Case number: 150129

Whether UCC was justified in refusing to release further records to the applicant relating to the completion of his P3 form (relating to his application for promotion) on the grounds that no further records exist or could be found after all reasonable steps had been taken to locate any such records

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

I should state at the outset that the manner in which UCC processed the applicant's request in this case was most unsatisfactory. Among other things, it has resulted in UCC failing to adhere to the statutory time-frames set out in the Act for processing FOI requests.

The applicant submitted a request to UCC on 22 December, 2014 for copies of all correspondence between three named members of staff (the Manager, Head and Acting Head of the School of Economics, UCC) and all files, notes and records held by the same staff members, in relation to the completion of his P3 form in 2013 and 2014.

In the ordinary course, an FOI body must issue its decision on a request within four weeks of receipt. While I understand that the applicant's request was submitted by email on 22 December 2014, UCC has indicated that the request was received by the Information Compliance Officer on 5 January 2015. It appears that UCC was closed for Christmas recess from 20 December 2014 to 11 January 2015. It is my understanding that the applicant sent a number of emails querying the status of his request to UCC and receipt of his request was not acknowledged until 22 January 2015.

Under section 12(2), a public body is required to acknowledge receipt of the request within two weeks of receipt and the notification must include details of the provisions of section 19 and particulars of the rights of review under the Act. Section 19 provides that where a decision is not made within the prescribed time-frame, the request is deemed to have been refused. UCC does not appear to have complied with the provisions of section 12(2) in this case. Had it done so, the applicant would have been made aware of his right to apply for an internal review on the ground of a deemed refusal when the deadline for issuing a decision had passed.

Following further correspondence, UCC issued a decision to the applicant on 9 February 2015, five weeks after the Information Compliance Officer received the request, (and seven weeks since he initially submitted his request). UCC stated that access was being granted to records held by the Acting Head of the School of Economics. 31 records were released, three of which contained redactions relating to the personal information of third parties. The decision indicated that records held by the Manager and Head of the School of Economics had not been considered, as they had not yet been made available to the decision maker. The letter stated that, following their responses, a further letter would issue to the applicant.

On 24 February 2015, the applicant made an application for internal review of UCC's decision, wherein he complained about the various delays he had encountered in the processing of his request and the fact that he had still not received a decision in relation to the records held by the Manager and Head of the School.

The FOI Act provides that a decision on internal review shall be notified to a requestor no later than three weeks after receipt of the application. In this case UCC's internal review decision issued on 24 March 2015, some four weeks after it received the applicant's internal review application. It upheld its original decision to withhold some information from the records released on the basis of section 37(1) of the FOI Act (personal information). It varied its original decision in relation to Record 24 and claimed that the information withheld from release in that record was exempt under section 30(1)(b), as it asserted that release would adversely affect UCC's ability to manage ongoing staff issues. Its decision letter also apologised for the time taken to respond and stated that processing delays were partly due to "the Christmas holidays which considerably shortened the time available" to process his request. UCC's decision stated that the Manager had been and continued to be on extended leave and that the Head was no longer based in the Department of Economics. It also stated that as the FOI Act provided for a right of access to records held by UCC as an FOI body, the Acting Head would be directed to retrieve all records relevant to the applicant's request and issue them to him as soon as possible, subject to any applicable exemptions. The applicant was informed of his right to appeal to the Commissioner on foot of UCC's decision.

The applicant applied to this Office for a review of UCC's decision on 28 April 2015. He again cited the various delays in the processing of his request by UCC and the lack of response relating to the records held by the Manager and Head of the School of Economics. Subsequently, on 9 June 2015, nearly six months after his original request, UCC issued a decision in respect of records held by the Manager, which records had been searched in her continued absence. 22 records were released, in full or in part, in relation to his request. The decision also stated that no records relevant to the applicant's request held by the Head of the School "exist in the School of Economics". There was no reference to the applicant's right to apply for an internal review of the decision in relation to these records.

In summary, therefore, while the applicant submitted a request on 22 December 2014, UCC issued the first part of its decision on 9 February 2015 and the second part on 9 June 2015. While I can accept that difficulties can arise if staff members who hold the relevant records are absent during the time period for processing an FOI request, this was an entirely unacceptable process that resulted in significant breaches of the time frames set out in the Act. I expect UCC to review its processes to ensure that future FOI requests are processed in accordance with the provisions of the FOI Act.

For the purpose of clarity in this review, the applicant has not challenged the redactions made to the records already released. He is of the view that further records exist relating to his request which have not been released to him, therefore this review is solely concerned with whether UCC was justified in refusing to release further records to him pursuant to section 15(1)(a) of the FOI Act. In light of the delays already suffered by the applicant and the circumstances of this case, I am satisfied that this is an appropriate course of action to take.

Following queries from this Office during the course of this review, UCC located and released an additional record to the applicant. I note that Ms Sandra Murdiff, Investigating Officer, contacted the applicant and provided him with details of searches undertaken by UCC relating to his request. She informed the applicant of her view that UCC was justified in deciding that no further relevant records existed or could be found and she invited him to withdraw his appeal, or to make further submissions if he wished before a decision was made. The applicant raised a number of queries in response but did not indicate whether he agreed with her view. I note that Ms Murdiff informed the applicant of UCC's responses to his various queries. I also note that he has not contended that any further records should exist relating to his request. Accordingly I have decided to conclude this review by way of a formal binding decision.
In conducting this review, I have had regard to the correspondence between this Office and both the applicant and UCC, and to the correspondence between the applicant and UCC. I have also had regard to the provisions of the FOI Act 2014.

Scope of Review

As I have explained above, this review is solely concerned with whether UCC was justified in refusing to release further relevant records to the applicant pursuant to section 15(1)(a) of the FOI Act.

Preliminary Matters

In his application to this Office, the applicant asked the Commissioner to investigate the reasons for the delays he experienced while UCC processed his request and also requested that action be taken against UCC for its non-compliance with statutory time frames. The applicant has also raised a number of issues relating to various actions taken by UCC, including the use of private email addresses and data protection matters. It is important to note that the Commissioner's remit does not extend to adjudicating on how public bodies carry out their functions generally or to investigating complaints against public bodies.

The applicant feels very strongly that UCC acted in breach of FOI procedures. An assessment of UCC'S practices and procedures in compliance with the FOI Act, if it were deemed necessary, would have to be carried out pursuant to section 44 of the FOI Act, while this review, conducted pursuant to section 22 of the FOI Act, must be confined to reviewing its decision to refuse access to further records. The Commissioner does not intend to use his powers of investigation under section 44 in this particular case at this time. I am satisfied that all relevant matters within the scope of the review and within the Commissioner's jurisdiction have been considered.

Analysis and Findings

As UCC has indicated that it could not locate any further records relating to the applicant's request, section 15(1)(a) of the FOI Act is relevant. That section provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

The Commissioner's role in cases such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002] No. 18 MCA.

The records at issue in this case all relate to the completion of a P3 form in respect of the applicant. UCC has stated that this form is completed by the head of an academic unit when a member of the academic staff of that unit applies for promotion. I note that Ms Murdiff contacted UCC and requested details of the steps taken to locate records relating to the applicant's request. UCC provided details of its records management practices, as well as the searches undertaken to locate all relevant records. UCC stated that this included electronic searches of computer files and the relevant college email accounts in respect of the Acting Head and Manager. UCC confirmed that the Head of the Department had been absent from UCC during the relevant time, and on foot of queries raised by this Office, organised a search of the personal email accounts of all three staff members, which identified one additional record, which was released to the applicant on 6 August 2015. UCC also stated that no records had been misfiled/misplaced and that there was nowhere in the School of Economics where any further records could exist.

UCC has stated that the usual process for promotion competitions of this type is that the HR Department contacts the relevant Head asking him/her to complete a P3 form in respect of an applicant. It also stated that a Head is required to consult with any Professors/Professors (Scale 2) in the unit before completion. In this regard, UCC stated that the only Professor in the School was the Head, who was absent from UCC at the time, and not in a position to be consulted. It stated that, as a result, the Acting Head completed the form herself. The usual procedure is that candidates are required to sign the completed P3 form, which is returned to HR by the Head, and this is then passed on to the promotion board. In this particular case, a query was raised by the applicant after the P3 form was submitted in 2013. This resulted in email correspondence between the applicant, the Manager and Acting Head. In July 2014, following an appeal to the Academic Promotion Appeals Board, a number of applications for promotions, including the applicant's, were reviewed and the Acting Head was required to complete a second P3 in respect of the applicant. Having examined the records released to the applicant, I am satisfied that they reflect all of the steps above as described by UCC. Essentially, UCC's position is that all records relating to the applicant's request have been identified and released to him.

Having considered the submissions of both parties and the measures taken to locate further records, I am satisfied that UCC has taken all reasonable steps to locate all relevant records and that it was justified in deciding that no further relevant records exist or can be found. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm UCC's decision to refuse access to further relevant records under section 15(1)(a) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator