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

16 June 2021

Background

In a request dated 24 February 2021, the applicant sought access to a copy of all records the Council holds about her regarding housing, homeless, medical including communication internal and from/with external parties. On 25 February, 2021, the Council sought photographic evidence of her identity. It also informed the applicant that it would only be releasing records created after the date of a previous request in August 2019, pursuant to section 15(1)(i) of the FOI Act. That provision entitles a public body to refuse to grant a request where the request relates to records already released to the requester and where they are available to the requester.

The applicant provided the photographic evidence sought and said that the records released previously were not available to her. On 1 March 2021, the Council acknowledged receipt of the personal identification and again said that it was only required to release records not previously released. It said, however, that if there was a particular record she could identify from the previous release, it would include it in the current request. In response the applicant argued that she was entitled to all records as the previously released records were not available to her.

On 22 March 2021, the Council informed the applicant that it was necessary to extend the period for consideration of her request by 4 weeks under section 14 of the FOI Act due to additional time being required to collate records. I note that the Council did not inform the applicant of her right to apply to this Office for a review of the decision to extend the timeframe for processing the request. Nevertheless, on 30 March 2021, the applicant contacted this Office in light of her engagements with the Council. She said she was unhappy with both the Council’s position concerning the processing of records previously released and with its decision to extend the time-frame for processing the request.

On 6 April 2021, this Office accepted an application for a review of the decision of the Council to extend the time-frame for processing the applicant’s request. I understand that the Council issued its decision on the applicant’s request on 20 April 2021 and has since also issued an internal review decision. The substantive decisions are not the subject of this review.

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

Scope of the Review

This review is concerned solely with whether the Council’s decision to extend the deadline for considering the applicant’s request was in accordance with the provisions of section 14 of the Act.

Preliminary Matter

As outlined above, when the Council notified the applicant that it was necessary to extend the time-frame for consideration of her request, it did not inform her of her right to apply to this Office for a review of its decision to do so. As the Council is aware, the Central Policy Unit of the Department of Public Expenditure and Reform has published guidance and other relevant materials on its website in an effort to assist and support public bodies in the performance of their functions under the FOI Act. Among other things, it has published a suite of sample letters for use when processing requests. Had the Council availed of those template letters, it would have ensured that the applicant was properly informed of her right to apply for a review of the decision to extend the time-frame for processing her request. I would urge the Council to ensure that all of its decision makers are aware of, and make use of, those template letters.

Analysis and Findings

I should say at the outset that as the Council has since issued its substantive decision on the request, this decision can have no tangible benefit for either party. Nevertheless, in light of the Council’s submissions, I consider that it will be useful for the Council to be informed of this Office’s findings on the applicability of section 14(1) in cases such as this so that it can properly apply the provisions of section 14 in the future.

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 14(1) within the four weeks specified is not reasonably possible.

The Council did not specify whether it was relying on section 14(1)(a) or 14(1)(b) in its letter of extension to the applicant. However, it appears from the reasons given (“additional time required to collate records”) that it is relying on section 14(1)(a), and not section 14(1)(b).

In its submission to this Office, the Council provided details of the process undertaken in considering the applicant’s request, which led to its decision to apply a time extension in this case. It said it had identified 12 staff across five Sections who had to search for records in both hardcopy and electronic format, with an estimated total of 25 hours required to conduct searches and compile the schedule of records as well as the records themselves. As noted above, the Council issued its decision to the applicant on 20 April 2021. A total of 55 records were identified by the Council consisting of 179 pages released to the applicant. The Council stated that in order to compile the schedule and records, staff in the named 5 Sections had to search their hardcopy and electronic records. It stated that once the records had been identified, each record was then reviewed individually by a staff member, to ensure the correct information was being released and collated on to the Schedule of Records. The Council said that records and the Schedule of Records are then reviewed and checked in full by the FOI Decision Maker within the Department.

It seems to me that the Council’s reason for applying the time extension was based on a number of grounds, namely:

• the number of sections within the Council that were involved in processing the request, whether on the ground that they might hold relevant records and were involved in the search for and retrieval of records, or in respect of the co-ordination and processing of the request, and
• the amount of work involved in processing the request.

As I have outlined above, the circumstances in which an FOI body may extend the four-week period for processing a request are quite narrow and specific. To apply the extension under section 14(1)(a), the request must relate to such number of records that compliance with the four-week period is not reasonably possible. The Act provides no guidance on the number of records that might be involved before an extension can be appropriately applied. As such, each case must be considered on its merits based on the particular facts and circumstances. Nevertheless, the provision is clear that a decision to extend the period under section 14(1)(a) must be based on the number of records to which the request relates and it does not provide for the extension of the four-week period on the ground of any administrative challenges or delay in processes such as those described by the Council.

The number of records ultimately identified by the Council as coming within the scope of the request was 55. In circumstances where the Council has provided no details of the number of records that had to be examined in an effort to locate those 55 records, I simply cannot find that the Council has justified its decision to apply the extension under section 14(1)(a).

In conclusion, therefore, while my findings in this case can have no tangible benefit for the applicant given that the Council has already issued its decision on her request, I find that the Council was not justified in extending the period for consideration of the request under section 14(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’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