Whether the NCSE was justified in its decision to refuse the applicant’s request for access to certain additional records relating to identified Youth Encounter Projects other than those already released to him on the ground that no further relevant records exist or can be found

9 September 2020

On 29 August 2019, the applicant submitted a six-part request to the NCSE for records relating to five Youth Encounter Projects (YEPs) for the period 2003 to August 2019.  Specifically, he sought access to:

1. Documentation from the NCSE that reference YEPs as not being classed as recognised schools.
2. Documentation from the NCSE that YEPs do not come under the remit of the NCSE.
3. Documentation from NCSE with regards to the criteria used by the NCSE to establish if a school is a recognised school and falls within the remit of the NCSE.
4. Documentation from the NCSE of any decisions, discussions in relation to YEPs accessing the services of the NCSE and SENO.
5. Documentation from the NCSE with reference to YEPs accessing the services of the NCSE and SENO.
6. Documentation of any communications between the NCSE and the Special Education Section, The Social Inclusion Unit and any other sections of the Department of Education and Skills with reference to YEPs.

On 27 September 2019, following communications between the parties, the NCSE issued what it described as an interim reply.  It released six records, redacting a small amount of personal information from one of the records. It also explained that additional time was needed to search and review records concerning the creation of the NCSE that were held in storage. On 24 October 2019, the NCSE issued its decision on the request.  It stated that the records released with the interim reply represented all of the records that exist in relation to the request. 

The applicant sought an internal review of that decision. On 16 December 2019, the NCSE issued its internal review decision in which it granted access to six further records, redacting certain information from one of the records on the basis that it fell outside scope of the applicant’s request.  The applicant subsequently sought a review by this office of the NCSE’s decision.

In his correspondence to this Office, the applicant suggested that he had not received all relevant records and suggested that certain records should exist relating to three identified YEPs, namely:

1. Records relating to the removal by the NCSE of three identified YEPs from the list of NCSE resourced schools and from the Special Needs Assistant (SNA) list.
2. Records of communications between the Special Education Section of the Department of Education and Skills (the Department) and the NCSE, instructing the NCSE that the three identified YEPs are not classified as special schools and instructing the NCSE to remove them from the NCSE list of resourced schools and the SNA list.

During the course of the review, the NCSE provided this Office with details of the searches carried out to locate all relevant records. Ms Swanwick of this Office provided the applicant with the details of those searches and informed him of her view that the NCSE was justified in refusing access to additional records on the ground that no further relevant records exist or could be found.  In response, the applicant indicated that he wished the review to proceed.  Accordingly, I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the NCSE and the applicant as outlined above and to correspondence between this Office and both the NCSE and the applicant on the matter.

Scope of the Review

The scope of this review is concerned solely with whether the NCSE was justified in refusing access to the additional records sought by the applicant in relation to three identified YEPs, as outlined in his correspondence with this Office (detailed above).

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 its submissions to this Office, the NCSE provided details of its record storage practices and the searches conducted to locate the records sought by the applicant.  As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, the NCSE stated that it maintains records in manual and electronic formats.  It outlined that searches of manual records held on site, manual records archived off site, and electronic drive records, were carried out by subject matter in relation to YEPs and files concerning the establishment of the NCSE and the functions assigned to it by the Department.

The NCSE stated that the manual school files for the five YEP’s in Ireland, which are held at local Special Education Needs Organisers (SENO) offices, were searched.  It noted that although local staff have limited dealings with YEPs, such interactions are retained on the school file.  It also outlined that head office and local staff were consulted and asked to search their emails for relevant records.  Furthermore, the NCSE noted that its database for recording allocations to schools was searched.

The NCSE explained that it operates under the policy remit of the Department.  It outlined that while the Department assigned it various responsibilities, including the allocation of SNA supports to primary schools, post primary schools, and some special schools, it did not assign it responsibility for the allocation SNA supports to YEPs.  The NCSE stated that YEPs are not within its remit and, instead, they are supported directly by the Department, which would be best placed to respond to queries pertaining to their status.

The general thrust of the NCSE’s position is that no further relevant records exist apart from those already released.  While the applicant may be disappointed with the NCSE’s response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist.  The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist.  

Having considered the NCSE’s description of the searches undertaken and of its remit, I am satisfied that the NCSE has carried out all reasonable steps in an effort to ascertain the whereabouts of the records sought in this case. I find, therefore, that the NCSE was justified in refusing access to additional relevant records on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. Given the NCSE’s submission on the matter, the applicant may wish to consider submitting a fresh request to the Department for records which might indicate why the NCSE was not given responsibility for the allocation of SNA supports to the YEPs.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NCSE’s decision to refuse the applicant’s request for additional relevant records relating to three identified YEPs under section 15(1)(a) of the 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