Whether TU Dublin was justified in refusing access to additional records relating to a complaint made by the applicant under its grievance procedure

3 March 2020

Background

In a request dated 30 July 2018, the applicant sought access to all information held by Dublin Institute of Technology (DIT) relating to a complaint he made under its grievance procedure. DIT has since been dissolved by statute and merged with two other Institutes of Technology becoming Technological University Dublin (TU Dublin). Accordingly all references to TU Dublin in this decision should be taken to include DIT in so far as it was involved in the processing of the applicant’s request.

In a decision dated 31 October 2018, TU Dublin stated that it had decided to grant the applicant’s request. However, a number of records were withheld, in full or in part, under section 35 of the Act, which is concerned with the protection of information given in confidence.

On 26 November 2018, the applicant sought an internal review of that decision, in which he argued that further relevant records had not been released. He said the records not released included, but were not limited to, fourteen specified categories. He also sought a review of the decision to withhold information under section 35.

On 25 January 2019, TU Dublin issued its internal review decision wherein it varied its original decision. It released a number of additional records located following further searches and released in full the records that had previously been refused under section 35(1)(a). It refused access to additional records sought under a number of the fourteen categories specified by the applicant under section 15(1)(a) on the ground that no further relevant records could be found. On 21 May 2019, the applicant sought a review by this Office of TU Dublin’s decision as he was not satisfied that all relevant records had been released.

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 between TU Dublin and the applicant as outlined above and to correspondence between this Office and both TU Dublin and the applicant on the matter. I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether TU Dublin was justified in refusing, under section 15(1)(a) of the FOI Act, any additional records relating to a complaint the applicant made under its grievance procedure, on the ground that no additional records exist or can be found.

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 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 his submission to this Office, the applicant stated that his request relates to a complaint he made in 2015 and to the appeal that followed. Among other things, he provided a list of 38 individuals who he considered might hold relevant records, including current and former staff of the TU Dublin Library, Human Resources, other current and former staff, and a number of outside parties. He also provided further information in support of his views that other relevant records should exist.

During the review, Ms Minogue of this Office provided TU Dublin with the list of names identified by the applicant and with details of his reasons for asserting that other relevant record should exist.

In its submission of 23 October 2019, TU Dublin stated that based on clarification received from the applicant on 7 August 2019 concerning the nature of the complaint he had made, it identified the Head of Human Resources (HR) and the Director of Campus Services & Relocation as the relevant decisions makers. It said the Head of HR carried out searches, including physical and electronic searches, by subject matter and the applicant’s name. It said the Director’s searched email records by subject matter and the applicant’s name. The Director said he had no other records in any format connected with the request.

TU Dublin said that on receipt of the application for internal review, the internal reviewer requested a meeting with the applicant in order to better understand the extent of the records that were of interest to him and that the applicant declined that request. Instead, the applicant suggested that the internal reviewer should forward any questions he had on the request by email. It said that based on the internal review request, the internal reviewer identified five specified individuals as relevant staff members who might control relevant records. Those individuals were requested to conduct searches. It said a number of additional records were located as a result of those searches and were released to the applicant with the internal review decision.

In relation to the list of names provided by the applicant, TU Dublin said the individuals who were asked to conduct searches were identified having regard to the information provided by the applicant on 7 August 2019 and in his application for internal review. It said the other individuals identified by the applicant were not asked to search for relevant records as they were not identified as controllers of such records.

In a subsequent clarification, TU Dublin said while the individuals identified by the applicant may hold records relating to him, the records relating to the complaint he made under the grievance procedure were submitted to the HR Department during the process of the complaint procedure and are now controlled by the Head of HR and the Head of Workplace Relations, within the HR Department. It suggested that as the records are controlled and held by the individuals in question, any records the individuals identified by the applicant might hold fall outside the scope of his request.

At this stage, I think it is worth considering the obligations of both requesters and public bodies under the FOI Act in cases such as this. As section 15(1)(a) states, a public body can refuse a request on the ground that the record sought does not exist or cannot be found only after it has taken all reasonable steps to ascertain the whereabouts of the record.

The FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found.  What the section requires is that the body takes all reasonable steps to locate relevant records. The question of what is reasonable will generally depend on the particular circumstances arising. It is open to this Office to conclude that a body has taken all reasonable searches even where records were known to have existed but cannot be found. The Act does not require a body to search indefinitely for records that cannot be found.  Furthermore, this Office does not generally expect public bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a body's explanation of why a record does not exist.

On the matter of obligations on requesters, section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. On the other hand, section 11(2) requires public bodies to give reasonable assistance to requesters in relation to the making of requests. Therefore, if a body considers that the wording of a request is unclear or ambiguous, it should consider engaging with the request to clarify the precise scope of the request.

On that point, I note that in this case, TU Dublin offered to meet with the applicant in order to better understand the extent of the records that were of interest to him and that the applicant declined that request. Given the broad nature of the applicant’s request, it is unfortunate that he did not avail of that offer. It seems to me that requests that seek access to “all records relating to” a particular matter or subject invariably run the risk of giving rise to disputes in relation to the scope of such requests.

I note in this case, for example, that the applicant stated in his application for internal review that he had not received any records pertaining to the tendering process for the appeal relating to his complaint under the grievance procedure or pertaining to the costs incurred in dealing with the appeal. TU Dublin did not search for any such records when it first considered the request. In my view, this was not unreasonable. I can fully understand why TU Dublin would have interpreted the request as one for records relating only to the substantive complaint and subsequent appeal.

I would not generally expect a public body to deem such financial records as coming within the scope of a request for records relating to a complaint made under a grievance procedure, in circumstances where the request does not expressly identify such records as being sought.

Furthermore, while I accept that a situation may occasionally arise where a public body might appropriately contact former staff members who might be in a position to assist the body in its efforts to locate records, I do not accept that public bodies should reasonably be expected to consult with former staff as a matter of course when considering broad requests for all records relating to a particular matter. It seems to me that where a public body has policies and records management procedures in place that will determine where records should be located and which current serving staff might hold relevant records, there should generally be no need to consult with former serving staff.

In the particular circumstances of this case, it seems to me that it was difficult for TU Dublin to ensure that it had taken all reasonable steps to ascertain the whereabouts of all relevant records in light of the broad nature of the applicant’s request. Nevertheless, despite the broad nature of the request, it does seem to me that it took an unduly narrow interpretation of the scope of the request, given its acknowledgement that at least some of the current staff members identified by the applicant may hold records and it did not ask those individuals to conduct relevant searches. I also note that at least some of the individuals identified by the applicant were involved, in some form, in the grievance investigation.

In the circumstances, it seems to me that I have no option but to find that TU Dublin did not take all reasonable steps to ascertain the whereabouts of relevant records coming within the scope of the applicant’s request and that it was not justified in refusing to grant access to any additional relevant records under section 15(1)(a). I find that TU Dublin should have at least sought to clarify with current staff who were involved in any way in the grievance if they hold any relevant records.

I consider that the appropriate course of action to take is to annul TU Dublin’s decision, the effect of which is that TU Dublin must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with TU Dublin’s decision.

I would add, however, that in light of my comments above about the broad nature of the applicant’s request, it may be useful for TU Dublin and the applicant to engage further in the first instance before considering the request afresh with a view to coming to an agreement on the precise nature of the records he deems to be outstanding and to which he continues to seek access.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the TU Dublin to refuse, under section 15(1)(a) of the FOI Act, access to any additional records relating to a complaint the applicant made under its grievance procedure, on the ground that no additional records exist or can be found.

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