Case number: OIC-129167-J7R3F7, OIC-130456-P7V3Y1

Whether TCD was justified in refusing access to further records sought in relation to the applicant’s enrolment, and complaint with TCD’s School of Chemistry under section 15(1)(a) of the FOI Act

 

5 April 2023

 

Background

This is a composite decision relating to two FOI requests made by the applicant to TCD.

In a request dated 11 August 2021, the applicant sought access to copies of written correspondence between a named Professor (Professor A) and the Director of Teaching and Learning Postgraduate (DTLPG) regarding the applicant’s enrolment as mentioned by another Professor (Professor B) in a particular letter. On 20 April 2022, the applicant sought an update, as he had received no response to this request beyond TCD’s initial acknowledgement.

On 19 May 2022, the applicant submitted an internal review request. He also sought to expand his original request to include a request for records relating to his enrolment and his student complaint between the School of Chemistry and relevant staff of the School of Chemistry, and the Secretary’s Office, Post Graduate support, the Dean and the Office of Graduate Studies. The applicant also requested contact details of “the European commissioners” overseeing a specific project from which he was funded.

On 28 June 2022, the applicant contacted this Office on foot of a deemed refusal, as TCD had not issued a decision on his original or internal review requests (Case OIC-125640-V0K5C0 refers). Following further correspondence with this Office, TCD issued an effective position to the applicant on 13 July 2022, wherein it partially granted his request. While it is not open to an applicant to expand an original request at internal review stage, I note that TCD identified and released records relating to his extended request in part. TCD released records to the applicant relating to correspondence from Professor A concerning his enrolment and correspondence from various named staff members in the School of Chemistry concerning his enrolment and student complaint, with redactions under section 37(1) of the FOI Act. This Office’s file relating to Case OIC-125640-V0K5C0 was closed on foot of TCD’s effective position.

On 29 June 2022, the applicant submitted a new request to TCD for access to records concerning the additional matters set out in his internal review request above, as well as records relating to the names of the individual(s) who acted as principle investigators on the specified project in Professor A’s absence, and details of the time periods involved. On 26 July 2022, the applicant requested an internal review, as he had not received a response to his request.

On 12 September 2022, this Office received an application for review from the applicant on foot of a deemed refusal. Following correspondence with this Office, TCD provided the applicant with a second copy of its effective position letter dated 13 July 2022, as well as copies of the records previously released to him. TCD also provided contact details for  a specific programme, which provided funding for the project concerned. This Office’s review (Case OIC-128173-D0F8L7) was closed on foot of TCD’s effective position.

On 27 September 2022, the applicant made an application for review of TCD’s effective position to this Office in case OIC-125640-V0K5C0. In his application, the applicant said that he had not received copies of email attachments, or hard copies of certain documents such as ”signed legal letters”. He queried the absence of records relating to correspondence via WhatsApp, Microsoft Teams or other platforms. The applicant also queried the redactions made under section 37 of the FOI Act, and said that he had “received the same correspondence from other parties… where the correspondence was not redacted”. This Office opened a new file (OIC Case OIC-129167-J7R3F7 refers) on foot of the applicant’s application.

On 12 October 2022, the applicant made an application to this Office for review of TCD’s decision on his second request. This Office opened a new file on foot of this application (Case OIC-130456-P7V3Y1 refers). In his application, the applicant referred to specific records he believed should exist, including email attachments, hard copy files, communications via various platforms as well as other specific records.

During the course of these reviews, TCD released additional records located during the reviews and/or re-released records already provided to the applicant. The Investigating Officer also provided the applicant with details of TCD’s submissions wherein it outlined the searches undertaken to locate the records sought, the reasons for the redactions under section 37 of the Act and its reasons for concluding that no additional records exist. The Investigating Officer invited the applicant to make further submissions on the matter, which he duly did.

I have now completed my review in each case in accordance with section 22(2) of the FOI Act.  In carrying out my reviews, I have had regard to the submissions made by TCD in support of its decisions and to the applicant’s comments and submissions to this Office. I have decided to conclude the reviews by way of a formal, binding decision.

Scope of Review

TCD’s position is that no further relevant records 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 TCD was justified in refusing access, under section 15(1)(a) of the Act, to additional relevant records coming within the scope of the applicant’s requests.

Preliminary Matters

During the course of the reviews, the applicant expressed concerns about how TCD dealt with his requests for records. Similarly, TCD expressed concerns at the applicant’s interactions with TCD. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies and/or applicants. Our role is confined to reviewing the decision taken by the FOI body in relation to the applicant’s requests.                             

Analysis and Findings

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 his/her decision and 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.

TCD provided details of the searches carried out to locate relevant records in these cases and its reasons for concluding that additional records do not exist. These details have been provided to the applicant and he has been given an opportunity to comment. While I shall not set out TCD’s submissions or the applicant’s responses in full below, I can confirm that I have had regard to all of the submissions made by the parties concerned.

In its submissions to this Office, TCD said that all student enrolments records are held on a student information platform called SITS as well as within the Microsoft 365 platform on MS OneDrive. It stated that all relevant staff carried out searches and identified records within the scope of the applicant’s requests, including staff in the Secretary’s Office, the School Manager and four named professors. It said that the searches were carried out using the applicant’s name and/or student number as keywords.

TCD initially informed this Office that the enrolment records requested by the applicant are held within the Postgraduate Advisory Service (PAS) and this area was unavailable for search at the time of the applicant’s original request. After further correspondence with this Office, TCD stated that it was able to carry out a search and that relevant files located within this area were released to the applicant on 2 December 2022. In relation to the applicant’s view that a specific record relating to Professor A’s agreement with the School of Chemistry to accept him as a student should exist, TCD said that the School of Chemistry does not have any input on which postgraduate students any Principal Investigators decides to accept. Its position is that such an agreement “does not exist”.

As noted above, the applicant had queried the absence of records relating to correspondence via WhatsApp, SMS and Microsoft Teams. In its submissions to this Office, TCD stated that no relevant records are held on WhatsApp or SMS. TCD’s position was that any documents shared on Teams during a meeting are removed after the meeting and are stored within MS OneDrive. TCD’s PAS section provided a screenshot of a Teams session which was released to the applicant. TCD was of the view that this was outside the scope of the applicant’s request, but said that it was provided in the interest of transparency. The applicant appears to be of the view that the screenshot concerned “contradict[ed] [TCD’s] statement that any shared records in Microsoft Teams are removed after [a] meeting." However, I have no reason not to accept TCD’s submissions in this regard.

Essentially, TCD’s position is that all relevant records relating to the requests concerned are held in electronic form and have been released to the applicant.

As outlined above, the search details submitted by TCD were provided to the applicant by the Investigating Officer. In response, the applicant noted that he did not receive any correspondence from Professor C, or any attachments to the emails provided by TCD. The applicant also said that TCD did not provide any communication with members from the School of Chemistry, even though he “kn[e]w [that such] communication exists”.

The Investigating Officer put the applicant’s comments to TCD. In response, it stated that all attachments had been released to the applicant, however “as a sign of good faith”, it was willing to release them again. In relation to Professor C, TCD stated that he/she no longer worked in the University. It said that email accounts of staff who leave are closed after 80 days and are “no longer accessible”. TCD also noted that although it did not have access to this Professor’s files, it was likely that any such records would have been already shared with the applicant.

The applicant, in further correspondence with the Investigating Officer, stated that he did not receive records relating to the individuals who acted as Principal Investigators on the specified project in the absence of Professor A. On 9 March 2023, following further queries from this Office, TCD stated that it had released a record to the applicant containing that information.

It is important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.

Having regard to the applicant’s requests and the records released to him to date, including the records released during the reviews, I am satisfied that TCD has identified and released records or provided information relating to all of the matters specified in his requests. I am also satisfied that, while TCD indicated that it considered some of the records to which the applicant referred in his application to this Office in Case 1304645 to be outside the scope of his original request, records of his progress report(s) and communications between the School of Chemistry and the Secretary’s Office have been released by TCD to the applicant.

Having regard to TCD’s explanation of its records management practices, to the details of the searches undertaken, and in the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that TCD has taken all reasonable steps to locate relevant records in this case. Accordingly, I find that TCD was justified in refusing, under section 15(1)(a) of the Act, to release additional relevant records on the ground that no further relevant records other than those released originally, or during the reviews, exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD’s decisions to refuse access, under section 15(1)(a) of the FOI Act, to additional relevant records relating to the applicant’s requests for access to records.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Sandra Murdiff
Investigator