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Case Number: 170118

Whether QQI was justified in refusing the applicant's request for further records relating to a specific complaint he made to QQI under section 15(1)(a) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a detailed nine-part request to QQI on 28 November 2016 for access to personal and non-personal records concerning a specific complaint he had made about a certain third-level course. In its decision of 12 January 2017, QQI stated that it had decided to grant the request in full and it released a number of records it had located. On 19 January 2017, the applicant sought an internal review of that decision on the ground that he did not receive all relevant records. Following an internal review, QQI varied its original decision, granting access to 43 additional records identified arising from further searches. It also stated that it held no non-personal records of the type sought by the applicant at parts (a) to (c) of his request. The applicant subsequently sought a review by this Office of QQI's decision on the ground that further relevant records ought to exist.

I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the relevant correspondence between the applicant and QQI and to the correspondence between this Office and both the applicant and QQI on the matter, including the various detailed submissions the applicant made to this Office.

Scope of Review

During the course of the review, the applicant expressed concerns about the manner in which QQI processed his FOI request. While I have included some comments below on the processing of the request, this review has been conducted under section 22 of the Act and is therefore confined to a review of the decision taken by QQI on the FOI request.

Furthermore, the applicant also expressed concerns that this Office had not agreed to consider QQI's handling of his request for amendment of a particular record. However, as Mr Flood of this Office has already explained, the request for amendment did not form part of the original request and cannot, therefore, form part of this particular review.

QQI argued that it provided all relevant records coming within the scope of his request. This review is therefore concerned solely with whether QQI was justified in refusing access to additional relevant records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

QQI informed this Office that all relevant staff members who dealt with the applicant were contacted in relation to the FOI request and relevant documentation was provided by those staff members. It further stated that an archive box of records was also searched, comprising mainly copies of the email traffic on the matter. It stated that there were no further locations in which relevant records might be held.

During the course of the review, the applicant made detailed submissions outlining why he considered that other relevant records should exist. Among other things, he argued that other relevant records ought to exist if QQI kept appropriate relevant records regarding its role in the consideration of his complaint. It is important to note that the FOI Act provides for a right of access to records that exist at the time of a request but it does not provide for a right of access to records an applicant considers ought to exist. Furthermore, the Act does not require absolute certainty regarding the existence or location of records because situations arise where records are lost, destroyed or simply cannot be found. It is also important to note that the appropriateness, or otherwise, of QQI's records management practices in relation to its consideration of complaints is not a matter for this Office to examine.

The applicant also expressed concerns about the absence of seven pages from a record already released and about the absence of records concerning a specific query that was recorded on QQI's online query system. Following a number of exchanges of correspondence with this Office, QQI subsequently released the seven pages in question. It also released screenshots of the online query and a copy of an email which indicated that the query had been assigned to a particular member of staff.

QQI was not in a position to provide a satisfactory response as to why the records in question were not located and released on foot of the original searches. It suggested that the omissions were merely an oversight, or administrative error. In my view, its handling of the request, from the outset, was far from satisfactory. The covering letter that QQI issued when releasing the first set of records could not be described as a decision letter. It did not comply with the requirements of section 13. In particular, it did not contain details of the rights of review and appeal under the Act. Furthermore, no schedule of records was provided. FOI bodies are required to have regard to the Code of Practice published by the Minister for Public Expenditure and Reform. Among other things the Code provides that a schedule of records should be provided. I would strongly urge QQI to make use of the detailed guidance that the Department of Public Expenditure and Reform's Central Policy Unit has made available on its website www.foi.gov.ie.

I can also understand why the applicant continues to find it difficult to accept that all relevant records have been considered for release, given the piecemeal release of further relevant records during the course of this review. Nevertheless, I accept that the failure to release all relevant records in the first instance was due to an oversight, although I would expect QQI to adopt more rigorous search procedures for future requests to ensure that all relevant records are identified from the outset.

As I have outlined above, the only question I am considering is whether QQI has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant's request. Having regard to QQI's description of the searches it has undertaken and in light of the recent release of additional records, I am satisfied that it has. I find, therefore, that QQI was justified in refusing to release additional relevant records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of QQI to refuse to release additional records coming within the scope of the applicant's FOI request under section 15(1)(a) of the FOI Act.

Right of Appeal

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