Whether the Department was justified, under section 10(1)(c) of the FOI Act, in refusing the applicant's request for access to records due to the fact that the Department had previously supplied the same records to the applicant.

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty (authorised by the Information Commissioner to conduct this review).

Background

The applicant made an FOI request through his solicitors to the Irish Naturalisation and Immigration Service of the Department on 13 February 2014 for all records relating to him held by the Department. On 26 February 2014, the Department refused the request under section 10(1)(c) of the FOI Act. The applicant requested an internal review of this decision on 3 March 2014. In its internal review decision of 1 April 2014, the Department upheld its original decision to refuse access to the requested records. The applicant was not satisfied with this and applied to this Office for a review of the Department's decision on 13 June 2014.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office, to the applicant's communications with the Department and this Office, and to the provisions of the FOI Act.

Scope of the Review

This review is concerned with whether or not the Department was justified, under section 10(1)(c) of the FOI Act, in its decision to refuse access to records held by it relating to the applicant.

Analysis and Findings

The Department relied on section 10(1)(c) of the FOI Act to refuse access to the requested records. 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 work of the public body concerned. The Department's argument is that all relevant correspondence should be in the possession of the applicant's previous legal representatives and that it is not obliged to issue more than one copy of a file. Section 10(1)(c) does not provide for the refusal of a request on the ground that the records sought have been released previously.

Furthermore, where a public body wishes to refuse a request under section 10(1)(c) it must consider the applicability of section 10(2) before doing so. Section 10(2) provides that a public body shall not refuse a request under section 10(1)(c) unless it has assisted, or offered to assist, the requester concerned in an endeavour so to amend the request so that it no longer falls within the parameters of section 10(1)(c). There is no reference, either in correspondence with the applicant or with this Office, of any attempt made by the Department to assist the applicant to amend the request so that it would no longer fall to be refused under section 10(1)(c). The applicant's legal representatives and the Department's FOI Liaison Officer have both confirmed to this Office that no such attempt was made.

As stated above, the FOI Act provides that a public body cannot rely on section 10(1)(c) where it has not complied with the requirements of section 10(2) of the FOI Act. As both the applicant and the Department have confirmed that section 10(2) has not been complied with, it is my view that the decision of the Department should be annulled and I find accordingly. The effect of this is that the Department 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 Department's decision to refuse the request on the grounds of section 10(1)(c). 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