Case number: 170174
The applicant made a request to the Council on 11 January 2017 for details of the total amount the Council had spent on consultants in 2014, 2015, and 2016, along with specified details of all contracts awarded to consultants with a values in excess of €10,000 for those years. As the Council failed to issue a decision on the request within the required time-frame, the applicant sought a review of the Council's deemed refusal of her request on 28 February 2017. The Council issued an internal review decision on 12 April 2017. It did not grant access to any records, nor did it identify any specific provisions of the FOI Act on which it decided to refuse the request. Rather, it argued that the FOI Act does not require public bodies to create records and that the fulfilling of the request would require "significant allocation of resources".
On 12 April 2016, the applicant sought a review by this Office of the Council's decision. In conducting this review I have had regard to the communications between the Council and the applicant on the matter, and to the correspondence between this Office and both the Council and the applicant in relation to this review.
This review is concerned solely with the question of whether the Council was justified in its decision to refuse the applicant's FOI request for certain records relating to contracts awarded to consultants.
I should explain at the outset that while the FOI Act also provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record, or records, containing the answer to the question asked or the information sought.
It is also important to note that under section 22(12)(b) of the FOI Act, a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. Therefore the onus is on the Council to satisfy this Office that its decision to refuse to release the records sought was justified.
Furthermore, where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2) refers). Given that the Council has been subject to the provisions of FOI legislation since 1998, I assume it is fully aware of its obligations under the FOI Act. As such, it is disappointing to note that the Council's internal review decision fell well short of meeting the requirements of section 13 in this case.
During the course of this review, Mr Benjamin O'Gorman of this Office contacted the Council and outlined his view that the Council's decision had not complied with the provisions of the FOI Act. He noted that the Council had not identified any relevant records, nor had it claimed that any exemptions applied to the records at issue. He asked the Council to set out the number and type of records within the scope of the applicant's request, along with details of the sections of the FOI Act the Council was seeking to rely upon in refusing the request.
It is clear from the Council's response that it holds relevant records that contain information of the type sought by the applicant. It is also clear that little or no action was taken by the Council to process the request in light of its concerns as to the resources that would be required to do so. In its submission, the Council stated that while it has no issue in principle with disclosing the information, the difficulty arises in how to obtain accurate data without incurring excessive cost.
It is noteworthy that the Act provides for refusal of a request where the FOI body 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 the work of the body (section 15(1)(c) refers). However, it is also important to note that under section 15(4), a body is not entitled to refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused on that ground. The Council made no effort to assist the requester in this case, as required by section 15(4).
In any event, given the level of financial controls surrounding expenditure by local authorities on contracts and, in particular, on consultancies, I would be surprised if the Council's financial management systems did not allow for the identification of at least some of the information sought by the applicant without the allocation of significant resources. I also note that the Council, in its internal review decision, suggested to the applicant that she may wish to search the e-tenders website for advertisements placed for the Council for the appointment of consultants for the appropriate years and make a summary list of same. This option was clearly also available to the Council to assist in the identification of relevant contracts.
In all of the circumstances, I find that the Council has not justified its decision to refuse the applicant's request. However, it would not be appropriate for me to simply direct it to grant the request given the lack of information available as to the nature and number of relevant records held and the resources that would be required to process the request. Therefore, following careful consideration of the matter, it is my view that the decision of the Council should be annulled and that the Council must consider the request afresh and make a new, first instance, decision. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council's new decision. In making that decision, the Council must comply with the statutory requirements of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council in this case and direct the Council to conduct a new decision-making process on the FOI request.
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.