Mr. X and University College Cork

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 12 November 2015
• Case Outcome: The Senior Investigator varied the decision of the University. She affirmed the University?s refusal of access to information redacted from one record as exempt under section 30(1)(b) of the Act. She annulled the University?s decision to refuse access to certain records which it found exempt under section 31(1)(a) of the Act and directed release of the records in question. She affirmed the University?s decision to refuse access to certain other records as exempt under section 31(1)(a) of the Act (legal professional privilege).
• Court: Information Commission
• Record Number: 150107
• Respondent: University College Cork

Whether the University was justified in its decision to refuse access to records concerning an appeal of a decision regarding promotion under sections 30(1)(b), and 31(1)(a) of the FOI Act.

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 9 December 2014, the applicant made an FOI request to the University for access to records relating to his appeal of its decision on his application for promotion in 2012/13, and in relation to the conduct of the appeal. The applicant sought, in an itimised list covering eight areas, correspondence, minutes of meetings and emails from selected dates held by the Department of Human Resources (HR), the Lecturer Promotions and Establishment Board (LPEB), the Academic Promotions Appeals Board (APAB), the Governing Body (GB) and certain named University Officials. On 5 February 2015, the University granted partial access to the records requested. The applicant sought an internal review of this decision. On 27 March 2015, the University upheld its original decision. On 15 April 2015, the applicant applied to this Office for a review of the University's decision. Both the applicant and the University made submissions in the course of the review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the University, to correspondence between the University and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to the following two questions: (i) whether the University was justified in redacting record 15 held by a named University Official on the basis that the information redacted from this record is exempt under section 30(1)(b) of the FOI Act. (ii) Whether the University was justified in withholding records 1, 3, 4, 5, 8, 11, 15, 16, 17, 21, 25, 27, 28, 30, 31, 33, 36, 37, 45 and 46, held by the Office of Corporate and Legal Affairs, on grounds that these records are exempt under section 31(1)(a) of the FOI Act. On 25 July 2015, the applicant confirmed that parts of records withheld under section 37 of the Act could be excluded from the scope of this review. Therefore, I will not examine those redactions/records which contain solely the personal information of individuals other than the applicant.

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the University to satisfy me that its decision is justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is limited.

Finally, the applicant made submissions in relation to the inadequacy of the University's practices and procedures for the purposes of compliance with the FOI Act. An assessment of the University's practice and procedures, if it were deemed necessary, would have to be carried out under section 44 of the FOI Act, while this review under section 22 of the FOI Act, must be confined to reviewing whether the University has justified its refusal of the request. The Commissioner does not intend to carry out an investigation under section 44 at this time. The applicant complains about a number of issues concerning the University's handling of the FOI request. While I have taken his submissions into account insofar as they are relevant to this review, I do not comment on every element of them.

Analysis and Findings

Section 30(1)(b) - Record 15
The University redacted record 15 held by a named University Official on the basis that the information redacted is exempt under section 30(1)(b) of the Act. Section 30(1)(b) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management including industrial relations and management of its staff. Section 30(2) provides that the exemption does not apply where the public interest would, on balance be better served by granting the FOI request.

The applicant points out that this exemption may only be applied if access to the record could reasonably be expected to have a "significant adverse effect" on the performance by the body of its management functions. The applicant says that, in applying a public interest test under section 30(1)(b), the University referred to three factors in favour of disclosure in the public interest but decided that these were "greatly outweighed" by one factor against disclosure. The applicant argues that the public interest test was incorrectly applied in relation to record 15. The applicant submits that there is an important public interest in transparency in relation to how the promotions process operates within the University. He points to previous decisions of the Commissioner and stresses that the avoidance of embarrassment for management would not justify withholding of the record.

The University submits that, disclosing internal discussion between members of management, with regard to views in relation to the promotions process, would damage the University's ability to manage staff issues and resolve disputes with staff. The University argues that it correctly applied the public interest test by identifying the public interest factors in favour of disclosure of the information...