Whether the NTA was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the Transport User Advisory Group on the basis that no further records exist or can be found

20 February 2024

Background

The Transport Users Advisory Group (TUAG) is an independent non-statutory user group whose main function is to provide feedback to the NTA to help the Authority make decisions.

In a request dated 11 May 2023, the applicant requested the names of the members of the TUAG, minutes of all meetings held by the TUAG, copies of all briefings provided to TUAG members. He also requested any work plan and calendar of last and future activities of TUAG, the most recent terms of reference for the TUAG and the biographies of TUAG members.

On 17 May 2023, the NTA informed the applicant that it was consulting third parties that may be affected by the release of the records at issue. In a decision dated 15 June 2023, the NTA granted the applicant's request and said that the third parties had two weeks to appeal its decision to this Office. On 30 June 2023, the NTA released the records to the applicant. On 10 July 2023, the applicant requested an internal review and noted that he did not receive the biographies of the TUAG members. On the 14 September 2023, following a request from this Office, the NTA issued its effective position wherein it stated that no further records exist other than the records it had released to the applicant. The NTA said that it had written to TUAG members in recent weeks and asked that they submit personal biographies on a voluntary basis. The NTA said that it would forward a copy of any biographies it receives to the applicant. On the 6 of October 2023, the NTA released a copy of 11 biographies to the applicant. On 6 October 2023, the applicant applied to this Office for a review of the NTA's decision.

During the course of this review, the Investigating Officer requested submissions from the NTA and subsequently provided the applicant with details of those submissions, explaining the reason why the NTA refused access to further records under section 15(1)(a) of the Act. The Investigating Officer invited the applicant to make further submissions on the matter. To date, no reply has been received.

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 NTA in support of its decision. I have also had regard to the applicant's comments in his application to this Office and to the communications between the NTA and the applicant referred to above. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the NTA was justified in refusing access to the biographies of TUAG members, under section 15(1)(a) of the FOI Act, on the basis that it did not hold these records when the applicant made his FOI request.

Preliminary Matters                                                                        

Before I address the substantive issue in this case, I wish to make a number of preliminary comments. 

In his application to this Office, the applicant expressed concerns about the lack of transparency surrounding the TUAG. It is important to note that 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. The remit of this Office is solely concerned with a review of the decision taken by the FOI body on the FOI request and the scope of the review in this case is as I have described above.

Furthermore, the applicant complained that the NTA do not appear to have a publication scheme as required under section 8 of the FOI Act. In its submissions to this Office, the NTA said it has a Publication Scheme on its website in accordance with Section 8(1) of the Act. The Publication Scheme is available athttps://www.nationaltransport.ie/further-information/freedom-of-information/publication-scheme/  The NTA said that its FOI Unit will commence a review and update of the Publication Scheme in Q1 of 2024.

Finally, while the applicant claims the NTA was incorrect in considering information about the TUAG members as their personal information, the NTA released the relevant records to the applicant. Therefore, I do not intend to consider this matter further.

Analysis and Findings

In his application to this Office, the applicant contends that biographical information of TUAG members must exist and presumes that TUAG members were appointed according to some kind of selection process in which they stated their qualifications.

Section 15(1)(a) of the FOI 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 their 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.

As noted above, the NTA provided this Office with details of the searches it said it undertook to locate relevant records and of its reasons for concluding no further records exist, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

In its submissions to this Office, the NTA said that at the time it received the applicant's request no TUAG member's biographies were held by the NTA, apart from a NTA prepared list of members that was released to the applicant in response to his FOI request (Record number 004 on the schedule accompanying its decision). The NTA said that, as a goodwill gesture, it contacted the 15 TUAG members in September 2023 and invited them on a voluntary basis to prepare a personal biography that could be shared with members of the public. The NTA said that on 6 October 2023 it provided the applicant with 11 biographies of TUAG members who had voluntarily submitted their own personal biography.

The NTA said that whilst the applicant considers that the NTA should have had biographical details prepared and available on the TUAG members, the NTA at the time of his request had elected not to prepare biographies of the members nor to seek them voluntarily from those members. Therefore, following the conclusion of the search by the decision-maker, the only biographical record it could provide to the applicant was Record 004 which it released to him.

The NTA said that its TUAG co-ordinator was appointed as the decision-maker for this request and is the subject matter expert on this matter within the NTA. It said that records concerning the TUAG are securely held in the TUAG co-ordinator's folders in a specific location on her laptop. Any records regarding the appointment of the group, were forwarded by the TUAG co-ordinator to the HR Unit where they are securely stored on the NTA's I Drive. The NTA said that its TUAG co-ordinator conducted a full search for the biography records that fell under the scope of this request in mid-May 2023. It said she also checked her Outlook account. The NTA said that there are no paper records held and therefore there were no physical locations to be searched.

The NTA said that applicants who wished to join the TUAG were invited to apply via expressions of interest. It said that personal information about TUAG members held by the NTA at the time of the request was in the form of curriculum vitae and expressions of interest emailed to the NTA. The NTA said that the FOI Act does not require it to research information from various records so as to create biographies.

While the NTA did not hold biographies of TUAG members at the time of the applicant's request, I note that it subsequently sought biographies from TUAG members and released a copy of those it received to the applicant. It is worth noting here that the NTA was not required to seek these biographies under the FOI Act, where it did not already hold such records. The FOI Act provides for a right of access to records held by FOI bodies at the time the request was made. We take the view that the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices (not relevant in this case). Thus, a review by us is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

Having regard to the submissions in this case, and in the absence of any evidence to suggest otherwise, I am satisfied that the NTA has taken all reasonable steps to locate the records at issue. Accordingly, I find that the NTA was justified in refusing the applicant's request for further relevant records, under section 15(1)(a) of the FOI Act, on the grounds that no further records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NTA's decision to refuse access, under section 15(1)(a), to further relevant records concerning the biographies of TUAG members on the basis that no further 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.

Richard Crowley
Investigator