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 based on the number of records to which the request related

23 February 2023

Background

In a request dated 18 October 2022, the applicant sought access to various records from April 2021 onwards relating to the Third National Strategy on Domestic Sexual and Gender-based Violence (the Strategy), published in June 2022, as follows:

1. Records showing the remit of the Executive Group assigned to draw up the Strategy.

2. Minutes of any meetings between the Executive Group and individuals or organisations to discuss the Strategy.

3. Records between the Executive Group and the Minister for Justice.

4. Minutes or notes of interviews held by the Executive Group with academics and individuals with specialist expertise in the area to assist in the development of the Strategy.

On 17 November 2022, the Department informed the applicant that it was necessary to extend the period for consideration of his request by 4 weeks under section 14 of the FOI Act. On 18 November 2022, the applicant sought a review by this Office of the Department-�s decision. I understand that the Department issued its decision on the applicant-�s request on 2 December 2022. 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 Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department-�s decision to extend the time frame for considering the applicant-�s request was in accordance with the provisions of 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.

In its submission to this Office, the Department said that dealing with domestic, sexual and gender-based violence (DSGBV) is a major responsibility which spans the policy, legislation, transparency, governance and European affairs areas within the Department.

The Department said that due to the extensive research and development work conducted in drafting the new Strategy, there were -�hundreds of documents and emails that could potentially have been relevant-� to the applicant-�s request. The Department said that records that potentially came within the scope of the request were held electronically by the Community Safety Policy unit of the Criminal Justice function. It said the records are held on the eDocument system, as well as the hard drives and email inboxes of relevant staff members.

The Department stated that 49 records were identified as possibly coming within the scope of the first part of the applicant-�s request, but that, on examination only one record was relevant.

The Department said that searches were carried out on all records related to the development of the Strategy. It stated that there are four members of staff in the Community Safety Policy unit specialising in DSGBV matters and that all of their records were reviewed for the purposes of responding to the applicant-�s request. It said that two staff (an Administrative Officer and an Assistant Principal) were involved in searching for relevant records, and that approximately 20 hours were needed to process this request. The Department also said that its Community Safety Policy unit is -�relatively small comparative to the workload of the unit-�, and that -�the work itself is of such importance that the assignment of more than one staff member to the processing of an FOI request would, in the normal course of events, be massively detrimental to the best interests of the State by virtue of hindering the normal work of the unit-�.

The Department said that it was -�established that there are no records-� held by it in relation to parts 2 and 4 of the request, as any meetings and interviews conducted by the Executive Group for the Strategy were -�made independently of the Department-�. It also stated that there were -�no hard copy or physical records kept during the drafting of the new DSGBV strategy-� which would relate to the applicant-�s request. The Department further said that a -�significant number of hours-� were committed to processing this FOI request -�as part of the training-� for a new member of staff in relation to the FOI Act and the electronic FOI system used by the Department.

In subsequent correspondence with this Office, the Department said that the decision maker concerned holds -�301 emails and 101 documents-� related to the drafting of the Strategy, which involved the Executive Group. It stated there are three members of the Community Safety Policy unit who were involved in drafting the Strategy. The Department-�s position was that, based on this, -�in the region of 1200 records-� would be held by the unit, which would have needed to be examined to determine whether they were relevant to the request.

Analysis

I note that the Department initially stated that 49 records were identified as possibly coming within the scope of part 1 of the request, with only one record of those identified as relevant to the request. I also note that it said that it did not hold or locate any records relating to the other three parts of his request. While the Department stated in subsequent correspondence with this Office that it held approximately 1200 records potentially relevant to the applicant-�s request, it is unclear to me that it needed to review or process this number of records, based on its initial submissions and the substantive decision made on 2 December 2022.

Further, from the Department-�s submissions it appears that a substantial amount of the time involved in processing the request in case was spent on training the FOI Decision Maker in the various processes in place.

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. The provision does not provide for the extension of the four-week period on the ground of any administrative challenges. As such, I am satisfied that the Department had regard to factors that it was not entitled to rely on when extending the decision making period 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 its claim that the request related to such a number of records that compliance with the four-week period was not reasonably possible. I find it difficult to accept that the fact that 1200 recordsmayhave had to be examined to determine if they contained relevant information is, of itself, a sufficient ground for extending the period of consideration of the request under section 14(1)(a). Furthermore, it is not clear to me if the Department was stating that the same emails and records were held by each member of the unit concerned, but that each individual record would have to be examined and considered, regardless of whether they were exact duplicates.

In addition, the Department has stated that only 49 records were examined in relation to part 1 of the applicant-�s request and that no records were held by it in relation to the remaining parts of his request. The Department has also stated that the time actually spent on processing the request was 20 hours. I also note the electronic nature of the records concerned in this case. In the circumstances, I am not satisfied that the Department has justified its position that a four-week extension was necessary.

Accordingly, 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 in this case. I find that it was not justified in extending the time to process his request.

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