Whether TUSLA was justified in its decision to refuse the applicant’s request for access to records relating to him under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work
7 June 2019
On 9 August 2018 the applicant submitted an eleven part request for records to TUSLA. Parts 1 to 5 of the request were for all information and documents relating to the applicant held by TUSLA and by named staff members. Parts 6 to 8 of the request were for information, documents and records of communications between TUSLA and the Department of Children and Youth Affairs, named staff members and An Garda Siochána respectively. Parts 9 and 10 of the request were for all information, documents and records of communication held on two files, the reference numbers for which the applicant provided. Part 11 was a request for all information, documents and communications between two named staff members and the Secretary General of the Department of Children and Youth Affairs. Responsibility of considering parts Parts 6 and 11 of the request were transferred to the Department of Children and Youth Affairs and are not the subject of the current review.
On 4 October 2018 TUSLA wrote to the applicant in which it outlined details of a telephone conversation between the parties. The letter stated that TUSLA had identified that a large number of records (estimated as potentially 3,000), some of which may fall within the scope of the applicant's request, are held by its Law Agents in relation to the proceedings of a relevant Tribunal of Inquiry. The letter referred to the fact that the TUSLA official had asked the applicant during their telephone conversation if he would be willing to reduce the scope of his request to exclude such records to ensure that his request would not fall to be refused under section 15(1)(c) of the FOI Act. That section allows for the refusal of a request where granting the request would cause a substantial and unreasonable interference with, or disruption of, work of the body.
On 8 October 2018 the applicant replied and stated that he was not in favour of reducing the scope of his request. Instead, he stated that he was willing to accept the records on a memory stick with a corresponding schedule identifying each record. On 19 October TUSLA refused the request under section 15(1)(c). On 7 November 2018 the applicant sought an internal review of the refusal of his request following which TUSLA affirmed its original decision. On 13 February 2019 the applicant sought a review by this Office of TUSLA's decision.
During the course of the review, Ms Whelan of this Office notified the applicant of the details provided by TUSLA as to its reasons for seeking to refuse the request under section 15(1)(c). She informed the applicant of her view that TUSLA was justified in refusing the request based on that explanation and she invited him to make a further submission if he wished. As no such further submission has been received, I have decided to conclude this review by way of formal binding decision. In conducting the review, I have had regard to the correspondence between TUSLA and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and TUSLA on the matter.
Scope of Review
This review is concerned solely with whether TUSLA was justified in its decision to refuse the applicant’s request for records relating to him as outlined above under section 15(1)(c) of the FOI Act on the ground that processing the request would cause substantial and unreasonable interference and disruption with its work.
Analysis and Findings
Section 15(1)(c) allows an FOI body to 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 number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c).
In its submission to this Office, TUSLA argued that the applicant's request was very detailed and it drew attention to part 1 which was for all information and documents relating to the applicant held within TUSLA's Offices. It stated that although records relating to the applicant were initially created as a result of TUSLA performing its statutory functions, additional records were created as a result of a number of events, including;
- a complaint made to the Minister for Children and Youth Affairs by the applicant;
- the matter being considered by an Oireachtas Committee;
- a significant amount of documentation was furnished for the purpose of certain modules of a specified Tribunal of Inquiry (2,837 pages), and
- a significant amount of records capturing exchanges with the Tribunal, its legal advisers, and updates to relevant offices within TUSLA on the proceedings.
TUSLA stated that as a result of those events, records are held in at least seven different locations and that the number of records that would have to be examined is likely to be closer to 4,000.
TUSLA added that it is the nature and contents of the records concerned that give particular rise to the view that processing the request would cause a reasonable and substantial interference with, and disruption of, work within TUSLA. It stated that the records are likely to contain personal information relating to a number of third parties, resulting in a requirement for a close and detailed examination of each record to ensure that the privacy of individuals is not breached.
On the question of the estimated resources that would be required to process the request, TUSLA estimated that it would take approximately 145 hours to process the request, being 21 hours for search and retrieval (three hours in each of the seven identified locations and involving electronic and manual searches), 100 hours to examine each record (assuming an examination rate of 40 records per hour) and 24 hours to prepare record schedules. It stated that records were held on a number of different systems and databases, including email, as well as records created manually and held in hard copy.
In my view, the applicant's request is extremely broad having regard to the level and nature of TUSLA's involvement in matters of relevance to the applicant as described above. Section 15(1)(c) is an explicit acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. In the circumstances, having regard to TUSLA’s explanation of the number of records concerned and the time and resources that would be required to retrieve and examine those records, I accept TUSLA’s contention that processing the request would cause a substantial and unreasonable interference with, and disruption of, its work.
I am also satisfied that TUSLA complied with the provisions of section 15(4) by offering the applicant an opportunity to narrow the scope of his request so that it not fall to be refused under section 15(1)(c). The applicant's offer to accept records on a memory stick did nothing to reduce the amount of time and resources that would be required to process the request. In conclusion, therefore, I find that TUSLA was justified in its decision to refuse the applicant’s request for records under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA 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.