Case number: OIC-106795-Q5R6M6

Whether the Defence Forces was justified in refusing, under section 15(1)(c) of the Act, the applicant’s request for records relating to the applicant sent or received by named parties concerning a number of specified matters on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work 

 

OIC-106795-Q5R6M6

 

Background

 

This case arises from a previous decision by this Office in OIC-58250. In that case, I annulled the Defence Forces’ decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act and I directed it to consider the request afresh. In that case, the applicant initially made a request (Request A) for the following:

 

  1. Any and all correspondence or emails pertaining to him sent or received by six named members of a named unit (unit A) from 26 September 2012 to 30 August 2014
  2. Any and all correspondence or emails pertaining to him sent or received by four named members of another named unit (unit B) during that same period
  3. Any and all correspondence or emails pertaining to him sent or received by a named member of a medical unit during that same period.

 

In response, the Defence Forces informed him that initial searches had returned 571 emails and that his request fell to be refused under section 15(1)(c) of the FOI Act. It asked the applicant to refine his request, which he declined to do at that stage and the request was refused under section 15(1)(c). Following this, the applicant submitted a fresh request (Request B) on 7 May 2019, wherein he reduced the number of individuals involved and the timeframe. He identified four members of unit A, three members of unit B, and the same member of the medical unit. He narrowed the timeframe to 1 January 2013 to 30 August 2014. He said the records sought pertain to a number of specified matters, namely;

 

  • His medical condition,
  • His regimental duties,
  • His redress,
  • His detachment to unit B,
  • His movement to a named barracks on a work detail,
  • His fitness test, and
  • His medical disposal.

 

On 28 August 2019, the Defence Forces part-granted the request and released 22 records it had identified as coming within the scope of the request. The Defence Forces affirmed its original decision at internal review stage, following which the applicant sought a review by this Office of that decision.

 

In my decision, I noted that the searches conducted by the Defence Forces in response to Request A that had returned 571 emails were based on the individuals named in that request and the time-frame specified. However, when processing Request B, the Defence Forces had used precise search terms in its email search in an effort to identify relevant records. I found that the Defence Forces could reasonably have been expected to conduct a similar search to the one undertaken in respect of Request A, based on the reduced number of individuals and the reduced time-frame, with a view to determining how many of those 571 emails were captured by the refined request. The Defence Forces acknowledged that it was possible that further relevant emails might exist that were not identified in its searches if they did not contain the precise search terms used. Accordingly, I annulled the decision of the Defence Forces and directed it to process the applicant’s request afresh. I issued that decision on 1 December 2020.

 

As the Defence Forces did not issue a fresh decision on the remitted request, the applicant sought an internal review of the deemed refusal of his request on 4 February 2021. Again, the Defence Forces failed to issue a decision within the required timeframe and following engagements with this Office, it issued its effective position on 16 April 2021, in which it refused the request under section 15(1)(c) of the FOI Act. On 26 April 2021, the applicant sought a review by this Office of the Defence Forces’ decision.

 

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the Defence Forces and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have also had regard to both parties’ submissions in case OIC-58250, insofar as they are relevant to this review. I have decided to conclude this review by way of a formal, binding decision.

 

 

Scope of Review

 

This review is concerned solely with whether the Defence Forces was justified in its decision to refuse the applicant's request under section 15(1)(c) of the Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.

 

 

Analysis and Findings

 

Section 15(1)(c) provides that an FOI body may 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 records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body.

 

Section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether the Defence Forces was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.

 

In correspondence with this Office, the Defence Forces stated that when processing the request afresh, it engaged with the applicant by telephone and offered to assist him to refine his request before reregistering the request in January 2021. It said the applicant was unable to refine his request further than the refinements he had made previously. It said it then agreed to re-register the applicant’s original request, i.e. Request A.

 

The Defence Forces said that decision to refuse Request A was based on the searches which recovered 571 emails in its email archiving system. It explained that each of those emails would need to be reviewed by the FOI office, which at the time of the request was staffed by two people. It argued that this would constitute a substantial and unreasonable interference with the work of the FOI office.

 

In essence, the Defence Forces’ argument is that it did, indeed, offer assistance but that the applicant declined to refine the scope of his request such that it would not would cause a substantial and unreasonable interference with, or disruption of, its work.

 

In his correspondence with this Office, the applicant argued that, on the basis of my decision in OIC-58250, further refinement of his request was not required. He outlined his engagement with the Defence Forces and explained that he had a brief telephone conversation with the Defence Forces in which it asked the applicant if he wanted to revert to his original request, if he wanted his personal files and if he wanted his medical files. He argued that he was not assisted in refining his request at that time. He said the Defence Forces then sent an email proposing that he use suggested text/keywords to refine his search and referred to the date range in Request A. The applicant argued that this did not constitute an offer of assistance but was an attempt by the Defence Forces to limit the search such that information would be missed.

 

While the applicant has not confirmed that he agreed with the Defence Forces that his original Request A would be processed afresh, it appears that he does, indeed, believe that the Defence Forces should be required to consider all 571 emails that were identified on foot of Request A. Nevertheless, the fact remains that the decision that was reviewed by this Office was the decision on Request B, that comprised a refinement of Request A.

 

It seems to me that the manner in which the Defence Forces has processed the remitted request has caused a considerable degree of unnecessary confusion for the applicant in this case. In the first instance, the request that was remitted for consideration afresh was Request B. That request comprised a refined request that the Defence Forces had agreed to process and was not one that it had refused under section 15(1)(c). In such circumstances, I fail to see why the Defence Forces considered it necessary to engage further with the requester with a view to seeking further refinement of a request it had already agreed to process.

 

I expected that, as set out in my decision, the Defence Forces would process Request B afresh by conducting a similar search to the one undertaken in respect of Request A, based on the reduced number of individuals and the reduced time-frame, with a view to determining how many of the 571 emails identified on foot of searches undertaken in respect of Request A might be captured by Request B. It did not do so and instead sought to engage with the applicant to further refine his already refined Request B.

 

The outcome of that engagement was the Defence Forces considered Request A afresh and refused the request under section 15(1)(c), notwithstanding the fact that it had previously accepted refined Request B from the applicant and that Request B was the request that I remitted back to the Defence Forces.

 

In the circumstances, it seems to me that the Defence Forces has not complied with the decision I issued in case OIC-58250 on 1 December 2020. Moreover, even if I was to accept the argument of the Defence Forces that the applicant subsequently opted for Request A to be processed instead of Request B, I find it difficult to accept that the Defence Forces could reasonably be regarded as having offered to assist the applicant in refining his request before refusing it under section 15(1)(c) in circumstances where the applicant had previously done so and where it was open to the Defence Forces to simply process that refined request. Indeed, had it conducted the search that I outlined in my decision in case OIC-58250, it would have been in a position to provide the applicant with details of how many emails would have to be examined to process the refined request.

 

Furthermore, I would add that even if I was to accept that the Defence Forces had properly processed Request A and had offered to assist the applicant before refusing it under section 15(1)(c), it has not, in my view, satisfactorily explained to this Office why it considers that section 15(1)(c) would apply. I note its contention that 571 emails need to be reviewed by the FOI office, which at the time of the request was staffed by two people, and that this would constitute a substantial and unreasonable interference with the work of the FOI office.

 

In her request to the Defence Forces for a submission, the Investigating Officer in this case asked the Defence Forces to provide details of, amongst other things, the work that would be required to retrieve and examine the records for relevance, e.g. the hours of work involved and the personnel involved. The Defence Forces provided no details of its estimate of the amount of hours that would be required to process the request, i.e. how long it would take to examine 571 emails to determine if they fell within the scope of the request.

 

Determining whether the processing of a 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 records concerned as to cause a substantial and unreasonable interference with, or disruption of, work of the body, will necessarily require the particular facts of the specific case to be examined. For example, the number of records at issue that might trigger the application of section 15(1)(c) will vary from case to case and will depend on a number of factors, such as the size of the body or the particular functional area charged with processing the request. The Act is therefore understandably silent on the number of records that might give rise to a refusal under the section or on the level of resources required that might be deemed to constitute unreasonable interference with, or disruption of, work.

 

It is worth noting however, that the Act and associated Regulations provide that search and retrieval fees for processing requests for non-personal information do not arise where the fees would be less than the prescribed amount, which essentially means that bodies cannot charge fees where processing the request would take less than five hours. As such, when considering whether section 15(1)(c) might apply in any particular case, it cannot be the case that a public body can simply argue that processing the request would cause an unreasonable interference or disruption of the work of a small unit without acknowledging that a certain level of resources must reasonably be expected to be expended when processing the request.

 

In this case, the Defence Forces argued that its FOI Unit, comprising two staff members, would have to examine 571 emails. No further information was provided to explain why the carrying out of that task would cause a substantial and unreasonable interference with, or disruption of, work of its FOI Unit.

 

In the circumstances, I am satisfied that the appropriate course of action to take is to annul the decision of the Defence Forces and to direct it to process Request B afresh. In doing so, I direct it to conduct a similar search to the one undertaken in respect of Request A, based on the reduced number of individuals and the reduced time-frame, with a view to determining how many of those 571 emails were captured by the refined request, so as to ensure that it can be said to have taken all reasonable steps to ascertain the whereabouts of records coming within the scope of Request B. I appreciate that remitting the case back to the Defence Forces a second time causes further delay for the applicant. While this is unfortunate, I do not believe that there is an alternative appropriate course of action to take in this instance.

 

Finally, I would point out that if, having carried out the searches specified, the Defence Forces considers that the number of records involved remains such that it deems section 15(1)(c) to apply to Request B, it must again offer the applicant an opportunity, pursuant to section 15(4), to further refine that request before it can consider refusal under section 15(1)(c). Nevertheless, before doing so, I would urge the Defence Forces to have regard to the comments I made above in relation to the basis on which a request can be refused under that provision.

 

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces to refuse, under section 15(1)(c), the applicant’s request for certain correspondence or emails pertaining to him and I direct it to consider the request (Request B) afresh.

 

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Defence Forces to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision by the Defence Forces, as provided for at section 24(4) of the FOI Act.

 

 

Right of Appeal

 

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.

 

 

 

Stephen Rafferty

Senior Investigator