Case number: OIC-134956-Y6H1N2

Whether the Defence Forces was justified in refusing access to a copy of all internal or external emails to or from Defence Forces email addresses that mention the applicant by name 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, its work

 

25 April 2023

 

Background

In a request dated 20 July 2022, the applicant sought access to “all internal or external emails to or from Defence Forces email addresses that mention [him] by name”. On 22 July 2022, the Defence Forces wrote to the applicant and informed him that “the words any and all are classed as being voluminous”. It said that in order to supply records, he would “need to be specific” as to what records he was seeking. It provided the applicant with an FOI Request form and asked him to be “as specific as possible” as to the records sought when completing it.

On 30 July 2022, the applicant submitted a completed FOI Request form, which specified a date range “from 2014 to date”. He also indicated his view that his request did not meet “the definition of a voluminous request”.

On 9 August 2022, the Defence Forces informed the applicant that a search for “all internal or external emails to or from Defence Forces email addresses that mention [him] by name” produced in excess of 1000 emails. It said this was “classed as voluminous” under the FOI Act. It said that if he could narrow the scope of the request “to a topic and or search words” it might be able to assist him. On the same date, the applicant stated that he had “no way of narrowing the 1000 emails” which were identified by the Defence Forces. He also said that he suspected that many of the emails were “duplicates within an email thread” and that the actual number of relevant records was “likely much less”.

In a decision dated 16 September 2022, the Defence Forces refused the applicant’s request under sections 15(1)(c) and (g) of the Act.  On 21 September 2022, the applicant applied for an internal review. The Defence Forces issued an internal review decision on 18 October 2022, in which it affirmed its decision under section 15(1)(c) of the Act. On 1 February 2023, the applicant applied to this Office for a review 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 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, under section 15(1)(c) of the Act, the applicant's request for certain records that mention him by name.

Preliminary Matters

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

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 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.

Section 15(4)

The 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. In such circumstances, the difficulty with requesters making broad or non-specific requests, such as a request for any and all records, becomes apparent.

Following receipt of the request, the Defence Forces informed the applicant that “the words any and all are classed as being voluminous”. While I highlighted above the difficulty associated with broad requests, I do not accept that all requests containing the words “any and all” can automatically be considered to be voluminous under the FOI Act. Furthermore, the Defence Forces has not elaborated on this statement or explained the basis on which it considered this to apply. Rather, the question I must consider in a case involving section 15(1)(c) is whether a request would cause a substantial and unreasonable interference with or disruption of work of the FOI body, or of a particular functional area within the body. This Office has published a comprehensive Guidance Note on section 15(1)(c) on our website, here. I would expect the Defence Forces to have regard to this Guidance Note when considering refusing requests under section 15(1)(c) in future.

Having considered the exchanges between the parties during the consideration of the applicant’s request and to the submissions of both parties to this Office, I accept that the Defence Forces offered to assist the applicant and that he chose not to refine his request. In its email of 9 August 2022, the Defence Forces made specific suggestions that might allow for a refinement of the request so as to ensure that the request would not be refused under section 15(1)(c). Specifically, it suggested that the applicant narrow his search to “a topic and or search words”. While the applicant expressed the view that many of the 1000 emails were likely to be duplicate records and offered to receive the records in PDF format, I note that he made no effort to reduce the extent of the records sought. For example, I note that he informed the Defence Forces that he had “no way of narrowing the 1000 emails” that it had mentioned in its correspondence. 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 Defence Forces complied with the provisions of section 15(4) before refusing the request under section 15(1)(c).

Section 15(1)(c)

In his submission to this Office, the applicant argued that the refusal by the Defence Forces to provide him with the emails he requested denied “him his legal right to have his incomplete, incorrect or misleading information amended by having it altered, added to or deleted” under section 9(1) of the FOI Act. However, he did not address the substantive issue of the applicability of section 15(1)(c). The applicant also expressed his view that it was not in the public interest for the Defence Forces to be allowed to deny him the information sought. As I outlined above, the public interest is not relevant in this case as section 15 is not subject to a public interest test.

It is important to note that an application for amendment of records under section 9 of the FOI Act is separate to a request for access to records. Furthermore, while an applicant may apply for an amendment to records containing his/her personal information, records containing personal information are subject to certain exemptions and exclusions. This Office has found in previous cases that the effect of this is that, in certain circumstances, an individual may not be enabled to exercise the right to have personal information amended in accordance with the provisions of section 9 simply because the record containing the information is exempt from release.

On the matter of the applicability of section 15(1)(c), the Defence Forces stated in its submissions that its IT Section informed the FOI Office that a search of all defenceforces.ie email accounts using the name and service number of the applicant produced 1,137 emails. It said that all Defence Forces emails are stored on its servers and these emails can be searched and retrieved in response to FOI requests. It said that in order to process the emails, two FOI Office staff would have to screen the emails for duplications, which it estimated would take 8 hours. It said that a member of the Air Corps (AC) would then analyse the emails for release under the FOI Act. The Defence Forces’ position was that based on an estimate of 1000 emails and 15 minutes to process each email, this would result in 250 hours work by the AC. It said that facilitating this request would render the AC and the FOI Office unable to carry other tasks and would cause a substantial and unreasonable interference with or disruption of work.

The Defence Forces said that in order to establish whether the request would cause a substantial and unreasonable interference with or disruption of work, it considered the following factors:

  • The nature of number of the records covered by the request;
  • The location(s) in which they are held or stored and whether these are readily identifiable;
  • The tasks or steps necessary to search for, identify, locate, retrieve and examine the records;
  • The nature and number of the relevant records to be examined;
  • The length of time and the personnel required to do so;
  • The length of time required to consider the records in order to determine their relevant to the request and whether they are appropriate for release, and the size, staffing levels and work of the FOI body (including the relevant functional area) concerned.

Section 15(1)(c) of the 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 Defence Forces’ position was that it would take 15 minutes to process each of the more than 1,000 emails identified as possibly relevant to the applicant’s request in this case. The Defence Forces did not provide any details or basis for this estimate. Furthermore, the records are held electronically and it seems to me that an efficient search would not require as much time as envisaged by the Defence Forces. However, in the circumstances of this case, where more than 1,000 records appear to fall within the scope of the applicant’s request and where each would need to be examined to determine whether they were appropriate for release, I am willing to accept that the time and resources that would be required to retrieve and examine the records in order to process the request would cause a substantial and unreasonable interference with, and disruption of, its work. I find, therefore, that the Defence Forces was justified in refusing the request under section 15(1)(c).

In conclusion, therefore, I find that the Defence Forces was justified in its decision to refuse the applicant’s request for all records on Defence Forces email accounts relating to him 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, its work. I would add that it remains open to the applicant to submit a revised request to the Defence Forces for the records sought if he wishes to do so.

Decision

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