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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 him.

The board minutes requested at Case 150076, Category 1, were released to the applicant, subject to redactions of information deemed by the Institute to be outside scope of the applicant's request. I note that the applicant at Category 3 of this request limited the information sought to that relating to the reallocation of the applicant's teaching contact hours. The applicant's solicitor did not specifically take issue with these redactions, either at internal review or in correspondence with this Office. Having regard to the applicant's request, the correspondence between the applicant's solicitor and the Institute as well her correspondence with this Office, and the content of the minutes, I am satisfied that the redacted material is outside the scope of this review.

In relation to Case 150016, Categories 5 and 6, access to certain records was refused under section 30(1)(b) of the FOI Act.

Accordingly, this review is concerned solely with the questions of whether the Institute was justified in refusing access to records coming within Case 150016, Categories 5 and 6 under section 30(1)(b) of the FOI Act and whether it was justified under section 15(1)(a) of the Act in refusing access to further records on the basis that such records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Section 30(1)(b) allows a head, subject to consideration of the public interest, to refuse to grant a request for information if access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff).

When invoking section 30(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected but it must also be expected that the harm will be of a significant nature.

The records at issue consist of emails between senior management discussing resource allocation and management of staff. In particular, the records relate to arrangements for a collaborative venture between the Institute and another body. It is notable that, unlike other records of this type that were released to the applicant, these records contain information relating to issues raised by third parties.

The records disclose detailed and frank discussions between the Institute and its counterparty relating to the operation of their collaboration. The Institute argues that the release of these records could reasonably be expected to prejudice the performance by it of its management functions as it, "could lead to important issues not being communicated properly between relevant senior management and ultimately not being addressed at all."

Having carefully considered the matter, I am not satisfied that the Institute has established that the release of the records in this case could reasonably be expected to have a significant, adverse effect on its performance of functions relating industrial relations and management of its staff, or other management functions. It does not seem to me that it is reasonable to expect that senior management will fail to carry out their duties, and to address relevant issues, based on an apprehension that correspondence may be released under FOI. Moreover, having carefully examined the contents of the records at issue, I am satisfied that no significant adverse effect to relevant management functions may reasonably be expected to arise from their release. Accordingly, I find that section 30(1)(b) of the FOI Act does not apply to the records at issue.

Having so found, it remains to consider whether it is appropriate to release these records in their entirety. I note that the applicant's solicitor, in requesting a review by this Office, stated that the applicant, "has no interest in requesting information relating to other members of staff". I therefore take it that the applicant has excluded such information from the scope of this review. Accordingly, it is not necessary for me to consider the formal application of section 37 of the FOI Act. I would observe that such an exercise would, in all likelihood, have led to an identical outcome, given the rights to privacy enjoyed by the individuals mentioned in the records. I direct the release of the records at issue in Case 150016, Category 5, subject to redactions of the following personal information of third parties:

Record Redactions
Email dated 1 October 2014 All words in the third paragraph following the words "contribution to [the joint venture]".
Email dated 18 June 2014 The final four sentences of the second paragraph, following the words, "is urgent".
All words in the final sentence of the third paragraph, following the words "provided by CIT"
The fourth paragraph in its entirety.
Email dated 17 June 2014, sent by the Institute at 17.59 The first two paragraphs in their entirety, preceding the sentence commencing with the words "Each year"
The fourth paragraph, following the words "hours suffer" and preceding the words "In previous"
All words in the fifth paragraph, following the words "the issue"
The first four words in the sixth paragraph, preceding the words "In the past".
Email dated 17 June 2014 at 13.10, forwarding email of 14 June (below) Personal gmail address of a third party
Similar redactions to those outlined below, insofar as this email forwards the relevant emails.
Email dated 14 June 2014 Personal email address of recipient
The third paragraph, following the words "staff movement" and preceding the words "Any contact"
The second sentence of the fourth paragraph, following the words "semester 2."
Attachment to email dated 14 June 2014, sent by the Institute Entries relating to individuals other than the applicant, that is the second, third, fifth and sixth rows of the table.
The note marked **

It remains for me to consider whether the Institute was justified under section 15(1)(a) of the FOI Act in refusing access to any further records, on the basis that such records do not exist or cannot be found. This Office's role in such cases 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 the 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 the records were reasonable. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court Case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

The Institute submits that manual and electronic searches were carried out for relevant records in the email archives and files held in the offices of senior members of staff, including the applicant's line managers, and in its Human Resources department. These are submitted to be the likely locations in which relevant records should be found.

The Institute states that a re-examination of these locations was carried out based on Category 2 of the applicant's request in Case 150076, but that no further records were located.

Aside from this, records were provided to the applicant under each category sought, with the exceptions of Categories 3 and 7 of his request in Case 150016. The Institute claims that no records exist falling within these categories, but that its human resources policies and other information may be found on its employee intranet, to which the applicant has access.

It is apparent from correspondence before me that the applicant's particular concern is that he believes that emails dated around June 2014 exist, which had not been provided to him. In fact, it appears that these emails were held to be exempt by the Institute, and had not been furnished on that basis. As noted above, I now direct that these records be released to the applicant, subject to the redaction of information relating to third parties.

Having carefully considered the matter, I find no reason to doubt the Institute's submission that further records either do not exist, or cannot be found, and that the searches carried out were reasonable. I therefore find that the Institute was entitled to refuse the balance of the applicant's requests in both Case 150016 and Case 150076 under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, as amended, I hereby annul the Institute's decision in Case 150016 to refuse access to records under section 30(1)(b), and direct the release of those records subject to the redactions set out earlier in this decision.

I affirm, under section 15(1)(a) of the FOI Act, the Institute's decisions in both Case 150016 and Case 150076, to refuse to release further records, on the basis that such records do not exist or cannot be found after reasonable searches have been carried out.

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

Elizabeth Dolan
Senior Investigator