Decision
Mr Y and Cork Education and Training Board
From Office of the Information Commissioner (OIC)
Case number: OIC-148639-N6K6Y5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148639-N6K6Y5
Published on
In a request dated 2 November 2023, the applicant submitted an 11-part FOI request to CETB, as follows:
1. The total budget for and total expenditure for Music Generation Cork City (MGCC) in the year ending 31st December 2022, with a breakdown of that expenditure by Cork ETB and the other partner organisations also funding Music Generation Cork.
2. The total number of students attending lessons with MGCC on the 9th October for each year in 2019, 2020, 2021, 2022 and 2023.
3. The total number of students vacancies at MGCC on the 9th October for each year in 2019, 2020, 2021, 2022 and 2023.
4. The number of students attending lessons each week online with MGCC during Covid lockdowns in 2020 and 2021.
5. Did student numbers recover to normal after Covid lockdowns at MGCC and if so, by what date this was achieved?
6. The date on which MGCC was extended from Cork City bounds to include students in Ballincollig and Glanmire and the number of new students added from these areas.
7. The total amount in expenses incurred for promotion and advertising of MGCC in the year ending 31st December 2022, with a list of the different forms of promotion and advertising.
8. The total number of students attending lessons with Cork ETB School of Music (CETBSM) on the 9th October for each year in 2019, 2020, 2021, 2022 and 2023.
9. The total number of students vacancies at CETBSM on the 9th October for each year in 2019, 2020, 2021, 2022 and 2023.
10. The number of students attending lessons each week online at CETBSM during Covid lockdowns in 2020 and 2021.
11. Did student numbers recover to normal after Covid lockdowns at CETBSM and if so, by what date this was achieved?
CETB contacted the applicant regarding the scope of his request as it was of the view that a search and retrieval fee would apply to his request if it was not refined, and following an exchange of correspondence, the applicant refined his request on 22 December 2023 to parts 8, 9, 10 and 11 of his original FOI request.
In a decision dated 22 January 2024, CETB refused parts 8, 9 and 10 (renumbered to parts one, two and three) of the request under section 15(1)(a) on the ground that the records sought do not exist in a format that can be extracted electronically as at a particular date, and manual compilation would be required, which was not a ‘reasonable step’ as provided for in section 17(4) of the FOI Act. It refused part 11 (renumbered to part four) on the ground that it was not a valid request under the FOI Act. CETB said that it was a request for information rather than a request for a record as it sought an answer to a question. The applicant sought an internal review on 19 January 2024 when seeking internal reviews of other FOI requests he had made to CETB, and again on 29 January 2024, following which CETB affirmed its original decision. On 29 April 2024, the applicant applied to this Office for a review of CETB’s decision.
During the course of the review, this Office’s Investigating Officer provided the applicant with details of CETB’s submissions wherein it outlined its reasons for concluding that no relevant records exist, including its submissions that it could not create a record by the taking of ‘reasonable steps’ as provided for in section 17(4) of the FOI Act. The Investigating Officer invited the applicant to make submissions on the matter, which he 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 referred to above and to the submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether CETB was justified in refusing the applicant’s request under section 15(1)(a) of the FOI Act.
Before I address the substantive issues arising in this case, I wish to address a number of preliminary matters.
First, I note that the applicant indicated in his correspondence both with CETB and with this Office that the documents and information sought are required in relation to a Protected Disclosure submitted to the Comptroller and Auditor General. Section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. As such, this Office cannot have regard to the reasons given by the applicant for seeking access to the records concerned in considering whether CETB was justified in refusing the request.
Secondly, I wish to address the applicant’s assertion that CETB’s refusal to provide information he sought in relation to the Protected Disclosure made constitutes an offence under Protected Disclosure legislation and a related request that this Office make a determination on whether an aspect of CETB’s protected disclosures policy is in conflict with the purpose and intention of the FOI Act. It is important to note that the role of this Office is confined to a consideration of whether the decision made by CETB on his request is in accordance with the FOI Act. Our remit does not extend to examining the manner in which an FOI body performs its functions generally, to investigating complaints against an FOI body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, it is not a matter for this Office to consider if CETB’s refusal of his request breached Protected Disclosure legislation or if its Protected Disclosure Policy is in conflict with the FOI Act.
Thirdly, the applicant also suggested that the handling of his request by particular decision makers gave rise to a conflict of interest in light of the relevance of the information sought to the Protected Disclosure made. It is a matter for the FOI body itself to decide which of its staff members are best placed to process FOI requests. Indeed, it is often the case that FOI bodies appoint decision makers who are most familiar with the subject matter of the request as they are often best placed to make determinations on the release of relevant records. This Office has no role in considering the appropriateness or otherwise of specific decision makers having been involved in the processing of the applicant’s request.
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 his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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 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 FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
In considering whether CETB holds relevant records in this case, I have also had regard to section 17(4) of the FOI Act. That section provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps 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. If the reasonable steps result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.
The essential purpose of section 17(4) of the FOI Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. However, if the body does not hold a record containing the information sought and cannot search for and extract the information from electronically held records by taking reasonable steps, then that is the end of the matter. Where the search and extraction needed to collate or extract information requires an FOI body to go beyond reasonable steps, section 15(1)(a) can be relied upon to refuse a request i.e. that no relevant record exists having taken all reasonable steps to locate it.
As noted above, the applicant and CETB made submissions to this Office in the course of the review. While I do not propose to repeat details of those submissions in full here, I can confirm that I have had regard to them in their entirety for the purposes of this review.
CETB’s submissions
As noted above, during the course of this review, CETB made a submission to this Office. In summary, its position is that the records sought do not exist as CETB does not have a consolidated record of student attendance and/or vacancies, and the steps that would be necessary to create a consolidated record would go beyond the taking of ‘reasonable steps’ for the purposes of section 17(4) as it does not have a facility for electronic search and extraction of records.
Background
CETB said it wished to outline some background information as part of its submissions. It said that the School of Music does not have its own dedicated building, rather operating from available premises across Cork City and County in 43 venues. It said this means that teaching staff are based across the county. It said that there are approximately 60 members of teaching staff in the School of Music (it said this number varies slightly year on year due to retirement and recruitment), a Principal, Deputy Principal and two members of administration staff. CETB said that details of attendance are recorded manually by teachers in hardcopy roll books, which are maintained by each teacher throughout the academic year and handed over to the School of Music, for storage and retention, at the end of the academic year. It said that while roll books for 2019 to 2022 are held either at the School of Music office or can be retrieved from secure storage, roll books for each teacher for 2023 were, at the time of the request, in the possession of each teacher. CETB said that teachers are required, as part of their duties, to keep their roll books up to date by recording attendances on an ongoing basis.
Attendance, vacancies, and their associated records
CETB said that the applicant’s FOI request was for the total number of students attending lessons with the School of Music during the relevant years and for vacancies. It said that, however, the FOI request used the word “attending” interchangeably with the word “registered”, and CETB is of the view that these terms signify different things. It said that students may not be in attendance even when they are registered for a variety of reasons. It said that students may also have commenced attending while their registration is still being processed. CETB said that numbers of students registered were provided to the applicant in response to a separate FOI request.
In its submission, CETB stated that the School of Music, due to its unique set-up and the fact that it operates in a different manner to registered primary or post primary schools, has developed its administrative practices and arrangements at a local level.
It said that records of registration (but not attendance) for students attending individual tuition are managed through an online system called DCS. It said that this is a system which includes functionality for the payment of tuition fees. It said that records of registration (but not attendance) for students attending small group tuition are held in two ways. It said that some records are held through DCS. It said that certain small groups that have legacy arrangements operating in primary school settings are assigned an account on DCS for the payment of fees and for registration purposes, but the number of students and their details are held in the teachers’ hardcopy roll books and/or online in the teachers’ Student Schedules (i.e. teacher timetable) in certain limited instances.
CETB said that records of registration and attendance for whole class tuition groups are held in a number of ways, for legacy reasons. It said that in general the primary school where the tuition is provided is assigned an account on DCS for the payment of fees. It said that the numbers of students registered for and attending whole class tuition are recorded in hardcopy form on the teacher roll book. It said that records of registration for ensemble tuition are held in hardcopy roll books and/or the online Student Schedules only.
It said that other records of registration are held within live Student Schedule documents in Sharepoint, which is administered by the School of Music. CETB said that these documents are individual to each teacher, and maintained jointly by the School of Music administrative staff and the relevant teacher, both of whom have rights to edit the documents. It said that previously these records were held in Google Drive, but the School of Music moved to the Office 365 platform and these records are now archived, although the School of Music management retain access to them for administrative purposes.
In its submissions, CETB said that records of attendance for all types of tuition are held in hardcopy teacher roll books, which are provided to teachers for that purpose at the start of the year. It said that these records are held and maintained by the teacher throughout the academic year and returned to the principal at the end of the school year. CETB said that these records are then filed in storage boxes, and retained either at the CETB Bishopstown Campus if there is space, or in the CETB document storage archives, which are held in a secure offsite location in Cork.
CETB said that records of vacancies are not held in one central database. It said that since May 2023, records of vacancies are held in each teacher’s individual Student Schedule, and in a dedicated mailbox specifically for managing vacancies, which is administered by the School of Music administrative staff. It said that the teacher notifies vacancies to that dedicated mailbox, updates their Student Schedule, and the administrative staff update the information in their records. It said that between 2019 and May 2023, vacancy details were held in a variety of locations, including Google and MS Forms and associated spreadsheets, as well as in email mailboxes held by different members of administrative and management staff. CETB said that, for example, prior to May 2023, the procedure was that teachers were supposed to input details of all vacancies into the relevant Google/MS form, but this procedure was not always followed, or followed accurately. It said that many vacancies were notified directly to the principal by email rather than being input on the form, for example for particular music instruments identified as priority in school planning.
Regarding part three of the applicant’s FOI request, CETB said that, referring to the above submissions, records of student attendance during Covid lockdowns are held in hardcopy teacher roll books where attendance was recorded.
Compilation of records/information
In its submissions, CETB said that, following receipt of the applicant’s FOI request, it conducted an assessment of what searches might be appropriate in order to locate relevant records. It said that, as parts one and two of the FOI request sought a ‘total number’, it reviewed the records held by CETB, and considered whether it was possible to compile a ‘total number’. CETB said it reviewed the DCS records, a sample of the hardcopy teacher roll books, and a sample of the online Student Schedules. It said that following review of these records, CETB determined that new records would need to be created in order to fulfil those parts of the applicant’s FOI request.
CETB said that significant manual review and manual compilation of information held in hardcopy records would be required in order to respond to the FOI request. It said that no report was available or ordinarily used by the School of Music to collate the information held in DCS and in the online Student Schedules regarding registrations. It said that CETB considered whether the information could be extracted through export of DCS to Excel files. It said that the registration workflow is done in batches by administrative staff, and therefore students may be confirmed and placed into vacancies (and commence attending) while the actual registration process may not be fully completed on DCS. CETB said that the registration dates in DCS for this reason may not accurately reflect when a student commenced attending. It said that for accurate numbers as of 9 October for each year listed (per the applicant’s FOI request), the registration data from DCS would have to be crosschecked with the online Student Schedule and the hardcopy roll book.
CETB said that for records of student vacancies, it would have to search each Student Schedule to identify each individual vacancy and manually note it for compilation. It said that Student Schedules, depending on the teacher, may have been updated with additional worksheets or overwritten, and therefore any overwritten schedules would have to be restored through version histories. CETB said that it considered whether Excel functions could be used to identify incidences of vacancies. It said that even if a function such as ‘countif’ was used in Excel, this would only identify the total number of cells containing the word ‘vacancy’ in an individual spreadsheet. CETB said that a manual check would also be required to check the dates for which the vacancy was recorded to establish if it existed on 9 October for each year listed (per the FOI request). It said that vacancies notified to management through Google or MS Forms, or through email, would require a qualitative check to ensure that they existed on the date requested. CETB said that such vacancies would then have to be compiled manually into a report.
In its submissions, CETB said that the requirements of section 17(4) involve reasonable steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and ‘are used by the FOI body in the ordinary course’. It said that no such facility exists or is used by CETB or the School of Music in the ordinary course of its management of the school for the records in question. It said that due to the high volume of hardcopy records involved and the fact that it was not possible to extract the information from digital records without significant qualitative crosschecks with other records, CETB had concluded that section 17(4) did not apply to the applicant’s FOI request. It said that it was therefore refusing the applicant’s FOI request on the ground that no record exists.
Part four of the applicant’s FOI request
In part four of his request, the applicant asked “Did student numbers recover to normal after Covid lockdowns at CETBSM and if so, by what date this was achieved?” In its submissions to this Office, CETB said that it considers part four of the applicant’s FOI request to not be a valid request under the FOI Act. It said that this part of the FOI request sought an answer to a question, rather than access to records.
It said that it was of the view that part four of the applicant’s FOI request does not comply with section 12(1)(b) of the FOI Act, which requires that a request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. I note that section 15(1)(b) of the FOI Act allows the refusal of an FOI request where ‘the FOI request does not comply with section 12(1)(b)’.
CETB said it was not clear to it what was meant by ‘student numbers’, and that it had been unable to determine whether the request intended to refer to all students, or only particular groups of students (e.g. individual tuition), due to the School of Music catering for individual student lessons, ensemble classes, and whole class tuition. CETB said it was also not clear if the reference to ‘student numbers’ refers to registration numbers or attendance figures, which it said are very different items. It said that it considered that the applicant could have been seeking information on either of these items, due to the impact of the pandemic on music education and performance in society generally. CETB said that the use of the word ‘normal’ was also unclear, and it was not apparent to it what benchmark date should be used as ‘normal’. It said that this could be considered a date in the 2018/19 academic year, or equally a date at the start of the 2019/20 academic year prior to the commencement of the pandemic.
In its submissions, CETB said that before refusing the applicant’s FOI request, it offered to assist him in amending his request, and therefore the requirements of section 15(4)—which must be met before a request may be refused as invalid under section 15(1)(b)—had been met. CETB said that it had written to the applicant on 15 November 2023 and 28 November 2023 to offer assistance in refining the request. It said that it had advised him that some of the information he sought is not kept in the format he requested or cannot be extracted as at a particular point in time due to the reporting limitations of the systems used by CETB/the School of Music.
CETB said that even if it attempted to interpret the question as a request for records, for example as meaning ‘Did student registration numbers for all students return to pre-pandemic levels, taking figures at the end date of the 2018/19 academic year to represent ‘pre-pandemic levels’?’, it did not hold any record containing that information. It said that, in a similar manner to parts one, two and three of the applicant’s FOI request, part four of his FOI request would require a manual review of numerous records and a manual compilation of information to create a new record fulfilling this interpretation of part four of the FOI request. It said that more than one record would have to be created in order to make a comparison between the figures to then identify the answer to the question.
It said that, given the complexity of the provision of music education by the School of Music in different locations and settings, it is likely that the answer to this question would not have been a simple “yes” or “no”, but a qualitative answer providing context and information. CETB said that, given that these records are not held in a format from which they could be extracted electronically, as set out above, its view is that section 17(4) does not apply, and therefore section 15(1)(a) applies as no record exists. It said that it does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps.
In his submissions to CETB and this Office, the applicant’s main contention appears to be that, given the existence of the Student Schedules and the relevant information, as well as the fact that he was able to acquire similar information from other ETBs, CETB cannot refuse his request under section 15(1)(a) of the FOI Act. Furthermore, he said that the records requested should be provided in the public interest.
Based on the submissions above, it appears that the information required to compile the details sought in the applicant’s request may well exist in multiple records, held both in electronic and in hardcopy form. While I have considered the applicant’s argument that CETB ought to be able to extract the information from the Student Schedule records, I must consider whether such information can be extracted electronically by the taking of reasonable steps as required under section 17(4) of the FOI Act. Having regard to CETB’s submissions, I am satisfied that it cannot. Given CETB’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 details, 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 CETB. I am also satisfied that CETB 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 CETB 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 FOI Act.
The applicant does not appear to dispute the steps outlined by CETB that it said were necessary to the compilation of the information sought. Rather, his submissions appear to be, in summary, that other ETBs were able to compile similar information, and the public interest in the information justifies the processing of the request regardless of the methods required to do so. The question of whether or not the granting of a request is in the public interest is not a valid consideration in determining whether a request falls to be refused under section 15(1)(a) of the FOI Act. Either the record sought is held by the FOI body or it is not. Having regard to the submissions of both parties, and in the absence of any evidence to the contrary, I am satisfied that CETB has adequately explained why it holds no such record and why it is unable to determine the student attendance numbers and student vacancy numbers from its records and record management systems. Accordingly, I find that CETB was justified in refusing the applicant’s request under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm CETB’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act.
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