Mr X and Cork Institute of Technology

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 04 June 2015
• Case Outcome: The Senior Investigator found that the Institute was not justified in refusing access to parts of the records at issue. She varied the Institute's decision, directing the release of records, in part. She found that the Institute was justified in its refusal to release further records, on the basis that such records either do not exist or cannot be found after reasonable searches had been carried out.
• Court: Information Commission
• Record Number: 150016
• Respondent: Cork Institute of Technology

Whether the Institute was justified under section 30(1)(b) of the FOI Act in its decision to refuse to grant access to records sought by the applicant, relating to his employment and to the management by the Institute of a joint venture with another entity, and whether the Institute was justified under section 15(1)(a) of the FOI Act in its refusal to release further records, on the basis that such records either do not exist or cannot be found after reasonable searches had been carried out

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

Background

On 15 October 2014, the applicant submitted a request to the Institute for access to seven categories of information. On 7 November 2014, the Institute issued its decision, granting access to some records, but refusing access to certain other records under section 30(1)(b) of the FOI Act. On 20 November 2014, the applicant sought an internal review of this decision. The internal reviewer issued his decision on 8 December 2014, upholding the initial decision. On 16 January 2015, the applicant sought a review by this Office of the Institute's decision. This review was assigned the reference number 150016.

On 10 December 2014, the applicant submitted a further request to the Institute, seeking access to four categories of information. On 16 January 2015, the Institute issued its decision, granting access to four records, subject to redactions of information falling outside the scope of the applicant's request. On 12 February 2015, the applicant sought an internal review of this decision. The internal reviewer issued his decision in relation to this application on 2 March 2015, upholding the initial decision. On 15 March 2015, the applicant sought a review by this Office of the Institute's decision in this case. The review was assigned the reference number 150076.

I note that the Institute and the applicant have furnished submissions relating to the matters at issue. The applicant was offered the opportunity to make further submissions in response to the arguments raised by the Institute. The applicant declined to do so, but requested that the Commissioner should rule on the matter. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. As the parties to each review are identical, and given that each review concerns similar subject matter, in my view it is appropriate that both applications be considered together.

In conducting my review, I have had regard to the Institute's decisions on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Institute, and a copy of the records at issue, a copy of which has been furnished to this Office for the purpose of this review. I have also had regard to the provisions of the FOI Act.

Scope of the Review

In Case 150016, the applicant's request was for access to:

"1. Contract of Employment to include the terms and complete conditions of the ... position.
2. Grievance, disciplinary and complaints procedure.
3. Employee Handbook.
4. All relevant employment documents, to include but not limited to the advertisement for [the applicant's] position.
5. All communication in regard to the recent changes to [the applicant's] employment status to include all communication between line managers and minutes of meetings etc. whereby the actions were approved.
6. All communication in regard to refusal by the college for [the applicant] to be afforded representation at meetings concerning the actions of the college in regard to his position.
7. All and any statements by CIT in relation to the equality legislation, the labour relations legislation and the employment legislation."
The applicant's request, in Case 150076, was for access to:

1. "... the minutes of [a board] meeting on 13th November 2014"
2. "... up to date all communications in regard to the contract changes and changes in duties/contact hours to [the applicant] in 2014-15"
3. "... all communication, documents, minutes of meetings of [two boards] to reallocate contact house [sic] as detailed in the emails attached..."
4. "... all rules and regulations and directions in regard to whom [sic] and how such decisions are made [by the two boards]"

The Institute submits that it has located all relevant records in relation to each of these categories, aside from records it deemed to be exempt, with the exception of Case 150016, Category 3, in respect of which the Institute claims that no Employee Handbook exists. The applicant disputes whether all relevant records have, in fact, been furnished to...