Decision
Mr. X and University College Cork
From Office of the Information Commissioner (OIC)
Case number: OIC-150556-D3P2D1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150556-D3P2D1
Published on
Whether UCC was justified in refusing access, under sections 15(1)(a) and/or 15(1)(g) of the FOI Act to details of engagements and/or services provided by a named individual to UCC and records of payments attached to any said engagements and/or services
9 December 2024
In a request dated 13 May 2024, the applicant sought access to a list of formal or informal engagements or services performed or provided by a named individual to any department in UCC from 2000 to May 2024, with particular attention on the department of nursing. He also sought information regarding payments attached to any of said engagements/services provided. On 11 June 2024, UCC issued a decision refusing the request and two other requests the applicant had made under section 15(1)(g) of the FOI Act on the basis that the requests formed part of a pattern of conduct UCC considered to be an abuse of the FOI process.
On 13 June 2024, the applicant requested an internal review of UCC’s decision. On 4 July 2024, UCC affirmed its refusal of the request outlined above under section 15(1)(g). On 15 July 2024, the applicant applied to this Office for a review of UCC’s decision. He made detailed submissions on 12 August 2024 setting out the background to his request and in relation to the applicability of section 15(1)(g).
During the course of the review, UCC informed this Office that arising out of discussions concerning the review, it decided to conduct searches for relevant records and as none could be found, it also wished to rely on section 15(1)(a) as a basis for refusing the request. The Investigating Officer provided the applicant with details of UCC’s submission wherein it outlined its reasons for refusing the request under 15(1)(g), the searches undertaken to locate the records sought and its reasons for concluding that records relevant to the applicant’s request do not exist or cannot be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether UCC was justified in refusing access, under sections 15(1)(a) and/or 15(1)(g) of the Act, to a list of formal and informal engagements or services performed or provided by a named individual to any department in UCC from 2000 to May 2024 and to records of payments attached to any of said engagements/services provided.
It is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which UCC reached its initial decision. Accordingly, in light of the “de novo” nature of our reviews, I deem it appropriate to consider the applicability of section 15(1)(a) notwithstanding the fact that the provision was not initially relied upon as a ground for refusing the request.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI 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 their decision and also must assess the adequacy of the searches conducted by the FOI 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 and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, UCC provided this Office with details of the searches it undertook to locate relevant records and its reason for concluding that no further records exist, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.
In its submissions, UCC stated that to receive payments for services provided to UCC, one must be set up as a supplier, by means of a formal process. It stated that a form is completed by the requesting department of UCC, containing information obtained from the prospective supplier. It said that once the form has been processed and approved, the new supplier is added to the financial management system and a supplier number is issued. It said that this number is needed to process all payments to that supplier. UCC stated that suppliers may be search for within the system by name or by number.
UCC stated that its Finance Officer contacted the Accounts Payable section of the Finance Office, and requested that it check UCC’s system for records of any payments to the named individual, including check whether there was any record of the named individual being set up as a supplier to UCC. It stated that it was mentioned to the Finance Office that any services may have included the School of Nursing and Midwifery. UCC stated that Accounts Payable carried out a search and confirmed that the named individual was not recorded as a supplier on UCC’s system. It said that the supplier enquiry search was carried out on the financial management system, Agresso, using the full name of the individual, and that no supplier by this name was on the system. It stated that further searches of the system were carried out using variations of the name. It stated that it also carried out searches using a ‘*’ as a ‘wildcard option’ to broaden the scope. It said that no records relating to the subject of the request were found.
Regarding the Agresso system, UCC stated that this system has been in place since October 2008, and while suppliers from before that time will have been transferred to the new system, a previous system called Coda was in place for the period including 2000 to September 2008. UCC stated that for completeness, enquiries were made as to whether this older system could be searched. UCC stated that it was established that this system was ‘warehoused’ and could be searched using a particular report-running function. It stated that a report was run for any payments to the named individual using variations of the name of the individual. UCC said that it confirmed that no payments were made to a person of this name during the relevant time period.
UCC stated that the Payroll section of Finance carried out searches for records relating to the applicant’s request. It said that this was to cover any employment of the named individual, for example as a lecturer on an hourly occasional basis for a limited time, that may have occurred. It said that the Payroll section confirmed that no record of any payments to the named individual were held on its system. UCC said that Payroll is managed by a system called Core, which has been in place since 1993. It said that the keyword searches were carried out to search for records relevant to the request and that no records were found.
UCC said that the School Manager was advised that following an extensive search it was confirmed that the named individual was never employed in any capacity or paid by the School of Nursing and Midwifery prior to 2000 or during the period from 2000 to 2024. It stated that the School Manager advised that the named individual had not been asked by the School to engage with staff or students on a formal or informal basis during this period, and as a result there were no records of any engagement.
Finally, UCC stated that while it acknowledged that the scope of the request extended to engagements with ‘any department’ in UCC, including unpaid engagements. UCC stated that it is unreasonable to contact every department of UCC to ask whether they hold any records of unpaid engagements with the subject of the request over a 25-year period. It stated that the applicant’s request highlighted the School of Nursing and Midwifery only, and that it has no grounds for speculating as to whether and which other departments may have engaged the named individual’s services. UCC stated that the results of searches in Finance have made clear that the named individual was not engaged on a paid basis by any department in UCC. It stated that in these circumstances, it did not extend enquiries and searches further. UCC stated that it is satisfied, with regard to paid engagements, that no records exist, and, with regard to unpaid engagements, that records do not exist or cannot be found. UCC said that it is satisfied that all reasonable steps to search for relevant records have been taken.
As I outlined above, an overview of UCC’s submissions were provided to the applicant. In response, that applicant stated that he required a definition of the word “conduct” as applied by UCC before making substantive submissions. The Investigating Officer provided the applicant with details of UCC’s explanation of its use of the word in its submissions and again offered the applicant an opportunity to make a substantive submission. In response, the applicant made no submissions on the applicability of section 15(1)(a). Instead, he sought a definition of the word “behaviour” which UCC had used to explain its definition of the word “conduct”, notwithstanding that he referenced the fact that UCC had described his use of FOI as a pattern of behaviour which it considered to be an abuse of the FOI process, i.e. the behaviour in question was the manner of his use of FOI.
Following receipt of the applicant’s query, the Investigating Officer provided the applicant with a copy of this Office’s Guidance Note on section 15(1)(g) and she informed him of her view that he had, at that stage, been notified of all material issues arising. She again reminded him of the deadline for providing a substantive submission. In response, the applicant declined to make any further submissions on the basis that the clarification he sought was being withheld.
Having considered the matter, I am satisfied that the applicant had ample opportunity to make a substantive submission and that he was not hindered in doing so by not having received further clarification of the matters he raised. Indeed, at no stage has he made any reference or response to UCC’s reliance on section 15(1)(a) as a ground for refusing the request. In circumstances where UCC’s contention is that the records sought do not exist, it seems to me that the question of whether or not it was justified in refusing the request under section 15(1)(g) is essentially moot if the records do not exist. In considering the applicability of section 15(1)(a), the question I must consider is whether UCC has taken all reasonable steps to ascertain the whereabouts of the records sought. Having regard to the submissions of UCC on the searches undertaken, to its explanation for concluding the records sought do not exist, and in light of the fact that the applicant has presented no evidence to suggest that further additional searches might be warranted, I am satisfied that it has, indeed, taken all reasonable steps to ascertain the whereabouts of the records sought. I find, therefore, that UCC was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for records of services provided by a named individual to UCC and records of payments for services provided by a named individual to UCC, on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Having found section 15(1)(a) to apply, I do not need to consider the applicability of 15(1)(g) in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCC’s decision to refuse, under section 15(1)(a) of the Act, the applicant’s request for a list of formal and informal engagements or services performed or provided by a named individual to any department in UCC from 2000 to May 2024 and to records of payments attached to any of said engagements/services provided.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator