Whether Enable Ireland was justified in refusing access to certain records relating to the termination of the applicant’s employment under section 15(1)(a) of the FOI Act on the ground that the records sought no longer exist

27 September 2019

Background

On 15 April 2019 the applicant submitted a request to Enable Ireland for certain records and statements of reasons relating to the termination of her employment in 2007. Specifically she sought access to a copy of a transcript of a hearing relating to the termination of her contract and records relating to sums paid on termination of her contract. As Enable Ireland did not issue a decision on the request within the statutory four week timeframe, the applicant sought an internal review of the deemed refusal of her request.

On 29 May 2019 Enable Ireland wrote to the applicant and stated that the information sought is no longer held by it. On 4 June 2019 the applicant sought a review by this Office of Enable Ireland's decision.

This review is concerned solely with the applicant’s request for certain records relating to the termination of her employment. Her application for statements of reasons for various acts of Enable Ireland in relation to the termination of her employment is being dealt with in a separate review (Case number OIC-53552-J5B7W6 refers).

During the course of the review, this Office provided the applicant with details of Enable Ireland's submissions regarding the searches it conducted in response to her request. Ms Whelan of this Office informed the applicant of her view that Enable Ireland had carried out all reasonable steps in an effort to ascertain the whereabouts of the records sought and that it was justified in refusing the request on the ground that the records sought had been destroyed. She invited the applicant to make a further submission on the matter. The applicant made further comments.

I have now decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and Enable Ireland as set out above and to the communications between this Office and both Enable Ireland and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether Enable Ireland was justified in refusing the applicant’s request for certain records relating to the termination of her employment in 2007 under section 15(1)(a) on the ground that the records sought have been destroyed.

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to make a number of preliminary comments.

First, in her correspondence with this Office, the applicant expressed concerns about the manner in which Enable Ireland had treated her in relation to her employment and made a number of complaints regarding staff in the organisation. As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, during the course of the review, the applicant expressed various concerns about the fairness of the review process. While I do not propose to engage with those arguments in this decision, I can confirm that I have considered the applicant's arguments and do not accept them. I am satisfied that the applicant was given a reasonable opportunity to comment on all material issues arising.

Thirdly, the applicant also objected to the publishing of anonymised decisions on the Office’s website. The applicant was notified that this Office is legally required to publish all binding decisions and was offered the opportunity to withdraw her application for review in this case, which she declined. As a result, this review has progressed to a legally binding decision and will be published on this Office’s website in the usual manner in due course.

Analysis and Findings

Section 15(1)(a) of the FOI Act 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 email of 29 May 2019 to the applicant, Enable Ireland explained that it retains HR files for seven years and as the information requested related to employment which had ended 12 years prior, the information had been destroyed in line with data protection legislation.

In its submissions to this Office, Enable Ireland provided further details, including a shredding inventory detailing the destruction of the relevant files. It further explained that searches of the organisation’s hard drive and a relevant email account were conducted and while two records were located, they fell outside the scope of the applicant’s request. One was a reference for the applicant that had been located on a computer hard drive and that had not been sought by the applicant. The second was a letter Enable Ireland issued to the applicant in 2015 in response to allegations the applicant made concerning her treatment by Enable Ireland staff during her employment.

However, no further records were found as Enable Ireland explained that it had engaged in a data minimisation programme which involved the deletion of electronic records.   

In this case, I am satisfied that any records falling within the scope of the applicant’s request would have been destroyed in line with Enable Ireland’s records retention policy. As Enable Ireland explained, the applicant’s employment ended well outside the organisation’s retention period for HR files.

Having considered the details of the searches undertaken and explanations regarding the organisation’s records retention policy, I am satisfied that Enable Ireland has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant's request. I find, therefore, that Enable Ireland was justified in refusing access to records on the ground that no relevant records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Enable Ireland to refuse access to certain records relating to the termination of the applicant’s employment under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist.

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