Whether the CDETB was justified in refusing access to all email communications held in the email accounts of the Chief Executive and the Director of Schools (or equivalent position) for calendar year 2020 in which the term “Catholicism" appears under section 15(1)(b) on the ground that the request did not contain sufficient particulars to enable the records sought to be identified

22 December 2020

Background

In a request dated 28 September 2020, the applicant submitted a request for records to the CDETB under the FOI Act. He requested that electronic searches be conducted of the email accounts of the Chief Executive and the Director of Schools (or equivalent position) for calendar year 2020, in order to obtain all email communications in which the term “Catholicism" appears.

The CDETB wrote to the applicant on 19 October and stated that the word Catholicism does not identify a record. It asked him to provide further details to assist it in identifying and locating the records sought. In response, the applicant said he was seeking access to specific emails from the two identified email accounts, within the identified dates, which contain the word “Catholicism”. He argued that those were sufficient particulars to identify the relevant records.

In a decision dated 23 October 2020, the CDETB refused the request under section 15(1)(b) on the ground that it was not refined to the extent that it would allow it to identify actual records. The applicant sought an internal review of that decision, and stated that he had submitted similar requests to other ETBs and the CDETB was entirely unique in concluding that an electronic search of two email accounts, within a tightly defined period, for a specific keyword, is not sufficient information for the identification of records. The CDETB subsequently affirmed its original decision. On 20 November 2020, the applicant sought a review by this Office of the CDETB’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 FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the CDETB was justified in its decision to refuse the applicant’s request for email communications containing the word ‘Catholicism’ in the accounts of the Chief Executive and the Director of Schools 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(1)(b) provides that a request for access to a record must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

In its correspondence with this Office, the CDETB provided details of other requests made by the applicant. It suggested that there was a connection between the request that is the subject of this review and a previous request (0147-2020).

According to the CDETB, in request 0147-202, the applicant asked it to search the email accounts and electronic file systems of the Chief Executive and the Director of Schools (or equivalent position) for calendar year 2020, in order to obtain all email communications in which the terms Catholic, Catholicism, Christianity, Christian, religion or religious may appear within documents. Following several exchanges of correspondence as a result of the CDETB informing the applicant that the information provided was insufficient to allow for the identification of the records sought, the request was refused under section 15(1)(b). It said the current request was submitted one minute following its refusal of 0147-2020, in accordance with the applicant’s assertion that if it refused 0147-2020, he would submit multiple requests containing the search words from 0147-2020 one search word at a time.

The CDET added that its understanding is that the FOI Act allows requesters to request access to records, not information. It argued that it is not permitted to use access rights under FOI as a “fishing expedition”, which, it suggested, is what appears to be happening in this case. It argued that the applicant is asking CDETB to conduct a search of certain email accounts using key words and to furnish him whatever records that search throws up. It argued that the fact that the applicant specifies where and for what period the searches should be made does not make the request any more valid. It argued that this is not an acceptable use of the FOI Act. It also provided details of four other previous requests the applicant made.

It seems to me that the CDETB is attempting to justify its refusal of the current request based on the applicant’s motives and his past conduct in terms of his use of FOI. Section 15(1)(b) does not provide a valid basis for refusing requests on such grounds. Section 15(1)(g) provides for the refusal of requests where an FOI body considers the request to be frivolous or vexatious or to form part of a pattern of manifestly unreasonable requests. As the request was not refused on that ground, I have not considered its applicability in this case.

Instead, the request was refused under section 15(1)(b). As such, the only question I must consider is whether the request contains sufficient particulars to enable the records sought to be identified by the taking of reasonable steps. As I have outlined above, the CDETB suggested that the applicant did not seek access to specific records and that he did not provide sufficient particulars to enable such records to be identified. I disagree. The request was clear, in mv view. He sought access to all email communications held in the email accounts of the Chief Executive and the Director of Schools (or equivalent position) for calendar year 2020 in which the term “Catholicism" appears.

As for whether those records can be identified by the taking of reasonable steps, I am satisfied that they can. A simple electronic search of the relevant email accounts for the period in question using the search term “Catholicism” will allow for the identification of relevant records. In the circumstances, I have no option but to find that the CDETB was not justified in refusing the request under section 15(1)(b) of the Act.

However, I do not consider it appropriate to simply direct the CDETB to release all relevant records identified following such a search. It is possible that one or more such records may be exempt from release or contain exempt information, such as personal information relating to third parties. In the circumstances, I find that the appropriate course of action to take is to annul the decision of the CDETB, the effect of which is that it must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the CDETB’s decision.

Decision

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