Case 040020. Request to the Department of Health and Children (the Department) - request not made in writing - whether a valid request had been made - section 7(1) - whether Department's decision capable of review by the Commissioner - section 34(2) - discontinuation of Commissioner's review - section 34(9)
The requester had previously made a number of requests in writing to the Department. It appeared that he had become confused about the parameters of the various requests and, on foot of various telephone conversations, the Department formulated a new request on his behalf in order to clarify matters. However, despite attempts by the Department to have the requester confirm that this request was to satisfaction, he did not confirm in writing that this was the case.
The Department issued a decision on the request and the requester then sought an internal review (in writing). Following the Department's internal review, the requester made an application to the Information Commissioner for a review of the Department's decision.
Section 7(1) of the FOI Act provides that a person wishing to seek access to records shall make a request to the public body concerned in writing, or in such other form as may be determined by the Minister for Finance. Section 6(2) requires a public body to give reasonable assistance to a person who is seeking a record under the Act.
The Minister for Finance has not determined that a request may be made in any form other than in writing. Thus, a request under the FOI Act must, at present, be made in writing if it is to constitute a valid request.
The Commissioner noted that the Department had given the requester reasonable assistance by virtue of its attempts to seek his confirmation that its formulation of his verbal request was to his satisfaction. She also noted that, if the requester had confirmed in writing to the Department that its formulation represented the FOI request he wished to make, this would have satisfied the requirement that an FOI request must be made in writing.
However, the Commissioner found that, as a valid request had not been made in the first place, there was no decision under section 8 or 14 of the FOI Act which was capable of review by her. She discontinued the review, as provided for at section 34(9)(a)(ii) of the FOI Act.
Our Reference: 040020
Dear Mr. X
I refer to your application to this Office, under the Freedom of Information (FOI) Act, for a review of the decision of the Department of Health and Children (the Department) on your request for various records concerning yourself and your late sister, Ms Y. Your application was received in this Office on 22 January 2004. I regret the delay which has arisen in dealing with your application.
I understand that you did not make a written FOI request to the Department but, on foot of a number of telephone conversations between you and it, the Department paraphrased your request for records as follows:
"All records about [Mr X and his late sister Ms Y and the time spent by them in a number of State institutions]."
The Department allocated the reference number FOI/2002/181 to your request. I understand that, despite various efforts by the Department to establish whether you were satisfied with its wording of your request, you did not confirm that it represented your intended FOI request. The Department proceeded with its FOI decision making process on the basis that the suggested wording represented your request. On 12 July 2002 the Department told you that, while it had released records to you on foot of earlier FOI requests similar to that set out above, additional searches it had conducted had not led to further relevant records being located. Therefore, it refused your request on the basis that section 10(1)(a) of the FOI Act applied.
On 30 July 2002 you sought an internal review of the Department's refusal of your request. On 15 December 2003 the Department issued its internal review decision; this was that it had failed to locate relevant records further to those released to you already and that section 10(1)(a) of the FOI Act applied.
The Department's internal review decision dealt also with three other FOI requests made by you previously [details omitted].
On 22 March 2004, my Office received your application for review of the Department's decision. Following various contacts with you regarding the payment of fees, you paid a review fee of ?150 which was received in my Office on 27 April 2004. On 12 May 2004 my Office wrote both to yourself and to the Department to say that we had accepted your review application and that the review would now commence. In the course of the review which then got underway my staff raised a series of detailed queries with the Department regarding the searches for records already carried out. Arising from these queries, the Department conducted further searches. At the same time, the Department was proceeding with its own AIRR project [a project whereby the Department is indexing its holdings of child care records] and, arising from this, some additional relevant records were found and released to you.
Having re-considered the very particular circumstances applying in this case, I have now concluded that our decision to accept your review application was flawed. My conclusion is that my Office does not have legal jurisdiction to proceed with this review and that, accordingly, the review should be discontinued in accordance with section 34(9)(a)(ii) of the FOI Act. The reasons for this decision, and the implications for your attempt to acquire records, are dealt with below in some detail.
Section 7(1) of the FOI Act provides that a person "who wishes to exercise the right of access [to records] shall make a request, in writing or in such other form as may be determined, to the head of the public body concerned ...". Furthermore, the request must be expressed to be made under the FOI Act and must contain "sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps ...". As I understand it, these provisions are intended to provide clarity for the public body as to what is being sought while also protecting the position of the requester should he or she wish to appeal the outcome on the request.
Lest these provisions might seem unreasonably bureaucratic and to place an unreasonable burden on a requester - particularly one who may have difficulties in dealing with such matters - it is relevant to point out that the FOI Act also requires a public body to give "reasonable assistance to a person who is seeking a record under this Act ..." [section 6(2)].
To date, the Minister for Finance, who is the relevant authority in this regard, has not "determined" that a request may be made in any form other than in writing. This means that a request under the FOI Act must, at present, be made in writing if it is to constitute a valid request.
In fairness to the Department, I believe it did give "reasonable assistance" to you when it became clear that you were seeking records. Its difficulty, as I understand it, was that it was unable to distinguish between those records already sought under the three written FOI requests already made by you and whatever further records you might be seeking. According to the Department, it felt you had "become totally confused about the parameters of [your] three previous written requests" and, in order to clarify matters, it formulated a new request on your behalf. However, I understand from the Department that, despite its attempts to have you "formalise the request", you "did not confirm in writing that the above wording was to [your] satisfaction." Had you confirmed to the Department, in writing, that its formulation represented the FOI request you were seeking to make, then I believe this would have satisfied the requirement that an FOI request must be made "in writing". Your failure to give this written confirmation means, unfortunately, that the FOI request was not made in writing and that it did not constitute a request under section 7 of the FOI Act. The right to an internal review, and the subsequent right to a review by my Office, apply only where there has been a valid request made under section 7 of the FOI Act.
Because there was no valid request made under section 7, there is no decision under section 8 or section 14 which is capable of being reviewed by me. Accordingly, I have no option but to discontinue the review as provided for at section 34(9)(a)(ii) of the FOI Act. The fee of ?150 already paid by you will be refunded to you shortly. For accounting purposes, the refund will be issued by the Office of the Ombudsman.
I regret that it has been necessary to discontinue the review in this case. I appreciate that the Department, and indeed my own staff, acted in good faith in their dealings with you on the matter. I would like, in particular, to commend the Department for the very extensive and time-consuming searches it conducted both prior to the case coming to my Office and in the course of my Office's dealing with the case. However, while I appreciate that I may appear to be taking an unnecessarily legalistic approach, I cannot purport to exercise a legal jurisdiction which, in this particular case, I do not have.
As my staff have already done considerable work in this case, and have had extensive contacts and discussions with the Department on the matter, it may be useful for you to know the conclusions likely to have been reached had the review been completed.
[Full details of these contacts, and of the Office's assessment of the searches conducted by the Department, were included in the letter sent to Mr X but have been omitted from the version published on the website].