Whether the Council was justified in refusing access, under section 15(1)(c), to all records held regarding the applicant for the period 25 February 2021 to the date of the request

11 February 2022

Background

The applicant in this case submitted a request to the Council on 24 February 2021 for records held about her housing application and related records. The Council’s decision in that request was the subject of review by this Office in Case OIC-111170. On 6 September 2021, the applicant submitted a separate request for all records held about her since the date of her earlier request. She asked the Council to include all records where she was referred to by her client PASS id and records where she was referred to by either her initials or her initials in brackets.

On 17 September 2021, the Council informed the applicant that her request was too broad and did not provide sufficient information for it to determine the records required. It said the request did not identify specific records and it said that to search for and extract any and all such records would be very difficult for the Council and would require many hours of work of staff across a wide variety of sections in the Council. It referred to section 12(2)(b) of the Act, which provides that a request for records must contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps. It asked the applicant to refine the request by providing details of the specific records sought and/or to provide some background context, to identify the specific Departments within the Council where records may be held, or by reducing the scope of the request, e.g. to email records only.

The applicant replied on the same day, wherein she said she did not think the request was very broad as it covered only a few months. She said she could not identify specific records, which is why she was seeking them. She said she was seeking records from “Housing Department (all sections …) … Corporate Affairs/FOI, Legal, any communications from/with Chief Executive, any internal and external communications etc.”

In a decision dated 30 September 2021, the Council refused the request under section 15(1)(c) of the FOI Act, which allows for the refusal of a request where processing the request would cause a substantial and unreasonable interference with or disruption of the body’s work. In its decision, the Council said that to collate all the information that falls under the scope of the request would involve the search, extraction and retrieval of a very large volume of records and that this would cause a disruption of the work in the several departments involved.

The applicant sought an internal review of that decision, noting that she did not receive any response to her inquiry if her refined request was sufficient before receiving the decision. She also argued that the Council had not complied with the requirement to offer assistance before refusing a request under section 15(1)(c).

On 19 October 2021, the Council affirmed its refusal of the request under section 15(1)(c). It said that processing the request would require a search of 25 sections across 3 departments and that the level of possible records to be examined would be in excess of 39,000 records. On 20 October 2021, the applicant applied to this Office for a review of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to the communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant's request under section 15(1)(c) of the Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.

Analysis and Findings

Section 15(1)(c) provides that an FOI body may 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 records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body.

However, section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether the Council was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.

Section 15(4)

In her application for review, the applicant said her request was not for a particularly long timeframe. She argued that there would or should not be an extraordinarily large volume of records relating to her. She said she submitted a refinement and heard no more, and so thought that was sufficient. She said the Council did not respond before issuing a refusal and she argued that it failed to comply with Section 15(4).

The applicant suggested that a search would take place by "first name, last name" or similar for records or emails held on computer which, in her view, would be unlikely to match another person’s name in the Council. She said the Council has her housing reference number and suggested that a file is kept on each applicant (hard and/or soft copy). She said the Housing department is familiar with her file as, indeed, is the FOI department, due to her previous request in February 2021. She said the Council is aware that her primary dealings are with the Housing Department and that she had dealt with the FOI Department (under Corporate Affairs) and the others mentioned as they had been emailed. She said her client pass ID is specific to her and is used by the Homeless section (Housing). She said she requested that correspondence be included where she is referred to by her initials as she is sometimes referred to by those IDs or abbreviations in internal/external correspondence.

In its submissions to this Office, the Council provided a brief outline of its dealings with the applicant to date. It said the applicant has been dealing with its Housing Department in relation to her application for Social Housing Support. It said she first made an FOI request in August 2019 relating to her housing situation and that she made a second request in February 2021. It said that the second request was reviewed by this Office, during which time she submitted a third request, being the one that is the subject of this review. It said she also served two notices on the Council under the Equal Status Acts 2000-2015, in April 2021 and November 2021, that she made a related complaint to the Workplace Relations Commission in September 2021, and that she also submitted a subject access request under the Data Protection Act 2018 in October 2021.

The Council argued that the amount of resources given to dealing with the applicant cannot be overstated and is excessive by any standard. It said it informed the applicant, by email dated 17 September 2021, that her request was too broad and did not provide sufficient information for it to determine the records required. As I have outlined above, that email asked the applicant to refine the request by providing details of the specific records sought and/or to provide some background context, to identify the specific Departments within the Council where records may be held, or by reducing the scope of the request, e.g. to email records only.

The Council acknowledged that at the end of her responding email, the applicant asked if her response helped and that while this may have been overlooked, her response was taken as a refusal to refine the scope of her request. It said the applicant did not confine her request to the Housing Department as she stated the following:

“I would be obliged if you could provide me with records from Housing Department (all sections, I wouldn’t know all relevant names), Corporate Affairs/ FOI, Legal any communications from / with Chief Executive, any internal and external communications etc. as listed above.”

The Council said it interpreted “as listed above” to mean “any and all records” as stated in the earlier part of her email.

While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office takes the view that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

It is important to note that while there is an onus on FOI bodies to assist, or to at least offer to assist, requesters, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held. Nevertheless, it is also noteworthy that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. In such circumstances, the difficulty with requesters making broad or non-specific requests, such as a request for any and all records, becomes apparent.

Having considered the exchanges between the parties during the consideration of the applicant’s request and to the submissions of both parties to this Office, I accept, on balance, that the Council offered to assist the applicant and that she chose not to refine her request. In its email of 17 September 2021, the Council made specific suggestions that might allow for a refinement of the request so as to ensure that request would not be refused on the ground that it would disrupt the work of the Council. While she identified certain sections and department within the Council that might hold relevant records, she made no effort to reduce the extent of the records sought. I note, for example, that she continued to seek all records where she was referred to by her initials. In the circumstances, I am satisfied that the Council complied with the provisions of section 15(4) before refusing the request under section 15(1)(c).

Section 15(1)(c)

On the matter of the applicability of section 15(1)(c), the Council stated in its submissions that the only way to thoroughly search for the records sought would be to seek the assistance of the Council’s IT Unit to search for records. It said that two members of staff in the Council’s IT unit, specifically the Head of IT and the Cyber Security Officer, have access to Mail Meter to search across all email accounts. The Council said that conducting searches in this manner is very disruptive to the work of the IT Unit as all mails retrieved must be checked/triaged by the Unit before being released to a member of staff in any Department in the Council. It said this is necessary to prevent sharing data with staff or a department where it is not appropriate to do so. It said that for this reason, the IT Unit was requested to quantify the number of records involved, as outlined in the applicant’s FOI request.

The Council said that its IT Unit conducted a cursory search of the records involved and the amount of data identified was considered too voluminous to be checked. Had the search excluded the applicant’s initials, the Council said it would have significantly reduced the number of records involved. It said that, however, the number is still considered too great for the IT Unit with its limited resources to check before releasing to other departments. The Council stated that the applicant’s initials are also the initials of the Homeless Resettlement Officer in the Housing Department who dealt with the applicant for a period from January to March/April 2021 when the applicant refused to engage with her any further. It noted that the applicant would have been aware of this due to said engagements. The Council also stated that the applicant’s Data Access Request of 29 October 2021 under the Data Protection Acts was more succinct than her FOI request in that she limited it to the Housing Department and made no reference to her initials.

Section 15(1)(c) of the Act is an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources.

I accept the Council’s explanation of the resources that would be required to retrieve and examine what is a very substantial number of records in an effort to identify all records coming within the scope of the applicant’s request. I also accept the Council’s contention that processing the request would cause a substantial and unreasonable interference with, and disruption of, its work, including disruption of work in a particular function area. In the circumstances, I find, therefore, that the Council was justified in refusing the request under section 15(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant’s request under section 15(1)(c) of the 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.

Stephen Rafferty
Senior Investigator