Decision
Mr. A and National Museum of Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-142529-C5V7S8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142529-C5V7S8
Published on
Whether the NMI was justified in refusing access, under section 15(1)(a) of the FOI Act, to descriptive information in respect of archaeological discoveries notified to it over a 12 month period on the ground that it did not hold a record containing the information sought and in deciding that it was not required, pursuant to section 17(4), to create a record containing the information sought.
30 May 2024
In a request dated 11 July 2023, the applicant sought access to a record of all archaeological discoveries that were notified to the National Museum over the past twelve months. He specified that the record should include the date, county location, and a “brief line description of the find and item”. In a decision dated 9 August 2023, the NMI refused the request under sections 30(1)(b) and 39(1)(b) of the FOI Act.
On 10 August 2023, the applicant sought an internal review of the NMI’s decision. He said that it seemed that no consideration was given to the possibility of providing a less detailed list. He said that “a record could easily be provided that would include a month, a description of the item, and perhaps the province in which it was found”. He said that this would “quite easily address any concerns NMI has about archaeological locations being identifiable”. In its internal review decision dated 18 September 2023, the NMI varied its original decision. It said that having had regard to the “more limited category of requested information” proposed in the applicant’s internal review request, it had decided to part-grant the request.
It said it does not maintain any electronic or manual records containing the precise information sought and that the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement (as set out in section 17(4) of the Act) in certain circumstances to extract records or existing information held on electronic devices by way of existing electronic search/extraction facilities ordinarily used by the FOI body, which, it said, did not apply in this case. It said, however, that notwithstanding this, it manually collated the requested information and it released a “Report of Discovery List”. It said the list is not a list of acquisitions and only contains information that was initially reported to it. It said the list includes the month of the report, a description, and the province location where that was reported. It indicated that sections 30(1)(b) and 39(1)(b) applied to the more detailed information originally sought.
On 22 September 2023, the applicant applied to this Office for a review of the NMI’s decision. He said the record released contained “no useful information”. He said he made it clear in his application for internal review that he would have been happy to have been provided a provincial location for each find and he said the idea that providing a description of a find linked only to a province could be used to identify that site in any way is not a reasonable expectation.
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 NMI and the applicant. I have also had regard to the contents of the record released to the applicant. I have decided to conclude this review by way of a formal, binding decision.
Upon receipt of the application for review, this Office asked the NMI to provide copies of any records that came within the scope of the applicant’s request. In response, the NMI provided a copy of the Report of Discovery List it had released to the applicant, which contains details of the month each report was made, a limited description of the report, e.g. “Report of discovery of object”, and the provincial location where the report was made. It said it does not maintain any electronic or manual records(s) containing the precise information that was sought. We subsequently contacted the applicant, who clarified that he was looking for a record containing the information sought to be created in accordance with Section 17(4) of the Act. The NMI’s position is that no record that contains the information sought exists and that it is not required to create a record pursuant to section 17(4) in this case. This is, in essence, a claim for refusing the request under section 15(1)(a) of the Act. That section provides for the refusal of a request where the record sought cannot be found or does not exist. Without prejudice to that position, the NMI argued that the more detailed information sought, namely a more detailed description of the reports than was released, would be exempt from release pursuant to sections 30(1)(b), 32(1)(c) and 39(1)(b) of the Act.
Accordingly, this review is concerned with;
(i) whether the NMI was justified in essentially refusing the request for a record containing the additional information sought by the applicant under section 15(1)(a) of the Act,
(ii) if it is determined that the NMI does not hold such a record, whether it was justified in deciding that it is not obliged, pursuant to section 17(4) of the Act, to create a record containing the additional information sought by the applicant, and
(iii) if it is found that the NMI was not justified in deciding that it was not obliged to create such a record, whether it was justified in withholding the additional information sought under sections 30(1)(b), 32(1)(c) and/or 39(1)(b) of the Act.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. It is important to note that while the purpose of the 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. Moreover, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Section 17(4) of the Act provides as follows:
Where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned—
(a) subject to paragraph (b), 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 used by the FOI body in the ordinary course, and
(b) if the reasonable steps referred to in paragraph (a) 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 NMI said that the precise information requested is not maintained in a single list or record. It said it was necessary for the NMI to manually collate the information to which access was granted in order to respond to the request. It said its Irish Antiquities Division (IAD) maintains a correspondence database which records items of correspondence on various business matters relevant to the IAD, including reports of the discovery of archaeological objects as well as a range of other matters. It said that the requested information was therefore contained in various parts of the database. It said the database contains over 19,000 correspondence files.
The NMI explained that in order to collate the requested information to which access was granted, each line of the IAD Correspondence database was examined by a staff member, and the relevant details of reported discoveries of archaeological objects were manually extracted from the database and then manually compiled into a new excel spreadsheet. It said that when a report of a discovery of an archaeological object is received by the NMI, a new file is opened in the IAD correspondence database, and the description entered is as reported by the finder to the NMI. It said, therefore, that the database contains all reports of the discovery of archaeological objects within the scope of the applicant’s request. It said, however, that the reported objects can be misdescribed by the finders, and not all of these objects may in fact be archaeological. For example, a finder might believe that they have discovered human remains but upon further inspection by an NMI archaeological curator, these remains can be faunal, and vice versa. It said it records and adds topographical information to the database in relation to reported finds as it becomes available including the townland name, county, the finders name and address, circumstances of discovery of a find and nature of the find. It said this information may only be added once the find has been investigated. It said the database will also capture any associated names (for example the finder is not always the landowner, or a neighbour may have reported the discovery on behalf of the finder).
The NMI further explained that each reported discovery is followed up by an NMI archaeological curator. It said that if the reported find is deemed archaeological then each object is acquired by the NMI, which involves taking in the archaeological object and creating a separate acquisition file for it, which contains all physical correspondence with the finder, any specialists and internal colleagues, for example. It said that at this stage, the object will also be fully (and, if necessary, correctly) described and assigned a number. It said this process of reporting and acquisition is not immediate and depends on the circumstances under which the object was found and what is required in terms of investigation and research. In an example, it said that reported discoveries may require scientific analysis to ascertain authenticity and as such, there is a time lapse between the report being made and a decision on whether it will be acquired, and a full authenticated description being assigned to the object in the acquisition file. It said that for this reason, full descriptions of each object reported to have been discovered may not be contained in the database at particular points in time, and authenticated descriptions may only be added at a later time to the separate acquisition file, if any. It said the descriptions of reported discoveries contained in the record provided to the applicant are those entered into the database by IAD staff when the relevant reports were first received.
On the matter of its position that it was not required to create a record containing the information sought under section 17(4), the NMI said no facility for electronic search or extraction of information from the database existed and/or was used by the NMI in the ordinary course. It said the reported descriptions from the database that were released were not cross referenced against the full authenticated description contained in the correlating acquisition file for each object, if any, as this was not considered to fall within the scope of the applicant’s request. It said that had it been deemed necessary, this would have required a manual cross referencing of each reported discovery recorded in the database – sometimes of multiple objects - against acquisition files for each individual object in order to establish if any items and finds as reported were subsequently acquired and then for these fully authenticated descriptions to be manually collated.
The NMI further explained that the database in question is a Microsoft Access database and that information is added to it as correspondence is received by the body. It said that the manual collation referenced involved staff reading through each database entry for the period in question and extracting the relevant entries (i.e. those relating to reports of archaeological discoveries). It said the database can be searched by the surname of the correspondent, by description (a maximum of three separate words), by date, or by file number. It said that the detail recorded on the database is limited to 150 characters and typically gives a simple description of the find reported. It said the database is the first port of call for recording reports of discovery and that the detail recorded is limited to 150 characters and typically gives a very simple description of a find reported. It said that in responding to the request, it considered using search terms in the “description”
search field such as ‘report’, ‘find’ or ‘discovery’. It said, however, that it does not use a standard method/naming convention for recording the description of reports of discoveries. As such, it said that searching for these three words would not return all reports of discoveries and so this search functionality was not considered to be in any way reliable or accurate. It provided an example of a report of a find that would not have been returned using the search terms in question.
In relation to the information that was released, the NMI said it initially carried out a free search of all records within the database, which initially comprised a list of approximately 18,700 files. It said that all correspondence files dated 2022 and 2023 were then copied into an Excel sheet, amounting to 350 lines. It said these records were then reviewed in Excel to ascertain whether or not they were relevant to the FOI request and those correspondence entries that were relevant to the request were extracted. It said this left 142 correspondence entries, and following this, the detailed descriptions of the reported
discoveries were removed. It said, in essence, that notwithstanding that it considered that section 17 (4) of the FOI did not technically apply, the NMI did, in effect, search and extract the requested information using all available and reliable electronic and manual methods available to it and created a new record in order to respond to the FOI request.
In light of the submissions received from the NMI, the Investigator notified the applicant of the potential applicability of section 17(4) and provided him with an opportunity to respond.
In his response, the applicant said that section 17(4) is quite vague about the reasonable steps that a public body should take in searching its electronic records to create a new record. He said it seems “self-evident” that the NMI believed the steps it was taking were reasonable because it would not have carried them out otherwise. He indicated that if the NMI believed that the steps to be taken would create an unreasonable burden, it was open to it to refuse the request under section 15.
The applicant added that section 17(4) refers to “search and extraction” but provides no further information. He said that it seems to him that this is exactly what the NMI did as someone looked through existing electronic files and then copied and pasted the information they found into a new spreadsheet.
The applicant suggested that the record sought exists, that the NMI created it and that this Office has seen it and holds a copy of it. He said that “if the OIC makes a negative decision”, he would be left with no option but to seek access to the record that the NMI created for the purposes of the request and that the section 17(4) argument would no longer be available.
I should say at the outset that the only subject record this Office received from the NMI was a copy of the record that was released to the applicant. We did not receive a copy of a record that contains more detailed descriptions of the reports contained in the record that was released. It does appear from the NMI’s submissions that during the course of preparing the record that was released, it may have prepared a version that contained the additional information sought. However, it is clear that if it did, that record did not exist when the FOI request was initially made. Indeed, the applicant appears to accept that no record containing the additional information sought existed when the request was made, given his clarification in the early stage of the review that he was looking for a record containing the information sought to be created in accordance with Section 17(4) of the Act.
A record can be deemed to have been created on the date of receipt of the FOI request only where it was created pursuant to section 17(4). I have no authority to direct the release of a record that did not exist at the date of a request and that was not created pursuant to the FOI body complying with its obligations under section 17(4). Accordingly, I am satisfied that the appropriate course of action is to determine whether the NMI was obliged, pursuant to section 17(4), to create a record containing the additional information sought.
The FOI Act 21014 repealed and replaced its predecessor, the FOI Acts 1997 & 2003. Under the previous Acts, a public body was entitled to refuse a request for information if granting the request could only be achieved by creating a new record. The essential purpose of section 17(4) of the current 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. Nevertheless, for the section to apply, the information sought must be contained within a number of electronically held records and the body must be in a position to search for and extract the records by taking reasonable steps, those steps being steps that involve the use of a pre-existing electronic search or extraction facility that was used ordinarily by the FOI body (my emphasis). I am satisfied that the requirement to take reasonable steps does not require an FOI body to manually identify and manipulate relevant information in order to create a record containing the information sought, such as was undertaken by the NMI in this case.
Accordingly, even if the NMI did, indeed, create a record containing the additional information sought by the applicant during the course of preparing the record it eventually released, I am satisfied that it was not required to do so pursuant to section 17(4). Accordingly, I am satisfied that any such record, if it exists, was not held by the NMI at the date of the request.
In conclusion, therefore, while the applicant’s evident frustration is understandable, I am satisfied that the NMI was justified in refusing to provide the record sought under section 15(1)(a) of the Act on the ground that the record sought did not exist at the time of the request and that it was not required to create the record sought pursuant to section 17(4).
In light of that finding, I do not deem it appropriate to proceed to consider whether the additional information sought would be exempt under the various provisions cited by the NMI. As the applicant is clearly aware, it is open to him to submit a fresh request if he considers that the NMI now holds a record that contains the information sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NMI’s decision. I find that it was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for certain additional descriptive information relating to reports of archaeological discoveries on the ground that it did not hold a record containing that information at the date of his request 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.
Stephen Rafferty, Senior Investigator