Whether the SEC was justified in refusing access to an examination result from 1957 under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist or cannot be found

2 August 2019

Background

On 26 March 2019 the applicant made a request to the SEC for a certified Statement of Results for a Woodwork Group Examination he stated he had undertaken in 1957. On 24 April 2019 the SEC issued a decision in which it refused the applicant’s request under section 15(1)(a) stating that despite extensive searches no woodwork result from that year could be sourced relating to the applicant.

The applicant sought an internal review of that decision on 26 April 2019 following which the SEC affirmed its original decision. The applicant sought a review by this Office of the SEC’s decision on 17 May 2019.

During the course of the review the SEC provided this Office with details of the searches it carried out in an effort to locate the record sought by the applicant. Ms Hannon of this Office provided the applicant with those details and informed him of her view that the SEC was justified in refusing access to the record sought under section 15 (1)(a) of the FOI Act. The applicant indicated that he wished to proceed with this review to a formal decision.

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 correspondence between the SEC and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the SEC on the matter.

Scope of the Review

This review is concerned solely with whether the SEC was justified in refusing the applicant's request for a Statement of Results of a Woodwork Group Certificate examination in 1957 under section 15(1)(a) on the grounds that the record cannot be found or does not exist.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In submissions to this Office, the applicant stated he initially sat the Group Certificate Examination in Woodwork in 1955 and then again in 1957. He provided a letter written in 1983 by the then principal of his former school stating that he had made enquiries from the staff of the school who were involved at that time (1957) and they confirmed that the applicant had sat the exam in question in 1957.

In its submission to this Office, the SEC stated that it holds records of examination results from 1879 to present day and that they are permanently retained. It stated that examination result records for candidates who sat the Group Certificate examination are contained in an Archive Book for each year in which the examinations were held.

The SEC added that candidates are listed under the school in which they sat the examination. It confirmed it had found an entry relating to the applicant for 1955 in the Archive Book. It said it undertook two searches for the records sought relating to 1957.

The first search entailed checking the 1957 Group Certificate Archive Book in the case of the relevant school. No entry was found relating to the applicant under the relevant school or in any other part of the book which was checked in case the entry had been misplaced. It said years 1956 and 1958 were also checked as a follow up but returned no relevant record. It said that internal review stage, the same searches were repeated and the 1959 book was also searched but no entry was located in relation to the applicant.

It is worth restating that the role of this Office in cases where records cannot be found is to decide whether the FOI body has carried out all reasonable searches to locate the records. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. It is important to note that it is open to me to find that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. In such circumstances, it is not reasonable to require the body to continue searching indefinitely for such records.

In this case, the SEC conducted searches of the locations where it would expect to find the record sought if it existed. It also conducted appropriate searches to allow for the possibility of the record having been misplaced or the year having been wrongly identified. Having regard to those searches, I am satisfied that the SEC has conducted all reasonable searches for the relevant record and that the record sought cannot be located or does not exist. I find, therefore, that the SEC was justified in refusing the applicant’s request under section 15 (1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the SEC to refuse the applicant's request for a Statement of Results of a Woodwork Group Certificate examination in 1957 under section 15 (1)(a) on the ground that the record in question cannot be found or does not exist.

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