Decision
Mr B and Enterprise Ireland ("EI")
From Office of the Information Commissioner (OIC)
Case number: 140064
Published on
From Office of the Information Commissioner (OIC)
Case number: 140064
Published on
Whether EI was justified, under section 10(1)(a) of the FOI Act, in refusing the applicant's request for access to records in relation to him and his participation in the EI New Frontiers Programme ("the Programme") on the grounds that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
9 July 2014
The applicant made an FOI request to EI on 23 January 2014 seeking all records held by a number of named EI staff regarding him and his participation in the EI New Frontiers Programme, and any other records related to him held by EI. He also requested a breakdown of expenditure for the Programme for 2013 and 2014.
On 14 February 2014 EI released a number of records in response to his request. Some records were withheld on the basis of various exemptions in the FOI Act. I note that this was not disputed by the applicant. He sought an internal review of EI's decision on 17 February 2014. EI upheld its original decision on internal review on 10 March 2014 and also released a number of other records which had been located in the course of the internal review (some of which fell outside the scope of the original request).
The applicant applied to this Office on 17 March 2014 for a review of EI's decision. I note that the applicant has engaged with Ms Sandra Murdiff, Investigating Officer in this Office in order to clarify the scope of his application to this Office and accordingly this review is solely concerned with EI's decision to refuse access to records under section 10(1)(a) of the FOI Act.
I note that Ms Murdiff contacted the applicant by email on 6 June 2014 and explained that, while EI did not refer to a specific section of the Act in its decisions, in her view, its refusal to grant access to the records in question was justified pursuant to section 10(1)(a) of the FOI Act. I note that Ms Murdiff invited the applicant to make further comments if he disagreed with her views but he did not do so. Accordingly, I have decided to conclude this review by way of a formal binding decision.
In conducting this review I have had regard to EI's decisions on the matter and its communications with this Office; the applicant's communications with this Office and EI; and the provisions of the FOI Act.
The scope of this review is solely concerned with whether or not EI was justified, under section 10(1)(a) of the FOI Act, in deciding to refuse the applicant's request for access to additional records relating to his participation on the New Frontiers Programme on the ground that they cannot be located or do not exist.
It is important to note that the applicant's request is in relation to records held by EI in regard to him, and the Commissioner's review is concerned only with the matter of access to these records. The Commissioner's remit does not extend to examining the actions of a public body in dealing with matters raised in the records in question or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act.
EI's position is that it has released all of the records it holds in relation to the applicant's FOI request and that no further records can be located. Accordingly, section 10(1)(a) of the FOI Act is relevant, which provides that a request for access to a record may be refused if the record concerned "does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".
The Commissioner's role in cases such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).
In submissions made to this Office, EI has provided details of its records management policy and procedures and the steps taken to locate the records in question. In this case these searches included searches of electronic files, email accounts and manual files. It contends that as the Programme is live and ongoing all of the files are in readily identifiable and accessible locations. In relation to 5- and 6-month reviews requested by the applicant, EI has informed this Office that they were not completed at the time of the request, but has undertaken to release them to him as soon as they are available. EI has stated that a large amount of human resources have been made available to facilitate repeated searches and preparation of documents and related material in relation to the applicant's requests. I note from the schedule of records supplied by EI that 97 records were identified and released or part-released in response to the original FOI request and that a small number of further records were released at internal review stage. While the applicant contends that records exist which have not been released to him, he has provided no supporting evidence to suggest that other relevant records should, indeed, exist. Having considered the submissions of both parties and the measures taken to locate the records, I am satisfied that EI has taken all reasonable steps to locate any further records and I am satisfied that its decision was correctly made in accordance with section 10(1)(a) of the FOI Act. I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of EI in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator