Whether QQI was justified in refusing access to further relevant records relating to the applicant’s request for all records relating to him under section 15 (1)(a) on the ground that no further relevant records can be found
18 July 2019
Background
This review has its background in an ongoing grievance the applicant has with QQI concerning its handling of a complaint he made in 2014 against Dublin Business School (DBS) and is closely connected to two previous reviews concerning the applicant and QQI, namely Case Nos. 170118 and 170480. Given the particular circumstances of this case, it is necessary to first outline the background in detail.
In Case 170118 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 in DBS. 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 and I issued a decision on the matter on 3 August 2017.
Case 170480 related to a request the applicant made on 10 July 2017 for all the records QQI had 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.
While QQI released additional records on foot of that request, the applicant sought a review of QQI’s decision on the ground that it had not released all relevant records. I found that QQI had taken an unduly narrow interpretation of the request. As I was of the view that it had not taken all reasonable steps to identify all relevant records, I annulled its decision and I directed it to conduct a fresh decision making process on the request of 10 July 2017.
In my decision of 2 February 2018 I stated that it would be helpful if the applicant were to provide QQI with as much information as he could to assist QQI in ensuring that any searches it undertakes for relevant records is comprehensive. QQI contacted the applicant in connection with that matter on 23 February 2018.
On 2 July 2018 the applicant wrote to QQI and identified six different records or categories of records he was seeking that, in his view, ought to exist. The seventh category he identified was another broad request for any other record QQI has relating to him.
On 24 July 2018 QQI issued a decision in which it refused the applicant's request under section 15(1)(g) of the FOI Act. That section allows for the refusal of a request where the body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests.
The applicant sought an internal review of QQI’s decision on 26 July 2018, following which QQI affirmed its original decision on 17 August 2018. On 23 August 2018 the applicant sought a review by this Office of QQI's decision.
During the course of the review, QQI informed this Office that it had reconsidered its position and had conducted a further review of all other records relating to the applicant up to the date of his original request, namely 10 July 2017. It stated that it had identified two further relevant records and that it would release them to the applicant. It indicated that it was seeking to rely on section 15(1)(a) of the FOI Act to refuse access to further relevant records.
Following further exchanges of correspondence with this Office, QQI carried out some further searches and located a number of additional relevant records. It released the records in question to the applicant on 3 December 2018.
QQI also provided comprehensive details of the various searches it had undertaken to locate relevant records. On 5 December 2018 Ms Hannon of this Office provided the applicant with details of the searches undertaken by QQI and she informed him of her view that QQI was justified in deciding that no further records exist or could be found. However, the applicant was not satisfied that he had received all relevant records and he made further submissions on the matter.
Subsequent to this, QQI located one further relevant record. As it could not state with certainty if the record had previously been released, it issued a copy to the applicant on 18 April 2019.
At this stage I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between QQI and the applicant outlined above and to correspondence between this Office and both QQI and the applicant on the matter.
Scope of Review
As I have outlined above, reviews by this Office are considered to be de novo which means that this decision is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, I consider it appropriate to have regard to the various actions that have taken place since the application for review was submitted to this Office, including the additional searches that were undertaken and the records subsequently released.
QQI's position is that it has, at this stage, taken all reasonable steps to ascertain the whereabouts of records coming within the scope of the applicant’s request and that no further relevant records can be found.
Therefore, this review is solely concerned with whether QQI was justified, under section 15(1)(a) of the FOI Act, in refusing access to any further relevant records apart from those already released on the ground that no further records can be found.
Preliminary Matters
There are a number of comments I wish to make before addressing the substantive issues arising.
Firstly, QQI's handling of the applicant's request and its subsequent engagement with this Office fell well below the required standards. This Office encountered significant delays in obtaining relevant information in order to progress the review. These delays necessitated a formal notification being issued to the Chief Executive of QQI under section 45 of the FOI Act requiring the provision of the information sought. Overall, QQI's handling of all the applicant's requests was extremely poor and led to a great deal of confusion and delay. I would add, however, that the very broad request and the manner in which the applicant corresponded with QQI played some part in the subsequent confusion.
Secondly, in detailed submissions to this Office, the applicant repeatedly raised issues regarding his engagement with QQI. It is important to note that this Office does not investigate complaints about the administrative actions of public bodies, nor does it examine the manner in which FOI bodies perform their functions generally.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
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 the steps taken to search for records were reasonable. 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.
I note that Ms Hannon has already provided the applicant with the details of the searches undertaken to locate relevant records. Therefore, I do not propose to repeat them in full here, although I can confirm that I have had regard to them for the purposes of this decision.
In summary, QQI stated that both manual and electronic searches were undertaken. It said no official file was considered necessary as it did not consider that the applicant's complaint with DBS was within its statutory remit. It said that searches included the email accounts of all relevant staff members. QQI stated that it had no engagement with the Office of the Ombudsman and no records exist in relation to this. It stated that all relevant computer systems were searched as well as searches of individual staff email accounts. It said that cloud services where QQI's IT requirements and personal computers are housed were also subject to this search. It said it had spoken to all relevant individuals and their records had been searched. It also stated that numerous parts of the applicant's request were covered in Review 170118.
During the course of the review, QQI released correspondence between this Office and QQI from a previous review relating to the applicant (Case 170118 refers). Subsequent to this, the applicant made further detailed submissions to this Office. While I do not propose to address every point made by the applicant in his submissions, I can confirm that I have had regard to his submissions in their entirety for the purposes of this decision. The vast majority of the issues the applicant raised centred on issues that already been addressed in Review 170118.
It seems to me that the applicant is attempting to use this review to re-open matters which have previously been concluded. It is important to note that the purpose of this review is not, and cannot, be to re-open issues that were already examined and were the subject of a previous decision. Once a decision has issued on a review the Commissioner has no further role in the matter and cannot re-open a case. The applicant should be aware that it is open to the Commissioner to discontinue a review under section 22 (9)(a)(iii) where the matter to which the application relates is, has been or will be, the subject of another review. As the applicant is aware, a party to a review, or any other person who is affected by a decision of the Commissioner, may appeal to the High Court on a point of law within four weeks of the date of decision.
During the course of the review, the applicant also raised numerous issues he had with the manner in which QQI had processed his FOI request and repeatedly expressed his disbelief that no further records exist in relation to his request.
It is important to note that FOI is about access to records that actually exist, not to records that a requester believes ought to exist. The FOI Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
I accept that in this case the records were released in a rather piecemeal manner, which lent itself to doubt as to whether reasonable searches had been conducted. However, the fact that further records were located during the course of the review, does not itself prevent me from finding that QQI have now undertaken all reasonable searches to locate relevant records.
Having considered the matter carefully, I am satisfied that, at this juncture, QQI has taken all reasonable steps to ascertain the whereabouts of any remaining relevant records. I find that QQI was justified in refusing to grant access to further relevant records under section 15 (1)(a) on the ground that that records in question do not exist or cannot be found.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of QQI to refuse the applicant access to further relevant records 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