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Case 000459. Note: The Commissioner's decision in this case was appealed to the High Court. The High Court Judgement by Mr. Justice Quirkewas given on 20th May 2003. The judgement up-held the Commissioner's decision.

Request for all records relating to the applicant (a teacher) held by the Department of Education and Science - whether further records exist - section 10(1)(a)

Case Summary

Facts

The Department had, in response to a number of previous FOI requests, provided the requester with records held by it relating to her employment as a teacher. The application for review arose out of the Department's failure to make a decision on a further request. The Commissioner took the view that the Department was, in effectively refusing access to further records, contending that section 10(1)(a) applied and that further records did not exist or could not be found after all reasonable attempts to ascertain their whereabouts had been taken.

Decision

The Commissioner's designate found that, following searches carried out by the Department at the instigation of the Commissioner's Office in the course of the review, all reasonable steps had been taken to ascertain the whereabouts of the records. He upheld the decision of the Council to refuse access to further records on the basis that the Department had made reasonable efforts to locate additional records and had carried out several searches of the sections where records relating to a primary teacher would be likely to be held. He considered that it was not reasonable to require, as the requester had implied in her submissions, that the Department's search should extend to all sections identified in its manuals published under section 15 and section 16 of the FOI Act. The finding was that the Department was entitled to rely on section 10(1)(a).

Date of Decision: 08.01.2002

Our Reference: 000459

08.01.2002

Mrs and Mr Ryan

Dear Mrs and Mr Ryan,

I refer to your application under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the Department of Education and Science (the Department) concerning your request for all records relating to you held by the Department. This request was made to the Department on 15 August 2000. As explained to you by letter dated 30 August 2001, five earlier applications for review, arising from decisions of the Department on the same subject, were discontinued by the Information Commissioner in accordance with section 34(9)(a)(iii) of the FOI Act because the matters to which the applications related were to be the subject of this review.

I have been authorised by the Commissioner to conduct this review on his behalf. Please accept my apologies for the delay which has arisen in bringing this matter to a conclusion. I appreciate that you would have wished to obtain a decision at an earlier date but, unfortunately, due to the large number of cases pending before the Commissioner and to staff shortages (now resolved), this did not prove possible.

Background

Your request under the FOI Act listed more than seventy individuals and bodies and you stated that you wished to have any correspondence concerning you between these individuals and bodies (or their representatives) and the Department. In your contacts with this Office you have drawn particular attention to three records, which have been released by the Department, which dealt with your re-assignment from the position of remedial teacher at St Patrick's Boys National School, Mountmellick, Co. Laois in 1997. You are concerned that the Department may hold further correspondence or other manual or electronic records connected with the circumstances of your re-assignment and related events.

I have now completed my review of the Department's decision. In carrying out this review, I have had regard to your submissions, to the decisions of the Department on your requests together with its submissions in response to queries raised by the staff of this Office. I have also had regard to the provisions of the FOI Act generally. In her letter to you of 30 August 2001, Elizabeth Dolan of this Office identified some of the issues which arise in this review and invited you to comment on her preliminary views. I note that you have not made a written submission in response to that letter.

As you know, the Department has released records to you comprising 144 records held by the Primary Inspectorate and Primary Administration sections as well as salary and other details held by the Primary Payments section. You subsequently informed the Department that you are not interested in having access to your salary and leave records. In the course of dealing with at least nine separate requests made by you under the FOI Act, between November 1998 and August 2000, several sections within the Department sent you details of searches carried out. For instance, in July 2000, in response to a request for internal review, the Legal Services section informed you that manual and electronic searches of all records held by it did not locate any records relating to you. Although it appears that no decision was issued in response to your request of 15 August 2000, essentially the Department's position is that searches of its records in Dublin and in Athlone failed to produce any records other than those previously released to you. Your request was, in effect, refused on the grounds that the records requested do not exist or cannot be found after all reasonable steps to trace them have been taken.

Scope of Review

The sole issue arising in this review is whether the Department's decision, that it holds no further relevant records relating to you, is in accordance with the provisions of the FOI Act. It is not the purpose of this review, nor is it a function of the Information Commissioner, to examine allegations made by you or to comment on your relationship with the Board of Management of your school or with others.

Findings

Correspondence with Information Commissioner

In her letter of 30 August 2001 Ms Dolan drew your attention to section 46(1)(c) of the FOI Act which provides that the Act does not apply to a record relating to a review by the Information Commissioner other than such a record created before the commencement of the review or relating to the general administration of this Office. Although the Commissioner, Mr Kevin Murphy, and his staff are among those individuals and bodies listed in your request, I am taking it that, since you did not respond to the points made by Ms Dolan, you accept that the only records that the Department would hold relating to contacts with this Office comprise correspondence about the conduct of this review and the five previous applications arising from your requests under the FOI Act. I confirm that the Act does not entitle you to have access to these records and I find that, insofar as the Department's decision was to refuse these records, that decision was correct.

Other Records?

Section 10(1)(a) of the Freedom of Information Act provides that a request 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 ..."

The Department says that it has carried out further searches for relevant records and has not been able to trace any such records. In a submission to this Office in December 2001, describing efforts made in the matter, the Department says that neither the Inspectorate nor Primary Administration section can find any further records about you on the school files or on your personal file.

The Department says it allocated a learning support post to St Patrick's National School in 1995 and that it was the responsibility of the Board of Management and of the Principal to assign the post internally within the school. The Department states that the removal of a person from that post, which in effect is a re-assignment of posts within the school, is also a matter for the Board of Management. This Office specifically asked the Department whether it held any records relating to the "numerous altercations with members of the staff" referred to in the letter (which has been released) of 15 April 1997 from the Principal of the School to the Chairperson of the Board of Management. The Department says that all records related to that correspondence have already been released to you and that the Department inspectors assigned to the school over the years say that they have no further records concerning you. It is clear from the e-mail of Seán Mac Conmara, dated 24 April 1997, which has also been released to you, that the Inspectorate discussed the issue of your removal from the post of remedial teacher with the Principal and with the Chairperson of the Board of Management. However, the inspectors who were contacted by the Department have given assurances that they hold no records of such discussions.

In your submissions to this Office, you refer to posts of responsibility within the school which have, allegedly, been denied to you. In response to queries from this Office, the Department says that the awarding of such posts is totally within the remit of the Board of Management and that it holds no records about the awarding of the posts in question.

You implied in your submissions to the Department that its search for your records should extend to all sections identified in its manuals published under section 15 and section 16 of the FOI Act. Not all of the records of the entire Department have been catalogued and a full search of all records would, I believe, be extremely time consuming. There is no reason to believe that any sections of the Department other than Primary Administration, Primary Inspectorate, Primary Payments and Legal Services might have had any involvement with you or your employers in relation to your teaching career or otherwise. Accordingly, I consider that it would be unreasonable to expect that records about you would be found in areas where files relating to primary teachers and their schools (including inspections thereof) would not normally be held.

As explained in this Office's Guidelines on Adequacy of Search Cases (a copy of which was sent to you by Ms Dolan), the Commissioner's function is not to search for records but to decide whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. I am satisfied, on the basis of the enquiries made by this Office and on the basis of the information received, that the Department has taken all reasonable steps to ascertain the whereabouts of the records sought. Accordingly, my finding is that the Department's decision complies with the provisions of section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the Department, in relation to your request of 15 August 2000, to refuse access to any further records relating to you.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator