Whether CIT was justified in its decision to refuse access to further records sought by the applicant concerning his contact with CIT's School of Music under section 15(1)(a) of the FOI Act on the basis 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 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 October 2014 the applicant submitted a request to CIT for all documents, video recordings, reports, internal correspondence and any other material that relate to his contact from 1 January 2014 with the Cork School of Music, a constituent college of CIT.

On 11 November 2014 CIT released 73 records to the applicant. The applicant sought an internal review of that decision on 25 November 2014 as he was not satisfied that all relevant records had been released. On 4 December 2014 CIT issued its internal review decision, releasing one additional record to the applicant, and refusing access to two other records under section 15(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found. On 18 January 2015 the applicant sought a review by this Office of CIT's decision.

I note that Mr Art Foley of this Office wrote to the applicant on 23 March 2015 with details of the searches carried out by CIT to locate records within the scope of his request, and of its responses to specific questions raised by the applicant in the course of this review. Mr Foley informed the applicant of his view that the decision of CIT to refuse to grant access to the records sought was justified, and he invited the applicant to make further comments if he disagreed with this view. Following a further exchange of correspondence, the applicant indicated, on 7 April 2015, that he wished for this Office to proceed to a full decision. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between CIT and the applicant as set out above. I have also had regard to communications between this Office and the applicant, and to communications between this Office and CIT.

Scope of Review

This review is concerned solely with whether CIT was justified in refusing access to further records sought by the applicant relating to his contact with the School of Music under section 15(1)(a) of the Act, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

At the outset I should explain that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally, or to investigating complaints against a public body. Furthermore, this Office is concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist.

Analysis and Findings

CIT's position is that it has provided the applicant with the records he requested and that no further relevant records exist or can be found. Accordingly, section 15(1)(a) of the FOI Act is relevant. That section provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases 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 the 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 the records were reasonable. It is not normally the Commissioner's function to search for records that a requester believes are in existence. 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).

In a submission of 10 March 2015 to this Office, CIT provided details of the searches it undertook in an effort to locate records coming within the scope of the applicant's request and of its relevant record management practices. As I have outlined above, Mr Foley of this Office has provided the applicant with details of those searches and practices. 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.

In his correspondence with this Office, the applicant indicated that he was not satisfied that all records within the scope of his request had been released. He sought an explanation as to why certain records sought did not exist. In particular, he queried why a supplementary report for his bass guitar audition had not been created and he sought details of the circumstances in which a recording of his bass guitar audition had been deleted and details of searches performed by CIT for further emails which he believes are outstanding. The applicant also expressed an opinion that it would not have been possible for the marking process to have been completed before his audition was deleted.

CIT has provided specific explanations in respect of the queries raised by the applicant in the course of this review. In relation to the supplementary bass guitar report sought by the applicant, CIT has stated that a supplementary report is created only in situations where a person fails their audition, and the result is queried. In this instance, the applicant was successful in his bass guitar audition. Although the applicant queried the marks he received in this audition, as he was successful, no supplementary report was created. CIT has provided this Office with details of the electronic searches performed in the course of its searches for further emails relating to the applicant, and has further stated that all members of staff have performed additional searches for relevant emails and other records relating to the applicant. No additional records have been found as a result of these searches.

In relation to the marking process undertaken, CIT stated that auditions and a written examination for the relevant course were held on 11 and 12 April 2014. CIT stated that the bass guitar audition recordings for all candidates were deleted on 19 April 2014, after the marking process for candidates for the course had been completed. CIT further stated that the recordings of the auditions were deleted in error, and have put safeguards in place to prevent a similar issue from reoccurring in the future.

The position of CIT is that it cannot find any further records relevant to the applicant's FOI request. Although the applicant may not be satisfied with CIT's responses, he has provided no supporting evidence to suggest that other records do, indeed exist. While it is clearly unsatisfactory that the audition recordings were deleted, having considered the submissions of both parties and the measures taken to locate the records sought by the applicant, I am satisfied that CIT has taken all reasonable steps to locate any further records. I find, therefore, that CIT's decision to refuse the applicant's request for further relevant records under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of CIT to refuse access to further records under section 15(1)(a) of the FOI Act, on the basis that they do not exist or cannot be found.

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 four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator