Case number: 160218
The applicant made a six-part FOI request to the CER on 25 January 2016 for certain information relating to the consultation paper published jointly by the CER and the Utility Regulator in late 2015 concerning the development of a market power mitigation strategy.
On 8 February 2016, the CER notified the applicant that it was extending the period for considering the request given the number of records involved. It also stated that processing the request would require the examination and retrieval of such number of records as to cause a substantial and unreasonable interference with or disruption of work of its Markets Division. Furthermore, it stated that a fee for search and retrieval of the records would apply and it offered to assist the applicant to amend or limit the request to reduce or eliminate the charges likely to arise.
The applicant submitted an amended request to the CER on 18 February 2016. The CER refused the request on 4 March 2016 under section 15(1)(c) of the FOI Act on the ground that processing the amended request would still cause a substantial and unreasonable interference with or disruption of work of its Markets Division due to the number of records involved. The applicant sought an internal review of the CER's decision on 6 April 2016. The CER issued an internal review decision on 28 April 2016 in which it affirmed its original decision. The applicant sought a review by this Office of that decision on 5 May 2016.
During the course of the review, Mr Christopher Flood of this Office informed the applicant of details of the CER's submission to this Office and of his view that its decision was justified. The applicant indicated that a formal decision was required.
I have decided, therefore, to conclude this review by way of a formal, binding decision. I have had regard in carrying out this review to the correspondence between the CER and the applicant as set out above. I have also had regard to the correspondence between this Office and both the CER and the applicant on the matter.
This review is concerned solely with the question of whether the CER was justified in refusing the applicant's request for certain information relating to the consultation paper published jointly by the CER and the Utility Regulator concerning the development of a market power mitigation strategy on the ground that responding to it would cause a substantial and unreasonable interference with or disruption of the work of its Markets Division.
Section 15(1)(c) of the FOI Act allows an FOI body to refuse to grant a request if it considers that granting the request would cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area, due to the number or nature of records that would be required to be retrieved and examined. 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 be refused under section 15(1)(c).
As I have outlined above, in its letter of 8 February 2016 to the applicant, the CER stated that a fee for search and retrieval of the records would apply and it offered to assist the applicant to amend or limit the request to reduce or eliminate the charges likely to arise. While the offer of assistance was made in respect of the possible reduction or elimination of search and retrieval fees and the CER did not specifically state that it was offering to assist the applicant so that section 15(1)(c) would no longer apply, I am satisfied that the applicant was made aware that section 15(1)(c) was likely to apply and that an offer of assistance to amend the request was made.
Accordingly, I must now consider whether the CER was justified in deciding to refuse the amended request on the ground that granting the request would cause a substantial and unreasonable interference with, or disruption of, the work of its Markets Division.
The CER stated in its internal review decision that over 3,000 records had been identified that may be relevant to the amended request. In its submission to this Office, it argued that, based on conservative estimates, responding to the request would take at least 250 hours, or 31.25 days of work, based on an eight hour working day. It argued that the records, approximately half of which comprise emails, would have to be individually screened for confidential material. It further argued that all relevant third parties would have to be notified and given an opportunity to make a submission.
On the matter of the location of relevant records, the CER noted that, as per the amended request, the records sought include all relevant communications between third party advisers and the CER, including letters, emails, memos, agendas, minutes, instructions, presentations, attendances, reports and/or directions in hardcopy and/or electronic form, including drafts of all such records. According to the CER, the relevant records would typically be held by various members of staff of its Markets Modelling Team (MMT), which is the CER team with primary responsibility for the Consultation Paper, and are stored in different ways depending on their significance. Records may be kept as written notes, or in personal Microsoft Outlook folders, or on a records management system (HPRM). It explained that due to resource constraints within the MMT, not all records are stored within the HPRM folder. Rather, they are typically stored within personal Microsoft Outlook folders with a view to being stored in HPRM at the next available opportunity.
The CER argued that responding to the amended request would particularly effect the MMT (part of the CER's Energy Markets Division). It stated that when a request is received, the FOI Officer sends it to the relevant area of the CER. A decision maker is then appointed to respond to the request, alongside their usual tasks. According to the CER, MMT staff would have to be reassigned to process the request. The MMT consists of one manager and three analysts. It is responsible for the Consultation Paper and is working on the Integrated Single Electricity Market project, a project of strategic national importance with an October 2017 deadline. It also has additional responsibilities, including the setting of the Public Service Obligation level, the setting of prices and quantities for ESB's Directed Contracts on a quarterly basis, and compliance with additional EU obligations imposed on National Regulatory Authorities.
Based on the number of records potentially coming within the scope of the amended request, on the CER's description of the measures required to process that request, and on the potential impact processing the request is likely to have on its MMT, I am satisfied that the CER was justified in deciding that responding to the amended request would cause a substantial and unreasonable interference with or disruption of the work of the CER, the MMT in particular. I find, therefore, that the CER was justified in its decision to refuse the request under section 15(1)(c).
While it is not strictly necessary for me to do so, I would add that it would also have been open to the CER, in my view, to refuse the amended request under section 27(12) of the Act. That section provides for the refusal of a request where the amount of a search and retrieval and copying charge exceeds or is likely to exceed the overall ceiling limit prescribed, currently set at €700. Based on the CER's estimate of the time and resources that would be required to process the request, it would appear that the likely search and retrieval costs would have been significantly in excess of that ceiling limit.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the CER to refuse the request under section 15(1)(c).
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.