Case Number: 160283

Whether UCD was justified in refusing to grant access to further records relating to the applicant's sick leave absences on the ground that no further relevant records exist or can be found

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

In a request which UCD received on 4 February 2016, the applicant sought a list of all recorded sick days relating to him in the course of his employment since May 2012. He stated that any list should clearly show the date of each recorded sick day and the date and time the record of absence was created, modified or deleted.

UCD issued its decision on 16 March 2016, refusing the request under section 15(1)(a) of the FOI act on the ground that it could locate no relevant records. On 4 April 2016, the applicant sought an internal review of UCD's decision. UCD issued its internal review decision on 1 June 2016, in which it affirmed the original decision, but stated that it had carried out fresh searches, providing details of same, and releasing 50 emails deemed relevant to his request subject to the redaction of personal information relating to third parties. I note that in both instances UCD's responses were issued outside the statutory time frame. On 30 June 2016 the applicant sought a review by this Office of UCD's decision.

In conducting this review I have had regard to UCD's communications with the applicant as set out above and to the communications between this Office and both UCD and the applicant on the matter.

 

Scope of Review

In the course of this review, Mr. Niall Mulligan of this Office emailed the applicant and suggested that the scope of his request was limited to a single record that listed the applicant's sick days, of the type that might normally be expected to be found on a human resources file. Mr. Mulligan expressed his view that the emails provided to the applicant by UCD on foot of its internal review decision were in fact outside the scope of his request. While it is clear that the applicant received Mr Mulligan's email on that point, he raised no objection to the approach suggested.

While Mr Mulligan's approach was understandable given the applicant's request for a list of all recorded sick days, I believe that a more expansive reading of the request is appropriate. It is important to note that the FOI Act provides for a right of access to records. This means that if the information sought is not contained in a record held by the public body then it is not required to grant the request. The Act does not require the body to create records which do not exist. However, where a request is made in the form of a request for specific information as opposed to a request for specific records, this Office takes the view that such requests should be treated as requests for relevant records that exist as of the date of the request and that contain the information sought.

I note from the applicant's submission of 20 July 2016 that he believed the searches conducted by UCD to be incomplete and that he suggested other records should exists, apart from those already released. I am satisfied that both the applicant and UCD understood the request to be a request for records that contain details of his sick days. Accordingly, this review is concerned solely with the question of whether UCD was justified in its decision to refuse the applicant's request for additional relevant records on the ground that no further records sought exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI 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 FOI 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 FOI body, on the basis of which the FOI 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.

In its submissions to this Office, UCD stated that sick leave is administered in each Unit by a designated administrator who records sick leave in accordance with the University's sick leave policy. It stated that each administrator is designated to record sick leave on an electronic system and forward medical certificates and self-certified sick leave forms to its human resources unit. It confirmed that a web-based system is used by the University for the central recording of sick leave, but that no entries were found on this system relating to the applicant.

UCD further stated that there was considerable change during the period of his applicant's employment in the management and structures of the Unit in which he worked. It stated that its searches for records to respond to the applicant's requests revealed that there is no individual still employed by it who held an administrative role in the relevant Unit during that time. It stated that its searches led it to conclude that the recording of sick leave did not, in all cases, follow the prescribed procedure.

UCD identified the applicant's line manager for most of his period of employment, but stated that the only records located were the emails between that individual and the applicant, and that these had been released to him. It stated that searches had been carried out of staff email accounts and that the email accounts of former staff had been disabled or deleted in accordance with its Information Technology policy. It stated that there is no individual remaining in the relevant unit who could provide records in relation to the request and that enquiries made of former staff of that unit who have moved to other positions in UCD have not led to records being located. In particular, it identified a second individual, still employed by the university, who had been referred to by the applicant in email correspondence at a later point in time as being his "new line manager", but submitted that this individual had also confirmed that she could locate no relevant records.

UCD acknowledged in its submission that it is quite unusual that a record of the type sought by the applicant would be unavailable. In the course of this review, in addition to the emails released to him on foot of his request, UCD released to the applicant his full HR file in the interests of openness, transparency and accountability.

It is both surprising and disappointing that UCD do not hold an automated record of the applicant's sick absences, particularly given the policy it has in place for recording same. However, the scope of this review is confined to a consideration of whether UCD has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the searches undertaken and to the explanation provided by UCD on the matter, I am satisfied that it has. I find, therefore, that UCD was justified in deciding to refuse the applicant's request for additional relevant records under section 15(1)(a) of the FOI Act on the ground that no such records exist or can be found having taken all reasonable steps to ascertain their whereabouts.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm UCD's decision.

 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, 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