Whether CETB was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records requested by the applicant in relation to the annual allocation of tutor hours, other than those already released

6 May 2022

Background

In a request dated 10 May 2021, the applicant sought access to all communication, decisions and discussions within and between the relevant sections of Cork City VEC/CETB in relation to the annual allocation of tutor hours to St. Kevin's school in Cork and all communication from the Cork City VEC/CETB to St. Kevin's School in relation to the allocation of tutor hours. The applicant defined the timeline for relevant records as from 2008 until 7 May 2021.

In a decision dated 28 June 2021, CETB granted access to 53 records it identified as coming within the scope of the request, with certain information redacted from a number of the records under section 37(1) of the FOI Act.

On 12 July 2021 the applicant sought an internal review of that decision. It appears he subsequently discussed the matter with CETB by phone wherein he suggested that additional relevant records should exist, particularly for the earlier years of the request timeline. The internal reviewer indicated that additional searches had been undertaken and that five further records had been located. Access was granted to those five records. On 26 January 2022, the applicant sought a review by this Office of CETB's decision. He contended that further records for the period between 2008 to 2021 should exist and provided examples of emails from 2019 that he believed he should have received.

During the course of the review and following communication with this Office, CETB located a number of additional email records from 2019 and released them to the applicant. Following receipt of CETB's submissions, the Investigating Officer provided the applicant with details of those submissions wherein CETB outlined the searches undertaken to locate the records sought. In response, the applicant argued that he had not received all relevant records.

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 CETB and the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The issues to be considered in this case is whether CETB has identified all relevant records for release. 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.

Accordingly, this review is concerned solely with whether CETB was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant's request apart from those already released.

Analysis and Findings

Section 15(1)(a) of the 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. The Commissioner's role in a case 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 their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

The CETB provided the following background information in relation to the request and the nature of the records sought. CETB was formed in 2013 through the amalgamation of City of Cork Vocational Education Committee (VEC), County Cork VEC and Cork Training Centre (formerly part of FÁS). As such, the organisation's records retention incorporates records from all three former organisations, in addition to records created since its establishment. The IT systems of all three organisations were subject to significant change during the period.

St. Kevin's School is not under the management of CETB, nor is CETB its patron. Therefore, CETB is not responsible for the general allocation of teaching hours to the school. However, it receives an annual allocation of hours via the Department of Education's -�Cooperation with other institutions-� scheme, some of which are delivered in St. Kevin's School by tutors employed and paid by CETB. (This is in addition to other staff directly employed by the school). In contrast to the allocation for primary or post-primary schools, this particular type of allocation tends to remain stable from year to year and is not directly affected by increases or decreases in student enrolment, concessionary allocations etc. It is, therefore, generally not the subject of a great deal of correspondence, by comparison with other types of allocation which are frequently updated and tend to be the subject of a great deal of correspondence.

On the matter of the searches undertaken, CETB explained that internal discussions were held to establish the individuals and process involved in the management of allocation for St Kevin's School, and it was established that this was managed through Youth Services both historically and in more recent years. It said that prior to the establishment of CETB, the Youth Encounter Project at St Kevin's School was under the remit of City of Cork VEC. It said that the records sought spanned two organisations and it decided that searches should be focused on personnel who worked in Youth Services (either currently or in the

past), and also those who may have provided administration support to Youth Services etc. It said individuals working in management roles or head office corporate functions which would have been involved in the management of Youth Services were also included in the search.

CETB said email searches were conducted on email accounts of the relevant individuals. It said the searches were conducted via Microsoft eDiscovery centrally by its IT department and all records were reviewed by the FOI team to establish whether or not they fell within the scope of the request. It said requests were made to the IT team to search the email addresses of former members of staff who worked for City of Cork VEC, including the former Education Officer and Adult Education Officer, but as a result of the amalgamation of IT systems and the retirements of these individuals, these email accounts no longer exist and, therefore, could not be searched. It said a variety of names have been used in relation the services provided in St. Kevin's School including St. Kevin's School, Scoil Caoimhín, the Youth Encounter Project or YEP and that the searches were conducted using those terms.

CETB added that in addition to the email searches described above, searches were conducted on the hard and soft copy files of individuals working in Youth Services (currently or formerly), Adult Education Officers and the Further Education and Training Director. It said this required searches of system files (e.g. soft copy and scanned documentation) and hard copy files. Searches were conducted on File share backups, hard drives, SharePoint, OneDrive, OneNote and other Office 365 systems. Searches were also conducted on internal file share systems in CETB's Head Office and various folders identified as most likely to hold relevant records. A wide range of search terms was used.

CETB said it also conducted searches of its archived records. It said it holds a significant amount of historical documentation in archives which are held offsite in secure storage. The documents are held in boxes, and each box is assigned a name and a brief description of the contents in its index system, both in local files and in the online retrieval system. It was assessed that records, in particular in relation to the period 2008-2014, were most likely to be held in archive and, therefore, searches were carried out on the online system and the locally held indexes of the hard copy files held in document storage archives, again using a range of search terms. It said ten boxes were recalled from archive and searched as part of this process.

Finally, CETB explained that its current retention schedule identifies that records in relation to allocations are to be kept for seven years and are then securely destroyed. It said that prior to the introduction of the retention schedule, information relating to communication about allocation would have been kept for a similar number of years, to allow for auditing and any queries arising, but would not have been kept indefinitely. It said that once an audit period was closed, and no queries or issues had arisen in relation to the allocation, there would have been no reason to retain such documents on file. It said individual request forms in relation to tutor hours are disposed of once the academic session is closed and rolled over to the new academic year on our tutor payment system.

As I have outlined above, a number of additional email records were located by CETB during the course of the review. CETB explained that following receipt of queries from this Office, it went back to do an in-depth review of the 2019 year in the email searches which were conducted to identify if there had been any error on the search results. It said that, unfortunately, it discovered a small number of further emails relating to 2019 that were not included. It said this was an error for which it apologised. It said the email searches produced an extremely large volume of emails and there was a significant amount of duplication within these which resulted in this administrative error.

As I have outlined above, the role of this Office is to determine if CETB has taken all reasonable steps to ascertain the whereabouts of the records sought. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are lost or simply cannot be found or may, indeed, have been destroyed in line with relevant records retention policies.

As I have also outlined above, this Office provided the applicant with details of the searches undertaken by CETB in this case. While the applicant believes further records ought to exist, he was not in a position to provide any further information to suggest that additional searches might be warranted.

In the circumstances, and having considered the details of the searches undertaken by CETB and of its explanation as to why no further records could be found, I am satisfied that it has carried out all reasonable steps in an effort to locate all the records sought in this case. Accordingly, I find that CETB was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for further records relating to the allocation of tutor's hours by the Board to St. Kevin's school in Cork on the ground that no further records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm CETB's decision to refuse access, under section 15(1)(a) of the Act, to further records sought by the applicant relating to the allocation of tutor's hours by the Board to St. Kevin's school in Cork on the basis that no further records exist or can found after all reasonable steps to ascertain their whereabouts have been taken.

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