Whether the Department was justified in its decision to refuse the applicant-�s request for access to further records of communications concerning proposals to build a school in a specified location under section 15(1)(a) of the FOI Act

09/08/2018

Background

On 1 February 2018, the applicant submitted a request to the Department for all communication records from January 2016 between the Department, Kildare and Wicklow Education and Training Board (KWETB) and Educate Together (NWET) in relation to any suggested plans or proposals for the building of a school or other similarly purposed structure on the campus of Bray Institute of Further Education (BIFE).

On 27 February 2018, the Department granted the request and provided copies of three records.  On 13 March 2018, the applicant sought an internal review of that decision as she was of the view that additional records should exist. The Department issued its internal review decision on 11 April 2018 in which it affirmed its original decision.  On 19 April 2018, the applicant sought a review by this Office of the Department-�s decision.

During the course of the review, the Department provided this Office with the details of the searches carried out to locate all relevant records.  Ms Swanwick of this Office outlined the details of those searches to the applicant and informed the applicant of her view that the Department was justified in refusing access to additional records on the ground that no further relevant records exist or can be found. The applicant indicated that she wished the review to proceed and, as such, I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. 

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to further relevant records coming within the scope of the applicant-�s request for all communication records from 2016 between the Department, KWETB and NWET in relation to plans or proposals to build a school or other similarly purposed structure on the campus of BIFE.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified.  This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In submissions to this Office, the Department provided details of the searches conducted to locate the records sought by the applicant. As Ms Swanwick has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, the Department identified the relevant search terms used and stated that electronic and hard copy searches were carried out within the School Capital and Appraisal Section and the Site Acquisitions and Property Management Section and that an electronic search was carried out of files held in the Department-�s off-site storage facility.  The Department also stated that the individual identified by the applicant confirmed that he held no relevant records.
Essentially the three records located concern a request by the Department to the KWETB for approval to progress a proposal to provide accommodation for the ETB on the BIFE site along with permanent accommodation for NWET, KWETB approval for the proposal, and notification to NWET of the proposal.
The applicant has suggested that other relevant records exist. During the course of this review the applicant stated that she was aware of correspondence between KWETB and a named official of the Department. The named official stated that he holds no such records. The applicant also indicated that she was aware of correspondence issued by the Department regarding plans for BIFE that were supplied to a former public representative. However, as Ms Swanwick informed the applicant, such records, if they exist, do not come within the scope of this review, which is limited to correspondence between the Department, KWETB and NWET.

It is the Department-�s position that all relevant records have been released and that no further records exist. While the applicant may be unhappy with the Department-�s response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist.  Having considered the Department-�s description of the searches undertaken, I am satisfied that the Department has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. I find, therefore, that the Department was justified in refusing access to any additional 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 the Department to refuse access to further records coming within the scope of the applicant-�s 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