Whether UCC was justified in refusing access to documentation relating to an application for a licence for a Mussel Farm at a named site on the ground that no further records exist or can be found after all reasonable steps have been taken to locate them
9 February 2021
Background
Marine and Renewable Energy Ireland (MaREI) is a Science Foundation Ireland Research Centre for Energy, Climate and Marine, coordinated by the Environmental Research Institute at UCC. The Wild Atlantic Mussels (WAM) project relates to offshore mussel production in Irish waters. The project was developed by staff at MaREI UCC with technical and advisory support from Bord Iascaigh Mhara (BIM), the Marine Institute (MI), and a French SME, ACRI. The project was awarded funding for 3 years by BIM. A condition of the funding was the prior procurement of a temporary aquaculture licence, necessary to enable the deployment of up to three non-commercial mussel lines for undertaking scientific research in Kenmare Bay.
In a request dated 27 August 2019, the applicant wrote to UCC referring to (i) an application for an aquaculture licence by a named company, and (ii) the Trial Licence issued to UCC to facilitate the WAM Project. The applicant is a group that was set up in response to the application at (i) above. It also referred in its letter to a published interview with a MaREI staff member speech and an extract from a publication prepared by MaREI staff members that mentioned public buy-in and political support and public consultation respectively. It requested all relevant documentation, including, but not limited to, the following five categories:
(i) All documents, correspondence, notes, memoranda of conversations, details of written and oral representations made by third parties, any questions raised by any third parties and replies, and all submissions made in relation to the applications
(ii) Details of all contacts and communications between a named company, a named individual, MaREI, BIM and the Department of Agriculture Food and the Marine in relation to the applications
(iii) Details of UCC’s policies and procedures in relation to public consultation and “buy in” before any research or trials that will adversely affect livelihoods and a community
(iv) Details of what steps were in fact taken to consult with the public, particularly in the named area, before and during the applications
(v) Details of what is being done or what will be done to “garner political support”
In a decision dated 20 September 2019, UCC said its response must be limited to the Trial Licence application and that it could not respond on behalf of the commercial operator that made the other application. It released certain records in response to parts (i) and (ii) of the request and provided a response to the issues raised in parts (iii), (iv) and (v) along with a copy of a presentation of relevance to part (iv).
On 18 October 2019, the applicant sought an internal review of that decision, through its legal representatives. It argued that UCC had taken unduly narrow interpretation of the scope of parts (i) and (ii) of the request. It said it was seeking to establish the connections between MaREI, the commercial operator, and a named individual and had sought details of all contacts between the parties in relation to the applications.
Following a number of further exchanges of correspondence, UCC issued its internal review decision on 5 December 2019, wherein it varied its original decision and released two further records. On 3 June 2020, the applicant sought a review by this Office of UCC’s decision.
During the course of the review, the investigating officer sought submissions from UCC on the searches carried out to locate all relevant records. She provided the applicant with details of the searches carried out by UCC and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that UCC was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited it to make a submission on the matter. The applicant responded on 17 December 2020 wherein it suggested that further relevant records exist.
I have now concluded my review in this case. In carrying out my review, I have had regard to the correspondence between UCC and the applicant as outlined above and to correspondence between this Office and both UCC and the applicant on the matter.
Scope of Review
This review is concerned with whether UCC was justified, under section 15(1)(a) of the FOI Act, in refusing any additional records other than those already released concerning the applications identified by the applicant in its request on the ground that no further relevant records exist or can be found.
Preliminary Matter
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. Our role is confined to reviewing the decision taken by UCC on the FOI request.
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 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.
During the course of the review, UCC provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, UCC said that this request relates to a small scale research trial licence which was obtained by UCC. It said that the research activities that UCC is engaging in through the Wild Atlantic Mussels research project funded by BIM under the Knowledge Gateway Programme and permitted under the trial aquaculture licence No T5/610 in Kenmare Bay are distinct and separate from any other planned or potential aquaculture projects, their proponents and their associated licences or licence applications that may exist for sites in the outer Kenmare river.
UCC explained that during the initial phases of project development the named company was listed as a partner in an early draft of the proposal. UCC said that once MaREI staff became aware that the named company was no longer in a position to operate as potential partners in the proposals, all relevant documents were revised to reflect this. It said the named company was de-listed and subsequently completely absent from the WAM project official funding process or any associated contractual documents.
UCC explained that one employee in MaREI was the only person who would hold the type of records requested. It said that he searched his email MS Outlook Inbox and Sent Items folders using a combination of fifteen different search terms. The search terms included the named company, named individual and other keywords which would capture main parts of the project. It said the employee also carried out a search using those keywords on a hard-drive folder.
In correspondence with this Office, the applicant queried why there was no correspondence between UCC and the named company prior to August 2017 when the application type was revised from Partnership to Academic Institute. UCC said that the employee in charge of the project re-ran searches on his email and confirmed that no further records existed. It said that when the revision was being made to the aquaculture trial licence application, the employee and the named individual were in contact via phone. It said that owing to the nature of the named individual’s occupation which is extensively field-based, he would typically only be in a position to respond to e-mail on an occasional basis, meaning he was more often more able to provide direct responses when contacted by mobile.
UCC said there is no actual partnership between it and the named commercial operator. It said there has never been a partnership and there are no plans to bring a partnership into being. In correspondence with this Office, the applicant referred to a service agreement between UCC and the company. UCC argued that any such records are outside the scope of the original request. Notwithstanding its position, it clarified that it does not have a service agreement with the named company. It said that the company has provided services in support of field work activities involving the provision of a boat and driver for the purposes of collecting water and biological samples on a monthly basis in the Kenmare River at the UCC licenced trial site. I note that the original request specifically refers to records relating to the applications. I agree that any records created subsequently during the field work fall outside the scope of the applicant’s request.
Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, I am satisfied that UCC 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 UCC was justified in refusing access to further relevant records on the ground that no such 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 the decision of UCC to refuse the applicant’s request for further records relating to the licence applications on the basis that no further 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