Whether the Council was justified in refusing access, under section 15(1)(c) of the FOI Act, to records of communication from December 2006 to December 2020 between the Council and any environmentalist pertaining to impacts on flora and fauna, wildlife, groundwater and wastewater in relation to the Cliffs of Moher Development

17 February 2022

Background

Clare County Council owns a company called the Cliffs of Moher Centre Limited which operates the Cliffs of Moher visitor centre. In a request dated 9 September 2021, the applicant sought access to all records of any communication between the Council and/or the Cliffs of Moher with any environmentalist, including but not limited to a specified company in relation to the Cliffs of Moher development between December 2006 and December 2020.

On 10 September 2021, the Council wrote to the applicant to inform him that a person making a request under the FOI Act must give sufficient particulars to enable the FOI body to identify the records sought, pursuant to section 12(1)(b) of the Act. It said it wished to clarify and agree the records involved. It asked the applicant to specify the areas to which his request pertains, e.g. “flora & fauna, wildlife, ground water, wastewater etc.”.

The applicant replied to the Council on the same day, wherein he said he was seeking records of communication between the Council and any environmentalist pertaining to impacts & flora and fauna, wildlife, groundwater and wastewater in relation to the Cliffs of Moher Development between December 2006 and December 2020.

On 6 October 2021, the Council refused the applicant’s request under section 15(1)(c) of the FOI Act on the ground that searching for and retrieving relevant records, covering a period of 14 years, would cause a substantial and unreasonable interference with or disruption of work of the relevant section. It said the section in question has three staff members and it provided a summary of the various other functions of the section. It said that if the applicant wished to reconsider the wording of his request to reduce the volume, it would be happy to assist in whatever way it could.

The applicant sought an internal review of that decision, following which the Council affirmed its refusal of the request under section 15(1)(c). It argued that the applicant had basically restated his request without any indication of reducing the scope of the request. It said the environmental records associated with the Cliffs of Moher are substantial and would be held in archives in hard copies and soft copies throughout the Council. It said the retrieval process would require both hard copy and electronic searches across a number of areas. On 5 November 2021, the applicant sought a review by this Office of the Council’s decision.

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 as set out above and to the correspondence between this Office and both parties 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 Council was justified in its decision to refuse, under section 15(1)(c) of the Act, the applicant's request for all communications between the Council and/or the Cliffs of Moher with any environmentalist between December 2006 and December 2020.

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) of the Act 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, I consider it appropriate to consider, in the first instance, whether the Council complied with section 15(4) in this case.

In its submissions to this Office, the Council included a brief summary of the applicant’s substantial use of FOI in relation to the Cliffs of Moher since 2015. It said it engaged with the applicant in its letter of 10 September 2021 in an effort to refine the request to help enable the identification and to narrow down the specific records sought. It said it offered suggestions to specific environmental aspects that the request might pertain to. It said that within 14 minutes, it received the applicant’s response confirming the examples the Council had offered but not specific into narrowing down scope of the request.

The Council added that its decision letter again offered to assist the requester to reconsider the wording of his request to reduce the volume. It said that in his request for an internal review, the applicant made no effort to amend or narrow the scope of the request despite the fact the Council’s decision letter had outlined that the refusal was due to the length of time involved and the voluminous nature of the request. It further referred to its internal review decision wherein it again offered to consider a refined request.

While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), it seems to me that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is not generally sufficient for the purposes of compliance with the section. In holding this view, I am cognisant of the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests.

As such, it seems to me 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, it seems to me 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.

I should add 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.

The question I must consider in this case is whether the Council provided reasonable assistance to the applicant in amending the request, or whether it offered to provide assistance in circumstances where the applicant was not willing to amend the original request.

While it seems to me that the applicant made little effort to actively engage with the Council in refining his request, I am satisfied that this is not a case where it can be said that he was not willing to amend the request. I say this because I note that he altered the wording of the original request by indicating that the records sought could be confined to the specific examples of environmental matters that the Council cited in its letter of 10 September 2021. While this may have made little or no difference to the amount of work that would be required to process the request, he included those examples based on the suggestions made by the Council. As such, I am satisfied that this is not a case where an offer of assistance was made and where the applicant was not willing to amend his original request.

On the matter of whether the Council provided reasonable assistance to the applicant, I find, on balance, that it did not. In its letter of 10 September 2021, the Council did not indicate that it was considering a refusal of his request under section 15(1)(c). Instead it indicated that the request did not contain sufficient particulars to allow it to identify the records sought, and that it might be in a position to proceed with the request if the applicant revised the wording of his request to identify more specifically the records sought. It asked the applicant to specify the areas to which his request pertained, and provided examples of the types of environmental matters for which it might hold records.

In response, the applicant said he was seeking communications pertaining to impacts on the precise environmental matters the Council had offered as examples. It seems to me that the applicant can reasonably argue that he amended his request based on the advice offered by the Council. It had not been suggested to him that such a clarification would not suffice or that he should amend his request in some other way (e.g. by narrowing the time-frame).

At that stage, it was open to the Council to engage further with the applicant to explain that the amended request remained too broad and was likely to be refused under section 15(1)(c), and to suggest further refinement. Indeed, had it provided the applicant with the same information it provided in its original decision and internal review decision in relation to the volume of records involved and the potential disruption processing the request would cause before making a decision on the request, it would have been open to the applicant to seek to engage in further discussions on further possible refinements to the request or, indeed, to seek a decision based on the unchanged request. Instead, the Council refused the request under section 15(1)(c). 

Having regard to all the circumstances, I find, on balance, that the Council has not complied with section 15(4) in this case. I should add that the Council’s offers in its decision letters to further assist the applicant cannot be regarded as having been in accordance with section 15(4) as the request had already been refused under section 15(1)(c) at that stage. My finding that the Council has not complied with section 15(4) is, of itself, sufficient for me to find that the Council was not justified in refusing the refined request under section 15(1)(c).

In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of the Council and to direct it to undertake a fresh consideration of the request. If the Council intends to rely on section 15(1)(c) in making its new decision, it must comply with the requirements of section 15(4) beforehand. While I am making no finding on whether section 15(1)(c) would have applied in this case had I found that the Council complied with section 15(4), it seems to me that the applicant’s request is, indeed, quite broad. I would encourage the applicant to engage with the Council with a view to establishing the precise nature of the information he wishes to access, and to take into consideration the Council’s submissions regarding the timeframe involved and the potential disruption to the work of the relevant section of the Council.

Decision

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

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