This review has been appealed to the High Court.

Whether the Council was justified in its decision to refuse the applicant-™s request for access to records relating to it, including in relation to its property, its title, any covenant or burdens affecting or alleged to affect its land, the compulsory purchase of its land, claims for compensation, and various related legal proceedings under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of its work.

23/01/2019

Background

All references to the applicant in this decision can be taken to refer to the applicant and/or its solicitors, as appropriate. This review has its background in a long running dispute between the applicant and the Council in connection with the applicant's claim for compensation following the compulsory purchase by the Council of lands owned by the applicant in or around 2001 in connection with the construction of the M50 motorway, and included several sets of related proceedings, some of which are ongoing. It appears that following arbitration, the applicant was awarded a significant sum in compensation but that no compensation has been paid to date. 

Since late 2015 the applicant has been attempting to obtain access to certain related records held by the Council under the provisions of the FOI Act. At that time, it made a request for records of all communications held by the Council relating to it, including records in relation to its property, title, any covenant or burdens affecting or alleged to affect its land, claims for compensation and various related legal proceedings. The Council refused that request.

Following a review, I issued a decision on 3 May 2016 wherein I annulled the Council's decision to refuse the request as it appeared to me that the Council had adopted a blanket approach to the request and had not undertaken any substantial consideration of the content of the individual records as required by the FOI Act. While I noted in that decision that there may have been a significant volume of records coming within the scope of the request, I also noted that the Council had not chosen to refuse the request under section 15(1)(c) which essentially allows for the refusal of voluminous requests. I directed the Council to make a fresh decision on the request.

As the Council failed to issue a new decision on the request, the applicant sought a further review by this Office of the deemed refusal of the request. During the course of that review, the Council eventually refused the request under section 15(1)(c). Following further correspondence with this Office, the applicant subsequently withdrew its application for review and submitted an amended request to the Council on 8 February 2017.

The request was for copies of all "all communications, between whomsoever, held by or under the control of [the] Council relating to [the applicant] including, inter alia, its property, its title, any covenant or burdens affecting or alleged to affect its land, any claims for compensation arising from any covenant or burden affecting or alleged to affect its land, its directors, its claim for compensation against [the] Council in respect of its land compulsorily acquired for the M50 motorway, its legal proceedings against [the] Council and its legal proceedings against {named individuals]". The request stated that the applicant was prepared to exclude documents from "Transportation, Environment, Transport Infrastructure Ireland and Consultants and Contractors who worked on the South Eastern Motorway Project and Related Environmental Services Works".

Unfortunately the Council overlooked the request and subsequent requests for updates due to what it described as an administrative error. On 9 April 2018 the applicant sought a review of the Council's deemed refusal of its request. There were further exchanges of correspondence between this Office, the applicant and the Council following which the Council wrote to the applicant on 9 May 2018 and stated that it was required to engage with it on the scope and meaning of the request. It asked the applicant to clarify certain aspects of the request. It added that a preliminary scoping exercise resulted in the identification of 5087 which would comprise only a subset of the overall documentation that would appear to be covered by the request. It offered the applicant an opportunity to provide the clarifications sought or to meet with the Council with a view to carrying out a further scoping exercise to facilitate a revised request for records. It also offered the applicant an opportunity to suggest an alternative way to move forward with the request. On 11 May 2018 the Council provided further information on the sections of the Council most likely to hold relevant records.

Following its consideration of the applicant's response of 6 June 2018, the Council issued its effective position on the request on 13 July 2018, in which it refused the request under section 15(1)(c) on the ground that processing the request would cause substantial and unreasonable interference and disruption with its work. The applicant was dissatisfied with the Council-™s position and on 29 August 2018 it informed this Office that it wished the review to proceed. 

During the course of this review, Ms Swanwick of this Office provided the applicant with the key details of the Council-™s submission, in which it explained why it considered that it was justified in refusing the request under section 15(1)(c), and she informed the applicant of her view that its decision was justified. The applicant indicated in its submission dated 17 October 2018 that it did not agree with Ms Swanwick-™s view. Accordingly, I have decided to conclude this case by way of formal binding decision.

In conducting my review, I have had regard to the relevant correspondence between the Council and the applicant on the request and to correspondence between this Office and both the Council and the applicant on the matter, including the applicant's submissions of 19 September 2018 and 17 October 2018 on the matter. 

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse, under section 15(1)(c) of the FOI Act, the applicant-™s request for records as described in its request of 8 February 2017 and subject to the limitations set out in its letter of 6 June 2018, on the ground that processing the request would cause substantial and unreasonable interference and disruption with the work of the Council.

Preliminary Matters

From the outset, the Council-™s handling of the applicant-™s requests fell significantly below the required standards. Significant delays have arisen for the applicant in its efforts to obtain a final determination on its request for records. These delays could have been avoided if the Council had properly carried out its statutory functions relating to the administration of the FOI Act from the outset. I note that the Council has accepted that it has fallen short in the manner in which it processed the applicant's request and I expect that it will take immediate steps, if it has not already done so, to improve its processing of FOI requests to ensure that similar issues do not arise in the future.

Analysis and Findings

Section 15(1)(c) 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).

In its letter of 13 July 2018 to the applicant that it issued in response to the applicant's letter of 6 June 2018, the Council identified approximately 72 files of potential relevance to the request, held in a variety of locations within the Council. It also explained that its mail system allows for a search of emails from 2006 onwards and that a number of searches, using various, relevant search terms, uncovered 9,291 emails of potential relevance.

In its submission to this Office, the Council stated that it estimated that it would take approximately 262 hours to examine the various files and records. It estimated that a review of the hard copy files would require the involvement of six staff members (one from each section)  and would involve an estimated 108 hours of manpower, while an examination of the emails located would require an additional 154 hours of manpower (assuming an examination rate of 60 emails per hour). It added that any relevant records identified would then have to be examined to determine whether they might be subject to legal professional privilege.

As I have outlined above, Ms Swanwick of this Office provided the applicant with the key details of the Council-™s submission during the course of the review. In response, the applicant argued that it had done everything it could to reduce the scope of the request. It argued that the records in the possession of the Council were created by the Council and that it should now be in a position to deal with its own administrative cost in making the documentation available to it.

In my view, the applicant's request is extremely broad, having regard to the time span and the subject matter involved, regardless of the exclusions contained in the original request or the exclusions contained in the applicant's letter of 6 June 2018. In my view, the applicant's offer to narrow the scope of the request as set out in its letter of 6 June 2018 did little or nothing to reduce the amount of time and resources that would be required to process the request.

Section 15(1)(c) is an explicit acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. In the circumstances, having regard to the Council-™s explanation of the number of records concerned and the time and resources that would be required to retrieve and examine those records, I accept the Council-™s contention that processing the request would cause a substantial and unreasonable interference with, and disruption of, its work, including disruption of work in a particular functional area.  I find, therefore, that the Council was justified in deciding that section 15(1)(c) should apply.

However, that is not the end of the matter. Section 15(4) provides that an FOI 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 set out in the background section of this decision, there were several exchanges of correspondence between the parties concerning the scope of the request.  Having regard to those exchanges, I am satisfied that the Council offered assistance to the applicant to refine its request and provided examples of how this might be done.  In response, the applicant failed to provide a narrower time-frame, did not sufficiently clarify the records sought, did not exclude records held in any of the departments/sections identified, and continued to seek records pertaining to four legal proceedings. In the circumstances, I am satisfied that the Council has fulfilled the requirements under section 15(4).

In conclusion, therefore, I find that the Council was justified in its decision to refuse the applicant-™s request for records under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of its work.

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