Whether the NCSE was justified, under section 10(1)(a) of the FOI Act, in refusing to release further records relating to the applicants' daughter on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 30 March 2014, the applicants submitted a request to the NCSE for "a copy of any information" held by the NCSE about their daughter. On 30 April 2014, the NCSE decided to grant access in full to 39 records and part grant access to four other records, redacting personal information of other individuals under section 28 of the FOI Act. The applicants sought an internal review of this decision as they were not satisfied that all relevant records had been released. On 20 June 2014, the NCSE issued an internal review decision granting release in full to a further ten records which it had inadvertently omitted. On 5 August 2014, the applicants sought a review by this Office of the NCSE's decision.

During the course of this review the applicants submitted that certain records that they believed might be held by the NCSE had not been released to them. Specifically they argued that records relating to meetings and telephone conversations between October 2012 and February 2013 had not been released. Mr Benjamin O'Gorman of this Office contacted the NCSE and made enquiries in this regard. The NCSE responded stating that it had found further records falling within the scope of the applicants' original request which it had inadvertently omitted, and some of these records fell within the time line above identified by the applicants. The NCSE administratively released these records to the applicants. The NCSE stated that, apart from these newly located records, it was not able to locate any other further records falling within the scope of the applicants' request.

Mr O'Gorman informed the applicants, by letter dated 4 December 2014, of the searches undertaken by the NCSE to locate all relevant records and of its responses to queries raised arising from the applicants' concerns. In this letter he outlined his view that the NCSE's refusal to grant access to further records on the grounds that no further records exist or can be found was justified and he invited the applicants to make further comments if they disagreed with his view. The applicants responded on 16 December 2014 stating that they were not satisfied that the NCSE had "completed" their request, and stated they believed that records should exist in relation to meetings in November 2012 and February 2013. Mr O'Gorman contacted the NCSE to clarify the question of records relating to the November 2012 meeting. The NCSE stated that a record relating to the November 2012 meeting had already been released to the applicants during the course of this review as part of the further records the NCSE provided to the applicants with its letter of 26 November 2014. The NCSE stated that it has no further records. With regard to records relating to the February 2013 meeting, the applicants previously submitted the same contention to this Office by letter dated 23 September 2014 and, following that letter, Mr O'Gorman contacted the NCSE to clarify this. The NCSE stated it has no further records.

It is now appropriate to conclude this review by way of a formal binding decision. In carrying out this review, I have had regard to the correspondence between the NCSE and the applicants as set out above. I have had regard also to communications between this Office and the applicants, and to communications between this Office and the NCSE. Finally, I have had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether the NCSE was justified in its decision to refuse access to further records coming within the scope of the applicants' request on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

Preliminary Matters

In a submission to this Office, the applicants stated that they "received FOI from the NCSE" on certain dates and that this had not been reflected in the records released by the NCSE. I must point out that requests for information, as opposed to actual records, are not valid requests under the FOI Act. The FOI Act does not require public bodies to create records if none exist and does not oblige public bodies to answer general queries. The FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. In its submissions to this Office the NCSE stated that Special Education Needs Organisers (SENOs) are not required to retain a record of every individual contact with a family.

Analysis and Findings

Section 10(1)(a)
The NCSE's position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant.

Section 10(1)(a) of the FOI Act provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if-

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"

The Commissioner's role in a case such as this is to review the decision of the public 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/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).

In its submission to this Office, dated 7 November 2014, the NCSE provided comprehensive details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicants' request and it provided details of why certain records identified by the applicants were not held by it. On foot of queries from this Office the NCSE carried out further searches and released additional records to the applicants. The NCSE acknowledges shortcomings in how it handled the applicants' FOI request. As I have outlined above, Mr O'Gorman of this Office has already provided the applicants with details of those searches. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

While the applicants may not be satisfied with the NCSE's responses, they have provided no supporting evidence to suggest that other records do, indeed, exist. The position of the NCSE is that it cannot find any further records relevant to the applicants' FOI request. Having reviewed the steps taken by the NCSE to locate the records at issue and having considered its explanation of why certain other records do not exist, I am satisfied that the NCSE has taken all reasonable steps to locate all relevant records and I find that section 10(1)(a) of the FOI Act applies.

Section 28
In its decision, the NCSE refused access to certain parts of four records under section 28(1) on the basis that they contained personal information relating to third parties. Section 28(1) provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The applicants have made no issue with the application of section 28 to these four records and having examined these records I am satisfied that section 28 does indeed apply and no further consideration of this aspect is necessary.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the NCSE's decision to refuse further records under the provisions of section 10(1)(a) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator