Whether the Council was justified in its decision to refuse access to additional records relating to the preparation and adoption of the Mahon LAP and Variation No. 11 under section 10(1)(c) of the FOI Act

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

Background

Give the issues arising in this case, it is worth setting out details of the relevant exchanges of correspondence between the applicant and the Council relating to this review. On 3 September 2014, the applicant sought access to "information held by the Council relevant to the preparation and adoption of the Mahon LAP and Variation No. 11". On 29 September 2014, the Council informed the applicant that it was extending the period for processing the request under section 9 of the FOI Act in view of the number of records involved. It also suggested a meeting "to discuss the scope of the enquiry with a view to narrowing the focus which might enable [the decision maker] to meet [the applicant's] requirements before then" By letter dated 8 October 2014, the applicant stated that she would be pleased to meet with the Council's decision maker if he felt it would assist. She also asked the Council to provide certain documents urgently. While the Council provided the relevant documents on 17 October 2014, it appears that no such meeting took place.

On 23 October 2014 the Council informed the applicant that it had decided to grant the request. It granted access to all but one (already publicly available) of the 122 records it had identified as coming within the scope of the request.

The applicant states that on inspection of the records, it became apparent to her that she had not received all relevant records. Following further contacts with the Council, additional records were identified and released. On 27 November 2014, the applicant again contacted the Council to express her view that she had not received all relevant records. On 4 December 2014, the Council stated that it would undertake a search of email records relating to certain individuals. On 8 December 2014, the applicant replied and stated that "the terms of the search should seek to recover the records that we have requested in our FOI. I believe that this should include contact between these parties referred to below but not limited to this."

By letter dated 12 December 2014, the Council's original decision maker informed the applicant that he had dealt with the original request and made a decision based on the information provided and available to him at the time. He stated that the Council's IS Department had undertaken the search as indicated in his email of 4 December 2014 and that the search resulted in such a voluminous amount of email correspondence that the Council did not have the resources to process it without impacting seriously on the everyday work of the planning department. He further stated that had this been known at the outset of the request, the Council would have had the opportunity to refuse the request on the grounds of it being too voluminous. He noted that the applicant had not formally appealed the Council's decision and that the period for appeal had expired. He suggested, in the circumstances, that the best course of action was for the applicant to submit a fresh request.

Further correspondence between the parties ensued. By email dated 10 February 2015, the applicant stated that she did not understand why the decision would need to be appealed as it was a decision to grant what had been requested. In response, the Council's stated that while the decision was a decision to grant the request, it remained of the view that the information released was sufficient to meet the terms of the request.

On 2 March 2015, the applicant sought an internal review of the Council's decision. The Council accepted the request for internal review and on 1 April 2015, the internal reviewer affirmed the Council's original decision and stated that "the request was interpreted to cover the main records involved." The internal reviewer added that "If the matter was to be interpreted to read all records, as you state was your intention, then the original decision maker would have had no option but to refuse your request on administrative grounds under Section 15 [sic] of the act". On 30 September 2015, the applicant sought a review of the Council's decision by this Office.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the parties, to their submissions to this Office and to the provisions of the FOI Act.

It should be noted 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

This review is concerned with whether the Council was justified in its decision to refuse access to further records relating to the preparation and adoption of the "Mahon LAP and Variation No. 11".

Findings

It seems to me that the key issue arising in this case was whether the Council was justified in interpreting the applicant's request in the manner in which it did. As set out in its internal review decision, the Council interpreted the request to cover what it considered to be the main records involved. In my view, it had no reasonable basis for taking such a narrow interpretation of the request. The applicant simply sought "Information held by the Council relevant to the preparation and adoption of the Mahon LAP and Variation No. 11". Indeed, the applicant even offered to meet the Council as soon as it sought to extend the period for considering her original request and had the Council any concerns as to the scope of the request or the potential volume of records at issue, it could have done so at that stage.

It is clear that the Council had specific concerns as to the potential interference with or disruption to its work had it been required to take a broader interpretation of the request and as it rightly pointed out, section 10(1)(c) of the Act allows a public body to refuse a request where the body considers that 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 body. However the application of the administrative refusal is not unconditional. Section 10(2) provides that a 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 as to amend the request for re-submission such that it no longer falls within that section.

While the Council submits that it offered to assist the applicant in its letter of 29 September 2014, I note that the applicant was amenable to the meeting suggested but that it does not appear to have taken place. Rather, the Council made a decision on the request as it had been made, purporting to grant the request. It did not decide to refuse the request under section 10(1)(c). In such circumstances, I am satisfied that the Council cannot be considered to have complied with the requirements of section 10(2) in this case. While I can understand the Council's concern that it should not be required to process a request where to do so would cause a substantial and unreasonable interference with or disruption of its other work, the fact remains that the Council did not properly seek to assist or offer to assist the applicant in amending the request.

Accordingly, I find that the Council is not entitled to rely upon the provisions of section 10(1)(c) as a justification for refusing to grant access to additional records coming within the scope of the applicant's request and that its decision should be annulled. Furthermore, cognisant of the potential number of records coming within the scope of the applicant's request, I am satisfied that the appropriate course of action in this case is to direct the Council to undertake a fresh decision making process in relation to the applicant's request. The effect of this finding is that the Council should consider the request afresh and make a new, first instance, decision. The applicant would have a right to internal review and to a review by this Office if she is not satisfied with that decision. In making its decision, the Council must comply with the statutory requirements of the FOI Act. For the avoidance of doubt, this new decision making process should be carried out pursuant to the provisions of the Freedom of Information Acts 1997 and 2003.

Decision

Having carried out a review under section 34(2) of the Act, I hereby annul the decision of the Council and direct it to carry out a fresh decision making process on the request.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator