Whether the Department was justified in refusing access to records relating to the publication and drafting of the Official Languages (Amendment) Bill, 2019, from 1 May 2017 to the date of the request

30 June 2020

Background

In a request dated 13 December 2019, the applicant sought access to records relating to the publication and drafting of the Official Languages (Amendment) Bill, 2019, from 1 May 2017 to the date of the request.  The Department engaged with the applicant in an effort to refine the request, but this was not successful. The Department determined that the suggested amendments would not reduce the amount of work to be done by the Department to respond to the request.  In a decision dated 24 December 2019, the Department refused the request on the basis that sections 15(1)(c), 28(2), 29(1) and 30(1)(b) of the FOI Act applied.  On 17 January 2020, the applicant sought an internal review of the decision, and the relevant fee was paid on 5 February 2020.  The Department affirmed its refusal of the request on 26 February 2020.  On 28 February 2020, the applicant applied to this Office for a review of the Department’s decision; she paid the statutory appeal fee on 10 March 2020.

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 applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Department was justified, under section 15(1)(c ) of the Act, in refusing access to records relating to the publication and drafting of the Official Languages (Amendment) Bill 2019, from 1 May 2017 to 13 December 2019. 

Analysis and Findings

In its decisions, the Department refused the request on the basis that a number of provisions of the FOI Act applied, including section 15(1)(c).  In accordance with our normal procedures, this Office sought a submission from the Department in support of its position.  The Department confirmed that it is now relying solely on section 15(1)(c) as its basis for refusal.

Section 15(1)(c)- Voluminous Request

Section 15(1)(c) provides that a request may be refused 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).

The Department, in its submission, set out the engagement it had with the applicant with a view to amending the request so that it no longer fell within section 15(1)(c). It provided a copy of relevant correspondence.  A number of suggestions were made by the applicant and the Department responded that these suggested amendments would still cause a substantial interference with or disruption of work of the division.  It also invited the applicant to identify what records she particularly wanted and in response, she essentially restated the original request. She confirmed that she wished to have access to documents that relate to the drafting and publication of the Bill including the amendments to the Bill and any correspondence between Departments relating to this. In the circumstances, I am satisfied that the Department has complied with the requirements of section 15(4). 

The Department set out details of where the records were stored and the initial steps taken to establish the number or records covered by the request, which would have to be examined.  It said that a search of email accounts and shared folders in the division responsible for the Official Languages Bill 2019 identified over 3,500 records which would have to be examined.  It provided an estimate of the staff hours that would be required. It went on to say that this did not take into account paper records which would have to be searched, the need to contact other sections of the Department which might also have relevant records, and the potential need to contact other bodies in relation to any records identified which may pertain to them. It also said that, while relevant search terms could be used to assist in identifying records, it would not be possible to extract records electronically, and that such records would have to be extracted and examined by a member of staff in the division.

The Department stated that the division dealing with the Official Languages Bill has a staff of five and listed a number of other functions of the Department relating to Irish language policy for which it is also responsible.  It stated that the work required to respond to the FOI request would significantly hamper the division in completing its work. 

In my experience, the drafting of legislation generates very large numbers of records and substantial volumes of emails and other correspondence can arise even where proposed changes to the various drafts are relatively minor. I have no reason to doubt the Department’s position on the work involved in this case.

Having regard to the above, I accept that processing the applicant's FOI request would result in a substantial and unreasonable interference with or disruption to the work of the division and I find that section 15(1)(c) applies. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department and find that section 15(1)(c) applies.

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