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

15 October 2020

Background

In a request dated 3 June 2020, the applicant sought access to (i) communications between the Department and the Legal Aid Board concerning a letter the applicant received from the Department dated 27 May 2020 and (ii) communications between the Department and the applicant for the period from January 2017 to the date of his request.

On 8 July 2020, the Department informed the applicant that it was extending, under section 14 of the Act, the period for processing his request. It said it would make every effort to respond to his request by 6 August 2020. However, it said that this may not be possible as the Department, in common with other public sector bodies, was facing an unprecedented challenge in the face of the public health emergency arising from Covid-19 and it said its staff are working remotely. It explained that staff may require access to a hard copy file to process the applicant’s request, in which case it said it may not be in a position to finalise the request until a later date. In a letter dated 16 July 2020, the applicant sought a review by this Office of the Department’s decision to extend the time for considering his request.

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 outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department’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, under section 14(1), it may extend that four week period by up to four further weeks where it considers that

(a) the request relates to such number of records, or
(b) the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such,

that compliance with section 13(1) within the four weeks specified is not reasonably possible.

In submissions to this Office, the Department confirmed that section 14(1)(b) was not relevant in this case. On the matter of its decision to extend the time frame for processing the request, it said that the records sought are communications personal to the requester which he has sent to the Department. It estimated that there are approximately 65 records relevant to the request. It said the records are stored electronically on its Minister’s and Secretary Correspondence Tracking System and its eCorrespondence system, which are used to track correspondence addressed to the Minister and the Department. It said there are two Tracking Databases along with eCorrespondence that must be searched for relevant records.

The Department explained that as part of the search for records, the Decision Maker contacted colleagues in the former Prisons Probation and Policy Division to check if there were any hardcopy records that may be relevant to the request and that the relevant staff member confirmed that there are no additional records. It said all records must be printed off so that they can be forwarded to the applicant as he does not have access to email.

The Department said that two members of staff are involved in this process, an Assistant Principal Officer and a Higher Executive Officer. The Assistant Principal Officer has permissions to search the relevant systems. When the searches have been complete, the Higher Executive Officer will begin the process of printing off and scheduling the records for the requester. The Department said that due to the volume of records concerned it is expected that this complete process will take 5 hours.

The Department said that, in common with other public bodies, it has put in place a number of measures, including remote working and closure of some buildings in line with Government guidelines for Covid-19 related working protocols. The Department explained that the team involved in processing this request has limited access to the physical office where there are printers. It said, as and when they can access the office, they will print off the records for the requester. It said it expected that this process will be finalised in the coming weeks.

Since the Department made it submissions, it subsequently issued two decisions to the applicant. On 20 August 2020, it issued its decision in relation to the first part of the applicant’s request. On 27 August 2020, it issued a decision on the second part of the applicant’s request. The Department granted both parts of the applicant’s request, releasing 75 records in total.

The Department’s reason for extending the time required to process the applicant’s request in this case essentially revolves around the logistics of printing a hardcopy of the records in circumstances where the staff involved in processing the applicant’s request are working remotely due to Covid-19.

As I have stated in previous decisions, I accept that many FOI bodies faced significant challenges in processing FOI requests as a result of the exceptional working arrangements which were necessary during the nationwide lockdown phase of the COVID-19 pandemic. In particular, I accept that practices such as remote working may have caused significant difficulties for FOI bodies in accessing records held in hard copy only. I also acknowledge that in some cases staff in FOI bodies have had to be reallocated to roles which are seen as critical to supporting the national response to the pandemic.

Nevertheless, the circumstances in which an FOI body may extend the four week period for processing a request are quite narrow and specific. Section 14(1)(a) is essentially concerned with requests that involve large numbers of relevant records. It does not provide for the extension of the four week period on the ground of the logistical challenges described by the Department in this case. As such, I find that section 14(1)(a) of the Act does not apply in these circumstances.

I would also note that the advice provided to FOI bodies by the Department of Public Expenditure & Reform is to ensure that FOI requests are processed to the greatest extent possible during the COVID-19 pandemic. This is set out in the Guidance Document issued by the Department entitled Continuity of FOI services during the COVID-19 pandemic (available at https://foi.gov.ie/continuity-of-foi-services/). While the initial difficulties arising from the requirement to provide for remote working were understandably significant, I would expect that the vast majority of bodies would have made arrangements in the intervening period to ensure, to the greatest extent possible, continuity of service across all of its functions, including its functions relating to the processing of FOI requests.

In conclusion, therefore, while my findings in this case can have no tangible benefit for the applicant given that the Department has already issued its decision on his request, I find that the Department 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 the Department’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