Case number: 160377
According to its website, the UCD NVRL provides a diagnostic and reference service for clinicians investigating viral infections throughout Ireland. The laboratory is affiliated to the UCD School of Medicine. By email dated 27 May 2016, the applicant referenced an article by Dr Stefan Lanka and asked the NVRL to confirm under FOI "whether the NVRL have ever applied this density gradient centrifugation technique to attempt to isolate any so-called pathogenic virus? And if so what was the outcome?". In its decision of 27 June 2016, UCD stated that, in so far as the request can be interpreted as a valid request for records held by it, no records are held which would provide an answer or the confirmation sought.
The applicant sought an internal review of that decision and on 14 September 2016, UCD affirmed its original decision to refuse the request on the ground that it holds no records that would provide an answer to the applicant's query and the density gradient centrifugation technique is not used at the NVRL. The applicant sought a review by this Office of UCD's decision on 23 September 2016.
The scope of this review is solely concerned with whether UCD was justified in refusing the applicant's request under section 15(10(a) of the FOI Act on the ground that it holds no relevant records.
It seems to me that the applicant did not fully understand the nature of the rights afforded by the FOI Act when he submitted his FOI request to UCD. The Act provides for a right of access to records held by FOI bodies. This means that if the information sought is not contained in a record held by the FOI body then the body cannot grant the request. The Act does not require FOI bodies to answer questions or to create records which do not exist. Where a request is made in the form of a request for specific information as opposed to a request for specific records, as was the case with the applicant's request, this Office takes the view that such requests should be treated as requests for relevant records that exist as of the date of the request that contain the information sought. In this case, UCD correctly considered the applicant's request as a request for records which indicate whether the NVRL have ever applied the density gradient centrifugation technique "to attempt to isolate any so-called pathogenic virus".
It is also important to note that UCD is responsible for considering only those records that it holds or that are under its control. It appears that the applicant interpreted UCD's decision as a statement that no record exists anywhere. I note, for example, that in his application to this Office, he argued that the NVRL had stated that "no record exists in the world". This is an incorrect interpretation of UCD's decision. Rather, UCD stated that it held no records that contain the information he was seeking.
Section 15(1)(a) provides that an FOI body may refuse to grant 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 role of this Office in such cases is to review the decision of the 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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.
In its submission to this Office, UCD stated that this was not a case which was based on search details, or its record-keeping practices. According to UCD, the NVRL Laboratory Director stated that the density-gradient technique is not used by the NVRL as it is "an old method" which has been "superseded by more modern techniques". UCD stated that the techniques used by the NVRL were in accordance with international best practice. Furthermore, UCD stated that the NVRL has never used density gradient centrifugation to isolate viruses. It stated that consequently, it holds no records containing the information sought by the applicant. I have no reason to doubt that this is the case.
Indeed, it seems to me that the applicant did not expect UCD to hold relevant records. In his application for internal review, he argued that pathogenic viruses do not exist, that the density gradient centrifugation technique will be unable to isolate any "alleged pathogenic virus", and that UCD's response confirmed what he already knew. He stated that he wished to ascertain from the NVRL why it is "impossible to isolate any so-called pathogenic virus". It seems to me that the applicant's request, as set out in that email, was based on a misunderstanding of the nature of the access rights afforded by the FOI Act and of the requirements imposed on bodies such as UCD to process requests for access to records they hold.
Having taken all of the above into account, I am of the view that UCD was justified in refusing the applicant's request under section 15(1)(a) on the ground that it does not hold the records sought.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm UCD's decision to refuse the applicant's request on the ground that no relevant records exist.
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.