Whether QQI was justified in refusing access to additional records under section 15(1)(a) of the FOI Act

02/02/2018

Background

This review is closely connected to Case 170118, on which I issued a decision on 3 August 2017. In that case, I reviewed a decision taken by QQI on a detailed request the applicant made for access to personal and non-personal records in connection with a specific complaint he had made about a certain third-level course. As the applicant was not satisfied that he had received all relevant records, the review was concerned with whether QQI had taken all reasonable steps to locate all relevant records coming within the scope of the request. Based on QQI's description of the searches it had undertaken, I found that it had.

In the present case, the applicant made a request on 10 July 2017 for all the records QQI has relating to him, apart from anything already furnished to him under the original request that gave rise to the review in Case 170118. In his request, he stated that information relating to him appeared to have been disseminating from QQI to another organisation and that such information had not been released to him previously.

QQI responded on 24 July 2017, enclosing one further record that it described as the only record that could have been missing from the previous request. By email of 2 August 2017 the applicant sought an internal review of what he deemed to be QQI's decision on his request. He highlighted communications between QQI and the European Association for Quality Assurance in Higher Education (ENQA) relating to a complaint he made to ENQA about QQI.

On 9 September 2017 QQI issued a response. It stated that a full search for the records had been hindered as the request was sufficiently vague, resulting in an incorrect assumption that the request referred to the then ongoing correspondence between QQI and this Office. It stated that the applicant's email of 2 August clarified the information sought. QQI varied its original decision and it released 14 further records it had located, all relating to the complaint the applicant made to ENQA and all created after the applicant's original request in Case 170118 (which was made on 28 November 2016). On 5 October 2017 the applicant sought a review by this Office of QQI's decision in light of his belief that further relevant records should exist.

I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and QQI as outlined above and to communications between this Office and both the applicant and QQI on the matter.

Scope of Review

This review is concerned solely with whether QQI was justified in refusing access to additional records coming within the scope of his request on the ground that no further records exist or can be found.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

During the course of the review, Mr Flood of this Office asked the applicant to identify the organisation he referred to in his request when he suggested that information relating to him appeared to have been disseminating from QQI to another organisation. In response, the applicant confirmed that the organisation in question was ENQA. He also stated that QQI had "most likely released all of the correspondence elements under their internal review", although he subsequently argued that the records released did not include the records utilised to base the correspondences on.

However, he further stated that his request was for all records QQI has relating to him that had not already been released and that his request was not confined to correspondence with ENQA. He added that his request would also include records of correspondence with this Office, the Office of the Ombudsman, Dublin Business School, and anyone else he might not know about.

In response to a request by Mr Flood for details of the searches undertaken by QQI to locate all relevant records coming within the scope of the request, QQI stated that as the matter (of the complaint to ENQA) was dealt with exclusively by the CEO, only his records were searched and were intact. Mr Flood subsequently brought the attention of QQI to the fact that the request was not limited to a request for records relating to the ENQA complaint. QQI subsequently stated that searches were undertaken for emails and letters received and sent from its Office from various sources, including the email accounts of seven named staff members and the QQI helpdesk account. It stated that the reference it found in its helpdesk software was already forwarded to the applicant.

On 14 December 2017, Mr Flood provided the applicant with details of the searches undertaken and invited him to make a further submission on the matter. In response the applicant again referred to the absence of correspondence with this Office and with the Office of the Ombudsman. He also referred to a record he obtained from Dublin Business School via a data protection request to that organisation which, in his view, should also be available to QQI along with related correspondence. Following a request for further clarification, QQI stated that as the applicant specifically referred to the ENQA complaint in his request for internal review, correspondence with this Office was not considered for release. It started that there is no reason why the applicant cannot have this correspondence. It made no reference to correspondence with the Office of the Ombudsman.

Having regard to the wording of the applicant's request and to the submissions of QQI, I am satisfied that QQI took an unduly narrow interpretation of the request. It is clear that other records captured by the scope of the applicant's request exist. In the circumstances, I cannot find that QQI was justified in deciding that all relevant records have been released, or at least considered for release. I find that QQI's decision was not justified under section 15(1)(a). Nevertheless, I do not consider it appropriate in this case to direct the release of records that have not first been considered for release by QQI or in the absence of any sense of the nature or volume of records involved. I consider that the appropriate course of action is to annul QQI's decision, the effect of which is that QQI must consider the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with QQI's decision.

I would add at this stage that it would be helpful if the applicant were to provide QQI with as much information as he can to assist QQI in ensuring that any searches it undertakes for relevant records is comprehensive. On this point, I note that section 12(1)(b) of the FOI Act obliges requesters to provide sufficient particulars in relation to the information concerned to enable the relevant records to be identified by the taking of reasonable steps. Broad requests such as the request made in this case run the risk of FOI bodies limiting their searches to those areas where they might generally expect to find relevant records in the absence of specific information that would otherwise cause them to conduct more expansive searches.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of QQI to refuse access to further relevant records as I find that it has not conducted all reasonable searches in an effort to identify all records relevant to the applicant's request. I direct QQI to conduct a fresh decision-making process in respect of the request.

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