Case number: 180194
10 July 2018
On 24 November 2017, the applicant submitted a broad request to the IPS for access to any outstanding record that referred to him, or had his name on it, that had not been included in a decision on a previous FOI request he made in 2016. He included a list of names of IPS staff who might have created correspondence to or about him. On 12 April 2018, the IPS refused access under section 15(1)(c) of the FOI Act. Following a request for an internal review, the IPS affirmed its original decision on 27 April 2018. On 15 May 2018, the applicant sought a review by this Office of the decision of the IPS.
In conducting this review, I have had regard to the correspondence between the IPS and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the IPS on the matter.
This review is concerned solely with whether the IPS was justified in its decision to refuse access to the applicant's request under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, the work of the IPS.
Section 15(1)(c) - Refusal on administrative grounds
Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request if granting the request would cause a substantial and unreasonable interference or disruption of the work of the FOI body. Section 15(4) of the FOI Act provides that FOI bodies are not entitled to rely on section 15(1)(c) unless they have assisted or offered to assist the requester to amend the request so that it no longer falls within 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.
During this review, this Office asked the IPS to point to when and how it had offered the applicant such assistance. In reply, the IPS acknowledged that it did not offer any assistance to the applicant as it is required to do under section 15(4).
I therefore annul the decision of the IPS, on the basis that it has not properly complied with section 15(4) of the FOI Act. I direct the IPS to undertake a fresh consideration of the request and if the applicant requires this following the section 15(4) consultation, to make a new, first instance decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IPS in respect of the applicant's request. I remit his request back to the IPS for fresh consideration.
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.