Whether TCD was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant other than those already released on the ground that no further relevant records exist or can be found

5 November 2020

Background

In a request dated 1 May 2019, the applicant sought access to

“all records both personal and non-personal relating to all aspects of my studies while attending the School of Psychology, for my Post Grad ABA, for my Masters in ABA and for the time I was attending for my PhD, including all matters relating to my studies, research, projects involved in, ethics applied for and received, expenses submitted and those paid and still outstanding. Information relating to grant submissions to Pobal etc. relating to my studies and all subsequent responsibilities held while attending at the School of Psychology. All requests submitted to supervisors etc, about extensions and applications for sick leave etc. from my studies”.

In a decision dated 27 June 2019, TCD partially decided to part-grant the request. It released a large number of records whilst refusing access to others, in whole or in part, under sections 15(1)(a), 31(1)(a) and 37 of the FOI Act. On 24 July 2019, the applicant sought an internal review of that decision. On 14 August 2019, TCD released a number of additional records it located, with some redactions made under section 37.

On 15 January 2020, the applicant sought a review by this Office of TCD’s decision. In her application for review, she listed six categories of records where she believed further records existed but had not been disclosed. In essence, the six categories were for records relating to;

(i) The applicant’s admission to courses in the School of Psychology
(ii) Unpaid work she undertook while with the School of Psychology, training other Postgraduate students and supervising them
(iii) The recording of sessions with postgraduate students
(iv) The partial reimbursement of valid and vouched expenses made by the applicant
(v) The sharing of the applicant’s PhD research
(vi) Sick leave requests made to the applicant’s PhD supervisor

In subsequent correspondence with this Office’s Investigating Officer, the applicant confirmed that she was concerned only with the question of whether further relevant records exist and not with TCD’s decision to withhold certain information under sections 31 and 37.

During the course of the review, the Investigating Officer provided the applicant with details of the searches carried out by TCD and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that TCD was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited her to make a submission on the matter. To date, no response has been received. Therefore, I consider it appropriate to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between TCD and the applicant as outlined above and to correspondence between this Office and both TCD and the applicant on the matter.

Scope of Review

This review is concerned solely with whether TCD was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for access to additional records relating to the six categories identified above on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of this review, TCD provided submissions to this Office. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, TCD submitted that it undertook extensive searches in the School of Psychology, Office of Graduate Studies and Academic Registry, Financial Services Department, Human Resources and the Secretary’s Office. All electronic searches were carried out using the applicant’s full name which TCD said would have identified any emails sent to or received from the applicant. It said that this search term would have highlighted any emails mentioning the applicant. In relation to the six categories, TCD outlined where records within each of the six categories were located in the Schedule of Records released to the applicant.

Addressing the applicant’s reference to category two, TCD originally said it did not understand the reference to unpaid work. The investigating officer confirmed with the applicant that this was a reference to expenses claimed which remained unpaid. I note that category two is closely related to category four (Reimbursement of valid and vouched expenses). TCD then outlined the multi-step process in place for claiming expenses. It said that as a PhD student, any legitimate vouched expenses or amounts due from the University would have been paid via its payroll. It further said that any expenses due to students and staff are the responsibility of students and staff.

The Financial Services Department (FSD) confirmed that it carried out searches which would have revealed any valid and vouched expense claims. It explained that non-staff expense claims are centrally logged. TCD submitted that all records relating to expenses were released and searches were carried out for records within scope in the School of Psychology, Financial Services Division and Human Resources. In relation to payroll records and expenses, TCD submitted that both the Financial Services Division and Human Resources carried out searches.

TCD listed nine staff members, including the applicant’s thesis supervisor, in the School of Psychology who carried out electronic and hardcopy searches. The applicant identified one staff member who TCD said was no longer an employee at the University. It explained that once a staff member leaves the University data in the account is irretrievably deleted after a specified period of time. It said that before leaving all relevant records are saved over the shared files/drives within the staff members relevant School/Unit. It confirmed that the relevant shared drives or shared folders in the School were searched and all such records were provided.

TCD said that it does not believe there are any other locations where records might be held. It said that in accordance with its Records Retention Schedule certain records may have been securely deleted. It outlined that in accordance with its obligations under GDPR and the Data Protection Acts 1988-2018, personal data is held for no longer than is necessary by the University.

It is, in essence, TCD’s position that no further relevant records can be found or do not exist apart from those already released. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that record ought to exist.

It is also important to note that the test in section 15(1)(a) is whether all reasonable steps have been taken to locate relevant records. It is clearly envisaged by the Act that records may exist but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. The FOI Act does not require absolute certainty as to the existence or location of records, as situations may arise where records are lost or simply cannot be found.

As I have outlined above, having provided the applicant with details of the searches undertaken by TCD in an effort to locate further relevant records, this Office’s Investigating Officer invited the applicant to make a further submission in reply. However, no such further submission has been received. Accordingly, having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that TCD 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 TCD was justified in refusing access to any additional relevant 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), I hereby affirm TCD’s refusal of the applicant’s request for further records relating to her apart from those already released under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator