Case number: 160364
The applicant, a property development company, submitted a broad, detailed request to NAMA on 1 February 2016, for access to all records held or under its control created after 21 April 1998, under 13 specified categories, relating to a portfolio of properties.
On 10 February 2016, NAMA informed the applicant of its opinion that the request fell to be refused under section 15(1)(c) of the FOI Act in light of the significant volume of records that would have to be retrieved and examined and it asked the applicant to amend the scope of the request. Following further exchanges of correspondence between the parties concerning the narrowing of the scope of the request, the applicant submitted an amended request to NAMA on 15 April 2016, wherein the number of categories of records sought was reduced from 13 to nine. NAMA refused the request on 27 April 2016 under section 15(1)(c) of the FOI Act as it considered that the number of records requiring retrieval and examination to process the amended request remained voluminous and would cause a substantial and unreasonable interference with its work. The applicant sought an internal review of that decision and on 2 June 2016, NAMA affirmed its original decision. The applicant sought a review by this Office of NAMA's decision 1 September 2016.
I note that during the course of the review, Ms Buckley of this Office provided the applicant with the key details of NAMA's submission in which it explained why it decided to refuse the request under section 15(1)(c) and she informed the applicant of her view that its decision was justified. The applicant made a further submission on the matter on 2 November 2016.
I have decided to conclude this review by way of a formal, binding decision. In conducting this review, I have had regard to the communications between the applicant and NAMA as set out above. I have also had regard to communications between this Office and both the applicant and NAMA on the matter.
This review is solely concerned with whether NAMA was justified in refusing the applicant's request for records relating to the portfolio of properties on the ground that processing the request would cause a substantial and unreasonable interference with the work of NAMA.
Section 15(1)(c) of the FOI Act allows a 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).
The applicant argues that NAMA was not justified in refusing the request in the manner it did. The essential thrust of its argument is that NAMA failed to offer meaningful assistance as required by section 15(4) to allow for the submission of a revised request which would not fall to be refused under section 15(1)(c). While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), it seems to me that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is not sufficient for the purposes of compliance with the section. In holding this view, I am cognisant of the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests.
As such, it seems to me that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, it seems to me that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
In this case, there were several exchanges of correspondence between the parties concerning possible amendment of the original request. In its letter of 10 February 2016, NAMA informed the applicant that preliminary searches for relevant records returned a significant volume of records and it referred to the broad nature of the scope of the original request. I note that it also offered contact details in the event that the applicant had further queries on the matter.
In its response of 23 February 2016, the applicant argued that NAMA's letter had given no guidance on the amount of such records or their nature and that it was not clear that a significant volume of records was returned for each of the 12 (sic) categories of its request. In its response of 29 February 2016, NAMA provided further information relating to the preliminary search conducted. It explained that searches were carried out on its document repositories and mailboxes for the period 21 December 2009 (the date of its establishment) to the date of the FOI request and that the estimated number of records identified was in excess of 10,000. It suggested that the applicant consider refining the request and suggested that a resubmitted request could, for example, reduce the scope, provide more specific details on the records sought, and/or refine the date range.
The applicant replied to NAMA on 23 March 2016. It expressed surprise at the number of potential records identified and questioned the manner in which the request was interpreted. It again referred to the fact that no indication was given of the breakdown of records in each category and sought further clarification from NAMA to allow it to consider a refinement of the request. On 4 April NAMA informed the applicant that searches would have to be carried out on records matching the full scope of criterion as set out in the 13 categories of records sought and referred again to the suggestions contained in its letter of 29 February 2016. By letter dated 15 April 2016, the applicant submitted a refined request.
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 original request was, as I have described above, both broad and detailed. The request sought all records relating to a number of aspects including, for example;
the consideration of the disposal of, and subsequent disposal of, the portfolio of properties
the redemption, restructuring, consolidation, capitalisation, write down, waiver or release of the Security
the engagement of a specified firm in connection with the project
the investment memorandum
the tendering process and/or sale of the project, the shareholding or the Security
It appears that for NAMA to provide a more specific analysis of the numbers of records captured by the various categories of records sought would have required a more detailed analysis of the 10,000 or more records identified as potentially coming within the scope of the request. Such an analysis, it seems to me, would form part of the administrative burden NAMA sought to avoid by invoking section 15(1)(c). I do not believe that this is what section 15(4) requires.
I do note that NAMA's internal review decision of 2 June 2016 refers to the fact that several thousands of records fell under that part of the request relating to NAMA's engagement with a debtor in relation to credit facilities and the assets securing them, and that this was the main reason why the overall request was deemed to be voluminous. It also refers to the fact that another part of the request relates to the sales process for a specific transaction and that, in normal circumstances, the volume of records generated by individual asset sales processes would tend to be much smaller, in this case estimated as being in the order of 1,000 records.
While I am not sure if this information might have been of assistance to the applicant in refining its request, I believe it is information that might usefully have been provided in the course of the exchanges concerning that refinement. Nevertheless, I do not believe that NAMA's failure to provide this information means that it did not provide reasonable assistance. I might add that while there is an onus on FOI bodies to provide assistance, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access.
In this case it was open to the applicant, for example, to provide a more detailed description of the precise aspects of NAMA's handling of the portfolio of properties in which it had an interest or of the precise records sought. A request which seeks access to all records relating to a matter on which there is a substantial volume of records held will invariably run the risk of being regarded as voluminous. Having regard to the nature of the original request and to the exchanges of correspondence between the parties as described above, I am satisfied that NAMA did, indeed, offer reasonable assistance to the applicant to refine its request, in compliance with section 15(4) of the FOI Act.
However, that is not the end of the matter as I must now consider whether NAMA was justified in deciding to refuse the applicant's amended request under section 15(1)(c). In its submission to this Office, NAMA stated that its records are held electronically in two central document repositories. The FOI Unit engaged with relevant staff to identify suitable keyword search terms and the document repositories and the mailboxes were searched using the names of the company that held the portfolio of properties as keywords. Searches were carried out for the period November 2013 to February 2016, and approximately 8,000 records were identified. NAMA stated that a record may contain multiple pages and attachments and in order to ascertain the total number of pages it would be necessary to retrieve and examine each record individually. NAMA noted that part of the request relates to its engagement with a debtor in relation to credit facilities and the assets securing them, and the nature of this engagement tended to give rise to a substantial volume of records. It also stated that it does not retain records in a filling system matching the categories of records specified by the requester and, therefore, it was not in a position to identify the number of records falling into each category of the request without retrieving and examining all the records.
NAMA estimated that the retrieval and examination of the records identified would require the allocation of its FOI Unit, which is comprised of three staff, to this work for a period of one month to the exclusion of all other FOI work. NAMA is of the view that the retrieval and examination of these records would cause a substantial and unreasonable interference and disruption of the work of that Unit. Having regard to NAMA's explanation of the number of records concerned and the time and resources that would be required to retrieve and examine those records, I find that NAMA was justified in its decision to refuse the amended request under section 15(1)(c).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of NAMA in this case.
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.