Whether the Council was justified in refusing access, under section 15(1)(c) of the FOI Act, to records on communication between the Council and any planning consultants including architects or engineers pertaining to site development, planning and compliance with planning permissions for the Cliffs of Moher Development between December 2002 and December 2020

21 February 2022

Background

The issues arising in this case are almost identical to those arising in case OIC-115423, involving the applicant and Clare County Council. The Council owns a company called the Cliffs of Moher Centre Limited, which operates the Cliffs of Moher visitor centre. In case OIC-115423, I considered whether the Council was justified in refusing, under section 15(1)(c) of the FOI Act, the applicant’s request for any communication between the Council and/or the Cliffs of Moher with any environmentalist in respect of the Cliffs of Moher development between December 2006 and December 2020. Section 15(1)(c) essentially allows an FOI body to refuse voluminous requests. In that case, I found that the Council was not justified in refusing the request under section 15(1)(c) as I found that it had not complied with the requirements of section 15(4) before doing so. That section requires an FOI body to assist a requester in refining the request before it can refuse the request under section 15(1)(c).

The request that is the subject of this review in this case is quite similar. It was for any communication between the Council and/or the Cliffs of Moher with any planning consultant in respect of the Cliffs of Moher development between December 2002 and December 2020. The correspondence exchanged between the parties during the processing of both requests is almost identical. In sum, the Council refused the request, both in its original decision and following internal review, under section 15(1)(c). 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 records on communication between the Council and any planning consultants including architects or engineers pertaining to site development, planning and compliance with planning permissions for the Cliffs of Moher Development between December 2002 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.

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 aspects that the request might pertain to, such as “site development, planning, structural etc.”. 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.

In case OIC-115423, I set out my understanding of, and approach to, the application of section 15(4). I do not propose to repeat those details here but confirm that I have adopted that same approach here. The question I must consider 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. I find 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 planning matters for which it might hold records.

In response, the applicant said he was seeking communications pertaining to site development, planning and compliance with planning permissions for the Cliffs of Moher development. That clarification reflected, in essence, the examples cited by the Council. 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).

Having regard to all the circumstances, I find, on balance, that the Council has not complied with section 15(4) in this case. 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.

I would add that I have noted the Council’s description of the applicant’s pattern of use of FOI in relation to the Cliffs of Moher since 2015. The applicant should note that while the FOI Act rightly demands that FOI bodies meet very high standards in dealing with requests, the Act assumes reasonable behaviour on the part of requesters. It is not unreasonable to expect that requesters would have regard to the administrative burden that might be imposed on public bodies by making many and/or broad requests. In this case, the applicant made two very broad but quite similar requests on the same day for records covering a large period. Such requests invariably run the risk of being refused on administrative grounds, of which there are a number in section 15. As such, I would expect the applicant to engage constructively 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