Decision
Ms A and National University of Ireland Galway
From Office of the Information Commissioner (OIC)
Case number: 130241
Published on
From Office of the Information Commissioner (OIC)
Case number: 130241
Published on
Whether the NUIG was justified in deciding that no further records exist or can be found relating to the applicant's request for records relating to her and held by named individuals in the NUIG.
30 April 2014
On 07 January 2013, the applicant made an FOI request for all records from 01 October 2002 relating to herself held by four named individuals in the NUIG and held on the HR file for the post of Chief Technical Officer in Biochemistry in 2006. On 13 January 2013 the applicant clarified that she was not seeking records where she was the recipient or specifically copied with records except in cases of "blind" copying. The NUIG's decision of 04 February 2013 was to release all of the requested records it had located.
On 04 March 2013 the applicant sought an internal review of the NUIG's decision as she contended that further records were being held by two of the named NUIG officials and that further records should exist on the HR file for the post of Chief Technical Officer in Biochemistry in 2006. The applicant also said that a large volume of email correspondence from one official was unclear as the emails contained a 'false header' and no attachments were received by her. On 27 March 2013 the NUIG released these emails and attachments to the applicant again (without the 'false header' which it said was caused by a computer virus problem) along with copies of time sheets held by this official.
The Department's internal review decision of 11 April 2013 stated that no further relevant records were located. On 29 September 2013, the applicant sought a review by this Office of the NUIG's decision with regard to three specific areas i.e. 1) a specific email message sent by the Head of School, School of Natural Sciences in NUIG in or after 03 April 2011, 2) her personal score sheets completed by members of the interview panel for the post of Chief Technical Officer, Biochemistry, 2006 and 3) the response received from the Head of Biochemistry. The applicant stated that she was seeking the records at 1) and 2) and that the Head of Biochemistry may hold further records as it was unclear whether he had provided a complete response to the FOI request.
On 16 January 2014, Ms Mary Byrne, Investigator, wrote to the applicant informing her that in her (Ms Byrne's) view the decision of the NUIG was justified. Ms Byrne also provided the applicant with an opportunity to clarify the scope of her application and to make any further comments which she wished to have taken into account before this Office reached a final decision. In her reply dated 31 March 2014, the applicant stated that she had located the relevant information with regard to 1) above and that this aspect of her application had now been resolved. Accordingly, this issue will not be considered further as part of this review. With regard to 2), the applicant stated that these score sheets should exist and should be made available to her. The applicant also stated that further records relating to 3) above may exist and that this was evident from the records she received from the other named individuals. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In carrying out this review, I have had regard to the correspondence between the NUIG and the applicant as set out above, to communications between this Office and the applicant, and to correspondence between the Office and the NUIG. I have also had regard to the provisions of the FOI Act.
This review is concerned solely with the question of whether or not the NUIG was justified in its decision to refuse access to parts 2) and 3) of her application as set out above on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
The NUIG's position is that it cannot locate further relevant records. 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 does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable.
The Commissioner's role in a case 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 was reasonable. The Commissioner's understanding of his 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 the website of this Office at www.oic.ie).
Personal score sheets
In its submission dated 20 November 2013, the NUIG stated that three of the four members of the interview panel (the fourth having retired) were contacted with regard to the personal score sheets for the Chief Technical Officer in Biochemistry competition in 2006. All three said that they did not hold these score sheets. The NUIG stated that the HR office also conducted searches but the score sheets could not be found. For the sake of completeness, the NUIG stated that a search was undertaken of the HR files of the other candidates interviewed for the post of Chief Technical Officer in Biochemistry in 2006 and this search did not reveal either their own or the applicant's score sheets. The HR office also searched the file for the competition for Chief Technical Officer in Earth and Ocean Sciences which was also advertised in 2006 and this search did not reveal any information in relation to the applicant or her FOI request.
The NUIG stated that it would be usual practice for all completed documents returned by the interview board (including scoring sheets of candidates) to be held on file. However, it went on to say that in many cases the individual scoring sheets were not used by any or all members of an interview board. The NUIG also said that the individual scoring sheets were required to be completed as best practice but this was not enforced and was not unusual. The NUIG went on to say that the HR office did require that the interview summary sheet, which incorporated the Chairperson's summary report, be completed and signed by all members of the interview board. This document was necessary to complete the recruitment process and this document for this competition has been provided to the applicant.
The NUIG outlined the retention and disposal practices for material such as this and this information was set out in detail in Ms Byrne's preliminary views letter to the applicant dated 16 January 2014. In summary, the NUIG said that, in 2006, when the post of Chief Technical Officer in Biochemistry was advertised and recruited, the HR office operated a filing system whereby (hard copy) documents relating to each recruitment competition were stored with an external storage agency. Each recruitment file was held for a period of at least two years in line with the NUIG's Personnel Records Retention Schedule which was agreed and implemented in 2008. A physical hard copy of certain documents relating to the running of the competition was also held within the HR area e.g. copy of advertisement, list of applicants, copy of interview summary sheet, approval form for appointments etc.
During 2008, the HR office dispensed with the use of off site storage of recruitment files and it implemented an internal IT based document storage solution of recruitment files. For recruitment competitions (pre 2008), a copy of the information that was previously held in the HR office was scanned onto the document management system. The NUIG stated that the documents stored on the document management system were made available to the applicant in relation to her candidature for the post of Chief Technical Officer in Biochemistry. These documents did not include any details of the actual interviews or the personal score sheets for the candidates. The file for the Chief Technical Officer in Biochemistry competition in 2006 was ordered to be destroyed on 5 March 2009 and this file has since been destroyed. The NUIG stated that, if personal score sheets from the interview in 2006 were created, they would have been stored in the off site storage facility and would have been destroyed in 2009 in accordance with its Personnel Records Retention Schedule.
Records held by the Head of Biochemistry (the Head)
The NUIG stated that the Head searched his files, both emails and documents and all records coming within the scope of the request, which he had retained, were provided by him on foot of the applicant's FOI request. However, the Head did acknowledge that he does not retain all emails and that he expected the HR office to hold all important emails and documents involving him which have a personnel dimension. Furthermore, the NUIG said that the Head mistakenly believed that emails to and from himself would have been backed up or retained by the Information Solutions & Services (the ISS) department of the NUIG. The Head gave his permission for the FOI decision maker to contact the ISS department directly in an effort to locate records which may have been missed. In early April 2014, the ISS department conducted a further search of the Head's email account and all records found were forwarded to the applicant at that time.
In general terms, the NUIG stated that data/files stored on ‘local’ computers are considered to be working documents and they are not filed for archive purposes. Accordingly, they are not backed up or archived centrally. Staff emails are stored on a central mail server which is backed up to allow for the restoration of the system in the event of system failure but there is no centrally supported mail archive which would archive all emails for all staff.
Having reviewed the steps taken by the NUIG to identify the records sought in response to the applicant's FOI request, and the explanations provided to this Office, I am satisfied that the NUIG has taken all reasonable steps to locate all relevant records. Accordingly, I find that the decision of the NUIG was correctly made in accordance with section 10(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the NUIG's refusal of further records of relevance to the request.
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.
__________________
Sean Garvey
Senior Investigator