Whether the Department was justified in its decision to refuse the applicant's request for records relating to the Immigrant Investor Programme

23/01/2018

Background

On 1 March 2017, the applicant sought, for the period 2012 to date, (i) records showing certain information relating to persons approved under the Immigrant Investor Programme (IIP) and (ii) records or correspondence between the Independent Evaluation Committee and the Department relating to the IIP

In its decision of 28 April 2017, the Department refused the request under sections 35, 36 and 40 of the FOI Act. It provided some limited background information on the IIP. The applicant sought an internal review of that decision on 9 May 2017, following which the Department provided further limited information concerning the nationalities of the applicants under the IIP but affirmed the original decision to refuse the request. On 1 November 2017, the applicant sought a review by this Office of the Department's decision.

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

 
Scope of Review

This review is concerned solely with whether the Department was justified in refusing the applicant's request for certain information relating to the IIP.

Analysis and Findings

Having accepted the application for review, this Office sought copies of the records to which the Department had refused access and a schedule of those records which clearly indicated the basis on which each record was refused. In response, the Department stated that it was unable to provide a schedule and records, due to the substantial number of records involved. It stated that it has processed 717 IIP applications and that each application contains approximately 120 pages, amounting to some 85,000 pages of documents. It further stated that it was prepared to meet with the applicant to explore what, if any, further information can be provided.

It seems to me that the Department failed to properly consider the applicant's FOI request. It does not appear to have made any effort to ascertain what records are captured by the scope of the request. Indeed, it has given no indication as to what records, if any, it holds in relation to the second part of the request. Furthermore, given the Department's apparent inability to provide this Office with copies of the records that contain the information sought, it is unclear how it might expect to be in a position to release that information if this Office were to direct it to grant the request. It is possible that the Department holds the information captured by the first part of the request electronically and that the relevant information could be readily extracted, in accordance with the provisions of section 17(4), although it did not address this issue when informing this Office that could not provide copies of those records. If it is the case that the information is held electronically, the Department does not appear to have considered whether the request could have been granted in part.

I have considered whether I should simply annul Department's decision on the ground that it has not justified its refusal of the request and direct it to grant the request. However, I am satisfied that it is not appropriate to do so for a number of reasons. Firstly, it is apparent that the release of the information sought would be likely to affect a substantial number of third parties and it would not be appropriate to direct the release of such information without those parties having an opportunity to have their views considered. Secondly, the FOI Act recognises that there are limits on the amount of resources a body should expend in dealing with FOI request (sections 15(1)(c) and 27(12) refer) and the Department has given no indication as to what measures it would have to take to grant the request.

In the circumstances, it seems to me that the most appropriate course of action is to annul the decision of the Department and to direct it to undertake a fresh decision making process in respect of the request. In doing so, it should have regard to the issues I have outlined above, including whether it can process the request without causing a substantial and unreasonable interference with its work and whether the information sought can be readily electronically extracted. It should also determine precisely what records, if any, it holds in respect of the second part of the applicant's request and whether any or all such records can be released.

In the circumstances, I find that the Department has not justified its refusal of the request.

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