Decision
Mr Y and Letterkenny Institute of Technology
From Office of the Information Commissioner (OIC)
Case number: 140056
Published on
From Office of the Information Commissioner (OIC)
Case number: 140056
Published on
Whether LYIT was justified, under section 10(1)(a) of the FOI Act, in its decision to refuse access to records relating to the applicant and his participation on entrepreneur development programme ("the Programme") in LYIT on the basis that records did not exist or could not be found after all reasonable steps to ascertain their whereabouts had been taken
9 July 2014
The applicant made an FOI request to LYIT on 10 December 2013 seeking all records held by the entrepreneur development Programme Manager ("the Programme Manager") in relation to him, including all paper records taken in meetings with him, emails written by the Programme Manager which related to or mentioned the applicant and all records held by the Programme Manager regarding the reasons for the continued non-payment of his stipend on the Programme.
On 13 January 2014 LYIT released 35 records in response to his request, with some redactions in relation to the personal information of third parties. The applicant sought an internal review of that decision on 12 February 2014, and requested all written notes taken in meetings with him, minutes of meetings held on 13 and 17 December and any other emails related to him not already released by LYIT in relation to his FOI request.
LYIT upheld its original decision on internal review on 27 February 2014 and stated that the relevant handwritten notes had been used to create formal typed documents, as was the normal practice, which were released to the applicant. It said that no notes were taken at the meeting on 13 December and the minutes of the Steering Committee meeting on 17 December were as set out in the timeline of events supplied to the applicant. LYIT also stated that all emails relating to the applicant's request had been released.
The applicant applied to this Office on 2 March 2014 for a review of LYIT's decision.
I note that Ms Sandra Murdiff, Investigating Officer in this Office, spoke to the applicant by telephone on 22 April 2014, in an effort to clarify the scope of his request. He confirmed verbally and in an email dated 19 May 2014 that he was of the opinion that emails between the Programme Manager and Enterprise Ireland existed which had not been released to him. As a result of correspondence from the applicant on 21 May 2014 Ms Murdiff made further enquiries with LYIT and 26 additional records, comprising emails to the Programme Manager regarding the applicant, were released on foot of this. Ms Murdiff contacted the applicant by email on 6 June 2014 and informed him, that having considered all of his comments and LYIT's further submissions, she was of the opinion that LYIT was justified in its decision under section 10(1)(a) of the Act. 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.
In conducting this review I have had regard to LYIT's decisions on the matter and its communications with this Office; the applicant's communications with this Office and LYIT; and the provisions of the FOI Act.
The scope of this review is solely concerned with whether or not LYIT was justified, under section 10(1)(a) of the FOI Act, in deciding to refuse the applicant's request for access to additional records relating to his participation on the entrepreneur development 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 LYIT 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 the 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.
LYIT has stated that it cannot locate further records in relation to the applicant's request. Accordingly, section 10(1)(a) of the FOI Act is relevant, which states "[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).
In submissions made to this Office, LYIT has provided details of its records management practices and procedures and the steps taken to locate and retrieve the records in relation to the applicant's request. Extensive electronic searches of Microsoft Outlook and the electronic file tree and physical searches of filing cabinets and file holdings were undertaken to locate records. Archived and backup electronic files were also searched. LYIT has released or part-released 61 records in total to the applicant, as set out in the schedules of records provided to this Office. I note that the applicant was not satisfied that written notes were not retained by LYIT once formal records were created from them, but I have no reason to doubt LYIT's assertions in this regard. The applicant was of the opinion that further emails between the Programme Director and Enterprise Ireland were not released to him, but he has provided no supporting evidence to suggest that other relevant records should, indeed, exist. Having reviewed the records released to him on 4 June 2014 and having considered LYIT's contention that all files have now been released, I am of the opinion that all reasonable steps have been taken by LYIT to locate the records sought.
The position of LYIT is that further 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 LYIT'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 LYIT 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