Case number: 150430

Case Number: 150430

Our Reference: 150430

Your Reference: *****


25 October 2016

Messrs Z

Attention of: XX .Your Clients: A, B & C.

Application under section 22 of the FOI Act for review of decision to refuse access to NAMA records

Dear Ms X

I am writing to inform you that I have decided to discontinue my review of your clients' application under the Freedom of Information Act 2014 (the FOI Act), for review of NAMA's decision on their FOI request of 10 July 2015.

Your clients sought access to [the original request sought nine categories of records, all concerning NAMA's relationship with the clients, details of which are not appropriate to reproduce here].

Section 22(9)(a)(vii) - refusal to accept/ discontinue a review
Our letter of 19 August 2016 informed you of the possibility that this review could be discontinued under section 22(9)(a)(vii) of the FOI Act. Section 22(9)(a)(vii) of the FOI Act provides that I "may refuse to accept an application [for review], or may discontinue a review under this section if [I am, or become,] of the opinion that - accepting the application would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the 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 work of [my] Office." Furthermore, section 22(9)(b) provides that in determining whether to discontinue a review under section 22, I shall act in accordance with my own discretion.

In your letter to my Office of 29 September 2016, you said that the legislation expressly provides only for me to refuse to accept a review. It is clear that section 22(9)(a) provides that I "may refuse to accept an application ... or may discontinue a review ..." where I am or become of the opinion that any one of seven circumstances applies, one of which is that at subsection (vii). If the Oireachtas had intended section 22(9)(a)(vii) to be as limited in scope as you argue, it would not have enabled me to consider the "nature of the information" in a record. Consideration of the nature of a record requires me to have examined that record or a sample of records. I normally do not require the FOI body to forward the records for examination until I have accepted the application for review following checking that it is validly made by reference to the requirements of the Act as regards time periods, internal review, fees etc.

Invitation to reduce number of records
Our letter of 19 August 2016 invited you to significantly reduce the number of records. This was in order to refine the scope of the review given the over 3,400 pages of information sought. In response, you asked my staff to indicate the records, or types of records, that I might direct NAMA to release. A decision on whether the FOI body's refusal of access to each record was justified under the Act can only be made by myself or my delegated officer, when the review has been completed. Without fully considering the records in the context of the statutory provisions and submissions made, it would be impossible and inappropriate to indicate what I might direct for release.

You also asked what number of documents would be considered low enough for me to no longer consider discontinuance. As my Office informed you, it is not simply a matter of giving a number. In this case, while the volume of withheld information is a key factor, the nature of the information concerned is also relevant. I note that NAMA provided you with a schedule describing the records held and that certain records have been released to you.

The invitation to your clients to reduce the scope of their request was not an attempt to deny them their rights under the legislation. Rather, it was made in an effort to help them continue to exercise their rights. The fact is that that your clients did not reduce the amount of information being sought. I reject your assertion that my Office failed to adhere to fair procedures in its handling of your case. No submissions have been sought from NAMA in relation to the exemptions required to be considered should the case be progressed.

The withheld records contain over 3,400 pages of information. NAMA has claimed that seven provisions of the FOI Act apply to that information. I have considered your application to this Office, correspondence since my Office's letter of 19 August 2016 up to yours of 29 September 2016, the fact that the number of records has not been reduced, the nature of the information at issue and the relevant provisions of the FOI Act. In addition, any release of the withheld information may affect the rights of third parties. As a result, I would have to identify, consult with, and take account of the views of any third parties that may be affected by my decision. The extent of such consultations would only become apparent on examination of the withheld information. I have also considered the interference that allocating further resources to this review would cause to the other work of my Office. I am satisfied that a thorough examination of the content and context of the withheld information, along with any submissions that may be made by your clients, NAMA and/or other parties regarding the application of the various exemptions would be necessary before a decision could be made on the review.

I conclude that the number of records involved and the nature of the information concerned are such that a review in this would cause a substantial and unreasonable interference with or disruption of work of my Office.

Accordingly, in the exercise of my discretion under section 22(9)(b), I discontinue this review pursuant to section 22(9)(a)(vii) of the FOI Act.

Yours sincerely

Peter Tyndall
Information Commissioner