Case number: 180022
2 May 2018
On 6 September 2017, this Office issued a decision in respect of two applications for review involving the applicant and AIT (cases 160485 and 160486 refer). The applications in question had their background in a grievance the applicant had as a member of staff of AIT. In the two cases in question the Senior Investigator annulled the decision of AIT and directed it to undertake a fresh decision making process on both requests. AIT made a new decision on the requests on 28 November 2017, in which it released some records and refused others under sections 15(1)(a) and 15(1)(i) of the FOI Act. The applicant sought an internal review on 30 November 2017 and the internal review decision issued on 20 December 2017, affirming the original decision. On 11 January 2018, the applicant sought a review by this Office.
In conducting the reviews, I have had regard to the submissions of the applicant, to the submissions of AIT, and to the provisions of the FOI Acts. I have decided to conclude the review by making a composite binding decision in respect of both applications.
The two requests submitted by the applicant, each comprising six separate parts, sought access to a broad range of records relating generally to the applicant's engagements with AIT. The records sought covered the period from November 2014 to the date of his requests in June 2016. As I have outlined above, AIT refused access to certain records under sections 15(1)(a) and 15(1)(i). The applicant has sought a review of AIT's decision as he believes that he has not received all relevant records. Accordingly, this review is concerned solely with the question of whether AIT was justified in refusing access to additional relevant records under sections 15(1)(a) and 15(1)(i).
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, and the records are available to the requester concerned.
In its decision on both requests, AIT stated that it had decided to refuse access to records held on the applicant's personnel file under section 15(1)(i) as all relevant documentation had previously been released on foot of a data protection request or had been viewed by the applicant and copies of records provided as requested. In a submission to this Office, AIT provided this Office with a schedule of the records to which access was refused under section 15(1)(i) and in which it indicated that the relevant records had already been released to the applicant, either on foot of other requests, or upon request following his viewing of his personnel file. It also provided evidence that the applicant viewed his personnel file and had requested copies of certain records on that file. The applicant has not argued that the records in question are not available to him. I find, therefore, that AIT was justified in refusing access to the records in question under section 15(1)(i).
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.
In its submissions to this Office, AIT stated that it conducted searches in the office of HR, the President, the Secretary/Financial controller and the Academic Registrar and that the persons in those offices are satisfied that no further records exist other than those already released. It stated that it searched the applicant's personnel file and the HR manager's file on the HR Department's shared drive, and email accounts of the HR manager and other HR Department email accounts using various key words, including the applicant's name. It stated that all hard copy correspondence held in the HR Office was also searched.
In the schedule of records provided to this Office, AIT identified two additional records that were not previously released. While both records relate to an internal review of one of the applicant's FOI requests, it seems to me that they come within the scope of part 1 of his request that is the subject of review in case 180021. AIT has indicated that the records can be released to the applicant. As such, I expect AIT to release the two records in question without further delay if it has not already done so.
Having examined the applicant's submission, it seems to me that he is, in essence, seeking access to records which will support or justify the manner in which AIT engaged with him in relation to the various issues he raised, regardless of whether or not such records actually exist. The FOI Act provides for a right of access held by public bodies. If the record sought does not exist that is the end of the matter. It is also important to note that this Office has no role in examining the appropriateness, or otherwise, of the manner in which AIT engaged with the applicant regarding his grievance issues.
In this case, the applicant has not presented evidence to support his view that AIT holds other relevant records. In the absence of such evidence and given the information provided by AIT of the steps taken to search for records, I am satisfied that all reasonable steps have now been taken by AIT to search for the records. I find, therefore, that AIT was justified in refusing the request for additional relevant records under section 15(1)(a).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of AIT to refuse parts of the applicant's requests under sections 15(1)(i) and 15(1)(a).
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.