Whether the Board was justified in refusing access to records relating to the applicant's request for "all information pertaining to the Pension Board Funding Standard for defined benefit schemes announced 7 June 2012".

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

Background

On 8 June 2012, the applicant made an FOI request to the Board for "all information pertaining to the Pension Board Funding Standard for defined benefit schemes announced 7 June 2012". Further to a request from the Board to clarify the precise scope of the request and the type of records required, the applicant said, on 19 July 2012, that he sought records "regarding changes to the funding standard and any material within the last two years ... concerning legal policy and deliberations and to include any PB guidance and statutory guidance and press releases issued by the Board during the relevant period."

On 17 August 2012, the Board refused the request as clarified, on the basis that it still considered it to lack sufficient particulars to enable the records at issue to be identified. It invited the applicant to identify the records he particularly wanted to obtain and said that a response to the request as it then stood would require the retrieval and examination of such a number and kind of records as to cause a substantial and unreasonable interference with the Board's work, such that it would consider section 10(1)(c) of the FOI Act to apply accordingly. On 20 September 2012, the applicant asked the Board to "disclos[e] what [it could] under the FOI legislation re: what were the contributory reasons to the resulting standards put forward by the Pensions Board." The Board responded, on 1 October, that the re-framed request did not reduce the potential number of records that it would have to be retrieve and examine.

The applicant sought an internal review by the Board, also on 1 October 2012, and said he considered the request as previously clarified to contain sufficient particulars to enable the identification of the relevant records, particularly as other bodies had been able to deal with similar requests. However, the Board's internal review decision of 25 October 2012 upheld the application of section 10(1)(c) to the request. On 9 November 2012, the applicant sought a review by this Office of the Board's refusal to release the relevant records.

In carrying out my review, I have had regard to correspondence between the Board and the applicant as set out above; to details of various contacts between this Office and the Board; and to details of various contacts between this Office and the applicant, particularly the letter sent to him by Ms Anne Lyons, Investigator, dated 31 January 2013 (to which I will refer as "the preliminary views letter" in the remainder of this decision, as necessary).

As the timeframe in which Ms Lyons invited a response to her preliminary views letter has now elapsed without reply from the applicant, I have decided to conclude the review by way of a formal binding decision.

Scope of the Review

The scope of this review is confined to assessing whether or not the Board is in accordance with the terms of the FOI Act in refusing to release any records of relevance to the applicant's FOI request.

Findings

As explained to the applicant in the preliminary views letter, section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why he is seeking the withheld records.

The Board has directed the applicant to any publicly available material of relevance to the request but has relied on section 10(1)(c) in refusing any relevant records held by it that are not so available.

Section 10(1)(c)
Section 10(1)(c) of the FOI Act provides that a request for a record may be refused if 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 the work of the public body concerned. In short, the provision recognises the extent to which searches for records might impact on the work of public bodies.

It appears that three key work streams took place within the Board in the relevant timeframe, all of which involved potential changes to the funding standard. The preliminary views letter outlined to the applicant the various types and duration of work in each work stream, as well as the broad range of external parties and internal Board personnel and units that were involved. It explained how the records created accordingly were not filed by reference to a single, searchable database, and thus how it was the Board's position that "a significant volume of potential hard and soft copy records [from a number of sources would have] to be searched for and retrieved" in the first instance, with the examination of those records taking additional time.

The Board contended that, in order to respond to the request within the time limits set out in the FOI Act, three to four staff members (at least one of whom would have to be a senior manager with close involvement in the various work streams) would have had to work on the request, which it considered would cause a substantial interference with its work. In this regard, I note that the Board considered the applicant's email of 20 September 2012 not to reduce the scope of the request, because all records created during the relevant time would still have been required to be searched to establish which, if any, evidenced the "contributory reasons to the resulting standards". I consider the Board's view to have been reasonable.

There also seems to me to be a reasonable basis for the Board's contention that a variety of internal units were likely to hold many records of potential relevance to the request. It also seems that the relevant records (or indeed any relevant portions of records) could only be identified, retrieved, and considered for release, by the diversion of a number of staff from existing duties for a period of time on a full-time basis, which I accept would cause a substantial and unreasonable interference with, or disruption of, the Board's work. The fact, as raised by the applicant, that other public bodies were able to respond to similar requests is irrelevant to the consideration of my Board's position, in that fewer records may have been at issue in the other cases, or simply because the records might have been more easily retrievable. Finally, I also consider that the Board's emails to the applicant of 25 June and 17 August 2012 sufficiently met the requirements of section 10(2) (which requires that a request shall not be refused under section 10(1)(c) unless the body assisted, or offered to assist, to amend the request that it no longer falls within the parameters of section 10(1)(c)). Accordingly, I find that the Board was in accordance with the provisions of section 10(1)(c) of the FOI Act in refusing the applicant's request.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Board's refusal of the relevant records.

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.

Stephen Rafferty
Senior Investigator
25 February 2013