Decision
Ms S and University of Limerick
From Office of the Information Commissioner (OIC)
Case number: 130196
Published on
From Office of the Information Commissioner (OIC)
Case number: 130196
Published on
Whether the University was justified in deciding to refuse access to records personal to the applicant in accordance with section 10(1)(a) of the FOI Act.
17 February 2014
On 22nd February 2013 the applicant submitted an FOI request to the University requesting copies of all records containing personal information relating to her created between August 2010 and January 2013. The applicant sought an internal review on 30th April 2013 on the basis that the University had failed to meet the deadline for response and as such she considered the original request refused. The University wrote to the applicant on May 16th informing her that they had decided to grant access to the records requested. The applicant was not satisfied that all relevant records held by the University had been released to her and as such applied to this Office for a review on 29th July 2013.
In the course of this review, I note that Mr David Logan of this Office wrote to the applicant on 28th November 2013 setting out his preliminary view that the decision of the University was correctly made in accordance with section 10(1)(a) of the FOI Act on the basis that no further records exist or can be found. The applicant did not accept Mr Logan's views and I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
• the University's decisions on the matter and its communications with this Office;
• the applicant's communications with this Office and the University,
• the provisions of the FOI Act,
• the records released to the applicant, copies of which have been provided to this Office by the University.
This review is concerned solely with the question of whether or not the University was justified in its decision to refuse access to further relevant records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.
In a submission to this Office of 27th September 2013 the University outlined the searches carried out in order to locate the records requested. As part of her application to this Office the applicant provided a list of offices where she believed records relating to her FOI request were located and the University used this as a basis for their searches. The request was of a detailed nature and involved a wide range of records located in several specific departments across the University. These records were created from the time of the applicant's entry as a student at enrolment through to the point of completion of her studies and awarding of her degree. All relevant academic and support staff who may have held records relating to the request were identified and briefed by the University's FOI Unit regarding the records requested. Searches for paper records involved both a desktop search and searches of filing cabinets where records are held in each individual office. Email accounts, relevant databases and PC directories using keywords including the applicant's first name, surname and student ID number were also searched. 1,733 records relating to her FOI request were located during the course of these searches and these have been released to the applicant.
During the course of this review searches were carried out in the Postgraduate Admissions Office and of records held by a particular member of staff (the Postgraduate Admissions Office and records held by this staff member did not form part of the original searches). A number of additional records were located and released to the applicant on 27th November 2013 and on 28th January 2014. In a final search the University has located what they state is the last remaining record they hold relating to this case and have confirmed to this Office that it has been released to the applicant.
In submissions to this Office the applicant outlined concerns she had in relation to what she believed was the fabrication of some of the information contained in the records released to her and also in relation to records she believed ought to exist but were not released on foot of her FOI request. In this regard I can confirm that this Office is currently examining an application under Section 17 of the FOI Act from the applicant in which she sought amendment of the records relating to her so her comments regarding the accuracy of those records will be considered in the context of that application. Regarding the applicant's contention that records ought to exist, the Commissioner is concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist. Neither does the FOI Act oblige any public body to create a record in circumstances where a record does not exist or cannot be found even if it is acknowledged that such a record ought to exist.
The position of the University is that it cannot find any further records relating to the applicant's FOI request. Having reviewed the steps taken to locate the records in question, including the extensive searches carried out and the large number of records released to the applicant I am satisfied that the University has taken all reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the University 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