Whether the NCSE was justified in refusing access to additional records relating to the applicant under section 15 of the FOI Act on the grounds that no further relevant records exist or can be found. 

6 November 2018 

Background

On 14 June 2017 the applicant submitted a multi-part FOI request to the NCSE which included a request for all records held in relation to his file, apart from correspondence between the NCSE and his mother or records that were issued to his mother in response to a previous request made in 2013. Other aspects of his request are addressed in separate decisions. 

The applicant indicated that his mother was acting on his behalf and the applicant's mother represented the applicant in all subsequent correspondence in relation to the request. At an early stage in this review, she provided this Office with a letter from the applicant authorising her to act on his behalf. Accordingly all references to correspondence with the applicant should be taken to include correspondence with his mother on the basis that she was corresponding on his behalf.

On 9 August 2017 the NCSE decided to grant access to 30 records it identified as coming within the scope of the request. The applicant sought an internal review of that decision. On 19 December 2017, the NCSE issued its internal review decision wherein it affirmed the original decision.  On 30 April 2018 the applicant sought a review by this Office of the decision of the NCSE. In the course of forwarding copies of the relevant records to this Office for the purpose of the review, the NCSE identified one additional record that had not been supplied to the applicant at the outset and this record was forwarded to the applicant on 25 May 2018.  

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

Scope of Review

During the course of the review the applicant raised many issues that are not capable of consideration by this Office. As the applicant has already been informed, this Office has no remit to examine, or investigate complaints about, the administrative actions of the NCSE or to act as an alternative dispute resolution mechanism. The remit of this Office is confined to establishing whether decisions taken by FOI bodies on requests or applications made under the FOI Act were in accordance with the provisions of the Act.

The applicant's mother submitted a request in 2013 for documents relating to her son and the current request that is the subject of this review expressly excludes records that issued in response to that request. All correspondence between the NCSE and the applicant's mother is similarly excluded.

The review in this case is concerned solely with whether the NCSE was justified in refusing the applicant's request for additional records coming within the scope of his request apart from the 31 records already released on the ground that no further relevant records exist or can be found. 

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request may be refused if 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 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/her decision. 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 it has taken all reasonable steps to locate the relevant records.

Having regard to the information provided, this Office 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.  However, it is not normally the function of this Office to search for records that a requester believes are in existence.  In particular it is open to me to find that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records. 

Over the course of a number of submissions to this Office, the applicant argued that the NCSE should have significant further documentation relating to him such as school records, individual education plans and behaviour management plans and further records in relation to the decision to authorise special education resources for him, beyond those that were identified in 2013 or on foot of the current request. In addition the applicant also argued that more detailed information should be set out in those records released in response to the current request. He also argued that where the NCSE indicated that it did not have certain records on file 'then the persons involved should now be directed to write an account of events'.  

It is important to note that the FOI Act provides for a right of access to records held by public bodies. Regardless of what records the applicant believes ought to exist, if they are not held by the body then that is the end of the matter. Furthermore, the Act does not require public bodies to create records to address any queries requesters may have in relation to their engagements with those bodies. As I have outlined above, my review in this case is concerned solely with whether the NCSE has taken all reasonable steps to locate additional relevant records.

The applicant was invited to provide further details of the types of records which he believed should exist. The applicant did so and while I do not propose to repeat these details here, they were subsequently supplied to the NCSE. In its submission to this Office the NCSE referred to the 2013 FOI request made by the applicant's mother and indicated that all existing records had been supplied to the applicant, either as part of his mother's previous FOI request or as part of the current review. In response to the query in relation to records relating to the alleged abuse of the applicant during his time attending a named school, the NCSE informed this Office that all documentation in relation to this allegation was released to the applicant as part of the current request (records 15, 16 and 17). In addition the NCSE also informed this Office that the initial correspondence from the applicant's mother to the NCSE which first mentioned this allegation of abuse was not released as the current request from the applicant specifically excluded such communications.  

In addition the NCSE provided details of the specific searches that had been undertaken on foot of the current request. It stated that following receipt of the request it contacted the Special Educational Needs Organiser (SENO) with responsibility for the school most recently attended by the applicant. The Area Manager was also consulted as well as the Head of Local Services and the Human Resources Unit. The SENO confirmed that all relevant documentation was contained on the applicant's file and that no records relating to him had been archived by NCSE staff. This file was forwarded to the NCSE Headquarters for release to the applicant.  

The NCSE also provided details of its record management policies and in particular details around its policies for record destruction. In sum the position of the NCSE is that it has taken all reasonable steps to look for records of relevance to the applicant's request, bearing in mind the searches already conducted as part of the 2013 request. 

In view of the information provided, I consider that the NCSE has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the NCSE refuse access to additional relevant records under section 15(1)(a) of the FOI Act on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.   

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