Whether the Department was justified in refusing the applicant's request for certain information relating to removal orders made by the Garda National Immigration Bureau (GNIB) in the last three years under sections 15(1)(c), 29(1), 30(1), 32(1) and 37(1) of the FOI Act

08/10/2018

Background

Solicitors for the applicant made a four-part request to the Department on 21 May 2018 for 
1. Documents pertaining to all applications for removal orders made by GNIB in the last three years.
2. Documents relating to all corresponding decisions of the Irish Naturalisation and Immigration Service (INIS) on foot of such applications by GNIB
3. Documents relating to all corresponding decisions of the INIS Review Panel 
4. All policy documents created by the Department of Justice relating to the EC (Free Movement of Workers (sic)) Regulations 2015.

On 31 May 2018, the Department refused the applicant-™s request, citing sections 29(1), 30(1), 32(1) and 37(1) of the FOI Act. The applicant sought an internal reviews of that decision on 1 June 2018. In its internal review decision of 15 June 2018, the Department affirmed its original decision to refuse the request on the same grounds. It also sought to rely on section 15(1)(c) to refuse the request on the ground that granting the request would place an unreasonable burden on the work of the relevant division. On 29 June 2018 the applicant sought a review by this Office of the Department's decision.
In conducting this review I have had regard to the communications between the Department and the applicant's solicitors on the matter, and to the correspondence between this Office and both the Department and the applicant's solicitors.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse the applicant's request for certain information relating to removal orders made by GNIB in the last three years under sections 15(1)(c), 29(1), 30(1), 32(1) and 37(1) of the FOI Act. 

Analysis and Findings

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to refuse to release the records sought was justified. 
While the Department initially refused the request under sections 29(1) (deliberations of public bodies), 30(1) (functions and negotiations of public bodies), 32(1) (law enforcement and public safety), and 37(1) (personal information), it would appear from its internal review decision that the original decision maker did not examine any relevant records coming within the scope of the applicant's request and consider the applicability of the various exemptions having regard to the nature and contents of those records. I say this because the internal reviewer sought to rely on section 15(1)(c) to refuse the request on the ground that the information sought is not recorded in such a manner which would enable the cases to be easily identified and that the relevant division would have to trawl through a database under the relevant headings which, he argued, would take an inordinate amount of resources.
During the course of this review, Ms Whelan of this Office contacted the Department and informed it of her view that the Department had not properly considered the request in accordance with the provisions of the Act. She noted that the Department had not identified any relevant records, nor had it explained how the exemptions claimed applied to the records at issue, nor had it demonstrated that it had considered the public interest test in respect of sections 29(1), 30(1) or 32(1) of the Act. She invited the Department to make submissions in relation to her view. To date, the Department has made no submissions.

In circumstances where this Office has no knowledge of the nature or contents of the records coming within the scope of the request, and in the absence of any substantive argument from the Department as to why the relevant exemptions apply, it is simply not possible to determine if the Department's refusal of the request under any or all of sections 29, 30, 32 or 37 was justified. On the applicability of section 37, for example, the Department did not address the applicant's arguments that the records sought could be released in an anonymised format. In the circumstances, I find that the Department has not justified its refusal of the applicant's request under sections 29(1), 30(1), 32(1) or 37(1).

On the matter of the applicability of section 15(1)(c), that section allows a body to refuse a request where it considers that granting the request would, by reason of the number or nature of the records concerned, require the retrieval and examination of such number of records 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, section 15(4) provides that a body shall not refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester concerned in an endeavour so as to amend the request for re-submission such that it no longer falls to be refused on that ground. The Department made no offer of assistance to the applicant in this case. This, of itself, is sufficient for the Department's refusal of the request under section 15(1)(c) to fail.
In conclusion, therefore, I find that the Department has not justified its decision to refuse the applicant's request. However, for a variety of reasons, I do not consider it appropriate to simply direct the Department to grant the request.

In the first instance, I do not know if the Department holds the records that contain the information sought. On this point, the applicant should note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter. It would appear that the Department holds certain relevant information coming within the scope of the applicant's request in a database. However, I have no knowledge of whether the Department can extract the information sought by taking reasonable steps as defined in the Act.

Secondly, it is almost certain that any records the Department holds coming within the scope of the request will contain personal information relating to third parties. I have no knowledge of whether it is practicable for the Department to release any such records without disclosing personal information relating to those third parties.

Finally, section 15(1)(c) is an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. In the absence of more detailed information as to the volume of records involved or the amount of resources that would be required to process the request, I do not consider it appropriate to simply direct the Department to grant the request.
In the circumstances, I am satisfied that the appropriate course of action to take is to annul the decision and to direct the Department to make a new, first instance decision on the applicant's request. I appreciate that remitting the case back to the Department causes further delay for the applicant. While this is unfortunate, I do not believe that there is an alternative appropriate course of action to take in this instance. I would also point out that if the Department wishes to continue to rely on section 15(1)(c), it must have regard to its obligations under section 15(4). 

Finally, I would like to state that the manner in which the Department processed the applicant's request in this case was wholly unacceptable, particularly given that it has been subject to the provisions of FOI legislation for the past 20 years and that it is fully aware of its obligations under the Act. This Office will be writing separately to the Secretary General in relation to its handling of this case.

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 to refuse the applicant's request for certain information relating to removal orders made by GNIB in the last three years and I direct the Department to conduct a new decision-making process on the FOI request. 

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