Decision
Mr. X & Trinity College Dublin (TCD)
From Office of the Information Commissioner (OIC)
Case number: OIC-157178-L0R1N6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157178-L0R1N6
Published on
Whether TCD was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to animal testing on the grounds that TCD does not hold the information sought
4 November 2025
This case has its background in a previous decision by this Office (case reference OIC-133377-Z7H9J0) in which the matter was remitted back to TCD to consider the applicant’s request afresh.
On 24 August 2022, the applicant submitted a five-part FOI request to TCD for the following information:
“In follow-up to TCD/1351/FOI, about animals, please provide me with the following information:
1. Please provide a breakdown of how many animals were killed using each approved method of killing listed in Annex IV of Directive 2010/63/EU;
2. Please provide how many animals used in authorised procedures and/or as part of a breeding programme, broken down by species, were found dead in 2020 and 2021;
3. Please provide how many euthanised animals were healthy at the point of euthanasia and/or euthanised after the study period, extraneous to the requirements of the procedure and/or project;
4. Any advice that TCD’s Animal Welfare Body (AWB) provided to TCD “on rehoming schemes, including the appropriate socialisation of the animals to be rehomed” as required by SI 543 50(2)(f) European Union (Protection of Animals used for Scientific Purposes) Regulations 2012;
5. Please provide the non-technical project summaries (NTPSs) and any retrospective assessments for the 6 projects summarised in your bullet points. For the NTPS you can provide a link to their publication on the Health Product Regulatory Authority (HPRA) website.”
TCD refused parts 1 and 2 of the request under section 15(1)(a) of the FOI Act on the grounds that the requested information does not exist in the format requested as it is not a regulatory requirement to collect data in this manner. TCD refused parts 3 and 4 of the request under section 15(1)(c) of the FOI Act on the grounds that extracting the requested information would cause a substantial and unreasonable interference with or disruption of its work. TCD said it wished to rely on section 32(1)(a)(ix) and 32(1)(b) in refusing access to part five of the applicant’s request.
The applicant applied to this Office for a review of TCD’s decision (case OIC-133377). During the course of our review of case OIC-133377, the applicant said he was agreeable to omitting part five of the request from the scope of the review. On 31 May 2023, the Investigator annulled TCD’s decision and directed it to consider parts 1-4 of the applicant’s request afresh.
After the matter was remitted to TCD by this Office, TCD tried to deal with the applicant’s request outside of FOI. I understand that TCD engaged with the applicant in June and July 2023 about reprocessing his request. As part of its engagement with the applicant, TCD suggested to the applicant that he meet with those who work in the area to allow him better understand the internal processes surrounding the collection of data and the regulatory constraints under which this research is undertaken. It said this would allow more scope to move forward with this matter outside of the FOI process. In November 2023, TCD produced a plan to address the applicant’s the request. While there was some correspondence in the matter, it seems that an agreement could not be reached, and the applicant requested an internal review of the matter. The applicant subsequently applied to this Office for a review of TCD’s decision, following which, on 12 February 2025, TCD wrote to the applicant outlining its effective position on his request.
TCD refused part 1 of the applicant’s request on the basis that it does not collect the information requested in the format requested. It refused parts 2 and 3 saying the information requested does not exist in the format requested. While TCD said it does not have the specific data sought in parts 1 and 3 of the applicant’s request, it provided him with data about the number of animals euthanised that it had available. In regard to part 4 of the applicant’s request, it said to date, re-homing schemes have not been deemed appropriate and by law, the College cannot allow animals specifically bred for research to be released outside of its premises. It said genetically modified lines, the exposure to viruses for research purposes, and their short natural lifespan mean that the animals are not suitable for re-homing. It refused access to rehoming advice under section 15(1)(c) of the Act as it claimed that extracting the information requested would cause an administrative burden to the relevant unit. On 5 March 2025, the applicant applied to this Office for a review of TCD’s decision.
During the course of this review, TCD provided submissions to this Office about why it does not hold the information sought, details of which were provided to the applicant. The applicant was invited to make submissions of his own, 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 outlined above and to the submissions made by TCD and the applicant. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether or not TCD was justified in its decision to refuse to grant access to the information sought in parts 1-4 of the applicant’s request under sections 15(1)(a) and/or 15(1)(c) of the Act.
As noted above, this review follows on from a previous decision by this Office to remit the applicant’s request back to TCD to process afresh. In its decisions and its submissions to this Office during the course of both reviews, TCD has relied upon both section 15(1)(a) (that the records do not exist) and section 15(1)(c) (that the request is too voluminous to process) at the same time in refusing parts of the applicant’s request. This has caused confusion at times about TCD’s position, and the applicant has challenged the credibility of TCD’s “inconsistent claims ” and “conflicting positions ” about the information he requested.
TCD and the applicant made a number of submissions in support of their conflicting positions about what relevant information TCD holds, or ought to hold. In an effort to clarify TCD’s submissions and its record management practices relating to the information sought by the applicant, the Investigating Officer and I had a meeting with TCD’s FOI Officer, the Chair of the Animal Welfare Body (AWB), and the Research Support Officer to discuss the matter. In essence, TCD’s position is that the records/data sought by the applicant do not exist. TCD explained it had also relied on section 15(1)(c) of the Act because, while it does not hold records containing the information sought and does not routinely record this information, in order to ascertain whether any such information may have been recorded for individual projects, it would need to trawl through project records to see if any such information exists and would then need to extract any relevant data it located. TCD claim that this would cause a substantial and unreasonable interference with, or disruption of work, in the relevant unit(s).
Both parties have made detailed submissions to this Office during the course of this review. While I do not intend to repeat those submissions in full here, I can confirm that I have had regard to them for the purpose of this review.
Section 15(1)(a)
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, TCD stated that it does not collect the information in the format requested for parts 1 to 3 of the applicant’s request. It stated that the HPRA does not require TCD to capture the number of animals killed by each Annex IV method. It said it only obliges TCD to keep a record of the total number of animals killed by Annex IV methods. (Annex IV of Directive 2010/63/EU specifies the approved methods for killing animals used for scientific purposes within the European Union.)
TCD stated that the 2010/63/EU Directive is implemented across Europe through each Member States’ own national legislation and this had led to different practices in different countries. In Ireland, the Directive is implemented through S.I. No. 543 of 2012 (European Union (Protection of Animals used for Scientific Purposes) Regulations 2012). Section 63(1)(f) states “the number and species of animals which died or were killed in each establishment. For animals that have died, the cause of death shall, when known, be noted”. However, TCD stated that this does not require it to capture the details of animals killed by each Annex IV method.
TCD said that, in previous years, researchers would have to record the method of euthanasia in their project application form, but this is no longer the case. TCD said that a number of years ago, the HRPA changed the manner in which data is recorded. It stated that the only information recorded is the species and the number of animals euthanised by an Annex IV method. TCD said that, as the information requested is not captured and stored, it is not possible to grant the request. TCD said it provided the applicant with the information it is required to collate by law.
TCD also stated that there may be a slim possibility that some staff may have recorded the information requested. However, it said that if this were to be searched for, over 300 staff would have to check their individual records to ascertain if this information was recorded voluntarily. TCD concluded that it would be unreasonable to carry out a large-scale search for information that it likely does not hold.
In his submissions, the applicant contends that, given the legal requirement for all procedures to be carried out ‘within the framework of a project’, it follows that the cause of death/method of killing needs to be recorded in the project report in order for HPRA Inspectors to be able to ascertain that the project has been carried out lawfully, according to the specific method(s) of killing stipulated in the application and authorisation. The applicant provided the Section E Implementation report submitted by the HPRA to the European Commission which, he stated, illustrates this. The applicant pointed to Section E 2.6 which shows that HPRA Inspectors are required to review Records - keeping the required records (e.g., source, use, disposal, health, welfare assessments, Individual records (dog, cat, primate), scientific records and Fate - killing, reuse, setting free / rehoming. Further, the applicant also pointed to Section E 4.1.1 which lists ‘Killing of animals not compliant with Article 6’ as a potential type of infringement. Article 6 requires the use of the appropriate method of killing as set out in Annex IV. The applicant said that the Irish legislation requires that the ‘… user… shall ensure that the appropriate method of killing as set out in that Annex [IV] is used.’ (Reg 8(3)). The applicant stated that, because different types of killing method are permitted depending on the species, weight and developmental stage of the animal, therefore, to ensure that Article 6 is being complied with, Inspectors will need to be able to check the specific method of killing used for each animal. He said that this information would need to be recorded for the purpose of inspections for regulatory compliance.
The Investigating Officer put this to TCD and asked if these arguments raised by the applicant pointed to the existence of the records containing the information he was seeking. TCD responded by stating that the submissions provided by the applicant relating to HPRA inspections do not necessarily dictate that specific records are, or should be, held by TCD. TCD said that the HPRA carry out their own, physical inspections and the information collected via the inspection is not just based on what is held on file by the College. It is also gathered via observing practices and interviewing staff on specific projects during onsite inspections. TCD reiterated that is not required to capture the number of animals killed by each Annex IV method. TCD said that it maintains the records it is legally required to retain. As the College is not required to record the information sought, if it were to be searched for, over 300 staff would have to check their records to ascertain if it had been recorded. It said that there is a slim possibility that some staff may have recorded this information, but the majority will not have done this as it is not required for them to do so.
In addition, TCD also provided this Office with a HPRA form titled ‘Application for an Individual Authorisation under Scientific Animal Protection Legislation’. TCD said that this document shows that there is no requirement to provide information on individual euthanasia methods. Instead, the document shows that applicants are only required to state whether they will use an Annex IV method or not. Once this application form has been received and assessed by the HPRA, TCD said they can then issue the individual authorisations that only states whether an individual is authorised to perform by Annex IV methods. As well as this, TCD also provided this Office with another HPRA form titled ‘Application for a Project Authorisation under Scientific Animal Protection Legislation’. TCD said that this shows that the researcher lists the total number of animals to be used for a project, the number of animals to be used for a procedure, and the method of euthanasia. This form does not require an individual to record how many animals were killed using each approved method of killing. This specific form is filled out by all project applicants for the HPRA. TCD said that this is to enable the HPRA to review the research they had issued a project authorisation for.
TCD also provided an Excel spreadsheet template produced by the EU titled ‘HPRA SAP statistical returns form’. TCD said that the HPRA provide the template to establishments to collect annual returns on every single authorised project. The spreadsheet contains no requirement to provide information on how many animals were killed using each approved method of killing.
For part 3 of the request, TCD stated that the forms provided by the applicant are those which the HPRA fill out and return to the EU. TCD said this does not dictate that the College is required to keep a record concerning the reduction of surplus animals. Generally, the HPRA would request TCD to conduct an internal breeding review of all colonies. The College would then generate a report and send it back to the HPRA. TCD said that there were no requests to the College to generate this type of report for the period encompassing the request.
TCD said the College examined its records for the information requested and provided what it is legally obliged to record as a compromise. For part 1 of the applicant’s request, TCD said it had provided information on the number of mice, rats, and rabbits that were euthanised using an Annex IV methods. It said the College is legally obliged to record this information for its annual statistical returns to the HPRA and the information provided to the applicant was sourced from this record. For part 3 of his request, TCD said it had provided information on the number of mice, rats, and rabbits that were euthanised before their predetermined endpoint of experiments. It said the College is legally required to record this information for its annual statistical returns to the HPRA and the information provided to the requester was sourced from this record.
For part 4 of the request, the Investigating Officer asked TCD about the possible existence of rehoming advice in emails and attachments. TCD had referred to the concept of rehoming as a standing agenda item on the AWB’s meetings, and so the Investigating Officer asked if there could be any records relating to this. In response, the Chair of the AWB stated that rehoming is generally not considered as viable and while it is a standing item on their meeting agendas, it is not formally discussed. However, after our meeting with TCD, it carried out a search of the AWB’s meeting minutes from 1 January 2020 to December 2022. It said that no information on rehoming advice was found in the records. It did say, however, the terms of reference for the AWB were finalised in December 2021 and includes the following statement on the role and tasks of the AWB: “Advise on re-homing schemes where appropriate – in instances when species relevant to re-homing schemes ever housed at the establishment.” It said no animals suitable for rehoming were housed and there is no further reference made to rehoming in AWB records to year end 2022. TCD had relied on section 15(1)(c) of the Act in refusing this part of the applicant’s request as it considered that a staff member would have to search through all emails (and their attachments) received by the Animal Welfare Body for the request period to ascertain if there had been any queries in relation to rehoming.
The applicant was updated on TCD’s position and its reliance on section 15(1)(a) instead of section 15(1)(c). He then provided further submissions. The applicant pointed to the inconsistency between TCD’s position outlined in this Office’s previous decision (OIC-133377-Z7H9J0) and the present case. The applicant quoted from this decision, stating “it is clear from its submissions, that TCD holds method of killing information and cause of death information in records prepared for individual research projects and these individual research projects are held in electronic format.” The applicant said that, unless TCD can provide an adequate explanation that reconciles these conflicting positions, then its reliance on section 15(1)(a) lacks credibility.
The applicant also restated that TCD is obligated by EU regulations to record the level of detailed information he is seeking. He questioned why the underlying data from the figures that were released to him could not be provided.
Essentially, TCD refused the applicant’s request under section 15(1)(a) of the Act as it does not hold the information he requested. However, it also relied on section 15(1)(c) of the Act in relations to parts of the applicant’s request as it considered that if it was required to search through it records in order to ascertain what, if any, relevant information exists, such an exercise would cause an unreasonable interference with its work, or the work of the relevant units.
I understand why the applicant has questioned inconsistencies in TCD’s reliance on section 15(1)(a) and section 15(1)(c) of the Act. It was this very question that led to this Office to meet with TCD in an effort to understand its submissions and its record management practices around the relevant data. I accept that there has been a lack of clarity at times and what appears to be some inconsistency in the responses TCD provided in respect of the applicant’s request. On the one hand, TCD said that it does not collect the information in the format requested by the applicant. On the other hand, it said that searching through its records to locate and extract any relevant information that it may hold would cause an unreasonable interference with its work.
While the applicant has argued that TCD is obligated to record the level of data he is seeking, it is important to note that this Office has no role in examining how TCD, or any FOI body, carries out its functions generally. While it is TCD’s position that it is not required to record the data in the format sought by the applicant, whether or not it complies with its reporting obligations is not a matter for this Office. I note that TCD had offered to meet with the applicant in an effort to deal with his request outside of FOI to allow him better understand its internal processes surrounding the relevant data that it collects. This may be something that the applicant might wish to explore further with TCD.
Where an FOI body wishes to rely on section 15(1)(a) to refuse a request on the ground that the records sought do not exist or cannot be found, it must first have taken all reasonable steps to ascertain the whereabouts of the records sought. The FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the section requires is that the body takes all reasonable steps to locate relevant records. The question of what is reasonable will generally depend on the particular circumstances arising. The Act does not require a body to search indefinitely for records that cannot be found, nor does this Office expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that the records sought should or might exist, or rejects a body's explanation of why a record does not exist.
I accept that there may be occasions where it is simply not necessary to conduct manual or electronic searches for records. For example, I would not generally expect an FOI body to conduct searches for records, information or data which it does not hold. In this case, TCD has stated why it would not hold records of the requested information. While I note that the applicant disagrees with its position, TCD has, in my view provided a reasonable explanation about why it does not record the specific information sought by the applicant. TCD said that, in previous years, researchers would have to record the method of euthanasia in their project application form, but this is no longer the case. I note, however, that TCD said that it is possible that some staff may still record this information on a voluntary basis.
It seems from TCD’s submissions that while it is not required to collate the information sought by the applicant, it is possible that some relevant information may be held in individual project records. The question I must consider is whether TCD can, by taking reasonable steps, extract the information sought electronically using pre-existing search or extraction systems. Apart from the requirement under section 17(4) of the Act to extract information from electronic records, the Act does not require FOI bodies to create records in order to grant a request.
The essential purpose of section 17(4) of the 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. 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.
In its submissions to this Office, TCD said it is not required to collate this information for reporting purposes. It said, if it were to be extracted from records, it would involve contacting over 300 members of staff to check their records to establish if this information had been captured. It said even if some staff members would have captured this information, the data would not necessarily be accurate. TCD said as it is not a formal requirement to record this data, more than a keyword search would have to be used to find it. Any report, project records, and notes, would have to be manually read to ascertain if this information had been recorded by a staff member. I consider that this requires a processing of data not envisaged or required by section 17(4). It also seems to me, that even if some relevant data could be extracted, any such data would be incomplete. In the circumstances, I find that section 17(4) does not apply. In conclusion, therefore, I find that TCD was justified in refusing access, under section 15(1)(a) of the Act, to the information sought on the ground that no such record containing the information sought exists and that it is not required, pursuant to section 17(4) of the Act to create such a record.
As noted above, in regard to part 4 of the applicant’s request for any advice that TCD’s Animal Welfare Body (AWB) provided on rehoming schemes, following our meeting with TCD it carried out a search of the minutes from its AWB meetings between January 2020 and December 2022. It said that no information on rehoming advice was found in the records. While I understand that rehoming animals is a standing item on the AWB’s meeting agendas, TCD said that the specific species used in the type of research undertaken by the College are not suitable for rehoming and as such the decision to rehome is the same in every project. While TCD initially refused access to this part of the applicant’s request under section 15(1)(c) of the Act as extracting the information requested would cause an administrative burden if it were to search for any such advice, I am satisfied from the explanation provided by TCD to this Office, that such a search is not warranted or reasonable in the circumstances where, to date, rehoming has been deemed unsuitable for the type of animals used in its research and where no advice on rehoming was found in the minutes of the AWB.
Having considered the submissions in this case, I am satisfied that TCD has, at this time, provided a reasonable explanation as to why it does not hold the information sought by the applicant, and where the possibility exists that such information may be held in certain cases, it is not in a format that would facilitate its extraction by electronic means pursuant to section 17(4) of the Act. Accordingly, I find that TCD was justified in refusing access to the records sought by the applicant under section 15(1)(a) of the Act on the basis that the information sought does not exist or cannot be found all reasonable steps to ascertain its whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act on the grounds that the specific information/data sought by the applicant does not exist or cannot found.
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.
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Richard Crowley
Investigator