Whether the Courts Service was justified in refusing access to details of upgradings, promotions and allowances of various staff between 1996 and 2003 under section 15(1)(c) of the FOI Act

26/03/2018

Background

On 4 April 2017 the applicant sought seven categories of information as follows:

Discussions between management and trade unions representing staff on the transition from the Department of Justice to the Courts Service in the years 1996 -2003.

Between 1st January 1996 - 31st December 2003 upgradings/allowances/promotions offered to staff who were members of the CPSU, PSEU, IMPACT and the AHCPS on the basis of seniority.

Promotions, upgrades and allowances were given to staff represented by the CPSU, PSEU, IMPACT and the AHCPS between the 1st January 1996 to 31st December 2003 on the basis of seniority.

Promotions, upgrades and allowances were given to staff represented by CPSU, PSEU, IMPACT and the AHCPS between 1st January 1996 to 31st December 2003 following interview/examination/competition (internal and external). 

The number and grades of the staff promoted, granted allowances and upgraded from 1st January 1996 to 31st December 2003 on the basis of seniority.

The number and grades of staff promoted, granted allowances and up-graded from 1st January 1996 to 31st December 2003 following interview/examination/competition (internal and external).

The number and grades of staff promoted, granted allowances and up-graded from 1st January 1996 to 31st December 2003 who remained in situ in their then current posts. 

On 4 May 2017 the Courts Service partially granted the request.  One record was released in relation to category 1 and access to records relating to the remaining 6 categories was refused on the basis of section 15(1)(c) i.e. that granting the request would, by reason of the number of 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. 

The applicant sought an internal review of that decision and on 23 May 2017 the Courts Service upheld the original decision.  The internal reviewer stated that there was no system of recording staff movements in a single place for the years requested and that the human resources unit does not maintain records of who is or is not a member of any particular trade union.  He went on to say that a wide number of files would have to be consulted to extract the information sought by the applicant.  He estimated that around 65 files would have to be consulted and that, in his view, even if this exercise was carried out that the information would be exempt on the basis of sections 30 (functions and negotiations of FOI bodies) and 37 (personal information) of the FOI Act.  The applicant applied for a review to this Office on 8 June 2017.

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the Courts Service and the applicant as described above. I have also had regard to the correspondence between this Office and both the Courts Service and the applicant on the matter. 

Scope of the Review

During the course of this review, the Courts Service released a further nine records to the applicant relating to the first category of her request.  The Courts Service states that all relevant records held by it have now been released to the applicant.  The Investigator assigned to this case asked the applicant if she was satisfied that she had now received all relevant records in relation to this category of her request and stated that if the applicant did not respond, that she would proceed on the basis that the applicant was so satisfied.  The applicant did not respond to this email and so I am proceeding on the basis that all records identified by the Courts Service as being within the scope of category one of the request have been released in full. 

Pre-Commencement Records

Categories two to seven of the applicant's request concern records covering the time period 1 January 1996 to 31 December 2003. 

Section 11(5) of the FOI Act provides for a limited right of access to records that were created before the commencement of the FOI Act (21 April 1998 in the case of the Courts Service). I see no reason, based on the applicant's arguments, to consider that she would have any right of access to any records within the scope of the request that were created before 21 April 1998.

This review is therefore concerned solely with whether or not the Courts Service was justified in refusing access to 6 categories of information requested by the applicant on the basis of section 15(1)(c) of the FOI Act in relation to the time period of 21 April 1998 to 31 December 2003. 

This Office's Approach To Directing Release of Parts of Records

Before I make my findings in this case, it is useful to summarise this Office's position on issues arising.

Requests for Records (Sections 11 and 12 of the FOI Act) vs. Requests for Information/Questions

The FOI Act provides for a right of access to records held by FOI bodies (section 11). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

However, requests for information, as opposed to requests for records, are not valid requests under the Act. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

Requirements in the FOI Act to Create Records (Section 17 of the FOI Act)

The FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices.

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act.
 

Granting Access to Records With Exempt Information Redacted (Section 18)

Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large.

Analysis & Findings

Section 15(1)(c)

The Courts Service relied on section 15(1)(c) of the FOI Act in relation to categories two to six of the applicant's request.  Section 15(1)(c) states that granting the request would, by reason of the number 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. 

Section 15(1)(c) is subject to section 15(4) of the FOI Act.  That section states that a public body shall not refuse a request that falls within section 15(1)(c) unless the requester has been assisted, or offered assistance, to amend their request for re-submission so that it no longer falls within section 15(1)(c).  In this case, the FOI decision maker met with the applicant on 2 August 2017 to try to determine the records that the applicant wanted access to.  I am aware that the applicant had submitted subsequent FOI requests to the Courts Service.  In this instance, that meeting took place after the original decision and the internal review decision the subject of this review were made.  I have no further evidence that the applicant was offered assistance prior to the making of the original decision and the internal review decision in this case.  On that basis, I find that section 15(4) was not complied with and that, therefore, section 15(1)(c) cannot be relied upon.  That is not the end of the matter however, as it seems to me that section 15(1)(a) is also relevant here. 
 

Section 15(1)(a)

Section 15(1)(a) states that a head may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 

As set out above, the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement in certain circumstances to extract records or existing information held on electronic devices.  The Courts Service notes that personnel records prior to 2004 are not held electronically and that there is no facility to enable a search to be conducted electronically. 

A manual search would have to be conducted in order to extract the information sought by the applicant.  The Courts Service estimated that approximately 65 files would have to be consulted in order to extract some of this information.  It noted that a system of recording staff movements in a single location was not in place in the human resources department for the years that the information was requested and that it would have to be extracted from manual files.  It was estimated that it would take a minimum of 12 staff hours to locate all the relevant files; an additional 15 or 16 staff hours to examine the files for information within the scope of the request and an estimated additional 5 staff hours to redact and copy the relevant files.  It was noted that the files would have to be heavily redacted as they would contain a considerable amount of personal information.  It was argued that the staff resources necessary to carry out this work would have a substantial disruption to the work of the human resources unit but that, due to the confidential nature of the information, it was not possible to allocate this work to staff from other areas. 

I note that the applicant says that she does not want access to the personal information of staff, although she does request certain names.  However, given the nature of the information sought, I am satisfied that the extracting of information from such records does more than simply provide anonymised data in this case since the individuals could be identifiable from other circumstances known locally within the Courts Service. 

In addition, the Act provides for a right of access to records held. It also places an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis). Even if it may be reasonably straightforward to identify the files on which the information may be held in this case, this does not change the fact that there exists no discrete records containing that information. Addressing this part of the request would essentially require the processing of records to create records that did not previously exist. Noting that there is no express requirement in the FOI Act to extract data from records held in hard copy (as opposed to the requirement to extract data held electronically), it seems to me that the Oireachtas did not intend that FOI bodies should be required to do so. That said, FOI bodies should take a reasonable and proportionate approach in determining whether to grant access to parts of records in order to address requests for information, as opposed to requests for specific, identified, records.

In my view, the collation of this information from a variety of manual files would, in effect, amount to the creation of a new record.  The Courts Service is not required to create this record and as it does not exist at present I am satisfied that section 15(1)(a) applies to the information requested by the applicant. 

Decision

I hereby vary the the decision of the Courts Service.  I affirm refusal of the applicant's request but do so on the basis of section 15(1)(a) of the FOI Act rather than section 15(1)(c). 

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