Whether UCD was justified in its decision to refuse access to records relating to IP addresses under section 15(1)(a) of the FOI Act
31 December 2018
On 1 September 2018, the applicant made an FOI request to UCD for access to "the owner of [a named IP address], that was logging into my personal facebook account and all evidence of monitoring by this and other ip addresses". On 28 September 2018, UCD refused access to the records under section 15(1)(a) of the FOI Act, on the ground that the records did not exist. On 29 September 2018 the applicant applied for an internal review decision. On 26 October 2018, UCD issued an internal review decision to the applicant, in which it affirmed its original decision. On 1 November 2018 the applicant applied to this Office for a review of UCD's decision.
In conducting my review, I have had regard to the correspondence between the applicant and UCD and to the correspondence between this Office and both parties.
Scope of this Review
In her submissions, the applicant says that UCD did not carry out a sufficient investigation to find out who was, as she says, breaching her privacy and that this is not satisfactory. She also makes a number of points relating to alleged failures in a workplace investigation. However, I must emphasise that these matters do not fall within my remit.
The only question for me is whether UCD was justified in refusing access to the records sought under section 15(1)(a) of the FOI Act.
Before considering the exemptions claimed, I note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on UCD to satisfy me that its decision was justified.
Analysis and Findings
Section 15(1)(a) - Refusal on administrative grounds
The applicant seeks access to information on the owner of a named IP address and all evidence of monitoring by this and other IP addresses. UCD refused access to this information under section 15(1)(a) of the FOI Act.
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 this Office in cases 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 decision and I 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. Having regard to 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.
It is important to note that under the FOI Act, requests for information or answers to questions are not valid requests, except to the extent that they can reasonably be inferred to be a request for a record containing the answers to the questions asked or the information sought. This Office put several questions to UCD about the information sought. In response to these queries and in summary, UCD advised that it retains logs of IP addresses for six months only and its IT Services searched the logs and the records sought do not exist. UCD also said that its IT Security confirmed that there were no requests to provide any network activity logs regarding the applicant for the named IP or any other IP address.
The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. It is not this Office's role to search for records itself. Given its responses to the Investigator's queries, I find that UCD was justified in refusing access to the records sought on the ground that they do not exist, under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I affirm UCD's decision under section 15(1)(a) of the FOI Act.
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.