Case Number: 160072

Whether the Department was justified in refusing to release further information relating to the applicant's request for access to certain legal aid claim forms on the grounds that the records sought do not exist in the format requested and that the work involved in responding to the request would cause a substantial and unreasonable interference with the work of the relevant Division of the Department

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

On 31 July 2015, the applicant made a request to the Department for records of all LA 1(B) barrister fee claim forms submitted pursuant to the Criminal Legal Aid Non-Statutory District Court (Counsel) Scheme, since 23 October 2009.

By email dated 6 August 2015, the Department sought clarification on the information sought. It sought confirmation of whether the applicant was seeking a copy of every individual form received or the number of forms received each year and the total paid. It further stated that a request for a copy of every individual form received "could be subject to refusal in line with Section 15 (volume of records) and/or Section 37 (personal information of someone other than the requester)".

By email of 10 August 2015, the applicant clarified that he was seeking:

• the number of forms received each year,
• the total paid out,
• the name and location of the court that granted each legal aid certificate in respect of which the forms were submitted (as recorded at section 2 of the forms), and
• the criminal charges in respect of which those certificates were assigned (as recorded at section 4).

On 1 October 2015, the Department provided details of the number of cases and total expenditure for each year but refused the remainder of his request under section 15(1)(a) of the FOI Act on the ground that the information sought does not exist in the format requested.

The applicant sought an internal review of that decision on 2 November 2015. On 2 December 2015, the Department affirmed its original decision to refuse the remainder of the request under section 15(1)(a). It further relied upon section 15(1)(c) of the Act on the ground that the work involved in responding to the request would cause a substantial and unreasonable interference with the work of the relevant Division of the Department. On 17 February 2016, the applicant sought a review by this Office of the Department's refusal to release further information relating to his request.

I have decided to conclude this review by way of a formal binding decision. In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above and to the correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in refusing to release further information relating to barrister fee claim forms submitted to the Department on the grounds that the records sought do not exist in the format requested and that the work involved in responding to the request would cause a substantial and unreasonable interference with the work of the relevant Division of the Department.

Analysis and Findings

Section 15(1)(a)
As both the applicant and the Department are aware, the FOI Act does not confer a general right of access to information; rather it confers a right of access to records containing the information sought. Therefore, a request for information should generally be treated as a request for access to records containing the information sought. The Department refused part of the request on the ground that the record does not exist in the format sought by the applicant. Section 15(1)(a) of the Act provides that access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

In its submission to this Office, the Department explained that the LA 1(B) forms are submitted directly to its Financial Shared Services where they are stored in hard format but that the information sought, i.e. details of the relevant courts and the criminal charges, are not recorded on its financial management system and would have to be retrieved from the forms manually. It seems to me that the Department interpreted the applicant's clarification of his request as set out in his email of 10 August 2015 as confirmation that he was not seeking access to individual forms but that he was seeking the information in an alternative format, presumably in a single record. Accordingly, it refused the request on the ground that no such record exists and the Department is not required, under the Act, to create such a record.

If my understanding of the Department's position is correct, then the Department was mistaken. The applicant simply clarified the nature of the information sought and the nature of the information not required. He did not state that he was not seeking access to the individual forms. Indeed, he went on to outline his understanding that legal aid certificates are granted in exceptional and infrequent circumstances and that there would not be a great volume of such forms. He went on to suggest that if he was mistaken, the Department might advise and he could review his request for information accordingly. In any event, the applicant clarified in his request for internal review that he did not prescribe any particular format in his earlier email and he went on to state categorically that his request for the relevant information must be construed as a request for access to all forms. In the circumstances, I am satisfied that records containing the information sought are, indeed, held by the Department. Accordingly, I find that the Department was not justified in refusing the request under section 15(1)(a).

Section 15(1)(c)
Section 15(1)(c) of the FOI Act permits an FOI body to refuse a request for records where 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 (including disruption of work in a particular functional area) of the FOI body concerned.

However, section 15(4) of the FOI Act provides that FOI bodies are not entitled to rely on section 15(1)(c) unless they have assisted or offered to assist the requester to amend the request so that it no longer falls within section 15(1)(c). As I have outlined above, the Department sought clarification from the applicant on the information he was seeking in its email of 6 August 2015 and explained that a request for a copy of every individual form could be subject to refusal in line with Section 15 and/or Section 37. However, it did not, in my view, assist or offer to assist the applicant to amend the request such that it would no longer fall within section 15(1)(c). Rather, it sought clarification as to the nature of the information sought. The applicant interpreted the Department's email, correctly in my view, as simply a request for clarification as to the nature of the information sought. Indeed, the Department stated in its email that "the time frame for processing the request has been suspended while clarification is awaited".

Furthermore, as I have also outlined above, in his response the applicant clarified the nature of the information sought and suggested that if he was mistaken as to the volume of records involved, the Department might advise and he could review his request for information accordingly. The Department did not do so. Furthermore, the Department did not rely on section 15(1)(c) in its original decision.

In his application for an internal review of that decision, the applicant drew the Department's attention to his previous request for an opportunity to refine his request so as to avoid refusal under section 15(1)(c). The Department did not address this point with the applicant again prior to completing its internal review. Moreover, in response to a query from this Office in relation to the Department's engagement with the applicant under section 15(4), the Department simply stated that, because it considered that the request as originally stated might be subject to refusal under section 15(1)(c), it had, as noted above, sought clarification from the applicant as to what he was seeking.

In the circumstances outlined above, I am not satisfied that the Department provided assistance or offered assistance to the applicant in accordance with section 15(4). Accordingly, I find that the Department was not justified in its decision to refuse the request under section 15(1)(c).

The effect of my findings on the applicability of sections 15(1)(a) and 15(1)(c) in this case is that the Department's decision must be annulled and it must make a fresh, first instance, decision in respect of the applicant's request, in accordance with the provisions of the FOI Act. In making that decision, if the Department wishes to rely on section 15(1)(c), it must have regard to its obligations under section 15(4).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department in this case. I direct the Department to undertake a fresh decision-making process in respect of the request, as set out above, and to inform the applicant of the outcome of its decision, in accordance with section 13 of the FOI Act.

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