Whether the Department was justified in refusing the applicant-�s request for records relating to primary and post primary education facilities in the Stillorgan Industrial Estate/Benildus Avenue area

7 April 2021

Background

In July 2017, this Office issued a decision in Case 170125 in which it affirmed the decision of the then Department of Education and Skills to refuse the applicant-�s request for records relating to the designation by the Council of sites for primary and post-primary education facilities, as set out in the Sandyford Urban Framework Plan 2011-2016 and the Dún Laoghaire Development Plan 2016-2022 on the ground that they were exempt from release under section 30(1)(c) (negotiations of public bodies). The decision noted that the applicant owned land within the Council's functional area and that in 2011, some time after he purchased the land, it was designated for educational purposes by the Council.

On 27 November 2020 the same applicant, through its legal representatives, made a three-part FOI request to the Department for;

1. The records identified by the Department in the request that was the subject of the review in Case 170125,
2. all records created after 4 May 2016 that evidence the need to provide for primary and post-primary education facilities at Stillorgan Industrial Estate/Benildus Avenue and the Legionaries of Christ lands; and
3. all records created after 4 May 2016 in connection with or which relate to the provision and/or acquisition of sites in the area of the Sandyford Urban Framework Plan for primary and post-primary education facilities. 

With regard to parts (b) and (c) the applicant provided an eight-part list of examples of the categories of records sought.

In the course of correspondence with this Office, the Department indicated that its officials had met remotely with the applicant on 21 December 2020 to better understand the scope of the request and see if the applicant could narrow the scope of its request or deal with the matter outside of the FOI framework.  

It appears that the following day, the Department wrote to the applicant seeking an extension of time under section 14(1) of the FOI Act to complete the review, the reason given being that -�the majority of the information requested is located on hardcopy files in the office, and is therefore difficult to access due to COVID-19 restrictions which are forcing staff to work remotely-�. It indicated that a decision would issue by 26 January 2021. 

On 22 January 2021 the Department informed the applicant by email that due to the restrictions associated with the COVID-19 pandemic which precluded access to physical files, it was not possible to finalise the request at that time. It indicated that the Department would endeavour to complete the processing of the request when the restrictions had been lifted.

The applicant treated that response as a refusal of its request and sought an internal review of that refusal. On 16 February 2021 the Department affirmed the original decision to refuse the request. It said that -�due to the disruption caused by the COVID-19 pandemic, processing the request would impose an unreasonable workload on the organisation or a particular business unit having regard to current resourcing and remote working arrangements. Please note this relates to paper/hard copies requests-�.  The internal review decision also raised the possibility of the applicant narrowing the scope of the request.  On 5 March 2021, the applicant sought a review by this Office of the Department-�s decision.

I have now completed my review of the Department-�s decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the correspondence between this Office and both the Department and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the Department-�s refusal of the applicant's request for records relating to primary and post primary education facilities in the Stillorgan Industrial Estate/Benildus Avenue area was in accordance with the provisions of the FOI Act.

Analysis and Findings

The Department said in its internal review decision that due to the disruption caused by the COVID-19 pandemic, processing the applicant-�s request would impose an unreasonable workload on the organisation or a particular business unit having regard to current resourcing and remote working arrangements. It said that this related to paper/hard copies requests. It added that it was taking the opportunity to offer assistance to the applicant to narrow the scope of its request and that it may be satisfied to limit the request to electronic records/soft copies only and to submit a further request for the paper records once the current restrictions have been lifted. It suggested that if this was the case, the applicant could submit a new FOI request along these lines. It also said that if it was possible to refine or limit the terms of the request e.g. identify specific electronic records/soft copies which apply to the request, narrow the timeframe etc. that this might enable the Department to take reasonable steps to identify and locate records/information relevant to the request.

The Department added that its position is based on the fact that the Site Acquisition and Property Management Section holds a large volume of potential records on the issue and the request in its current format would be considered quite broad and would involve the retrieval and examination of these potential records, in addition to those held in other sections of the Department. It said the length of time required to consider the records in order to determine their relevance to the request and whether they are appropriate for release would cause a substantial interference and disruption of the work of the sections involved. It said that if the applicant wished to consider revising the wording of its request to identify more specifically the records sought, it may be able to proceed with consideration of the request.

As the Department failed to identify any specific provision of the FOI Act upon which it based its refusal of the request, an Investigator from this Office contacted the Department and sought to establish if it had intended to rely on section 15(1)(c) of the Act as a ground for refusal given the similarities between the language of that section and the language used in the internal review decision. Section 15(1)(c) allows an FOI body to 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 the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area. 

In response, the Department said the request was not refused under section 15(1)(c). It said the ultimate reason the request could not be finalised was due to the fact that level five restrictions placed on its officials to restrict movements and limit access to the office prevented the decision maker from accessing relevant paper records. It acknowledged that there are no provisions made in the Act to cover this eventuality but said it was considered to be a proportionate response in the circumstances.

As the Department itself has acknowledged, the Act does not provide for the refusal of a request on the grounds cited by the Department. The Department is also aware that the provisions of the Act remain in force and have not been suspended as a result of the pandemic. As such, I am left with no alternative other than to annul the decision of the Department to refuse the request on the grounds cited and to direct it to consider the request afresh. Nevertheless, I would make the following comments for the benefit of both parties.

The Department is, no doubt, aware of the guidance issued by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform in relation to the continuity of FOI services having regard to the potential impact of revised working practices due to the pandemic (available at https://foi.gov.ie/continuity-of-foi-services/). Amongst other things, the guidance clarifies that the FOI Act remains in force and that arrangements should be put in place to ensure that requests continue to be processed to the greatest extent possible and suggests that it may be appropriate for bodies to constructively engage with requesters in order to make an arrangement that meets their objectives to the greatest extent possible. 

The general thrust of the guidance is that FOI bodies are encouraged to actively engage with requesters with a view to reaching agreement on mutually acceptable outcomes. Indeed, the guidance also urges requesters to take a pragmatic and proportionate approach to their use of FOI in light of the current circumstances, and to work with bodies with a view, where possible, towards reaching a satisfactory arrangement. While I make no finding on their applicability in the particular circumstances of this case, I also note that the guidance also suggests that an FOI body may wish to rely on certain provisions of the Act that provide for administrative refusals, such as 15(1)(a) and 15(1)(c).

It seems to me that the Department did not have regard, or at least did not have adequate regard, to the CPU guidance in this case. I accept that the Department met with the applicant following receipt of the request. It informed this Office that it did so with the intention of better understanding the request and examining if the applicant might be prepared to narrow the scope of the request or deal with the request outside of the FOI framework. However, while I am not aware of the outcome of that meeting, I note that shortly thereafter, the Department simply applied a four-week extension to the statutory time for processing the request. The correspondence between the parties did not indicate that any agreement had been reached in relation to the amendment or processing of the request.

Furthermore, no evidence has been presented to this Office to explain why the Department did not, at the very least, consider any relevant electronic records coming within the scope of the applicant-�s request. Instead, it seems to me that the Department simply refused to process any part of the request.

I fully appreciate the practical difficulties the Department faces in having to process a request which may include hard copy records in circumstances where its staff do not have access to its premises during the current restrictions. However, I would expect it to at least have regard to the guidance issued by the CPU. It is not a matter for me to advise the Department how to handle the request in this case, nor can I advise the applicant on how to frame its request. Nevertheless, I would expect both parties to take account of the very difficult circumstances arising and would suggest that the parties might engage in constructive dialogue with a view to reaching a mutually acceptable arrangement, at least in the interim period until the current restrictions are lifted. For example, the applicant may be in a position to identify specific information that it needs urgently, to explore if it can be provided electronically, while the Department may be in a position to provide a more detailed explanation of the types of relevant records it holds electronically that it will be in a position to consider for release.

Finally, I would add for the benefit of the applicant that while I note its reasons for seeking urgent access to the records, FOI bodies must disregard any reasons that a requester gives for making a request (section 13(4) refers).

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the Department-�s decision in this case.  I direct the Department to conduct a new decision-making process on the applicant-�s request.

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