Case number: OIC-133377-Z7H9J0
31 May 2023
On 24 August 2022, the applicant submitted a five part FOI request to TCD for the following information:
“In follow-up to TCD/1351/FOI, about animals, please provide me with the following information:
1. Please provide a breakdown of how many animals were killed using each approved method of killing listed in Annex IV of Directive 2010/63/EU;
2. Please provide how many animals used in authorised procedures and/or as part of a breeding programme, broken down by species, were found dead in 2020 and 2021;
3. Please provide how many euthanised animals were healthy at the point of euthanasia and/or euthanised after the study period, extraneous to the requirements of the procedure and/or project;
4. Any advice that TCD’s Animal Welfare Body provided to TCD “on rehoming schemes, including the appropriate socialisation of the animals to be rehomed” as required by SI 543 50(2)(f) European Union (Protection of Animals used for Scientific Purposes) Regulations 2012;
5. Please provide the non-technical project summaries (NTPSs) and any retrospective assessments for the 6 projects summarised in your bullet points. For the NTPS you can provide a link to their publication on the HPRA website.”
In a decision dated 19 September 2022, TCD refused parts one and two of the applicant’s request on the basis that relevant records do not exist (section 15(1)(a) refers). In relation to parts three and four of the request, TCD stated that all animals are humanely killed at the end of experiments as part of the data collection for the project for which their use has been authorised. In relation to part five of the request, TCD stated that the NTPS of all projects approved by the HPRA can be obtained from the HPRA website. It stated that due to reasons surrounding the protection and safety of its researchers and locations, it cannot give specific links to projects from TCD alone. On 12 October 2022, the applicant requested an internal review of TCD’s decision. On 2 November 2022, TCD’s affirmed its original decision. As part of its internal review decision, TCD provided the applicant with a table which listed the number and species of animal that were euthanised for the years 2020 and 2021. On 20 December 2022, the applicant applied to this Office for a review of TCD’s decision. The applicant states that the table provided by TCD reports the overall number of animals euthanised, but does not break them down by the specific method of killing used. He also said the table does not give a break-down of those animals that were euthanised and those that were found dead.
During the course of the review, the Investigator wrote to the Head of TCD and outlined his view that the original and internal review decisions fell short of the requirements under the FOI Act. He required TCD to furnish the applicant and this Office with a statement of reasons for its decision pursuant to section 23 of the Act. In its statement of reasons, TCD said it wished to rely on section 15(1)(a) of the FOI Act in refusing access to parts one and two of the applicant’s request. It said that in the interests of being helpful, information in the format TCD is legally required by the HPRA to record was provided to the applicant. TCD stated that the information requested does not exist in the format requested as it is not a regulatory requirement to collect data in this manner. TCD stated that the cause of death, when known, is recorded in individual project reports and is also gathered during daily health and welfare checks on the animals. TCD said it wished to rely on section 15(1)(c) of the Act in refusing access to parts three and four of the applicant’s request. In relation to part three of the request TCD said “Information is recorded within individual project reports of which there are upwards of 25 during the requested period. The individual projects represent multiple experiments in each case. The extraction of individual datasets would be needed to provide an overall collated number and would cause an unreasonable interference and disruption of the work of the unit. The Administrative Unit which supports the work of Researchers who engage in animal research is supported by one post holder. Due to the highly regulated environment under which research takes place, there are a high level of reporting requirements to the HPRA with strict deadlines.” Finally, TCD said it wished to rely on section 32(1)(a)(ix) and 32(1)(b) in refusing access to part five of the applicant’s request.
TCD also provided focused submissions in support of its decision, it said “While TCD does collect method of killing information in records prepared for individual research projects, it does not hold records where these numbers are totalled for all research projects in a particular date range”. This Office provided the applicant with an update in relation to all of TCD’s submissions. The applicant provided comments and observations in relation to TCD’s submissions.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, TCD and the applicant, as well as the details at issue and the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the applicant said he was agreeable to omitting part five of the request from the scope of this review. Accordingly, this review is concerned solely with whether or not TCD was justified in its decision to refuse to grant access to the information sought at parts one to four of the applicant’s request under sections 15(1)(a)/(c) of the FOI Act.
Section 15(1)(a)- whether records exist
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 17(4) – extraction of information held electronically
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, if the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
As outlined above, TCD stated in its submissions to this Office that it does collect method of killing information in records prepared for individual research projects, however it does not hold records where these numbers are totalled for all research projects in a particular date range. It also stated that the cause of death, when known, is recorded in individual project reports. Following these submissions, this Office requested clarification from TCD whether the information it holds in relation to method of killing and cause of death is contained in hard copy files or on an electronic device that can be searched electronically and if held electronically, what steps are required to create the record sought by the applicant.
In reply, TCD stated that it holds approved method of killing information in individual project reports in electronic format. It said that providing an overall figure to satisfy part one of the request would require that individual figures be extracted from the project reports of each experiment for each project ongoing at the time of the request. TCD stated that there is one post-holder within the administrative unit that supports animal researchers who is familiar with these reports and requiring that post-holder to collate this information would cause a significant disruption to the work of the administrative unit that goes beyond the reasonable steps that TCD is required to undertake under section 17(4) of the Act. TCD stated that it does not hold any records containing total figures for the information requested in part two of the request and it considers that section 15(1)(a) is applicable to this part of the request.
In his submissions to this Office, the applicant stated that TCD have shifted their overall position from contending that the information relevant to parts one and two of his request does not exist at all, to now contending that it would be too onerous to collate the information. The applicant states that the suggestion that this collation of information can only be left to one administration officer is not credible. He contends that it should be perfectly possible for the managers, principal investigators or any other staff involved in projects ongoing in 2020 and 2021 to collate the requested information for their particular project.
While there is no obligation on an FOI body to create a record by collating information from hardcopy records, there is an obligation to do so where the information is held electronically. It is clear from its submissions, that TCD holds method of killing information and cause of death information in records prepared for individual research projects and these individual research projects are held in electronic format. TCD has stated that it would be unreasonable to require it to extract the information at issue as there is only one post holder who is familiar with these project, while the applicant contends that it should be perfectly possible for other staff involved with the projects to collate the information. I note that TCD has extracted information in relation to the number and species of animal that were euthanised for the years 2020 and 2021 in accordance with regulatory requirements. TCD has not however provided information concerning the length of time or steps required to create the record sought by the applicant in parts one and two of his request.
Accordingly, I am not satisfied that TCD was justified in refusing parts one and two of the applicant’s request on the basis that the record sought did not exist and could not be collated using any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Therefore, I find that TCD was not justified in refusing these parts of the request under section 15(1)(a). In the circumstances, I consider the most appropriate course of action to take is to annul the decision, the effect of which is that TCD must consider parts one and two of the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with TCD’s decision.
Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such a number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body.
However, section 15(4) of the FOI Act provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.
In the request for focused submissions, this Office asked TCD the following question:
“Have you assisted, or offered to assist, the requester with a view to amending the request for re-submission so that it no longer falls within section 15(1)(c)? If so, please show how such assistance was offered or provided and provide copies of the relevant communications. Please note that an FOI body cannot rely on section 15(1)(c) where it has not complied with this requirement. [Section 15(4) refers].” TCD did not provide a reply to this question. I note that TCD did not rely on section 15(1)(c) in its original or internal review decisions and it first relied on section 15(1)(c) in its response to the section 23 notice.
Based on the correspondence provided to this Office, it is clear that the TCD did not engage with the applicant in accordance with section 15(4) to offer him assistance in amending the request so it no longer fell under section 15(1)(c). I find, therefore, that the TCD did not comply with the provisions of section 15(4) of the FOI Act in this case and cannot rely on section 15(1)(c) to refuse part three and four of the request.
In the circumstances, I am satisfied that the most appropriate course of action to take is to annul TCD’s decision in relation to parts three and four of the applicant’s request, to remit the matter back to TCD and direct TCD conduct a fresh decision making process in relation to these parts of the applicant’s request. If TCD intends to rely on section 15(1)(c) in relation to parts three and four of the request, it must comply with the requirements of section 15(4) beforehand and it must engage with the applicant and to offer him assistance in amending the request so that processing the request no longer causes an unreasonable interference with, or disruption of, work of the relevant unit.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul TCD’s decision to refuse parts one, two, three and four of the applicant’s request under sections 15(1)(a) or (c) of the FOI Act. I direct TCD to conduct a fresh decision-making process in relation to these parts of the request.
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.