Case number: OIC-126888-Y2F1L7
3 February 2023
In June 2019, the applicant, a student of UCC, submitted a mitigation application to UCC’s Student Records & Examinations Office (SREO). UCC’s mitigation process exists to support students who encounter unexpected circumstances that impact on their ability to prepare for, or to sit, an examination. If a student has mitigating circumstances, they can choose to either defer modules/ examinations in advance of taking examinations/assessments or apply for a waiver of capping of marks for a supplemental/repeat examination when results are finalised and released for the module(s) concerned. In August 2019, SREO issued a confirmation of receipt of the applicant’s mitigation application and informed the applicant that his student fee account was in order. However, it transpired that this confirmation was made in error, did not correspond with the master file held by UCC Finance Office, and the applicant’s mitigation application remained pending and was never formally approved.
This review arises from a decision I issued in Case OIC-111136, wherein I affirmed the decision of UCC to refuse access to certain records under section 31(1)(a) of the Act on the ground that they attract legal advice privilege. Having received my decision, the applicant informed this Office that he had wanted us to consider the issue of records related to his fees and mitigation that he believed should have been released to him by UCC. We accepted that this issue had not been included in the scope of the review and recommended that the applicant make a new FOI request to UCC if he sought additional records.
In a follow up request to UCC dated 27 April 2022, the applicant sought access to the following records:
As UCC failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request. On 29 July 2022, UCC issued a late internal review decision wherein it said all records it held relating to the applicant, including those held by the Fees Office, had previously been released to him in response to his previous FOI and data access requests, with the exception of the records deemed to be legally privileged. It said that while it was not required to do so under the Act, the Fees Office created two additional reports from the data it holds in order to demonstrate his fees and registration engagement with UCC and it released copies of both reports. On 30 July 2022, the applicant informed this Office that he required a review of UCC’s decision. He argued that further relevant records should exist.
In response to our request for submissions during the course of the review, UCC explained that its Systems Administration Office conducted a further search for any “metadata” that may be stored within its Student Records System Database, ITS. It said the Systems Administration office was able to extract some data from ITS which contains all financial transaction information that could be located when a search was carried out using the applicant’s student number. It said this extract contains the same information as that already provided to the applicant in its internal review decision of 29 July 2022 (albeit in a slightly different format). I understand that a record of this extract has been released to the applicant.
Following receipt of UCC’s submissions, this Office provided the applicant with details of the searches undertaken by UCC and of its explanation as to why it holds no further relevant records. We invited him to make a further submission on the matter and he duly responded.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and UCC as outlined above, and to communications between this Office and both the applicant and UCC on the matter. I have decided to conclude this review by way of a formal, binding decision.
The applicant considers that further relevant records should exist. UCC’s position is that the applicant has already been provided with all records relating to his request and that no further relevant records exist. This is, in essence, a refusal to grant access to any further relevant records under section 15(1)(a) of the 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 UCC was justified in its decision to refuse access, under section 15(1)(a) of the Act, to additional relevant records coming within the scope of the applicant’s request, other than those already released or found to be exempt in Case OIC-111136, on the ground that no further relevant records exist or can be found.
Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comments.
First, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Therefore, any information sought by the applicant has been interpreted as a request for records containing such information.
Secondly, in his correspondence with this Office, the applicant expressed concerns about UCC’s handling of his FOI request. While I have noted the applicant’s concerns, it is important to note that this review has been conducted under section 22(2) of the Act, which is concerned solely with a review of the decision actually taken on his request.
Thirdly, in his application to this Office, the applicant made the following submission:
“as legal privilege is the section being relied upon I outline that correspondence between a client and legal representative may be subject to legal privilege, fee office files do not fall within any such category or definition and I am request that all such files are released from said fee office which pertaining to my identity by UCC immediately (sic.).”
I wish to clarify that the purpose of this review is not to revisit the issue of records which were found in case 111136 to attract legal privilege. If the applicant was unhappy with that decision, it was open to him to avail of the appeal rights set out in the decision. As I have outlined above, this review is concerned solely with the issue of further records that the applicant believes should exist which were not included within the scope of the review in case 111136.
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 also 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Under section 17(4), where a request is for information contained in more than one record held by the FOI body on an electronic device, the body must take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where such reasonable steps result in the creation of a new record, that record is deemed, for the purpose of considering whether or not that new record should be released, to have been created on the date of receipt of the FOI request. It is important to note that the reasonable steps to be taken do not go beyond searching for and extracting the information and do not include analysis or processing of information in order to compile the information sought.
In essence, it is the applicant’s position that further records regarding the erroneous handling of his mitigation application should exist, including records from UCC’s ‘uncollected fee’ account and UCC’s Primary/Master Fee Office file. In his application to this Office, he argued that the following [records containing] data and information were not disclosed by UCC:
As I have outlined above, UCC provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that it holds no further relevant records relating to the applicant’s request.
In summary, UCC said the request is one of numerous avenues of correspondence and methods of accessing records that the applicant has been pursuing with UCC over a number of years, on account of an error concerning his mitigation application. It said the applicant has since been offered numerous concessions in subsequent correspondence that would be representative of all those associated with a successful application for mitigation. UCC said that while the applicant may believe that further records ought to exist on the matter, that is not the case. It said the applicant’s previous FOI and Data Access requests encompass all of the records sought in the current request which he had already been given. It said for these aforementioned FOI and Data Access requests, comprehensive searches of manual and electronic files were carried out in the SREO, the Deputy President & Registrar’s Office, the School of Education, the Fees Office, the Academic Secretary’s Office and the Admissions Office. In relation to the current request, it said the Deputy President & Registrar’s Office and the Fees Office again confirmed that they held no further relevant records. It said while it was not required to do so, the Fees Office generated additional records for the applicant to help him understand his fees and registration engagement with UCC. It said the Systems Administration office also extracted some data from ITS which contains the same information as that already released to the applicant, albeit in another format.
In further communications with this Office, UCC provided additional details of the searches it carried out for relevant records. It said searches for records were carried out across the UCC email system, the Customer Relationship Management (CRM) system, Document Storage and Retrieval System (where all paper records are digitised for storage) and the Student Record System. It said these searches were carried out using the applicant’s Student Identification Number, surname and first names.
In response to the specific arguments raised by the applicant in his application for review, which I outlined at points (1) to (5) above, UCC clarified the following:
As I outlined above, an overview of UCC’s submissions were provided to the applicant. In response, he argued that UCC have failed to provide any data to demonstrate that the fee was moved into an unpaid fee account from July 2019 onwards. In relation to his request for tax certificates, he clarified that he sought fee receipts for the year 2015 to 2022. He said that UCC failed to provide this data “for Revenue Tax and all such unrelated Purposes”.
Following a query by the Investigating Officer, UCC explained that the applicant was in receipt of SUSI funding and he could not, therefore, have an eligible receipt to claim a tax rebate. It explained that the Fees Office completed manual tax receipts on behalf of students up to 2016 on request from students, but from 2016 onwards, students who pay fees can use the 'self service' tax receipt on ienabler (UCC’s student portal). It said the applicant would have been able to access this facility but would have no paid tuition for tax purposes during the years 2015-2022. In response, the applicant queried whether UCC could provide data and confirm that in 2016-2017, SUSI funding did in fact cover all tuition and graduation fees and other fees that would be liable to be paid. It is open to the applicant to request this data and information from UCC if he wishes.
I explained above that an FOI body is not required to create a record in order to grant an FOI request, except where section 17(4) is relevant. The essential purpose of section 17(4) is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on an argument that the extracted output would comprise a new record and that the Act does not require the creation of a new record. However, it seems to me that for the section to apply, the requisite information sought must be contained within the relevant records such that it can be searched for and extracted by using a pre-existing electronic search and extraction facility.
In this case, the applicant sought (1) data/information demonstrating that the amount UCC claimed was owed in September 2020 was at any point moved from his student account to an 'uncollected fee' account as part of UCC’s annual financial procedure. I think it is correct and reasonable to say that the information sought constitutes metadata pertaining to these accounts. UCC’s position is that it searched for any “metadata” that may be stored within its Student Records System Database, ITS. It explained that the data it extracted from ITS, which it released to the applicant, contains all financial transaction information that could be located when a search was carried out using the applicant’s student number (my emphasis). While I consider this search and extraction by UCC to be in keeping with the reasonable steps envisaged in section 17(4)(a), having regard to the foregoing, it seems to me that UCC is not in a position to produce any further records containing the information sought at part (1) of the request, further to the requirements of section 17(4) of the Act.
It is important to note that section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned take all reasonable steps to locate relevant records. Furthermore, public bodies are not required to search indefinitely for records in response to an FOI request. This Office may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. Moreover, the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request. Rather, the question I must consider in this case is whether UCC has taken all reasonable steps to ascertain the whereabouts of records relating to the applicant’s request. Having regard to the extensive search details provided by UCC and to its explanation why no further relevant records exist, I am satisfied that UCC has taken all reasonable steps in to locate the records sought in this case.
In all of the circumstances, therefore, I find that UCC was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for further relevant records, 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 UCC to refuse, under section 15(1)(a) of the act, the applicant’s request for records, other than those already released.
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.