Case Number:160037

Whether UCD was justified in its decision to refuse the applicant's request for records held as a collection of documents relating to the Progressive Democrats under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with the work of UCD Archives

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

Background

This review has its background in a collection of records held by UCD Archives relating to the Progressive Democrats since 2009. The applicant made a request to UCD on 17 November 2015 for access to "all Progressive Democrats documents in [its] possession, other than government meetings, law enforcement and security, confidential and commercially sensitive information, matters affecting national security and data protected personal information".

On 3 December 2015, UCD wrote to the applicant to inform him that it was considering refusal of the request under section 15(1)(c) of the FOI Act. It referred to previous correspondence with the applicant which had set out UCD's position as to why it could not provide access to the records and offered to assist the applicant to amend his request. In his response, the applicant stated that he was willing to accept access to records on a phased basis. He stated his view that it was reasonable to expect UCD to start opening what he understood to be 150 boxes of records with immediate effect and to catalogue and make available a minimum of 30 boxes per month.

On 15 December 2015, UCD decided to refuse the request under section 15(1)(c). The applicant sought an internal review of that decision on the same date. In its internal review decision of 14 January 2016, UCD affirmed its original decision to refuse the request under section 15(1)(c). On 24 January 2016, the applicant sought a review by this Office of UCD's decision.

In conducting this review, I have had regard to the communications between the applicant and UCD as set out above. I have also had regard to communications between this Office and both the applicant and UCD on the matter.

Scope of Review

This review is solely concerned with whether UCD was justified in refusing the applicant's request under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of its work.

Preliminary Matter

It is important to note at the outset the limitations on the role of this Office in this case. The applicant has drawn attention to the fact that the record collection sought was handed over to UCD Archives in 2009 and at the time, UCD's then Principal Archivist indicated that cataloguing the papers would take two years, after which the majority of the collection would be available to researchers. However, I note that in a letter of 17 November 2015 to the applicant, UCD explained that the cataloguing of the papers had not commenced and that the cataloguing of the collection was not currently a strategic priority for UCD. While it is clearly disappointing for the applicant that the cataloguing has not taken place to date, the fact remains that it has not. It is not within the remit of this Office to adjudicate on how FOI bodies carry out their functions generally, or to investigate complaints against public bodies. As I have indicated above, this review is confined to whether UCD was justified, in accordance with the provisions of the FOI Act, in refusing the applicant's request.

Analysis and Findings

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 submissions to this Office, UCD stated that collection of records coming within the scope of the applicant's request consists of 189 archive boxes of records and approximately 1,000 electronic documents. It stated that there is no index, schedule of records, or system of labelling of the boxes in which the records are contained that would enable it to search them in chronological sequence. On foot of enquiries from this Office, UCD stated that it opened a sample of 15 boxes, five boxes in sequence and a further 10 random boxes. Each box contained roughly between 250 and 500 records being a mixture of documents in files and loose items, such as booklets. It stated that the contents of a box appear to have a rough subject arrangement but that the material is not chronological and that there is no obvious place to begin a search for documents related to a particular subject or year.

On the matter of the electronic records held, UCD stated that there are electronic files of approximately 1000 records held in UCD Archive's cloud storage, comprising mostly word documents, text files, XSL files, and some database files. It stated that there are no naming conventions but are mostly a mixture of dates, names or subjects

During the course of this review, UCD argued that an examination of the records would require the cataloguing of the full collection before any search and retrieval could take place. I do not accept that the fact that the records have not been catalogued, of itself, provides a basis for refusing requests for access to the records. Any refusal must be based on the provisions of the FOI Act. Nevertheless, I fully accept that each of the records would have to be examined to determine whether a right of access exists under the FOI Act. I note, for example, that many of the records at issue would have been created before 21 April 1998 and that a right of access to such records does not generally exist. Furthermore, it is very likely that one or more of the other exemptions in the Act would have to be considered before a decision could be taken on release of records. Accordingly, having regard to the volume of records that would have to be examined to process the applicant's request, to the manner in which those records are currently held by UCD, and to the need to examine the records for possible release, I accept UCD's contention that granting the request would cause a substantial and unreasonable interference with, and disruption of, work in UCD Archives.

In accepting this contention, I should add that I would not, as a general proposition, accept that an FOI body can expect to rely upon section 15(1)(c) to protect inefficient record-keeping. However, the circumstances of this case are, in my view, entirely different. The records at issue are not records that are held or created by UCD in the course of the performance of its core functions and that have been retained in an inefficient manner. Rather, they were handed over to UCD as a single collection in an uncatalogued state. Furthermore, it seems to me that it is entirely a matter for UCD to determine how it might prioritise its cataloguing requirements.

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 UCD made such an offer in the letter it issued to the applicant on 3 December 2015. In making that offer, it noted that UCD Communications provided the applicant with information available from other sources to assist his research. UCD did not accept that the applicant's offer to accept access to records on a phased basis was sufficient to remove it from the parameters of section 15(1)(c). I agree. Given the volume of records involved, UCD would still have been required to assign a significant resource over a period of time to process the request in the manner suggested. I should add that I note the applicant's offers to further narrow the scope of his request in correspondence with this Office. However, it seems to me that the suggestions made would not result in any reasonable reduction in the resources that would be required to locate the specified records, given the manner in which they are held. Accordingly, I find that UCD was justified, having complied with the provisions of section 15(4), in refusing the applicant's request under section 15(1)(c) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of UCD in this case.

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.

Stephen Rafferty,
Senior Investigator