Ms X and University College Dublin (FOI Act 2014)

• Judge: 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. Elizabeth Dolan Senior Investigator
• Judgment Date: 31 December 2018
• Case Outcome: The Senior Investigator affirmed UCD's decision, under sections 15, 31 and 37 of the FOI Act.
• Court: Information Commission
• Record Number: 180324
• Respondent: University College Dublin

Whether UCD was justified in its decision to refuse access to records relating to the applicant, on the ground that they are exempt under sections 15, 31 and 37 of the FOI Act

31/12/2018

Background

On 27 March 2018, the applicant made a request to UCD for "all records and documentation held by the Company (and or doctors or other agents), in relation to me personally under the Freedom of Information Act 2014, whenever they were created", in addition to copies of specific records which she listed. On 8 June 2018, UCD granted access to certain records and refused access to the remaining records under sections 15(1)(a), 29 and 37 of the FOI Act. On 3 July 2018, the applicant applied for an internal review of the decision on the records. UCD did not issue an internal review decision within the statutory time-frame. Following this Office's intervention, UCD issued a decision to the applicant on 14 August 2018, in which it varied its original decision. It released further records and refused access to the remaining records under sections 15(1)(a), 30, 31(1)(a) and 37 of the FOI Act. On 15 August 2018 the applicant applied to this Office for a review of UCD's decision.
In conducting my review, I have had regard to the correspondence between the applicant and UCD and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by UCD for the purposes of this review.

Scope of this Review

UCD organised the records in four schedules: Schedules A, B, C and D. During the review process, the Investigator asked the applicant to confirm if she sought to challenge UCD's decision on all of the records in Schedules A, B, C and D and if not, to specify to which records she sought access. In response, the applicant said that she wished to challenge UCD's decision on all of the records scheduled and attached a support document. This support document makes submissions on Schedules A, B, C and D, as well as information concerning an IP address, which I consider under section 15(1)(a) of the FOI Act below.
Following questions from this Office, UCD granted or part-granted access to more records, which now fall outside the scope of the review. Furthermore, UCD noted that it had misfiled certain records in Schedule D and that those records do not fall within the scope of the applicant's FOI request. Having considered the content of the records concerned and the scope of the applicant's FOI request, I accept this position. I should also note that the applicant queried whether there were legal records prior to March 2016. UCD has confirmed to this Office that the first email in the legal file was received in March 2016.
The question for me is whether UCD was justified in refusing access to the records which fall within the scope of the applicant's FOI request and which remain withheld in whole or part, under sections 15, 30, 31 or 37 of the FOI Act.

Finally, in her submissions, the applicant comments on UCD's handling of a workplace investigation to which many records relate. She also expressed the view that an investigation and report into alleged monitoring of emails and telephone calls should occur. It is important to note that the way in which UCD handled a workplace investigation and how it carries out its functions generally falls outside my remit.

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, 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". Therefore in this case, the onus is on UCD to satisfy me that its decision was justified.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

The applicant seeks access to information on the owner of a specified IP address between 2010 and 2014. UCD refused access to this information under section 15(1)(a) of the FOI Act. In connection with the information which she seeks, the applicant says that UCD did not carry out sufficient investigations to find out who breached her privacy. However, such a matter does not fall within my remit. The only question for me is whether UCD was justified in refusing access to the record concerned under the FOI Act.

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases 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 the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant...