Whether the Council was justified in refusing, under section 15(1)(c) of the FOI Act, the applicant’s request for records relating to tenders submitted to the Council by a named engineering firm as well as any contracts entered into with the firm, on the ground that the work involved in responding to the request would cause a substantial and unreasonable disruption to the work of its Transport Section
25 August 2020
The applicant, through his legal representatives, made a three-part FOI request to Galway City Council on 13 November 2019 for copies of all tender documents in which a named engineering firm subsequently entered into contracts with the Council between February 2014 and February 2019, copies of the contracts, and copies of all tenders in which the firm was not awarded contracts having tendered for them for the period in question.
On 26 November 2019, the Council contacted the applicant to say that the request as worded did not contain sufficient particulars to allow for records falling within the request to be identified and that it may have to be refused. It said it wished to offer assistance to the applicant with the request and it sought further details as to the types of tenders the named firm may have submitted.
In a response dated 6 December 2019, the applicant provided what it described as a ‘non-exhaustive’ list of seven types of services the firm was understood to be undertaken on behalf of the Council.
In its submission to this Office during the course of the review, the Council indicated that the applicant’s request was processed in three parts. On receipt of the above clarifications, it forwarded the request to the Transport Section, the Parks and Recreation Section and the Waters Services Section of the Council. Both the Parks and Recreation Section and the Waters Services Section indicated that they held no relevant records. However, the Transport Section indicated they held records falling within the scope of the applicant’s request.
On 20 December 2019, the Council notified the applicant that a fee for search and retrieval of relevant records would apply. After an exchange of correspondence, the applicant paid the requested deposit on 9 March 2020. The Council wrote to the applicant on 24 March 2020 to inform him that it would be extending the period for consideration of the request by four weeks due to the volume of records involved. I said that he could expect a response to his request by 22 April 2020.
On 20 April 2020, the Council issued a decision on the request wherein it refused the request under section 15(1)(c) of the Act on the ground that the request was disrupting the work of its Transport Section due to the impact of COVID-19. It said social distancing guidelines were being implemented in the Council and access to the records requested was not available to the relevant staff members at that time.
The applicant sought an internal review of the Council's decision on 22 April, following which the Council affirmed its original decision. On 26 June 2020, the applicant sought a review by this Office of that decision.
I have now completed my review of the Council’s decision. In carrying out my review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to the correspondence between this Office and both the Council and the applicant on the matter.
Scope of the Review
This review is concerned solely with whether the Council was justified in refusing the applicant's request for certain tender and contract information relating to a named firm under section 15(1)(c) of the FOI Act on the ground that the request was disrupting the work of its Transport Section due to the impact of COVID-19
Analysis and Findings
Section 15(1)(c) of the FOI Act allows an FOI body to refuse to grant a request if it considers that granting the request would cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area, due to the number or nature of records that would be required to be retrieved and examined. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer be refused.
In its submissions to this Office, the Council provided a detailed explanation as to why it deemed it necessary to refuse the request under section 15(1)(c). While I have significant sympathy for the Council and the position it found itself in, the fact remains that a request cannot be refused under section 15(1)(c) unless the provisions of section 15(4) have been complied with.
On this point, the Council argued that the original request made on 13 November 2019 was deemed to be voluminous and required clarification and narrowing of the scope of the request. It said it contacted the requester seeking clarification and offering assistance.
Under section 12(1) of the FOI Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. Under section 12(6), where a person makes a request for access to a record other than and in accordance with the Act, the body must assist, or offer to assist, the person in the preparation of a request. This requirement to offer assistance is entirely independent of the requirement to offer assistance under section 15(4) where a body is considering the refusal of a request under section 15(1)(c).
The Council’s letter of 26 November 2019 was clear. It considered that the request as framed may have to be refused as it did not contain sufficient particulars to enable the records sought to be identified and it purported to offer assistance by asking the applicant to provide further details of to the types of tenders the named firm may have submitted. It made no reference whatsoever, of the possibility of the request being refused under section 15(1)(c). As such, while I accept that the letter comprises assistance for the purpose of section 12(6), it cannot be regarded as also meeting the requirements of section 15(4). In any event, it is clear from the Council’s submission that it did not consider the applicant’s clarified request to be one that should be refused under section 15(1)(c) when it notified the applicant, on 24 March 2020, that it would be extending the period for processing the request by four weeks. It was only when the Council implemented working from home in line with Government policy on 30 March 2020 that it was determined that the processing of the request could not be progressed further.
I find, therefore, that the Council did not comply with the requirements of section 15(4) in this case. Accordingly, I find that the Council was not justified in its decision to refuse the request under section 15(1)(c). It seems to me that the most appropriate course of action is to annul the decision of the Council and direct it to make a fresh, first instance decision in respect of the applicant’s request. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s new decision. In making its decision, should the Council wish to continue to rely on section 15(1)(c) it must have regard to its obligations under section 15(4).
In light of this finding it is not necessary for me to comment further on the Council’s handling of this case. However, I would like to make a number of general comments in relation to the processing of FOI requests in the course of the COVID-19 pandemic and in particular how FOI bodies should seek to adhere as best as possible to their obligations under the FOI Act.
I accept that many FOI bodies faced significant challenges in processing FOI requests as a result of the exceptional working arrangements which were necessary during the nationwide lockdown phase of the COVID-19 pandemic. In particular, I accept that practices such as remote working may have caused significant difficulties for FOI bodies in accessing records held in hard copy only. I also acknowledge that in some cases staff in FOI bodies have had to be reallocated to roles which are seen as critical to supporting the national response to the pandemic.
However, it is important to recall that the advice provided to FOI bodies by the Department of Public Expenditure & Reform is to ensure that FOI requests are processed to the greatest extent possible during the COVID-19 pandemic. This is set out in the Guidance Document issued by the Department entitled Continuity of FOI services during the COVID-19 pandemic (available at https://foi.gov.ie/continuity-of-foi-services/
). Of particular relevance to this case is the fact that this guidance document encourages FOI bodies to proactively engage with requesters, in a similar manner to the requirements of section 15(4), to reach a mutually satisfactory arrangement in relation to FOI requests during this period. It is specifically stated in part 5 of this document that section 15(1)(c) cannot be used as a blanket ground for refusing access to records in the current pandemic.
It is understandable in the current circumstances that it will not always be possible to comply with the timescales set out in the Act, but I would expect that any delay would be minimised and that the requester would be kept fully informed. I would add that while the initial difficulties arising from the requirement to provide for remote working were understandably significant, I would expect that the vast majority of bodies would have made arrangements in the intervening period to ensure, to the greatest extent possible, continuity of service across all of its functions, including its functions relating to the processing of FOI requests.
Having carried out a review under section 22(2) of the FOI Act, I annul the Council’s decision in this case on the ground that it failed to offer assistance to the applicant under section 15(4) of the FOI Act. I direct the Council to conduct a new decision-making process on the applicant’s request.
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.