Whether the University was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to applicant's school placement and in particular to a specific diary entry, on the basis that no further records exist or can be found

21 June 2022

Background

In a request dated 5 January 2022, the applicant sought access to the diary (including meta data) of a named member of the University's staff in relation to a meeting on 27 February 2017. The applicant also requested records of any files, notes, both physical and computer based copies of the named staff member's physical diary relating to the meeting, as well as any records that relate to his school placement in 2016-2017 and records of the issues he reported to two staff members while on placement.

On 19 January 2022, the University declined to accept the request on the basis that the applicant had previously made a request for records created by the staff member in question relating to the meeting of 27 February 2017 and that its decision on the request was the subject of a review by this Office (case number OIC-109589 refers). In response, the applicant sought an internal review of the refusal of his request. He argued that the existence of the diary was not previously disclosed by the University and that the record was not included in the documents previously released. 

In its Internal Review decision of 18 February 2022, the University refused the request under section 15(1)(i) of the Act. It said all of the records sought records had already been released and that the reference to a diary refers to an outlook calendar used to manage times of appointments. It said a note of the meeting was also released previously. On 18 February 2022, the applicant applied to this Office for a review of the University's decision.

During the course of the review and following communication with this Office, the University released a copy of the Outlook calendar entry which contained the time and date of a meeting with the applicant. The record was released both in -�List-� and -�Calendar-� view. No notes or details were included in the calendar entry. Following receipt of the University's submissions, the Investigating Officer provided the applicant with the details of those submissions wherein the University outlined the searches undertaken to locate the records sought. The applicant provided further comments and records in support of his view that further records ought to exist..

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

Scope of Review

While the University refused the applicant's request under section 15(1)(i) of the FOI Act on the basis that it had previously released the records sought by the applicant, the applicant considers that further relevant records should exist. The University's position is that it has taken all reasonable steps to locate relevant records and that no further relevant records, apart from those already released, exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the FOI Act, which 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 the University 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.

Preliminary Matter

In his correspondence with this Office during the course of the review, the applicant raised a number of concerns concerning the review process itself. While I do not propose to address each of those concerns, I am satisfied that the process followed was fair and generally in compliance with the summary procedures we have published on our website (available here:https://www.oic.ie/guidance-and-resources/Our-Procedures/Summary-ProceduresV3.pdf).

Section 45(6) of the FOIC Act provides that the procedure for conducting a review under section 22 shall be such as the Commissioner considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the Commissioner. It is also important to state that this review has been carried out in accordance with section 22 of the Act and as such, it is confined to a consideration of whether the University's decision on the request was justified.

Analysis and Findings

Section 15(1)(a)
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. Our 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

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 arise where records are lost or simply cannot be found. What the Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. It is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

As I have outlined above, the University provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding 4 that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

The University explained that -�diary entries-� of the named staff member referenced a Microsoft Outlook calendar used to set up appointments. It also provided this Office with a schedule of records that were released following this Office's decision on the applicant's previous request. Following further communication with this Office, the University released a copy of the -�list view-� of the Outlook calendar mentioned above where it showed the scheduled meetings with the applicant. The University said this record was not previously released because in his FOI request correspondence, the applicant had referred to a diary. The University said the Outlook calendar was simply used to schedule appointments and that it did not regard the Outlook list as a diary record.

In its submission the University also explained that details specifically relating to the meeting on 27 February 2017 are drawn from memory and no written notes exist or have existed. The University said that the notes/reports of the meeting are based on email threads (released to the applicant) and recollections.

Upon receipt of the details of the University's submissions, the applicant provided further submissions. He requested that this Office examine the -�Calendar View-� of the Microsoft Outlook entry in addition to the -�List View-� which had been provided by the University.

The Investigating Officer requested a calendar view of the Outlook calendar related to the applicant's request. This Office received an expanded view of the scheduled meeting related to the applicant. I can confirm that no notes or further details were found within this record. The Investigating Officer asked the University to provide a copy of this expanded view to the applicant.

In his submissions to the Office the applicant also said he was seeking records relating to an email sent by him to one of the named University staff members, in which he reported issues experienced by him during his placement on the school year 2016-2017. In response to queries by this Office in this matter, the University asked the named staff member about this email. In reply, the staff member acknowledged that she had indeed received this email regarding issues in the applicant's school placement. The staff member explained that she did not correspond regarding same in a written format, did not forward or reply to the email, and that she does not have further documentation about this matter. The University also provided this Office with details demonstrating two named staff members had searched within their email accounts and were not able to locate any further records relating to the applicant's request.

In correspondence with this Office, the applicant also queried the search keywords used by the University, contending that the searches did not include different variations of his name which, he believes, could result in further records being found. This Office provided this information to the University. In turn, the University said that by carrying out a search using any or all of the applicant's first and last name (in combination or alone) relevant entries would have been returned. Therefore, the terms broadened rather than limited the searches.

While the applicant maintains that further relevant records should exist, the question I must consider is whether the University has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the University's submissions, and in the absence of evidence to suggest that other relevant searches are required, I find that it has. Accordingly, I find that the University was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for additional relevant records on the ground that no such records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the University to refuse, under section 15(1)(a) of the FOI Act, the applicant's request on the grounds that no further relevant 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