Whether the Department was justified in refusing the applicant’s request for records of advice received relating to the novel coronavirus 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
12 August 2020
Background
In a request dated 2 April 2020, the applicant sought access to the following records for the period 1 December 2019 to 31 March 2020:
- All advice received from the HSE, the National Public Health Emergency Team, the HSPC, the CMO and other health officials in relation to the issues raised by the novel coronavirus detected in China in December 2019 and the measures that would have to be taken in Ireland to prevent infections and treat any who contracted the virus in Ireland.
- All advice on the same topic sent to the Minister of Health.
On 3 April 2020, the Department contacted the applicant and asked if he would consider deferring his request until a later date, due to the unprecedented circumstances in which the Department was operating. In reply, the applicant said he would like to proceed with his request and was happy to discuss tailoring his request if that would help.
On 7 May 2020, the applicant sought an internal review of the deemed refusal of his request as he did not receive a decision within the statutory time-frame. On 27 May 2020, the Department issued its internal review decision in which it refused the request under section 15(1)(c) of the Act which provides for the refusal of a request if granting the request would cause a substantial and unreasonable interference or disruption of the work of the FOI body. On 27 June 2020, the applicant sought a review by this Office 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 correspondence between the Department and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is concerned solely with whether the Department was justified in its decision to refuse the applicant's request under section 15(1)(c) of the FOI Act.
Analysis and Findings
Section 15(1)(c) provides that an FOI body may 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 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 body.
However, section 15(4) of the Act provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.
During the course of the review, Mr Crowley of this Office asked the Department to clarify whether it had complied with the requirement under section 15(4) to assist, or offer to assist, the applicant in amending his request.
In response, the Department said no contact was made with the applicant by the Unit that processed his request. It said the initial request was received within the same week that staff were required to work from home. It said access to IT was not made available to the FOI Liaison Officer in the Unit until late April. It said relevant staff were necessarily focused upon Covid-19 related work and could not allocate time to the request in what were unprecedented circumstances. It said all actions were dictated by the circumstances.
While I acknowledge the unprecedented circumstances outlined by the Department and have sympathy for its predicament, the provisions of the Act are clear. An FOI body cannot refuse a request under section 15(1)(c) unless it has complied with the requirements of section 15(4) beforehand.
In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of the Department and to direct it to undertake a fresh consideration of the request. If the Department intends to rely on section 15(1)(c) in making its new decision, it must comply with the requirements of section 15(4) beforehand.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant's request under section 15(1)(c) and I direct it to consider the request afresh.
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