Cinneadh
Mr Y and Cork Education and Training Board
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148638-D6J0S1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148638-D6J0S1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether CETB was justified in refusing, under sections 15(1)(c) and 15(1)(a) of the FOI Act, the applicant’s request for copies of ‘Student Schedule’ documents for each CETB School of Music teacher for the five academic years in the period 2019-2024 and for the total number of student vacancies and the total hours of those vacancies filled between two specified dates
13 January 2025
On 7 November 2023, the applicant submitted a two-part FOI request to CETB, as follows:
1. Copies of all ‘Student Schedule’ documents for each Cork ETB School of Music teacher (example copy of 2023-24 Student Schedule attached) showing; Teaching centre locations; lesson times; rest breaks; student vacancies and the total number of hours taught per week for the following years: 2019-2020, 2020-2021, 2021-2022, 2022-2023, 2023-2024
2. The total number of student vacancies and the total hours of those vacancies filled between the 2nd October 2023 … up to the date in November 2023 on which the requested Student Schedules were copied for this FOI request with a statement of that date
CETB contacted the applicant by email on 17 November 2023 to inform him that processing the request would cause a substantial disruption to the work of the administration of the CETB School of Music and the Corporate Services department which manages FOI requests and asked him to revise the scope of the request. It suggested, by way of example, that he might wish to consider if there are particular teachers or centres for which he wished to request the schedules. It contacted him again on 28 November 2023 to reiterate its offer of assistance as it had received no reply to its earlier email. In an email dated 1 December 2023, the applicant suggested that to assist in reducing any further time taken in providing copies of the requested 'Student Schedule' documents, CETB might consider not redacting them since the applicant is a CETB employee and is therefore already bound by GDPR. He also commented upon a separate FOI request he had made.
CETB wrote to the applicant on 14 December 2023 and said that as the only suggestion from the applicant was to not redact the records at issue, it still considered his request to be voluminous and if he did not refine or limit the scope of his request further, his request might be refused. On the same day, the applicant responded to CETB’s email and said he had agreed to refine the scope of his FOI requests by excluding a certain category of record that he had sought in the separate FOI request. He sent a further email on 15 December 2023, in which he said that his understanding was CETB had the Student Schedule documents sought in its possession, and therefore its claim that retrieving the records would cause a substantial and unreasonable interference to CETB’s work was exaggerated and unfounded. He stated again that as a CETB employee he was bound by the provisions of GDPR and therefore the records would not need to be redacted.
In its decision dated 22 December 2023, CETB refused the request under section 15(1)(c) on the ground that the request was voluminous and would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of CETB.
The applicant sought an internal review of that decision on 19 January 2024, following which CETB varied its original decision. It refused part one of the request under section 15(1)(c), and refused part two of the request under section 15(1)(a) on the ground that no relevant record exists and it was not required to create a new record pursuant to section 17(4) of the Act. On 29 April 2024, the applicant sought a review by this Office of CETB’s decision.
During the course of the review, this Office’s Investigating Officer provided the applicant with details of CETB’s submissions wherein it outlined its reasons for refusing part one of the request under section 15(1)(c) and for concluding that no records related to part two of the request exist or can be found. The Investigating Officer invited the applicant to make submissions on the matter, which he 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 referred to above and to the submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether CETB was justified in refusing the applicant’s request under sections 15(1)(a) and 15(1)(c) of the FOI Act.
Before I address the substantive issues arising in this case, I wish to address a number of preliminary matters.
First, I note that the applicant indicated in his correspondence both with CETB and with this Office that the documents and information sought are required in relation to a Protected Disclosure submitted to the Comptroller and Auditor General. Section 13(4) of the FOI 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. As such, this Office cannot have regard to the reasons given by the applicant for seeking access to the records concerned in considering whether CETB was justified in refusing the request.
Secondly, I wish to address the applicant’s assertion that CETB’s refusal to provide information he sought in relation to the Protected Disclosure made constitutes an offence under Protected Disclosure legislation and a related request that this Office make a determination on whether an aspect of CETB’s protected disclosures policy is in conflict with the purpose and intention of the FOI Act. It is important to note that the role of this Office is confined to a consideration of whether the decision made by CETB on his request is in accordance with the FOI Act. Our remit does not extend to examining the manner in which an FOI body performs its functions generally, to investigating complaints against an FOI body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, it is not a matter for this Office to consider if CETB’s refusal of his request breached Protected Disclosure legislation or if its Protected Disclosure Policy is in conflict with the FOI Act.
Thirdly, the applicant also suggested that the handling of his request by particular decision makers gave rise to a conflict of interest in light of the relevance of the information sought to the Protected Disclosure made. It is a matter for the FOI body itself to decide which of its staff members are best placed to process FOI requests. Indeed, it is often the case that FOI bodies appoint decision makers who are most familiar with the subject matter of the request as they are often best placed to make determinations on the release of relevant records. This Office has no role in considering the appropriateness or otherwise of specific decision makers having been involved in the processing of the applicant’s request.
Finally, I note that the applicant asked that his request for records should include records that existed at the date of the processing of his request, as opposed to being confined to those that existed at the date of his request. While it is entirely a matter for an FOI body as to whether it wishes to do so, the right of access afforded by the FOI Act extends to records actually held by the body when the request is received and does not include records that have yet to come into existence at that time.
Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body. Section 15(4) of the Act provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether CETB was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.
As noted above, CETB wrote to the applicant on 17 November 2023 explaining that his request would likely fall to be refused under section 15(1)(c) of the Act. It invited the applicant to amend his request and offered some suggestions about how he might do so. It wrote again on 28 November 2023 to give the applicant a further opportunity to refine his request. While CETB determined that the subsequent suggestion made by the applicant did not materially affect its position that the request fell to be refused under section 15(1)(c), I am satisfied that CETB complied with the provisions of section 15(4) of the Act. I will now go on to consider whether it was justified in refusing the request under section 15(1)(c) of the Act.
Submissions of the parties
As noted above, the applicant and CETB made submissions to this Office in the course of the review. While I do not propose to repeat details of those submissions in full here, I can confirm that I have had regard to them in their entirety for the purposes of this review.
The essence of CETB’s position is that granting part one of the request would cause a substantial and unreasonable interference with or disruption of the work of CETB due to the number of records involved and the need to redact large amounts of personal information from those records. It said that there are approximately 60 members of teaching staff in the School of Music (with this number varying slightly year on year due to retirement and recruitment), a Principal, a Deputy Principal and two members of administration staff at clerical officer grade. It said that the School of Music’s administrative offices and management are based in offices at the CETB Bishopstown Campus in Cork City, which also hosts other services and education providers. It said the School of Music does not have its own dedicated building, rather operating from available premises across Cork City and County in 43 venues. It said that this means that teaching staff are based across the county.
CETB added that while systems have been digitised, where possible, there are still some legacy arrangements in place, e.g. some schools still pay fees by cheque. It said that teachers also by necessity have a high degree of input into the scheduling of their classes to accommodate parental preferences and requests where possible. It said that it is also the case that details of attendance are recorded manually by teachers in hardcopy roll books, which are maintained by each teacher throughout the academic year and handed over to the School of Music for storage and retention at the end of the academic year. It said that while roll books for 2019 to 2022 are held either at the School of Music office or can be retrieved from secure storage, roll books for each teacher for the 2023/24 academic year were, at the time of the request, in the possession of each teacher. It said that teachers are required, as part of their duties, to keep their roll books up to date by recording attendances on an ongoing basis.
In its submissions, CETB said that the records that were required to be retrieved to grant part one of the applicant’s FOI request consisted of the Student Schedule for each teacher for each of the five academic years sought in the FOI request. It said the Student Schedule is an online representation of elements of the hardcopy roll book that each teacher keeps, and includes details of the teacher’s timetable, student and parent details, instrument, grade/level at which the student is being taught etc. CETB said that these Schedules are used for a variety of purposes, the main ones being the filling of vacancies and the management of substitution for sick leave etc. It said that the Student Schedule documents are held in Sharepoint, which is administered by the School of Music. It said that these schedules are maintained jointly by the School of Music administrative staff, and the relevant teacher, both of whom have rights to edit the documents. It said that previously these records were held in Google Drive and that when the School of Music moved to the Office 365 platform in 2022, the Google records were made unavailable to teachers and are therefore functionally archived, in that they are not in daily use. It said that, however, that the School of Music management retain access to these records for administrative purposes. CETB said that considerable work was completed to streamline the Student Schedule formatting and process as part of the move to the Office 365 platform. It said that prior to this, the Student Schedules were not maintained in the systematic way that they now are by all teachers, as the hardcopy roll book was the ultimate source of authority.
CETB said that if the Student Schedules were static and not live, fulfilling part one of the FOI request would require the search for, downloading and preparation of approximately 300 documents (60 members of staff x 5 years). It said, however, that Student Schedules are not static documents issued at the start of the year, but are live online documents, which are updated during the course of the academic year to reflect changes in student registration, filling of vacancies, changes in rooms to which teachers are assigned etc. It said that this means that changes are frequently made in the documents, overwriting previous details.
CETB noted that the applicant had submitted a previous request for a copy of his own schedule from the 2018/19 academic year. It said that this was considered as a sample search for the purposes of this request. It said that this particular document was held in Google Drive archives. It said that on review of this particular record, it found that the applicant had overwritten his schedule in the year in question, and subsequent years. CETB said that this therefore required the restoration of the file through online version history in order to process the request. It said that when this process was completed, it found that there were 42 versions of the schedule over the course of the year, comprising 72 pages of records. CETB said that it took the individual who processed this restoration a half day’s work to retrieve, restore and download all the versions for the year.
CETB further said that in considering sample searches, it was also the case that some teachers have a full timetable with no or minimal changes during the year and may only have one or two versions of the schedule. It said that in a brief review of records chosen at random, the number of versions of the schedule in the version history were as follows:
• It said Teacher A had 19 versions in the version history for the 2022/23 academic year.
• It said Teacher B had 62 versions in the 2020/21 year.
• It said Teacher C had one version in the 2023/24 academic year.
• It said Teacher D had records in place in the Google Drive records for each of the following years – 2019/20, 2020/21, 2021/22, 2022/23 but retained ownership of the file and therefore the school management had no access to version history and this would need to be requested from the teacher.
• It said Teacher E had 5 versions in the version history for the 2020/21 academic year.
CETB said that, additionally, upon review of the applicant’s own records, it was evident that the 2019/20 and 2021/22 academic years had been completely overwritten and would require being fully restored through version history. It said that the issue of records held on local drives was also considered. It said that it was estimated that 12‒15 teachers may have versions of their schedule that were updated at local level in the early years of the period specified by the applicant in his FOI request.
In its submissions, CETB said that, based on the consideration of the records required, it was estimated that, on a conservative basis, an average minimum of 5 records would exist for each teacher for each year in question. It said that this would amount to 1,500 records approximately. CETB said that the Student Schedule documents are held in Google Drive archives for the academic years prior to 2022. It said that, due to this, each file would require identification, crosschecking to establish how many updates or versions were in existence, restoration through version history, saving as an individual Excel worksheet and downloading each worksheet into a PDF format. CETB said that this is a task that must be completed by a member of administrative staff and there is no automatic system to download such reports. It said that the process for the retrieval of each record was estimated at 5 minutes per record, to ensure that it was restored, downloaded and saved correctly for further examination by the CETB FOI team. CETB said that this estimate is the minimum amount of time required to complete this task. It said that due to the issues with version control, file ownership and local schedules, it was of the view that a significant degree of manual checking against hardcopy roll books might also be required in order to accurately provide the information requested.
CETB said that the above estimate of time required to search for, restore and retrieve the documents required would be well in excess of the upper ceiling prescribed in the FOI legislation as being the maximum figure for which fees can be charged. It said that working on the basis of an estimate of 1,500 documents, there would be approximately 125 hours of work associated with the request. It said that the School of Music has two clerical officers, who have a wide range of essential duties, including the filling of vacancies, administration of the registration process, management of waiting lists, administering fee payment, dealing with queries from parents, students and colleagues, and providing administrative support to the management team. It said it was the view of the Principal and the FOI Officer that the significant amount of hours required to process this request would have a disruptive effect on the administrative staff, requiring a considerable amount of time and interfering with their normal duties, which are substantial.
CETB said that the estimate above does not account for the time required to redact the personal details from each document, which it assessed would be required under section 37 of the Act, as these documents contain the personal details of minors, and their parents, and that release under the FOI Act is considered to be release to the public at large. It said that these personal details include student name, parent contact phone numbers, parent email address, lesson time, etc. CETB said that its redaction process includes the use of Adobe Acrobat software to digitally redact the records. It said that once redacted through Adobe, records are then printed and scanned, to prevent the redactions made in the software being undone digitally. It said that while Adobe Acrobat allows certain scanned documents to be redacted in bulk, other documents, particularly those saved in PDF from another digital file format, require redaction by selecting text on a line by line basis. It said that this would be the case for a large number of the files. It said that based on the redaction techniques used in Adobe Acrobat, it estimated that at a minimum each document would take 5‒10 minutes to examine, redact, print and save for release. It said that this would result in a similar disruption to the work of the Corporate Services department as the retrieval process. It said that using the minimum figure of 5 minutes per document, this work would take in excess of three working weeks for a staff member to complete.
As outlined above, the applicant was provided details of CETB’s submissions and invited to make submissions by this Office, which he duly did. In his submissions, the applicant said that every person has a right to and shall, on request therefore, be offered access to records held by a public body under the FOI Act, and disclosure of the information requested is in the public interest in this case. He made a number of submissions on the public interest, as well as on his reasons for seeking access to the information at issue in this review. He said that national legislation and EU Directives on the disclosure of information by public bodies and transparency and accountability require that CETB must make that information available so that it can be publicly scrutinised.
My Analysis
In establishing whether a request would cause a substantial and unreasonable interference with or disruption of work, the number of records which need to be retrieved and examined and /or the kind of examination which is required are relevant. A number of factors may have a bearing on this issue, such as:
• the nature and number of the records covered by the request;
• the location(s) in which they are held or stored and whether these are readily identifiable;
• how the records are stored or filed and the relevant filing system;
• the tasks or steps necessary to search for, identify, locate, retrieve and examine the records;
• the nature and number of the relevant records to be examined;
• the length of time and the personnel required to do so;
• the length of time required to consider the records in order to determine their relevance to the request and whether they are appropriate for release; and
• the size, staffing levels and work of the FOI body (including the relevant functional area) concerned.
It should be noted that a refusal may be made on the basis of a disruption of the work of a particular functional area within the FOI body, and not necessarily on the basis of disruption of work of the body as a whole.
While the applicant made substantial submissions on non-FOI-related matters and on the public interest in the information at issue being released, he does not appear to dispute CETB’s estimates of the number of records involved or the estimates of time required in order to process part one of his request. Rather, his submissions appear to be, in summary, that the public interest in the information justifies the processing of the request regardless of the number of records and/or hours involved in doing so. The question of whether or not the granting of a request is in the public interest is not a valid consideration in determining whether a request falls to be refused under section 15(1)(c). The section is an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. While the applicant submits that other ETBs were able to process similar FOI requests, those decisions are not the subject of this review. This review is solely concerned with whether, based on the information provided by both CETB and the applicant, the decision to refuse part one of the applicant’s FOI request was justified.
I note the applicant’s argument that CETB could consider not redacting the records in light of the fact that he is a CETB employee and is therefore already bound by GDPR and that he undertook not to share the records. It is important to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put. Accordingly, the fact that the applicant is a CETB employee is of no relevance to the question of whether certain information in the records comprises personal information that may fall for redaction. Moreover, the applicant’s undertaking not to share the records is of no value in circumstances where the FOI Act does not make any provision for restricting the use of information released pursuant to an FOI request. In any event, CETB’s position is that the processing of the request, even before any consideration is given to the length of time that would be required to redact the relevant records, would cause a substantial and unreasonable interference with or disruption of its work.
In the circumstances, having taken into consideration the submissions made by both CETB and the applicant, I accept CETB’s estimate of time and resources that would be required to retrieve and examine the records at issue in this case. I am satisfied from CETB’s description of the work involved that processing the request as it stands would cause a substantial and unreasonable interference with, and disruption of, the work, not only of the FOI Unit but potentially other sections within CETB. Accordingly, I find that CETB was justified in its decision to refuse part one of the applicant’s request under section 15(1)(c) of the FOI Act.
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. Our 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 his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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.
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
In considering whether CETB holds relevant records in this case, I have also had regard to section 17(4) of the Act. That section provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. If the reasonable steps result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.
The essential purpose of section 17(4) of the FOI Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. However, if the body does not hold a record containing the information sought and cannot search for and extract the information from electronically held records by taking reasonable steps, then that is the end of the matter. Where the search and extraction needed to collate or extract information requires an FOI body to go beyond reasonable steps, section 15(1)(a) can be relied upon to refuse a request i.e. that no relevant record exists having taken all reasonable steps to locate it.
Submissions of the parties
In summary, CETB’s position is that the record sought does not exist, and it would be necessary to take manual steps to compile the data that would not be considered ‘reasonable steps’ for the purposes of section 17(4). In its submission to this Office, it said that in order to respond to part two of the applicant’s FOI request, each teacher’s Student Schedule would have to be reviewed, and a qualitative check done to establish if a vacancy was in existence as at 2 October 2023. It said that the primary location where information is held regarding the filling of vacancies is in the online Student Schedule. It said that the Student Schedule is a digital representation of elements of the roll book, including the timetable, student details etc., but does not contain records of attendance. It said that all of the Student Schedules, including the different versions, would need to be retrieved in order to examine them.
CETB said that as the Student Schedules are live documents and updated throughout the year, review of a single version of the Schedule would only provide a point in time analysis of vacancies a teacher held. It said that if a vacancy had arisen in, for example, October, this would not be evident in the original record, and would only appear once the vacancy was established, and then when the vacancy was filled, the details input would override the vacancy details. It said that for this reason, each version of the Student Schedule would need to be searched for, retrieved, examined and prepared for issue to respond to this request. It said that these figures would then need to be manually recorded, creating a new record for same. It said, however, that as attendance is not recorded in the Student Schedule, an additional check would need to be conducted with each teacher to establish if the student had commenced attending. It said that this would require teachers to submit a copy of their hardcopy roll book (as the original could not be submitted, due to the requirement to record attendance on an ongoing basis) and for this to be crosschecked with the other information gathered in order to provide an accurate figure. CETB said that it had estimated that there are approximately 165 roll books each year and individual roll books hold the details of 8 to 30 students.
CETB added that if students leave e.g. at the start of or during the school year, the Schedule and roll book are updated as outlined above, but the teacher also notifies the School of Music management and administration of the changes through dedicated email accounts, in order to trigger the vacancy-filling process, and to ensure that their fees are discontinued/changed as necessary. It said that once vacancies are established and recorded, the administrative staff then review the vacancies in individual teachers’ Student Schedules and the waiting list for the subject and location to establish who is the next person on the waiting list, and contacts the parents in order of their entry onto the waiting lists to establish their interest. CETB said that where a parent decides to take an offer of a place, the student proceeds through the registration process and the relevant Student Schedule is updated with the required details. It said that details of the appropriate grade may not be confirmed until the student has commenced lessons, as the teacher will need to assess their ability and will update the Student Schedule accordingly thereafter. It said that, for certain instruments, where physical milestones must be met prior to a student commencing, a prospective student may be placed on the Student Schedule for assessment prior to a place being confirmed, depending on the outcome of that assessment. CETB said that the vacancy is considered to be filled when the student has been successfully confirmed, has entered into the registration process and has commenced attending their lesson.
It said that, however, information regarding some vacancies occurring outside of the normal end of year process are also recorded in the dedicated email account to which teachers are required to forward vacancy details. CETB said that in order to provide the records requested, all emails from teachers would also have to be manually reviewed individually for each teacher concerned to extract and compile the information required. It said that every teacher’s Student Schedule and its version history would need to be reviewed, to establish which vacancies had been filled, and a manual count would also be required.
As noted above, the reasonable steps envisaged by section 17(4) of the FOI Act are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. CETB said that essentially, noting the steps as outlined above, it would not have a facility to extract the information sought by the taking of reasonable steps. CETB said that it would require manual compilation through the examination of hardcopy records (roll books) and electronic records (Student Schedules and emails). It said that as manual compilation would be necessary, and hardcopy records would have to be examined in order to create a record fulfilling part two of the applicant’s FOI request, it was of the view that section 17(4) does not apply. CETB said that it was therefore refusing part two of the applicant’s FOI request on the ground that no record exists.
In his submissions to CETB and this Office, the applicant’s main contention appears to be that, given the existence of the Student Schedules and the relevant information, as well as the fact that he was able to acquire similar information from other ETBs, CETB cannot refuse part two of his request under section 15(1)(a). Furthermore, he said that the record requested should be provided in the public interest.
My Analysis
Based on the submissions above, it appears that the information required to compile the details sought in part two of the applicant’s request may well exist in multiple records, held both in electronic and in hardcopy form. While I have considered the applicant’s argument that CETB ought to be able to extract the information from the Student Schedule records, I must consider whether such information can be extracted electronically by the taking of reasonable steps as required under section 17(4) of the Act. Having regard to CETB’s submissions, I am satisfied that it cannot. Given CETB’s submissions concerning its record management practices in relation to the records at issue in this case and the work required to compile the relevant details, I am satisfied that the information is contained in records in a format that does not facilitate the use of an electronic search or extraction facility that was used ordinarily by CETB. I am also satisfied that CETB is not required to create a record in circumstances where the information sought would need to be extracted manually from the records it holds. Accordingly, I am satisfied in this case that CETB does not hold a record containing the information sought by the applicant and that it was not required to create a record containing the information pursuant to section 17(4) of the Act.
The applicant does not appear to dispute the steps outlined by CETB that it said were necessary to the compilation of the information sought. Rather, his submissions appear to be, in summary, that other ETBs were able to compile similar information, and the public interest in the information justifies the processing of the request regardless of the methods required to do so. Similar to section 15(1)(c), the question of whether or not the granting of a request is in the public interest is not a valid consideration in determining whether a request falls to be refused under section 15(1)(a). Either the record sought is held by the FOI body or it is not. Having regard to the submissions of both parties, and in the absence of any evidence to the contrary, I am satisfied that CETB has adequately explained why it holds no such record and why it is unable to determine the vacancy numbers from its records and record management systems. Accordingly, I find that CETB was justified in refusing part two of the applicant’s request under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm CETB’s decision to refuse the applicant’s request under sections 15(1)(a) and 15(1)(c) of the FOI 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.
Stephen Rafferty
Senior Investigator