Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to staff involved in the Junior Cycle for Teachers (JCT) programme claiming expenses for working from home

8 May 2023

Background

In a request dated 14 November 2022, the applicant sought access to records containing (1) a list of all personal expenses (travel, subsistence, accommodation etc) claimed from 2017 to date by staff of the Junior Cycle for Teachers (JCT) programme, and (2) the number of staff availing of set expenses for working from home, if any, and the figure paid out to them each year from 2017 to date. In a decision dated 12 December 2022, the Department refused access to the records relating to the first part of the request under section 37 of the FOI Act, saying that the records contained personal information of staff members and that it did not consider the public interest in releasing these records to outweigh the right to privacy of the individuals involved. It also refused the second part of the request under section 15(1)(a) on the basis that it did not hold relevant records. It said that while the Department manages the overall budget for the JCT programme, the management of individual expenses of working from home is a matter for the individual teacher education support services and host Education Centre, and that the information sought was not readily available to the Department. The applicant sought an internal review of this decision on 13 December 2022. The Department affirmed its decision on 11 January 2023. On 18 January 2023, the applicant applied to this Office for a review of the Department-�s decision.

In the course of the review, the Department partially released records relating to the first part of the applicant-�s 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 Department and to the comments made by the applicant in her application for review and in subsequent communications with this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

Following the partial release of records relating to the first part of the FOI request, the applicant confirmed to this Office that she was satisfied that this part of the request had been dealt with.

The scope of this review is therefore confined to the question of whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing the second part of the request, i.e. records relating to JCT staff availing of expenses for working from home.

Analysis and Findings

Section 15(1)(a)

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 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.

In its submissions to this Office, the Department said that it promotes the quality of teaching and learning through the provision of continuing professional development (CPD) and supports for teachers and principals. It said that it ensures that a range of high-quality models of CPD are provided to teachers and school leaders through its support services, which includes Junior Cycle for Teachers (JCT) programme, the national network of Education Centres and appropriate groups, bodies and institutions who are empowered to design, develop and deliver CPD programmes.

The Department said that further to enquiries made with the JCT, the Home Office Allowance is paid on a monthly basis to relevant staff at a rate of €69.38 per month, and that these payments were included in the travel and subsistence (T&S) figures provided to the applicant in records released under part 1 of her FOI request. It said, however, that the Home Office Allowance was not broken down separately under the T&S figures. Furthermore, the Department provided details of both physical and electronic searches undertaken within the Teacher Education Section of the Department.

In a previous decision by this Office,case OIC-97611, it was accepted by the Department of Education that another CPD support service, the PDST (Professional Development Service for Teachers), was a service provider under its control for the purposes of the FOI Act. Section 11(9) of the FOI Act provides that a record in the possession of a service provider that relates to the provision of the service is deemed to be held by the FOI body for the purposes of the FOI Act. Given that the JCT programme appeared to be a similar support service to the PDST, I referred to this case in my request to the Department for submissions and asked that it be considered.

The Department said that its staff who processed the applicant-�s FOI request were not familiar with case OIC-979611, and thus did not request that the JCT search for records relating to the request. In further correspondence, it confirmed that it accepted that JCT records are records held by the Department for the purposes of the FOI Act and that it would, if required, contact the JCT and request that it search for relevant records.

In these circumstances, I cannot find that the Department took all reasonable steps to search for relevant records, as required by section 15(1)(a). It seems to me that that the most appropriate course of action is to remit the matter back to the Department to be processed afresh, this time including appropriate searches being carried out of records held by JCT. Should the applicant be unhappy with the Department-�s fresh decision on the request, the usual rights of internal review and application for review by this Office will apply. I urge the Department to ensure that all of its FOI decision-makers are familiar with the case referenced above to avoid this scenario arising again in future FOI requests.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-�s decision to refuse access, under section 15(1)(a), to records relevant to the second part of the request. I direct the Department to consider the request afresh.

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.

Emer Butler
Investigator