Case Number: 160389

Whether the Council was justified in refusing to release records relating to the facilities to be provided to commercial fishermen at Greystones Harbour on the ground that granting the request would cause a substantial and unreasonable interference with the work of the Council

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 follows a previous decision of this Office in relation to the applicant's request for records held by Wicklow County Council pertaining to the facilities existing, or to be provided, for commercial fishermen at Greystones Harbour, from 1 August 2004 to 18 March 2016 (case number 160268). On 28 July 2016, this Office annulled the decision of the Council to refuse the applicant's request as voluminous under section 15(1)(c) of the FOI Act, in view of its failure to assist or offer to assist the applicant to amend the request so that it no longer fell to be refused as voluminous, as required by section 15(4) of the Act. In the decision in case 160268, I directed the Council to make a new, first instance, decision on the applicant's request.

Following my decision, the Council engaged in an exchange of emails with the applicant in an effort to assist him to narrow the scope of his request and the applicant submitted a revised request on 16 August 2016. In the revised request, the applicant stated that he was only concerned with records relating to the facilities to be provided for commercial fishermen and no longer wanted access to records relating to facilities which existed prior to the redevelopment of the Harbour. The Council issued a decision on the 24 August 2016, refusing the applicant's revised request under 15(1)(c) of the FOI Act, as it considered that the number of records requiring retrieval and examination to process the amended request remained voluminous and would cause a substantial and unreasonable interference with its work. Following internal review, the Council affirmed this decision. On 15 September 2016, the applicant applied to this Office for a review of the Council's decision.

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 Council and the applicant as set out above and to the correspondence between this Office and both the Council and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in refusing the applicant's request for photocopies of all records held by the Council in relation to the facilities to be provided for commercial fishermen at Greystones Harbour from 1 August 2004 to 18 March 2016, on the ground that granting the request would cause a substantial and unreasonable interference with the work of the Council, including disruption of a particular functional area of the Council.

Analysis and Findings

Section 15(1)(c) of the FOI Act allows an FOI body to refuse to grant a request if it 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, its work, including disruption of work in a particular functional area. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c).

As I have outlined above, following my decision in the case 160268, the Council and the applicant engaged in an exchange of emails with a view to narrowing the scope of his request. The applicant submitted a refined request on 16 August 2016, and clarified that he was not interested in the facilities which existed prior to the redevelopment of the Harbour and accordingly information relating to the letting of moorings and fishermen's huts prior to the redevelopment could be taken outside the scope of the request. He also clarified that the reference to facilities included landings, moorings, electricity and water services, and should be interpreted as including maps of the area in which the facilities were to be provided in the redeveloped Harbour. The applicant also informed the Council that he was not seeking records held by any third parties and he suggested that the information sought by him is contained in the minutes of the Wicklow County Council and Greystones Town Council meetings and other formally minuted meetings dealing with the redevelopment.

In its email of the 17 August 2016, the Council thanked the applicant for these clarifications but expressed the concern that they did not greatly reduce the scope of the request given the 12 year time frame covered, and asked the applicant to reduce the time frame. The applicant replied that it was not possible to temporally reduce the scope of the request.

Based on the contents of the email exchange between the Council and the applicant, and the suggestions offered by the Council in terms of how the applicant could reduce the scope of the request so that it no longer fell to be refused under section 15(1)(c), I am satisfied that the Council offered reasonable assistance to the applicant in refining his request as required by section 15(4).

However, that is not the end of the matter as I must now consider whether the Council was justified in deciding to refuse the applicant's revised request under section 15(1)(c). In its decision on the applicant's request, the Council stated it was refusing the revised request on the basis that processing the request would cause a substantial and unreasonable interference with the work of the Greystones Harbour Project Section. The Council commented that given the 12 year period covered by the request, and the number of the records involved, there would be an inordinate amount of time involved in the search, retrieval, scheduling, and copying of the records requested.

In a submission to this Office the Council provided more detail in relation to the number and location of the records at issue. It stated that the Greystones Harbour Project is a joint venture between the Council and a private development company which is based on a Public Private Partnership arrangement. The Council stated that it identified 18 boxes, a full filling cabinet of records, and approximately 10,000 electronic records, including emails, as being potentially relevant to request. These records are stored in the office of the Director of Service for Greystones Harbour, who is the sole staff member of the Special Projects Section which has complete responsibility for the Greystones Harbour Project. In order to process the applicant's request the Council stated that the sole staff member of the Special Projects Section would have to retrieve and examine all the records held in relation to the Greystones Harbour Project, which would cause a significant disruption of the work of Special Projects Office as there would be no other staff member to carry out duties in relation to the Greystones Harbour Project.

While the applicant in his refined request stated that he assumed information sought is continued in the minutes of the meetings of Wicklow County Council and Greystones Town Council and other formally minuted meetings dealing, the Council was of the view that the request could not be restricted to these specific categories of records considering that the applicant also stated that his request also included maps of the area in which the facilities were to be provided in the redeveloped Harbour and these type of records would not be found in formal minutes of meetings. In my view, this was an interpretation that the Council was entitled to make given the wording of the refined request and the statement that the requester specifically sought maps of the area in which the facilities were to be provided.

In its submission to this Office, the Council also stated that the private development company engaged in the Greystones Harbour Project and nine consultants engaged in the project also hold potentially relevant records. These records included email correspondence with the Council about the Greystones Harbour Project, drawings and minutes of meetings, and the Council would need to contact the private development company and each of the consultants in order to retrieve the records held by them on behalf of the Council. The Council estimated that it would take a week to contact the private partners and consultants and prepare a schedule of relevant records held by them on behalf of the Council, and several more weeks for the records to be retrieved and examined by the sole staff member in the Special Projects Office.

The applicant in his email of 16 August 2016, stated that the request was for records held by the Council as an FOI body and the request was not being made of any "third party". While the applicant, by referring to records held by third parties, may have intended to take the records held by the private development company and consultants outside the scope of the request, it is not clear if this was in fact the intention of the applicant. In these circumstances, the Council was justified in including the records held by the private development company and consultants, as these records were being held on behalf of the Council.

However, even if the records held by third parties were excluded from the scope of the request the Council would still be justified, in my view, in refusing the request under section 15(1)(c) on account of the significant number of potentially relevant records held in the Special Projects Office. Of particular significance in coming to the conclusion that the request was voluminous is the fact that the applicant was seeking access to all records relating to a range of matters. For example, the request included all records relating to facilities including landings, moorings, electricity and water services, and maps of the area in which the facilities were to be provided in the redeveloped Harbour. Another determining factor is the time frame of the request, the applicant sought records over a 12 year period from 1 August 2004 to 18 March 2016, and the significant number of records pertaining to the redevelopment of the Harbour that would have been generated during this time as the redevelopment work progressed.

Accordingly, having regard to the volume of records that would have to be examined to process the applicant's request and the considerable time frame of the request, I accept the Council's contention that granting the request would cause a substantial and unreasonable interference with, and disruption of, work in the Council, and more particularly the functional area with responsibility for the Greystones Harbour Project. I find therefore that the Council was justified in its decision to refuse the request under section 15(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council 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