Mr Conor Ryan, RTÉ and National University of Ireland, Galway

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 23 April 2018
• Case Outcome: The Senior Investigator affirmed the decision of NUIG to refuse to grant access to records on the basis of sections 35 and 37 of the FOI Act. He also affirmed its decision to refuse to grant access to minutes of the Foundation's meetings, on the basis of section 2(5) of the Act.
• Court: Information Commission
• Record Number: 170333
• Respondent: National University of Ireland, Galway

Whether NUIG was justified in refusing to grant access to records between NUIG and Galway University Foundation (the Foundation) from 2010 to 2015 on the basis of sections 35, 36 and 37 of the FOI Act

23 April 2018

Background

The journalist who submitted the original FOI request to NUIG in this case subsequently gave written permission for her colleague to take over her request. On 5 January 2017 the requester sought access to records between NUIG and the Foundation from 2010 to 2016. She indicated that she would be willing to amend her request if required. On 19 January 2017, NUIG informed the requester that the level of retrieval and examination of records required to process the request would cause a substantial disruption to the work of a number of units in NUIG. It indicated that her request would fall to be refused under section 15(1)(c) and/or under section 27(12) on the ground that the search and retrieval charges would exceed the prescribed overall ceiling limit. It offered the requester an opportunity to reduce the scope of her request so that it would not fall to be refused under section 15(1)(c) or section 27(12).

On 26 January 2017, the requester refined her request to records between the Foundation and four separate offices in NUIG: the office of the President; the office of the Vice President for capital projects; the Bursar's office; and the office of the Secretary. On 9 February 2017, NUIG stated that this would still involve the retrieval and examination of a large number of records. On 13 February the applicant restricted her request to records between the Foundation and the offices of the President and Vice President of capital projects, from 2010 to 2015.

On 14 March 2017, NUIG informed the requester that it would require an extension of one and a half weeks to the statutory deadline to issue a decision on her request and that a decision would issue by 22 March 2017. On 29 May 2017, the requester sought an internal review of the deemed refusal of her request as she had not, at that stage, received a decision on the refined request.

NUIG issued an internal review decision on 21 June 2017, wherein it decided to part grant the request. It identified and considered a number of records as follows:

• President's Office (PO) - 32 records including 26 Foundation records/minutes
• Vice-President's Office (VPO) - 12 records

It released two of the PO records in full and refused access to the remainder. It granted access to the VPO records in part.

NUIG relied on sections 35(1)(a) and 35(1)(b) (confidential information) and 36(1)(b) (commercially sensitive information) in support of its refusal to grant access to the records withheld in full or in part. On 30 June 2017, the applicant sought a review by this Office of NUIG's decision.

During the course of this review, NUIG indicated that it would be willing to release VPO Record 11 in full and the information that was redacted from the paragraph numbered 3 in VPO Record 12. However, it remained of the view that it was justified in refusing to grant access to the remaining information in the records concerned under the FOI Act. In addition, it cited section 37 (personal information) in respect of certain information redacted from VPO Record 1.

I have decided to bring this review to a close by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between NUIG and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and NUIG, and to the contents of the records at issue.

Scope of Review

This review is solely concerned with whether NUIG was justified in its decision to refuse to grant access in full to VPO Records 1-10 and 12, PO Records 2, 3, 5 and 6, and to the minutes of the Foundation Board, under sections 35, 36 and 37 of the FOI Act.

Preliminary Matters

In his application for review of NUIG's decision, the applicant referred to his correspondence with this Office in relation to a decision of the Foundation to refuse a separate FOI request on the ground that it is not an FOI body for the purposes of the FOI Act. I note that this Office has since notified the applicant of its finding that the Foundation is not a public body for FOI purposes.

It is also important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

Analysis and Findings

Foundation Board Minutes
NUIG listed 26 records in the document schedule relating to the President's Office as the minutes/records of the Foundation Board. It refused access to these records under sections 35(1)(a) and (b) and 36(1)(b) of the FOI Act. In correspondence with this Office, NUIG essentially stated that these minutes are not NUIG records and are held by the President in his position as a member of the Board.

Section 11 of the Act provides for a right of access to any record "held" by an FOI body. The FOI Act does not define "held". However, section 2(5) states that an a reference to records held by an FOI body includes a reference to records under the control of that body. In considering the matter of control, I believe that it is necessary to have regard to the relationship between the parties, to any agreement between them concerning the records and to any legal rights which a party seeking to assert control over the records might have.

NUIG stated that the minutes are held in the President’s Office and in the Registrar’s Office for filing purposes only, insofar as the President and the Registrar are directors of the Foundation. It stated that the records are marked as confidential and were provided to the directors as individuals and not to the University as a body. It also stated that the only other staff members who may have had access to the records were the President's and Registrar's assistants, and that this was strictly for administrative purposes. It further stated that both offices have their own IT drives and filing systems and that only relevant members of staff of those offices can access records. Its position is that NUIG does not exercise any control over these records.

I am satisfied that the fact that the records at issue are held on the premises of NUIG does not mean that they are held by NUIG for the purposes of the FOI Act. A similar argument was rejected by the High Court in The Minister for Health and the Information Commissioner[2014]IEHC 231. In that case the High Court found that certain records in the possession of the Department of Health were not held by or under its control for the purposes of the Act. O'Neill J. stated as follows:

"I am satisfied that to hold...