Whether the DDLETB was justified, under section 15(1)(a) of the Act, in refusing access to further records relating to a specific Doctorate in Education course on the basis that the records sought do not exist

15 September 2020

Background

In a request dated 9 March 2020, the applicant submitted a request to the DDLETB for all communications, meeting minutes and other records relating to a specific Doctorate in Education course for a specific attendee and all related financial records, invoices and purchase orders to include details of how co-funding with the Diocese of Dublin was or was not managed. 

As the applicant did not receive a decision within the statutory timeframe, he sought an internal review of the deemed refusal of his request on 7 April 2020. On 23 April 2020, the DDLETB part-granted the applicant’s request, redacting certain information from the records released under section 37 of the FOI Act. On 5 May 2020, the applicant sought a review by this Office of the DDLETB’s decision on the ground that it had not identified all relevant records for released.

During the course of the review, DDLETB released a number of additional records to the applicant, subject to the redaction of information relating to third parties. DDLETB also provided this Office with details of the searches carried out to locate all relevant records. Ms Greenalgh of this Office outlined the details of those searches to the applicant and informed him of her view that DDLETB was justified in refusing access to any additional records under section 15(1)(a). In response, the applicant indicated that he wished the review to proceed. Accordingly, I consider it appropriate to conclude this review by way of a formal, binding 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 correspondence between DDLETB and the applicant as outlined above, and to correspondence between this Office and both parties.  I have also examined the records at issue and 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

This review is concerned solely with whether DDLETB was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the Doctorate in Education course on the basis that the records sought do not exist.

Preliminary Matter

Before I address the substantive issues arising in this case, I would like to say that the DDLETB’s initial response to this Office’s request for submissions was very poor. The request for submissions is intended to provide assistance to public bodies to ensure that they address all issues we deem relevant to a review. In this case, the Investigating Officer asked the DDLETB to provide comprehensive submissions as failure to do so in reviews concerning claims for exemption under section 15(1)(a) will generally result in more enquiries from this Office, which will prove to be time consuming for the body. She asked a number of specific questions aimed at determining both the record management practices of the DDLETB insofar as they relate to the type of records sought and the nature of the searches actually undertaken in an effort to locate relevant records. In response, the DDLETB provided little more than yes/no answers. As a result, the Investigating Officer had to revert to the DDLETB to require additional information in order to progress the review. I expect the DDLETB to take note of my concerns and to ensure that future engagements with this Office are of a much higher standard, to allow for reviews to be progressed in a timely manner.

Analysis and Findings

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.

While DDLETB released a number of records to the applicant, primarily relating to the payment of course fees, the applicant believes that further records ought to exist in relation to the area of research being undertaken in the Doctorate in Education, which is being part-funded by DDLETB. 

He indicated that he expected to see some documentation of the particular specialism or research interest associated with this PhD, although he had expressed no interest in the identity of the person involved.  He wished to know if DDLETB just provided the funding without taking any interest in, or having any knowledge of, the nature of the specialism associated with the PhD. 

In its submissions to this Office, the DDLETB provided details of the steps it took to search for the records sought. It also provided a copy of its policy manuals, which outline details concerning the refund of fees to staff undertaking further education courses. As this Office has already provided the applicant with those search details, I do not propose to repeat them in full here. In summary, the DDLETB confirmed the steps taken by the HR and Finance Department to ensure a full search was carried out. In response to queries from this Office about the area of research being undertaken in the Doctorate in Education, DDLETB stated:-

• This was an application for partial support in the form of funding from a staff member to undertake a PhD and the DDLETB was just facilitating funding for the course per DDLETB's employee development policy.
• The HR role is to administer and process the agreed payments to those staff who have been approved by management.  It also attached the employee development policy that states that the DDLETB will support staff up to 25% of the cost of course each year.
• The HR Department has an employee development file which contains applications, management refund approvals and payments made to staff for courses of this nature.
• It is unaware of anyone in DDLETB who has supervised a PhD research project and supervisors are usually University staff, or someone engaged by the University.

During the course of this review, DDLETB released a redacted copy of two forms completed by the staff member who is undertaking the course in question, (a) the Teacher Applicant for In-service Course form and (b) the Refund of Fee form. These forms contain only basic information about the course.  Following receipt of these forms, the applicant was invited by this Office to withdraw his application on the basis that DDLETB hold no further records. The applicant indicated that he wished to proceed to a decision.  Whilst expressing disappointment on the one hand, for not having received the information he sought, on the other hand, he hoped that by proceeding to a decision, it might highlight to the FOI Body, the need for further clarity, information and transparency in future applications for publicly funded courses run by the DDLETB.

In essence, it is DDLETB’s position that it holds no specific details on the course in question, other than the records concerning the approval and administration of the course fees.

Having considered the DDLETB’s description of the searches undertaken and its explanation as to why no further records exist, I am satisfied that the DDLETB 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 DDLETB was justified in refusing access to the records sought on the ground that no further relevant records exist.

Decision

I hereby affirm the DDLETB’s decision to refuse access to the record sought by the applicant 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 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