Case Number: 160096

Whether the Department was justified in its decision to refuse access to records concerning the review of Local Government arrangements in Cork city and county on the basis of section 29(1) and section 30(1)(a) of the FOI Act

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

On 18 September 2015, the applicant made an FOI request to the Department seeking access to:

"hard copies of all manual and electronic records in whatever form, including but not limited to letters, faxes, e-mails and texts held by your department to include records formally held by the Cork Local Government Committee and its constituent members in relation to the review of Local Government arrangements in Cork city and county, including the boundary of Cork city, the local government areas and the local authorities for such areas and in relation to the matters the subject of the Report of the Cork Local Government Committee, titled "Local Government Arrangements in Cork", dated September 2015. The aforementioned records should include drafts of reports together with the following:

a) Any communications between you and the Cork Local Government Committee

b) Any communications between the Cork Local Government Committee and officials of the Department of the Environment, Community and Local Government

c) Any communications between the Cork Local Government Committee and interested parties

d) Agendas and Minutes of all Meetings of the Cork Local Government Committee and of any of its constituent members including those listed on the website of the Cork Local Government Committee."

The Department refused access to all records relevant to this request on the basis of section 29(1) and section 30(1)(a) of the FOI Act in its decision of 16 October 2015. This decision was affirmed by the Department in its internal review decision of 30 November 2015.

The applicant wrote to this Office on 26 February 2016 seeking a review of the Department's decision. A submission has been received from the Department. The applicant informed this Office that he would not be making a submission as his application provided comprehensive details for the reasons for his appeal. According to the Department, it examined in excess of 600 records and identified 174 records which appear to be relevant to this review. It contends that due to the large volume of records to be examined it was not possible to finalise a definite schedule of records within the scope of this review in the time allowed. Having checked the records submitted to this Office, I consider that the review should now be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the Department's submission, the application from the applicant and to correspondence between the applicant and the Department. I have had regard to the provisions of the FOI Act and the records provided to this Office for the purposes of this review.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access to the requested records under sections 29(1) and 30(1)(a) of the FOI Act.

Analysis and Findings

Section 22
It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records in this case was justified.

Section 15(1)(c)
In its submission to this Office dated 7 April 2016, the Department stated that this request was considered to be voluminous - section 15(1)(c) of the Act refers. Section 15(1)(c) permits an FOI body to refuse a request for records 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 (including disruption of work in a particular functional area) of the body.

However, under section 15(4), a body is not entitled to refuse a request under section 15(1)(c) unless it has assisted or offered to assist the requester to amend the request so that it no longer falls within the parameters of section 15(1)(c). In this case, the Department stated that it formed the view that all records relating to the Cork local government review were entitled to protection under section 29(1) and 30(1)(a) of the FOI Act and therefore no discussion took place with the requester to seek any clarification on his request. As the Department did not offer to assist the applicant to amend his request it is clear that it failed to comply with the provisions of section 15(4) of the Act and accordingly, I find that it was not entitled to refuse the request under section 15(1)(c).

Section 29(1) and section 30(1)(a)
The Department refused access to the requested records on the basis of section 29(1) and section 30(1)(a) of the Act. Under section 29(1) access may be refused to a record which contains matter relating to the deliberative processes of an FOI body. Section 30(1)(a) protects certain records relating to the functions of FOI bodies. Both of these exemptions are harm based. An FOI body relying on section 29(1) should identify both the deliberative processes concerned and any matter in particular records which relates to these processes. An FOI body must also show that release of the records would be contrary to the public interest. Section 30(1)(a) requires an FOI body to identify the potential harm in relation to the relevant function specified that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

The Department adopted a "blanket" approach by claiming that section 29(1) and section 30(1)(a) applies to all the records within the scope of this review. It also asserted that release would be contrary to the public interest in the case of all records. It appears it did not examine the documents on a record by record basis. To date, it seems that the Department has not completed the compilation of the schedule of records relevant to this review. It also stated that the records requested at (c) and (d) above are not under the control of the Department but did not address this issue in the original decision or internal review decision. Included in the records provided to this Office are administrative type records such as emails concerning arrangements for meetings etc. and various reports which are publicly available on the internet and which, on the face of it, do not appear to be exempt on the basis of either section 29(1) or section 30(1)(a). As discussed above, if the Department takes the view that the request, as submitted, is particularly voluminous, it is open to it to consider its options under sections 15(1)(c) and 15(4). It seems that the Department has not undertaken any substantial consideration of the content of the individual records. I consider that it is not appropriate or valid for the Commissioner to make a first instance decision or to take the same "blanket" approach as adopted by the Department in this case. Therefore, taking account of section 22(12)(b) and following careful consideration, I find that the decision of the Department should be annulled. The effect of this is that the Department is required to make a new, first instance, decision in respect of the applicant's original request.

Decision

Having carried out a review under section 22(2) of the FOI 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.

Elizabeth Dolan
Senior Investigator