Whether the Institute was justified, under section 15(1)(a) of the Act, in refusing access to further records relating to the applicant’s appeal on the grounds that no further relevant records exist or can be found

8 May 2020

Background

In an FOI request dated 14 October 2019, the applicant, [removed], sought access to information relating to an appeal he had lodged with the Institute’s Student Academic Resolution Committee (the Committee). Specifically, he sought;

• details of how the Committee came to its decision on his appeal,
• details about whether all the members of the Committee had to agree to the decision or whether it was a majority decision,
• a copy of his attendance record for 2017/2018 and 2018/2019 for a specified module,
• a copy of the minutes of the Committee meeting where the Stage 3 report as a result of his appeal was considered
• a copy of the minutes where any reference was made to the Stage 2 report
• a copy of any minutes relating to a review by the Academic Council arising from concerns he raised about the lack of an anti-bullying policy at the Institute, and
• details of the note of a meeting between the relevant Head of Faculty and a particular staff member for the Engineering Department and how the Head of Faculty came to a decision as was outlined in the Stage 2 report.

As the Institute did not issue a decision within the statutory time frame, the applicant sought an internal review of the deemed refusal of his request on 29 November 2019.

In its internal review decision of 13 January 2020, the Institute released two records, namely an extract from the minutes of the Academic council meeting where the Stage 3 report was considered and a record of notes of the Head of faculty of Engineering regarding stage two of the complaint. It said it had previously provided a copy of the Committee’s report and of minutes of meetings held. It said no other relevant records exist.

It also said no record exists of whether the report is an unanimous or a majority report and that as such these committees generally operate on a consensus basis. It added that it does not maintain attendance records of students except where required by regulatory bodies and this was not a requirement on the course in question. On 27 January 2020, the applicant sought a review by this Office of the Institute’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions of the Institute and the applicant.  I have also examined the records at issue and I have had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Apart from the right of access to records, section 10 of the Act also provides that a person who is affected by an act of the body, and has a material interest in a matter affected by the act or to which it relates, may apply for a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of the act.

During the course of the review, the applicant said he would like to receive a statement of reasons for the decisions taken on his complaint. Subsection (10) of section 10 provides that an application under that section shall be expressed to be such an application. Furthermore, subsection (11) provides that, notwithstanding subsection (10), where an FOI body receives an application which does not purport to be an application under section 10 but which applies for the information access to which can be obtained only by way of an application under section 10, the body must assist, or offer to assist, the individual in the preparation of such an application.

Arguably, the applicant indicated in his original request that he was looking for reasons for certain acts that affected him. I note, for example, that he sought details of how the Committee came to a decision on his appeal. While he did not expressly seek a statement of reasons under section 10, the question arises as to whether the Institute should have offered to assist the applicant in formulating an appropriate application for a statement of reasons.

It seems to me that the Institute treated the applicant’s request as a request for records, both specific records and also records that might contain the information he was seeking. On balance, I am satisfied that the interpretation taken by the Institute of the applicant’s request was reasonable. As such, I am satisfied that he did not make a valid application for a statement of reasons under section 10. Nevertheless, this does not prevent him from making a fresh application if he wishes to do so.

The Institute’s position is that it has provided all relevant records coming within the scope of his request and that no further relevant records exist. In essence, this is a refusal of access to additional relevant records under section 15(1)(a) of the Act. Accordingly, this review is concerned solely with whether the Institute was justified in refusing access to further records sought by the applicant concerning his appeal and his attendance record under section 15(1)(a) of the FOI Act.

Analysis and Findings

In his application for review to this Office, the applicant said he received no information about how the Committee reached its decision about his appeal. He said lots of questions were asked during the appeal and he was informed that they were considered by the Committee but received no answers or details of what was considered by the Committee. He also stated that members of the Committee took notes “during meeting with Committee”. He also argued that while he got no attendance records, he was previously given an overall percentage for attendance. He also suggested that the Institute uses attendance records when deciding on applications to progress while carrying a module and that its record retention schedule also states that student attendance records are kept permanently for ESF return.

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 Institute provided details of searches conducted in an effort to locate all relevant records coming within the scope of the applicant’s request. During the course of this review, Ms Greenalgh of this Office provided the applicant with details of those searches. As such, I do not propose to repeat them in full here. In short, the Institute outlined the types of records that are created in cases such as this and the location of the searches it undertook. It stated that it consulted with relevant staff in order to determine whether any further records were held. It considers that all relevant records have been provided to the applicant.

The Institute said that student complaints are held for 7 years after which they are destroyed confidentially. It said that files are held and stored in the Office of the Vice President for Academic Affairs & Registrar in both hard and soft copy. The Institute said that searches were conducted of files in the Offices of the Vice President, Head of Faculty of Engineering, Head of Department of Aerospace, Mechanical & Electronic Engineering, and that relevant individuals outlined in the meetings of 21 August and 6 September 2019 were all canvassed and again confirmed they had no records.

The Institute added that Stage 3 case files are supplied to members of the Committee for the duration of the review and are returned to the Vice President’s Office, after the last meeting when the report has been agreed and approved and that they are then destroyed confidentially by that Office.  It stated that a Stage 3 case file was also supplied to the applicant.

The Institute stated that the applicant was given access to the notes of the meetings of the Student Resolution Academic Council “the Council” dated 21 August 2019 and 6 September 2019. It stated that all persons who attended the meeting, including the applicant, were aware that the notes taken were not verbatim and were typed up after the meeting and that the original handwritten notes were destroyed. The Institute stated that all members of the Council had sight of these notes and that no members hold any other information in relation to this case.

In relation to the applicant’s attendance records, the Institute said that it does not have any attendance records for the applicant. The Institute acknowledged that its Record Retention Schedule states that student attendance records are retained permanently from 1998 for ESF returns. It stated that from the academic year 2014/2015 it was no longer required to submit these returns. It said that this reference in the retention schedule is out of date and will be removed from the next version of the schedule. In addition, the Institute stated that it does not have any attendance records for 2017/18 and 2018/19 for the relevant module and as a result, no attendance records were retained by the Institute

Although the Institute confirmed that a lecturer may maintain an attendance record during the academic year for their own use, these are then discarded, as the Institute does not hold a record on file.

It is worth noting, that the FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. The Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

Having considered the Institute’s description of the searches undertaken and of its processes, 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

I  hereby affirm the Institute’s decision to refuse access to further relevant records sought by the applicant relating to his appeal under section 15(1)(a) of the FOI Act on the grounds that records sought do not exist or cannot 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 affect 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