Whether Revenue was justified in its decision to extend the period for consideration of the applicant’s FOI request under section 14 of the Act

2 August 2019

Background

In a request dated 8 February 2019, the applicant sought access to all documentation issued to and from the Revenue Commissioners involved in the transposition/implementation process of IORP II (a new EU Directive on the activities and supervision of institutions for occupational retirement provision). On 6 March 2019, Revenue informed the applicant that it was necessary to extend the period for consideration of his request, pursuant to section 14 of the FOI Act, and that he could expect a decision on his request on or before 5 April 2019. On the same day the applicant sought a review by this Office of Revenue’s decision to extend the time for considering the request.

I understand that Revenue issued its decision on the applicant’s request on 27 March 2019. The substantive decision is not the subject of this review.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between Revenue and the applicant outlined above and to correspondence between this Office and both Revenue and the applicant on the matter.

Scope of Review

This review is concerned solely with whether Revenue’s decision to extend the deadline for considering the applicant’s request was in accordance with the provisions of section 14 of the Act.

Analysis and Findings

Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, section 14(1) provides that a body may extend the period for consideration of a request by up to four further weeks in certain circumstances, including where the request relates to such number of records that compliance with the four week period is not reasonably possible.

Section 14(2) provides that where a period is extended the body must, before the expiry of the four week period prescribed in section 13, notify the requester of the extension, the period of the extension, and the reasons for the extension.

In this case, while Revenue informed the applicant of its decision to extend the period for considering his request within the required time-frame, it failed to provide reasons for the extension.

In its submission to this Office, Revenue provided details of the process undertaken in considering the applicant’s request. It stated that the decision maker in the relevant Division with responsibility for tax issues relating to IORP II identified 30 records, incorporating 278 pages, falling wholly or partially within the parameters of the applicant’s request.

The decision maker stated that he searched all locations where he felt there was a possibility that records relating to the request might be held, including asking another Division to search for records. He stated that this approach involved a certain amount of duplication where the same record is held under a number of headings such as the minutes of meetings relating to a number of different issues.

He stated that it was necessary to examine records which, on the face of it, would not be expected to fall within the request. He stated that in addition to the transposition and implementation of IORP II there are a number of pension related matters that are currently being considered under the National Pensions Framework and that it was necessary to check if any of the requested records were to be found in material relating to those matters.

The decision maker further stated that the records located included correspondence between Revenue and a number of other public bodies and that he liaised separately with his counterparts in each of those bodies prior to replying to the applicant.

The decision maker explained that when he received the request he carried out a thorough search of his records which indicated that he would need to consider about 260 e-mails, many of which had attachments. He added, however, that he had not anticipated the amount of time he would have to spend on other work priorities at the time in relation to drafting legislative amendments for inclusion in the Brexit Omnibus Bill. He stated that having regard to the number of record he had to review and his unavailability due to other work priorities, it became clear that he would not be able to meet the four week deadline for issuing a decision and that he decided to extend the timeframe for considering the request.

As I have outlined above, to apply the extension the request must relate to such number of records that compliance with the four week period is not reasonably possible. The Act provides no guidance on the number of records that might be involved before an extension can be appropriately applied. As such, each case must be considered on its merits based on the particular facts and circumstances. Nevertheless, the provision is clear that a decision to extend the period must be based on the number of records to which the request relates.

It is evident from Revenue’s submission to this Office that the decision maker was diligent in his efforts to meet the competing work priorities he faced at the time. While I acknowledge the challenge of balancing competing priorities, the provisions of section 14 are very specific and do not allow for the extension of the period for consideration of a request because of other work priorities.

In my view, Revenue has provided insufficient evidence to support its claim that the request related to such number of records that compliance with the four week period was not reasonably possible. I find it difficult to accept that the fact that the decision maker had to examine in the region of 260 records is, of itself, a sufficient ground for extending the period for consideration of

the request. For example, Revenue’s submission contains no information as to the size or specific nature of such records. In essence, it appears that the key issue was the challenge the decision maker faced in meeting competing, time bound, work priorities. As I have already stated, this is not an appropriate basis for extending the period.

Accordingly, while my findings in this case can have no tangible benefit for the applicant given that Revenue has already issued its decision on his request, I find, with some reluctance, that Revenue was not justified in extending the period for consideration of the request under section 14 of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Revenue’s decision to extend the period for consideration of the applicant’s request under section 14 of the Act 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