Whether AIT was justified in its decision to refuse parts of the applicant's requests for records relating to interactions he had with AIT in 2011-2012 regarding issues relevant to his role on the basis that sections 15(1)(a) and 15(1)(i) applied

20 November 2018 

Background

In November 2016, the applicant submitted four separate applications for a review of decisions taken by AIT in four separate requests he had made under the FOI Act for various records relating to interactions he had with AIT regarding issues relevant to his role as a member of the staff of AIT. Following review, this Office issued a composite decision in respect of all four applications for review in which the decision of AIT was annulled and AIT was directed to conduct a new decision-making process on the requests.

On 28 September 2017 AIT issued a composite decision on all four requests. The request that is the subject of this review comprised five separate parts covering various periods and relating generally to the applicant's engagements with AIT. The request was assigned the reference number AITFOI_1_2 by AIT. It refused that request under sections 15(1)(a) and 15(1)(i). 

The applicant sought an internal review of AIT's decision, following which AIT affirmed the decision in respect of the request in question. On 11 January 2018, the applicant sought a review by this Office in respect of all four requests.  

During the course of the review, AIT located a small number of records relating to parts 2, 3 and 4 of the applicant's request and provided him with copies of those records. In conducting this review, I have had regard to the correspondence between between AIT and the applicant and to correspondence between this Office and both AIT and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether AIT was justified in refusing the applicant's request for various categories of records as set out in his request relating to his interactions with AIT under sections 15(1)(a) and 15(1)(i). 

Analysis and Findings

The applicant's request was for records relating to:

1. to the Minister for Education and the Department not intervening in a dispute he had with AIT
2. his retraining/upskilling
3. AIT seeking funding from the HEA  regarding a specified matter
4. The Institutes of Technology Ireland(IOTI) vouching for AIT seeking funding from the HEA
5. his redeployment within AIT

Section 15(1)(i)
AIT refused parts 2 to 5 of the request under section 15(1)(i). Parts 3 and 4 are more appropriately dealt with under section 15(1)(a) below. Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, and the records are available to the requester concerned. AIT refused access to records coming within the scope of parts 2 and 5 of the request on the ground that the relevant records are held on the applicant's personnel file and that all such records had previously been released on foot of a data protection request or had been viewed by the applicant and copies of records provided as requested. In a submission to this Office, AIT provided evidence that the applicant viewed his personnel file and had requested copies of certain records on that file. The applicant has not argued that the records in question are not available to him. I find, therefore, that AIT was justified in refusing access to the records sought at parts 2 and 5 of his request under section 15(1)(i). 

Section 15(1)(a)
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. My role in such cases 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 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. 

In relation to part 1, AIT stated that it conducted both hard and soft copy searches in the President's Office and the Secretary/Financial Controllers Office, using relevant key words, and that searches of Department of Education incoming files for 2011 and TD's /Senators correspondence were carried out. It identified a letter of 6 July 2012 from AIT to the Minister for Education and Science. This letter of 6 July 2012 is outside the date scope of the request and the content is not directly relevant to the subject matter of the request. 

In relation to parts 2 and 5, AIT set out the searches it conducted of both hard and soft copies of relevant files, drives and email accounts of relevant personnel, using relevant key words in both the HR Office and the Business faculty. AIT stated that it is satisfied that no further records exist, apart from those released to the applicant, in relation to part 2 and that the issue the subject of part 5 was dealt with by phone and so no records exist.  

In relation to parts 3 and 4, AIT set out the searches it says it conducted of both hard and soft copy files, drives and email accounts of relevant personnel in the President's Office and the Secretary/Financial Controller's Office, using relevant key words. Apart from the small number of records referred to above which were released, AIT's position is that no further records exist.   
Having examined the applicant's submission, it seems to me that he is, in essence, seeking access to records which will support or justify the manner in which AIT engaged with him in relation to the various issues he raised, regardless of whether or not such records actually exist. The FOI Act provides for a right of access held by public bodies. If the record sought does not exist that is the end of the matter. It is also important to note that this Office has no role in examining the appropriateness, or otherwise, of the manner in which AIT engaged with the applicant regarding his grievance issues.

In this case, the applicant has not presented evidence to support his view that AIT holds further relevant records. While the applicant may be of the view that there should be more records to relating to some of the matters the subject of this request, in the absence of such evidence that such records exist, the scope of the request as specified by the applicant and given the information provided by AIT of the steps taken to search for records, I am satisfied that all reasonable steps have now been taken by AIT to search for the records. I find, therefore, that AIT was justified in refusing the request for additional relevant records under section 15(1)(a).

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of AIT to refuse the applicant's requests under sections 15(1)(a) and 15(1)(i) of the FOI Act.

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