Whether TCD was justified in refusing access, under section 15(1)(a) of the FOI Act, to details of the number of applicants for the Senior Academic Promotion Call 2019 competition at TCD by nationalities of applicants (Irish v non-Irish)

7 April 2022

Background

In a request dated 19 March 2021, the applicant sought details of the number of applicants for the Senior Academic Promotion Call (SAPC) 2019 competition at TCD by gender and nationalities of applicants (Irish v non-Irish).

In a decision dated 11 May 2021, TCD provided a breakdown of the number of applicants and successful applicants by gender. It refused details broken down by nationality under section 15(1)(a) of the FOI Act on the ground that it does not hold the information sought.

On 2 June 2021, the applicant sought an internal review of that decision. She argued that TCD holds nationality records on all employees within its employee portal CORE. She also referred to the fact that TCD publishes an annual equality monitoring report that includes information on the nationality of all its staff.

In a decision dated 14 June 2021, TCD affirmed its refusal of the request for information relating to the nationalities of applicants. It said staff are not compelled to provide their nationality to Human Resources and while it may hold nationality information for some staff, it does not hold this information for the purpose of the SAPC application process. It argued that for it to go into individuals records to obtain their nationality would be creating a new record for the purpose of obtaining nationality of SAPC applicants. On 13 December 2021, the applicant applied to this Office for a review of TCD's decision.

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 submissions made by both TCD and the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether TCD was justified in refusing access, under section 15(1)(a) of the Act, to details of the number of applicants for the Senior Academic Promotion Call (SAPC) 2019 competition at TCD by nationalities of applicants (Irish v non-Irish).

Preliminary Matter

In her submission to this Office, the applicant argued, among other things, that non-Irish and Irish staff members have equal right to promotion and that TCD's reluctance to share nationality records suggests that it may not be compliant with its own policies and national legislation. She argued that applicants have the right to appeal against the outcome of a promotion process on equality grounds if they believe committee members did not observe TCD's Equality Policy and that if they are denied the right to access nationality records, then they are also denied the right to appeal against a decision taken by the SAPC.

It is important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have generally regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case). Moreover, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.

It is also important to note that, with one exception, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

Having considered TCD's submissions, it seems to me that it is concerned that if it was required to create a record containing the information sought, the resultant information would be unverified and incomplete. It said that new staff members can, if they wish, provide details of their nationality but that this is not a mandatory obligation. It said employees are only required to confirm that they are permitted to work in Ireland, but that this does not require confirmation of nationality.

The question of the accuracy, or otherwise, of information sought is not a valid ground, of itself, for refusing an FOI request. If a record containing the information sought exists, then a right of access applies to that record unless it is otherwise exempt from release.

The substantive issue arising, therefore, is whether in fact such a record exists, or whether TCD must provide the information sought pursuant to section 17(4). The applicant has not argued that a precise record that contains the information she is seeking exists. Rather, her primary argument is that TCD can, indeed, compile the information sought. The question I must consider is whether it must do so pursuant to section 17(4).

TCD's position is that it does not hold a record that contains the nationalities of those who applied for the SAPC 2019 competition as applicants were not required to provide details of their nationalities as part of the application process. It said its HR system does not contain details of those who applied for the SAPC 2019 competition.

It said that applicants for promotion submit their applications and related documents via eRecruitment which is a module of Core, its HR system of record. It said that from the applications for promotion received via eRecruitment, a report of the applicants by category of promotion is compiled and held on an excel spreadsheet on the R:Drive and that applications (the attachments) are stored on the Human Resources R: Drive. It said that within these records nationality is not recorded as it is not requested as part of the application process for senior promotion.

TCD added that in order to provide the information sought, it would have to create a new data set. It said it would have to take the report/listing of those that applied which is held on the R: Drive (using the electronic record as reference above). It said that report would then be used to create and run a new report in Core to extract the nationality data.  It added that such data can only be extracted if it has been recorded by the individual, through a separate input, in Core Personnel Module as it is not part of the information gathered for SAPC.

As I have mentioned above, the FOI Act provides for a right of access to records held by FOI bodies. Prior to the introduction of the 2014 Act, a public body was entitled to refuse a request for statistical type data that was held in two or more electronic records on the ground that the extraction and compilation of the data would result in the creation of a new record. The introduction of section 17(4) in the 2104 Act allowed for the extraction of such data and for the resultant record to be regarded as a record that existed when the request for such data was made.

The essential purpose of section 17(4) is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on an argument that the extracted output would comprise a new record and that the Act does not require the creation of a new record. However, it seems to me that for the section to apply, the requisite information sought must be contained within the relevant records such that it can be searched for and extracted by using a pre-existing electronic search and extraction facility.

In this case, therefore, it seems to me that for section 17(4) to apply, either

a) The employee records held within TCD's HR system, which contain details of the nationalities of at least some of its employees, would also have to contain details of those employees who applied for the competition at issue, or
b) The excel spreadsheet on its R:drive which contains details of those who applied for the competition would have to also contain details of the nationalities of those applicants.

Having considered TCD's submission, I accept that neither a) nor b) arises. Moreover, while TCD may well be in a position to use the information held on the R:Drive to subsequently search for and extract the relevant information from its HR system, I consider that this requires a processing of data not envisaged or required by section 17(4). In the circumstances, I find that section 17(4) does not apply.

In conclusion, therefore, I find that TCD was justified in refusing access, under section 15(1)(a) of the Act, to the information sought on the ground that no such record containing the information sought exists and the Act does not require it to create such a record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby Affirm TCD's decision to refuse access, under section 15(1)(a) of the Act, to details of the number of applicants for the Senior Academic Promotion Call (SAPC) 2019 competition at TCD by nationalities of applicants (Irish v non-Irish).

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