Decision
Ms X and Department of Education
From Office of the Information Commissioner (OIC)
Case number: OIC-137270-Q5J9D7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-137270-Q5J9D7
Published on
Whether the Department was justified, under section 15(1)(a), in refusing access to records relating to school transport grants in specific instances where transportation is unavailable
3 August 2023
In a request dated 16 December 2022, the applicant made a request for access to information concerning grants for families driving their children to school at times when there have been issues with bus transport services. Specifically, the applicant sought the following information:
On 18 January 2023, the Department refused the applicant’s request under section 15(1)(a) of the FOI Act. It stated that its School Transport Section does not separate such payments from the rest of the grant payments that are made to families each year, and for this reason it would not be possible to provide the information sought. It directed the applicant to its website where information on grants is available.
On 7 February 2023, the applicant requested an internal review of the Department’s decision. On 5 April 2023, the Department affirmed its original decision. I note that it referred to the original refusal as having been made under section 15(1)(g) of the FOI Act, although this appears to have been a clerical error. On 11 April 2023, the applicant applied to this Office for a review of the Department’s decision.
During the course of this review, the Investigating Officer provided the applicant with details of the Department’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no record existed. The Investigating Officer invited the applicant to make further submissions on 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 submissions made by the Department in support of its decision. I have also had regards to the applicant’s comments. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing the applicant’s request under section 15(1)(a) of the FOI Act.
During the course of the review, the applicant expressed concerns about how the Department had handled her transport grant application among other things. It is important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. Our role is confined only to reviewing the decision taken on the applicant’s FOI request.
It is also 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 of release of the information where the FOI Act requires a consideration of public interest (not applicable in this case).
For the benefit of the applicant, 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 public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. It seems clear in this case that this was the approach taken by the Department.
While this is not part of this review, and I make no findings on the matter, the applicant has informed this Office that she contacted the Department through the link provided by it in its submissions to this Office, but has had no reply. I would expect, the Department to follow up, with the applicant in a timely matter, if it has not already done so.
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 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 Department provided this Office with details of the searches it said it undertook to locate relevant records. Its position is that it does not hold records relating to the applicant’s request. As also noted above, the Investigating Officer provided the applicant with an outline of the Department’s submissions. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.
By way of background, the Department stated that a parent or guardian may avail of a Special Transport Grant (STG) for a child with special educational needs. It said that a school transport application under the scheme must have been made before a STG can be considered. It also said that where the provision of a reasonable level of transport service is not possible, an STG towards the cost of private transport arrangements may be provided by the Department. Among other things, the Department stated that If a child is sanctioned on a service, but the parent has to drive the child to school until the service commences, they are entitled to the STG for this period. This is usually triggered by the parent contacting the office by phone/email to explain they have no service. I note that further information relating to the STG is available at https://www.gov.ie/en/service/07a71-school-transport/#special-transport-grant . My understanding is that the STG scheme covers a number of different scenarios that attract the payment of a grant.
In relation to parts 1 and 2 of the applicant’s request, the Department stated that information concerning the payments in question is contained in a spreadsheet used by its school transport section to calculate STG payments to each family annually. It said that all payments relating to the STG are paid based on data input onto an Excel spreadsheet, where a formula calculates the payment to be issued to each parent/guardian. It stated that the spreadsheet concerned contains details of every STG payment for the relevant year, identified by the parents’ details, supplier numbers as provided by the Finance Unit, the number of days to be paid and a brief note on the type of payment in question. The Department stated that the brief note is “free text”, entered by a staff member upon receipt of each payment request. The Department provided an extract of the categories of payment contained in its spreadsheet for 2023. In the extract provided, the STG payments are mainly categorised by time period. It stated that there are “hundreds of grants issued each year”, that it was not possible to filter the based on the free text field, or on any other criteria, in order to extract specific payments relating to grants paid due to issues with bus transport.
Essentially, the Department’s position is that it does not collect or record data relating to people who had applied for grants in the circumstances described by the applicant. It stated that it would be necessary to create a new record to respond to the applicant’s request, based on the examination of more than 1,000 hardcopy applications forms containing “sensitive information”.
In relation to part 3 of the applicant’s request, the Department provided a link to the relevant part of its website: https://www.gov.ie/en/service/07a71-school-transport/?referrer=http://www.gov.ie/schooltransport/#special-transport-grant , which has been provided to the applicant.
During the course of this review, the applicant indicated that she did not accept the Department’s position, as outlined above. In her response, she also indicated that she was not satisfied with the Department’s lack of response to her concerning the STG and related matters. However, as noted above, this Office does not examine the administrative actions of FOI bodies. Furthermore, while I can understand that the applicant is frustrated, she has not made any substantive arguments to satisfy me that further searches are required in this case.
Section 17(4)
It is important to note that, with one exception, the FOI Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the FOI 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. However, section 17(4) does not require an FOI body to extract and collate information from hardcopy records in order to respond to a request. As set out above, the Department stated that it would need to examine hardcopy applications in order to identify payments relating to the particular scenario described by the applicant.
Having considered the Department’s submissions, I am satisfied that it would not be possible to extract the information sought by the applicant in parts 1 and 2 of her request by using a facility for electronic search or extraction that is used by it in the ordinary course. Accordingly, I am satisfied that section 17(4) is not relevant in this case. I am also satisfied that the Department has provided a link as to where information relating to the third part of her request can be located.
The question I must consider is whether the Department has taken all reasonable steps to locate relevant records in this case. Having regard to the Department’s explanation as to how STG applications are processed and the details provided on how the information is stored, I am satisfied that it has. Accordingly, I find that the Department was justified in refusing the applicant’s request for access to records under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the applicant’s request for information relating to school transport grants for families in specific instances where bus transportation was unavailable., 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.
Sandra Murdiff, Investigator