Whether QQI was justified in refusing access to various records concerning complaints made to it since 2012.
08 July 2022
Background
There was considerable correspondence between QQI and the applicant regarding both the scope of his request and the ensuing decision making process. Key details are summarised below by way of context for my decision in this case.
On 5 August 2020, the applicant sought access to "documentation about all complaints or concerns or protective disclosures QQI have received since its formation in 2012 with a breakdown for each year and provider, and the nature and conclusion of each received. "
On 31 August 2020, QQI told the applicant that his request was "too broad in terms of reference to provide a definite answer." It gave him a link to details of protected disclosures published on its website and asked if he could narrow the request to specific years or complaint types.
The applicant's response of 31 August 2020 said that protected disclosures could be removed from the request. He queried certain aspects of QQI's views on the breadth of his request. He said, in relation to the type of complaints sought, that he was "only looking for complaints or concerns put into QQI that students had with their course or provider", which were the "only types [he] was looking for now that [he had] removed any protected disclosures." He said that he might be able to narrow the scope further if QQI gave him further details, which he described in general terms.
On 1 September 2020, QQI told the applicant that the number of complaints was not the issue, but rather the range of areas that QQI deals with i.e. "from FE to HE/providers/learners etc.". In relevant part, the applicant's reply of the same date confirmed that he wanted names of providers. He suggested the creation of a spreadsheet containing name, type of provider, year, nature of complaint or concern, and the outcome or result. He said that he would not need redacted complaints if he got a summarised table.
On 25 September 2020, the applicant sought an update. QQI's reply of 29 September said that it had "concerns" about the release of provider names and that it did not have "a concrete idea of what the direction of the request is." It explained how QQI deals with various types of issues and asked for "a clear indication of what [the] request is."
The applicant's reply of 21 October 2020 said that, further to discussions with the FOI policy unit in the Department of Public Expenditure and Reform (DPER), he understood that he should not have asked for a table of information and instead should have asked "for records or documentation that will reveal the information [that he] was looking for." He said that, to clarify the request, he wanted "records about all complaints and concerns received by QQI since 2012 regardless of what happened to them whether formally logged or not, public or private. To include the name of the provider, year of complaint, nature of complaint and conclusion or result of each." He said that the "actual complaints -¦ would provide the bulk of that information and then maybe QQI's response to the provider or student would provide the conclusion." He clarified that while he wanted provider names, he did not want "any private information about the students or staff members or any private information of that nature." He asked QQI to let him know if there were any problems with this.
On 28 October, QQI told the applicant that it would respond in due course. The applicant sought an update on 15 November. On 16 November 2020, QQI said again that it would reply in due course, and that delays had arisen due to staff absences.
The applicant sought a further update on 7 December 2020. On 8 December 2020, QQI issued what purported to be a decision on the request. It provided the applicant with a table detailing eight "typical complaints" under headings of date, provider type, area of issue and resolution.
Amongst other issues, the purported decision did not include details of rights of appeal. Having sought and obtained such details from QQI, the applicant sought an internal review of its decision on 23 December 2020. He queried the accuracy of the table released to him, saying that it did not refer to any complaints about public colleges or universities, or cover all complaints since QQI was established, or include names of organisations. He said that he was not happy with some of the details of the complaints and that he wanted copies of the complaints, redacted as necessary.
On 1 June 2021, QQI told the applicant that the requested details may not be available electronically. It said that there was limited access to QQI offices because they had been closed since March 2020 due to Covid-19 restrictions. It said that the internal review application could therefore be deemed to have been refused and that this Office could now review the matter.
The applicant subsequently contacted this Office. Further correspondence ensued between the applicant and QQI. This included QQI's email to the applicant of 11 October 2021, which said that, on 26 August 2021, it had provided the applicant with "a number of documents and details" relating to complaints made to it since 2015. It said that some of the material concerned complaints listed in the table, while "others were new records". It said that one particular complaint listed in the table was considered not to fall within the request because it contained highly sensitive, private and personal information that would breach data protection rules if released. It said that "there may be one other record from June 2017 that was not provided", which it was trying to find.
On 11 October 2021, the applicant said that he "wasn't happy with the missing documents and also the searches". He disputed the refusal of the record on the basis of data protection concerns, given that he did not want individual names. QQI replied the following day to say that it intended to release the missing record when it was found. It also that it was referring the possible data protection issue to its data protection officer (DPO) for review.
On 5 November 2021, QQI released what it said was the missing record, which purported to relate to a complaint concerning a provider's website/marketing, dated June 2017. In relation to the other record, it said that the DPO considered the relevant communication not to be a complaint and that it could not be released "from a data privacy perspective".
On 5 November 2021, the applicant sought a review by this office of QQI's decision on his request. I note that, in the course of notifying him of material various material issues, the Investigator suggested to the applicant that he might consider withdrawing some or all of his application to this Office and making a fresh and more specific request to QQI. He is not willing to do so.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, QQI and the applicant. I have also taken account of the contents of record 10 (see below), and the provisions of the FOI Act.
Scope of Review
The scope of the review is confined to whether QQI's decision on the applicant's request for records is justified under the provisions of the FOI Act. There are two parts to the review. The first part concerns whether QQI has taken reasonable steps to look for records covered by the request for the purposes of section 15(1)(a) of the FOI Act.
QQI released certain records to the applicant in part. Further to the Investigator's notification to him of various material issues, the applicant confirms that he is "[f]ine with all the redactions in any documentation released". Accordingly, I do not intend to consider any of the partially-released records.
However, the applicant is not satisfied with QQI's refusal of one record in its entirety (i.e. record 10 on QQI's schedule of records as provided to this Office). QQI appears to be of the view that this record contains personal information. However, it is unclear whether it considers that the record is accordingly exempt under section 37 of the FOI Act (personal information), or that the record falls outside the scope of the request due to the applicant's exclusion of personal information. QQI was invited to comment on this matter but did not do so. In the circumstances, I have proceeded on the basis that QQI considers the record to be exempt from release. Therefore, the second part of my review will consider whether QQI is justified under the FOI Act in fully withholding this record.
Preliminary Matters
QQI's decision making process
This Office recognises that the Covid-19 pandemic itself, and related Governmental measures, affected many FOI bodies' compliance with various requirements of the FOI Act. For instance, staff shortages arising from illness, redeployments and other matters impacted on compliance with statutory time frames, whilst office closures impacted on bodies' capacities to carry out reasonable searches for records.
Nonetheless, the standard of QQI's overall decision making process falls considerably short of what is expected of FOI bodies. For instance, while I acknowledge that clarifying the scope of the applicant's request contributed to the overall delay, it took over a year for QQI to complete the decision making and internal review process. This is unacceptable. Further, QQI's decisions did not comply with the requirements of sections 13 and 21 of the FOI Act regarding what must be contained in decisions, including details of rights of appeal. While the applicant sought records dating from 2012, QQI's purported decision provided only a table containing details of eight complaints dating between October 2017 and May 2020. QQI did not identify any records that are covered by the request and make a decision on them under the provisions of the FOI Act, or otherwise explain why records do not exist or cannot be found. The purported internal review decision referred to data privacy concerns arising from the release of one record but did not claim any exemptions provided for under the FOI Act, such as section 37 (personal information). I would like to bring QQI's attention to manuals, guidance notes and sample letters templates, provided by the Central Policy Unit (CPU) of DPER, which is available atwww.foi.gov.ie.
Other issues concerning the request and its scope
As set out above, at one point the applicant suggested that he would not need redacted complaints if he got a summarised table, but later said that he understood from a conversation with the CPU that he should have asked for records containing the information he was seeking.
Generally speaking, while the purpose of the FOI 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, 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 records containing the information sought.
It should be noted that the FOI Act does not generally require public bodies to create records if none exist. However, under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, if the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
This Office was not a party to the conversation between the applicant and the CPU but as set out above generally, section 17(4) provides for the extraction of records or existing information held on electronic devices. It has not been possible for this Office to establish how QQI produced the tables in its decisions. However, and notwithstanding that the request sought access to records, it should be noted that QQI is not required to create tables by reference to hard-copy records.
Finally, and for the benefit of all parties, a request's scope may be clarified or narrowed, but cannot be widened or have excluded parts later reinstated. Instead, fresh requests must be made. Furthermore, the FOI Act does not provide for holding parts of a request in abeyance depending on the outcome of other parts of that request.
Analysis and Findings
Section 15(1)(a) -“ searches for records/whether records exist
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records.
Invitation to QQI for submissions
The Investigator invited QQI to make a submission detailing its searches for records covered by the request and, if relevant, explaining why no further relevant records exist or are held by it. She set out various issues that she considered to arise from her review of the matter and the applicant's correspondence.
In summary, the Investigator noted that QQI had not considered any records comprising outcomes of any complaints, even though these were covered by the request. She said that it was not clear how QQI deals with "concerns" or what records are created and retained of such matters, or what records are created and retained in relation to complaints that QQI either deals with or instead refers to the relevant provider. The Investigator noted QQI's comment that complainants about public bodies/providers have an option to complain to the Ombudsman. She said that this did not clarify whether QQI deals with complaints about such entities and if so, what records are created. She noted that QQI had told the applicant (outside of the decision making process) that it disposes of records when two years old. She said that this does not address whether QQI might retain summary or other information on databases or elsewhere for a longer period of time such that it might be able to provide details from 2012 onwards e.g. further to section 17(4) of the FOI Act.
In addition, the Investigator said that the content of the record that was emailed by QQI to the applicant on 5 November 2021 did not correspond with its description in the email concerned. She also asked for details regarding QQI's searches for an additional record which it had told this Office it could not provide (or look for) due to Covid-19 restrictions. She noted, in the event that QQI staff had not attended its offices to search for missing records, that QQI might hold further records covered by the request on files that have not been examined.
The Investigator concluded by saying that, at a minimum, QQI's submission should comment on the above matters, outline how it stores and searched for hard-copy and electronic records relevant to the request, and confirm whether staff working from home had been asked if they held relevant records.
QQI's submission
In relation to the Investigator's query about its treatment of "concerns", QQI says that when its quality assurance unit receives a substantive complaint about a provider, it creates a record on a database and a linked network folder. It says that all communications are stored in the folder and the complaint "logged against" the provider. It says that "[t]he life cycle of the complaint is recorded in the database." In response to the query about its treatment of complaints received, QQI says that "[i]n most cases, the learner would be referred to the provider as that is the locus at which these issues are best dealt. Such complaints are generally received through QQI's CRM system and that record will be retained. Where the complaint persists and intervention by QQI is required, a record of complaint in the database is made." QQI says that it accepts complaints about public bodies and handles them also as set out above.
QQI does not explain why it provided the applicant with information at the outset, rather than dealing with his request for records. It says that details of outcomes of complaints were provided in the tables accompanying the records of complaints. It does not explain why it did not consider records of outcomes for release. It gives no details of its filing processes or searches conducted. It says only that access to its offices is still restricted, which caused delays, and that several people were and are involved in the process. It does not comment on the possible retention of summary or other information on databases or elsewhere for more than two years, or the possible production of details from 2012 onwards e.g. further to section 17(4) of the FOI Act. It does not describe how it compiled the tables provided to the applicant.
In relation to the query about the content of the record provided on 5 November, QQI says that it understands the record concerned to be the correct one. Regarding the record that it was unable to provide to this Office, it explains that the relevant record owner could not come to the office, and that the record could not be located because keys to cabinets could not be located. It says that the matter has since been resolved. It does not comment on the possibility of other files holding relevant records.
The Investigator asked QQI to clarify various matters arising from its submission, including details of the sorts of complaints it deals with, the kinds of records it holds regarding these matters, and the length of time that relevant electronic and paper records are retained. She said that QQI had not properly answered her query about the record provided to the applicant on 5 November. She highlighted various discrepancies arising from the content of the relevant record and the table, which she said suggested either that QQI's tables omit a relevant complaint or that the records released to date omit a complaint referred to in its tables. She asked for the record that QQI had initially said it had been unable to provide to this Office but apparently had subsequently found.
QQI responds that the relevant manager "would have dealt with some concerns" in his role but that those roles "changed" over the course of time. It says that there have been many changes in QQI personnel, but, while the manager could not have knowledge of all complaints/concerns, this does not mean that anything was held back in its response. It says that, as far as searches were concerned, "all documented concerns were covered by [its submission to this Office]." It says that details of its procedure on complaints is clearly stated on its website and it provided certain details regarding its functions. It did not provide the requested record or comment on the queries concerning the record provided to the applicant on 5 November.
Analysis
The provision of summary details in table form does not amount to the grant of a request seeking access to records, other than where section 17(4) of the FOI Act is relevant. Whether the requested records may be exempt under the FOI Act is another matter.
QQI has granted access to some records of complaints, and I note its position that nothing was held back in its response to the applicant. However, this gives me no basis on which I can be satisfied that section 15(1)(a) applies. Although it was invited to provide a detailed submission, it did not do so. QQI's response does not enable me to conclude that it has carried out reasonable searches for either records of complaints or any other records covered by the request (e.g. records comprising the outcomes of complaints, etc.), and/or that further records do not exist.
Furthermore, I am unable to make any assessment of the relevance of section 17(4), in the absence of any details about QQI's retention of information on its databases and electronic systems, and about how it can search such information. In addition, QQI does not explain how it compiled the tables provided to the applicant.
I considered issuing a notice to the head of QQI under section 45 of the FOI Act, requiring the body to provide this Office with all information relevant to my consideration of the above matters. However, for a number of reasons, I have decided that it is not in the interests of any party to further prolong the review by doing so.
Issues still seem to arise as to exactly what records the applicant is seeking, regardless of the communications between him and QQI on the matter. It should be noted that while the FOI Act does not allow FOI bodies to take account of a requester's motive for making a request, it does not preclude bodies from having discussions with a requester to establish exactly what sort of records are being sought.
On a related note, the extent to which, and how, QQI examines complaints and/or "concerns" (the requester's meaning of which may not be understood by QQI) is unclear, even though this is directly relevant to the extent of records that the body holds about such matters. Neither does it seem that QQI ever gave the applicant any details about such issues, which may have helped him clarify and focus his request.
Further issues also arise about the extent to which the applicant subsequently narrowed the scope of his request. His email to QQI of 31 August excludes records about protected disclosures. In this email, he also says that he is "only looking for complaints or concerns put into QQI that students had with their course or provider" and that these are the "only types [he] was looking for now that [he had] removed any protected disclosures."
However, the applicant's correspondence with this Office takes issue with the lack of records about protected disclosures. Furthermore, in response to correspondence sent to him by the Investigator, the applicant disputes that he narrowed, or intended to narrow, the scope of his request to complaints from students. He says that he referred to complaints from students as a figure of speech and that QQI should have confirmed the matter with him. He says that, in any event, his email of October 2020 makes it clear that he was seeking a broader range of records. He says that QQI must have understood that his request was intended to be broad, given that it subsequently appeared to consider it to cover a record concerning a complaint by one provider about another.
In light of the issues outlined above, I find that section 15(1)(a) does not apply. However, the most appropriate next step for me to take is to annul QQI's effective reliance on section 15(1)(a) and to direct QQI to make a fresh decision on the matter in accordance with the provisions of the FOI Act.
I will also say that, as a starting point, it would be in both parties' interests for QQI to give the applicant details regarding its complaints examination functions, and about the records it creates and retains accordingly. This may enable the applicant to make a clearer and/or narrower request. In this regard, the applicant should be aware that section 12(1)(b) of the FOI Act requires a requester to include sufficient particulars in a request so as to enable the record to be identified by the taking of reasonable steps. I would also draw both parties' attention to the assorted administrative grounds for the refusal of a request, as contained in section 15 of the FOI Act. It should be noted that section 15 requires FOI bodies to offer assistance to an applicant regarding the framing of a request in certain instances.
Section 37 -“ personal information
QQI was invited to make a submission in relation to its full refusal of record 10 and the record's possible exemption under section 37. It did not do so. Nonetheless, I am still obliged to consider whether the record may be exempt from release under the FOI Act.
Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual and (xiv) the views or opinions of another person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
As I understand it, QQI's position is not that record 10 does not comprise a complaint. Rather, it seems to consider that the record is not covered by the scope of the request, because of the combined effect of its view that the record comprises personal information in its entirety and the applicant's clarification of 21 October 2020 that he does not want personal information about students or staff.
Section 25(3) limits the description I can give of record 10. It consists of an email string between QQI and a complainant in relation to particular issues raised. I accept that the record in its entirety falls under both categories of what must be considered to be personal information. This is because, even if names were redacted, it is still possible to identify individuals from the content and context of the remaining details.
I find that the record is exempt under section 37(1) of the FOI Act. I will now go on to consider sections 37(2) and (5).
Section 37(2) - exceptions to section 37(1)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The applicant has not argued that any of those circumstances arise. In any event, I am satisfied that none of the circumstances arise in this case.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) of the FOI Act is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) ("the Rotunda case"). It is noted that a public interest should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inTheMinister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] (the eNet judgment). In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The applicant notes QQI's description of its responsibility for reviewing the effectiveness of quality assurance in further and higher education and training providers in Ireland. He says that it does this by administrating and evaluating complaints and concerns received in relation to the quality of providers. He believes that "this is also the public interest element" in relation to the withheld record. He says that it is "clear from [QQI's] processing and constantly changing story that it's in the public interest to know how they administer complaint and concerns they receive given their important role in higher education and its quality."
In essence, the applicant is arguing that the public interest in ensuring that QQI is open regarding, and can be held accountable for, its examination of complaints requires the release of the record at issue. However, I must have regard to the comments of the Supreme Court as noted earlier.
Granting access to record 10 would disclose the particular complaint made to QQI and certain of the steps taken by QQI in response. It therefore discloses some information about QQI's performance of its functions. However, this does not mean that there should be no protection of privacy rights of individuals. I am satisfied that placing the record in the public domain would significantly breach the rights to privacy of identifiable individuals. I should also say that I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant may not be satisfied with QQI's actions in relation to his FOI request or other matters.
Having regard to the nature of the record at issue, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary QQI's decision.
I annul QQI's effective reliance on section 15(1)(a) of the FOI Act and I direct it to make a fresh decision on this matter in accordance with the provisions of the FOI Act. I affirm QQI's refusal of record 10 on the basis that it is exempt under section 37 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 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.
Deirdre McGoldrick
Senior Investigator
