Decision
Mr U and Institute of Technology Sligo
From Office of the Information Commissioner (OIC)
Case number: 140080
Published on
From Office of the Information Commissioner (OIC)
Case number: 140080
Published on
Whether the Institute was justified, under 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 ("the Programme"), 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
9 July 2014
On 12 February 2014 the applicant sought access under the FOI Act to all records relating to him held by the Head of Innovation ("Innovation Head"), the Head of Development & Business Operations ("Development Head") and any other employees of the Institute. On 13 March 2014 the Institute refused his request under section 10(1)(a) of the Act, on the basis that the records sought did not exist. It upheld this decision following internal review on 4 April 2014. On 8 April 2014 the applicant applied to this Office for a review of this decision.
In conducting this review I have had regard to the Institute's decisions on the matter and its communications with this Office; the applicant's communications with this Office and the Institute; and the provisions of the FOI Act.
I note that Ms Sandra Murdiff, Investigating Officer in this Office, contacted the applicant on 9 May 2014 in an effort to clarify the scope of his request and invited him to make a submission in relation to this review if he wished. The applicant stated in his reply dated 13 May 2014 that the Innovation Head and the Development Head had both been involved in decisions relating to him and, in his opinion, records existed that had not been released to him. He made no further comments at that time.
On 21 May 2014 the applicant wrote to Ms Murdiff in relation to another review currently before this Office, enclosing copies of emails to and from the Innovation Head from/to other public bodies in relation to the applicant and his participation on the Programme. Further enquiries were made with the Institute as a result and I note that Ms Murdiff contacted the applicant again on 9 June 2014 outlining the details of the searches undertaken by the Institute in an effort to locate the records at issue and her preliminary view that the Institute was justified, under section 10 (1)(a) of the FOI Act, in refusing to release the records in question on the grounds that they did not exist or could not be found after all reasonable steps had been taken to ascertain their whereabouts. I note that Ms Murdiff invited the applicant to make further comments if he disagreed with her views but he did not do so. Accordingly, I have decided to conclude this review by way of a formal binding decision.
The scope of this review is solely concerned with whether or not the Institute was justified, under section 10(1)(a) of the FOI Act, in deciding to refuse the applicant's request for access to records relating to his participation on the New Frontiers Programme on the ground that they cannot be located or do not exist.
It is important to note that the applicant's request is in relation to records held by the Institute in regard to him, and the Commissioner's review is concerned only with the matter of access to these records. The Commissioner's remit does not extend to examining the actions of a public body in dealing with matters raised in the records in question or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act.
Section 10(1)(a) of the FOI Act provides "[a] head to whom a request under section 7 is made may refuse to grant the request 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).
The Institute has provided details of electronic and manual searches undertaken in an effort to locate records in relation to the applicant's request. The Institute's position at all times has been that the applicant was enrolled in Letterkenny Institute of Technology ("LYIT") and as such, did not come under the remit of the Institute in question. It contended that the Programme was funded by Enterprise Ireland and administered by the Programme Manager, who is an employee of LYIT and that all records in relation to the Programme are the responsibility of the Programme Manager. I note that the applicant was of the opinion that records were held by the Innovation Head and the Development Head in relation to him. However, the Institute has contended in its submissions to this Office that the Development Head has never been involved in any matters relating to the applicant nor has he ever held any records relating to him. I have no reason to doubt this contention. The Innovation Head has submitted to this Office that he was not the Programme Head, and as a member of the Steering Committee he did not have any responsibility for retaining records in relation to the Programme. He has provided extensive details of his record management practices, and has stated that he routinely discards documents which are not required for record retention purposes. I have no reason to doubt the Innovation Head's statement in this regard. While the applicant may not be satisfied with this explanation, and contends that records exist which have not been released to him, he has provided no supporting evidence to suggest that the relevant records do, indeed, exist.
The position of the Institute is that records in relation to the applicant's request cannot be found or no longer exist. Having reviewed the measures taken to locate the records, I am satisfied that it has taken all reasonable steps to locate the records and that the Institute's decision was correctly made in accordance with section 10(1)(a) of the FOI Act. I find accordingly.
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 Institute 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.
Sean Garvey
Senior Investigator