Whether the Council was justified in its decision to refuse access to records relating to an appeal the applicant sought in connection with a recruitment competition under section 15(1)(a)of the FOI Act on the ground that that no relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts

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

The applicant submitted a request to the Council on 2 June 2015 for access to records relating to an appeal he had sought in connection with a recruitment competition. The Council issued its decision in response to this request on 29 June 2015, granting access to a number of records. The applicant sought an internal review of that decision on the ground that the records released did not relate to the appeal. In its internal review decision of 28 July 2015, the Council stated that it had released all records within the scope of the applicant's request and that no further records existed. The applicant applied to this Office for a review of that decision by letter dated 10 August 2015.

In conducting this review I have had regard to the communications between this Office and both the applicant and the Council and to the communications between the applicant and the Council.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the ground that no records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. 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 and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

In his submission to this Office, the applicant referred to an e-mail he received from a Council official on 2 April 2015 in which the official set out the Council's position regarding an issue that arose during the recruitment process and informed the applicant that if he wished to appeal further, his appeal would be conducted by an appeal panel who were not members of the original interview board. The applicant submitted an appeal to the Council by email dated 6 April 2015 and received a response on 22 April 2015. In that response, the Council stated, among other things, that his application information had been reviewed. The applicant is seeking access to any records relating to the appeal undertaken

It is the Council's position that the review was conducted by the Council officials who contacted the applicant by email dated 2 April 2015 and by letter dated 22 April 2015. According to the Council, the first official contacted the interview panel for the competition by phone and it was not considered necessary to arrange a formal meeting with the panel in light of the responses of the panel members. It stated that an informal handwritten note of these conversations was made by the official but that this record was not considered for release to the applicant because of its informal nature. It added that the review was completed with the issue of the letter dated 22 April 2015 by the second official to the applicant.

The applicant has indicated to this Office that he now accepts that no further records, apart from the handwritten note referred to above, within the scope of his request were created and so no further records exist. As one additional record not previously considered for release has been identified, I find that the Council was not justified in deciding to refuse the request under section 15(1)(a) of the FOI Act. I understand that the Council is amenable to releasing this record.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, I hereby annul the decision of the Council, and direct it to release to the applicant the additional handwritten record referred to above.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator