Decision
Mr Y and University College Dublin
From Office of the Information Commissioner (OIC)
Case number: OIC-92955-C5Y6Z6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-92955-C5Y6Z6
Published on
Whether UCD was justified in refusing to release records held by the National Virus Reference Laboratory (NVRL) which demonstrates how the Novel Coronavirus was purified on the grounds that it holds no such records
30 July 2020
UCD National Virus Reference Laboratory (NVRL) provides a diagnostic and reference service for clinicians investigating viral infections throughout Ireland. The laboratory is affiliated to the UCD School of Medicine.
In a request dated 19 February 2020, the applicant argued that three specified scientific papers do not prove the existence of “the Novel Coronavirus”, and he specifically sought access to (1) a scientific paper which demonstrates how the Novel Coronavirus was purified and (2) details of how the NVRL would currently detect the Novel Coronavirus.
On 22 May 2020, UCD issued a decision in which it indicated that it decided to part-grant the request. It relied on section 15(1)(a) of the Act to refuse to release any relevant records coming within the scope of the first part of the request on the ground that it holds no relevant records. In relation to the second part, it explained that the current assay being used to detect corona virus is the one recommended by the World Health Organisation (WHO) in a published article and it provided a copy of the article in question.
On 25 May 2020, the applicant sought an internal review of that decision, following which UCD affirmed its original decision. On 23 June 2020, the applicant sought a review by this Office of UCD’s decision.
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 UCD and the applicant. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is solely concerned with whether UCD was justified in refusing the applicant's request for certain records relating to the Novel Coronavirus under section 15(1)(a) of the FOI Act on the ground that it holds no relevant records.
As has previously explained to the applicant in an earlier unrelated review involving UCD (Case 160377), the Act provides for a right of access to records held by FOI bodies. This means that if the information sought is not contained in a record held by the FOI body then the body cannot grant the request. The Act does not require FOI bodies to answer questions or to create records that do not exist. Where a request is made in the form of a request for specific information as opposed to a request for specific records, as was the case with the applicant's request, this Office takes the view that such requests should be treated as requests for relevant records that exist as of the date of the request that contain the information sought.
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the 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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, this Office 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.
In it submission to this Office, UCD said the NVRL does not employ the methodologies referenced in the request and therefore do not hold records to provide an answer to the applicant.
In his submission to this Office, the applicant stated that UCD correctly refused the first part of his request (a scientific paper which demonstrates how the Novel Coronavirus was purified) as he believes that “no scientist has ever purified the Novel Coronavirus”. He said he knows that this is correct “because the Novel Coronavirus does not exist, nor indeed does any other alleged pathogenic virus”.
In relation to the second part (details of how the NVRL would currently detect the Novel Coronavirus), it is clear that he does not agree that the article provided contains an appropriate methodology for the detection of “the Novel Coronavirus”. He believes that no such record can exist based on his belief that “the Novel Coronavirus does not exist, nor indeed does any other alleged pathogenic virus”.
In summary, therefore, the applicant has sought access to records that he believes do not exist. In essence, he accepts that no further relevant records exist. In the circumstances, I find that UCD was justified in refusing the applicant's request under section 15(1)(a) on the ground that it holds no further relevant records.
For the sake of completeness, I should add that the applicant identified in his submission a number of matters he believes UCD should explain relating to pathogenic viruses. The FOI act does not provide a mechanism for requiring public bodies to engage in debate on matters relating to their functions. It affords a right of access to records held by those bodies. If the records sought do not exist, that is the end of the matter. If the applicant wishes to make use of the FOI Act in future, he should have regard to this fact.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm UCD's decision to refuse the applicant's request on the ground that no relevant records exist.
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