Whether UCD was justified in its decision to refuse access to certain records relating to laboratory tests carried out at the National Virus Reference Laboratory (NVRL) between 31 May 2013 and 14 June 2013

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 2 February 2015 the applicant submitted a request to UCD for all documentation and records relating to all laboratory tests carried out on his blood specimen in the NVRL between January and June 2013, to include;

• all corresponding documentation for all laboratory tests carried out on his blood specimen
• a conclusive account of all laboratory work performed on his blood samples, meaning all documentation and records which detail each stage of the testing process
• all documentation, work in progress reports and instrument print outs generated during the testing
• the insert kit and or information leaflet relating to tests administered by the NVRL
• all audit trail documentation relating to tests administered by the NVRL
• the temperature log information for the refrigeration units in which his blood sample was stored, and if the units could not be identified, the temperature log for all relevant refrigeration units in the NVRL.

By letter dated 13 February 2015, UCD referred to a telephone conversation following which it understood that only one batch of tests was requested between the dates in question and that the request was amended to the records of (a) test results, (b) kit inserts and (c) audit trail records. UCD released certain records to the applicant on 18 February 2015. The covering letter stated that the kit inserts for two tests carried out were not released at this time, as they had been released to the applicant previously.

The applicant sought an internal review of UCD's decision on 18 March 2015. In his request for an internal review, he clarified that his blood sample had been held by the NVRL between 31 May and 14 June 2013. He specified that he was seeking:

the progress report and instrument print outs from each laboratory report which had been released to him to this point, and
a whole and complete copy of the temperature readings for the relevant freezer and refrigeration unit used to store his blood specimen in the NVRL.

On 17 April 2015 UCD issued its internal review decision, in which it stated that it considered that all relevant records had been released to the applicant on foot of his amended request and that there was nothing further to review. However, it provided further information to him in respect of the other records he was seeking. The applicant sought a review by this Office of UCD's decision on 29 July 2015.

During the course of the review, the applicant stated that he had not agreed to narrow the scope of his request as suggested by UCD. Accordingly, I 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 the correspondence between UCD and the applicant, and to communications between this Office and both the applicant and UCD on the matter.

Scope of Review

UCD argues that it has released all records on foot of the narrowed request as agreed during a telephone conversation with the applicant on 11 February 2015 and that there are no further records to be released. The applicant argues that he did not agree to narrow the scope of the request and that he has not received all of the records he originally sought. Accordingly, my review is concerned solely with the question of whether UCD was justified in deciding that no further records coming within the scope of the applicant's request fall to be released.

Analysis and Findings

Before I can address whether UCD was justified in deciding that no further records coming within the scope of the applicant's request fall to be released, I must first consider the nature and scope of that request.

UCD has provided this Office with a copy of its letter of 13 February 2015 to the applicant in which it referred to a telephone conversation which led it to understood that only one batch of tests was requested and that the request was amended to the records of (a) test results, (b) kit inserts and (c) audit trail records.

In his submission to this Office, the applicant states that UCD was mistaken in its interpretation of the telephone conversation. He claims that while he clarified that only one batch of tests results was required, he did not agree to narrow the scope of his request as suggested in the letter of 13 February 2015.

The FOI Act 2014 requires that a person who wishes to exercise the right of access shall make a request in writing, thereby providing clarity for the FOI body as to what is being sought while also protecting the position of the requester should he or she wish to appeal the outcome on the request. It is also noteworthy that a body is not permitted to refuse a request on the grounds that the request does not contain sufficient particulars to allow for the identification of the records sought, or that the request is voluminous, unless it has assisted, or offered to assist, the requester so as to amend the request for re-submission.

I fully accept that there will undoubtedly be many occasions where both parties can agree on the details of a redefined request with no subsequent issue arising. However, where the scope of the request is in dispute, as is the case here, the task of determining the precise nature of the request is almost impossible in the absence of documentation that supports the position of one view over the other. Having a revised request re-submitted in writing puts the matter beyond doubt. It seems to me that had UCD wished to agree a narrowed request in this case, it should have sought to have the requester re-submit the revised request in writing, or at least sought to have him confirm its understanding of the revised request.

UCD's letter of 13 February 2015 does not, in my view, suggest that UCD's understanding of the revised request was correct. Indeed, having regard to the wording of the applicant's correspondence when he sought an internal review of the initial decision, it seems clear that he did not understand the request to have been narrowed in the manner described. Accordingly, I must take the applicant's original FOI request and his request for internal review as representing the scope of his request. I would like to make clear that I have no doubt that UCD acted in good faith in issuing the letter indicating its understanding of the scope of the applicant's request. Indeed, it appears that UCD has gone to great lengths to assist the applicant with this and other related FOI requests.

Having decided that the request before UCD is as set out in the applicant's letter of 2 February 2015, I must now consider whether UCD was justified in deciding that no further records coming within the scope of the review exist or can be found. 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. Having regard to the correspondence before me, I am satisfied that further relevant records exist that have not been considered for release.

Accordingly, I find that UCD was not justified in refusing the request under section 15(1)(a) of the FOI Act on the basis that no further records within the scope of the applicant's request exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul UCD's decision and direct it to undertake a fresh decision making process under the FOI Act 2014 on the request submitted by the applicant in his letter of 2 February 2015.

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