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Whether the Department was justified in its decision to refuse access, pursuant to the provisions of section 10(1)(a) of the FOI Act, to records relating to the applicant's attendance at a number of specified schools on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Review application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

On 3 January 2013, the applicant made a request under the FOI Act for records relating to her attendance at a number of specified schools in Co. Cork. The Department issued a decision on 17 January 2013, refusing the request on the grounds that it could not locate any records. The applicant sought an internal review and a decision on that review issued on 12 February 2013. The internal reviewer affirmed the original decision. Subsequently, on 5 March 2013, this Office received from the applicant a request for a review of the Department's decision.

During the course of the review, and following additional searches undertaken, the Department located three relevant records which were included in records relating to the transfer of children from the Blarney area. I understand that the relevant parts of the three records which relate to the applicant have since been released. On 16 August 2013, Mr Edmund McDaid of this Office wrote to the applicant outlining his preliminary view that the Department was justified in deciding that no further relevant records exist or can be found and inviting the applicant to comment on his views. A response was not received from the applicant. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to details of the submissions of the Department, to correspondence between the applicant and the Department and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in deciding that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken and that section 10(1)(a) of the FOI Act applies.

Findings

Section 10(1)(a) of the FOI Act provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if-

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"

The Commissioner's role in a case such as this is to review the decision of the public 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. 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 public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).

In its submission to this Office, the Department explained that school files held by it generally reflect historical records on matters such as teaching and infrastructure provision and that it does not generally hold records about individual pupils and their attendance at schools. Such records are normally recorded and held by the schools. The Department explained that school records, including registers, roll books and daily report books are not Departmental records; rather they are the sole responsibility of the school Boards of Management. For this reason, the applicant was referred to the FOI Unit of the Brothers of Charity, Cork in 2008 on foot of a previous FOI request.

The Department confirmed that it has conducted a search for relevant records in all areas where records might be held. This included Special Education Section, Schools Division, the National Psychological Services, Special Needs Litigation Section, and the Department's Inspectorate. Details of those searches were provided to the applicant in the Department's original decision on her request. During the course of the review, the Department reviewed the school files and extended its search to associated files such as school transport files where the three records referred to earlier were located. The Department stated that a number of files which had been transferred to the National Archives were also retrieved and searched but no further relevant records were located.

The position of the Department is that it cannot find any further records relevant to the applicant's FOI request. Having reviewed the steps taken by the Department to locate the records at issue, I am satisfied that the Department has taken all reasonable steps to locate all relevant records and I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department of Education and Skills in this case.

Right of Appeal

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 eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
25 September 2013