Whether the Department has justified its decision not to fully grant those elements of the applicant's 12-part request for records concerning bus routes and services that are within the scope of the review in this case

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.

Background

On 12 November 2010, the applicant made an FOI request to the Department for "all records relating to or including"

1. Bus lane/Quality Bus Corridor on North Wall Quay [dating from 2005, as the applicant later clarified with the Department]
2. representations in relation to public transport in the Swords area
3. bus services through the Phoenix Park since 2007
4. 'Blueline' BRT proposal
5. 41x Dublin Bus route since 2005
6. 142 Dublin Bus route
7. Swords Express Bus Route (existing) since 2005
8. Swords Express Bus Route (proposed route B1) since 2008
9. Manuals relating to the processing of bus route applications since 2008
10. Database of bus route applications
11. avoidance or management of conflict of interest situations for senior civil servants when dealing with state companies since 2008
12. public transport passenger information since 2010.

The Department assigned responsibility for various aspects of the request to three decision makers working in separate sections of the Department.

On 10 December 2010, the Department issued a decision in relation to parts 2 and 12 of the request. The letter did not describe the decision in so far as it concerned part 2. I note, however, that the (later) internal review decision said that two records had been considered relevant to this aspect of the request, one of which had been released in full, and the other released in part. The decision of 10 December 2010 provided the applicant with information, rather than records, relevant to part 12 of the request. However, I note that further to a query from the applicant, the decision maker provided him with copies of the documentation relevant to part 12, on 17 December 2010.

Also on 10 December 2010, a separate decision issued regarding parts 1, 3, and 4 of the request. Of the records relevant to part 1, the decision released some in full, with the rest released subject to the redaction of commercially sensitive information and details that the decision maker did not consider to pertain to that part of the request as framed. The decision fully released the one record considered relevant to part 3, and said that no records were found that were relevant to part 4.

On 20 January 2011, a decision issued that refused any records relevant to parts 5, 6, 7, 8, and refused further records considered relevant to part 2 of the request, on the basis that release could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. It said that no further records relevant to part 9 had been created since the 2007 manual that had been released to the applicant further to his earlier FOI request. It refused the database sought at part 10 on the grounds of confidentiality, and released all material considered relevant to part 11.

On 14 February 2011, the applicant sought an internal review of the above, further to which the Department's internal review decision of 23 March 2011 (which was dated, in error, 23 March 2010) issued.

The internal reviewer considered that it would have been reasonable for the request to have been refused from the outset on the basis that it was too voluminous. He said it only became apparent when processing the request that approximately 1,600 records were covered by points 2, 5, 6, 7 and 8 of the request, while the database requested at part 10 contained records relating to over 3,000 historical and current bus licence applications. The internal review decision said that, while many of the records had been refused, the time taken by the three decision makers and the internal reviewer amounted to "many days", which the internal reviewer considered to have interfered with the work of the Department. He noted that this view had been formed in hindsight and went on to consider, and uphold, the previous decisions.

The applicant made an application for review of the above that was received by this Office on 30 March 2011. The Department released further records to the applicant in the course of the review, (including some that it had obtained in 2011, during the early stages of this Office's review, from the National Transport Authority (NTA). I will comment further on these records later in this decision).

The Investigator to whom this case was most recently assigned, Ms Anne Lyons, wrote to the applicant on 15 September 2014. Amongst other matters, she told the applicant that as all records relevant to parts 3 and 11 had been released to him by the Department, these elements of the request would be excluded from my final decision. The applicant had also been told this by the previous Investigator to whom the case was assigned. Insofar as the Department's decision of 10 December 2010 concerned part 2 of the request, she noted that an individual's name and (email) address had been withheld from the one partially released record. Because the applicant had told the previous Investigator that he did not wish to gain access to anyone's personal information, Ms Lyons said there was no need to consider the relevant withheld details accordingly. Ms Lyons also told the applicant that, while no further action was required in respect of part 12 (again, a view expressed by the previous Investigator), the Department in the meantime had said it was willing to release certain additional, contextual, details from the relevant records. Finally, she said that this review would not include part 10 of the request. The applicant had narrowed the scope of this element of the request to details concerning the 41, 41, 141 and 142 routes, which the Department released on 3 July 2014 (I understand that, while responsibility for bus licensing had been transferred from the Department to the NTA in 2010, along with relevant records, the Department had retained a copy of the relevant database as it stood at the time of this transfer).

The applicant was invited to reply to Ms Lyons' views by 29 September 2014. The applicant replied, by way of email dated 3 October 2014, in which he referred to a response he had submitted to my Office in June 2014 concerning case 090077 (another application for review submitted by the applicant concerning the Department). While he also argued against the redaction of material from records on the basis of irrelevance to his request, he did not object to the exclusion of the above elements of the review from my decision and I have proceeded accordingly.

In carrying out my review, I have had regard to the above; to copies of the records at issue (which were provided to this Office for the purposes of my review); to details of various contacts between this Office and the Department; and to details of various contacts between this Office and the applicant.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of this review is confined to the sole issue of whether or not the Department has justified its decision not to fully grant the applicant's request for records as set out at parts 1; 2; 4; 5; 6; 7; 8; and 9 of his request of 12 November 2010.

Preliminary Matters

When this application for review in this case was received, the Office already had on hands a 2009 application for review, further to a 34-part request for bus transport-related records that the applicant had also made to the Department. It was considered appropriate to deal with the two cases in sequence. Although by no means excusable, delays regrettably arose partly because this Office have did not have the necessary staff resources to deal with the volume of work involved in the two cases.

I also wish to recognise the impact that dealing with this request, and this Office's review (including the delays), has had on the Department. While its initial decision to deal with the FOI request was in keeping with the spirit of the FOI Act, doing so placed a burden on the Department of a sort that, in my view, was not intended by the Oireachtas when passing the FOI Act.

In outlining his view that it would have been reasonable for the request to have been refused from the outset on the basis that it was too voluminous, the internal reviewer sought to rely on section 10(1)(c) of the FOI Act. Section 10(1)(c) 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. It recognises the extent to which the retrieval and examination of records might impact on the work of public bodies, and it can be relied upon once the body has helped, or even offered to help, a requester to amend their request so that it becomes more manageable from the body's perspective (section 10(2) refers).

However, where the public body ultimately goes to the effort of retrieving and examining records of relevance to a request, it effectively accepts that to deal with the request is not a substantial and unreasonable interference with, or disruption of, its work, which was recognised by the internal reviewer.

Noting the internal reviewer's description of the work involved in dealing with the request, I may well have upheld the Department's application of section 10(1)(c) to the applicant's request, if it had done so from the outset and in compliance with section 10(2). Although narrower by comparison to the applicant's earlier 34-part request, each element of this 12-part request was couched in terms of seeking "all records relating to or including" the particular subject matter. Three elements sought records created over a five year period, and, on the face of it, parts 2 and 10 encompass records created since the commencement of the FOI Act in 1998.

Findings

Notwithstanding the foregoing, I have had proper regard to the requirements of section 34(12)(b) of the Act, which places the onus on the Department to justify, to my satisfaction, its refusal to fully grant all aspects of the request. Furthermore, as this review is conducted de novo, it takes account of all relevant facts and circumstances applying as at the date of the ensuing decision.

Part 1

29 records were initially considered relevant to this aspect of the request, of which two were fully released and the remainder partially released. The Department recently reviewed the records concerned. It released further records in full, and released additional details from some of the other records at issue.

In outlining her views on this aspect of the request, Ms Lyons noted that a page of one record (which I note is the second page of the details regarding the grant application for the North Wall Quay Bus Corridor, as contained in record 10), and an attachment to another (which I note is referred to in record 12), appeared to have been overlooked.

The Department subsequently confirmed that it had inadvertently omitted the relevant page of record 10, which it is now willing to release. It has also searched for, and located, what I accept is the attachment to record 12 (which it has designated as record 12a). It is willing to release what I accept is the only relevant excerpt in record 12a that concerns the Bus lane/Quality Bus Corridor on North Wall Quay.

Having examined the details that have to date been withheld from the various relevant records, I am satisfied that they are not covered by the scope of part 1 of the request.

The applicant's reply of 3 October 2014, as elaborated on by him on 6 October 2014, maintains that he sought records rather than "information or elements of records" and refers me to section 6(1), which provides for the general right of every person to "be offered access to any record held by a public body". He maintains that as certain records have been identified as those to which he seeks access, he has a right of access to them in whole unless they contain exempt material. He maintains that the context provided by the records as a whole will assist the requester in understanding the relevant parts of the record. He maintains that the Oireachtas did not provide for a record to be released in part subject to the redaction of material irrelevant to the request and that doing otherwise increases the discretion to be offered to decision makers in deciding what information to release.

While section 6 provides that every person has a right to request access "to any record held by a public body", it is also the case that the Long Title to the Act describes the act as enabling the public "to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information (emphasis added) in the possession of public bodies". In order to provide access to such "information", the Act then goes on to describe how it, "accordingly, ... provide[s] for a right of access to records held by such bodies." Section 7 requires those seeking records to provide sufficient particulars "in relation to the information concerned to enable the record [containing such information] to be identified by the taking of reasonable steps". Furthermore, section 2 of the Act defines a record as including, inter alia,"anything that is a part" of a record.

Having regard to the above, it seems to me that the Oireachtas intended that the public would be able to request specified, particular, information, as contained in any record held by a public body. To grant access to the requested information, the Oireachtas clearly considered it appropriate for the body to release any such excerpts of a record that contain the information concerned. The Act (and the Oireachtas) further provided that release of those excerpts, i.e. the requested information, amounts to release of the requested "record". Otherwise, to consider for release information that has not been looked for, simply because it happens to be included in the same record as other, requested, information, would have potential to broaden the scope of a request considerably beyond that originally submitted. This would seem to me not to be in keeping with the requirements, placed by section 7 of the Act on all persons seeking information, that they specify what information they are seeking.

According, I consider it appropriate for a public body not to release information under FOI where that information has not been looked for in a particular FOI request. Neither it is appropriate for me to consider for release, or direct the release of such information. Having regard to the foregoing, I do not intend to consider, or direct the release of, the details that have to date been withheld from the relevant records.

Parts 2, 5, 6, 7 and 8

The NTA

The NTA was established in 2009, and took over responsibility for Bus Licensing and related matters (such as surveys and inspections) with effect from 1 December 2010. In this regard, the NTA website states "Under the Public Transport Regulation Act 2009, the National Transport Authority has taken over the regulation of public bus passenger services. These services were previously regulated by the Department of Transport under the Road Transport Act 1932. The Act obliges all operators to be licensed if they are providing public bus passenger services and is applied equally to both private and state companies. Public Service Obligation (PSO) services covered by Public Service Contracts (PSC) do not fall within the licensing system."

The Department says that it transferred all of its Bus Licensing records to the NTA (which I understand included the records relevant to these aspects of the request) accordingly. I also understand that certain former Bus Licensing unit staff were seconded to the NTA for a period of time.

The NTA operates independently of the Department, including for FOI purposes. I am satisfied that the records of relevance to these aspects of the request are at this point in time held and controlled by the NTA. I do not have the jurisdiction to direct a public body to take action in relation to the records of another public body, nor do I have any remit to include, or join, the NTA as a notice party in this case. Accordingly, my position is that I have no jurisdiction to consider any records held by the NTA that are relevant to this request, specifically the remaining records of those considered by the Department to be relevant to parts 2, 5, 6, 7, and 8 of the request. I find accordingly.

Although not relevant to my decision, the Department has said that the work on this FOI request was completed by the time of the transfer of functions to the NTA. Furthermore, it seems that both the Department and the NTA considered that responsibility for the Department's former bus licensing records continued to lie with the Department. It appears also that the NTA did not consider itself to have sufficient resources to deal with matters such as this FOI request and that the Department acted in the spirit of FOI in dealing with the matter. Hence, the relevant decision issued, on Department headed notepaper, on 20 January 2011 i.e. after the transfer of the relevant functions, and indeed records, to the NTA.

It seems to me that, in so far as the decision of 20 January 2011 (and the subsequent internal review decision) purported to concern records relevant to parts 2, 5, 6, 7 and 8 of the request, the relevant records were at that date not those of the Department but were in fact those of the NTA. The Department had no standing to do as it did. Equally, although certain records of relevance to these parts of the request were released by the Department to the applicant in the early stages of this Office's review, those records were nonetheless held and controlled by, and obtained from, the NTA at that time.

In response to Ms Lyons' letter of 15 September 2014, in which she said she did not consider it appropriate for this review to consider such records accordingly, the applicant referred me to his June 2014 reply to similar views put to him by Ms Lyons in review reference number 090077.

In that case, the applicant argued that the relevant legislation establishing and commencing the NTA does not provide for the transfer of functions from the Department. It is not part of my remit to consider the validity of the legislation that established the NTA, or otherwise consider if the NTA has remit to carry on the business it is evidently conducting, if this is what the applicant is suggesting. Legislation is deemed valid unless found to be otherwise by the Courts, which is not the case here. Thus, the NTA is now responsible for bus licensing and related matters.

The applicant also said that, in any event, it would not be appropriate to transfer files that were manifestly the subject of a current FOI request. However, I must deal with the situation as it is now. The fact is that the records have been transferred. Notwithstanding, as the applicant put it, that "the Department continues to have full and unfettered access to these records", and that he says he has been told by the NTA that the records are not amenable to FOI through that body (which I do not consider to be correct), it remains that the NTA has held, and controlled, the Department's former Bus Licensing unit records since 2010.

Section 10(1)(a) - are the relevant records held by the Department?
Section 10(1)(a) provides for the refusal of a request by a public body on the basis that the relevant records do not exist or cannot be found by the body after reasonable steps have been taken to look for the records. In the case at hand, I consider that the records of relevance to the above mentioned aspects of the request no longer exist within the Department, given that the records are no longer held by it. Under the circumstances, I find that section 10(1)(a) is applicable to parts 2, 5, 6, 7, and 8 of the request.

Further Electronic Records
However, as outlined to the applicant in June 2014 in relation to case 090077, the Department states that its network holds an "electronic file share", dating from 2001, relating to bus licensing, which is likely to contain records relevant to the above aspects of his request. It seems that this file is essentially a copy of the electronic files held by the Department in relation to the bus licensing function, up to the transfer of that function to the NTA. This "file share" is said to hold over 36,000 files on over 3,400 folders. Thus, it is likely to hold copies of the records sent to the NTA that are of relevance to these aspects of the request. However, the Department only gave consideration to this "file share" in mid-2014, in light of clarification of this Office's position on the records it had obtained from the NTA, which I consider reasonable under the circumstances.

I am not prepared to direct the release of these 36,000 records, without an examination of their contents, for the sole reason that the Department did not consider them previously. Some records could fall outside the scope of the relevant parts of the request. Relevant records could well be exempt under various provisions of the FOI Act, including any of the mandatory exemptions, and are also likely to contain third party information.

The Department contends that to examine and retrieve records relevant to the above aspects of the applicant's request would have implications for the delivery of the Public Transport Regulation Division's work programme and its priority work areas. Essentially, it is claiming that section 10(1)(c) applies to such records. I see no reason for the Department not to rely on section 10(1)(c) in respect of records that were previously not considered by it as relevant to individual aspects of the request. However, in the case at hand, I do not intend to consider whether the Department is justified in its position that section 10(1)(c) is applicable to these electronic records for the reasons cited. This is because it is not apparent to me that the Department can have complied with section 10(2) in respect of the potential application of section 10(1)(c) to these records. As already set out, section 10(2) requires a public body to help, or offer to help, a requester to amend their request so that it becomes more manageable from the body's perspective.

In case 090077, the applicant argued that, because of the injustice he believes would result from the above, the Department should categorise the 36,000 records. He argues that this Office should consider these records to determine whether in fact they are relevant to his request, and mediate between him and the Department to provide for an appropriate release of relevant records.

While acknowledging the applicant's frustration, particularly in light of the part this Office's delays have played in this turn of events, his suggested approach would defeat the purpose of section 10(1)(c). I do not consider it appropriate to impose an administrative burden on the Department that might be otherwise be avoided by the application of that provision of the FOI Act.

Under such circumstances, I consider it appropriate to annul the Department's effective refusal of access to the electronic records of relevance to these aspects of the request. The Department is required to consider these particular aspects of the applicant's request afresh, in accordance with section 8 of the FOI Act. I find accordingly.

Part 4

The Department refused this aspect of the request on the basis that, having conducted electronic searches, no relevant records were found. Essentially, this is a claim that section 10(1)(a) applies.

Ms Lyons' letter of 15 September 2014 told the applicant that, further to internet searches, she was aware that Dun Laoghaire Rathdown County Council (the Council) had been reported as proposing a rapid transit bus service (i.e. the Blueline) in October 2010. I would observe that I would expect relatively few records to have been created in the intervening time between then and 12 November 2010. In any event, the Department said that the NTA had been responsible for the implementation and development of infrastructure projects, like the Blueline proposal, since it was established in 2009. It is the Department's position that it holds no relevant records because the Council would have been expected, in October 2010, to submit any proposals to the NTA, rather than the Department.

This is a reasonable basis for me to accept that the requested records are not held by the Department and thus do not exist within the Department. The applicant has not provided me with any details that suggest I should pursue the matter further. I am satisfied that section 10(1)(a) applies to this element of the request and I find accordingly.

Part 9

As noted earlier, the Department's decision of 20 January 2011 largely pertained to records that were at that stage held and controlled by the NTA. However, this element of the request turns on a factual matter, on which the transfer of the Department's former Bus Licensing functions and records to the NTA in 2010 has no bearing.

The decision stated that the Department had not created any manuals since 2007, and that a copy of the 2007 manual had already been released to the applicant further to his earlier FOI request. I have no reason to dispute such a clear statement of fact, and the applicant has not provided me with any details that might lead me to do so. I am satisfied, and find, that the requested records do not exist and that section 10(1)(a) applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Department's decision in respect of those aspects of the applicant's request that are under the scope of my review. I find that the hard copy (paper) records of relevance to parts 2, 5, 6, 7, and 8 of the request are no longer held by the Department and I am unable to consider such records or otherwise direct their release. However, I annul the Department's effective refusal of electronic records of potential relevance to those elements of the request, and I direct the Department to consider such records afresh. I uphold the Department's refusal of the remaining records, or parts of records, as appropriate.

I would also ask the Department to provide to the applicant, without delay, any records that it agreed to release in the course of this review (whether in full or in part), if it has not done so already.

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.

Peter Tyndall
Information Commissioner