Whether the Council was justified in refusing access to records concerning Bray Swimming Pool Sports & Leisure Centre Limited (trading as Shoreline Limited) (the Company) on the basis of section 10(1)(c) of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This case has a considerable history which I do not propose to recite in full here. The factual background can be found in previous decisions of this Office (case numbers 110161 and 140287 refer) and in the judgement of Mr. Justice Cross in Westwood Club Limited v The Information Commissioner and Bray Town Council (Notice Party) [2014] IEHC 375.

Briefly, the current review stems from a request made by the applicant on 31 May 2011 for "whatever records Bray County Council [sic] holds in relation to Bray Swimming Pool Sports & Leisure Centre Ltd. This should include any records held [by the Council] as shareholders of the company in relation to the breakdown of it's income and expenditure figures for the years 2008 and 2009". Following the judgement of the High Court in the case referred to above, the Commissioner remitted the matter back to the Council on 5 December 2014 (case number 140287) with a direction that a fresh decision making process be undertaken. This review is concerned with the decision given as a result of that process.

On 18 December, 2014 the Council told the applicant that there may be up to 5,000 records relating to the Company and that processing the request in its current format would impose a significant burden on administrative staff. An indicative schedule of records was provided to the applicant with a request that the scope be reduced. There followed an exchange of correspondence between the parties after which the applicant said that while he would prioritise categories of records, it was not possible to reduce the scope of the request in the absence of a complete list of all records held. A decision was made by the Council on 13 March 2015 refusing the applicant's request on the basis of section 10(1)(c) of the FOI Act. Following the applicant's application for internal review, the Council's internal review decision of 23 April 2015 upheld that refusal. On 18 June 2015, the applicant sought a review by this Office of the Council's refusal of his request.

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.

Intervention by this Office

The Council advised this Office on 29 July 2015 that, based on its examination of the files, it estimated that there were a total of 6,000 records and that it would take approximately 480 hours to prepare a schedule of all documents. On the face of it, this would appear to be a situation where section 10(1)(c) of the FOI Act would normally apply. This section requires that, subject to section 10(2) which requires that assistance be offered to amend the request, a public body may refuse a request which requires retrieval of such a number of records so as to cause substantial and unreasonable interference with or disruption to its other work. However, given the history of this case, this Office sought to engage with the parties to ascertain if a workable solution could be achieved. Both parties agreed to engage with this Office and I am pleased to say that this resulted in a narrowed scope.

Scope of Review

As recently as 12 November 2015, the applicant considerably refined and narrowed the scope of his request. His request is now for the following records:

• Detailed copies of the monthly profit and loss accounts for 2008 and 2009.
• Minutes of the board of directors meetings for 2008 and 2009.
• Details on membership numbers for 2008 and 2009.
• Copy of the contract between the Council and Bray Swimming Pool Sports and Leisure Centre Ltd.

 

The Council indicated that it has no objection to the narrowed request being remitted.

Findings

In cases where it is clear that a public body has not identified and considered records covered by the review, it is normally the practice of the Commissioner to annul the decision, or part of it, and to require the public body to make a new decision. This Office would not generally have sought or examined such records and the FOI Act envisages that the first instance decision be taken by the public body which is in a position to assess the content and apply any exemptions where appropriate. The new decision is then notified to the requester by the public body after proper consideration, including notification of affected third parties or compliance with other requirements of the Act. As the scope has just been narrowed following the parties engagement with this Office, the Council has not yet considered the relevant records. In order to preserve the rights of the applicant to an internal review and review by this Office, it seems to me that the best course is to annul the Council's decision in respect of section 10(1)(c) and direct a fresh decision making process.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Council's decision to refuse the request. I direct that the Council undertakes a fresh decision making process on the narrowed request detailed above and informs the applicant of the outcome in accordance with section 8 of the Act. The effect of this is that the Council is required to make a new, first instance, decision.

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 that 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.

Elizabeth Dolan
Senior Investigator