Case number: OIC-130469-K8J7C2

Whether the Department was justified in refusing a request for access to various records relating to pension schemes for certain agencies under section 15(1)(b) of the FOI Act on the basis that the request did not contain sufficient particulars to enable the records sought to be identified

 

3 January 2023

 

Background

Section 39 of the Health Care Act 2004 allows for funding to be provided to community, voluntary and not for profit agencies that provide health and social care services. The applicant in this case is a Director/Chairperson of an agency that is partly funded by the Health Service Executive (HSE) through a section 39 grant. In a request dated 16 November 2022, the applicant sought access to the following records and information relating to a “7% pension fund” (the fund) for section 39 agencies:

1. Records relating to the grant of the fund to agencies in “c1995”,

2. Records relating to the grant of the fund to any agencies after 1995,

3. A list of section 39 agencies in receipt of the fund,

4. A list of agencies not in receipt of the fund,

5. Records relating to the refusal of a grant of the fund to any agency.

On 21 March 2022, the Department informed the applicant that her request did not contain sufficient particulars and it asked her to provide more detailed information to allow the precise records sought to be identified and located. It requested a “more precise timeframe” for the records sought and asked the applicant to specify the “exact/named bodies” concerned and “the level of staff involved”. The Department also indicated that the applicant’s request was very broad and said that it “could lead to an excessive amount of records” including “many records” not sought by her. In an email to the Department dated 30 March 2022, the applicant said she did not have any details other than those she had already provided. She also noted that many organisations were funded for pensions and indicated that she found it “strange” that the Department was “unable to find the paperwork” that formed the basis on which this ongoing funding was being provided.

On 8 April 2022, the Department refused the applicant’s request under section 15(1)(b) of the FOI Act on the ground that it did not contain sufficient particulars to enable the records sought to be identified by the taking of reasonable steps. It invited her to make a new FOI request which should include sufficient particulars. I understand that the Department released some records to the applicant in June 2022, which were located in the process of determining the validity of the applicant’s request, outside of the FOI process.

The applicant made a request for internal review on 29 April 2022. As the Department had not issued a decision within the timeline provided in the FOI Act, she made an application for a review to this Office on 9 September 2022 on the basis of a deemed refusal (Case OIC-128051-D2V2T6 refers). Following correspondence from this Office the Department provided a letter to the applicant setting out its effective position. The Department affirmed its original decision on the applicant’s request. It said that a time frame was not given, the types of records sought were not specified by the applicant and that, consequently, “comprehensively identifying relevant records” was not possible by the taking of reasonable steps. Case OIC-128051-D2V2T6 was closed by this Office on the basis of the Department’s effective position.

On 12 October 2022, the applicant applied to this Office for a review of the Department’s 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 correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant 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 Department was justified in refusing the applicant’s request for various records relating to pension schemes for section 39 agencies under section 15(1)(b) of the Act.

Preliminary Matters

Before I address the substantive issues, it is important to note that section 22(12)(b) of the Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified.

Analysis and Findings

Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b). Section 12 is concerned with the processing of FOI requests. Subsection (1) describes the form such requests should take. Among other things, it provides that a person who wishes to exercise the right of access must make a request in writing for access to the record concerned:

“(a) stating that the request is made under the Act, and

(b) containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.”

Subsection (6) provides that where a person makes a request for information or access to a record other than under and in accordance with the Act and it is not possible to give the information or make available the record other than pursuant to a request under and in accordance with section 12, the FOI body must assist, or offer to assist, the person in the preparation of such a request.

In essence, the Department’s position is that the request could not be assigned to the appropriate unit(s) within the Department for processing as it was not considered to be a valid request containing sufficient particulars to identify the records sought.

In its submissions to this Office, the Department said the applicant’s request was broad and potentially voluminous. The Department said that it initially consulted with colleagues in the HSE which said that Community Healthcare Organisations would be likely to hold relevant records. It said that it informed the applicant of this, who stated that while she intended to contact the HSE, she remained of the view that the Department also held records relating to her request. The Department said that its FOI office assigned the request to the National HR Unit, which “refused to deal with [the] request” on the basis that it was not the appropriate unit. The Department stated that it also engaged with its Disability Unit to gather more information about the records sought. It said that during the decision making process the applicant shared two records in her possession which suggested that the National HR Unit held relevant records and identified an official in that unit involved with the applicant’s organisation. It said that it “attempted” to assign the request to that unit once again and contacted the official involved, who worked in the People, Pay and Superannuation Unit (PPSU) section of the National HR Unit. It said that the unit again refused to accept the request as it was of the view that it did not contain sufficient details to identify records, notably, the absence of a precise timeframe.

The Department stated that the FOI office continued to engage with the PPSU in an effort to locate, at a minimum, records relating to the requester and her agency. It said that the PPSU subsequently informed the FOI office that two archived files relevant to the applicant’s request had been located, but that these files were the responsibility of the Disability Services Unit. The Department said that the Disability Services Unit refused to be involved any further because it considered that the PPSU should handle the request. It said that the PPSU shared three records with the FOI office which were relevant to the request. The Department stated that these records were released to the applicant outside of the FOI process, as it was unable to determine whether this was an “exhaustive list of records that would fall under the scope of her request”.

The Department’s position is that it made several attempts to assist the applicant with refining the scope of her request but that she refused to amend her request.

Following receipt of the Department’s submissions, the Investigating Officer attempted to clarify the nature of the two archived files which were located by PPSU. Specifically, she queried whether the three records which were released to the applicant outside of the FOI process, derived from the two archived files located by PPSU, or if they were identified elsewhere within the Department. To date, the Department has not responded to this query.

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. I believe this is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps. As such, the question I must consider in this case is whether the request contains sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.

As I outlined above, the Department argued that the request did not contain sufficient particulars to identify the records sought. I disagree. Rather, it seems to me that at least one of the units to which the Department attempted to assign the request was able to identify a number of records relating to the request. Given that the Department identified the relevant units, as well as a number of records relating to the applicant’s request, I do not accept its argument that the request did not contain sufficient particulars to identify the records sought.

Moreover, while the Department said it was unable to determine whether it had identified all relevant records, such an issue does not fall to be considered in a case involving a refusal under section 15(1)(b). This may be considered to be an argument in relation to the application of section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records or additional records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.  However, the Department did not rely on section 15(1)(a) to refuse the applicant’s request.

It also seems to me that the Department attempted to justify its refusal of the current request based on the request being broad and potentially voluminous. I note, for instance, that in correspondence with the applicant, the Department informed her that her request for records relating to “any agencies” was very broad and could lead to an excessive amount of records and many records which she had not sought. Section 15(1)(b) does not provide a valid basis for refusing requests on such grounds. Section 15(1)(c) provides for the refusal of requests where an FOI body 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 number of records or an examination of such kind of 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 accept that there is a degree of overlap between sections 15(1)(b) and 15(1)(c), in that they are both, in essence, concerned with the taking by an FOI body of "reasonable steps" in order to process an FOI request. However, I note that the Department did not rely on section 15(1)(c) to refuse the applicant’s request in this case. Accordingly, I have not considered its applicability.

On the matter of whether the records sought could be identified “by the taking of reasonable steps”, I note that in its internal review decision, the Department said it was not possible to comprehensively identify relevant records in response to the applicant’s request by the taking of reasonable steps. However, I also note that it did not refer to the reasonableness (or otherwise) of the steps needed to locate the records sought in its submissions to this Office. In the circumstances of this case and having regard to section 22(12)(b) of the FOI Act, I am simply not satisfied that the Department has justified its refusal on the basis that the request does not comply with section 12(1)(b).

In all of the circumstances, therefore, I find that the Department was not justified in refusing the applicant’s request under section 15(1)(b) of the Act. I consider that the appropriate course of action to take is to annul the decision of the Department, and direct it to consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Department’s decision.

Valid FOI requests and pre commencement records

For the benefit of the applicant, I wish to explain that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Accordingly, parts 3 and 4 of the applicant’s request can only be considered to be a request for access to records which contain that information. Furthermore, it is important to note that the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices.

In addition, while I make no finding on this point, I note that the applicant sought access to records relating to the grant of 7% Pension Fund to agencies in or after 1995. Section 11(4) of the Act provides that a right of access under the Act is normally restricted to records created on or after the effective date for the relevant body. The relevant date in the case of the Department is 21 April 1998. This is subject to section 11(5)(a) which provides for a right of access to records created before the effective date where access is necessary or expedient in order to understand records created after such date.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant’s request under section 15(1)(b) of the Act on the ground that the request did not contain sufficient particulars to enable the records sought to be identified. I direct the Department to conduct a fresh decision-making process on the 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.

 

Sandra Murdiff
Investigator