Case number: 160272
The applicant made a detailed, multi-part request to NUIG for access to records relating to his studies at the University, including, in pertinent part, records " ... relating to the removal of [a specified student handbook] from the NUIG website, to include confirmation of the date of such removal". NUIG granted access to a number of records but refused access to records relating to the removal of the Handbook on the ground that it is still available but not accessible by former students.
Following a request for internal review in respect of the Handbook, NUIG affirmed its original decision. It stated that no record of removal would exist because the Handbook remained on the website. NUIG also defended its decision by arguing that the Handbook had been provided to the applicant previously and was in the public domain. NUIG contended further that attempting to ascertain if the Handbook was temporarily unavailable online would pose an unreasonable interference with the work of its Information Solutions Department (ISS). The applicant subsequently sought a review by this Office of NUIG's decision.
During the course of this review, NUIG made submissions to this Office explaining its record management practices and detailing the searches it conducted in response to the request. Mr Christopher Flood of this Office wrote to the applicant to provide him with details of NUIG's submissions and to outline his view that NUIG's decision to refuse the applicant's request was justified. However, the applicant indicated that he requires a formal decision. Accordingly, I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to correspondence between the applicant and NUIG as set out above. I have also had regard to communications between this Office and both the applicant and NUIG on the matter.
Before I address the substantive issues arising, I wish to make a number of comments. First, this Office does not investigate complaints against FOI bodies, nor does it assess how FOI bodies conduct their functions in general. Also, as noted above, this Office has determined that the provisions of section 15(1)(a) of the FOI Act are relevant in this case. My jurisdiction under section 22 of the FOI Act is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Therefore, it is appropriate for me to consider the application of section 15(1)(a) in this case, even though NUIG did not explicitly rely on it in its decision.
This review is concerned solely with the question of whether NUIG was justified in its decision to refuse access to records relating to the removal of the relevant Student Handbook from its website on the ground that no such records exist or can be found.
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. 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 FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable. This Office does not normally search for records.
In his application for review, the applicant explained that NUIG uses a Virtual Learning Environment known as Blackboard. He stated that Blackboard is a web-based application intended to facilitate lecturers in the management of modules for students, by helping lecturers and students with course administration. He further stated that Blackboard is intended to permit users to download lecture notes, reading lists, and other course-related material from their Blackboard sites.
The applicant argued that the Handbook was not available to him as a student from on or about 20 February 2014 when he requested a copy from a staff member of NUIG, hence his request for records relating to the removal of the Handbook from Blackboard.
NUIG's position is that it has no such records. It has provided this Office with correspondence from Blackboard Managed Hosting (BMH), which operates NUIG's Blackboard system, advising that there is no possibility of generating a report for deletion of Blackboard files because Blackboard does not track such actions. It stated that Blackboard access for a student is an automated process based on a student's status on the NUIG Student Information System. A student must be registered to access the Blackboard service as any other status results in disablement of Blackboard access. A student who has a status of "registered" on the system will have access to a maximum of four academic years' worth of Blackboard courses, including the current year.
NUIG stated that former student Blackboard accounts will automatically disable when a student is no longer a registered student. It added that updates to Blackboard accounts occur on a 24 hour basis, i.e. a change to a status on the Student Information System appears on Blackboard within 24 hours. It further stated that a single script/policy does not exist for this specific process, but rather a complex level of integration between the different systems.
NUIG further stated that records concerning removal of access to the Handbook, as opposed to removal of the Handbook, were considered in its searches. Its Information Solution Services Department confirmed that it had not received a request to remove access to the Handbook. NUIG also informed this Office that the relevant programme director had confirmed that she does not hold any record concerning a decision to restrict access to the Handbook and that no such decision was taken or considered (such a decision would, according to NUIG, have been subject to a process that would have created records).
In summary, it is NUIG's position that it can find no records relating to the removal of the Handbook from Blackboard as the Handbook was not removed, and that it can find no record of the removal of the applicant's access to the Handbook. The role of this Office is not to examine whether or not the Handbook was accessible to the applicant on the dates in question. As outlined above, our role is confined to deciding whether NUIG was justified in its decision to refuse access to relevant records on the ground that no such records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
Having regard to the explanation provided by NUIG of its Blackboard system and to the details of the searches undertaken to locate relevant records, I am satisfied that NUIG has taken all reasonable steps to locate such records. I find, therefore, that NUIG was justified in its decision to refuse the applicant's request on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of NUIG to refuse access to the records sought on the ground that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
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.