Whether the Council was justified in its decision to refuse the applicant-�s request for access to further records relating to how the Council arrived at its decision not to support his application for a Visual Arts Bursary Award

15 October 2018 

Background

On 24 April 2018, the applicant submitted a request to the Council for "all sources and means" on how the Council arrived at its decision not to support his application for a Visual Arts Bursary Award. On 30 April 2018, the Council provided the applicant with a copy of the feedback relating to his application that had already previously been provided and stated that this was the only record it had pertaining to his application.

The applicant sought an internal review of the Council's decision on the ground that assertions were made that did not conform with the facts he had provided and that they may have come from other sources. The Council issued its internal review decision on 8 June 2018 in which it affirmed the original decision. It also stated that the assessment of the applicant's application by its visual arts adviser was in line with its Guidelines for 2018 Visual Arts Bursary Applicants as available on its website and it provided a further copy of those Guidelines. On 15 June 2018 the applicant sought a review by this Office of that decision.

During the course of this review, and following correspondence with this Office, the Council located and released a further record to the applicant.  This record comprises electronic data held by the Council in relation to the assessment of the applicant-�s application i.e. the original text entered by the Visual Arts Adviser (the assessor) onto the Council-�s online system and the final text that he approved.

The Council also provided this Office with a description of the assessment process and with details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed him of her view that the Council was justified in refusing access to additional records on the ground that no further relevant records exist or could be found. The applicant provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter. 

Scope of Review

The scope of this review is concerned solely with whether the Council was justified in refusing access to further records relating to how the Council arrived at its decision not to support his application for a Visual Arts Bursary Award.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either 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 the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its submissions to this Office, the Council provided details of the application/assessment process for the Visual Arts Bursary Award and of the searches conducted to locate all relevant records. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  

In short, the Council explained that the application/assessment process is carried out on its online system.  It stated that this system was used by the Visual Arts Adviser in his role as the sole assessor of the applicant-�s application.  It stated that neither a marking/score sheet, nor criteria/guidelines additional to those outlined in the Visual Arts Bursary Award 2018 Guidelines and the goals of its strategy -�Making Great Art Work: Leading the Development of the Arts in Ireland-�, were used in the assessment process. It also stated that the Visual Arts Adviser and the Visual Arts Team were consulted and their records searched. 

In essence, the applicant's argument is that further records should exist that explain how the assessor applies the criteria used to assess applications as set out in the Guidelines. For example, he noted that the Guidelines indicate that the potential of the artist is relevant to the assessment of artistic merit but he has not been given any record which indicates how that potential should be assessed. He also suggested that the feedback he received indicates that the assessment was drawn from a source of information within the Council.

The Council's position is that no such additional information relating to the assessment criteria exists. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the process adopted by the Council for assessing applications. If the records sought do not exist then that is the end of the matter, regardless of whether or not a requester believes that certain records should exist based on his or her views as to what constitutes good administrative practice. 

The applicant has presented no evidence to suggest that additional records relating to the assessment criteria exist, apart from his views on what should exist. Furthermore, he has presented no evidence to suggest that the assessor relied on anything other than his application when conducting the assessment. In the absence of such evidence, I have no reason to doubt the Council's submission in relation to the application/assessment process followed. 

Having considered the Council-�s description of the searches undertaken and of the process surrounding assessment of applications for a Visual Arts Bursary Award, I am satisfied that it has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request.  I find, therefore, that the Council was justified in refusing access to any additional records on the ground that no further relevant records exist.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Arts Council to refuse the applicant-�s request for further records relating to how it arrived at its decision not to support his application for a Visual Arts Bursary Award under section 15(1)(a) 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