Whether the Body was justified in refusing the applicant's request for various records under sections 10(1)(c) and 10(1)(e) of the FOI Act.

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

Background

On 4 November 2012, the applicant submitted an 11-part FOI request to the Body. The request encompassed records "involving" named and unnamed Board members "with regard to" the applicant's complaints of bullying and harassment (and in the case of one named member, with regard also to another matter); communications involving any staff member of the Body and any staff member of the Department of Arts, Heritage and the Gaeltacht, or any other Government Department, with regard to various specified matters; minutes of Body Board meetings since March 2010; minutes of the subcommittee of the Board "established to oversee" the applicant's complaints of bullying and harassment; records concerning payments made to named and unnamed third parties "involved in any Human Resources (HR) related matters with regard to the [Body]" from March 2010; records of payments for legal services from March 2010; records concerning travel and subsistence claims, and any other expense claims, made by two named parties from March 2010; and records of total travel and subsistence costs from 2005 to 2012.

The Director of the Body (i.e. the Head of the public body) made a decision on the request on 4 December 2012. Although no provisions of the FOI Act were cited, the decision said that the request was being refused on the basis that "[d]ealing with this latest in a series of similar requests would cause substantial and unreasonable interference with and disruption of the other work of the Body"; the information sought was already in the applicant's possession or otherwise available to her; in light of a legal action brought by the applicant against the Body, the information to which she would be entitled under FOI would fall to be provided in accordance with the rules of Discovery; and having regard to the preceding, the request was considered also to be frivolous and/or vexatious.

Section 14(3) provides that an internal review of a decision made on a request must be carried out by a delegated official of higher rank than the delegated official who made the original decision. Where the decision maker on a particular request is the Head of the body concerned, as is the case here, an application for review must be made directly to the Information Commissioner. Thus, on 20 December 2012, the applicant sought a review by this Office of the Body's decision.

In carrying out this review, I have had regard to correspondence between the Body and the applicant as set out above; to correspondence between this Office and the Body, including an email sent to the Body by Ms Anne Lyons, Investigator, on 6 September 2013 (to which I will refer in the remainder of this decision as the "preliminary views") and the Body's reply of 20 September 2013; and also to the provisions of the FOI Act.

Scope of the Review

The only issue in this review is whether or not the Body has justified its refusal of the applicant's FOI request.

Findings

Although the Body 's decision did not cite specific provisions, the request appears to have been refused further to sections 10(1)(c) and 10(1)(e) of the FOI Act.

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. However, section 10(2) requires that a request shall not be refused under section 10(1)(c) unless the body assisted, or offered to assist, the requester in amending the request that it no longer falls within the parameters of section 10(1)(c).

A request may be refused under section 10(1)(e) if, in the opinion of the head, the request is frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests from the same requester. The head is not required to assist, or to offer to assist, the requester in amending the request so that it no longer falls within the parameters of section 10(1)(e). It is also relevant to note that section 8(4) of the FOI Act, as amended, allows a public body to take into account the motive of a requester when considering if section 10(1)(e) applies.

The preliminary views emailed to the Body noted that it could not rely on section 10(1)(c) where it had not complied with the requirements of section 10(2) of the FOI Act, nor were the Body's stated reasons for relying on section 10(1)(e) considered appropriate in the circumstances of this case. The Body accepted these views, and I find accordingly.

Although I am pleased to note that the Body not only accepted the views put to it by this Office but also offered to reconsider the request, it is nonetheless necessary for me to annul its original decision. This is so that the applicant may avail of the usual rights of internal review as well as external review by the Information Commissioner in respect of the Body 's new, first instance decision on the applicant's original request. In making that new, first instance decision, the Body is also required to offer assistance to the applicant in accordance with the provisions of section 10(2), should this be deemed necessary.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Body 's refusal of the request. I direct that it undertake a fresh decision making process and inform the applicant of the outcome in accordance with the requirements 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.

Stephen Rafferty
Senior Investigator
24 September 2013