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

13 December 2022

Background

On 16 July 2022, the applicant sought access to various records concerning decisions about the rules relating to the Early Childhood Care and Education Programme (ECCE), which came into effect in 2018 and afterwards. The rules resulted in a single entry point to the ECCE and established lower and upper age limits for entry and completion of the programme. The applicant also sought submissions, underlying data, research papers and other relevant documents held by the Department in regard to setting the age limits concerned.

On 22 July 2022, the Department wrote to the applicant confirming receipt of his request and indicated that he should expect a decision no later than 16 August 2022. On 28 July 2022, the Department informed the applicant that it estimated that the search and retrieval fees relating to his request would be €600. The Department sought a deposit of €100 and noted that the time limits relating to its decision on his request would be suspended until he paid the deposit. The applicant emailed the Department on 2 August 2022 and indicated that he had paid the deposit sought.

On 22 August 2022, the Department informed the applicant that it was necessary to extend the period for consideration of his request, pursuant to section 14 of the FOI Act, and that he should expect a decision no later than 6 September 2022. On 23 August 2022, the applicant sought a review by this Office of the Department-�s decision to extend the time to consider his request.

During the course of this review, the applicant indicated that he wished the review to proceed to a binding decision. I understand that the Department has since issued its decision on the applicant-�s request. The substantive decision is not the subject of this review. I note therefore, that this decision can have no tangible benefit for either party.

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 parties as set out above, to the arguments set out in the applicant-�s application to this Office for a review and to the submissions made by the Department in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Department-�s decision to extend the period for consideration of the applicant-�s request was in accordance with section 14 of the FOI Act.

Analysis and Findings

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, in its submissions to this Office it indicated that was solely relying on section 14(1)(a).

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)(a), it may extend that four-week period by up to four further weeks where it considers that the request relates to such number of records that compliance with section 13(1) within the four weeks specified is not reasonably possible.

The Applicant

In his application to this Office, the applicant noted that no reason had been given by the Department for its decision to extend the time to consider his request. He also stated that the Department had incorrectly calculated the date by which it would issue its decision. The applicant also indicated that he had paid the deposit sought two working days after the Department had notified him of the estimated charges.

The Department

In its submissions to this Office, the Department acknowledged that its letter to the applicant on 22 August 2022 did not set out the reasons it had decided to extend the time to consider his request, as required by section 14(1)(a). It apologised for this.

The Department stated that it contacted the applicant on 26 July 2022 to arrange a call to narrow the scope of the request, but that he had declined to revise the scope of the request. It also stated that it had estimated that the search and retrieval process would take 30 hours, but that the time spent by staff on the request -�greatly exceeded this estimate-�. However, my understanding is that the final time required in relation to the records actually released to the applicant was 9.5 hours.

The Department stated that the applicant-�s request required -�coordination across multiple units-� to retrieve relevant records, which dated back -�a number of years-�. It said that its filing systems (eDocs and shared folders), representations system (eCorrepondence), and the emails and electronic files of staff members (including some staff members who had left the Department) were checked for any relevant records. It also said that it also considered hardcopy files, but that no relevant physical files were identified.

The Department stated that there was an internal delay in confirming receipt of the applicant-�s payment of the deposit sought. It said that the payment was received on 2 August 2022, but that this was not confirmed internally until 15 August 2022. It stated that the FOI decision maker only became aware of the confirmation of the payment on 19 August 2022. Essentially, the Department-�s position is that due to the extensive searches estimated above, the decision maker required the usual four-week period under the FOI Act to ensure that there was -�sufficient time to contact relevant staff members, check all relevant files, and collate all the material found-�. In other words, the Department sought to extend the time to issue its decision by a further two weeks in order to compensate for the time lost due to the delay in its Finance Unit informing the FOI Unit of the payment of the relevant deposit.

The Department stated that the FOI Unit has discussed the issue with the Finance Unit to ensure that -�future miscommunications leading to a delay of this nature-� would not happen again.

Analysis and Findings

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.

Section 14 of the FOI Act does not provide for the extension of the four-week period on the ground of administrative issues arising from internal miscommunications in an FOI body. As such, I am satisfied that the Department had regard to factors that it was not entitled to rely on when seeking to extend the period to consider the applicant-�s request in this case.

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. Therefore, 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 a claim that the request related to such a number of records that compliance with the four-week period, or the remaining two weeks, was not reasonably possible. It also seems to me that the time actually spent in processing the request (9.5 hours) does not support an argument that the extension was necessary.

Accordingly, 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 request, I find that the Department was not justified in extending the period for consideration of his request under section 14(1)(a) of the FOI Act.

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(1)(a) of the FOI Act.

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.
 

Sandra Murdiff
Investigator