Case number: 180521
20 May 2019
According to the Department, it received a request from solicitors for the applicant for certain information on 1 August 2018 and subsequently received a revised request dated 15 August 2018. It stated that on 27 August 2018 it sought to clarify a technical issue relating to the tonnage of vessels for which information was sought and that the applicant's solicitors responded on 28 August 2018.
The Department further stated that it provided the applicant with a document on 29 August 2018 containing details of its Marine Survey Office compliance measures and some statistical information concerning those measures. It suggested that the document provided might satisfy the request and invited the applicant to withdraw its FOI request.
On 11 September 2018 the applicant's solicitors identified certain information as outstanding. They identified 17 separate matters for which information was sought. They stated that as the request was primarily for statistical information they were happy to accept answers to parts 1 to 6 and 8 to 17 in tabular form. They clarified that part 7 was a requests for records.
Part 1 sought the number of authorised officers appointed pursuant to the European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (SI 709/2003). Parts 2 to 6 sought the number of vessels subject to inspection of records for certain periods in 2016 and 2017. Part 7 was a request for all records relating to compliance with SI 709/2003. Parts 8 to 10 sought the number of vessels inspected in 2016, 2017, and 2018 which maintained a record of the daily hours of work or rest for each worker on board in compliance with SI 709/2003.
Part 11 sought the number of fishing vessels of 25 tons tonnage and upwards registered on the Irish Fleet Register. Part 12 was a request for records notwithstanding that the solicitors for the applicant had indicated that they were happy to accept an answer to that part in tabular form. It sought all records relating to compliance by fishing vessels of 25 tons tonnage and upwards registered on the Irish Fleet Register with the obligation under the Merchant Shipping Act 1894 to return official logbooks to the Marine Survey Office. Parts 13 to 17 sought the number of official logbooks returned to the Department by such vessels for various periods during 2016 to 2018.
The Department wrote to the applicant's solicitors on 11 September 2018 and stated that it was necessary to extend the period for considering the request by four weeks. It subsequently sought and received a number of clarifications about the nature of the information sought relating to time-frames, the meaning of certain terms used, and vessel sizes.
On 18 October 2018 the Department issued a decision on the request. It provided the information sought at part 1 and refused the remaining parts under sections 15(1)(a), 15(1)(c) and 15(1)(d) of the FOI Act. The applicant sought an internal review of that decision following which the Department affirmed its original decision.
On 10 December 2018 the applicant sought a review by this Office of the Department's decision. During the course of the review, the applicant withdrew parts 13 and 14 of the request on the basis that the information sought had been provided as a response to a Parliamentary Question and was therefore publicly available. Subsequently, the Department agreed to provide the applicant with the information sought at parts 15 to 17 of the request. As such, I have not considered those parts of the request in this decision.
During the course of the review the Department also stated that it wished to rely on section 15(2)(b) as a ground for refusing part 11 of the request. Ms Whelan of this Office wrote to the applicant’s solicitors and informed them of this fact. She also provided details of the searches undertaken by the Department on those parts of the request that were refused under section 15(1)(a) on the ground that the records sought are not held by the Department and invited the applicant to make a further submission on the matter. No further submission was received.
I have now concluded my review in this case. In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.
This review is concerned solely with whether the Department was justified in its decision to refuse parts 2 to 10 of the applicant's request under section 15(1)(c), to refuse part 11 under section 15(2)(b), and to refuse part 12 under section 15(1)(a).
Parts 2 to 10
Section 15(1)(c) allows an FOI body to 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 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, its work, including disruption of work in a particular functional area. The provision is an explicit acknowledgement of the fact that FOI bodies should not be required to process a request where to do so would place an unreasonable burden on what are often limited resources available to the body to carry out its work.
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 fall to be refused under section 15(1)(c). In its submission to this Office, the Department argued that it made extensive efforts to assist the applicant to clarify the terms of the request and that it specifically informed the applicant of the complexity of the request. While I accept this to be the case, this is not what section 15(4) requires.
I have examined the Department's correspondence with the applicant's solicitors and I am satisfied that it did not assist, or offer to assist, in the amendment of the request for re-submission so that it no longer falls to be refused under section 15(1)(c). While I accept that the Department informed the applicant's solicitors that it was necessary to extend the period for considering the request by four weeks (as provided for in section 14(1) of the Act) on the ground that "the number of records requested is of significant volume", it did not, at any stage, indicate that the volume of records concerned was such that the request might be refused under section 15(1)(c). Instead it simply sought a number of clarifications as to the precise nature of the records sought. I find, therefore, that the Department did not comply with the requirements of section 15(4)
As a consequence of that finding, I must also find that the Department was not justified in refusing parts 2 to 10 of the request under section 15(1)(c). Nevertheless, I do not consider it appropriate to simply direct the release of the information sought. In its submission to this Office, the Department provided details of the resources that would be required to process the request and it would not be appropriate for me to simply disregard those submissions, given the potential consequences for the Department's resources.
In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the Department's decision to refuse parts 2 to 10 and to direct it to undertake a fresh decision making process on those parts of the request. Should it wish to continue to rely on section 15(1)(c), it must properly comply with the requirements of section 15(4) in the first instance and, if relevant, consider any attempt that the applicant may make to amend the scope of those parts of request. Any subsequent decision by the Department to refuse the relevant parts of the request will be subject to the statutory rights of internal and external review.
As outlined above, part 11 of the request sought the number of fishing vessels of 25 tons tonnage and upwards registered on the Irish Fleet Register from January 2016 to the date of the request. In its decision on the request, the Department refused that part under section 15(1)(d) which allows a body to refuse a request where the information sought is already in the public domain. Subsequently it argued that section 15(2)(b) applied. That provision allows a body to refuse a request if a copy of the record concerned is available for purchase or removal free of charge by members of the public. Section 15(2)(a) is also of potential relevance. Under that provision, a body may refuse a request where the record sought is available for inspection by members of the public whether upon payment or free of charge.
There appears to be some confusion as to the precise nature of the information sought in this case. On 18 September 2018 the applicant's solicitors wrote to the Department to clarify that in referring to the "Irish Fleet Register," it was referring to the Register of Fishing Boats maintained under the Merchant Shipping (Registry, Lettering and Numbering of Fishing Boats) Regulations 2005.
In its decision on the request, the Department stated that the Mercantile Marine Act 1955 Register details are available to view and that transcripts may be obtained for a fee. It also provided a link to the website of the Department of Agriculture, Food and the Marine which contains a spreadsheet of what are described as "all currently registered vessels of the Irish Fishing Boat Register". It explained, however, that the information is not a register and that it does not include historical information or vessels that may be registered under the 1955 Act but where the owner no longer has a Department of Agriculture, Food and the Marine licence.
In their submission to this Office, the applicant's solicitors stated that the online Irish fishing fleet list is not a formal register and even if it is accurate, it can provide only a snapshot of the number of vessels as of the date it has been most recently updated and does not show how the number has fluctuated since January 2016 as vessels were added and removed. It argued that the same is true of hardcopy registers maintained under the Merchant Marine act 1955.
In response, the Department stated that there are two separate sources of information at issue. It stated that the General Register of Ships is formal register consisting of transcripts of the vessel registry from the register in the port of registry for each ship. The transcripts are held on individual ship files and organised by port of registry as required by the Mercantile Marine act 1955. It stated that it consists of all manner of ships and not just certain fishing vessels and is a collection of documents that is open to examination by the public for a fee as set out in Schedule 5 of the Merchant Shipping Fees Order 2010. It added that primary legislation is in place to create an online registry of ships (Merchant Shipping (Registration of Ships) Act 2014) and that the Department is working towards that goal.
It is important to note at this stage 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 or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, 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. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Having regard to the Department's description of the available information relating to registered vessels, it is not apparent to me that the Department holds a record that contains the information sought at part 11 of the applicant's request, namely the number of fishing vessels of 25 tons tonnage and upwards registered on the Irish Fleet Register from January 2016 to the date of the request. I am also satisfied that the Department is not required to create such a record under the FOI Act in order to grant the request. As such, it seems to me that section 15(1)(a) is of relevance, although the Department have not refused the request on this ground.
Furthermore, it is not apparent to me that any such record containing the information sought is publicly available. It may be the case that an inspection of the various transcripts that comprise the General Register of Ships would allow for the collation of the information sought. However, this does not, in my view, mean that the record sought is publicly available. In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the Department's decision to refuse part 11 under sections 15(1)(d) and/or 15(2) and to direct it to undertake a fresh decision making process on part 11.
Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records and other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
The applicant sought, at part 12 of the request, all records and correspondence held by the Department relating to compliance by fishing vessels of 25 tons tonnage upwards registered on the Irish Fleet Register with the obligation under the Merchant Shipping Act 1894 to return official log-books to the Marine Survey Office. In its decision on the request, the Department provided an excel spreadsheet which records details of the dates it received log books and crew lists for the time period in question.
In its subsequent submission to this Office, the Department stated that the record released was the only record it keeps on the matter and that it is not possible to determine from the spreadsheet the number of fishing vessels owners who failed to return as the obligation to return is only for fishing vessels which are operational.
In its submission to this Office, the applicant's solicitors drew my attention to a response provided to a Parliamentary Question, wherein details of the numbers of fishing vessel logbooks returned for the years 2014 to 2016 were provided. In that response, the Minister for Transport, Tourism and Sport stated that Commercial sea fishing is regulated by the Fisheries Acts, 1959 to 2006 and comes under the remit of the Minister for Agriculture, Food and the Marine. He stated that his Department would not maintain data on the number of licensed fishing vessels operating at any period in time and that the requirement to submit Logbooks to his Department arises in the context of the safe operation of the vessel and the welfare of the crew.
The Minister added that the Marine Survey Office (MSO) of his Department carries out surveys and inspections of fishing vessels and compliance with the requirements regarding official logbooks is enforced by the MSO, including where appropriate the prosecution of offenders through the courts.
As with part 11, there also appears to be some confusion as to the precise nature of the information sought at part 12. In their letter of 11 September 2019 to the Department, the applicant's solicitors stated that they would be happy to accept answers to parts 1 to 16 and 8 to 17 in tabular form. This suggests that the applicant was prepared to accept statistical data in response to part 12, even though the wording of the request suggests otherwise. However, in their submission to this office, the applicant's solicitors stated that while it was indicated that the requests could be answered in tabular form, the request itself was for records and correspondence.
While the Department's treatment of part 12 as a request for statistical data was understandable given the nature of the clarifications provided by the applicant's solicitors, I accept that it was, in fact, a request for records. Given the Department's role in relation to the enforcement of compliance with requirements regarding logbooks as described by the Minister in his PQ response, it would appear the relevant records may well exist. As such, I cannot find that the Department has carried out all reasonable steps to ascertain the whereabouts of relevant records. I find, therefore, that the Department was not justified in refusing part 12 under section 15(1)(a). However, as I have no indication as to the resources that might be required to process part 12, I consider that the most appropriate course of action to take is to annul the Department's decision to refuse part 12 under section 15(1)(a) and to direct it to undertake a fresh decision making process on part 12.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case and I direct it to undertake a fresh decision-making process in relation to parts 2 to 12 of the applicant's request.
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.