Decision
Dr X and University College Cork
From Office of the Information Commissioner (OIC)
Case number: OIC-148637-F7B1H5
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Dr X and University College Cork [2024] IEIC 148637 (18 October 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/148637.html
Cite as: [2024] IEIC 148637
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Whether UCC was justified, under section 15(1)(a) of the FOI Act, in refusing access to certain statistical information about a promotion process to Senior Lecturer, on the grounds that it does not hold a record containing the information sought and on the basis that it is not required to create the record pursuant to section 17(4) of the Act
18 October 2024
In a request dated 30 August 2023, the applicant requested information in relation to a specific promotion competition to Senior Lecturer. Specifically, the applicant requested overview statistics for both successful and unsuccessful candidates by:
1. College
2. School
3. Department
4. Gender
5. Age/Age Category
6. Years of appointment to current post
In a decision dated 26 September 2023, UCC part-granted the applicant's request and provided her with statistical information in relation to parts 1 and 4 of her request. UCC refused parts 2 and 3 of the request under section 37(1) of the FOI Act on the basis that individuals may be identifiable if such information was disclosed. UCC refused parts 5 and 6 of the applicant's request under section 15(1)(a) of the FOI Act. In regard to part 5, UCC said that the documentation submitted by applicants for promotion did not include a field regarding age. It said that this is not relevant to the processing of applications or preparation of statistics about the competition. In addition, UCC noted that the FOI Act does not generally require that a new record be created solely in response to a request, except where reasonable steps using an ordinary search facility may be used to extract information from records or systems. It said that this does not apply in this case. With regard to part 6 of the applicant's request, UCC said "all candidates are confirmed to have the minimum service as set out in the relevant Regulation, whether or not the eligibility requirement is met, rather than the 'year of appointment to current post', is captured. The record sought does not exist, nor is it practical to create a new record using reasonable steps".
On 20 October 2023, the applicant requested an internal review of UCC's decision in respect of part 6 of her request for 'Years of appointment to current post' for both successful and unsuccessful candidates. The applicant said that the refusal of this information on the basis that it does not exist is invalid, as all applicants were asked to provide this information on the application form for the Senior Lecturer role.
On 24 November 2023, UCC affirmed its original decision. It said that data on year of appointment to current post was captured solely to confirm applicants met the relevant eligibility requirement for the promotion cycle. It said that this data was not needed or used for any other purpose. It said there was no valid reason to create a record based on this data, other than in the context of the FOI request. UCC said that extracting such data now would mean the creation of a new record solely for the purpose of responding to this part of the FOI request. UCC said it has no facility to extract data on year of appointment to current post from application forms by standard electronic means and that such information could only be extracted by a manual process involving examination of all 148 individual applications. UCC said it was satisfied that the creation of a new record based on application form data could not be achieved through the reasonable steps envisaged under section 17(4) of the FOI Act.
On 30 April 2024, the applicant applied to this Office for a review of UCC's decision. The applicant said all candidates for the Senior Lecturer role were required to provide the year they were appointed to their current post on the application form and that the applications were submitted electronically. The applicant noted she had been provided with similar information on the gender of the candidates. She noted that UCC was able to extract information on gender for all 148 individual applications, even though gender information was not requested in the application form. The applicant said it is unclear why the "Year of appointment to current post" data (which was requested and submitted electronically by the 148 applicants) cannot be extracted and further broken down into successful and unsuccessful candidates anonymously.
During the course of this review, this Office's Investigating Officer provided the applicant with details of the submissions made by UCC about its record management practices relating to the information sought and why it concluded that the information sought by the applicant about "Years of appointment to current post" cannot be extracted electronically. The applicant was invited to make submissions in the matter, which she duly did.
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 correspondence outlined above and to the submissions made by UCC and the applicant. I have decided to conclude this review by way of a formal, binding decision.
During the course of this review, the applicant raised questions in her submissions about age statistics sought in part 5 of her request which didn't form part of her request for internal review or application to this Office.
While the applicant's request was originally for six different categories of statistical information, her subsequent request for an internal review of UCC's decision, and her application to this Office, solely concern part 6 of her original request, i.e. the 'Years of appointment to current post'. Accordingly, this review is concerned solely with whether UCC was justified in its decision to refuse access, under section 15(1)(a) of the Act, to the statistical information sought in part 6 of her request, on the grounds that it does not hold a record containing the information sought and on the basis that it is not required to create the record pursuant to section 17(4) of the Act.
In her submissions to this Office the applicant referred to UCC's obligations under relevant equality legislation and under the Public Sector Equality and Human Rights Duty. The applicant said it would be proactive for public bodies such as a higher education institution in receipt of public funding (in this case UCC) to provide age and other related information (that underpin discriminatory grounds) in their recruitment reports. It is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour or release of the information where the Act requires a consideration of the public interest (not relevant in this case). Furthermore, it is important to note that this Office has no remit to adjudicate on how FOI bodies perform their functions generally, or to investigate complaints or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
In its submissions to this Office, UCC noted that at the time of the original request, the applicant was invited to engage with its HR department regarding her request and any concerns she had regarding the promotion process, with a view to explaining the information available and to addressing any concerns. UCC said it remains willing to engage with the applicant with a view to providing her with information and assistance which may be of use to her, outside of the scope of an FOI process.
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. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
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.
It is also important to note that, with one exception, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. 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.
In its submissions to this Office, UCC provided details about its HR information system, HRIS, and its related employee interface, ESS (Employee Self Service). It said that ESS may be used by staff to apply for promotion and job competitions and is also used by employees for keeping their personal information up to date. UCC also provided details of the application process for promotion and why the information on the 'year of appointment to current post' of the candidates for the Senior Lecturer role could not be reasonably extracted and provided to the applicant.
UCC said the application form for the competition is completed by candidates in Microsoft Word and is then saved and uploaded in PDF format to ESS as part of the process of submitting an application. UCC said that it is not an active form with fields set up to enable reporting. Rather, all of the information added to this form by an applicant is 'free text'. 'Year of appointment to current post' is captured to provide a reference point for length of time in post, to facilitate verification of eligibility through reporting from HR systems. For example, where an applicant had entered a commencement date of 2022, HR would prioritise checking to verify their eligibility, as while at first glance it may appear they do not meet the three-year requirement for eligibility to apply, on examination they may be deemed eligible based on their contractual history. As a further example, an approved secondment would be acceptable to make up the three-year service requirement. In addition, service from other institutions may also be relevant to establishing continuous eligible employment at the appropriate level. UCC said that while the form is uploaded in PDF format, it is not readable for data extraction purposes. It said its HR department does not use any PDF reading tools in the processing of applications, and is not aware of such tools used with the ESS system.
UCC said that to extract information contained in applications (such as 'year of appointment to current post'), each individual form would need to be opened in turn, and the information copied or noted by a HR staff member and added to a separate document, e.g. a spreadsheet. It said an additional step would also need to be carried out to verify the data for such reporting, involving the manual checking of each individual applicant's HR file to check the accuracy of the 'Year of appointment to Current Post'. This is because some staff can hold a number of postings at the same time, or may be on an eligible secondment (thereby leaving and returning to the post). While the application forms and any new spreadsheet used to collect information taken from them would be electronic records, UCC consider such a process to be essentially manual. UCC said it does not consider such a process as involving the use of a facility for electronic search and extraction in ordinary use in the university. UCC said the search and extraction involved in such a process would be carried out by a staff member or members, not by use of any electronic search and retrieval facility. UCC said it does not therefore view the requirement to create a new record set out in section 17(4) of the FOI Act as applying in this case.
UCC stated that work on preparing a new record containing the requested information on the 'year of appointment to current post' for the 148 applications for the Senior Lecturer role would take an estimated 30-50 hours' manual work by HR staff, which is deemed to be an unreasonable workload. The applicant said that she was seeking records relating to the 'year of appointment to current post' for "full applications", which she stated were 112 applications, not 148. UCC responded to this point by saying that there were 148 applications in total and 112 were shortlisted for stage 2 of the process. It stated that even if UCC only considered the 112 stage 2 applications, this would require an estimated 24-40 hours' manual work. UCC said this would be excessive and would still require a non-electronic collation of information, and so it stated that section 17(4) does not apply to this part of the applicant's request. it said, the requested information, while held electronically, cannot be reasonably extracted.
After being updated on UCC's position as to why a record of statistics on the 'year of appointment to current post' do not exist, the applicant reverted to this Office with submissions. She said that she was interested in how UCC prevented age-based discrimination in the promotion process. She considered the 'year of appointment to current post' to be a proxy for age. The applicant questioned why UCC could provide statistical information on the gender of candidates for the Senior Lecturer role, but could not provide the same for 'year of appointment to current post'. She stated that gender information was able to be anonymously extracted, and so it was unclear why the same could not be done for the candidates' 'year of appointment to current post'.
When this was put to UCC, it responded by stating that the candidates' 'year of appointment to current post' could not be reasonably extracted and provided. It stated that many different dates are recorded on employee records on UCC's HR Information System (HRIS) as well as the ESS, including staff members' Original Start Date, Latest Date Joined, Appointment Date, and Contract Dates. Any such dates recorded are not generally referred to as part of the promotions process. UCC said there is no link between these dates (stored within HRIS) and the Recruitment module (within ESS).
The Investigating Officer asked UCC how it cross-checks the 'yes/no' eligibility answers for the minimum number of years in their current post that candidates input for accuracy. UCC responded by saying that where a candidate's answer to the eligibility question on the application form needs to be cross-checked, this is done manually by relevant HR staff in the first instance by checking their response to the 'year of appointment to current post' question within the application form, and, subsequently, if required, going into HRIS and checking the information captured there. UCC stated that candidates may be deemed eligible based on a number of factors, including length of service in present post, having valid service in another institution, or having valid service on secondment elsewhere.
UCC said that a manual process would have to be undertaken to pull the data for the specific applicants to a promotions process into a report, i.e., the names/staff numbers of applicants would have to be gathered, then the data held on HRIS for each checked to locate the relevant date or dates, which may then be added manually to the spreadsheet. It stated to provide the requested breakdown of successful and unsuccessful candidates by 'year of appointment to current post' would involve further analysis and processing of the data, including the anonymisation of the information. Regardless of this, UCC said that the question of further processing of information extracted in line with section 17(4) does not arise in this case, as the information can only be extracted by a manual process.
UCC added that no new records were created or released in response to the other parts of the applicant's original request. The overview and summary statistics and breakdowns provided, including those on gender, were drawn from statistics produced for the attention of UCC's University Leadership Team, Academic Council, and Governing Body, as part of standard reporting on conclusion of a promotions cycle round.
UCC stated, when a staff member is checking their eligibility for applying for promotion by answering the question on the minimum number of years in their current role, the specific year in which they were appointed is not given. Therefore, the 'year of appointment to current post' does not exist on the UCC ESS system. UCC said that in the Recruitment Report generated after an internal promotion process, the following information is captured from the ESS: 'Recruitment ID', 'Applicant Number', 'Applicant Forename', 'Applicant Surname', 'Applicant Email address', 'Person Reference', and 'Applicant Gender'. UCC stated that this information is not taken from the PDF application forms. 'Year of appointment to current post' is not captured in this report. UCC provided this Office with a copy of a spreadsheet showing the template of this report to support this explanation. It is important to note that it is not the role of this Office to determine what records should exist or to adjudicate on how FOI bodies perform their functions generally. Our role is confined to reviewing the decision taken by the public body on the applicant's FOI request. Therefore, whether or not UCC should have included the 'year of appointment to current post' in its Recruitment Report, or collected such statistics for other purposes, is not within the scope of this review.
Based on the submissions above, it appears that the information required to compile the statistics sought in part 6 of the applicant's request does exist in multiple electronically-held records. While I have considered the applicant's argument that UCC ought to be able to extract statistics for 'Year of appointment to current post', I must consider whether such information can be extracted electronically by the taking of reasonable steps as required under section 17(4) of the Act. In my view it cannot.
Given UCC's submissions concerning its record management practices in relation to the records at issue in this case and the work required to compile the relevant statistics, I am satisfied that the information is contained in records in a format that does not facilitate the use of an electronic search or extraction facility that was used ordinarily by UCC. I am also satisfied that UCC is not required to create a record in circumstances where the information sought would need to be extracted manually from the records it holds. Accordingly, I am satisfied in this case that UCC does not hold a record containing the information sought by the applicant and that it was not required to create a record containing the information pursuant to section 17(4) of the Act.
In conclusion, therefore, I am satisfied that UCC was justified in refusing the record sought under section 15(1)(a) of the Act on the grounds that the record sought does not exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCC's decision. I find that UCC was justified in refusing part 6 of the applicant's request under section 15(1)(a) of the Act on the ground that it does not hold a record containing the information sought and that it was not required, pursuant to section 17(4), to create a record containing that information.
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