Whether the Department was justified in refusing access to the National Broadband Contract under section 15(1)(c) of the FOI Act

8 May 2020

Background

On 19 November 2019, the applicant made an FOI request to the Department seeking access to the National Broadband Contract. On 17 December 2019, the Department issued a decision and refused access to the record on the ground that it was exempt from release under section 15(1)(c) of the FOI Act. On 6 January 2020, the applicant applied for an internal review. The Department issued an internal review decision on 28 January 2020, in which it affirmed its decision under section 15(1)(c). On 21 February 2020, the applicant applied to this Office for a review of the Department's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties.

Scope of this Review

The question for me is whether the Department was justified in refusing access to the record under section 15(1)(c) of the FOI Act.

Analysis and Findings

Section 15(1)(c) - Refusal on administrative grounds

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request where in the opinion of the head, 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 work (including disruption of work in a particular functional area) of the FOI body concerned.

Section 15(4) of the FOI Act provides that an FOI body shall not refuse a request pursuant to section 15(1)(c) unless it has assisted, or offered to assist, the requester in an effort to amend the request for re-submission so that it no longer falls within section 15(1)(c). As an FOI body cannot rely on section 15(1)(c) unless it has assisted, or offered to assist, the requester as required by section 15(4), this is the first issue which should be considered in any case in which an FOI body is relying on section 15(1)(c).

During this review, this Office asked the Department to point to when it had offered the applicant assistance under section 15(4). In response, the Department provided us with a file-note dated 17 December 2019, which said: “I have considered the provisions of section 15(4) and as this request relates to a single record, i.e. the National Broadband Plan Contract, it is not possible to narrow the scope [of] this request. I have provided assistance by way of advising the requester in this letter that the record will be published in due course”.

The Department’s decision letter of 17 December 2019 states that the contract is voluminous, with over 3,600 pages. It says that the nature of the material reflects the technical, legal and commercial complexity of the project and there is a significant commercial sensitivity to part of the record. It submits that the level of undertaking required to prepare this large number of pages for release under the FOI Act is such that it would cause “a substantial and unreasonable interference with or disruption of work” of the National Broadband Division. The Department also says that it intends to publish the full contract, redacted for commercial sensitivity, in due course. It submits that it is not an appropriate use of resources to duplicate the preparations for this. As of now, the Department has not published the contract. It has advised this Office that work is progressing on that and they hope to have a date for publication soon.

The FOI Act is silent on the precise nature or level of assistance to be offered under section 15(4). However, this Office considers that the mere offer to amend a request so that it no longer falls to be refused is of itself not sufficient for the purposes of compliance. This is given the general requirement on FOI bodies under section 11(2) of the FOI Act to give reasonable assistance to requesters in relation to the making of requests. The level or nature of the assistance to be provided will depend on the particular facts of the case and will often depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances. In that regard, requesters are often well placed to offer suggestions as to a more focused request, based on their knowledge of the type of information they wish to access. Equally, an FOI body is best placed to explain the nature and extent of the records and offer practical suggestions as to how the request may be narrowed.

Section 15(1)(c) is an explicit acknowledgment 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 often limited resources. However, section 15(4) envisages that the FOI body and the requester should, between them, attempt to amend the request.

I accept that the circumstances of this case meant that it was difficult for the Department to offer meaningful assistance. However, having regard to the fact that section 15(4) is a mandatory provision, I consider that there was an onus on it to at least explore with the requester possible options around narrowing the scope. Although only one record is at issue, it is clear from the table of the clause and schedule titles which the Department provided to this Office that the contract has many different parts. I am not satisfied that the Department has complied with section 15(4) of the FOI Act. It seems to me that, even if it took the view that refining the request was not likely to be a viable option, the option chosen by the Department – to disregard the requirements of section 15(4) on the basis that a redacted version of the contract would be available in due course or otherwise – was not properly available to it. While I appreciate that the Department is being proactive in preparing to publish some of the contract, this does not change the position as regards section 15(4). 

Having said this, I recognise that the Department may be in a position, following meaningful engagement with the applicant under section 15(4), to justify the section 15(1)(c) exemption having regard to all the circumstances. I fully accept that the Department is entitled to have regard to the impact that processing an FOI request such as this would have on its work.

Finally, I should note that the applicant submits that as a single record was requested, section 15(1)(c) is not engaged. Section 15(1)(c) refers to the nature of the records and the information, as well as the number of records. I therefore do not agree that section 15(1)(c) cannot in principle apply to this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the Department's decision on the basis that it has not properly complied with section 15(4) of the FOI Act. I direct the Department to undertake a fresh consideration of the applicant's FOI request and, if the applicant requires this following assistance or the offer of assistance under section 15(4), to take a new, first instance, decision.

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