For records relating to risk equalisation - whether the Authority is deemed to have refused the request - section 41 - whether processing the request would cause a substantial and unreasonable interference with or disruption of the other work of the Authority - section 10(1)(c) - whether the Authority offered to assist the requester - section 10(2)

Case Summary

Facts

The requester, Ms. X, was a solicitor in a law firm that was involved in litigation with the Health Insurance Authority (the Authority) over risk equalisation. Her request to the Authority was for access under FOI to all records relating to 16 categories of information involving the issue of risk equalisation in the health insurance market. The request included, among other categories of information, "all records relating to . . . the operation of the Health Insurance Acts 1994 - 2003", the Acts under which the Authority was established and in which its functions are set out. The Authority took the view that granting the request would, by reason of the number of the records concerned, require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with the work of the Authority. While the Authority did not issue a formal decision, it was deemed, in accordance with section 41, to have refused the request.

Decision

In its submission, the Authority explained that it is a small statutory body with sanction for nine employees. The Authority also explained how the request as formulated effectively covered all of the records held by the Authority that had been created since 1 January 2004. Thus, according to the Authority, the contents of over 150 lever arch files would have to be examined individually in order to consider each of the items as requested. The Authority described how the processing of the request in the circumstances would seriously interfere with the performance of its statutory duties under the Heath Insurance Acts.

The Commissioner considered that the request was of an excessively broad and voluminous nature. In light of the Authority's submission, the Commissioner accepted that the processing of the request would cause a substantial and unreasonable interference with or disruption of the other work of the Authority. She also accepted that it would not be appropriate for the Authority to process the request at the expense of its statutory duties under the Health Insurance Acts. The Commissioner noted that, while the FOI Act imposes statutory obligations on public bodies, compliance with these obligations is not intended to be unreasonably burdensome.

The Commissioner also rejected Ms. X's argument that the Authority failed to provide assistance to her in amending the request (section 10(2) refers). The Commissioner noted that the Chief Executive of the Authority had written to Ms. X, setting out in detail the difficulties presented by the broadly-worded nature of the request as originally formulated and asking her to be more specific. The Chief Executive had also raised the possibility of granting a revised request on a phased basis. In relation to Ms. X's assertion that a "simple call" would have clarified matters, the Commissioner noted that Ms. X was a solicitor in a law firm that was involved in litigation with the Authority over risk equalisation. In these circumstances, and in light of the sheer length and breadth of the request, the Commissioner did not consider it reasonable for Ms. X to have expected the Authority to have sought clarification other than in writing.

Date of Decision: 05.11.2007

Our Reference: 060260

05.11.2007

Ms. X, A & L Goodbody, Solicitors, International Financial Services Centre, North Wall Quay, Dublin 1

Dear Ms. X

I refer to your application of 8 August 2006 for a review by my Office of the decision of the Health Insurance Authority ("the Authority") on your request of 30 June 2006 made under the Freedom of Information Acts, 1997 and 2003 ("the FOI Act"). I regret the delay which has arisen in dealing with your review application.

Background

Your FOI request was for all "records", as defined by you, relating to 16 categories of information involving the issue of risk equalisation in the health insurance market. The records sought were those relating to the period of 1 January 2004 to 30 June 2006.

In a letter dated 17 July 2006, the Chief Executive of the Authority, Mr. Liam Sloyan, took the view that granting your request would, by reason of the number of the records concerned, require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with the work of the Authority. The Authority also considered that your request did not comply with section 7(1)(b) of the FOI Act, which requires that a request contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. With a view to providing assistance, according to the Authority, it set out for you its suggestions on how you could amend your request in order to submit what it would have considered to be a valid FOI request. In addition, the Authority asked to know the identity of the requester, assuming that you had not made the request on your own behalf but on behalf of a client. You were not satisfied with the Authority's offer of assistance and ultimately applied to this Office for an external review of the matter.

I note Mr. Sloyan has stated that, had the request been considered valid, he might have been the decision maker, in which case there would have been no internal review procedure available. It appears, therefore, that Mr. Sloyan did not make a delegation of his functions in this matter under section 4 of the FOI Act. I also note that Mr. Sloyan did not invoke section 9 of the FOI Act in order to extend the statutory time limit for consideration of the request. As discussed below, I consider that the request is valid, albeit voluminous in nature. In the circumstances, I consider that the head of the Authority is deemed under section 41 of the Act to have made a decision to refuse to grant the request. This Office therefore has jurisdiction to review the matter under section 34(1)(b) of the FOI Act. In light of the "deemed" refusal, however, you are entitled to a refund of the review application fee of €150 which was received from you on 8 August 2006. Arrangements for the refund of this fee are being made and a cheque will issue to you as soon as possible.

I note that the Authority does not accept that this is a situation in which it is correct to deem that it has refused to grant your request. However, it is the case that the Authority considers that your request did not comply with section 7(1)(b) of the FOI Act; such a failure to comply with section 7(1)(b) provides the grounds for invoking section 10(1)(b); and to invoke section 10(1)(b) is to decide to refuse to grant the request.

In carrying out this review, I have had regard to your application for review, notes of your telephone conversations with staff members of this Office, and to the submissions made by you and by the Authority. I note that on 7 December 2006, Ms. Melanie Campbell, Investigator, wrote to you explaining her preliminary view on the matter. I have taken account of your written response to Ms. Campbell's preliminary view.

Scope of Review

As Ms. Campbell observed, the basis for the Authority's claims with respect to section 7(1)(b) of the Act is, in effect, the broad and voluminous nature of your request. In other words, the real issue in this case is not whether the Authority could identify records falling within the scope of your request but rather that, as formulated, your request could reasonably be interpreted as applying to virtually all records held by the Authority that were created since 1 January 2004. As stated by the FOI Central Policy Unit's A Guide to the Freedom of Information Act, a voluminous request is nevertheless a valid request and thus one on which a decision is required to be made. In the circumstances, I agree that the Authority is deemed under section 41 of the Act to have made a decision to refuse your request and that the refusal was intended to rely on section 10(1)(c) of the Act. Accordingly, the issue before me in this review is whether the Authority's refusal of your request under section 10(1)(c) is justified.

Findings

Typically, where a FOI request is refused the basis for the refusal is that the records are found to be exempt records and one or more of the exemption provisions in Part III of the Act apply. Section 10 of the FOI Act, which is contained in Part II of the Act, provides for the refusal of a request on what is described in the side heading as "administrative grounds". Section 10 contains a number of separate administrative grounds for the refusal of a FOI request. In this case, section 10(1)(c) would seem to be the provision of potential relevance.

Section 10(1)(c)

Section 10(1)(c) of the FOI Act allows for the refusal of a request if "in the opinion of the head, 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 work of the public body concerned".

In its submission, the Authority states that it is a small statutory body, established in 2001, with sanction for nine employees. Its functions, which are set out in the Health Insurance Acts 1994 and 2003 and associated regulations, relate to the regulation of the private health insurance market. One of its significant functions is recommending to the Minister for Health and Children whether or not risk equalisation payments should be commenced. Such a recommendation was made in October 2005 and was the subject of judicial review proceedings in the High Court. The staff members principally involved with the Authority's functions in relation to risk equalisation are the Chief Executive/Registrar, the Head of Regulatory Affairs, and the Statistician.

The Authority considers that your request as formulated effectively covers all of the records held by the Authority that were created since 1 January 2004. This is because your request includes, among other categories of information, "all records relating to . . . the operation of the Health Insurance Acts 1994 - 2003", the Acts under which the Authority was established and in which its functions are set out. In the Authority's view, all of its records necessarily relate to the operation of these acts.

The Authority also explains that, in order to consider each of the items as requested, the contents of over 150 lever arch folders would have to be examined individually. The Authority estimates that it would take an average of two hours for one person to check each file on a preliminary basis. Furthermore, according to the Authority, it would take one person, working full-time, a period of about 10 weeks to go through all of the files relevant to your request.

Moreover, as many of the relevant records contain confidential, commercially sensitive, or other types of information potentially subject to exemption under the FOI Act, most of the documents in the over 150 lever arch files would need to be examined by "suitably qualified staff of the Authority in order to ensure that un-redacted records are not released inappropriately." The Authority estimates that this examination process would take one person working full-time one week for each lever arch file. The Authority states:

"Therefore, if the full staff complement of the Authority were dedicated to this task full time, it would take more than four months to read the records concerned. Of course, not all of the Authority's staff would be qualified to determine which information could be released. In addition, all of the documentation relating to the request would have to be scheduled prior to a decision even being made, and we estimate that this would take a further period of 4 to 5 weeks.

Thereafter, the process of making a decision in relation to each record would have to be undertaken and correspondence with third parties under the consultation procedure may be required.

Finally, some records may need to be redacted prior to release which would entail additional work and time for the Authority. Therefore, even dedicating the full staff complement of the Authority to responding to the request, and neglecting all of the Authority's statutory duties, it would not be possible for the Authority to respond to this request within the timescale provided for in the Act."

  The Authority adds that, since each of its nine employees has a specific role and function within the organisation, no one individual could carry out the exercise outlined above full time without a serious disruption to the work of the body. While the Authority has an FOI Officer, she also has other duties to fulfil.

I agree with the Authority that your request is of an excessively broad and voluminous nature. In light of the Authority's submission, I accept that the processing of your request would cause a substantial and unreasonable interference with or disruption of the other work of the Authority. I also accept that it would not be appropriate for the Authority to process your request at the expense of its statutory duties under the Health Insurance Acts. While the FOI Act imposes statutory obligations on public bodies, compliance with these obligations is not intended to be unreasonably burdensome; for this reason, the Oireachtas made provision for administrative grounds for refusal of requests, such as section 10(1)(c). In the circumstances, I am satisfied that the Authority's deemed refusal of your request under section 10(1)(c) is justified.

Other Matters

In your reply to Ms. Campbell's preliminary view letter, you state that important issues raised in your previous submissions have not been addressed. I consider that any issues relevant to the question of whether section 10(1)(c) applies to your request have been dealt with adequately. In a telephone conversation with you on 5 October 2006, Ms. Campbell noted that a public body's request for the identity of the requester is not inappropriate where, as here, there is no evidence that motive is being taken into account. In this case, the identity of the requester could have been relevant to the third party notification procedure set out at section 29 of the FOI Act. Moreover, as court proceedings related to risk equalisation have taken place, the identity of the requester might be relevant in considering whether disclosure of any relevant records would constitute contempt of court [section 22(1)(b) of the FOI Act refers]. Furthermore, the identity of the requester can sometimes be a relevant factor in the application of the public interest test which is a feature of several of the FOI Act exemptions. In the circumstances, I consider that it was legitimate for the Authority to seek to establish the identity of the requester in this case.

I note that in responding to the Authority's enquiries as to the identity of the requester, you contended that the request had been made by you in your personal capacity and not on behalf of your firm or on behalf of its clients. I note that the request of 30 June 2006 was made on A&L Goodbody stationery, and that the accompanying fee cheque was written "for and behalf of A&L Goodbody, Solicitors No. 2 A/C". I note also that all of your dealings with my Office have been conducted by you using A&L Goodbody stationery, A&L Goodbody fax and telephone facilities and that the €150 fee paid to my Office was, once again, by way of cheque written "for and behalf of A&L Goodbody, Solicitors No. 2 A/C". I note also that in a telephone conversation on 9 September 2006 with Ms. Elizabeth Martin of this Office, you agreed that that A&L Goodbody is the applicant for review. In these circumstances, it is scarcely credible that the request was made in your personal capacity.

You also contend that the Authority has taken an "extreme interpretation" of your request, which was never your intention and that a "simple call would have made this clear". I disagree. In certain circumstances, for instance, where section 7(1)(b) of the FOI Act is the sole issue, a public body might reasonably be expected to contact a requester by telephone in order to clarify a request, as suggested by the Central Policy Unit. However, you are a solicitor in a law firm that has been involved in litigation with the Authority over risk equalisation. In these circumstances, and in light of the sheer length and breadth of your request, it does not seem reasonable to me for you to have expected the Authority to have sought clarification other than in writing.

Your request as originally formulated seeks, among other categories of information, all records relating to the operation of the Health Insurance Acts. The Authority asked you, in writing, to amend your request. Mr. Sloyan's letter to you dated 17 July 2006 set out in detail the difficulties presented by the broadly-worded nature of your request as originally formulated and asked that you be more specific. Mr. Sloyan also suggested that the Authority might be able to arrange to grant a revised request on a phased basis. I note that you attempted to speak with Mr. Sloyan over the telephone but that, following your conversation with Mr. Andrew Lyster, Mr. Sloyan replied to you instead in writing on 27 July 2006. Although Mr. Sloyan did not personally return your telephone call, he wrote to you again, addressing the issues raised in your conversation with Mr. Lyster "[i]n the event that a valid request is received from you".

Your submission to my Office, dated 13 October 2006, did include a "revised" request but you have declined to withdraw your original request and continue to seek a review in relation the request as originally formulated. I am not aware that you have submitted this revised request to the Authority. In these circumstances, I cannot see what purpose is served by the inclusion of this revised request along with your submission to my Office. If the purpose was to bolster your argument that the Authority failed to provide assistance in rendering your request acceptable, then I cannot see that it has had this effect. Indeed, I find no merit whatsoever to your argument in this regard. I consider that the Authority did offer assistance to you, as envisaged at section 10(2) of the FOI Act, and that it has complied with that provision.

Decision

Having carried out a review under section 34(2) of the FOI Act, as amended, I hereby affirm the deemed decision of the Health Insurance Authority to refuse your request in reliance on section 10(1)(c) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner