Decision
Mr X and Atlantic Technological University
From Office of the Information Commissioner (OIC)
Case number: OIC-126018-F3T2K9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-126018-F3T2K9
Published on
Whether the University was justified in refusing access to records relating to the applicant’s property and the N6 Kirwan Roundabout Upgrade under section 15(1)(a) of the FOI Act
03 January 2023
In his FOI request dated 8 April 2022, the applicant stated that his parent’s property was discussed in the context of the Kirwan Junction upgrade as part of the Certificate in Road Safety Audit and Engineering which is provided by the University. He requested all documents, lectures, tutorials and case studies related to his parent’s property and also any correspondence with Transport Infrastructure Ireland (TII) related to the Kirwan Junction. In a subsequent communication with the University, he confirmed that assignments submitted by students are outside the scope of this particular request. The applicant submitted a separate FOI request to the University for assignments submitted by students which discuss his parent’s property and assignment workshop recordings. He applied to this Office for a review of the University’s decision in that case which is reference number OIC-126022-G7D3H5.
In a decision dated 11 May 2022, the University granted partial access to the records concerned. The University located 14 records within the scope of the request, it granted access to three records and it refused access, in full or in part, to the remaining nine records under sections 30(1)(a) (Functions of FOI Bodies) and 37(1) (Personal Information) of the FOI Act. The applicant requested an internal review of the University’s decision. On 6 July 2022, the University affirmed its original decision. On 07 July 2022, the applicant applied to this Office for a review of the University’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 the applicant and to the submissions made by the University in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of this review, the applicant said the University has not listed any lecture or tutorial notes by lecturers on the Kirwan Junction upgrade on its schedule of records and he contended that such records ought to exist. He said the University refused access to the assignment project and associated scheme drawings under section 30(1)(a) of the Act. He said it was his understanding that the Kirwan Junction upgrade would not be used on future programmes and he contended that release of these records could not reasonably be expected to prejudice the effectiveness of future tests or examinations to be carried out by the University. Finally, the applicant said he was not seeking a review of the University’s decision to refuse access to parts of the records listed on the schedule of records under section 37(1) of the FOI Act.
As part of its submission, the University provided this Office with notes which were prepared by lecturers in advance of a feedback tutorial regarding the completed assignments. It said this record was not listed on its schedule of records as it relates to student assignments and it contended that it falls outside the scope of the request.
Following communications with this Office, the University decided to release additional records to the applicant including the project assignment, draft assignment and an email thread concerning the assignment.
Following receipt of these additional records, the applicant confirmed that he was agreeable to limiting the scope of this review to the question of whether the University was justified in refusing access to additional lecture notes, tutorial notes, case studies or documents related to the Kirwan Junction upgrade on the basis that no further records exist. In other words, whether section 15(1)(a) of the FOI Act applies to his FOI request and whether the University was justified in refusing access to the notes prepared by lecturers regarding the completed student assignments.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Section 15(1)(a) Adequacy of Searches
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that I must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In his application to OIC, the applicant said he understands that his parent’s property and their entrance/exit onto the Kirwan junction was discussed in a module of the "Certificate in Road Safety Audit and Engineering". He said this course was run in conjunction with Transport Infrastructure Ireland (TII), and that TII has staff members on the course as lecturers. The applicant said the University refused to release any information which highlighted why this junction was selected for the module, or release information in relation to any consensus of the safety aspect of his parent’s property. The applicant said the University ought to hold additional lecture notes, tutorial notes, case studies or documents related to the Kirwan Junction upgrade. In this regard, he said that while the University has located the assignment set for students, associated scheme drawings, road safety audit reports and emails discussing the assignment, it has not located any lecture or tutorial notes etc. by lecturers at the University on the Kirwan Junction upgrade and he contends that such records ought to exist.
During the review process, this Office requested the University to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made including those specifically mentioned by the applicant and to respond to detailed queries in relation to its record-management practices. The University’s response to these queries was provided to the applicant and is set out in summary here.
The University said the primary pedagogical methodology employed by lecturers was discussion and it was during these discussions that the learning took place. It said copious notes were not created by lecturers. It said any lecture or tutorial notes that do exist do not directly reference the Kirwan junction. It said that to illustrate this, the relevant PowerPoint slides (i.e. Unit 6 Lecture) are now being provided. It said the slides contain no information directly related to the junction, and they were used as placeholders for a verbal discussion about how the Stage 2 RSA assignment was to be carried out by the students. The University said that the team meetings as part of the Stage 2 RSA assignment were held by each of the team groups which are students only. It said that students may have taken notes at the meetings as they discussed problems and recommendations, but these notes (if they exist) were not shared with or requested by the lecturers and no notes were prepared by or taken by the lecturers.
The University stated that a feedback tutorial was facilitated by lecturers and consisted of discussions regarding the completed assignments. It stated that while lecturers prepared notes in advance, and a record is now being provided by way of illustration, this record was not released as the comments in it relate to the work of the students. The University stated that the student assignments (and therefore, by extension, any comments relating to their assignments as noted in this record) did not fall within the scope of this request which is why the schedule of records made no reference to the assignments, or to records containing comments on the assignments. It stated that the record containing the comments would not have been released in any event, as it comprises the personal information of the students.
The University stated that the locations searched for lecture notes, tutorial notes, case studies and related documents included visual and electronic searches of digital files and folders within project directories relating to Road Safety Audit training on (i) the file server and (ii) the OneDrive. It said keywords used in the search were ‘Kirwan’, ‘Stage 2 RSA’, ‘Stage 2 RSA Assignment’ and it said notes and documents are not likely to reside in other Departments or folders due to a regimented file storage system. The University said any written correspondence with TII occurred via email. It said the exact locations searched for email correspondence with TII include electronic searches of emails (received and sent) within the MS Outlook accounts of the relevant lecturers, all of which are stored on email servers. The University said that keywords were used in the search which were ‘Kirwan’, ‘Stage 2 RSA’, ‘Stage 2 RSA Assignment’, ‘TII’. The University said that its searches have not resulted in the location of any additional records within the scope of the request and it believes that all relevant records have already been located.
Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.
While the applicant contends that the University ought to hold lecture notes on the Kirwan Junction, I have examined the relevant PowerPoint slides for the unit 6 lecture on road safety audits which were provided by the University and I accept that they do not contain information directly related to the Kirwan junction. I also accept that these slides were used as part of the verbal discussion about how the Stage 2 RSA assignment was to be carried out by the students. Following completion of the assignment, a feedback tutorial was facilitated by lecturers who prepared notes in advance of the feedback discussion on the assignment. These notes have been provided to this Office and they do contain information relating to the Kirwan Junction and the applicant’s property. I do not accept that because the applicant excluded the assignments and the assignment workshop recording from the scope of his request, that by extension he also excluded lecturer’s notes on the assignments from the scope of his request.
Taking into account the search details provided by the University, its responses to the applicant's points above, and to this Office's queries, I am satisfied that the University has conducted reasonable searches to locate records that fall within the scope of the applicant’s request and I find that section 15(1)(a) applies to his request. However, I am not satisfied that the lecturer’s notes on the assignment fall outside the scope of the applicant’s request and I consider that the most appropriate course of action is to direct the University to undertake a fresh decision making process in respect of this record.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the University’s decision. I find that the University has conducted reasonable searches to locate records that fall within the scope of the applicant’s request and section 15(1)(a) applies to his request. I find that the University was not justified in excluding lecturers notes on the assignment from the scope of his request and I direct the University to undertake a fresh decision making process in respect of this record.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Jim Stokes, investigator