Decision
Ms M and National University of Ireland Maynooth
From Office of the Information Commissioner (OIC)
Case number: 130288
Published on
From Office of the Information Commissioner (OIC)
Case number: 130288
Published on
Whether the University was justified in its decision to refuse access to records relating to the applicant and a named third party under section 10(1)(a) of the FOI Act on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
10th February 2014
The applicant made a request on 29th August 2013 to Froebel College for access to records/data held by a named former lecturer in Froebel College of Education, that relate to the applicant and a named author. In its original decision Froebel College informed the applicant that it had no record of any information relating to the two individuals named in the applicants request, nor did they possess any emails or other communication from them about particular students. The applicant requested an Internal Review of this decision on 21st October 2013. This was carried out by NUI Maynooth as Froebel College had closed on 31st August 2013. After Internal Review the original decision was upheld and the applicant applied to this Office for a review on 18th November 2013.
I note that Mr David Logan of this Office advised the applicant that the decision of the University was justified in his view. The applicant did not offer any further submission to this Office on foot of this preliminary view and I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
• the University's decisions on the matter and its communications with this Office;
• the applicants communications with this Office and the University,
• the provisions of the FOI Act,
This review is concerned solely with the question of whether the Hospital was justified in its decision to refuse access to records on the grounds of section 10(1)(a) of the FOI Act on the basis that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Section 10(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner 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. It is not normally the Commissioner's function to search for records that a requester believes are in existence.
In a submission to this Office NUI Maynooth provided information relating to searches that were carried out to locate the records requested by the applicant. Searches were undertaken for both paper and electronic records pertaining to students and staff in the Administration Office of Froebel College. This included searches for records held in filing cabinets in this particular office while electronic databases were searched using keywords including the name of the applicant, the lecturer and the author named in the request. Paper and electronic records relating to incidents and complaints in Froebel College, held securely in the Administration Office of the Froebel Department of Primary and Early Childhood Education, were also searched. No records relating to the request were found during the course of any of these searches. The University have stated that there is nowhere else in NUI Maynooth that the records would be held.
NUI Maynooth also provided information regarding records originally held by Froebel College. Student Academic Records created since 2010 are held by NUI Maynooth while those created prior to 2010 are held by Trinity College Dublin which was the awarding body for Froebel College prior to its closure. These records largely consist of basic information such as examination results and records of modules taken by each student and are held in electronic form indefinitely. Other records created such as correspondence with students are retained for three years after the particular student has graduated. Given the lecturer in question retired in 2004 no records from this period would still be held by the University.
The position of the University is that it cannot find any further records appropriate to the applicant's FOI request. Having reviewed the steps taken to locate the records, I am satisfied that it has taken all reasonable steps to locate all such records and I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the University 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