Case number: OIC-133764-B4N7R9

Whether the Council was justified in refusing part 2 of the applicant’s request under section 15(1)(c) of the FOI Act

 

28 July 2023

 

Background

On 21 January 2022, the applicant made a two-part request for access to records relating to a specified Temporary Halting Site (the Site) in Galway from 1 January 2017 to date. This review concerns part 2 of her request, wherein she sought all records relating to the appointment and employment of a caretaker for the Site. All references to the applicant’s request in this decision should be read as a reference to part 2 of her original request.

Following a meeting and further correspondence between the applicant and the Council, she revised her request as follows:

“all records relating to the employment and attendance of a caretaker employed by [the Council] and/or its agents at or in relation to the… Site, …, including job description, records of attendance and activities, scope of work and correspondence exchanged by the caretaker with respect to the… Site.”

She confirmed that she did not seek the caretaker’s personal information. In further correspondence, she clarified that she was seeking records in relation to two positions: the Halting Site Supervisor and the Assistant Halting Site Supervisor.

On 8 March 2022, the Council informed the applicant that the estimated cost of processing her request was €640. On 24 March 2022, she made a payment of 50% (€320) of the estimated amount to the Council. The applicant contacted the Council on a number of occasions seeking an update, and on 3 June 2022, she requested an internal review on the basis of a deemed refusal. On 17 August 2022, the Council informed the applicant that its “preliminary decision” was that her request was voluminous, and it said that it would “most likely issue a decision to this effect”. It noted that she had submitted a request for internal review, but stated that “as [she was] aware the decision on the original request [had] not issued”. The Council also said that it would like to “offer the opportunity to refine, clarify and/or narrow” the scope of her request. On 2 September 2022, the applicant wrote to the Council restating her request for an internal review. On 10 October 2022, the Council issued a decision wherein it stated that it had decided to part grant the applicant’s request. It released two records in part comprising five pages. It withheld access to some information on the basis of section 37 of the FOI Act. On 17 October 2022, the applicant once again requested an internal review of the Council’s decision. She particularly queried the small number of records released to her, given the fees estimated by the Council and the deposit paid.

On 10 November 2022, the Council’s internal review decision refused the applicant’s request under section 15(1)(c) of the FOI Act. The Council noted that the Halting Site Supervisor post was created in 1994 and the Assistant Halting Site Supervisor post was created in 2005. It said that 28 and 17 years of records, respectively, would need to be located and examined to determine if the records were held, and if so, they would need to be retrieved, extracted, redacted as appropriate and a records schedule prepared. The Council stated that given the “broad scope of the request and the length of time [required] for consideration”, the applicant’s request was voluminous as it “certainly would lead to disruption of work within the relevant functional area”. The internal reviewer noted that the applicant did not seek records containing personal information of the caretakers concerned, but said that each record would have to be “independently appraised” to consider whether it contained personal information. The Council also stated that the fees amount calculated had been an estimate, and that the decision maker had not sought a deposit, but rather had asked that the applicant refine the scope of her request. Additionally, it stated that an incorrect fee notification letter was used which may have “caused confusion” and that it would refund the fee paid by the applicant.

On the same date, the applicant emailed the Council and drew its attention to the fact that her request solely sought records from 2017 to date, rather than dating back to the establishment of the two caretaker posts in question. In response, the Council issued an updated letter refusing her request on the same basis. The updated decision noted that the request covered the period from 1 January 2017 to the date of the applicant’s request. References to 28 and 17 years had been removed and instead the decision referred to the “broad scope of the request and the length of time [required] for consideration (5 years x 2 members of personnel)”. The remainder of the letter was essentially the same as the original version.

On 6 January 2023, the applicant applied to this Office for a review of the Council’s decision on her request.

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 applicant’s comments in her application for review and to the submissions made by the Council in support of its decision. I have also had regard to the correspondence between the parties as set out above. 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 to release additional records relating the applicant’s request under section 15(1)(c) of the FOI Act.

Preliminary Matters

Before proceeding to consider the substantive issues in this case, I should state that the manner in which the Council processed the applicant’s request in this case fell far short of what is expected from a body which has been subject to FOI for more than 20 years. The Council did not make a decision on the applicant’s request until 10 October 2022, some eight and a half months after she made her original request.

I note that the Council seemed to be of the view that the applicant could not make an internal review request in circumstances where an original decision had not issued (its email of 17 August 2022 refers). In acknowledgement of the fact that there may be occasions where an FOI body cannot meet the statutory time-frame for issuing a decision, the FOI Act provides that in such cases, the body is deemed to have refused the request and the requester is entitled to apply for an internal review. Similarly, where the body fails to issue an internal review decision within the required time-frame, the Act provides for an application for review to be submitted to this Office. Notwithstanding the fact that the Council has been subject to FOI for more than 20 years, it does not appear to have been aware of these provisions in this case.

As the applicant did not receive a decision on her request within the required time-frame, she rightly sought an internal review of the deemed refusal, on two separate occasions. However, rather than process her first two internal review requests as such, the Council essentially informed her that it was not possible to conduct an internal review as the original decision had not been made at that stage. Furthermore, when the decision eventually issued, it purported to represent an original decision and offered a right of internal review as opposed to a right of review by this Office. This was clearly incorrect. I expect the Council to put appropriate procedures in place to ensure that similar issues do not arise in the future.

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 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 a number of records or an examination of such kind or 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) of the FOI Act 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.

Section 15(4)

In its submission to this Office, the Council said that it had engaged with the applicant before making its original decision on her request. It stated that it contacted the applicant on 25 January 2022, and requested a meeting to discuss the request. It said that it followed up on 27 January 2022, with a telephone call to the applicant in order to “streamline the process”. On 2 February 2022, the Council met with the applicant to discuss refining her request. As set out above, the applicant revised the wording of her request on foot of this meeting. The Council stated that when it informed the applicant that its preliminary decision was that her request was voluminous, it offered her another opportunity to refine, clarify and/or narrow the scope of her request. The Council additionally said that it had offered the applicant assistance in refining the scope of her request in its internal review decision letter which issued on 10 November 2022.

While the FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), it seems to me that a mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), is not generally sufficient for the purposes of compliance with the section. In holding this view, I am cognisant of the general requirement on an FOI body, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests.

As such, it appears to me that before a body can refuse a request under section 15(1)(c), it 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 of assistance to be provided can vary from case to case and will depend on the 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.

The question I must consider in this case is whether the Council provided reasonable assistance to the applicant in amending the request, or whether it offered to provide assistance in circumstances where the applicant was not willing to amend the original request.

This case is unusual, insofar as the Council’s original decision did not rely on section 15(1)(c). It appears that it assisted or attempted to assist the requester so that her request would not be refused on the basis that it was voluminous, and then it issued a decision purporting to part grant her request, enclosing two records, with no reference to section 15(1)(c). It does not appear that the Council attempted to assist the applicant in refining her request after its decision issued on 10 October and before its internal review decision issued on 10 November 2022. However, I am satisfied that there was engagement between the parties before the Council’s original decision which seems aimed at reducing the scope of the applicant’s request. Furthermore, there appears to be no dispute between the parties that an attempt was made by the Council to assist the applicant to refine the scope of the request in this case.

In the circumstances, I am willing to accept that the Council met the requirements of section 15(4). However, that is not the end of the matter. The Council must also satisfy me that it was justified in refusing the applicant’s request under section 15(1)(c).

Section 15(1)(c)

During the course of this review, the Council stated that the records released in part with its original decision issued from the HR Department and that the matter of voluminous records relates to those held by the Housing Department. The Council stated that the Housing Department is the primary holder of records relating to operational matters relating to the Site, but that there was no dedicated unit which deals solely with this Site. Accordingly, it was of the view that “a request for search and retrieval would have to be circulated to all staff in that Department”. It stated that this part of the applicant’s request was received “simultaneously along with a number of similar FOI, AIE and SAR requests relating to the same subject matter from the same applicant”. It also stated that this was deemed to have caused a “substantial and unreasonable interference with or disruption of work” of the Council generally, and a “particular functional area” of the Housing Department specifically.

In its submissions to this Office, the Council stated that a three-hour sample search of electronic records was carried out in its Housing Department and “7,086 electronic records were found to exist on the drive in question”. It stated that other potentially relevant sections, such as Estate Management and Rents, were not searched for relevant records. It also stated that it did not search hardcopy records, some of which are held offsite. The Council said that electronic records are held on the iHouse system, but that there were also shared drives within the Housing Department which would need to be examined. In relation to records comprising “correspondence exchanged by the caretaker”, it said that electronic searches would “extend beyond the capture capabilities of [the iHouse] system” and would involve the “perusal of email accounts and shared drives” within the Housing Department, for completeness.

The Council also argued that the main functions of staff who would be required to process the applicant’s request include dealing with Social Housing, Estate Management, Maintenance, Administration of grant schemes, Long Term Leasing, Housing Assistance Payment, Rental Accommodation Scheme and Capital. It stated that the unit with primary responsibility for dealing with the applicant’s requests was comprised of two staff members, “one of whom also left the organisation whilst the requests were being processed”. The Council said that it acknowledged the “unfortunate incidence of lack of appropriate staffing to deal with this request”, but said that “the administrative burden” placed on this functional area, and on the wider Housing Department required the application of section 15(1)(c). It also contended that “even at full staffing levels, this request would still [attract] the application of [s]ection 15(1)(c)”.

Analysis

Section 13(2)(d) of the FOI Act provides that, where an FOI body decides to refuse to grant a request whether wholly or in part, the notification of the decision shall specify the reason(s) for the refusal; any provision of the FOI Act pursuant to which the request is refused; findings on any material issue relevant to the decision; and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

The Council failed, in its the original decision, to inform the applicant that it was solely releasing two records held by its HR Department, or that other records had been withheld or to provide the reason(s) for its refusal to release additional relevant records. It seems to me that had the applicant not applied for an internal review due to her own belief that further records should exist, she would not have been made aware that additional records relevant to her request existed nor the ground(s) upon which such records had been refused.

As set out above, the internal reviewer seemed to be of the view that 28 and 17 years of records respectively would need to be examined, which would disrupt the work of the unit in question. I note that the internal reviewer came to exactly the same conclusions when it was drawn to her attention that it was only 5 years of records that needed to be examined. During the course of this review, the Investigating Officer queried the two versions of the Council’s internal review decision letter. In response, the Council stated that the issue of two internal review letters was solely as a result of an “administrative typing error”. It did not elaborate further.

Section 27(12) of the FOI Act allows an FOI body to refuse to process a request where the amount of the SRC charge exceeds, or is likely to exceed, the overall ceiling limit prescribed (currently €700) provided certain requirements are met. Under section 15(1)(c) FOI bodies are also entitled to refuse requests where they consider that granting the request would cause a substantial and unreasonable interference with or disruption of their work, including disruption of work in a particular functional area, again provided certain requirements are met. There is a certain amount of overlap between these two provisions and both provisions may be relevant in certain cases. They are, however, separate provisions which operate independently of each other. While I do not propose to set them out here, I can confirm that the Council provided submissions to this Office in relation to the calculations used to estimate the SRC fee of €640.

The Council has identified the Housing and HR Departments as being the most likely to hold relevant records in this case. The Council stated that the majority of the relevant records held by the HR Department would be likely to contain the personal information of the caretakers concerned, which the applicant is not seeking. This seems to be a reasonable assumption. Accordingly, it seems to me that the majority of relevant records, whether hardcopy or electronic, are held by the Housing Department. As set out above, there are two caretaking positions on the Site, and the request covers 5 years.

In its submissions to this Office, the Council essentially stated that an electronic search of its iHouse system could not adequately capture correspondence to/from the caretakers concerned and that various other email accounts and shared drives would need to be searched for completeness. However, the Council also confirmed to this Office that the caretakers in question have official email addresses and that they both report to one manager. Accordingly, it seems to me that records of correspondence with or submitted by the caretakers in question should be readily identifiable, using relevant keywords such as a combination of the relevant email addresses and/or the Site name. The Council’s submissions have not adequately explained how this would not be possible.

The Council stated that it had used a number of keywords to locate records relevant to the applicant’s request in its sample searches, including “Housing”, “Temporary Halting Site”, “Traveller Accommodation”, “Flood Maps” and the Site name. Where searches are being carried out solely in the Housing Department of the Council, it seems to me that keywords such as “Housing” would potentially identify thousands of records not relevant to the applicant’s request. The Council has not explained how the use of keywords such as “Housing” and “Flood Maps” would aid in efficient and reasonable searches for relevant records in this case. It is important to note that where access to records is refused under section 15(1)(c) of the FOI Act, only records which fall within the scope of an applicant’s request may be considered when an FOI body is determining whether the request is voluminous.

Furthermore, in its submissions to this Office, the Council clarified that the 7,086 records located during its sample search dated from 2010 to present. The applicant’s request was for records from 2017 to 2022. The Council’s sample search is well beyond the scope of the applicant’s request and does not seem to me to be relevant in considering whether her request was voluminous.

I note that in its submissions to this Office, the Council referred to a shortage of staff working in the relevant area. While it is a matter for the Council to ensure that it has afforded adequate resources to the FOI function, it is important to note that the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function.

I cannot find that the Council was justified in refusing the applicant’s request as voluminous, based on the information currently available to me. In the circumstances, the Council has not satisfied me that the applicant’s request would require the retrieval and examination of such a number of records or an examination of such kind or 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.

I am satisfied that the most appropriate course of action to take is to annul the decision of the Council and to direction it to undertake a fresh consideration of the request. In processing her request afresh, I would encourage the Council to have regard to the wording and timeframe of the applicant’s request, as amended, and to engage with the applicant if necessary.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to refuse access to the records sought by the applicant under section 15(1)(c) and I direct it to consider the request afresh.

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