Whether the Department was justified in deciding to refuse access to further records relating to notification of monitoring visits sent to Community Employment Supervisors and relating to certain training facilitated for such Supervisors under section 15(1)(a) on the ground that they do not exist or cannot be found

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

The applicant submitted a request to the Department on 22 March 2017 for a range of records relating to him, including notification letters of all monitoring visits sent to the applicant since 2006, and records related to a complaint he made under section 38 of the Disability Act. He also sought details of the percentage of notification letters issued by the Portlaoise Office that were sent to the Community Employment (CE) Supervisor and details of whether any CE Supervisor in the Laois area was allowed or facilitated to do training at QQI level 7 or above and if so, how they were accommodated.

On 25 April 2017, the Department issued a decision in which it stated that it was granting his request. Following a phone call with the applicant on 3 May 2017, the Department informed contacted the applicant again on 12 May to clarify that it could find no records concerning the percentage of notification letters sent to the CE Supervisor. On 23 May 2017, the applicant sought an internal review of that decision, which the Department subsequently affirmed on the same grounds. On 16 July, the applicant sought a review by this Office of the Department-�s decision. 

During the course of this review, the Department provided this Office with information regarding the applicable record management policy and the searches conducted to locate relevant records. Ms McCrory of this Office provided the applicant with details of those searches by email on 10 October 2017. She also informed the applicant of her view that the Department was justified in deciding that the records sought did not exist or could not be found.

As I have received no response for the applicant, I have decided to conclude this review by issuing a binding decision on the matter. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

While the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

Accordingly, this review is solely concerned with whether the Department was justified in its decision to refuse the applicant-�s request for records containing details of the percentage of notification letters sent to the CE Supervisor and containing details of the facilitation of certain training in the Laois area, under section 15(1)(a) on the ground that no relevant records exist or can be found.

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.

In a submission to this Office, the Department provided details of the applicable record management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms McCrory of this Office has already provided the applicant with these details. In summary, the Department stated that it did not have responsibility for Community Employment (CE) prior to its transfer from FÁS in 2011 and therefore did not have responsibility for storage, filing, archiving, retention or destruction of the types of records sought prior to this date.

It further stated that a comprehensive manual examination of all relevant hard copy records in the Department's offices was carried out. In addition, it stated that a thorough examination of all electronic records was carried out. It further stated that an examination of records relating to funding for CE supervisor training provided to CE sponsoring organisations in Laois was also carried out. According to the Department all relevant staff were consulted about the locations of records and this included the consideration of the possibility of records being held in locations other than the Department's offices in Laois. The Department concluded that no further relevant records existed or could be located on the basis of the comprehensive searches conducted.

The Department also stated that the further records sought by the applicant were only held in part by the Department, as training and how it is facilitated is strictly for a sponsoring organisation to provide or not provide to an employee, even if they are employed through the CE Scheme. Therefore, it submitted, any records related to this would not be held by the Department.

I am satisfied, having regard to the information outlined above, that the Department has taken all reasonable steps to locate the records sought by the applicant. I find, therefore, that the Department was justified in its decision to refuse the applicant's request for access to the records sought on the ground that they do not exist or cannot be found.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department in this case.

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