The Senior Investigator found that the deemed decision to refuse to grant the applicant's request is justified under sections 10(1)(b) and (c) of the FOI Act and affirmed the decision accordingly.

Case Summary

Whether the Department's deemed decision to refuse to grant the applicant's request for records is justified under section 10(1)(b) and (c) of the FOI Act

Date of Decision: 31.03.2011

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

Background:

In a request dated 24 July 2008, the applicant sought access under section 7 of the FOI Act to the following categories of records:

1. all records of association between the National Rehabilitation Board (NRB) and the Department of Health & Children, and
2. all records of Exit Packages which were approved by the Department for staff groups in all Semi-State agencies which operated under its aegis since 1998.

With respect to part 2 of his request, the applicant specified that he was "not seeking personal information about people on an individual basis".

On 22 August 2008, the Department wrote to the applicant to notify him of interpretive difficulties it was encountering in processing his request.  The Department asked the applicant to clarify what he meant by "records of association".  The Department also explained that, according to its Pension Policy Unit, it was only aware of exit arrangements involving superannuation benefits and that "it would be impossible to release any record without disclosing sufficient details that could identify the recipient".

In his reply dated 26 August 2008, the applicant stated that he sought "the records of approval of the creations of employment posts in the NRB over the years".  He added:  "I seek budgetary records and the records of the approval of purchase, refurbishment and sale of properties for as far back as possible".  In an email dated 16 September 2008 in response to a further request for clarification by the Department, the applicant stated:  "By budgetary records, I mean the allocation of Budget provisions to the NRB by the DoHC over as many years as is possible."  He explained that he wished to know how much money was given to the NRB, over what period, and why.  In relation to part 2 of his request, the applicant said in his statement dated 26 August 2008 that he sought records of ex-gratia payments rather than superannuation entitlements.

As no decision on the request was made by the Department within the statutory period required, the applicant applied on 10 October 2008 for internal review on the basis of the deemed refusal of his request (section 41 of the FOI Act refers).  The applicant's internal review application restated his request dated 24 July 2008 as it appeared in its original format.  Again, no decision was made by the Department on internal review within the statutory period required. 

By letter dated 1 December 2008, the applicant made his application for review to this Office.  Following the acceptance of his application for review, the Department belatedly notified the applicant of its position in the matter in a letter dated 5 January 2009.  The Department's position was to refuse the applicant's request under sections 10(1)(b) and (c) of the FOI Act.  Following further correspondence from this Office, the applicant stated in a submission dated 3 March 2009 that he did not accept the Department's position.  He also declined the accede to the Department's suggested revision of his request.

In a letter dated 3 March 2011, Ms. Melanie Campbell, Investigator, advised the applicant of her preliminary view on the matter.  In Ms. Campbell's view, the Department's deemed decision was justified under sections 10(1)(b) and (c) of the FOI Act.  In reply, the applicant indicated that he wished for the matter to proceed to a decision on the review. 

Accordingly, with the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant, including his written comments in response to Ms. Campbell's preliminary observations.  I have decided to conclude the matter by way of a formal, binding decision.

Conducted by in accordance with section 34(2) of the FOI Act by Fintan Butler, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review)

Scope of the Review

This review concerns the question of whether the Department's deemed decision to refuse to grant the applicant's request is justified under the FOI Act.  Although the applicant makes comments in his submission dated 7 March 2011 regarding the manner in which the Department has dealt with former staff members of the NRB, I note that such matters are not within the remit of this Office. 

Submissions

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Findings

Under section 10(1)(b) of the FOI Act, a request may be refused if it does not comply with section 7(1)(b); this 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.  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 this case, I agree with Ms. Campbell's observation that the first part of the applicant's request is phrased in a form which could give rise to interpretative difficulties.  Although the Department made requests for clarification, the applicant did not adequately specify the particular type of information that he wished to obtain through his access request.  On the contrary, the applicant's statements raised new problems of interpretation and then were followed by a full restatement of his request in its original format. 

In response to Ms. Campbell's preliminary view letter, the applicant has given reasons for seeking records from the Department "in relation to the [NRB]", but he does not directly address Ms. Campbell's observation that his statements to the Department did not contain sufficient particulars necessary to enable the Department to identify the records concerned by the taking of reasonable steps.  Rather, his comments suggest that he does not actually seek any particular type of records relating to the NRB, but rather seeks to address the broader question of the Minister's responsibility for the NRB and the pension entitlements of former staff members such as himself.  In other words, the applicant appears to be engaged in a "fishing expedition" in relation to the grievance he has with the Department in relation to the NRB's dissolution.  I note, however, that in reaching a decision on a request, the reasons for the request must be disregarded (section 8(4) of the FOI Act refers).  It remains unclear what, if any, particular type of records the applicant seeks through his access request.  In the circumstances, I find that the first part of the request does not comply with the requirements of section 7(1)(b) and that section 10(1)(b) therefore applies.

I also accept that the second part of the applicant's request is of an excessively broad and voluminous nature.  As the Department explained in its letter dated 5 January 2009, the processing of this part of the request would involve the examination of the files it holds in respect of almost 50 statutory bodies coming within its aegis, as well as those held in respect of the Health Executive Service.  As Ms. Campbell observed, it is self-evident that carrying out such a process would necessarily cause a substantial and unreasonable interference with or disruption of the other functions and duties required of the Department.  Accordingly, I find that section 10(1)(c) applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the deemed decision of the Department; I find that the decision to refuse to grant the applicant's request is justified under sections 10(1)(b) and (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 after notice of the decision was given to the person bringing the appeal.

Fintan Butler

Senior Investigator

31 March 2011