Decision
Mr J and the Department of Education and Skills (the Department)
From Office of the Information Commissioner (OIC)
Case number: 130162
Published on
From Office of the Information Commissioner (OIC)
Case number: 130162
Published on
Whether the Department was justified in its decision to refuse access to a schedule of records sought by the applicant regarding the award of added years for superannuation purposes for staff of institutes of technology on the basis that section 10(1)(a) of the FOI Act applies as the record sought does not exist
10 February 2014
On 21 January 2013 the applicant made a request to the Department under the FOI Act for access to the following records :-
On 18 February 2013, the Department issued its decision to the applicant. The Department refused item 1 of the applicant's request under section 28(1) of the FOI Act. The Department stated that item 2 of the applicant's request cannot be granted as no such database exists. The Department also stated that item 3 cannot be granted as no such table exists. The Department granted item 4 of the applicant's request, which included the release of draft tables that were used in preparation of answering the Parliamentary Questions.
On 27 February 2013, the applicant sought an internal review of the Department's decision, requesting a review of the whole of the decision but in particular the refusal of item 1. The applicant expressed surprise that item 1 was refused because "it was drafted as a request for a schedule to exclude personal information". The applicant stated that "all I required was a list of documents involved". The applicant also stated that he does not wish to know the names of the persons involved but does wish to know the profession, trade, qualification or occupation in each particular case. On 25 March 2013, the Department's Internal Reviewer affirmed the original decision. Subsequently, on 21 June 2013, this Office received a request from the applicant for a review of the Department's decision.
I note that Mr Richard Crowley, Investigator, wrote to the applicant on 3 December 2013 outlining his preliminary views on the matter and inviting the applicant to comment on his views. The applicant replied on 16 December 2013 and further emails were exchanged between the applicant and Mr Crowley concerning item 1 of his request. No issues were raised by the applicant concerning items 2, 3 or 4 of his original FOI request. Consequently, the focus of this review concerns item 1 of the applicant's original FOI request. I consider it appropriate to conclude the matter at this time by way of a formal binding decision.
In conducting my review, I have had regard to correspondence between this Office and the Department, to details of the submissions of the Department, to correspondence between the applicant and the Department, to correspondence between this Office and the applicant and to the provisions of the FOI Act.
This review is concerned solely with the question of whether the Department was justified in its decision to refuse the schedule of the records sought by the applicant in item 1 of his FOI request on the basis that the requested record does not exist.
In its decision, the Department's refused to grant the applicant access to item 1 of his FOI request on the basis of section 28(1) of the FOI Act as it considered that granting access to that information would involve the disclosure of personal information. In its submission to this Office the Department explained that a separate file is created for each application for Professional Added Years received and that there are approximately 120 files relating to individual applications for the period covered by the applicant's request. Each file typically contains the applications for the added years and the records pertaining to the processing of those individual applications. During the course of our review in this case, this Office asked the Department if the schedule requested by the applicant exists in the form of a unique record. The Department confirmed to this Office that the schedule does not exist in that form.
The FOI Act provides a right of access to records which already exist and does not require the creation of records in order to grant a request. As no schedule exists the Department is not required under the FOI Act to create a schedule of the information sought by the applicant. In these circumstances, the scope of the Commissioner's review is confined to the issue of whether the record sought exists, and if so, whether the Department has taken all reasonable steps to locate the record. Section 10(1)(a) of the FOI Act applies in a case where the Commissioner is satisfied that records do not exist. Section 10(1)(a) provides that "A head to whom a request under section 7 is made may refuse to grant the request if (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ...."
To be clear, this review is confined to whether the information sought (a schedule) exists. The scope of this review does not extend to considering whether the information contained in the individual files held by the Department should be released. Furthermore, in response to comments by the applicant, I wish to clarify that the relevance of who sought the information is not a consideration in this case as the record sought does not exist. I note that Mr Crowley suggested to the applicant that it is open to him to engage with the Department, outside the scope of this review, in regard to the details of professional added years which he wishes to obtain.
Having clarified with the Department that the schedule sought by the applicant does not exist as a unique record, I consider that section 10(1)(a) is the appropriate provision under which this application should be considered. Having considered the matter, I accept the Department's statement that the record does not exist in the form sought by the applicant. Accordingly, I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the Department insofar as the schedule sought does not exist.
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 after notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator