Case Number: 150433

Whether the Council was justified in its decision to refuse access to records relating to any financial arrangements between Dublin City Council and [LM] Limited on the basis that section 15(1)(c) of the FOI Act applied

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In its FOI request of 22 April 2015, the applicant sought access to all records relating to any financial arrangements between the Council and entities controlled by it and [LM] Limited [in connection with any litigation, arbitration or other dispute resolution proceedings in which [LM] Limited and/or [KP] Limited are or were a party to the proceedings.] The applicant also submitted this request to Ballymun Regeneration Limited (BRL). On 11 June 2015, the Council wrote to the applicant and informed it that BRL is wholly owned by the Council and any FOI requests that pertain to BRL are coordinated by the Council. On 11 June 2015 also, the Council issued a composite decision on both requests in which it refused the requests on the basis that section 15(1)(c) of the FOI Act applied. It offered the applicant the opportunity to narrow its request in accordance with section 15(4) and proposed an alternative wording of the request. On 18 June 2015, the applicant submitted an internal review request. The Council's internal review decision of 13 July 2015 affirmed its original decision, and also provided copies of the records encompassed by the revised request as proposed by the Council on 11 June 2015. The applicant submitted an application for review to this Office, which was received on 11 December 2015.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Council, and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Council to refuse access to the information sought was justified on the basis that section 15(1)(c) of the FOI Act applied as processing of the request would cause a substantial and unreasonable interference to the work of the Council.

Preliminary Matters

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Handling of the request
The applicant raised concerns about the handling of the request, in particular the issue of whether relevant records were held separately by the Council and had not been identified. The Investigator raised this with the Council. The Council stated that all files and records were created and held by BRL. It also stated that the Managing Directors of BRL were also Assistant Chief Executives in the Council, and that any records or files created by them, in relation to BRL, were done as part of BRL. I note that the Council's decision of 11 June 2015 did not issue within the timeframe provided for in the FOI Act. I also note that while the Council refused the request on the grounds that section 15(1)(c) applied, it did not provide the applicant with any information as to the scale of information held, other than to say that the number of records involved was such that it would not be reasonably possible to examine them without causing substantial disruption to the Council's work.
Analysis and Findings

Section 15(1)(c)
The Council refused the applicant's request under section 15(1)(c) of the FOI Act. Section 15(1)(c) of the FOI Act provides that a request for records 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 records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the FOI body concerned, including the disruption of work in a particular functional area.

In its application to this Office, the applicant queried how the Council was in a position to identify and provide certain records while claiming that section 15(1)(c) applied to the request. Given that the Council official who made the original decision was also the Company Secretary of BRL, I consider it reasonable that he would have a familiarity with the files, records and issues pertaining to BRL.

In a submission to this Office, the Council stated that the subject matter of the request relates to pyrite being found in the stone-fill used in the construction of a housing scheme in Ballymun. The Council's view is that all records dating from the discovery of pyrite in 2007 through to the completion of the phased work programmes in 2014 would fall within the scope of the request. According to the Council, there are over 2,000 electronic folders, comprising more than 15,000 individual files. The Council also stated that there are 19 "storage" boxes of hard copy files. The Council said that there may be some duplication between the hard copy and electronic files. It provided an outline schedule of the contents of the "storage" boxes, which comprise over 60 separate files. It also provided this Office with a copy of the electronic files on a USB stick, together with a screenprint of the relevant directories. This Office's IT Unit informed me that there was 116 GB of information on the USB stick. While I have not been able to independently confirm the number of electronic files, it is clear that they are substantial. In any event, I have no reason to doubt the information provided by the Council.

The Council also provided an outline of the status of BRL. It stated that BRL is a company wholly owned by the Council, which commenced winding down its operations in 2012 and ceased day to day activities in mid 2015. By April 2015, when the request was received, the staffing complement of the company was six persons and this was reduced further in June 2015, when staff who had been seconded from the Council were reassigned to roles within the Council, retaining an oversight role in relation to residual issues to do with BRL. Other staff who had been involved in the matter the subject of this request were no longer working for BRL by April 2015. On the basis of scale of work required to examine this number of records and the very limited resources available, the Council decided to refuse the request under section 15(1)(c) on the grounds that the examination of these records would cause a substantial and unreasonable interference and disruption of work in the Council. I agree that this was a reasonable position to adopt in the circumstances.

Under section 15(4), an FOI body cannot rely on section 15(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 the parameters of section 15(1)(c). I am satisfied that the Council did so in the letter it issued to the applicant on 11 June 2015. Accordingly, I find that the Council was justified in refusing the applicant's request under section 15(1)(c). The applicant did not take up the offer of assistance.

In view of my finding that section 15(1)(c) applies, other issues raised by the applicant, such as whether all relevant records had been identified and the basis for certain assertions by the Council, do not fall to be considered in this decision.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council and find that section 15(1)(c) of the FOI Act applies to the information sought.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator