Case number: 150171

Whether UCD was justified in refusing to release further records to the applicant in response to his request for access to email records authored by eight named members of staff of UCD, relating to him, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken

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

Background

On 24 February 2015, the applicant made a request to UCD for access to email records authored by eight named individuals in UCD which named him or had any reference, mention or discussion of him, from 1 January 2013 to the date of his request. On 25 March 2015, UCD granted access to 121 records, some of which were subject to the redaction of personal information of third parties. It stated in its decision that no relevant records were located in respect of one of the named individuals.

On 9 April 2015 the applicant requested an internal review of UCD's decision as he was of the view that emails and attachments were missing. On 1 May 2015, UCD issued a decision affirming its original decision, on the grounds that no further records could be located or existed relating to his request. The applicant sought a review by this Office of UCD's decision on 10 June 2015.

During the course of the review, UCD located a number of further records which it released to the applicant on 28 September 2015. I note that Ms Sandra Murdiff of this Office contacted the applicant on 30 October 2015 and provided him with details of the searches undertaken by UCD to locate records relating to his request. She also informed him of her view that UCD was justified in deciding that no further records exist or could be located after all reasonable steps had been taken to locate them. She invited him to make a submission if he did not agree with this view, but to date he has not done so. Accordingly I have decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to correspondence between UCD and the applicant as set out above; to the records at issue, copies of which were sent to this Office for the purposes of the review; to details of various contacts between this Office and UCD and to details of various contacts between this Office and the applicant.

Scope of Review

This review is solely concerned with whether UCD was justified in deciding that no further records relating to the applicant's request for certain emails which mention him exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 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 the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the 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 M.C.A. available on this Office's website, www.oic.ie).

In a submission to this Office dated 28 September 2015, UCD stated that the named staff members had been asked to search their email accounts for records relating to the applicant's request. It stated that this was done by the use of key words, including the applicant's name and student ID number. It stated that the records located on foot of this Office's specific queries had been overlooked during this first search, and as a result it had undertaken fresh searches to ensure all relevant records had been captured. In essence, UCD's position is that all relevant records have now been located and released to the applicant, in full or in part and that no records exist or can be located once all reasonable steps had been taken to ascertain their whereabouts.

In his submission to this Office dated 12 October 2015, the applicant referred to attachments which had been omitted from the records originally released to him by UCD. He specifically referred to two attachments mentioned in an email sent by a named Professor. These attachments were Word documents prepared by two staff members relating to an incident in Trinity College Library in January 2013. These attachments were released to the applicant by UCD during the course of this review. The applicant stated that the Professor had shown him electronic pdf versions of these records, containing the signatures of the staff who created them. In response to queries from this Office the Professor has stated that the email and attachments provided to the applicant during this review are the only documents she holds relating to the records in question. She further stated that the records appear exactly as submitted to her at the time of the incident. In the absence of evidence to suggest otherwise, I accept UCD's statement on the matter.

The applicant also referred to an email from the Associate Dean of the Veterinary School, dated 6 November 2014 which asked a colleague to assess a video of a presentation the applicant made as part of his course work. The applicant was of the view that this assessment should have been released in relation to his FOI request. UCD stated that the video of the presentation was not deemed acceptable and he was allowed an extra day to submit another presentation. He did so and the record of this second presentation was released to him on 10 February 2015 in response to a separate FOI request. UCD confirmed that the Dean and Associate Dean suggested that, for completeness, the Professor should review the video of the first presentation. It stated that she did so and verbally confirmed that there was nothing to alter the grade he had been awarded. UCD stated that there is no written record of the Professor's assessment. I have no reason to doubt this statement.

Notwithstanding the applicant's belief that more records exist which have not been released to him, he has not provided any evidence that this should be the case. Accordingly, taking all of the above into consideration, I am of the view that UCD's decision to refuse to release further records to the applicant was justified, on the basis that no further records exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of UCD in this case.

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.

Stephen Rafferty