Case number: 040111
Case 040111. Request for review of decision to extend time-frame for decision in accordance with section 9(1)
The requester in this case sought a review of the decision taken by the Department of Environment, Heritage and Local Government to extend by four weeks the time-frame for issuing its decision following an FOI request. The Department initially advised the requester that he could expect a decision within 4 weeks, but subsequently decided, in accordance with section 9 of the Act, to extend by a further four weeks the original four week period. The requester appealed the decision to the Information Commissioner in accordance with section 34(1)(d).
The Department's decision to extend the deadline was made on the basis of section 9(1) of the Act which provides that the four week period set down in section 8(1) for deciding on a request can be extended for a period not exceeding a further period of four weeks in certain circumstances including where the number of records is such that compliance with the usual time-frame is not reasonably possible.
In this case the applicant did not accept that the extension was warranted but the Commissioner's decision affirmed the Department's stance on the basis of the number of hours that it took to comply with the request and the substantial volume of records that were released.
Our Reference: 040111
Dear Mr. X
I refer to your application to this Office dated 10 March 2004, in which you sought a review of the decision taken by the Department of Environment, Heritage and Local Government to extend by four weeks the time-frame for issuing its original decision following your FOI request of 9 February 2004. I have been authorised by the Information Commissioner to conduct this review on her behalf and I have now completed my review of the Department's decision. I have carried out this review in accordance with the provisions of the FOI Acts, 1997 and 2003 and accordingly all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended.
In your original six-part request to the Department you sought access to various records relating to electronic voting. On 11 February 2004 the Department acknowledged receipt of your application and informed you that you could expect a decision by 9 March 2004. The Department then wrote to you again on 20 February 2004 advising that it estimated that the time needed to search for and retrieve the records sought would take 15 hours and accordingly you were asked to submit a deposit representing 20% of the estimated cost. The Department received this payment from you on 24 February 2004.
However, on 5 March 2004 the Department wrote to you advising that it had decided, in accordance with section 9 of the Act, to extend by a further four weeks the original four week period for considering your request. Accordingly, you were advised that you could expect a reply by 7 April 2004.
On 10 March 2004 this Office received an application from you seeking a review of the Department's decision to extend the deadline for making a decision on your request. Your review application was accepted by the Commissioner and the Department subsequently made its decision on 7 April 2004.
The scope of this review is confined to considering whether the Department's decision to extend the deadline for making a decision on your request was justified, having regard to the provisions of section 9(1) of the Act.
Shortly after your review application was accepted, the case was referred to an Investigator from this Office, Mr. Cathal Duffy, who subsequently liaised with both you and the Department in an effort to ensure that the latter issued its decision by 7 April 2004 which was the extended deadline for doing so.
Mr. Duffy took this approach as he considered it to be the most practical way of ensuring that your rights under the Act were met to the greatest possible extent. In other words, if he had at that time corresponded with the Department in relation to the substantive issue, i.e. whether the Department was justified in extending the deadline, then any finding made by the Commissioner could not in real terms have resulted in any tangible benefit for you given the urgency of your circumstances at that time. Having reviewed the chronology of events at that time, and having regard to the content of your review application to this Office, I am satisfied that the approach taken was appropriate in the circumstances notwithstanding the fact that I note you were dissatisfied with the decision finally taken by the Department on 7 April 2004. The actual content of the Department's decision is of course a separate matter which I understand was subsequently the subject of an internal review application by you.
Since then the focus of this review has turned to the issue of whether the Department was justified in extending the deadline. Whilst any decision taken cannot have any tangible benefit for you, I note that in your telephone conversation with Mr. Duffy on 16 April last you indicated that on a point of principle you were unwilling to withdraw your review application as you are deeply unhappy at the Department's handling of this and other FOI requests that you made around that time and earlier. In these circumstances, this Office wrote to both you and the Department on 26 November last and invited submissions in relation to the decision that was taken by the Department under section 9(1). A submission has subsequently been received from the Department but this Office has received no further contact from you in this regard. Accordingly, I have proceeded to a decision on the basis of the information before me.
The Department's decision to extend the deadline was made on the basis of section 9(1) of the Act which provides that the four week period set down in section 8(1) for deciding on a request can be extended for a period not exceeding a further period of four weeks if;
"(a) the request relates to such number of records, or(b) the number of other requests under section 7 relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the public body concerned before the specified request was made to it and in relation to which a decision under section 8 has not been made is such, that compliance with that subsection within the period specified therein is not reasonably possible."
The Department's submission to this Office has referred to the fact that, on the basis of an estimate of the amount of time likely to be involved in searching for and retrieving the information, it wrote to you within ten days of receipt of your request seeking a deposit based on its projection that 15 hours of work would be required. I am also informed by the Department that 12 hours of work had in fact been carried out by 5 March 2004 when it wrote to you informing you that it had decided to extend the deadline by a further four weeks. I understand, that by this date, the decision maker had realised that his estimate of 15 hours was significantly short of what was in fact required. It seems to me that the Department was, on the basis of the 15 hours estimate, on schedule to make a decision if it were not for the fact that the volume of work involved was clearly far more than was originally envisaged. I note that the total number of hours worked on your request amounted to 41 which equates to approximately six full working days. I am aware that the Franchise Section of the Department which deals with electronic voting issues comprises eight staff, three of which are at Assistant Principal (AP) level which is the decision making grade in respect of FOI requests dealt with by the Department. The fact that your wide-ranging request coincided with the imminent implementation of electronic voting meant that in effect the Section would have been one key staff member short for one quarter of a particularly busy month.
As regards the fact that the Department wrote to you on 19 March 2004 seeking clarification in relation items 2 and 3 of your six-part original request, I am informed by the Department that by that date over 19 hours of work had in fact been carried out. Ideally, it would clearly be preferable if proportionally more of those 19 hours had been spent dealing with items 2 and 3 thereby ensuring that these clarifications would have been sought earlier. However, in this regard I note that in your review application to this Office you specifically requested that the primary focus of efforts by this Office should be on having a decision made in relation to item 1 at the very least and it therefore seems to me that if more work on items 2 and 3 had in fact been carried out it may well have led to the Department being unable to meet the extended deadline in respect of item 1.
In the circumstances I am aware that a substantial volume of records were subsequently released to you on 8 April last, which, not including any records relevant to items 2 and 3, amounted to 1,449 pages in total.
In all of the circumstances that I have been made aware of, as outlined above, I am satisfied that the decision taken by the Department, in accordance with section 9(1) of the Act, to extend the deadline by four weeks was justified on the basis that compliance with the request was not reasonably possible given the number of records involved and the amount of time required to process the request.
Having carried out a review under section 34(2) of the Freedom of Information Acts, 1997 and 2003 I hereby affirm the decision taken by the Department of Environment, Heritage and Local Government under section 9(1) of the Act.
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 eight weeks from the date that you receive this decision.