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Case Number: 170411

Whether the Institute was justified in its decision to refuse access to a copy of a reply issued by its Governing Body's to the Higher Education Authority (HEA) under section 15(1)(a) of the FOI Act on the ground that it cannot locate the record after all reasonable steps to ascertain its whereabouts have been taken

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 12 June 2017 the applicant made a three-part request to the Institute, including a request for a copy of the Governing Body's response to a letter from the HEA concerning financial issues relating to the Institute. On 14 June 2017 the Institute refused access to the Governing Body's response under section 15(1)(a) of the Act on the ground that the record does not exist as the HEA did not write to the Governing Body. On 19 July 2017 the applicant sought an internal review of the Institute's decision, having obtained a copy of the relevant correspondence directly from the HEA.

On 9 August 2017 the Institute issued its internal review decision to the applicant in which it affirmed the original decision to refuse the request under section 15(1)(a) on the ground that it does not hold the record. It stated that the matter had been dealt with by the former Chair of the Institute and that he did not retain a copy of the correspondence on the Governing Body files. On 22 August 2017, the applicant sought a review by this Office of the Institute's decision.

During the course of the review, Mr Crowley of this Office provided the applicant with details of the Institute's submission in which it set out the background which led to its original and internal review decisions and in which it outlined the steps it had taken on two separate occasions to locate the relevant record. He informed the applicant of his view that the Institute was justified in refusing the request on the ground that it does not hold the relevant record. In response, the applicant indicated that she requires a binding decision on the matter.

In carrying out this review, I have had regard to the correspondence between the Institute and the applicant and to the communications between this Office and both the applicant and the Institute on the matter.

Scope of Review

This review is concerned solely with whether the Institute was justified in its decision to refuse the applicant's request for a copy of the Governing Body's response to the HEA under section 15(1)(a) of the FOI Act on the ground that the record cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role 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/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 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 decision maker concluded that the steps taken to search for records were reasonable.

As I have referred to above, Mr Crowley of this Office has already provided the applicant with details of the searches undertaken by the Institute to locate the record sought. Therefore, while I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.

In essence, the Institute's position is that its former Chair handled the correspondence with the HEA himself and that, while he informed the Governing Body about the matter, a copy of the correspondence was not retained on the Institute's files. It indicated that it only became aware of this as a result of its engagements with the applicant in relation to her FOI request. It is a matter of great concern to this Office that important correspondence concerning financial issues arising at the Institute has not been retained on the Institute's official files and is not available for potential release under FOI. Indeed, I note from the Institute's submission that had such documentation been in its possession, it would have been archived and retained indefinitely as per its records retention schedule.

However, it is also clear from the submission that the Institute shares the concerns of this Office and that it has taken steps to ensure that such an issue does not arise again. It stated that it has written to the former Chair seeking the return of the record and any other pertinent document relating to the Institute. I note, however, that there is no indication as to whether or not the former Chair has retained the relevant record as he had not yet responded to that request at the date of the Institute's submission. The Institute further stated that the Institute's FOI Officer wrote to the Vice President for Finance and Corporate Affairs at the Institute and recommended that action be taken to ensure that all future correspondence to and from the Institute's Governing Body and/or Chair is logged in an appropriate manner. It stated that in response, the Board of the Governing Body requested the FOI Officer to draft a policy in relation to the appropriate retention of Governing Body correspondence specifically. At the date of its submission, that policy was being drafted for submission to the Governing Body for approval.

While it is unfortunate that the record sought by the applicant is not held by the Institute, I have no option but to find that the Institute was justified in refusing the request on the ground that it does not hold the record sought. However, I welcome the proposals outlined by the Institute for ensuring that all such future correspondence is appropriately retained.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Institute to refuse the record sought by the applicant on the ground that it does not hold the record.

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.

Stephen Rafferty
Senior Investigator