Whether TUD was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to a complaint made by the applicant under its grievance procedure on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

22 December 2022

Background

This review has its background in a previous review by this Office (Case OIC-53503 refers). Following my review in that case, I issued my decision on 3 March 2020 in which I directed TU Dublin to consider the applicant-�s FOI request afresh as I was not satisfied that it had taken all reasonable steps to ascertain the whereabouts of all of the records sought by the applicant. My primary ground for doing so was because TU Dublin had acknowledged that at least some of a number of staff members identified by the applicant during the review may hold relevant records but it had not asked those individuals to conduct relevant searches.

The applicant is a former employee of Dublin Institute of Technology (DIT), now TU Dublin. In 2015 he made a grievance complaint against a number of individuals which was investigated by TU Dublin and a third party company. His FOI request, dated 30 July 2018, was for access to -�any/all information held by [TU Dublin] in hardcopy and/or electronic format relating to, or relevant to, a complaint [he] made under the DIT-�s Grievance Procedure-�. DIT has since been dissolved by statute and merged with two other Institutes of Technology, becoming Technological University Dublin (TU Dublin). Accordingly, all references to TU Dublin in this decision should be taken to include DIT in so far as it was involved in the processing of the applicant-�s request.

In my decision of 3 March 2020, I had also suggested that the applicant engage with TU Dublin during the reconsideration of his request with a view to coming to an agreement on the precise nature of the records he deemed to be outstanding. TU Dublin and the applicant subsequently had extensive engagements about scope of the request. I note that TU Dublin responded in detail to the points raised by the applicant throughout the course of the decision making process. I also note that the applicant engaged with TU Dublin and attempted to provide clarity and feedback as to the records he thought remain outstanding.

On 5 October 2020, TU Dublin issued a fresh decision wherein it released further records. On 1 November 2020, the applicant sought an internal review of that decision on the ground that further relevant records exist. On 19 February 2021, TU Dublin affirmed its decision and provided a detailed response to the queries raised by the applicant. On 17 August 2021, the applicant sought a review by this Office of TU Dublin-�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 correspondence between the applicant and TU Dublin as outlined above, and to correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether TU Dublin was justified in refusing access, under section 15(1)(a) of the FOI Act, to any additional records relating to a complaint the applicant made under its grievance procedure, on the ground that no additional records exist or can be found.

Preliminary Matters                                                                         

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

Analysis and Findings

Section 15(1)(a) of the 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. The Commissioner-�s role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

Submissions

As noted above, there has been extensive correspondence between TU Dublin and the applicant. During this review, the Investigating Officer provided the applicant with a summary of TU Dublin-�s submissions wherein it outlined the details of the searches undertaken in an effort to locate relevant records and explained why it considers that it holds no further relevant records. As such, I do not propose to repeat those details in full here.

In summary, TU Dublin submitted that it has followed up exhaustively on all the claims and issues raised by the applicant in his application for review and other correspondences. It said that it conducted searches in relation to a total of 37 individuals identified as potential record controllers across 11 TUD departments and two contractors. It said that 13 individuals identified records but 24 identified no records. It said physical searches included searches for the paper files including memos, minutes of meetings, letters held by individual record controllers or in departments in filing cabinets, locked storage units and record controller-�s desks.

TU Dublin said that it also considered other areas where the records could potentially be held, and the lead decision maker interviewed senior colleagues in other departments including HR Resourcing, HR Leave & Benefits, and HR Pensions to establish whether records relevant to the applicant-�s request were held in these areas. It said that records previously held by individuals who leave TU Dublin employment are put under the control of the new incumbent of Heads of Function, and the searches conducted by the Head of Library, Head of HR and Head of Academic Affairs included searches of records previously held by those individuals who are no longer employed by TU Dublin.

TU Dublin explained that grievance process files are held electronically as a master file in HR (Employee Relations). It said in the applicant-�s case, there are two files. Firstly, the Grievance Procedure Investigation Report which was issued to the applicant directly on 20 January 2017. Secondly, the Grievance Appeal Report created by a contracted third party was issued directly to the applicant on 4 December 2017. The FOI Officer explained that based on interviews with the Head of Workplace Relations, the only physical files held by HR are paper personnel files which was released to the applicant.

In correspondence with TU Dublin and in his application for review to this Office, the applicant argued that the searches carried out were basic and limited. He also argued that electronic searches were unduly narrow as the search term used was his name. In response, TU Dublin submitted that using a name as a search term for conducting electronic searches give the most successful capture and identification of potential records. It said that it was not aware, nor could it recommend, any alternative search term that could have captured additional information within the scope of the request. It said that the applicant-�s name is included on all formal process documents.

The Investigating Officer provided the applicant with a table of the details of searches carried out for records held by the list of individuals he identified during the first review as possibly holding records. The table included details of the type of searches carried out. A number of individuals commented on the reasons why they were unable to locate records.

The applicant argued that certain correspondence was missing. For example, during the grievance investigation an Investigator highlighted a potential conflict of interest where he had a close professional relationship with a sibling of one of the individuals listed in the applicant-�s complaint. The applicant is of the opinion that a record ought to exist naming which individual this refers to. TU Dublin submitted that no record was located naming the individual following searches.

The applicant also highlighted that reference had been made to monthly investigation reports but no such documents were forthcoming. TU Dublin submitted that this point relates to a request by the head of HR, to members of the investigation team for periodic updates on the progress on the formal Dignity at Work Procedure. TU Dublin advised that such interim correspondence was not retained as they were temporary in nature pending the outcome of the investigation. TU Dublin noted that following the completion of the grievance procedure, the applicant was provided with a copy all relevant records regarding the investigation.

The applicant submitted that he had sight of correspondence from a named individual where his name is mentioned but that those records had not been released as part of the review. The Investigating Officer raised this matter with TU Dublin. In response, TU Dublin said that the individual in question carried out searches on all email archives, local computer C drive, and her network Z drive. She did not locate any records on the drive but did locate a number of emails in 2012 but these records were unrelated to the applicant-�s grievances or subsequent decision to leave TU Dublin. She confirmed she held no paper records.

During the course of the investigation of the applicant-�s grievance complaint he informed the Head of Workplace Relations of an alleged breach of confidentiality in a separate grievance complaint by a colleague. The applicant was not a party to this second grievance. TU Dublin submitted that information regarding this confidentiality violation is outside the scope of the applicant-�s request as it does not relate to his grievance procedure but is an entirely separate matter. In submissions to this Office, the applicant maintained that the confidentiality issue formed part of his bullying complaint. He said that he wrote to the Head of Workplace Relations bringing his attention to the issue regarding the confidentiality. The applicant said the Head then sought further information from him, which he provided. During the following three weeks, the applicant was updated a number of times to say the matter was still under review and later informed that the Head had concluded that no issue arose. The applicant attached a copy of correspondence between him and the Head to demonstrate this. The applicant said he has repeatedly asked for records regarding the investigation and was not seeking information pertaining to any complaint made by any other staff member. He said that confidentiality in general, and the issue he drew to the attention of the Head, formed part of his bullying complaint. TU Dublin in response re-iterated its position that no further records exist within the scope of the applicant-�s request, other than those released to him. TU Dublin explained it came to this view having interviewed the Head of Workplace Relations and discussed the issues identified by the applicant.

In its-� submissions, TU Dublin said that in total 25 searches were carried out on 37 record controller-�s files. Some staff members have retired and others are on extended leave. One individual named by the applicant is a Union Representative and not an employee of TU Dublin. Of the 25 searches, 8 included physical searches and 17 were fully electronic. However, it explained that of these 17 electronic searches, 12 record controllers confirmed they held no paper records and the majority provided reasons why. A copy of this correspondence was provided to this Office. I note these electronic searches included now retired staff or staff on extended leave.

As noted, the Investigating Officer has already provided the applicant with a breakdown of why no such records were held. It was unclear from the table referred to above whether the Head of Workplace Relations had carried out physical searches. During the review, TU Dublin confirmed that the FOI Officer interviewed the Head who confirmed that he carried out physical searches and no paper records were found. In response to a query by the Investigating Officer as to why the Head of Academic Affairs did not carry out physical searches, TU Dublin explained that the individual in question conducted searches for relevant records controlled by his retired predecessors identified by the applicant as potentially holding records. TU Dublin explained that as it centrally-held academic affairs records electronically, it was not possible that the individual in question held paper records within the scope of the request. Another individual who previously worked as executive assistant to the Head of HR did not carry out physical searches. TU Dublin explained that physical searches would not have captured any additional physical records as centrally-held files are held electronically. The only other records held physical are personnel files.

Analysis and Findings

The FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the section requires is that the body takes all reasonable steps to locate relevant records. The question of what is reasonable will generally depend on the particular circumstances arising. It is open to this Office to conclude that a body has taken all reasonable searches even where records were known to have existed but cannot be found. The Act does not require a body to search indefinitely for records that cannot be found. Furthermore, this Office does not generally expect public bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a body-�s explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.

In relation to the applicant-�s assertion the search term used (his name) was inadequate, I note the applicant did not suggest any specific search terms he considered would capture additional information. TU Dublin is of the opinion that the search term would capture records related to the request. In the circumstances of this particular case, I consider the search term used to be adequate.

In relation to records regarding the breach of confidentiality, it seems to me that the applicant wrote to the Head of the Workplace Relations with a concern regarding the confidentiality of the grievance procedure and issues surrounding it. The applicant and TU Dublin have discussed this matter at length. In submissions to this Office, the applicant provided further background to his view that any records created during the investigation are within the scope of the request. I note that the applicant was concerned about confidentiality and this formed part of his grievance. I note that the correspondence between the applicant and the Head surrounding his concerns were released but that records relating to the separate investigation into the alleged breach of confidentiality related to third parties were not. I am satisfied that the review into an alleged breach of confidentiality in relation to the third party is outside the scope of this request, as it does not directly relate the substance of applicant grievance procedure notwithstanding the fact that he wrote to the Head in the context of his own complaint.

Having regard to the extensive search details provided by TU Dublin, which outline the many searches undertaken on both electronic and hardcopy files using the applicant-�s name and interviews with relevant staff members, and to the nature of its record management practices in relation to the records sought, I am satisfied that TU Dublin has taken all reasonable steps to locate the records sought in this case. Accordingly, I find that TU Dublin was justified in refusing access, under section 15(1)(a) of the Act, to further relevant records on the ground that no additional records relating to the applicant-�s request 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) of the FOI Act, I hereby affirm TU Dublin-�s decision to refuse access, under section 15(1)(a) of the Act, to additional records relating to the applicant-�s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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.
 

Senior Investigator
Stephen Rafferty