Mr X and Trinity College Dublin

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 16 April 2021
• Case Outcome: The Senior Investigator found that TCD does not hold the records for the purposes of section 11(1) of the FOI Act.
• Court: Information Commission
• Respondent: Trinity College Dublin
• Record Number: OIC-100140-L6Q1M2

Whether TCD was justified in refusing access to emails sent from a former student’s account on the basis that it does not hold the emails for the purposes of section 11(1) of the FOI Act

16 April 2021

Background

By way of context, TCD students may choose to continue using their @tcd.ie domain email address when they graduate (“Email4Life”).

Further to his request to TCD dated 14 May 2020, the applicant sought access to all records dating from 2019 and 2020 relating to him and his minor children that were sent from a specified email account with a tcd.ie domain address. TCD’s decision of 6 August 2020 refused to grant the request. It said that the email account belongs to a former student and therefore TCD does not hold the requested records for the purposes of FOI. The applicant sought an internal review on 16 August 2020. TCD affirmed its decision on 6 September 2020. On 23 November 2020, the applicant applied to this Office for a review of TCD’s decision. He later told this Office while he does not want names of individual recipients within organisations, he wants to know the number of organisations to which the requested emails were sent.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, TCD and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether TCD was justified in refusing the applicant’s request on the basis that it does not hold the requested emails for the purposes of the FOI Act. It does not extend to considering whether any substantive provisions of the FOI Act apply to their contents.

Findings

Whether records “held” for the purposes of FOI

This Office has previously considered whether records in the physical possession of the relevant FOI bodies were held for the purposes of FOI.

Section 11(1) of the FOI Act provides for a right of access to any record held by an FOI body. While the Act does not define “held”, the Commissioner accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. Indeed, this Office previously found, in Case No. 140228, that records held by the Secretary General of a Department in his capacity as a member of the Commission for Public Service Appointments were not held by that Department for the purposes of the Act.

The Supreme Court has considered the meaning of “held” for the purposes of the Act in the case of Minister for Health v Information Commissioner [2019] IESC 40 (the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, a former High Court judge, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda. The review was not established on a statutory basis. Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer had stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act. The equivalent provision of the Freedom of Information Act. 1997 (the Act of 1997) was section 6(1), which provides for the right of access to records held by public bodies. In her judgment in the case, Finlay Geoghegan J. accepted that this section gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record “held” by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be...