Ms X and National University of Ireland Maynooth [2024] IEIC 142217 (21 March 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether NUIM was justified in refusing access to records relating to an application for promotion submitted by the applicant

21 March 2023

Background

The background to this case involves an application for promotion within NUIM made by the applicant (an NUIM staff member). Subsequent to the promotion competition, the applicant requested access to a number of records relating to her application, including notes taken by the NUIM promotions board in relation to her application, as well as the scores awarded to her by the individual members of the promotions board. In response to her request, NUIM provided a number of documents, including records showing the scores awarded to the applicant by members of the promotions board, with the names of the individual board members redacted.

On 14 July 2023, the applicant sought access under the FOI Act to an unredacted copy of the records, showing the scores awarded to her by each board member by name. In a decision dated 15 August 20023, NUIM partly granted the applicant's request, releasing two records in full and the remaining nine records with redactions made pursuant to sections 29(1), 30(1)(b), 35(1)(a) and 35(1)(b) of the FOI Act. On 18 August 2023, the applicant sought an internal review of NUIM's decision on her request. In its internal review decision dated 8 September 2023, NUIM affirmed its decision to partly withhold the nine records at issue, although it varied the basis for doing so (no longer relying on sections 29(1) and 30(1)(b), but solely on sections 35(1)(a) and (b) of the FOI Act). On 11 September 2023, the applicant applied to this Office for a review of NUIM's decision.

In the course of carrying out this review, I formed the opinion that there was information in the unredacted records provided to this Office by NUIM that was not within the scope of the applicant's request. In particular, while the applicant specifically sought access to the names of the members of the promotions board, and the scores which each board member had awarded her in the competition, the records appear to me to contain personal information relating to third parties, namely the other candidates in the relevant competition for promotion. I therefore contacted the applicant to request confirmation from her that she did not seek access to the latter category of information. The applicant subsequently confirmed this to be the case, and specified that the particular information in the records that she sought was which NUIM promotion board member (identified by name) awarded her which scores in her application for promotion. Accordingly, I have excluded from the scope of this review any information relating to candidates other than the applicant that appears in the records.

In addition, in the course of conducting this review I formed the opinion that sections 29(1) and 30(1) of the FOI Act (which were relied on by NUIM in its initial decision but not at internal review stage) were potentially applicable. I therefore sought submissions from both NUIM and the applicant on the potential applicability of these provisions of the FOI Act. Submissions were subsequently received from both parties, and I have fully considered same.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by both parties, as well as the applicant's comments in her application for review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether NUIM was justified, under section 29(1), 30(1) and 35(1) of the FOI Act, in refusing access to the information sought by the applicant in her FOI request.

Preliminary Matters

It is important to note that a review by this Office is considered to be "de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

In addition, I wish to note that section 13(4) provides that, subject to the FOI 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an FOI request for access to records.

I should also note that it would appear from the information available to me that the applicant believes she has been unfairly treated by NUIM in the relevant competition for promotion. In this regard, I should emphasise that this Office has no remit to investigate complaints, 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. As such, while it would appear that the applicant is dissatisfied by the manner in which her candidature for promotion was handled by NUIM, this Office has no role in examining any actions taken by NUIM or its employees in this regard.

Finally, I wish to note that NUIM's initial decision on the applicant's FOI request did not issue within the timeframe set down by the FOI Act. The timeframes within which decisions on FOI requests should be issued are clearly set out in the FOI Act, and it is incumbent on me to remind NUIM to ensure that it meets these deadlines.

The Records at Issue

NUIM identified 11 records that fell within the scope of the applicant's request, which in the schedule of records it provided to this Office it numbered 1-3 and 4a-4h. For the ease of reference of all parties, I have retained this numbering for the purposes of this review. As outlined above, NUIM released two of these records in full to the applicant (records 2 and 3), and accordingly I am not required to consider them further as part of this review. NUIM released the remaining records to the applicant in part, with certain information redacted from the records. As regards the remaining material at issue, record 1 comprises preliminary and provisional notes of the promotion board relating to the applicant, while records 4a to 4h are the preliminary assessments of the candidates from each of the eight relevant members of the promotion board. The information that has been redacted from the records is, in the case of record 1, the names of two promotion board members and, in the case of records 4a-4h, details relating to the other candidates (access to which, as outlined above, the applicant has confirmed she does not require, and which I have excluded from the scope of this review), as well as the name of the promotion board member relevant to each record.

Analysis and Findings

Section 29(1)

I consider it appropriate to examine the potential applicability of section 29(1) of the FOI Act first of all. Section 29(1) provides that that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2) of the Act. Accordingly, where an FOI body is relying on section 29(1) for the refusal of a record, it must also consider whether section 29(2) applies in relation to the record concerned.

Section 29(1)(a) - matter relating to the deliberative processes of an FOI body

As outlined above, the first criterion that must be met in order for section 29(1) to apply is that the records at issue must contain matter relating to the deliberative processes of an FOI body. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. With regard to the exercise by an FOI body of purely procedural or service delivery functions, it should be noted that this Office has previously held that where the FOI body's role is confined to establishing the facts and circumstances of a case and applying a pre-existing principle, this does not constitute a deliberative process.

In its submissions, on the question of whether the records contained material related to its deliberative processes, NUIM first of all outlined the assessment process for the promotion competition at issue. While I do not consider it necessary to reproduce here the details of the assessment process in its entirety, it is important to note that at various stages of the process as outlined by NUIM, the individual members of the promotions board reviewed applications, conducted preliminary assessments of individual candidates, and convened as a group on more than one occasion to discuss the assessment process, and to review and reach a final consensus position on each application. NUIM stated that, on this basis, its position was that the preliminary assessment phase, and the information associated therewith, formed a demonstrable part of the deliberative process of the promotions board. In addition, NUIM argued that scores and ratings awarded in respect of individual applications were subject to revision upwards and downwards as part of a deliberative process that culminated in the final consensus judgement. NUIM also stated that the records at issue contained information relating to the methodology and assessment process, as well as containing material for use by the promotions board for the purpose of its determinations, decisions and recommendations. NUIM further argued that the records at issue disclosed the preliminary reasoning of the board members, as well as a preliminary analysis of the performance and effectiveness of the candidates, both of which subsequently informed the making of a final consensus decision. I would also note that NUIM provided this Office with a copy of the Academic Promotion Scheme document for the competition, which sets out the objectives, eligibility requirements, criteria and benchmarks for the competition, as well as details of the make-up of the promotion board. This document also sets out specifics of the assessment process, including details of the manner in which the promotion board was to convene in order to form, firstly, a preliminary and, subsequently, a final consensus judgement and recommendation in respect of each candidate. In the course of this review, NUIM confirmed that this document had been made available to candidates, including the applicant, in advance of the competition (specifically, NUIM advised that the Academic Promotion Scheme document was made available to all potential candidates when the competition was launched, and in addition that the scheme formed the basis for formal briefing sessions for candidates. NUIM also advised that the documentation contained additional material for candidates, including Guidelines for Completion of Application and FAQ documents. NUIM stated that all of this material was made available on the Academic Promotions section of its Human Resources web pages).

In submissions made by the applicant, she argued that the promotion competition, and the records relating thereto, did not constitute a deliberative process for the purposes of section 29(1). She stated that there was no evidence to suggest that the decisions of the promotions board were made by way of a deliberative process. According to the applicant, this position was supported by the fact that the promotions board did not keep minutes, and by the relatively short time period within which, she alleged she had been informed by a university official, decisions had been reached on all of the applications. The applicant furthermore stated that it was her understanding that a simple count was carried out when aggregating the scores of individual members of the promotions board, with no room for the careful consideration of all the information or evaluation of competing options which would characterise a deliberative process for the purpose of section 29(1) of the FOI Act.

I have carefully considered the arguments above, and find as follows. As a general proposition, it seems to me that, by its nature, the process for selecting a successful candidate (or candidates) in a competition for promotion is likely to fulfil the criteria of a deliberative process. It is difficult to imagine a scenario in which a promotion competition could be effectively run and concluded without a significant element of deliberation. It seems to me that the ranking of candidates, based on the aggregated scores of individual members of a promotions board, on a cumulative basis across a number of categories, is likely to entail a significant element of deliberation. That is to say, the weighing up of the suitability of various candidates seems to me to constitute the evaluation of competing options, based on an analysis of the available information. Furthermore, with specific reference to the particular competition at issue, NUIM has set out what I consider to be a persuasive argument that a deliberative process was central to the selection of candidates. On the question of whether the material in the records relates to that deliberative process, I have examined the records and accept that the information therein relates to the deliberative processes involved in the promotion competition as outlined in NUIM's submissions. Record 1 contains what NUIM described as the "preliminary and provisional notes" of the promotion board, in relation to the applicant, and it seems quite clear to me that these notes fed into the deliberations of the promotion board in relation to her candidature as weighed in competition with the applications of the other candidates. Records 4a-4h contain the scores awarded to the applicant by each individual member of the promotion board and, again, it seems clear to me that such scores fed into the discussions and deliberations of the promotions board regarding the evaluation of the applicant, and of all the candidates in the competition. While I would accept that the records do not necessarily reveal significant details of the promotion board's deliberative processes, it seems to me beyond question that the contents of the records relate to those processes as outlined by NUIM.

I therefore cannot accept, first of all, the argument of the applicant that the selection process for successful candidates did not involve a deliberative process at all. In her submissions, she points to the allegedly brief time spent by the board in deciding on the placement of candidates in the competition and the fact that no minutes of the promotion board's meetings were taken. However, there is no requirement in section 29(1)(a) that the relevant processes must necessarily be of a certain duration, or that they must entail the taking of minutes. The applicant also outlined her understanding that a simple count was carried out when aggregating the scores of individual members of the promotions board. However, this is not the position of NUIM and is contradicted by the information provided by NUIM in support of its argument, both in its submissions made directly to this Office, and in the Academic Promotion Scheme document, which was made available to candidates in the competition. On balance, on the basis of the information in the records and of the information in the Academic Promotion Scheme document, I accept NUIM's position that a deliberative process, and not a mere aggregating of scores, was involved in the promotion board reaching a final decision on the candidature of the applicant and, indeed, all the candidates for promotion.

Accordingly, on the basis of the above analysis, I accept that the material in the records relates to the deliberative processes of NUIM in respect of its selection of a successful candidate (or candidates) in the relevant competition for promotion. I therefore find that the requirement in section 29(1)(a) of the FOI Act has been met.

Section 29(1)(b) - the public interest

The second criterion that must be met in order for section 29(1) to apply is that the release of the records sought would be contrary to the public interest. It should be noted that the public interest test at section 29(1)(b) is a strong one, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. This Office has previously held that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body's deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the FOI Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

In its submissions on section 29(1)(b), NUIM stated that it had identified a number of public interest factors both for and against the release of the relevant information. In terms of public interest factors in favour of release, it stated that it had identified the public interest in disclosing the reasons for decisions taken by NUIM, and in ensuring the accountability and scrutiny of its decision-making processes. Against this it identified, as public interest factors that favoured withholding the information, the need to preserve confidentiality having regard to the subject matter and the circumstances of its decision-making process, as well as the public interest in avoiding the significant and substantial impairment to the integrity and viability of that process that it argued would result from the disclosure of the information sought by the applicant.

In its submissions, NUIM elaborated on the public interest factors it had identified in favour of withholding the relevant information. It stated that members of its academic promotions boards, who satisfied the requisite membership criteria, participated on such boards on a voluntary basis. Moreover, NUIM outlined that they did so on the explicit understanding of confidentiality pertaining to the treatment of individual preliminary assessment scores. According to NUIM, it therefore followed that any decision to release this information would entail the very real risk of prejudicing the future capacity to secure ongoing co-operation from its academic community. This in turn, argued NUIM, would raise the possibility of damage to its capacity to run its academic promotions process in the future. Essentially, NUIM's position is that a decision to release the information sought by the applicant would render its academic promotion schemes unworkable and/or incapable of being implemented. Accordingly, the University contended that a decision to grant this request would be contrary to the public interest.

In her submissions, the applicant also addressed section 29(1)(b). She refuted NUIM's claim that the release of the information would render its promotion schemes unworkable, stating that this position was not consistent with the current promotion system in NUIM. In support of this claim, she stated that NUIM's Human Resources Department already had a policy of sharing reference letters, both internal and external, upon request by candidates, with the names of the letter writers unredacted. According to the applicant, the information in these letters shaped the decisions of the promotion board.

In addition, the applicant characterised NUIM's concerns regarding the potential release of information outlining which promotion board members had awarded which scores to candidates as relating to a fear that such promotion board members might experience "unfriendly looks on campus, or future retaliation", and therefore choose not to serve on future boards on that basis. The applicant argued that this fear was insufficient to justify the withholding of the information she sought, stating that every job had "more and less pleasant aspects to it", and noting that the salaries of members of NUIM's promotion boards were paid from the public purse. She argued that sitting on promotion boards comprised one of the administrative roles that made up part of the employment of the relevant NUIM staff.

Before I consider the specific public interest arguments made by the parties, there are a number of important points to note. Firstly, as outlined above, section 13(4) provides that, subject to the FOI 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. in so far 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 no constraints are placed on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the FOI 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 the release of records would be contrary to the public interest for the purposes of section 29(1)(b), I must consider whether an overriding public interest exists in the release of the records effectively to the world at large.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) which provides that, in performing any functions under the FOI 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 "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.

As outlined above, section 13(4) of the FOI Act 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. While I consider that the applicant is essentially pursuing a private interest in her request for access to the relevant information, it seems to me that in her submissions she has set out a valid public interest that would be furthered by its release, namely the public interest in identifying whether NUIM, as a publicly-funded body, conducts promotion competitions in a manner that is fair, objective and unbiased.

However, while I accept that the release of the information at issue in the records would serve to somewhat enhance transparency in relation to this public interest, I am also of the view that, based on the specific contents of the records, the release of the information would serve this public interest in only the most limited manner. In other words, I do not consider that the release of the information sought by the applicant (essentially, the names of the promotion board members who awarded her particular scores in her application for promotion) enhances the public interest in identifying whether NUIM conducts promotion competitions fairly to any significant degree.

At the same time, I accept that the harms NUIM has argued would follow from the release of the information to the future viability of its academic promotion scheme would, indeed, by contrary to the public interest should they come to pass. Third level institutions such as NUIM serve an obvious public good related to the awarding of educational qualifications to students, and the viability of its academic promotion scheme must be seen in the context of that important societal role. Viewed in this light, it seems clear to me that damage to the viability of the academic promotion scheme would be contrary to the public interest. I would also accept as reasonable - given that the members of NUIM's promotions boards participate on the basis of explicit guarantees of confidentiality and on a voluntary basis - NUIM's concerns that the release of the names of the board members, in conjunction with the individual scores they awarded, may result in NUIM staff refusing to participate as members of promotion boards, with the obvious adverse effect this would have on its ability to operate its academic promotion scheme in the future. In addition, I must note that I do not accept the applicant's characterisation of NUIM's concerns as relating to a fear that members of the promotion board would face "unfriendly looks" or "future relation". This does not align with the arguments made in relation to the public interest by NUIM, which relate to the difficulties that it would face in running promotion boards at all should its staff opt not to sit on such boards, for the reasons outlined above. Moreover, I do not accept the applicant's argument that the confidentiality of the scores awarded by individual board members is at variance with NUIM's alleged policy of releasing the names of referees upon request. These are two quite different categories of information, and in my view it does not follow that, because NUIM may release the names of referees, it should also be obliged to release the details of scores awarded by each particular member of a promotion board. Finally, as noted above, I must regard the release of the information in the records as being effectively, or at least potentially, release to the world at large.

In the circumstances, I accept that the release of the names of the promotion board members to the applicant would be contrary to the public interest. I find, therefore, that the requirements of section 29(1)(b) have been met in respect of this information.

Section 29(2)

It should be noted that section 29(1) is subject to section 29(2) of the FOI Act, which provides that section 29(1) does not apply to a record if and in so far as it contains a number of categories of information. I am satisfied that none of the categories of information set out in section 29(2) operate in this case to preclude the application of section 29(1).

Conclusion

On the basis of the above analysis, I find that the information to which the applicant has sought access is exempt from release under section 29(1) of the FOI Act. In those circumstances, I am not required to examine the extent to which the other provisions of the FOI Act upon which NUIM relied (sections 30(1) and 35(1) of the FOI Act) apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of NUIM. I find that the information in the records to which the applicant sought access is exempt from release under section 29(1) of the FOI Act.

Right of Appeal

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.

Neill Dougan, Investigator

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