Case Number: 150357

Whether UCC was justified in refusing to release further records to the applicant relating to her engagement with its Progression Across the Merit Bar process on the grounds that no further records exist or can be found after all reasonable steps have been taken to locate any such records

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 UCC on 16 March 2015 for all records from September 2012 to date relating to her engagement with an academic promotions scheme known as the Progression Across the Merit Bar (PAMB) process. UCC issued a decision on the request on 16 April 2015, releasing 74 records in full and three further records in part on the ground that they contained personal information relating to third parties. On 25 April 2015, the applicant sought an internal review of UCC's decision as she was of the view that all records within the scope of her request had not been considered for release to her. She identified a number of records which she believed were outstanding and a number of areas within UCC where further records might be held.

UCC issued an internal review decision in relation to the applicant's request on 17 August 2015. It released a further 26 records, five of which were redacted due to the existence of third party information. It also granted access to further information that had been redacted from the records released with its original decision. The internal review decision also stated that no further records within the scope of the request existed. However, on 10 September 2015, UCC released five further records discovered on foot of additional searches. The applicant sought a review by this Office of UCC's decision on 21 October 2015.

During the course of the review, Mr Art Foley of this Office engaged in a number of exchanges of correspondence with both the applicant and UCC concerning the possible existence of additional records. As a result of those exchanges, UCC located and released a number of additional relevant records. Mr Foley also provided the applicant with details of the searches undertaken by UCC for relevant records. As the applicant has indicated that she requires the review to proceed to a decision, I have decided to conclude the review by issue of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the applicant and UCC, and to the correspondence between this Office and both the applicant and UCC on the matter. I have also had regard to the contents of the records released to the applicant.

Scope of Review

This review is solely concerned with whether UCC was justified in refusing to release further relevant records to the applicant under section 15(1)(a) of the FOI Act on the ground that no such records exist or can be found after all reasonable steps have been taken to locate them.

Preliminary Matters

During the course of this review, the applicant was quite critical of the manner in which UCC processed her FOI request. Aside from the delay in decision making, the applicant has raised a number of other matters of concern.

She expressed concern at the fact that one of two key records she was seeking in particular was not located until her application for review had been made to this Office, and that the other record was not located at all. This record, which the applicant has stated was used by UCC to justify its decision in relation to her PAMB request, could not be found or had been destroyed in the time which elapsed between her PAMB appeal being considered and her FOI request being made. The applicant does not believe this is fair, and is of the view that UCC only complies with its record management procedures as it suits it. She is also of the view that UCC did not make any real attempt to comply with the provisions of the FOI Act and that it did not act in the spirit of the Act. She also stated that certain records which had been forwarded to the HR Department in UCC had not been released to her, despite confirmation that the records would be added to her personnel file.

It is not within the remit of this Office to examine or make findings on whether or not UCC created all records that it should have created in relation to the applicant's engagement with the PAMB process, or to determine whether or not UCC should have retained all such records. It is important to note also that the Commissioner's remit does not extend to adjudicating on how FOI bodies carry out their functions generally, or to investigating complaints against public bodies. It is also important to note that while the FOI Act provides for a right of access to extant records held by FOI bodies, it does not provide for a right of access to records that a requester considers ought to exist even if it is acknowledged that such a record ought to exist.

The applicant feels very strongly that UCC acted in breach of FOI procedures in the manner in which it dealt with her FOI request. I agree UCC's processing of the request was most unsatisfactory. Among other things, it failed to adhere to the statutory time-frames for processing requests as set out in the Act. Furthermore, it clearly took an overly narrow view of the scope of the FOI request when making its initial decision on the request.

An investigation of UCC's practices and procedures in relation to the processing of the request would have to be carried out pursuant to section 44 of the FOI Act. The Commissioner has discretion to carry out such general investigations which are separate from reviews under section 22 of the FOI Act. All previous such investigations have involved more than one public body. Among the factors considered in deciding to initiate an investigation and publish a report are the resources available, whether the process and outcome are likely to be concerned with systematic issues within public bodies, whether the investigation has broad public interest implications or has potential to bring about improvement in practices and procedures across the public sector. While I expect UCC to revisit its procedures for processing FOI requests arising from this decision to ensure future compliance with the provisions of the Act, I do not consider an investigation under section 44 to be warranted tin this case.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records 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. It is not this Office's function to search for records. Rather, our 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 or 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 should be noted that it is possible for this Office to find that a public body has conducted all reasonable searches, even where records that are known to exist cannot be found. It would not generally be reasonable for a public body to be required to continue searching indefinitely for records.

In submissions to this Office, UCC provided comprehensive details of the searches it undertook to locate the records sought by the applicant, and provided information on other queries raised by the applicant on foot of the records released to her. As set out above, Mr Foley of this Office has provided the applicant with these details, engaged in detailed correspondence with the applicant in order to clarify what records she believes to be outstanding, and provided other relevant information in relation to this review to the applicant. Having regard to the breadth of the issues explored during the course of that correspondence, I do not propose to repeat those details here. However, I can confirm that I have had regard to them for the purposes of this decision.

In essence, UCC stated that it has searched the Registrar's Office, the President's Office, the Office of Corporate and Legal Affairs, the [ ... ], the HR Department, and sought records from a number of specific members of staff involved in the Progression Across the Merit Bar process. It stated that it has released the records it has located as a result of these searches. It has also released a number of records located during the course of this review, and provided this Office with information on the records released to the applicant. Mr Foley has provided the applicant with the details of these searches and other information relevant to the review.

Having considered the submissions of both parties and the steps taken by UCC to locate records, I am satisfied that UCC has taken all reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that UCC was justified in its decision to refuse access to further relevant records under section 15(1)(a) of the FOI Act on the ground that basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of UCC to refuse access to further records coming within the scope of the applicant's FOI request under section 15(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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator