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Case Number: 160071

Whether UCD was justified in its decision under the FOI Act to refuse access to records concerning the O'Brien Centre for Science

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 27 June 2015, the applicant made an FOI request to UCD seeking access to records in relation to the decision to name the new science centre (opened in 2013) the O'Brien Centre for Science to include:
(1) copies of all internal memos, board minutes and correspondence in relation to the matter.
(2) records of contact with Denis O'Brien and his associated parties in relation to his charitable donation to the centre, its naming and opening ceremony.
(3) records showing the detail of the amount Denis O'Brien agreed to financially contribute in comparison to other donors.
(4) records relating to use of the centre by Denis O'Brien for subsequent events (such as the UN Broadband conference in 2014).

UCD issued a late decision on 9 October 2015 granting parts of the request. It refused access to records/parts of records on the basis of sections 30(1)(c), 35(1)((a) and (b), 36(1)(b) and (c) and 15(1)(a). On 17 September 2015 the applicant requested an internal review of that decision. As UCD failed to issue an internal review decision within the required time frame, the applicant wrote to this Office seeking a review of his request on the basis of a deemed refusal. This Office requested UCD to issue a reply to the applicant setting out its effective position concerning the records sought. On 25 January 2016, UCD released further records and relied on an additional exemption, section 37(1), to refuse access to the remaining withheld records.

The applicant applied to this Office for a review of UCD's decision on 16 February 2016. He contends that further records exist relating to (a) an agreement between Mr Denis O'Brien and UCD relating to the O'Brien Science Centre and (b) the use of the science building by Mr O'Brien when he hosted an event there for the UN Broadband Commission in 2014. During the course of this review and following communications from this Office, UCD released further records. The remaining withheld records were refused on the basis of section 37(1) and section 15(1)(a). The applicant stated that he did not wish to have access to the parts of records withheld on the basis of section 37(1) - personal information. Therefore, this review is concerned solely with whether UCD was justified in refusing access to the remaining withheld records on the basis of section 15(1)(a). Submissions have been received from the applicant and UCD and I consider that the review should now be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the submissions from the applicant and UCD. I have also had regards to the correspondence between the applicant and UCD and to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether UCD was justified in its decision to refuse access to records concerning (a) an agreement between Mr Denis O'Brien and UCD relating to the O'Brien Science Centre and (b) the use of the science building by Mr O'Brien when he hosted an event there for the UN Broadband Commission in 2014 on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

UCD relied on section 15(1)(a) to refuse access to the records identified above. The applicant stated that a document released by UCD refers to "a pre-existing agreement of UCD yet there is no record of this contact between Mr O'Brien and the Professor involved in organising the donation and naming". UCD submits that it is not a party to the agreement and therefore does not have the records. It contends that UCD does not have an agreement with Denis O'Brien and that philanthropic donations generally are handled by a separate legal entity. The applicant sought clarification in relation to the legal entity and UCD responded stating that "University College Dublin Foundation Limited is not a public body for the purposes of the FOI Act". As the request was made to UCD, I am not required to consider whether the Foundation is a public body under section 6(1) of the Act.

Control
Section 11 of the Act provides for a right of access to any record "held" by an FOI body. The FOI Act does not define "held". However, section 2(5) states that an a reference to records held by an FOI body includes a reference to records under the control of that body. Section 11(9) further provides that records in the possession of a service provider shall, in so far as they relate to the service, be deemed to be held by the FOI body. There is no evidence that the Foundation was providing a service to UCD under a contract for services or an administrative arrangement in relation to any services the subject of the records.
In considering the matter of "control", I believe that it is necessary to have regard to the relationship between the parties, to any agreement between them concerning the records and to any legal rights which a party seeking to assert control over the records might have. It seems to me that where records are not physically held by a public body, at the very least the public body concerned must have some legal entitlement to procure the records if they are to be under its control.
According to UCD, the Foundation is an independent charity, a separate legal entity to UCD. It contends that the Foundation records are physically held by the Foundation and UCD does not have access to, or indeed a right of access, to such records. UCD says that the Foundation's accounts are not consolidated with the accounts of UCD and that the majority of the Foundation's staff do not have the same employment arrangements as public sector employees. It submits that records held by the Foundation are not in any way under the control of UCD.
Its website states that the Foundation was established in 1997 with the purpose of advancing the strategic goals and objectives of UCD under the direction of an independent Board of Directors. It states that its primary function is to generate financial support for research and teaching, fundraising for development programmes and to support academic initiatives. It further states that UCD relies on the Foundation's support and the support of alumni, donors and friends to help it achieve its mission. I note that the Foundation is registered as a company limited by guarantee and that the Governing Body of UCD is separate to the Board of Directors of the Foundation.
It is noteworthy that in a High Court case, The Minister for Health and the Information Commissioner[2014]IEHC 231, O'Neill J. found that certain records in the possession of the Department of Health were not under its control. He stated as follows:

"I am satisfied that to hold that mere lawful possession of a document was sufficient to make that document amenable to disclosure under the 1997 Act, on the basis that the document was "held" by the public body within the meaning of s. 6(1) would give rise to absurd and wholly unintended consequences, albeit in rare circumstances."

I have also had regard to the High Court decision in Westwood Club v Information Commissioner & anor [2014] IEHC 375 (the Westwood case). In my view the facts of the case in this review are very different. In the Westwood case the records requested from a Town Council were created by a board of a company whose three directors were all employees of the Town Council in question. The Council contended that the company, of which it was a 100% shareholder, controlled the records in question. The Council had provided a loan in excess of €10 million to the company. Having regard to all of these factors, Cross J. held that the records were under the control of the Council.

Further, I have considered the decision of the High Court in Minister for Enterprise, Trade and Employment v The Information Commissioner [2006] IE HC 39, Unreported, in which the finding was that records of a grant application held by a County Enterprise Board were not under the control of the relevant Department having regard to factors such as the nature of the Board, the level of control over the Board exercised by the Department and whether the Minister had a right of access to certain information held by the Board.

On balance, I consider that if further records the subject of this review, exist and are held by the Foundation, they are not under the control of UCD. Therefore, I have no remit to require that they be furnished to this Office for the purposes of this review, to consider their content or to consider directing their release. However, I will go on to consider the question of whether additional records within the scope of the request are held by UCD in the normal way.

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 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 her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

UCD says that searches were undertaken in the offices of the UCD College of Science, Vice-President for Development, Finance Office, Conference and Events Manager and Building Planning Manager. It contends that, at internal review stage, the Facilities Manager for the UCD O'Brien Centre for Science was asked to conduct searches to ascertain if further records could be found. That search was successful and additional records were released. According to UCD, it asked staff of its Conference and Events Office to conduct a further search for records following queries from this Office. One further record was located and released. UCD contend that no further records exist or can be found.
I am satisfied that UCD has responded adequately to this Office's queries and taken all reasonable steps to locate any further records. I see no basis to dispute UCD's position that the records identified by the applicant are not held by it or cannot be found within records under its control. I consider that UCD's decision to refuse to release further records to the applicant was justified in the circumstances and I find that section 15(1)(a) applies to exempt any further records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of UCD to refuse access to the withheld records identified above on the basis of section 15(1)(a) 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.

Elizabeth Dolan
Senior Investigator