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

12 October 2021

Background

In a request dated 27 August 2021, the applicant sought access to a copy of all records held by the Department that mention “Travellers” in relation to the Youth Justice Strategy dating from 1 January 2021 to 15 April 2021.

On 1 September 2021, the Department 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. It informed the applicant of her right to apply to this Office for a review of its decision to do so. On 2 September 2021, the applicant sought a review by this Office of that decision.

Subsequently, on 3 September 2021, the Department informed the applicant by email that that the time extension was due to the fact that staff dealing with the request were working remotely due to the COVID-19 pandemic and as such it would be difficult to access relevant paper files. I understand that the Department issued its decision on the applicant’s request on 30 September 2021. The substantive decision is 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 Department and the applicant outlined above and to 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 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

I should say at the outset that as the Department has since issued its substantive decision on the request, this decision can have no tangible benefit for either party. Nevertheless, it presents a useful opportunity for me to provide further guidance on the application of section 14 to requests generally.

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 Department did not specify whether it was relying on section 14(1)(a) or 14(1)(b) in its correspondence with the applicant. However, it appears from the Department’s submission to this Office that it relied on section 14(1)(a), and not section 14(1)(b).

Department’s Submission

In its submission to this Office, the Department said that the records considered by decision makers processing the request were mainly internal memos, submissions, reports and notes, as well as e-mails. It said it was also necessary to examine general correspondence received by the Department between the dates in question.

The Department explained that because of the scope of the request, two functional areas of the Department, namely Criminal Policy/Community Safety and Transparency Divisions, were required to search for records falling within scope. It said that while Transparency Division ultimately found that it did not hold any relevant records, in excess of 250 records were examined to identify references to “Travellers” within the Criminal Policy/Community Safety function of the Department, which is the main area that dealt with the preparation of the Youth Justice Strategy.

The Department said the records relevant to the request were located in electronic document libraries as well as email accounts. It said, however, that the broad nature of the request meant that records could potentially have been under the control of at least two functional areas of the Department. It said the work required interrogation of document libraries and reviewing of e-mail accounts, and that the latter required liaison with a number of colleagues to determine whether they held records which fell within the scope of the request. It added that although no hard copy records were found to be relevant to the request, it was necessary to consider a number of hard copy notes and annotated documents held in the Department’s Offices for the purpose of identifying and locating records.

On the matter of the resources employed to process the request, the Department said that 0.66 whole time equivalent staff were required to undertake the search, retrieval and initial assessment of documents in the Criminal Policy (Community Safety) division. It said this work was additional to a range of other duties and the time extension was applied to ensure sufficient time could be provided to the request. It said two other staff members reviewed e-mails and notes to determine whether they fell within the scope of the request. It said the decision maker then reviewed the documents determined to be within scope to decide on the application or otherwise of any exemptions under the FOI Act. It said approximately 1.5 days were spent processing the request over the course of several weeks throughout the different functional areas of the Department.

The Department further said that, like all organisations, it has been working in difficult circumstances due to the effects of the pandemic restrictions. It said while much work has been carried on remotely there has been an impact on work flows generally and the time required to deliver business objectives. It said that whereas staff members who are processing FOI requests are given clearance to attend offices to facilitate processing, health and safety guidance has limited this. It said this has had an impact on locating records, accessing records, and printing records for examination by decision makers. It said this has also presented challenges with regard to the transfer of printed records by staff members in the Department to decision makers, as staff members are only permitted to attend the office on particular days of the week and only then if staff numbers in the office at the time are sufficiently low to ensure health and safety regulations are being complied with. It said that in this context, the time extension was applied in order to ensure that relevant records could be retrieved, printed and provided to decision makers while ensuring that sufficient time was given to the consideration of those records.

The Department added that without engaging in the examination of the relevant records, it was not possible at the outset to discern what volume of records would have to be considered, nor was it possible to discern how complex the assessment and decision process would be with regard to individual records and the possible application of the various exemptions from disclosure which may arise under the FOI Act.

Analysis and Conclusion

Having regard to the Department’s submission, it seems to me that its decision to extend the timeframe for processing the applicant’s request was based on a number of factors, namely:

• the extent and nature of the searches that it had to undertake to locate relevant records,
• the need to examine in excess of 250 records within the Criminal Policy/Community Safety Division,
• the staff and time resources required to process the request, and
• the challenges associated with workplace attendance during the COVID-19 pandemic.

The circumstances in which an FOI body may extend the four-week period for processing a request are quite narrow and specific. Under section 14(1)(a), the body is entitled to extend the decision making period only where the request relates to such number of records that compliance with the four-week time-frame set out in section 13 is not reasonably possible. The provision does not provide for the extension of the four-week period on the ground of any administrative challenges. As such, I am satisfied that the Department had regard to factors that it was not entitled to rely on when extending the decision making period in this case.

On the specific matter of the challenges associated with the COVID-19 pandemic, I have addressed this issue in a number of previous decisions. Indeed, as the Department will be aware, I found in case OIC-94446 that the Department was not entitled to extend the period for processing a request due to logistical challenges arising from the pandemic. As such, it is disappointing that I find myself having to address this argument yet again.

As I have stated previously, 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.

However, as the Department is aware, 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.

On the matter of the one factor that the Department was entitled to consider, namely the number of records to which the request relates, 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.

In my view, the Department has provided insufficient evidence to support its claim that the request related to such a number of records that compliance with the four-week period was not reasonably possible. I find it difficult to accept that the fact that approximately 250 records had to be examined to determine if they contained relevant information is, of itself, a sufficient ground for extending the period of consideration of the request under section 14(1)(a). It also seems to me that the time actually spent in processing the request (1.5 days) in no way supports the Department’s argument that a four-week extension was necessary.

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 her request, I find that the Department was not justified in its decision to apply the extension under section 14(1)(a).

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