Whether the Department was justified under section 15(1)(a) and section 30(1)(c) of the FOI Act in refusing access to records concerning Illness and Injury Benefit systems and forms

19 February 2020

Background

In a request dated 26 July 2018, the applicant sought access to -�information on all meetings, documentation, decisions and systems in relation to the development of new Illness and Injury Benefit Claim Forms and associated computer and e-certificate systems-�; to include information on minutes of meetings between the Department and several representative parties and other public bodies, and details on policy and implementation plans of the Department and associated costs.

In a decision dated 30 August 2018, the Department refused the request under section 30(1)(c) (Functions and negotiations of FOI bodies) and section 36(1)(c) (Commercial Sensitivity) of the FOI Act. Following a request for an internal review, the Department affirmed its original decision on 8 October 2018. Although this was not initially made clear to the applicant, the Department listed all the records in four schedules under -�1, 2, 3 and 3A-�.

On 8 April 2019 the applicant applied to this Office for a review of the decision the Department.

During the review the Department granted access in full and in part to additional records. Also during the review, the applicant very helpfully informed the Office that he was no longer seeking a review of certain records. He stated that he was refining his application to the records in schedules 3 and 3A only of the Department-�s decision.

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 submissions made by the FOI body in support of its decision and to contacts between the applicant and the Investigator.  I have also examined the records. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether the Department was justified to refuse the applicant's request for access to further records under section 15(1)(a) and to the remaining records within the scope of the review (i.e. the refined application to which the applicant has agreed) under section 30(1)(c) of the FOI Act.

Preliminary matters

The review took a lot longer than I would have wished. For a start, the request as worded was a broad one that captured a large number of records. In hindsight, it might have helped if the Department had attempted to clarify with the applicant what information in the records he wished to have. It seems to me that some documentation falling within the scope of the request might not be what he intended to seek. In any event, the Department-�s original decision making gave so little information to explain to the applicant and to this Office why it was relying on the various exemptions that the Investigator had to pursue more than the usual level of requests for information and clarification. In fairness to the Department, it did reconsider parts of its decision in the course of this review with the result that a substantial number of records was released to the applicant relatively recently.

The applicant-�s request initially involved 211 records comprising more than 2,000 pages. The Department told this Office that it did not provide the applicant with a copy of the schedules which lists the records and the exemptions applied. I note that other than referring to the exemptions and to the public interest, the Department did not explain in much detail the reasons for its decision. While the Department-�s decision provided very little detail about the exemptions it had applied, it appears that it gave no consideration to sections 15(1)(c) and 15(4) of the FOI Act. These administrative refusal provisions clearly envisage that where, by reason of the nature or number of the records sought, retrieval and examination of them would cause substantial and unreasonable interference with or disruption of the work of the FOI body, an offer of assistance to the requester to amend the request must be made and, ultimately, refusal of the request may be an option.  That said, I consider that there is an onus on the requester to identify what records are actually being sought (section 12(1)(b) refers) and to co-operate with efforts made to refine the request and make it more manageable. Clearly, the legislature did not envisage that disproportionate resources would have to be used in order to deal with FOI requests. In any event, the applicant, at review stage substantially narrowed the scope of the review so that only a relatively small number of records remains.

Analysis and Findings

Section 15(1)(a) -� Refusal on administrative grounds

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records.

In his application to this Office the applicant queried whether efforts had been made by the Department to access details of how the newly developed systems impacted on individual contracted General Practitioners (GPs). In support of this part of his request the applicant queried a statement he said was made by the Department in relation to the matter. He said that if the Department is aware of improvements and efficiencies for all parties involved, including GPs, it is not acceptable for it to say that this information is not available to it. The applicant-�s views were brought to the Department-�s attention in the context of whether additional records were held.

However, in the first instance, this part of the applicant-�s request appears to be a request for information rather than for access to records that are held. The FOI Act provides for a right of access to records held by FOI bodies (section 11). Requests for information, as opposed to requests for records, are not valid requests under the Act. The FOI Act does not generally provide a mechanism for answering questions or providing clarification of the sort sought by the applicant, except to the extent that such questions etc. can reasonably be inferred to be a request for a record containing the requested information or clarification. Neither is it possible to broaden an FOI request to seek further records beyond those covered by the original request.

In its submission the Department said that it -�never conducted any examination or analysis of a potential impact at the level of any individually contracted GP.  Therefore, the records sought could and do not exist-�.

I do not consider that this Office has any basis on which to find that the Department holds further records falling within the scope of the request. If the applicant has identified specific additional records which he believes are held by the Department, it is open to him to consider making a fresh request for access to them. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps.

Having regard to the submission of the Department, I find that section 15(1)(a) of the FOI Act applies.

Section 30 - functions and negotiations of FOI bodies

The records to be dealt with in my view are in schedule 3 (records 3, 4, 5, 6 and 8) and schedule 3A (records 1 and 2).

Section 30(1)(c) provides for the refusal of a request if the body considers that access to the record sought could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Where the body relies on section 30(1)(c), it must also consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request (section 30(2) refers). 

This provision is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test and records relating to past, present or future negotiations may be protected under section 30(1)(c). However, previous decisions of this Office have found that FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

The records relate mainly to agreements and communications about processes and practical arrangements concerning the rollout of the new systems, including a medical certification scheme. The Department said that the introduction of the new scheme necessitated its engagement in negotiations with GP representatives. The Department provided some detail about the particular circumstances of negotiations that I cannot describe here. It said that these negotiations were concluded in December 2018. It also said that in January 2019 it was involved in a wider consultation exercise under the Public Service Pay and Pensions Act 2017, and that at the date of the FOI request -�negotiations were at a critical stage-�.

The Department said that release of the records in schedules 3 and 3A could influence the way the Department normally conducts its negotiations and has the potential to negatively impact on and/or undermine future negotiations.

I am prepared to accept that the Department has identified negotiations associated with the roll out of the project although it has not pointed to any parts of the records that are of particular relevance to its discussions with GPs or their representatives. I fully accept that previous and anticipated future negotiations were and, in all likelihood, will be difficult.  However, the records for the most part cover details of an online medical certification process and a signed Framework Agreement between the GPs representative and the Department. In any event, I cannot find, and the Department has not identified, any parts of the records that could reasonably be expected to disclose its negotiating positions.

The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise".

In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is: - any proposal for settlement or compromise; any indications of 'fall-back' positions; information created for the purpose of negotiations;  the FOI body-�s negotiating strategy;  an opening position with a view to further negotiation.

Having considered the matter carefully in the context of the Department-�s submissions and the content of the records, I find that that none of the records reveal positions taken or to be taken by the Department in its negotiations or procedures etc. used or followed for the purposes of negotiations being conducted by the Department.

Accordingly, I find that the Department was not justified in refusing access to the records under section 30(1)(c) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision.

I affirm its decision to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. 

I annul the Department-�s decision under section 30(1)(c) of the Act. I direct the Department to release the following records:

• Schedule 3 -� records 3, 4, 5, 6 and 8
• Schedule 3A -  records 1 and 2

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