Whether TCD was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records referring or relating to controversy and/or publicity over the hanging of Pride Flags on TCD property other than those already released

22 December 2022

Background

In a request dated 29 June 2022, the applicant sought access to copies of any records, from 1 June to the date of his request, referring or relating to controversy and/or publicity over the hanging of Pride flags on TCD property. On 29 July 2022, TCD issued a decision granting access to a number of records. On 18 August 2022 the applicant sought an internal review of TCD's decision, wherein he said it was clear from the records provided by TCD that further records existed. On 6 September 2022 TCD affirmed its original decision. It made no reference to the existence of further records relating to the request. On 9 September 2022, the applicant applied to this Office for a review of TCD's decision.

During the course of the review, TCD said it held an additional record which it deemed to be outside the scope of the applicant's request. We examined the record and determined that it was within the scope of the request. TCD provided further submissions to this Office seeking to withhold the record under sections 30(1)(b) and 32(1)(a)(i) of the Act. Having examined the record, the Investigating Officer requested further submissions from TCD regarding the possible existence of additional relevant records. On 8 December 2022 TCD identified a number of additional records following further enquires "given the change in the interpretation of the scope" of the request.

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 made by the applicant and TCD to this Office. I have also had regard to the correspondence between the applicant and TCD as outlined above as well as to the content of the records deemed, by TCD, to be outside the scope of the applicant's request.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

TCD's internal review decision did not identify further records for consideration apart from those identified in its initial decision. This is, in essence, a refusal to release additional relevant records under section 15(1)(a) of the FOI Act.

Accordingly, this review is concerned solely with whether TCD was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for further records relating or referring to the controversy/publicity over the hanging of Pride Flags on TCD Property, apart from those already released.

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. Our 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 that 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.  

In its submissions to this Office, TCD stated that a number of records were released to the applicant which relate or refer to "controversy and/or publicity" over the hanging of Pride Flags on TCD property. TCD further stated that the applicant was correct that a further record existed in relation to flags but this record was deemed by TCD to be outside the scope of his request. TCD said that it presumed that the applicant was referring to the Provost's statement in her email to the College Community that "advice was issued". It confirmed that the advice was issued in relation to flags, but that this record was created prior to any publicity or controversy occurring. As a result, TCD contended that the record could not relate or refer to controversy and/or publicity, as the controversy and/or publicity was yet to occur at the time of the record's creation. TCD submitted, that had it considered the record within the scope of the applicant's request, it would have been withheld under sections 30(b) and 32(1)(b) and (c) of the Act.

TCD stated that neither the decision letter nor the internal review letter issued to the applicant contained any reference to section 15(1)(a) or a refusal of records on the grounds that records do not exist. It said that as it considered that the additional record that exists was considered outside the scope of the applicant's request there was no need to apply any exemption. TCD further stated that it had not engaged with the applicant when processing his request, as it said that due to the publicity surrounding the issue, it was in no doubt as to the issue the applicant was referring to in his request.

TCD withheld the record on the ground that, while the record does refer to advice issued in relation to flags, it was of the position that the record does not refer or relate to controversy or publicity over hanging flags. Having reviewed the record, I am satisfied that the record is both within the time period specified by the applicant and relates to the subject matter of his request. TCD was informed that the record was within the scope of the applicant's request. Upon further examination of the record provided by TCD, the Investigating Officer requested TCD provide further submissions regarding the existence of additional records relating to the applicant's request.

TCD provided submissions, which stated that further records had been discovered, which were provided to this Office. TCD stated that given the change in the interpretation of the scope of the applicant's request and following the location of further records, it requested a further re-examination of all records held by personnel named in the existing records be undertaken. TCD further stated that should any further records come to light, it would provide them to this Office.

Given TCD's acknowledgement that further potentially relevant records may well exist, I am simply not in a position to find that it was justified in refusing access to any additional relevant records. It seems to me that of the additional records located, at least some, if not all of those records, are likely to fall within the scope of the applicant's request. However, I do not consider it appropriate to simply direct the release of those records, in circumstances where TCD has argued that at least one of the records is exempt. it is not appropriate that this Office should be a first instance decision maker to determine what information, if any, might qualify for exemption. Instead, it seems to me that the most appropriate course of action to take at this stage is to annul the decision of TCD to refuse the request under section 15(1)(a) of the Act.

In conclusion, I am not satisfied that TCD has taken all reasonable steps to ascertain the whereabouts of all relevant records in this case. Accordingly, I annul TCD's decision to refuse the request under section 15(1)(a) of the Act and direct it to consider the request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.

TCD may find it useful to engage with the applicant further in the first instance before the request is considered afresh with a view to coming to an agreement on the precise nature of the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul TCD's decision to refuse access, under section 15(1)(a) of the FOI Act, to any further records relevant to the applicant's request and I direct it to conduct a fresh decision-making process on the request.

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.
 

Stephen Rafferty
Senior Investigator