Whether the Department was justified in refusing the applicant's request for records concerning the School Transport Scheme under section 46 of the FOI Act.

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

Background

On 30 July 2013, the applicant made the following FOI request to the Department:

"Part 1
Please give us a copy of the FGS report [a report compiled by Farrell Grant Sparks (FGS), which the Department commissioned as part of its Value for Money review of the School Transport Scheme].

Part 2
Please give us copies of the records, reports and correspondence that passed between FGS and the Department ... in 2011."

The Department's decision of 20 August 2013 refused the above request, further to section 46(1)(c)(i) of the FOI Act, stating that the records requested "relate to a review currently being carried out by the Information Commissioner." On 28 August 2013, the applicant sought a review by this Office of the Department's decision on his request, which was accepted in line with the provisions of section 34(1)(dd) of the FOI Act.

In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the preliminary views emailed to the Department by Ms Anne Lyons, Investigator, on 5 September 2013, and the Department's response of 9 September 2013. I have had regard also to the provisions of the FOI Act.

Scope of the Review

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

Findings

The applicant had made a separate application for review to this Office (case reference number 110143 refers), to which he argued the FGS report was relevant. In the course of that review, this Office made various enquiries of the Department to establish if the applicant's contention was reasonable. The Department's email to this Office of 9 September explains that, in light of those enquiries, it considered that section 46(1)(c)(i) should be applied to the applicant's FOI request of 30 July 2013.

However, the decision that has now issued in relation to case 110143 did not consider the content of the FGS report, because, having considered the matter, it did not accept that the report was encompassed by the original request made in that case. Under such circumstances, it cannot be said that section 46(1)(c)(i) of the FOI Act is applicable to the request of 30 July 2013 (which, in fact, seeks other records in addition to the FGS report).

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Department's decision of 20 August 2013. I direct that it undertake a fresh decision making process in respect of both aspects of the request of 30 July 2013, and inform the applicant of the outcome in accordance with the requirements of the FOI Act. That further decision will be subject to the usual rights of internal review as well as external review by the Information Commissioner.

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
26 September 2013