Case number: OIC-137326-T5W9W1

Whether the Council was justified, under section 15(1)(c) of the FOI Act, in refusing access to records of correspondence between the Council and the Health Service Executive (the HSE) regarding the Assessment of Needs (AON) process under the Disability Act 2005

 

2 August 2023

 

Background

This case concerns the AON process carried out by the Council. An AON is an assessment undertaken or arranged by the HSE to determine, in respect of a person with a disability, the health and education needs (if any) occasioned by the disability, and the health services or education services (if any) required to meet those needs. Section 8(3) of the Disability Act 2005 requires the Council to nominate an appropriate person to carry out an AON, when requested by the HSE.

On 1 December 2022, the applicant made a request for access to records of correspondence between the Council and the HSE regarding AONs under the Disability Act 2005; the Education for Persons with Special Educational Needs Act 2004; High Court judgments; and Appeal Court judgments.

On 19 December 2022, the Council informed the applicant that his request had the potential to “fall within the category of causing a substantial and unreasonable interference with, or disruption” to its work. It offered to assist him to amend his request. The applicant subsequently narrowed his request to “copies of correspondence between the [Council] and the HSE regarding [AONs] under the Disability Act 2005” for the period from 1 December 2021 to 19 December 2022.

On 9 January 2023, the Council informed the applicant that the AON process had generated a “significant volume of correspondence”. It essentially stated that his amended request still fell to be refused on the basis that it would cause substantial and unreasonable interference with, or disruption to the Council’s work. On 17 January 2023, the applicant indicated that he was willing to narrow the timeframe of his request to the six-month period from 1 July 2022 to 31 December 2022.

On 7 February 2023, the applicant requested an internal review on the basis of a deemed refusal, as he had received no decision on his request. The following day, the Council stated that it appeared that the applicant had interpreted its email of 9 January 2023 as a refusal to respond. It stated that it remained “open to assisting [the applicant]” and asked him to contact the Council “in order to clarify the current position”. In his response on the same date, the applicant stated that he had already made “several modifications” to his original request and had “substantially reduced the scope”. He said that he understood that the HSE has primary legal responsibility for educational assessment under the Disability Act 2005 and that the Council is solely requested to assist by the HSE. He said that his “overall aim” was to get copies of the records from the HSE and the Council separately to determine how both organisations made its determinations in order to meet the totality of the needs of the child, or not, as the case may be. He indicated his view that the amount of records the Council held relating to the new AON process agreed between it and the HSE “would be low enough”. He clarified that his request, in effect, related to the determinations leading to the procedure the Council has determined to meet its obligations concerning AONs under the Disability Act 2005.

On 14 February 2023, the Council informed the applicant that it was proceeding on the basis that his request sought “copies of the records from the HSE (separately) and the [Council] to determine how both organisations made their determinations… to meet the needs of the child… or not as the case may be”. It stated that it would “now commence the gathering of relevant records”. On the same day, however, the applicant stated that his email was “merely some additional details” and that his request was contained in his previous email. The applicant clarified that his FOI request, as amended, sought access to the following: “[c]opies of correspondence between the [Council] and the HSE regarding [AONs] under the Disability Act 2005” between 1 July 2022 and 19 December 2022.

On 28 February 2023, the Council informed the applicant that it was extending the time limit for responding to his request until 10 March 2023. However, on 10 March, the Council informed the applicant that it was necessary to extend the time limit for processing his request again, as archived email accounts had been found to include a “high number of potentially relevant records”. It stated that Council staff members made “numerous contacts with HSE Assessment Officers” during the relevant period, which would have generated specific records relating to individual children/young persons which it would not be in a position to release. The Council stated that if the applicant could “provide further detail” in relation to the information sought, it might be in a position to narrow its searches and “provide records in a more timely manner”. It queried whether it might be possible to refine the scope of his request to “focus on the development of a particular process related to the management of referrals” in relation to children attending a specific education setting. On 13 March 2023, the applicant requested an internal review.

On 4 April 2023, the Council issued an internal review decision, wherein it purported to affirm the outcome notified by the original decision-maker, although it acknowledged that a final decision on his original request had not issued. In any event, the Council refused the applicant’s request under section 15(1)(c) of the FOI Act. It stated that the request concerned a substantial volume of records, the processing of which would give rise to an “unreasonable disruption” to the work of the Council.

On 12 April 2023, the applicant made an application for a review of the Council’s decision to this Office. The applicant stated that he was seeking records of the determination process, which resulted in the HSE/Council AON education referral procedure from the HSE to the Council. He also clarified that he was not seeking access to records relating to the hundreds or thousands of everyday personal AON education requests for individual children.

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 Council and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have also reviewed the submissions made by the Council in support of its decision. 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 Council was justified in its decision to refuse the applicant’s request for records of correspondence between it and the HSE in relation to AONs under the Disability Act 2005, under section 15(1)(c) of the FOI Act.

Preliminary Matters

Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, section 14(1) provides that a body may extend the period for consideration of a request by up to four further weeks in certain circumstances, including where the request relates to such number of records that compliance with the four-week period is not reasonably possible.

Section 14(2) provides that where a period is extended the body must, before the expiry of the four-week period prescribed in section 13, notify the requester of the extension, the period of the extension, and the reasons for the extension. In its notification to the applicant on 28 February 2023, I note that the Council stated that the reason for the extension was the “[n]ecessity to request access to archived/dormant email accounts via the Office of Government Chief Information Officer. Response outstanding”. In its subsequent email on 10 March 023, the Council stated that the reasons for the additional extension was because “[p]reviously archived email accounts… [were]… found to include a high number of potentially relevant records…”. It said that while it was “not in a position to suggest a date when [it would] be in a position to provide [him] with records sought”, it would “continue to maintain contact” in order to update the applicant.

I note that the Council did not refer to section 14 of the FOI Act on either occasion, nor did it inform the applicant of his right to apply to this Office for a review of a decision to extend the time to consider his FOI request. While I note that the applicant’s comment in correspondence to this Office that the Council had effectively indefinitely delayed the release of the records sought, it appears to me that the applicant has sought a review of the decision of the Council to refuse access to the records sought, rather than the Council’s decision to extend the time to consider his request.

Having regard to the above, the Council’s effective reliance on section 14 will not form part of this review. However, I should state that there is a wealth of training material and other resources to assist FOI bodies on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform (DPER) at www.foi.ie , and on the Commissioner's website (www.oic.ie ). I would expect the Council to have regard to the materials available in future when processing FOI requests.

Analysis and Findings

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request where in the opinion of the head 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 work (including disruption of work in a particular functional area) of the FOI body concerned.

However, 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 Council 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.

Section 15(4)

The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), however, this Office takes the view 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, this Office considers 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.

It is important to note that while there is an onus on FOI bodies to assist, or to at least offer to assist, requesters, 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. This is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held. Nevertheless, it is also noteworthy that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

As set out above, following receipt of the applicant’s request, the Council informed him that his request had the potential to fall into the category of causing substantial disruption to its work. The Council offered assistance to the applicant to narrow and clarify the scope of his request. By way of example, it asked him if it would it be possible to refine his request to records relating to the development of “a particular process related to the management of referrals in respect of children attending a specific education setting”.

I am satisfied that the Council attempted to engage with the applicant and made specific suggestions that might allow for a refinement of his request. I am also satisfied that the applicant engaged and reduced the scope of his request by reducing the timeframe. While it seems to me that further engagement may have resulted in an agreement between the parties as to how best to proceed, in the circumstances, I am willing to accept that the Council complied with the provisions of section 15(4) of the FOI Act.

Section 15(1)(c)

The applicant’s position is that he solely seeks records regarding correspondence between the HSE and the Council relating to AON education referral procedures. He is of the view that not many such records should exist.

In its submissions to this Office, the Council said that the vast majority of relevant records in this case were held electronically on its eDocs platform. It stated that its work in relation to AONs is “influenced and informed by communication to and from HSE personnel”. This appears to mean that its procedures and processes have emerged to a large extent from interactions with the HSE in relation to individual referrals.

The Council stated that it was not possible to identify or filter specific records due to the “manner in which the still evolving processes … have been developing.” Essentially, its position is that, in order to ensure that all records within the scope of the applicant’s request are captured, all communications between the HSE and the Council would need to be examined for relevance, including individual AON referrals.

The Council said that relevant information on its engagement with the HSE may be held on email accounts of former staff members, which had not been transferred to eDocs or otherwise tagged. It stated that it identified key personnel who would have engaged with the HSE in relation to the AON process and that, where necessary, searches of archived Outlook accounts were carried out. It said that its initial search took several hours and that over 1,100 potentially relevant emails were located, although I note that it indicated that some of these emails may be duplicates. It also stated that access to one account was not possible at the time due to a technical issue. In any event, its position appears to be that all correspondence with the HSE on a number of relevant current and/or archived staff email accounts may contain a reference to or comments on the procedures adopted by the Council in relation to AONs which may have contributed to changes in its AON processes.

Additionally, the Council stated that members of the AON team carried out initial searches of electronic records held on its eDocs system. It said that over 10,000 records relating to AONs were identified.

The Council stated that five/six staff members work in the relevant area. Its position is that the work and responsibilities of each staff member would be “significantly impacted” if the Council was required to process the applicant’s request. The Council stated that each record would need to be reviewed in order to ensure that no “sensitive [or] special category personal data” relating to children or families was released. The Council stated that it was not its intention to refuse the applicant’s request but that it needed the scope to be narrowed further.

In response to a request for clarification from this Office, the Council stated that once filed, on its eDocs system, records relating to policy and records relating to referrals can be searched for separately, as they are stored in separate parts of the same drive. However, it also stated that it could not “categorically guarantee that referral files do not contain details relating to actions which informed, or included information related to how our procedures have developed with the HSE in respect of the AoN processes”. My understanding is that there is no practice or procedure in place in the Council whereby staff are instructed to save or tag any records or content which inform its policies in relation to AONs.

Section 15(1)(c) of the FOI Act is an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources.

As outlined above, the Council said that it would take hours to review and process each of more than 11,000 potentially relevant records identified in its initial examination of its files, although it did not specify how many hours it considered that this might take.

As also noted above, the applicant informed this Office that he was solely seeking records of the determination process, which resulted in the HSE/Council AON education referral procedure from the HSE to the Council. He also clarified that he was not seeking access to records relating to the hundreds or thousands of everyday personal AON education requests for individual children.

I can appreciate that the applicant must be frustrated by the manner in which this case progressed. He seemed to be of the view that discrete records of relevant correspondence would be easily available. The Council’s position is that which many records of correspondence between it and the HSE may potentially contain relevant information. It seems unusual that the Council appears to have chosen not to tag or otherwise record particular correspondence from the HSE which led to the establishment of and/or changes or refinements to its AON procedures. However, there is nothing before me to suggest that this is not the case.

It seems to me that there may well be records of changes to the Council’s policies and procedures regarding AONs, such as internal memos, held elsewhere, although this has not been addressed in submissions to this Office. However, I must have regard to the particular wording of the applicant’s request, which sought access to correspondence between the HSE and the Council. Furthermore, while the applicant has stated that he does not seek records of specific referrals, it appears that some of the information sought may be held in such records.

In the circumstances of this case, I am willing to accept that the time and resources that would be required to retrieve and examine more than 11,000 records which have been identified by the Council as potentially relevant, in order to process the applicant’s request, would cause a substantial and unreasonable interference with, and disruption of, its work.

Having regard to the above, I find that the Council was justified in its decision to refuse the applicant’s request for all records related to correspondence between the HSE and the Council in relation to AONs under the Disability Act 2005 on the basis of section 15(1)(c) of the FOI Act. Accordingly, I find that the Council was justified in refusing his request on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.

I would add that it remains open to the applicant to submit a revised request to the Council for relevant records if he wishes to do so. In making a new request, he may wish to confine his request to the email records held in staff email accounts already identified by the Council in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant’s request under section 15(1)(c) 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.

 

Sandra Murdiff
Investigator