Whether the Department's decision to extend the deadline for considering an application for an amendment pursuant to section 9, was in accordance with the provisions of section 14 of the Act

26 May 2022

Background

In an application dated 24 February 2022, the applicant sought the amendment of information relating to him in a specified record held by the Department. The application was made pursuant to section 9 of the FOI Act.

On 23 March 2022, the Department informed the applicant that it was necessary to extend the period for consideration of his request by four weeks pursuant to section 14(1) of the FOI Act. On 25 March 2022, the applicant applied to this Office for a review of the Department's decision to extend the time-frame for issuing a decision on his application for amendment.

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 correspondence between the applicant and the Department as outlined above, and to communications between this Office and both the applicant and the Department on the matter. 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 Department's decision to extend the time-frame for considering the application for amendment was in accordance with the provisions of section 14 of the Act.

Preliminary Matter

At the outset, I should say that as the Department has since issued its substantive decision on the application for amendment, this decision can have no tangible benefit for the applicant. Nevertheless, the applicant indicated that he wanted the review to proceed.

Analysis and Findings

In its submission to this Office, the Department said that its decision to extend the time-frame for processing the applicant's request was based on the large volume of FOI and AIE requests that its Forestry Division was dealing with. It also indicated that it was now aware, from our correspondence with it on the matter, that time extensions cannot be sought in respect of applications made under section 9 or section 10. It said it was therefore an error on the Department's part to rely on Section 14(1)(a) in making the decision to extend the time-frame for processing the application by four weeks. While the Department clearly now accepts that its decision to extend the time-frame in this case was wrong, I consider it beneficial, in any event, to clarify the matter in this decision.

The FOI Act provides for a number of different rights. Principally, it provides for a general right of access to records held by public bodies (section 12). However, it also gives

people the right to have incomplete, incorrect or misleading personal information about them amended (section 9) and gives people the right to be given reasons for decisions taken by public bodies that affect them (section 10).

Section 14 provides that an FOI body may extend the period for considering an FOI request by up to four weeks in certain circumstances. An FOI request is defined, in section 2 of the Act, as a request for access to a record pursuant to section 12. The definition does not include an application made under section 9 or section 10 of the Act. Accordingly, FOI bodies are not entitled to extend the period for processing such applications under section 14.

It is also worth stating that even if the applicant had made an FOI request for records in this case, the Department would not have been entitled to extend the time-frame for processing the request on the basis that the relevant Division was dealing with a large number of other FOI and AIE requests. 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), the FOI body may extend the period for considering the request where it considers that;

the request relates to such number of records, or
the number of other FOI requests relating to the same records or information that have been made to the FOI body concerned before the specified request was made to it and have not yet been determined is such,

that compliance with the four-week decision making period provided for under section 13(1) of the Act is not reasonably possible.

Section 14 clearly does not entitle an FOI body to extend the time-frame for processing a request based generally on the large number of other FOI requests already received unless, as provided for at section 14(1)(b), they relate to the same record or information as that sought in the request. Put simply, section 14 does not provide for extensions of the time-frame for considering requests on the basis of other FOI related (or any other) administrative challenges arising.

I would add that it is very disappointing to note that the Department sought to extend the time-frame for the reasons cited in this case, given that it has been subject to the Act since 1998 and given that the language of section 14 is quite clear and specific in prescribing the circumstances in which an extension can be applied. I would expect the Department to have processes in place to ensure that its decision makers act fully in accordance with the provisions of the Act when processing requests.

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 his application, I find that the Department was not justified in extending the period for consideration of the application 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 Department's decision to extend, pursuant to section 14 of the Act, the period for consideration of the application submitted by the applicant for the amendment of a specified record.

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