Freedom of Information in University College Dublin 2001-2004
University College Dublin is the largest single university institution in Ireland, with a student population of approximately 22,000.
The Irish Freedom of Information Acts 1997 and 2003 [1], like all similar legislation worldwide, empower individuals to examine, appraise, and analyse government and public sector accountability and transparency. Applying initially only to departments and offices of central government from 21 April 1998, the legislation was gradually extended over the following years to encompass a range of public sector organisations, designated 'public bodies', with Irish third level educational institutions [2] becoming prescribed public bodies on 21 October 2001.
The rights conferred by the Acts are a right for an individual to access information in the records of public bodies, and in particular to access his or her own personal records; to have his or her own personal information amended where it is found to be incorrect, inaccurate, or misleading; and to receive reasons for decisions made by a public body that have materially affected him or her. These rights, with certain exceptions, apply to records created after 21 April 1998 in the case of non-personal records, and to all records, irrespective of when created, in the case of personal records. The Acts impose strict time limits for responding to requests, which must be in writing and must state explicitly that the information is being sought under FOI. There are two mandatory publications under the legislation that must be prepared by a public body: one outlining the structure, functions and records held, the other describing the policies and procedures that inform all decision-making.
The Acts provide a mechanism whereby a public body must review a decision on a request for access to information in instances where access is refused or part-refused and the requester professes to be dissatisfied with this outcome, and further provide for ultimate external appeal to the statutorily independent Information Commissioner where the outcome of internal review is also deemed to be unsatisfactory by the requester. Certain fees have been determined.
The administration and processing of FOI requests within the University is a function of central administration, under the management of a designated Freedom of Information Unit, with the responsibility for the decision-making on access requests and the internal review process delegated to a network of academic and administrative staff, usually to heads of department and heads of support units for the initial decision on access requests and to Deans of Faculty and University Officers for the internal review [3].
Figure 1: FOI Requests Received Jan 2001 - Nov 2004
Figure 2: Request Outcomes
To date, the University has processed 362 FOI requests, 35 of which were internally reviewed and 12 of which were appealed to the Information Commissioner (see pie-charts for statistical breakdown by category of request, request outcome, and category of requester) [4].
Figure 3: Category of Requester
The impact of facilitating and processing these requests is described below under the three main rights conferred by the legislation: the general right of access to information in records; the right to access one's own personal records; and the right to obtain reasons for decisions that have materially affected one. It will also consider how these rights have affected records management practices in the University.
General Right of Access to Information in Records
Fifty-four per cent of requests received to date were for non-personal data, the media being by far the greatest user of FOI in the months following implementation, accounting for 49 of the 65 requests received between 21 October and 31 December 2001. These requests were broad-ranging 'trawls' for information as a precursor to making more focused requests, and included requests for access to the records of almost all University governance and management authorities and committees. The difficulties encountered were the extent of the records to be retrieved and the time expended in blocking out portions of the records where legal exemptions under FOI were invoked, particularly in relation to the personal information of individuals. Where these difficulties existed and where it would therefore have been necessary to impose a sizeable search and retrieval and copying fee, it was sometimes possible to assist the requester in narrowing the scope of the request, to reduce the date span of material sought, and in some cases to release information outside the scope of FOI provisions. In order for this to be acceptable to all concerned, it was important to establish a constructive and positive dialogue between the FOI Unit and members of the media. As the provision of access to such records sought yielded nothing in the way of headline material, the 'trawling' exercises declined considerably in the following years and are now practically non-existent.
In some respects such trawls for information have been pre-empted through the routine publication of the outcomes of all broad-ranging University deliberations on the University Web site, thus obviating the necessity for the media and others to go through the FOI process for non-personal information. The general availability of such material has contributed to the formulation of more focused FOI requests and media requests now tend to be more precise and to relate to specific people, processes and events.
The media also seeks to access information in the records of public bodies where the public body may not necessarily be the primary or only record holder, but where the original record holder does not come under the terms of the legislation or where the original record holder is prohibited from releasing it. The annual request for information on the secondary schools from which students enter the University, and the attendant compilation of so-called 'league tables' of schools' performance, with the inevitable comparison between fee-paying and non-fee paying schools, is a case in point. Until the first such request, received in November 2001, information of this nature from central government sources had not yet been put into the public domain, and the Department of Education and Science had consistently refused to make public aggregated data concerning the examination success rates of students across the various second level schools, arguing that to make such information available on the relative performance of schools would permit the development of league tables. Indeed, the Minister for Education and Science is prohibited by law from releasing information that may lead to the compilation of league tables. As a way of circumventing this, the media now seeks the data from the universities under FOI. As this information is transmitted to the universities and as none of the legal exemptions provided for under FOI can be invoked to deny access, the information is released.
Non-media requests tend to come from those interested in governance and management issues. The motivation for such requests is not always clear, but it is suspected that such information is often requested by individuals who have made a request for access to personal records and wish to augment information already received, for example, on the decision-making process with respect to promotion, etc. Despite the publication of University procedures, practices and functions, whether in print, on the Web site or through the FOI manuals, there is always the desire to see and interpret information in what is perceived as the 'official' record.
Right of Access to Personal Information in Records
There were very few general access requests from individuals for all personal information on them held by the University, the vast majority being specific and usually related to a selection process in which they participated, such as non-standard entry to a course, or assessment for a position or for promotion. This may be because of a process of administrative access to information introduced largely in anticipation of requests for access to personal information. Before FOI was implemented, there was a perception that the University would be inundated with requests from staff and students.
Advice received from jurisdictions subject to FOI for many years alerted the University to the fact that a substantial number of requests came from staff and that 'administrative' or 'routine' access presented a good method of dealing with such an anticipated category of request. Shortly before implementation, it was therefore decided that staff would be provided with access to their own personnel records without the necessity to avail themselves of their FOI rights. Members of staff use this facility, but it is difficult to be certain to what extent the provision of access in this way has deflected FOI requests. However, one must be careful when providing administrative access to an individual member of staff in a situation where, for instance, there is an industrial relations issue, as it may be necessary to restrict access by invoking one of the exemptions provided for in the legislation, such as that intended to protect records subject to legal professional privilege. Although the University currently makes every effort to provide administrative access to personnel records to staff, it reserves the right in particular instances to ask staff to use FOI as a means of gaining access to records.
It was anticipated that students would wish to access their examination scripts under FOI, and, similar to the situation with staff, a decision was also made to allow students 'sight only' access to their examination scripts following the publication of results. Within the University, it is now a requirement that students wishing to lodge an appeal against the result of their examinations gain access to the script in this way in advance of placing the appeal. If, however, they wish to receive a copy, they must use the FOI provisions. This process has been successful, with only five requests for scripts under FOI received since October 2001.
Records created in the course of selection processes, while always the subject of particular attention, are now created and maintained with a view to the receipt of requests from individuals for access to their own personal selection records and to the records of the decision-making process. The need to record the selection process as fully as possible is now an agenda item at all pre-selection panel meetings, and selectors are advised of the necessity for the creation of assessment records that outline clearly and comprehensively the reasons for selection decisions, including, where relevant, assessment of qualifications or failure to meet a benchmark. Where a selection panel fails to create a sufficiently comprehensive record of the selection process, the record is returned for completion before the selection decision takes effect. The same process applies in relation to the selection of students for admission to courses of study in the University by a non-standard entry route.
As in the case of non-personal records discussed above, there is an increasing trend to provide certain records routinely or at feedback to the subjects of selection processes as soon as decisions are ratified. In the case of academic promotions, these are assessment records and references provided by internal referees.
Concern is often expressed about the release of references under FOI, particularly academic references. Where references are provided by referees in public bodies that are subject to the FOI Acts, confidentiality cannot be claimed in order to withhold access. While confidentiality may pertain in the case of those who provide references outside the jurisdiction of the Irish legislation, the presumption is that access should be granted, and such referees are initially consulted informally about release. Where a referee objects to release, the formal consultation process provided for in the Acts is put in place and the referee must make a case against release, which is considered by the decision-maker before a decision is made. To date, no referee has objected to the informal release of a reference.
Another concern is in relation to notes taken by individual selectors during selection processes. Where the notes are simply aides-mémoire and are not circulated for discussion, and where a full and comprehensive official record of the assessment process has been compiled, signed by each member of the selection panel, and approved, then any such personal notes may be destroyed.
Right to Obtain Reasons for Decisions
The exercise by an individual of the right under FOI to obtain reasons for decisions that have materially affected him or her is perhaps one of the more interesting aspects to the operation of the legislation. The absence of a clear and comprehensive explanation to a requester of the decision-making process in relation to the decision made that has materially affected him or her may, as with requests for access to records, be reviewed internally and may ultimately be appealed to the Information Commissioner. The decisions made in relation to the requester must have involved the conferring or withholding of a benefit to the individual and not to a class of individuals.
The overwhelming majority of requests for reasons for decisions are from disappointed candidates for positions or courses of study. Clear and comprehensive records of decisions made in the course of selection processes, as discussed above, should therefore serve to inform an individual of the reasons for decisions without recourse to further records. If, however, existing records fail to satisfy the requester, he or she may legally apply for a statement of reasons to be specially prepared, which may involve the re-convening of a selection board.
The extent to which reasons for decisions would be requested under FOI caused some concern prior to implementation, particularly in relation to the examination process. The issue was clarified, however, in the course of one appeal to the Information Commissioner. A student who was not satisfied with the marks he obtained in an examination submitted an appeal to the University's Examination Appeals Committee, on grounds of a claim for additional marks on the basis of the re-marking of his examination script by a third party outside the University [5]. Having carried out the appeal, the Examinations Appeals Committee decided that the appeal should fail, subject only to a small percentage increase in the mark awarded. The student then applied under FOI for a statement setting out the reasons of the examiner and each member of the Examination Appeals Committee for their decision that additional marks claimed by him on the basis of the re-marking of his script, were not due. The requester was dissatisfied with the outcome of the request and asked for a review by the Commissioner on the ground that the statement of reasons provided by the University was not adequate.
The Commissioner found that the Act requires the head of a public body to provide a statement of reasons which adequately explains why the body acted as it did and that it does not require each and every member of staff who might have contributed to or been involved in the decision-making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision-making process. She further found that, even if the committee had taken separate decisions in relation to each of the points raised by the requester in his examination appeal, as suggested by the requester, those 'secondary' decisions, of themselves, would not have resulted in the withholding or conferring of a benefit. This was notwithstanding the fact that they would have informed the overall decision-making process and the ultimate outcome, which resulted in the conferring or withholding of a benefit. She found that the act or decision of the University that affected the requester, and in which he had a material interest, was the decision to refuse his appeal. On this point, she found that the explanation provided by the University for the decision to refuse the appeal was adequate.
Impact of FOI on Records Management Practices
Although FOI is presented as promoting accountability and transparency in the conduct of the official business of public sector bodies, it also brings in its wake a range of improving subsidiary changes to administrative practices, such as the articulation and publication (and sometimes the initial formulation) of procedures governing a wide area of administrative activity and core functions; and the routine publication of official information where possible, as opposed to where necessary or mandatory. A not insignificant impact of FOI on administration is in the management of its official records. For the purpose of FOI, all official records of a public body become categorised as public documents, and the manner in which such records are created and managed must take this into account. Since the advent of FOI, there is now a far sharper focus within public bodies on records management, a discipline less well known outside the Irish archival profession some years ago and, when highlighted to senior management, perceived primarily as facilitating the archival endeavour of identifying and selecting records deserving of permanent preservation. Until the introduction of FOI, the need for effective records management to facilitate ease of retrieval of records, to integrate document and forms management and record-keeping into administrative processes, and to ensure the creation of reliable, accurate and complete records was not always recognised or else deemed to be of sufficient strategic importance by those in senior management to merit serious attention. However, FOI has highlighted the fact that records management strategies can be deployed to facilitate compliance with legal and regulatory obligations. Records management, by organising, controlling and tracking records from origination to disposition, whether by destruction or permanent retention, is now increasingly presented as an essential tool in ensuring accountability through the creation, use and retention of good-quality records, and its integration into business processes and systems can be increasingly justified on that basis.
This focus on the relevance of records management within a regulatory context has been strengthened by the annual reports of the Information Commissioner, which continually stress the critical importance of good records management and the increasing requirement to ensure that records management policies and procedures are put into place to ensure the creation and retention of records that satisfactorily document decision-making processes and that enhance the ability to retrieve records in order to comply with access requests [6]. Where a requester is not satisfied that a thorough search has been undertaken or is informed that records do not exist, and then appeals to the Information Commissioner, the subsequent investigation carried out on the requester's behalf considers the thoroughness of the search for records, the likelihood that records ought to have existed to answer the request, and the extent to which records management policies and procedures are in place and being implemented by the public body.
The University has always had regard to its record-keeping responsibilities, but the experience gained in the processing of FOI requests has brought about certain changes to the way in which it manages its records. While it was difficult in the past to use the archival imperative where there was no perceivable advantage in undertaking the work necessary to implement good records management for this purpose alone, the perception of records management as an affiliate task in the implementation of FOI was much easier to promote, as the risk of inability to fulfil the terms of the legislation through the creation and maintenance of inadequate records was seen as a serious risk. Latterly, the necessity for business efficiency is driving the need for a consistent approach to managing information in the University and the management of records is now no longer perceived as simply a local or maintenance exercise, or a compliance issue, but a University-wide information resource management issue.
It is now possible to align records management with the overall goals of the University, which sees compliance with legislation as one in a suite of criteria that includes the aspiration that systems should serve the University's mission and that they should be sufficiently streamlined, efficient and flexible to enable the University to compete in a rapidly changing and competitive external environment; and should recognise the principle of accountability and compliance while protecting academic freedom and institutional autonomy. The case for records management can be helped by the fact that creating and maintaining complete, accurate and reliable evidence of business activities in the form of records is no longer a matter of choice, but is essential in good business practice. It follows that if good records management is essential for corporate governance and critical for accountability, it should be strategically and professionally managed and viewed not, as heretofore, as an administrative overhead, but as a corporate asset, and should be structured and managed on corporate lines, rather than to meet individual or local needs.
In seeking to introduce systems that will facilitate the management of records, whether in paper or electronic formats, we can look to the published records management standard, ISO 15489, which serves as a useful tool for defining the characteristics of records, identifying records management responsibilities and designing and implementing robust records management systems.
Before implementation of FOI, there was a perception that, given the rights of access conferred, the creation, reliability and ultimate retention, where necessary, of comprehensive records might be undermined due to a reluctance to create and maintain what could be determined a 'true' record of events. The legal obligation to provide access to a body of complete, authentic and reliable records that adequately illustrate business activities and decision-making processes within a public body has resulted in an improvement to record-keeping generally. The publication by a public body of information on its structures and functions, and on its processes and procedures reveals where records of business activities and of decision-making should exist and permits audit of a public body's practices in creating, maintaining and managing records adequately. It can therefore be argued convincingly that the need to demonstrate transparency and accountability in official activities will actually promote rather than inhibit the creation of relevant records, particularly in a context where it is necessary to provide proof that business activities are in conformity with policies and that procedures are adhered to in their performance and where there is the risk that the correctness of a process could be challenged in the absence of a satisfactory recording of business actions and decisions. The legal obligation to provide reasons for decisions provides an even more compelling argument in favour of the creation of good-quality records, particularly those documenting selection processes affecting individuals. FOI might make administrators more circumspect in the way in which they express themselves, but also more accurate and effective in how they communicate ideas.
Conclusion
It is important to bear in mind that universities already had systems in place to render their actions accountable to both students and staff before the introduction of FOI. What the advent of FOI brought was a means of testing how effectively these systems operated. It also provided an opportunity to reflect on existing policies and procedures and to publish them systematically in a more cohesive manner and the requirement to prepare the mandatory publications under the Acts facilitated the provision of a single point of reference to them. There was some apprehension in advance of implementation that access to examination scripts would undermine academic judgement, thus threatening and damaging the examination process, however, this proved unfounded. The existence of defined processes and procedures surrounding the conduct of examinations, including examination appeals, rendered such fears groundless and the FOI process actually confirmed their robustness and vindicated University practices.
As the legislation largely concerns information in records, its extension to the university sector has focused attention on the management of records in a positive way and has opened up a dialogue among administrators on the nature of records and on what needs to be recorded, as well as on record-keeping systems and the need for the management of records, regardless of format, in an integrated manner as a vital support in assisting the University in meeting its legal obligations.
These observations are not and do not purport to be a legal interpretation of the legislation. The views expressed by the writer are not necessarily those of University College Dublin.
References
- Irish Freedom of Information legislation is laid down in the Freedom of Information Act, 1997 and the Freedom of Information (Amendment) Act, 2003, both Acts being cited together as the Freedom of Information Acts 1997 and 2003; http://www.foi.gov.ie
- Editor's note: The third level education system in Ireland encompasses the university sector, the technological sector, the colleges of education and private, independent colleges. The institutions which fall within the first three groupings are autonomous and self-governing, but substantially state-funded. http://www.educationireland.ie/
- UCD Records Management and Freedom of Information Unit http://www.ucd.ie/foi/
- For statistics, analysis and other information on the impact of FOI in Ireland, see the Information Commissioner's Web site at http://www.oic.gov.ie
- See Annual Report of the Information Commissioner, 2003 http://www.oic.gov.ie/report03/
- See Annual Reports of the Information Commissioner, Speeches and Publications http://www.oic.gov.ie/press.htm
© University College Dublin 2005