Whether the Council was justified in refusing a request from the applicant for access to records relating to his dealings with the Council and his property under section 15(1)(b) on the ground that the request did not contain sufficient particulars to enable the records sought to be identified

19 November 2020

Background

In a request dated 9 July 2020, the applicant sought access to all records from January 2010 onwards relating to him and his property at a named location. On 13 July 2020, the Council informed the applicant that his request did not contain sufficient particulars to allow for the identification of the records sought and that it may have to be refused. In an effort to assist him, the Council asked the applicant to indicate if his request related to a particular subject matter or a particular area within the Council. It also asked him to provide more precise details of his property. It further indicated that if the request was for a substantial volume of records, it might be deemed voluminous and refused under section 15(1)(c).

In his response of 17 July 2020, the applicant providing more specific details as to the location of his property and he offered to restrict the time period for relevant records from 1 January 2016 to date. On 20 July 2020, the Council again asked the applicant to clarify the subject matter or the area within the Council concerned. It explained that it holds many records in its many departments. To assist him, it asked him if he had been in correspondence with any particular areas of the Council relating to his property.

As the Council received no further response, it issued a decision on the request on 17 August 2020, in which it refused the applicant’s request under section 15(1)(b) on the ground that it did not contain sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.

On 4 September 2020, the applicant sought an internal review of that decision. In his application for internal review, he explained that the Council was operating a pay and display car park on lands he had provided to facilitate the construction of a new pier. He said that the proposed facility would provide many functions and as such, the plans are likely to have resulted in the creation of records in a variety of Council departments. He said that as the only land owner adjacent to the present Council facility his interest is obvious. He suggested that any Council official with responsibility for a major infrastructure project in the area would know the identity and location of records that come within the scope of his request.

On 28 September 2020, the Council affirmed its refusal of the request. It nevertheless noted the applicant’s comments and invited him to make a new FOI request including those particulars and outlining the full scope of his request. It said it was not appropriate or reasonable to conduct searches for records by referring a request to all departments. On 30 September 2020, the applicant sought a review by this Office of the Council’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 applicant’s comments in his application for review and to the submissions made by the Council 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 whether the Council was justified in refusing the applicant’s request for records relating to him and his property under section 15(1)(b) on the ground that the request did not contain sufficient particulars to enable the records sought to be identified.

Analysis and Findings

Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b). Section 12 is concerned with the processing of FOI requests. Subsection (1) describes the form such requests should take. Among other things, it provides that that a person who wishes to exercise the right of access must make a request in writing for access to the record concerned

(a) stating that the request is made under the Act, and
(b) containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

Subsection (6) provides that where a person makes a request for information or access to a record other than under and in accordance with the Act and it is not possible to give the information or make available the record other than pursuant to a request under and in accordance with section 12, the FOI body must assist, or offer to assist, the person in the preparation of such a request.

In its submissions to this Office, the Council argued that it is the responsibility of the requester to provide sufficient particulars to enable the record to be identified by taking reasonable steps. It argued that while a number of staff members/departments in the Council may have dealt with records in relation to the applicant’s property, it is not appropriate or reasonable to conduct searches for records by referring the request to all departments /staff.

On the other hand, the applicant argued that the Council is obliged to make reasonable efforts to identify and locate relevant records and that the onus cannot fall on an applicant to identify and pinpoint the location of relevant records unless the applicant has been notified about the creation, management or storage of such records. He argued that there are several officials in the Council who would be acutely aware of the identity and location of relevant records and he identified certain such individuals.

Given the nature of the applicant’s prior dealings with the Council as described in his application for internal review, I have no doubt that the Council would be aware that certain sections or departments would likely hold records coming within the scope of his request. I also accept that the applicant’s description of some of the functions and/or facilities that are proposed for the new pier would allow the Council to identify certain sections or departments that might hold records. However, I am conscious that the applicant’s request was not for access to certain records relating to him and his property. Rather, it was for all such records for a particular period. As such, I do not accept that he has provided sufficient particulars to allow it to identify all of the records sought. In the absence of any meaningful description of the nature of the records sought, it seems to me that the Council could not, with any degree of certainty, be satisfied that it had identified all relevant records unless it had conducted a search of each and every section and department.

The question I must consider, therefore, is whether it is reasonable to expect the Council to carry out such a wide ranging search in an effort to identify all relevant records. In my view it is not. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. I believe this is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps.

I accept the applicant’s argument that the onus cannot fall on an applicant to identify and pinpoint the precise location of relevant records. However, as the person wishing to exercise the right of access, there is an onus on the requester to provide sufficient particulars to allow for the identification of the records sought.

In the circumstances, I find that the Council was justified in refusing the applicant’s request under section 15(1)(b). For the sake of completeness, I should add that I am also satisfied the Council offered the applicant reasonable assistance to reframe his request so that it would not fall to be refused under section 15(1)(b) but that he did not properly avail of that assistance.

I note that it is open to the applicant to submit a fresh request for records. As the Council suggested, it is open to him to identify specific subject matter or specific areas of the Council’s functions that will allow the Council to properly identify the records sought. He may wish to engage with the Council in the first instance to establish the different types of relevant records it might hold. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant’s request under section 15(1)(b).

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