TCD but that the HR Department has retained her relevant communications.
TCD said that, following consultation with the Deputy Director of HR and with staff in the Employee Relations Team, it is satisfied that its HR Department has provided all the records it has on file in relation to the applicant. TCD added that the other individuals contacted have also provided all relevant records that they hold. According to TCD, as the request was made four years after the complaint was raised and as certain staff members have retired or no longer work for TCD, it is not possible to definitively state whether other records may once have existed because these individuals cannot be consulted.
Following receipt of TCD’s initial submissions, the Investigating Officer returned to TCD for further information. Asked to provide more details on the searches it had carried out, TCD confirmed that, within the School of Medicine and the Department of Pharmacology and Therapeutics, Outlook had been searched, as Outlook is the core platform used for electronic communication and the request concerned correspondence. TCD also confirmed that the accounts of four current and former staff members in the School and Department had been searched using keywords, including the applicant’s name. However, TCD said that its HR Department had provided no further detailed information in relation to the searches carried out. It said that HR had verbally noted that relevant systems had been checked “with e.g. name” but that it had not returned any documented or written response.
TCD also confirmed that some extra records had been found in the email account of the former Head of the Department of Pharmacology and Therapeutics. TCD said that it could review these records to establish what is within scope and suitable for release, adding that many of the records may already be held by the applicant. In addition, TCD said that a search of the email account of the former Head of the School of Medicine had also resulted in further records being found. Once again, TCD said that many of these records are believed to be in the possession of the applicant, either because the applicant himself has retained them or because they were released to him within the context of this FOI request. TCD further confirmed that a search of the email account of the Dean of Research resulted in some more records being located, sections of which TCD said were not held by the applicant. Finally, TCD indicated that records were also found in the account of the School Manager. TCD provided this Office with copies of the new records it had located following all these searches.
The applicant’s submissions
The applicant provided very detailed submissions as part of his application to this Office, including a substantial document outlining the history of his grievance with TCD. While I do not intend to repeat these submissions in their entirety here, I can confirm that I have had regard to them for the purposes of this review.
In his submissions, the applicant maintained that additional internal communications must have taken place between TCD staff regarding the concerns raised, including communications between the Department of Pharmacology and Therapeutics, the School of Medicine, HR, and relevant academic staff. He confirmed that the internal correspondence referred to in his application concerns communications between TCD staff relating to the research-integrity concerns raised in July and August 2021. He also said that he considered it reasonable to expect that additional internal email discussions or related records, including involving the Dean of Research, may exist within TCD systems. Finally, he said that his reference to the correspondence following the email of 22 July 2021 between his supervisor and the Head of Department would include replies, forwards or internal discussions concerning the issues raised at that time.
My analysis
As noted above, during the course of this review TCD located additional records following further searches. As also outlined above, TCD considers that at least some of these records are not in the applicant’s possession. Furthermore, TCD’s HR Department has not provided a documented account of the searches it has carried out in relation to this request. Consequently, I cannot be satisfied that TCD has undertaken all reasonable steps to locate the records sought by the applicant.
In the circumstances, I therefore find that TCD’s refusal, under section 15(1)(a) of the FOI Act, to provide access to any further relevant records was not justified. Furthermore, I do not propose to consider the applicability of any other section of the Act to those records that TCD located during this review as they have not been formally decided upon or considered in the course of TCD’s decision on the applicant’s request. Therefore, I consider that the most appropriate course of action is to annul TCD’s decision to refuse access to any records that were not considered during its processing of the applicant’s original request, the effect of which is that it must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with TCD’s decision.
However, that is not the end of the matter as the applicant also sought a review of TCD’s decision to refuse records under section 15(1)(i)(i).
Section 15(1)(i)(i)
Section 15(1)(i)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester and where the records are available to the requester concerned. For the section to apply, the FOI body should be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.
The record being refused by TCD under section 15(1)(i)(i) corresponds to Record 8. The full record is a chain of two emails, the first of which is dated 3 August 2021 while the second is dated 4 August 2021. In its submissions, TCD clarified that it is refusing the 3 August 2021 email under section 15(1)(i)(i) and the 4 August 2021 email under section 37(1). TCD’s refusal of the second email will be dealt with later in this decision under the relevant section.
TCD said that the first email was sent to the applicant when employed by TCD. TCD also provided evidence that the email is still in the applicant’s possession, in the form of a document entitled “Annex 4” that was submitted by the applicant’s representative at the time of requesting an internal review.
Having viewed the record in question and the document entitled “Annex 4”, I am satisfied that the email dated 3 August 2021 withheld by TCD corresponds to the one of the same date contained in “Annex 4”. Furthermore, I can confirm that the withheld email also corresponds to the 3 August 2021 email contained in section 3.7 of the applicant’s submissions to this Office. As such, I am satisfied that the record in question has already been released to the applicant and that he is in possession of it. Therefore, I am satisfied that TCD was justified in refusing access to the 3 August 2021 email under section 15(1)(i)(i) of the Act.
However, that is not the end of the matter as the applicant also sought a review of the information which TCD redacted, under section 37(1) of the FOI Act, in the records that it released with its original and internal review decisions.
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information concerned relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused pursuant to section 37(7) if that personal information is inextricably linked to personal information relating to parties other than the applicant.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information including (iii) information relating to the employment or employment history of the individual, and (xiv) the views or opinions of another person about the individual.
Section 2 of the FOI Act excludes certain information from being considered as personal information. Where the individual holds or held a position as a member of the staff of an FOI body, personal information does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). Section 2 contains similar exclusions where contractors are concerned (Paragraph II refers).
However, the exclusions do not cover all information relating to public servants or contractors. This Office considers that the exclusions are intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or a service provider in the context of the particular position held or service provided, or any records created by the relevant person while carrying out his or her official functions or while providing the service, or information relating to the terms, conditions and functions of positions or contracts. The exclusions do not deprive public servants or contractors of the right to privacy generally.
It is important to note that the fact that a requester may be aware of the nature of the information at issue or may have even provided some of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
TCD refused access to certain information in Records 2-7 and 9 on the basis of section 37(1). In addition, as set out above, TCD is also seeking to rely on section 37(1) to refuse access to the email dated 4 August 2021 in Record 8. In its submissions to this Office, TCD said that much of the information at issue relates to a complaint made by the applicant against another staff member. TCD said that, as the information redacted relates to the alleged behaviour, performance and actions of the other staff member or can be used to deduce that there was a complaint against this staff member, it believes that the information would fall within parts (iii) and (xiv) of the categories of personal information. In addition, TCD also said that it had refused access to a small amount of third party information, comprising names and in certain cases other identifying information, relating to individuals other than the applicant.
Having reviewed the records, I am satisfied that, with the exception of what I will refer to below, the information withheld in Records 2-9 comprises either personal information relating to other parties or joint personal information relating to the applicant and other individuals. Furthermore, having regard to the content of the information and the context in which the records were created, I am satisfied that the information is not of a type that is captured by the exclusions in Paragraph I and II. I find, therefore, that section 37(1) applies.
However, I am not satisfied that the information which has been refused on the bottom of page 2 of Record 3 comprises the personal information of individuals other than the applicant and I find therefore that section 37(1) does not apply to this information.
That is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if:
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. I am satisfied that the withheld information in the records that relates to the applicant is inextricably linked with personal information relating to third party individuals. I am satisfied, therefore, that section 37(2)(a) does not apply. No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply.
Section 37(5)
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 request would benefit the person to whom the information relates. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant’s motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case” ). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and that “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 its submissions, TCD said that it considered that public interest factors in favour of release would revolve around transparency, while those against release would be related to privacy. TCD submitted that in this case the public interest for release is outweighed by the right to privacy of the individuals concerned. In essence, TCD said that, as the information redacted relates to the employment of third-party individuals and involves the views or opinions of another person about them, it is believed that release of the information would infringe this right to privacy, potentially causing the individuals stress and reputational damage.
In his application to this Office, the applicant said that the public interest test under section 37(5)(a) clearly supports disclosure. In his application for internal review on the applicant’s behalf, the applicant’s representative stated that the way of handling research integrity issues by TCD is of high public interest in line with section 37(5)(a), which clearly outweighs the interest of protection of personal information after the outline of it has already been disclosed. The representative said that the information withheld seems not to benefit the protection of personal information but to hinder a satisfactory scrutiny of the processes which are put in place to ensure research integrity at TCD.
I accept that there is a public interest in individuals ensuring that information held about them is accurate and in enhancing the transparency and accountability of public bodies such as TCD. It seems to me that those interests have been served to a significant degree by the release of the vast majority of the information within the records to the applicant, and it is not apparent to me that the release of the withheld information at issue would further enhance that transparency and accountability to any significant degree. The question I must consider is whether those public interest factors in favour of release of the withheld information outweigh, on balance, the privacy rights of the relevant third parties. In my view, they do not.
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 it 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). While I accept that some of the information is not of a particularly sensitive nature, I must have regard to the fact that the release of the records must be regarded, in effect, as release to the world at large.
Having considered the matter and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of the information at issue. In conclusion, I find that TCD was justified in refusing the information it redacted under section 37(1) of the Act, with the exception of the part of Record 3 identified earlier in this review.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary TCD’s decision. I annul its decision to withhold the sentence on the bottom of page 2 in Record 3 under section 37(1) of the FOI Act and I direct that this be released to the applicant. I find that, with the exception of that part of Record 3, TCD was justified in redacting third party personal information in the records it released with its original and internal review decisions under section 37(1). I also find that TCD was justified in refusing access to the relevant part of Record 8 under section 15(1)(i)(i). Finally, I find that TCD was not justified in refusing access to further records under section 15(1)(a) of the Act and I direct it to undertake a fresh decision, in accordance with the provisions of the FOI Act, on access to any records that it did not consider when processing the applicant’s original request.
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.
Mary Connery
Investigator