Case number: OIC-130561-L8S0T1

Whether UCD was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

 

23 February 2023

 

Background

The applicant in this case is a current student of UCD. In a request dated 14 June 2022,  he sought a copy of any information relating to him held by UCD. Specifically, he requested searches of “all emails, text messages, files, WhatsApp messages, manual notes, electronic notes, files or other” in relation to 13 named staff members of UCD. On 31 August 2022, the applicant sought an internal review on the basis of a deemed refusal.

On 27 September 2022, the applicant applied to this Office for a review of UCD’s decision on the basis of a deemed refusal, as it had not issued a decision on his internal review request. Following correspondence from this Office, on 11 October 2022, UCD provided the applicant with a statement of its effective position on his internal review request, wherein it part-refused the request under sections 15(1)(a) and 37 of the FOI Act. Accordingly, the case was brought to a close.

On 17 October 2022, the applicant applied to this Office for a review of UCD’s decision, as he was of the view that additional records should exist relating to his request.

During the course of the review, UCD located additional relevant records, which I understand were released to the applicant with certain information redacted under section 37(1) of the Act.

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 UCD as outlined above, and to communications between this Office and both the applicant and UCD on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As the applicant did not raise any concerns about the small amount of information redacted from the records released, UCD’s reliance on section 37(1) will not form part of this review.

UCD’s position is that no further relevant records exist. This is, effectively, a refusal to grant access to additional records relating to the applicant’s request 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 solely concerned with whether UCD was justified in refusing access, under section 15(1)(a) of the Act, to additional records coming within the scope of the applicant’s request, other than those already released.

Preliminary Matters

Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comment.

In his correspondence with this Office, the applicant expressed concerns about UCD’s handling of his FOI request and how the FOI Act was “not respected” by UCD on a number of occasions. 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 by UCD on his FOI request.

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 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.

Submissions by the Applicant

Essentially, the general thrust of the applicant’s argument is that the information provided by UCD was “inconsistent”, as it is evident from the email records released to him that he has not been provided with copies of email correspondence from each recipient in each email chain. He argued that if the information was “fully provided” the emails provided by staff members “should be consistent”.

The applicant also said that within the records released to him, one of the individuals named in the request referred to his case as being “sensitive” on three separate occasions. He argued that considering the “sensitivity” of the situation, it is “difficult to believe, nor is it reasonable, that there would be no internal communication” between the staff members, either by email, text, or during internal meetings. In addition, the applicant provided this Office with records of text messages sent by one of the individuals named in the request. He argued that one of the text messages was not provided by UCD, while the other “clearly states” that the individual “communicates via text messages”.

The applicant further argued that despite specifically requesting UCD to search the work email account of a named staff member when processing the request, no such search took place. He also referred to comments made by UCD’s FOI Officer in an email to him dated 9 August 2022, who said that that once she reviewed the “records received to date” she would share them with him “via Google Drive” and that as additional records are received, she would “also upload them to the drive and send [him] a notification”. He stated that despite this, no additional records were shared with him. As I outlined above, UCD released additional records to the applicant during the course of this review.

Submissions by UCD

In its submissions to this Office, UCD said that relevant staff members were requested to carry out searches for all records held, both hardcopy and electronic, that were personal to the applicant. It said they were asked “not to upload a data dump” of all records retrieved as a result of those searches. It stated that staff members uploaded relevant records to a shared drive, but that in order to “minimise the duplication of emails”, where possible, staff members tried “not to upload records which other colleagues were copied on” and which had already been uploaded to the drive. Essentially, UCD said that it proceeded on the basis that where an email thread was identified as being included by one staff member, it did not require the same record to be uploaded by all the other recipients.

UCD provided details of the searches it said were carried out by staff members, including how the records were held, how the searches were carried out and if additional searches were conducted for misplaced records. It stated that staff searched email accounts, local files and folders on work laptops/computers and phones and used various keywords including the applicant’s name, student number and email address.

UCD stated that, during the course of this review, additional emails were located, which had been overlooked in the original upload of records. It stated that, having reviewed the additional records, it was satisfied that all except one email chain had previously been released to the applicant. As I outlined above, a copy of this additional record has now been released to him.

UCD said that the majority of records which were retrieved comprise email correspondence. It said that it was possible that emails may have been deleted prior to receipt of the FOI request as part of an account holder’s regular account maintenance and clean-up of email files. It stated that once deleted, an email remains in the account holder’s deleted folder for 30 days, after which it is deleted automatically. It said that relevant staff have confirmed that they have provided all relevant records held in their email account folders including those held in their deleted folders.

UCD said that records are held electronically in the relevant school and are retained in compliance with its Record Retention Policy. UCD said student records are held “for the duration of studies plus two years” while school department meeting minutes are held “indefinitely”. Its position was that as the applicant is a current student, records relating to him would not have been deleted.

In response to a request for clarification from the Investigating Officer regarding duplicate records, UCD explained that usually the FOI Unit would “collate all records received into one file for review and scheduling and to remove all duplicates”, but that given the volume of records and the deadline for a decision to be issued, it was “not possible” to do so on this occasion. It said that, as a result, there was some duplication of emails released in this case, as the FOI Unit “did not have the resources to identify and remove any duplicates that had been uploaded twice” to the shared drive. UCD’s position is that the applicant has been provided with all relevant records, including duplicates, redacted where necessary and that no records relating to the applicant have been withheld from release.

Responding to the argument raised by the applicant in his application for a review, that UCD did not search the staff email account of one of the individuals named in the request, UCD explained that as the staff member in question was no longer working at UCD when the FOI request was received, his UCD staff email account had been disabled. It said that following the applicant’s application to this Office, the University’s IT department were contacted and asked not to delete the email account. It stated that once the FOI Unit gained access to the account, it was searched using variations of the applicant’s name and student number. It indicated that many of the emails retrieved on foot of this search had already been released to the applicant and those which had not been previously provided have since been released to him.

On the matter of the text messages, which the applicant believes are held by another named staff member, UCD said that the individual in question explained that he did not hold relevant records on his UCD mobile phone as he did not have the phone during the relevant period. He said that while there “may have been some records of phone messages” on his personal phone, which were relevant to the request, they would have “typically been related to urgent issues such as reminders to others to reply to emails or about meeting times”. In any event, the staff member concerned also stated that his phone messages are “set to delete after 24 hours to minimise storage and carbon footprint.”

In further correspondence with this Office, UCD stated that any records deleted from an individual’s personal phone would have been “in accordance with the phone owner’s personal settings”.

The Applicant’s Response

As I outlined above, an overview of UCD’s submissions were provided to the applicant. In response, he observed that it would arguably have been easier for each individual to simply provide the requested information and that the process of “comparing the information so as not to duplicate emails is quite complex.” He queried why UCD would “waste time on this” instead of simply providing the information, and asked whether this was standard procedure.

Analysis

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. This Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that the applicant believes ought to exist have not been located. Furthermore, this Office does not generally expect public bodies to carry extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a 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 records sought.

The applicant’s arguments have mainly centred on UCD’s failure to provide him with copies of the same email threads from each of the recipients concerned. I note that UCD said that it collated and released 1,175 pages of records to the applicant in response to his request, which it said took a lot of time to collate and process. I also note that the applicant has not argued that different versions of the emails exist or that receiving copies of each version of the same email thread would provide any more information. Instead, his position seems to be that if the records located by each staff member were consistent and comparable, that this would somehow demonstrate that all of the relevant records had been identified and released.

While I accept that a record of an email held on each recipient’s email account is separate and distinct from the record held on the sender’s account or on that of another recipient, I am satisfied that the content of the email is the same. I do not consider it appropriate or necessary in this case to require UCD to issue multiple versions of what are essentially the same record(s).

The applicant is also of the view that additional records relating to him should exist “considering the sensitivity of the situation”. However, he has not provided any evidence or substantive argument to suggest that further specified searches are warranted. Furthermore, I must also have regard to the comprehensive search details and submissions made by UCD in this case.

The question I must consider in a case such as this is whether UCD has taken all reasonable steps to ascertain the whereabouts of relevant records. Having considered the details of the searches undertaken by relevant staff members, its explanation of its records management practices, the records released to date, and in the absence of evidence to suggest that additional searches are warranted, I am satisfied that it has. While the applicant does not appear to accept UCD’s position regarding the deletion of emails and/or text messages, I have no reason to doubt UCD’s submissions in this regard.

Accordingly, I find that UCD was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant's request for additional records relating to him other than those already located and released.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of UCD to refuse, under section 15(1)(a) of the FOI Act, access to additional records relating to the applicant on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

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Sandra Murdiff
Investigator