The Commissioner's authorised official affirmed the Department's refusal of the records. He found that the record requested did not exist as at the date of receipt of the request, because of changes made to the database since the compilation of the map concerned, under which circumstances section 10(1)(a) of the FOI Act applied. He also found that the FOI Act did not require the Department to re-create the database as it stood on the date that the map was compiled, and that even if it did, section 10(1)(c) of the FOI Act would apply.

Case Summary

Whether the Department is justified in its refusal of the "database of coverage information that informs the map entitled 'Wireless and Broadband Coverage'" that was published on 3 March 2008.

Date of Decision: 21.01.2011

Review Application under the Freedom of Information Acts 1997 & 2003 ("FOI Act") to the Information Commissioner.

Background:

The National Broadband Scheme ("the NBS")

According to the Department, it announced the commencement of the NBS procurement process in May 2007, the objective of which it described as "encouraging and securing the provision of broadband services to certain target areas in Ireland in which broadband services are not currently available and are unlikely to be available in the near future." The Department says that, in order to assess the extent of broadband coverage, it contacted known service providers and sought details as to their current and future purported broadband coverage. It states that the service providers "were not obliged by law to provide this information. Based on information provided by such providers the NBS map [i.e. the Wireless and DSL Broadband Coverage map] was compiled. This information was provided in confidence for the sole purpose of compiling a map of broadband coverage in Ireland."

I understand that the Department holds over 3300 individual files on its network, containing the details on which the final and interim maps were based, and that a firm of consultants input these details into a database contained on a laptop that is held separate to the Department's network. I also understand that particular details as received from the service providers and originally input into the database would have been subject to amendments at various stages throughout the map compilation process, in light of, for example, Ordnance Survey and building data. The final date for submission of information to be used in creating the map was 30 June 2008, and the final map, on which broadband service would be delivered under the NBS, was published on 22 August 2008. However, a number of "indicative" coverage maps were published prior to the publication of this final map, including one on 3 March 2008.

Outline of the FOI Process to Date

The Applicant made a request to the Department on 25 April 2008 for the "database of coverage information that informs the map entitled 'Wireless and Broadband Coverage'". It was stated that the information "should be current to date" and should include a number of specific details. The Department issued a decision, on 26 May 2008, refusing the request on the basis that the details requested were commercially sensitive and had been provided to the Department by Service Providers on a confidential basis. The Applicant sought an internal review of this decision on 29 May 2008. In its internal review decision of 23 June 2008, the Department upheld its earlier refusal of the records, citing section 10 (on the basis that the information request was voluminous to the point that granting the request would be an inappropriate use of State resources); section 24 (on the basis that the information, if released, could potentially pose a security threat to the State) and section 27 (as relied on in the initial decision on the request). The applicant made an application for review to this Office on 1 August 2008.

In conducting this review, I have had regard to relevant details in various correspondence between Ms Anne Moran, Investigator in this Office and the Department; to relevant details in various correspondence between Ms Moran and the applicant; and to the provisions of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by Sean Garvey, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of the Review

Firstly, it is the database, containing all details on which the final and interim maps were ultimately based, that is the subject of the request. Although, as outlined above, the Department holds numerous files of related records, the applicant has made it clear that he does not seek access to such records.

Secondly, as noted earlier, the request sought the database of coverage information informing the map, that would "be current to date". However, the applicant's submission to this Office of 22 March 2009 clarified that "[c]urrent data is not being requested. The data informing the map of March 2008 ... is being requested."

The scope of this review is confined to the sole issue of whether or not the Department's refusal of the applicant's request, as clarified above, is in accordance with the provisions of the FOI Act.

Submissions

.

Findings

Relevant Provisions

Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist (or if searches for a record that is known to exist have been reasonable).

The request, dated 25 April 2008, was received by the Department on 28 April 2008. The Department states that, by this time, "the database would already have been significantly modified" from how it stood as at the date of production of the March 2008 map. I also understand that neither the Department, nor the consultant company that was involved in producing the maps on behalf of the Department, made backup copies or any other record of the details on the database on the dates that the interim maps were published. Neither were copies made on any other date; in fact, the Department has stated that the database the subject of the request was not backed up in any way. It has said that, if for some reason input data had been lost from the database, it would have had no way of re-creating the database other than by referring to the 3300+ files held on its network. While not expressing any view on the appropriateness of such an approach to safeguarding completed work, it would appear that by 28 April 2008, the database did not exist in the form as it had stood on the date of production of the March 2008 map, nor did there exist a copy of the database as it stood on that date. Thus, I consider it appropriate to find that the record the subject of the request no longer exists and that section 10(1)(a) applies.

The Applicant's letter to this office of 17 November 2010 suggested that, by using date fields and filters, the Department could re-create the database as it stood on the appropriate date, by identifying, and excluding (or restoring) all records subsequently added to (or archived from) the system. One could also argue that the Department should rebuild the database from scratch to how it stood on the relevant date, by re-inputting all details in the various records held by it (and amending as necessary). However, I am not persuaded that the FOI Act requires such steps to be taken. Previous decisions have set out the Information Commissioner's understanding that the FOI Act is concerned with records that exist, not with records that should exist. I do not consider that the FOI Act can be invoked to require that a public body attempt to bring a particular record back into existence by processing or manipulating information, whether on a database or as contained in other records in its possession. (This is entirely different, however, from a scenario in which a public body can identify and extract an exact copy of a particular record, say from a backup tape).

Furthermore, the Department has submitted that it is not possible for it to re-create the database along the lines suggested by the Applicant. It argues that it is unable to identify with any certainty all finalised, modified information on the laptop and thus is not in a position to identify all material that might be so filtered. It also submits that any filtering process would require details in certain elevation models that are, according to the Department, not stored on the database. I have no reason to dispute the Department's submission in this regard.

Equally, if the Department were obliged further to the FOI Act to re-build the database having regard to the records it holds, I would agree with Ms Moran (for reasons already explained to the Applicant) that this would result in such an amount of work on the Department's part that section 10(1)(c) would apply. (Section 10(1)(c) provides for the refusal of a request where granting it would, by reason of the number or nature of records concerned, require the retrieval and examination of such number of records concerned as to cause a substantial and unreasonable interference with, or disruption of, the work of a public body.) It is also possible that any resulting database may not be identical to the database as it stood on the date of the production of the March 2008 map.

Summary

Having regard to the above, Thus, I find that the record the subject of the request no longer exists and that section 10(1)(a) applies; that the Department is not obliged to re-create the database as it stood on the date of production of the March 2008 map; and that even if it was, the work involved in such an exercise warrants the refusal of the request on the grounds of section 10(1)(c) of the FOI Act.

There are two issues that I should clarify, having regard to the above.

Firstly, the above finding should not be taken as endorsing the refusal by a public body of a record on the grounds that the specific type of record requested does not exist, in a case where the body holds a record that is different to that sought only in respect of the description that one would give to it. I have in mind here a situation where an Applicant might make a request for a "report" of a conversation he or she had with a medical professional, but in which case the medical professional did not draw up a formal report and instead made relevant notes in a notebook or some other type of record to that requested.

Secondly, had the Applicant not clarified that he was actually seeking the details pertinent to the map of March 2008, the Applicant's original request would have sought information that was "current to date". Previous decisions from this Office have generally taken the view that such a request would encompass only those records that had been created by the date of the request (25 April 2008 in this case). Leaving aside the issue of whether or not a database might be copied or backed up on a daily basis, it is likely that changes would have been made to the database between 25 April 2008 and the date of receipt thereof (28 April 2008). In such circumstances, the database as it stood on the date of the request would no longer have existed by the date of receipt thereof, which would again lead to a section 10(1)(a) outcome. This has led to a revision of this Office's view as to what is the "operative end date" in considering records of relevance to a request. Thus, the appropriate date should actually be the date of receipt of a request. As is evident, my decision proceeded on this basis.

Even if the Applicant had not clarified what he meant by "current to date" in this case, the above revised understanding of the "operative end date" would have made no difference to the outcome of this review. In the first instance, the Department states that it did not take any copy of the database as it stood on the date of receipt of the request because "it was never intended for the database to be static until the final coverage map had been produced". I have no reason to dispute the Department's assertion in this regard. As changes were made to the database until 30 June 2008, the database as it stood on the date of receipt of request no longer exists. In those circumstances, I would have no option but to accept that section 10(1)(a) applies. It also follows that I would not consider the Department to be obliged to re-create the database as it stood on the date of receipt of the request, and that even if it was, section 10(1)(c) would be applicable.

It should be noted that in a review under section 34 of the FOI Act such as this, I cannot make any finding on the adequacy or otherwise of the Department's reasons for not taking a copy of the database so requested.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's position that the details the subject of the request no longer exist and that the request should be refused under section 10(1)(a) 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 on which notice of the decision was given to the person bringing the appeal.

Seán Garvey

Senior Investigator

21 January 2011