Decision
Mr R and Enterprise Ireland
From Office of the Information Commissioner (OIC)
Case number: 140152
Published on
From Office of the Information Commissioner (OIC)
Case number: 140152
Published on
Whether Enterprise Ireland was justified, pursuant to 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 on the New Frontiers 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
25 August 2014
The applicant was a participant on the New Frontiers entrepreneur development programme ("the Programme") funded by Enterprise Ireland, which is delivered at a local level by various Institutes of Technology. He was registered in Letterkenny IT as a participant on the programme, which was delivered in collaboration with IT Sligo. The applicant made requests under the FOI Act for access to records relating to his participation on the programme to all three institutions (Enterprise Ireland, Letterkenny IT and IT Sligo). He was not satisfied with the records released in response to his requests and requested internal reviews of all three decisions. The internal review decision in each case upheld the previous decision to refuse to release any/further records. The applicant made an application to the Commissioner for review of the decision in each case. The Commissioner upheld the decisions of the three public bodies concerned in Cases No. 140056 (Letterkenny IT), 140064 (Enterprise Ireland) and 140080 (IT Sligo) and found that the decision of each public body had been justified pursuant to section 10(1)(a) of the FOI Act, on the grounds that the records did not exist or could not be found after all reasonable steps to ascertain their whereabouts had been taken.
During the course of the reviews set out above, in a request dated 9 April 2014, the applicant made a further FOI request to Enterprise Ireland for access to records. The contract between IT Sligo and Enterprise Ireland in respect of the New Frontiers programme stipulated that any record in the possession of IT Sligo "shall, insofar as it related to the Education Programme provided under this contract, be deemed for the purposes of the FOI Act to be held by Enterprise Ireland". His request sought the following: "records relating to my participation on the Enterprise Ireland New Frontiers Programme, which were held by employees of Sligo Institute of Technology - in particular [four named employees - the Head of Innovation Centre ("the Innovation Head"), the Head of Development and Business Operations ("the Development Head"), and Innovation Centre Managers Ms A and Ms B]. I am making this request through your office as IT Sligo will not comply with the release of my personal records in relation to the Enterprise Ireland New Frontiers programme".
On 30 April 2014, Enterprise Ireland issued a decision on the applicant's request, wherein it released three records, one of which had redactions pursuant to sections 28(1) (personal information) and 26(1)(a) (information obtained in confidence) of the FOI Act.
The applicant made an internal review request on 11 May 2014 and requested details of all records held by IT Sligo and the types of searches undertaken to gather all of the records requested, as well as details of searches undertaken by IT Sligo of archived and deleted files. I note that the applicant did not object to the redaction of the material considered to be personal or confidential information. Enterprise Ireland upheld its original decision on 4 June 2014, on the basis that "IT Sligo [has] been contacted and has responded .....in writing that no records exist. Enterprise Ireland also has written correspondence following the original FOI request noting all original records as outlined in the schedule have been forwarded. Extensive searches have been undertaken." It included a copy of a letter from IT Sligo dated 28 April 2014 outlining its research methodology, which stated that following an extensive search of the Innovation Head's computer and Microsoft Outlook using relevant keywords and a manual search of all relevant storage area(s) of the office in which the records sought might possibly be held, no records could be found. It also stated that the Development Head had no involvement with the applicant or any related matters. The letter outlined that Ms A stated that she had no files pertaining to the applicant and her involvement with this programme related only to allocating space to participants on Phase 2 in Sligo. Ms B stated that the only communications she had with or about the applicant were released to him in response to his FOI request. She also stated that she holds no contract or paperwork in relation to him as he was attending Phase 1 in Letterkenny and she was not involved in this phase.
On 13 June 2014 the applicant applied to the Commissioner for a review of Enterprise Ireland's decision, stating that "There is evidence of a cover-up taking place whereby records are not being disclosed to me. These records can and must be retrieved immediately and provided to me. These records relate to decisions made by [the Innovation Head] (Steering Committee Member) and [the Development Head] (IT Sligo) regarding my participation on the Enterprise Ireland new Frontiers course. If these records are not produced to me within 14 working days, a file will be submitted to An Garda Síochána Bureau of Fraud Investigation."
I note that Ms Sandra Murdiff, Investigating Officer contacted the applicant during the course of this review and outlined her preliminary view that Enterprise Ireland was justified, under section 10(1)(a) of the Act, in refusing to release further records in relation to his request. He was invited to comment on this view but did not do so. Instead he requested further details of the technical steps in the searches undertaken by Enterprise Ireland and IT Sligo to locate the records in question. Ms Murdiff replied setting out all of the information supplied by the public bodies in question regarding the searches, giving the applicant another chance to make any comments, but he chose not to 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 Enterprise Ireland's decisions on the matter and its communications with this Office; the applicant's communications with this Office and Enterprise Ireland; the record(s) in question and the provisions of the FOI Act. As this case refers to the same records that were already the subject of a review by this Office and a final decision by the Commissioner, I agree with Ms Murdiff that it is proper to also have regard to the submissions received from IT Sligo in the earlier case, 140080.
The scope of this review is solely concerned with whether or not Enterprise Ireland was justified, under section 10(1)(a) of the FOI Act, in deciding to refuse access to records held by IT Sligo relating to the applicant's participation on the New Frontiers Programme.
I note that the applicant is of the view that records exist in relation to his request which were not released to him. He is of the opinion that this is a criminal matter. It is important to note that the Commissioner's remit does not extend to adjudicating on how public bodies carry out their functions generally, or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act. This Office does not have the authority to investigate complaints against public bodies. It is important to note that the applicant's request is in relation to records held by Enterprise Ireland and IT Sligo in regard to him, and the Commissioner's review is concerned only with the matter of access to these records.
Section 10(1)(a) of the FOI Act provides that a public body may refuse access 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 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).
As I understand it, records relating to the Programme are the overall responsibility of the Enterprise Development Programme Manager, who is an employee of Letterkenny IT. She also bears the responsibility for the administration and financial management of the Programme, under the support and supervision of a steering committee. Letterkenny IT released a large number of records to the applicant on foot of his FOI request earlier this year.
In 2013 the Innovation Head at IT Sligo represented the Institute's interests at programme management meetings as part of the steering committee. IT Sligo states that as the principal record keepers were the Programme Manager, Letterkenny IT and Enterprise Ireland, there was no need for it to retain records relating to these meetings. On that basis, IT Sligo contends that no records in relation to the programme were generated by the Innovation Head. It also contends that he typically retained any paper records supplied by the Programme Manager until the minutes of the meetings were issued and then disposed of them via recycling or general waste bins and they therefore cannot be retrieved. Copies of the minutes and other records relating to these meetings were released to the applicant by Letterkenny IT in response to his FOI request. IT Sligo further contends that its IT Dept has searched the Innovation Head's deleted and archived emails and none relating to the applicant can be found. IT Sligo states that the Development Head and Ms A had no involvement with the applicant. It also states that Ms B's records in relation to the applicant (two emails relating to his application and an email regarding the dates that participants on the course were going to pitch their ideas to a panel) were released to him in respect of the current FOI request and that she holds no further records in this regard.
Enterprise Ireland states that it holds general scheme documents, documentation relating to applications and entry into the Programme as well as internal email correspondence and reviews regarding participation in the programme and any issues that may arise. It contends that all of the records it holds relating to the applicant were released to him in respect of his earlier FOI request (Case No 140064). It has contended at all times that none of IT Sligo's records are physically held by Enterprise Ireland and that the only avenue open to them to retrieve the records in question was by request to IT Sligo.
In the course of the three earlier reviews it transpired that the applicant had copies of emails/documents which were copied to the Innovation Head where he (the applicant) was mentioned. IT Sligo did not deny that these documents had existed in the past, but stated that they had not been retained as they did not consider them to be worth retention. It appears to me that while the applicant has not received these records from IT Sligo, he has received copies from Enterprise Ireland and/or Letterkenny IT. The applicant seems to believe that these and other records exist which have not been released to him and that Enterprise Ireland's/IT Sligo's refusal was not made in good faith.
Having regard to the earlier case (140080) and to the submissions of Enterprise Ireland and IT Sligo in this review, while I agree with Ms Murdiff's view that IT Sligo's records management practices might not be the norm, I have no reason to doubt its explanations in this regard. The applicant was enrolled at another Institute of Technology and had little dealings with IT Sligo in the course of his participation in the Programme. As I understand it, no correspondence would have been initiated by IT Sligo in relation to the applicant, and it would appear to me that any replies from the Innovation Head to Letterkenny IT and Enterprise Ireland in relation to him have already been released in response to the applicant's earlier FOI requests to the public bodies in question.
I note the applicant's frustration with IT Sligo and its contention that no records exist in relation to his request. However, although he contends that further records exist that were not released to him, he has not provided any evidence that the relevant records do, in fact, exist.
The same records have been requested in this case as in Case No 140080, where the Commissioner found that IT Sligo's decision to refuse access was justified. I am satisfied that the records in question are not held by Enterprise Ireland. Accordingly I am satisfied that the records concerned do not exist or cannot be found after all reasonable steps have been taken by Enterprise Ireland to locate their whereabouts. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm Enterprise Ireland's decision to refuse access to the records concerned in accordance with section 10(1)(a) of the FOI Act.
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.
Stephen Rafferty
Senior Investigator