Whether the NRA was justified in its decision to refuse to grant a request for access to the records sought on the basis that sections 21, 22, 23 and 27 of the FOI Act applied.

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

Background

On 21 November 2011, the applicant made a request to the NRA under the FOI Act, on behalf of her client, X. The request comprised 6 itemised categories of records concerning the construction of Clonmelsh Railway Bridge, County Carlow, and related matters. The records sought included details concerning the design of the bridge, ownership of lands, any landowner agreements between the NRA and a landowner in respect of the bridge, agreements between the NRA and the Railway Procurement Agency, Iarnrod Eireann or Coras Iompair Eireann in respect of the bridge. The records requested also included details of judicial review proceedings taken, instigated or prosecuted by Iarnrod Eireann or Coras Iompair Eireann against the NRA in respect of any of the NRA's road projects during the period January 2004 to December 2007; and records of meetings, discussions, agreements between the NRA and Iarnrod Eireann or Coras Iompair Eireann with a view to settling or resolving any legal or court proceedings in respect of any of the NRA's road projects during the period January 2004 to December 2007.

On 22 December 2011, the NRA issued its decision to the applicant, advising it had decided not to grant the request on the grounds that the records sought relate to a contract which is the subject of an ongoing dispute. The NRA refused access to the records sought under sections 21, 22, 23 and 27 of the FOI Act. The applicant wrote to the NRA on 18 January 2012 seeking an internal review of its decision. On 7 February 2012, the NRA Internal Reviewer affirmed the original decision. Subsequently, on 21 May 2012, this Office received a request from the applicant for a review of the NRA's decision.

During the course of this review two meetings were held between this Office and representatives of the NRA to discuss the NRA's decision and to clarify the records which are subject to the FOI request. A meeting was also held with representatives of X. In conducting my review, I have had regard to details of the submissions of, and meetings with, the NRA, to correspondence between the applicant and the NRA, to correspondence between this Office and the applicant and to the meeting between X and this Office. I have also had regard to the provisions of the FOI Act.

Scope of the Review

The issue in this review is whether the NRA was justified in its decision to refuse access to the records sought on the basis of the exemptions it claimed.

Preliminary Matters

In submissions to this Office, both the applicant and the NRA have made references to a dispute between both parties in regard to the subject of the FOI request under review here. I understand that many of the records, or parts thereof, which are the subject of applicant's FOI request were previously the subject of legal discovery and/or a Subpoena Duces Tecum (a subpoena requiring named representatives of the NRA to appear in court and to produce specified records). In submissions to this Office the applicant claims that her client has reason to believe that the NRA holds records which it did not produce under the subpoena and that these records should be provided under FOI. While this Office is aware from submissions made by the applicant and NRA that the parties are in dispute, section 8(4) of the FOI Act requires that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the requester has for making a request. Consequently, this review is confined to considering whether the NRA's decision was justified in the context of the FOI Act.

Analysis and Findings

On 14 June 2012, this Office wrote to the NRA requesting a copy and schedule of the records which are the subject of this review. In its reply dated 22 June 2012, the NRA stated that the contract for the Clonmelsh Railway Bridge is the subject of an ongoing dispute resolution process. The NRA stated that B are the legal representatives of the plaintiff, X., in the proceedings concerned. Referring to the Subpoena Duces Tecum, noted above, the NRA stated that all such records held by the Authority (with the exception of various records that had been provided separately by Kildare County Council under a similar Discovery request) were duly provided to B. The NRA asked this Office to reconsider our request for copies of the records in this case, stating that it holds a very substantial volume of records in connection with this request and the search, retrieval and collation processes required to provide this Office with copies of same would require the allocation of very significant resources and time in order to complete the process.

On 11 February 2013, this Office contacted the NRA stating it would not be possible to conduct a review without sight of the records. A schedule of the records was requested from the NRA in order to conduct a preliminary review of the case. On 13 February 2013 the NRA replied, stating that the records which are the subject of the FOI request have previously been provided to the applicant on foot of an order of Discovery issued by the High Court in connection with legal dispute resolution proceedings initiated by the applicant on behalf of its client. The NRA argued that irrespective of the contents of the records concerned and whether or not release of some or all of the records shall or may be refused in accordance with the provisions of the Acts, the records cannot be released as such action would constitute a contempt of court.

In its letter of 13 February 2013, the NRA again referred to the work and the very substantial volume of records involved in providing a schedule of records. The submission continued, while the Authority will undertake such an exercise should this Office deem it necessary, it must be emphasised that, having regard to (a) the very significant financial claim amount involved in the contract, (b) the release of the records would constitute a contempt of court, (c) the contract is the subject of an ongoing statutory dispute resolution process and, potentially, litigation in the higher courts (d) similar dispute resolution proceedings have again been initiated by the applicant on behalf of their client in relation to the same contract and (e) the obligation on the Authority to protect the interests of the State/ taxpayers, the Authority will strongly oppose any proposal to release the records sought in this request. In response to queries from this Office, the NRA explained that it has no schedule of the records previously produced by the NRA under subpoena.

During the course of this review the NRA provided this Office with a copy, on 3 CDs, of the records it holds in regard to this matter. There is a considerable number of records on the CDs and many have numerous attachments. A sample of records were viewed by this Office during the course of this review. The records on the CDs are held in an unstructured format, categorised by date and type and not by subject. There is no discernible index or schedule of the records contained on the CDs.

Disc 1: The NRA stated that Disc 1 contains records provided to the applicant in December 2011 under a Subpoena Duces Tecum.
Disc 2: The NRA stated that Disc 2 contains records from Kildare County Council (the Council). This Office understands that records contained on Disc 2 were provided to the applicant by the Council under the legal Discovery process and that a number of those records were either fully or partially redacted. The NRA have informed this Office that it is not possible to determine which records were redacted as hard copies of the records provided under the Discovery have since been destroyed by the Council's solicitors.
Disc 3: The NRA stated that Disc 3 contains records not provided under Discovery on the basis of Legal Professional Privilege.

In regard to the Council records held by the NRA (Disc 2 above refers), the applicant indicated to this Office that X is seeking under FOI those parts of the records held by the NRA which were redacted during the Discovery process. The applicant has suggested that her client could provide a copy of the redacted documents obtained under Discovery (with the permission of the Council) so that the NRA could compare these with the records it holds, with a view to releasing the redacted extracts under FOI. Indeed, I understand from the meeting between this Office and representatives of X that it is seeking records under FOI which it did not obtain through the Discovery process and is not seeking records under FOI which it obtained under Discovery or subpoena. This is not evident from the original FOI request submitted by the applicant and while the applicant has proposed a solution in regard to the Council records as a means of trying to resolve the impasse in this case, I consider a settlement between the parties in this review is most unlikely given the circumstances.

Conclusion
The NRA has decided that release of any records in question would constitute a contempt of court, irrespective of the contents of the records concerned. I consider it is not appropriate or valid for the Commissioner to take the same blanket approach adopted by the NRA. Before this Office can consider the NRA argument that release of the records in this case would amount to contempt of court, we must first consider the content of the records. We must also consider whether the exemptions claimed by the NRA are valid in the circumstances and whether access should be granted to any or all of the records. In the normal course of a review, this Office will review the individual records in question and consider the exemptions applied to those records by the public body under the FOI Act.

The NRA has not provided the information required in a format which would facilitate a review of its decision and claims that preparation of a schedule would require a very extensive search, retrieval and collation process involving a very substantial volume of records. Because of the unstructured format of the records provided on discs by the NRA, it is not possible for this Office to identify whether these discs contain all relevant records which come within the scope of the 6 itemised categories of records sought by the applicant in her FOI request, or to identify which records relate to which part of the request.

The role of the Information Commissioner in this matter is to review the decision of the NRA, not to act as the first instance decision maker or to become an arbitrator between the two parties in dispute. I consider it is not the role of this Office to trawl through the unscheduled records in this case in an effort to consider whether the NRA's decision was justified.

The NRA argued that irrespective of the contents of the records concerned and whether or not release of some or all of the records shall or may be refused in accordance with the provisions of the FOI Act, the records cannot be released as such action would constitute a contempt of court. It seems that the NRA has not undertaken any substantial consideration of the content of the individual records in this case, and instead appears to have adopted a blanket approach by claiming a number exemptions apply without any effort to identify which exemption(s) it considers apply to the individual records. I consider that it is not the role of this Office to undertake the type and scale of work involved in this case in the absence of the same level of endeavour by the NRA in its decision.

In order to consider whether the NRA's decision was justified, I believe that, in the first instance this would require the NRA to identify which records relate to which part of the FOI request, to decide whether to grant or refuse access to the records, or parts thereof, and to specify any exemptions it considers appropriate in the event that it decides to refuse access. Effectively, this requires the NRA to conduct a fresh decision in this case.

One of the factors raised by the NRA in its submissions to this Office, is the substantial volume of records which come within the scope of the applicant's FOI request and the resources required to search for, retrieve and collate those records. It seems that the NRA may have been in a position to consider the provisions of section 10(1)(c) of the FOI Act as a means of attempting to narrow the scope of the request to more manageable proportions. Section 10(1)(c) provides that a public body may refuse 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 work of the body. However, section 10(2) provides that a public body shall not refuse to grant a request pursuant to section 10(1)(c) unless it has assisted, or offered to assist, the requester to amend the request so that it no longer falls to be refused under that section.

Given the circumstances outlined above, it is relevant to reiterate the provision of section 8(4) of the FOI Act which expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the requester has for making a request. It seems clear that the requester's reasons for making the FOI request was at the centre of the decision by the NRA and the approach adopted by the NRA in refusing all the records sought, apparently without any significant consideration of individual record content.

Section 34(12) of the FOI Act provides that: 'In a review under this section- a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.' I find that the NRA has not shown to the satisfaction of this Office that its decision in respect of the applicant's request was justified. Therefore, following careful consideration, it is my view that the decision of the NRA should be annulled and I find accordingly. The effect of this is that the NRA is required to make a new, first instance, decision in respect of the applicant's original request.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the NRA in this case and direct that the NRA now conduct a new decision-making process.

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.

Sean Garvey
Senior Investigator