Whether the Institute was justified in deciding to refuse access to additional records relating to the creation and filling of a particular position within the Institute under section 15(1)(a) on the ground that no further relevant records exist or can be found apart from the records already released

16/10/2018

Background

This review has its background in the appointment of a staff member to a particular position in the Institute in 2017.

On 7 March 2018 the applicant submitted a request to the Institute for all records relating to the creation and filling of a particular position within the Institute, to include records concerning matters such as the decision to create the post, the advertisement of the post and the subsequent selection process. On 9 April 2018 the Institute refused the request on the basis that no relevant records exist. However, it released certain extracts from the President's reports to its Governing Body, an extract from the minutes of a meeting of its Senior Executive Group, and a copy of an email that issued to staff outlining the background to the new post and the appointment of a named individual. It stated that as the post was filled by way of a 12 month secondment, there was no recruitment and selection process.

The applicant sought an internal review of that decision on the ground that she had not received all relevant records. She suggested that more records should exist surrounding matters such as the decision to create the post, the secondment arrangement, the terms and conditions and job description relating to the post etc. The Institute failed to issue an internal review and an effective position was sought by this Office. On 5 July 2018 the Institute affirmed its original decision that no further relevant records exist. On 7 August 2018, the applicant asked this Office to proceed with a review of the Institute's decision.

During the course of the review, the Institute provided this Office with details of the background to the appointment and of the searches carried out to locate all relevant records. On 25 September 2018, Ms McCrory of this Office provided the applicant with details of the searches undertaken and of the Institute's explanation as to why it holds no further relevant records. She informed the applicant of her view that the Institute was justified in refusing access to additional records on the ground that no further relevant records exist or can be found and she invited the applicant to make a further submission on the matter. 

As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision based on the information now before me. In conducting my review, I have had regard to the correspondence between the Institute and the applicant as outlined above and to correspondence between this Office and both the Institute and the applicant on the matter.

Scope of Review

This review is solely concerned with whether the Institute was justified in deciding to refuse access to additional records relating to the creation and filling of a particular position within the Institute under section 15(1)(a) on the ground that no further relevant records exist.

Analysis and Findings

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.

In its submission to this Office, the Institute stated that the Higher Education Authority published a review of gender equality in higher education following a number of high profile employment cases. It stated that the review made a series of recommendations, amongst them being that all Higher Education Institutions should be accredited by Athena Swan, an international body specialising in gender equality in higher education. It stated that the Institute-™s senior management discussed the matter and it was felt dedicated resources should be assigned to lead the accreditation process at an appropriate level. 

The Institute added that the individual allocated the task was returning from maternity leave and a colleague was in place currently backfilling her existing position. It stated that the President and the individual met, discussed the role and the individual was agreeable to taking on the task for a period up to the completion of the accreditation process. The Institute stated that from a HR perspective, the individual was assigned other duties as her contract of employment permits, and no terms or conditions of employment were varied. It added that this was an unusual case in that normally all posts would commence with a job description, person specification, advertisement, interviews and issuing of contract, and these records would reside in the HR department. It stated that in this case it was a matter of a staff member being agreeable to the assignment of other duties with no alteration of existing terms or conditions. 

The Institute stated that very few records were created in relation to this position as the staff member agreed to take on the task for a period until the completion of a particular project. It stated that searches were conducted of the President's office and the HR department to locate any relevant records and that no additional relevant records were located. It added that the President's reports draw attention to key events for the Board, that the relevant extracts were provided, and that these would not require any supporting documentation in order to be created. 

It is the Institute's position that all relevant records have been released and that no further records exist. Having considered the Institute's description of the background to the case, of the searches undertaken, and in the absence of evidence to suggest that additional records of the type sought by the applicant should exist, I am satisfied that the Institute 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 Institute was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Institute to refuse access to further records relevant to the applicant's request for all records relating to the creation and filling of a particular position within the Institute 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