Mr. X and a Third Level Institution

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 24 September 2015
• Case Outcome: The Senior Investigator varied the decision of the Institution. She affirmed that part of its decision relating to section 10(1)(a) of the Act. She annulled the Institution?s decision to refuse records on the basis of sections 20(1) and/or 21(1)(b) of the Act and she directed release of the records in question.
• Record Number: 140267
• Court: Information Commission
• Respondent: Third Level Institution

Whether the Institution was justified in its decision to refuse access to records concerning the applicant's employment under sections 10(1)(a), 20(1), and 21(1)(b) of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 29 August 2013, the applicant made an FOI request to the Institution for:

1. A copy of the file on his application for promotion in 2008,
2. Copies of all documents in his file in the HR Department since 1 September 2011,
3. Copies of all correspondence sent by two members of academic staff and the HR Department in which he is mentioned since 1 September 2011,
4. Details of meetings or discussions that have taken place between the above relating to the applicant since 1 September 2011.

On 27 September 2013, the Institution granted partial access to the records requested. The applicant sought an internal review of this decision. On 3 April 2014, the Institution varied its original decision and released further records to the applicant. On 28 September 2014, the applicant applied to this Office for a review of the decision of the Institution. Both the applicant and the Institution made submissions in the course of the review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this. In conducting this review, I have had regard to correspondence between the applicant and the Institution, to correspondence between the Institution and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

The Institution identified 98 records as relevant to the applicant's request, it decided to release 81 of these records in full. It released six records in part on the basis that the information redacted was personal information and was exempt under section 28 of the Act. The Institution refused to release eleven records on the basis that they were exempt under sections 20(1) and/or 21(1)(b) of the Act. In submissions to this Office the applicant claimed that the Institution ought to hold further records relevant to his request. On 5 August 2015, the applicant confirmed in writing to this Office that he was willing to exclude the records redacted under section 28 from the scope of this review. On 4 September 2015, the Institution confirmed that, in light of the passage of time, it was willing to release all of the records which it had claimed were exempt under sections 20(1) and or 21(1)(b) with two exceptions, records 48 held by HR and record 13 held by a member of academic staff.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

In light of the Institution's release of certain records in the course of the review as outlined above, the scope of this review is confined to the following two questions:

(i) whether the Institution was justified in deciding that no further records exist which are relevant to the applicant's request i.e. whether section 10(1)(a) of the Act applies,

(ii) whether the Institution was justified in refusing to release records 48 and 13 on the grounds that these records are exempt under sections 20(1) and or 21(1)(b) of the Act.

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the Institution to satisfy me that its decision is justified.

I am required to give reasons for my decision; this is subject to the requirement of section 43 (3) that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the circumstances of their creation is somewhat limited.

Finally, the applicant has made submissions in relation to the inadequacy of the Institution's practices and procedures for the purposes of compliance with the FOI Act. An assessment of the Institution's practice and procedures, if it were deemed necessary, would have to be carried out pursuant to section 36 of the FOI Act, while this review, conducted pursuant to section 34 of the FOI Act, must be confined to reviewing whether the Institution has justified its refusal of the request under the FOI Act.

Analysis and Findings

Section 10(1)(a)
The applicant argues that further records relevant to his request ought to exist and have not been released. In such cases the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means the Commissioner 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...