Whether the Atlantic Technological University was justified in refusing access to records concerning student assignments, which discussed the property exit/entrance of the applicant-�s home address

22 December 2022

Background

In a request submitted to the ATU dated 11 May 2022, the applicant sought access to the following records related to the Certificate in Road Safety Audit and Engineering in the context of a specific junction upgrade:

• Assignments submitted by students, where the assignments discuss the property exit/entrance relating to the applicant, and thereby identify the property owners at their address.
• Assignment workshop recordings.

The request set out that while the applicant understood the concerns in regards to student privacy that he must advocate for the privacy of the persons living at the address whose personal information was discussed and stated that the privacy concerns could be dealt with via anonymization.

On 10 June 2022, ATU issued its decision on the matter. The request was refused under sections 37(1) and 35(1)(b). ATU stated that answers provided by students in response to projects/assignments which form part of an overall assessment of performance on third level programmes, constitute the personal information of that student. It stated that this was in line with the case Nowak v Data Protection Commissioner (20 Dec 2017) (C-434/16). It further noted that ATU owes a duty of confidence to its students with regard to material authored by them and that release of the scripts and workshop recordings would amount to a breach of that confidence. The same day the applicant sought an internal review of ATU-�s decision. On 6 July 2022, ATU issued its internal review, which affirmed the original decision. It re-iterated that the information in question comprised of assignments submitted by students, and that the workshop recordings contained the image and voices of students. It stated that consideration was given to the possibility of providing extracts of assignments without the provision of student names and transcripts of workshop recordings, however ATU considered that students may still be identifiable by virtue of the language used.

On 7 July 2022, the applicant applied to this Office for a review of ATU-�s decision. The applicant argued that ATU refused to reasonably fulfil the FOI for a personal information request.

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 the relevant parties who made submissions the applicant-�s comments in his application for review and to the submissions made by the FOI body in support of its decision.  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

The scope of this review is confined solely to whether ATU was justified in refusing access to the relevant student assignments and workshops on the basis of section 37(1) and 35(1)(a) of the FOI Act. 

Preliminary Matters                                                                        

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited, particularly in the context of records which contain sensitive and personal information.

Finally, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

Having reviewed the relevant records and the contents of submissions from the parties, I consider section 37(1) to be the more relevant exemption in this case and as such this will be dealt with first.

Section 37(1) -� personal information

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of

information, which are included in the definition without prejudice to the generality of the foregoing definition, including:

(i) information relating to the educational, medical, psychiatric or psychological history of the individual

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.

ATU have stated that information provided by students for assessment is provided on the basis that it is for a limited purpose, that of assessment, even if an explicit assurance of confidentiality may not have been given to students. In respect of the workshop recordings, it has been argued that anything recorded by the lecturers in the course of and for the purpose of the performance of their functions may not constitute personal information. However, it has stated that in circumstances where the record constitutes the recording of a workshop involving lecturer comments about student assignments, the record relates less to the office or position held by the lecturer and more to the personal information of the students.

ATU also claimed that it is argued by the requester that references to the property entrance/exit constitute his personal information (or that of his parents whom he is representing). ATU have stated that even if that were to be the case, the information pertaining to the entrance/exit is inextricably linked with the personal information of the students, and it is simply not possible to separate them. ATU maintain that the records must not be released without the consent of the students which ATU have stated that they are not seeking to obtain.

In response, the applicant has maintained that regardless of whether the students work is considered confidential personal information, the lecturer comments on the work of the students should not be viewed as being personal information of the students. He further commented that he did not believe that the students would be identifiable as the extracts would be in multiples, and would not have to identify which student each statement pertains to, and as such it would not possible to identify statements to a particular student, as there would be no demographics/identifiers of the students released. The applicant has also noted that some lecturers on the course are also Transport Infrastructure Ireland employees.

Having examined the student assessment records, I am satisfied that the withheld information comprises personal information such that it is exempt under section 37(1) of the FOI Act. The information in question was provided by students for the sole purpose of educational assessment and now relates to their educational history. I am also satisfied that an individual-�s education is a private aspect of their life, as is the feedback or opinions provided as part of their educational assessment. While the applicant has argued that the assessments concern the personal information of his parents, I must have regard to the fact that a record released under the FOI Act amounts to disclosure to the world at large. In respect of the argument concerning the lecturer-�s comments on the student assessments being separate, the comments are specific to each student-�s assessment and therefore in my view constitute the personal information of each individual student, in the circumstances I do not consider that it would be appropriate to provide these separately.

I am satisfied that this also applies to the workshop recordings. While the discussions do refer to the property entrance of the applicant-�s parents, it is in the context of the overall assessment of the student-�s assignments, and in my view, as they relate to the educational history of the students, and refers to the students and their work, cannot be extracted for the applicant.

In sum, I am satisfied that section 37(1) applies to all of the withheld information in the records at issue. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsection (2) and (5).

Sections 37(2) and 37(5)

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, and having regard to submissions made by the parties, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.

Subsection (5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that subsection 5(b) does not apply in the circumstances of this case.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a true public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

In its submissions, ATU noted the following factors in favour of release:

- right of the requester to exercise his right under FOI legislation;

- right of requester to know what is held about him/his parents.

And it has noted the following factors against release:

 - right to privacy of its students; 

- the lack of a true public interest, vs the private interest of the requester.

In response, the applicant has argued that there is no implicit agreement between the university and students as to confidentiality of assignments. It is argued by the applicant that through a managed release of data the privacy of students would not be affected. In particular release of comments, notes and presentation by lecturers who are employed by a public body are further removed from students and that these should be released. He has further argued that it is unclear how releasing the records could be of detriment to the specific students, in particular since they have ceased. He stated that there is a public interest in this junction as has been evidenced through media coverage.

While I understand the applicant-�s motivations to get information in relation to this junction and how it affects his parent-�s property, I must have regard to the protection of personal information afforded by the FOI act. It seems to me that the information in question is inextricably related to the educational history of the students, and it seems to me that ATU-�s concern around the maintenance of students privacy during assessment and education, is a very valid one. Having carefully considered the matter, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the information contained in the records at issue here should be granted outweighs the right to privacy of the individuals to whom the information relates. Accordingly, I find that section 37(5)(a) does not apply.

Having found the records to be exempt under section 37(1), I do not need to consider the applicability under section 35(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm ATU-�s decision. I find that the University was justified in refusing access to the withheld  information on the basis that it is exempt under section 37(1) of the 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.

Rachael Lord
Investigator