Decision
Ms X and Workplace Relations Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-155836-H1N2B5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155836-H1N2B5
Published on
Whether the WRC was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant access to further records relating to complaints she submitted to the WRC on the ground that no further records exist or can be found
11 August 2025
On 3 April 2024, the applicant submitted a 9-part request for the following records relating to her case with the WRC:
1. The list of recorded evidence considered by the adjudication officer.
2. The Adjudicator’s decisions for any of her six complaints.
3. Formal record of the online hearing of the applicant’s case.
4. Record of any requests made by the WRC to the Respondent to provide evidence.
5. (a) Request from the Respondent in August 2023 for a postponement.
5. (b) Reasons for WRC to withhold the identity of legal representative and the request for postponement.
6. Record of the applicant’s “customer concerns” on a specified date and reasons for not responding to the concerns.
7. Document governing "Conduct of remote hearing and consideration of written submissions" including protocols and procedures in regards to real-time transcription of online hearings hosted by the WRC.
8. Decision to disable real-time transcription available in Webex platform by default for the host of remote adjudication hearings.
On 26 November 2024, the WRC issued its original decision, in which it part-granted the applicant’s request. The WRC provided the applicant with a schedule of the records it released relating to parts 1, 3, 4, 5(a), and 6 of the applicant’s request. In relation to part 2 of the applicant’s request, the WRC said the Adjudication Officer had not issued any decisions or recommendations up to the date of her FOI request. The WRC said it does not have any records of what occurred at the hearing. While not specifically requested by the applicant, the WRC also decided to provide her with a copy of her case file. The WRC said that no records exist in relation to parts 5(b), 7 and 8 of the applicant’s request.
The applicant applied for an internal review of the WRC’s decision and on 27 January 2025 the WRC affirmed its original decision. The WRC said that records had been released in relation to several parts of the applicant’s request on 26 and 27 November 2024, and that no records exist in relation to the remaining parts of her request, effectively refusing these parts of the applicant’s request under section 15(1)(a) of the FOI Act. In relation to part 2 of the applicant’s request, the WRC said that the Adjudication Officer’s Decision and Recommendation issued to the applicant on 7 November 2024. The WRC directed the applicant to its website for documentation relating to part 7 of her request about its procedures.
On 27 January 2025, the applicant applied to this Office for a review of the WRC’s decision. In her application to this Office, the applicant said she is seeking reasons, under section 10 of the FOI Act, why the WRC altered the schedule of records and concealed records from her in 2023. The applicant requested this Office to investigate this matter. She also said that the WRC did not provide reasons for concealment of the postponement request (parts 5(a) and 5(b) refer) and that reasons were not provided in relation to part 6 of her request. She also noted that no records were released in relation to parts 7 and 8 of her request.
During the course of this review, the Investigating Officer provided the applicant with details of the WRC’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to her request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which she 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 correspondence outlined above and to the submissions made by both the WRC and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the WRC was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s request dated 3 April 2024 as outlined above on the basis that no further records exist or can be found.
Before I address the substantive issues arising, I wish to make some preliminary comments.
First, in her application to this Office, the applicant said she is seeking reasons for certain decision made by the WRC in regard to her case. This review is solely concerned with the WRC’s decision on access to the records sought by the applicant in her request dated 3 April 2024. It is open to the applicant to make a separate application to the WRC under section 10 of the Act if she wishes to seek a statement of reasons under this provision of the FOI Act.
Second, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Third, the applicant made a number of comments about various actions, decisions, and inaction by the WRC in dealing with her complaints. It is important to note that this Office has no remit to investigate complaints, or to adjudicate on how the WRC, or any FOI bodies, perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Finally, the applicant indicated she was unhappy about the manner in which the WRC had released records to her. The applicant stated that the records had been released via an email ‘dump’, whereby 24 emails were sent over the course of 2 days with records attached to each. The applicant stated that she found this manner of release distressing and overwhelming. The Investigating Officer asked the WRC why the records were released in this manner. In response, the WRC stated that the size of the records being released meant that they had to be divided into smaller batches to allow for the email to deliver. The WRC stated that at the time it was standard practice for records to be released via email, along with the decision letter. However, the WRC said it has recently begun using ShareFile, which allows for larger volumes of records to be released to an applicant at once.
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. My 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.
In her application to this Office, the applicant provided a table outlining her position on the current status of each part of her request. In relation to part 1 of her request, the applicant stated that she believed the schedule of documentary evidence was altered. In relation to part 2 of her request, the applicant stated that the decisions were communicated at the hearing on a specified date. The applicant stated she wanted these decisions to be provided in writing. In relation to part 3 of her request, the applicant stated that no records had been released to her in relation to technical issues, decisions, or applications. She also stated her case was not “heard” at the public hearing. In relation to parts 7 and 8 of her request, the applicant stated that no records were released to her. Finally, the applicant said that no reasons were provided in response to parts 5 and 6 of her request. Essentially, it seems to me that the applicant believes further records ought to exist in relation to various parts of her request.
In its original and internal review decision, the WRC stated that, in relation to Part 1 of the applicant’s request, it has released all records of submissions it had received up to 3 April 2024. In relation to Part 2 of the applicant’s request, it stated that the Adjudication Officer’s Decisions and Recommendation issued to the applicant on 7 November 2024. In relation to Part 3 of the applicant’s request, the WRC said it released a schedule of letters that issued to the complainant and respondent sides notifying them of the hearing and copies of those two letters. The WRC said that it does not have any records of what occurred at the hearing, and as such no further records exist. In relation to Part 4 of the applicant’s request, the WRC said it does not have records of requests made by the WRC to the respondent to provide electronically stored evidence. It stated that it holds records of correspondence from the WRC to the respondent which mentions the provision of submissions, and it said that a record of this correspondence was released to the applicant. In relation to Part 5 (a) of the applicant’s request, the WRC said that it released a schedule and a copy of the records listing the postponement request. In relation to Part 5 (b) of the applicant’s request, the WRC said that no records exist in relation to the applicant’s request for records regarding the WRC withholding the identity of a legal representative and the request for postponement.
In regard to Part 6 of the applicant’s request, the WRC said that a schedule of listing the records of the applicant’s Customer Complaints correspondence, and copies of these records, were released to the applicant. The WRC said that as the complainant in the case, the applicant was entitled to obtain a copy of the WRC case file relating to her case. As such, the WRC said that it released a copy of its case file to the applicant. The WRC stated that the records released to the applicant included the Adjudication Officer’s decisions and recommendation which issued to her on 7 November 2024. In relation to Part 7 of the applicant’s request, the WRC stated that it holds no record dealing specifically with the issues the applicant raised in Part 7, but it stated that documentation regarding its adjudication hearings is available online. As such, it stated that no records existed in relation to this part of the applicant’s request. Finally, in relation to Part 8 of the applicant’s request, the WRC stated that it holds no records in relation to this part of the applicant’s request.
In support of its position as outlined above, the WRC provided this Office with submissions regarding the searches it carried out, as well as its record management practices. The WRC said it does not hold records of what occurs at an adjudication hearing. It stated that the only ‘record’ of a hearing is the written Decision of an Adjudication Officer. It stated that any note taken by an Adjudication Officer is for their own use and does not form part of the adjudication file. As such, it said there is no recording of adjudication hearings, and no record of the adjudication hearing in the applicant’s case.
The WRC stated that Adjudications Services has an electronic database of all adjudication files, which is used for recording correspondence/records relating to each file. The WRC said the Adjudication Services has an electronic file where all submissions and correspondence received from, and issued to, the parties are stored electronically. It stated this file is commonly referred to as the ‘Documents section’ or ‘the bundle’. The WRC said that most of the correspondence/records are saved in the Documents section/bundle of the file. Also, it said that additional correspondence may be saved in the Notes area, the Tasks area, or the Postponements/Objections area of the file. The WRC stated that all WRC records relating to the applicant’s case on the file were provided to the applicant, subject to redaction of minor amounts of data.
The WRC also said that Adjudication Services operates central email addresses for receipt of submissions, postponement applications and objections to the format (remote/in-person) of a hearing. It stated that its database of emails (Outlook) was searched for records falling within the scope of the applicant’s request using the file reference numbers and the applicant’s name to make sure all records were located which fell within the scope of the applicant’s request. It stated that its position is that all records located on its database of emails which fell within the scope of the applicant’s request were released to her on 26 and 27 November 2024.
In relation to its Record Management practices, the WRC stated that each Adjudication File, and the records on the file, are retained for at least 7 years. It said that emails to the central email addresses are generally kept for as long as memory storage permits, approximately 12-15 months. The WRC said that any emails which are relevant to the hearing/case are uploaded to the file at the time of processing, and therefore retained with the case file. Additionally, the WRC stated that submissions are acknowledged and copied to the other party. It stated that general queries from a party would not normally be copied to the other party in the case. The WRC said that its Case Officers, to whom emails are forwarded for processing, have limited memory capacity in their own email database (Outlook), so must delete emails regularly. It said that it is their practice to delete emails once they have been processed e.g. acknowledgment issued to the sender, copied to the other party, and uploaded to the file. The WRC said that any notes made by an Adjudication Officer at a hearing are not provided to Adjudications Services/the Workplace Relations Commissioner. It said that any notes are an aide for the adjudicators use only and do not form part of the adjudication file.
In its submissions to this Office, the WRC stated that it has no legislative basis to record adjudication hearings, and therefore it does not do so. The Investigating Officer sought to clarify why this was the case. In response, the WRC stated that there is no digital audio recording available, unlike in the courts service for example where such a recording may be available. The WRC stated that the only record of an Adjudication hearing is the Adjudication Decision which issues. It stated that Adjudication Officers sit alone and are independent in the running of the hearing assigned to them as per their legislative remit, which it said is as follows:
Section 40(8) of the Workplace Relations Act, 2015 states: “An adjudication officer shall be independent in the performance of his or her functions.”
Section 75(5) of the Employment Equality Act, 1998 states: “The Director General of the Workplace Relations Commission, mediation officers and adjudication officers shall be independent in the performance of their functions.”
On this topic, the WRC stated that Adjudication Officers are appointed pursuant to Section 40 of the Workplace Relations Act 2015. The WRC stated that Adjudication Officers are statutorily independent of the Workplace Relations Commissioner in the performance of their statutory functions. It said that Adjudication Services of the Workplace Relations Commission handles the administration of the complaint and the correspondence pre-hearing of an adjudication case. It said that Adjudication Officers independently make a written decision on the complaint before them, having reviewed all the submissions and correspondence relevant to the case. The WRC stated that the Adjudication Officer’s decision is uploaded to the case file once complete and is then sent to both parties involved. The WRC stated that once the decision is issued to both parties, that is the end of the case as far as the Workplace Relations Commission and the adjudicator is concerned. The WRC stated that the applicant was provided with a copy of the case file regarding her case, which included the Adjudication Officer’s Decisions and Recommendation which issued to her. The WRC stated this record was not directly requested by the applicant, and therefore was released to her outside of FOI.
In relation to Parts 7 and 8 of the applicant’s request, the WRC stated that no records were released in relation to either part 7 or part 8 as no such records exist. In Part 7 of the applicant’s request, she sought a “final document governing "Conduct of remote hearing and consideration of written submissions" including "Protocol(s) and procedure(s) finalised in regards to real time transcription of online hearings hosted by workplace relations commission.” In relation to this Part of her request, the WRC stated that it did not have one consolidated record which dealt specifically with all the subjects raised in Part 7 of the applicant’s request, however, the WRC stated that it had guidance documents available on its website which outlined the procedures in place regarding adjudication hearings. The WRC stated that when processing the applicant’s request the decision makers contacted the WRC legal unit, which has responsibility for creating and finalising all guidance and procedure documents, and asked them to confirm whether the guidance notes available online were the final documents governing the conduct of remote hearings and written submissions, as well as the procedures in place regarding real-time transcription. The WRC stated that the legal unit reviewed the applicant’s request, as well as the documents held, and confirmed that the final documents governing the procedures in place regarding adjudication hearings were the guidance notes published on the WRC website.
In relation to Part 8 of the applicant’s request, which sought records relating to the “decision to disable real-time transcription available in Webex platform by default for the host of remote adjudication hearings”, the WRC stated that no records existed. In its submissions to this Office, the WRC stated that it has always been the practice of the Workplace Relations Commission that adjudication hearings are not recorded. The WRC stated that hearings are regarded as private and confidential, and as such no recording is taken or permitted. It stated that it is a criminal offence to record a remote hearing without permission, as per section 31 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, as amended. The decision maker stated that it was her understanding that the transcription feature was not able to be turned on by the WRC on the Webex platform used for remote hearings, and that this was likely a licensing decision due to the fact that the WRC does not record hearings, either remote or in person, on the basis that such hearings are confidential and private. The decision maker stated that adjudication hearings are often heard in court settings, and that it is standard practice that all court recording functionality is turned off prior to an adjudication hearing taking place. Additionally, the decision maker stated that in exceptional circumstances a party before an adjudication hearing may choose to employ a stenographer, who will attend the hearing- if permitted- and will record the proceedings. However, she stated that this is extremely rare, and even in circumstances where one of the parties brings a stenographer, any record of the hearing created by said stenographer would not be considered a record held by the WRC, but instead would be solely held by the party who employed the stenographer. The decision maker stated no such arrangement was in place at the hearing in question which is the subject of this review. The WRC stated that its position is that adjudication hearings have never been recorded as a matter of course, and therefore real-time transcription services on the Webex platform have never been employed. The WRC stated that this has always been an accepted procedural practice, and as such no records exist relating to the decision to disable real-time transcription services, as the feature of real-time transcription was never enabled.
Finally, the applicant questioned why her FOI request was not published on the WRC’s FOI disclosure log. The WRC said that only non-personal FOI requests are published on its FOI disclosure log. As such, the WRC stated that because the applicant’s FOI request was predominantly related to a request for her case file, it was deemed a personal request and therefore not published on its FOI disclosure log.
For section 15(1)(a) to apply in any case, the FOI body must have taken all reasonable steps to ascertain the whereabouts of the records sought. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to the existence of certain records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist. It is also worth noting here that the FOI Act does not generally require FOI bodies to create records, if none exist, in order to address an applicant’s queries.
The question I must consider in this case is whether the WRC has taken all reasonable steps to ascertain the whereabouts of any further records sought coming with the scope of the applicant’s request. Having regard to;
• the WRC’s description of the searches actually undertaken,
• its explanation of its records management practices,
• its explanation regarding why no record exists of an adjudication hearing, including the legislative basis for this arrangement,
• its explanation as to why it considers that no further relevant records exist, and
• the absence of any evidence to suggest that further relevant searches might be warranted,
I am satisfied that it has. Accordingly, I find that the WRC was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records coming with the scope of the applicant’s request on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the WRC’s decision to refuse access to further records relating to the applicant’s request under sections 15(1)(a) of the Act.
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.
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Richard Crowley
Investigator