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 

8 August 2023

Background

The Department-�s Forest Service is responsible for the development of forestry within Ireland. The applicant is a registered forester. On 2 April 2021, he made an FOI request for:

• all records regarding seven different forestry applications his company had made to the Forest Service (-�the forestry application records-�); and
• records containing details of the Forest Service-�s inspection policy, referral policy, administration/referral policy regarding Native Woodland Conservation Scheme (NWCS) applications, and its complaints procedures (-�the policy records-�).

The Department-�s initial decision-making on the request was the subject of a decision by this Office on 8 November 2021 in Case No. OIC-111164-H2Y4C6. The decision noted how the Department-�s submissions in that case lacked sufficient information about matters such as its records management practices and policies. The Senior Investigator said, in particular, -�that [the Department] has not provided sufficient information about the steps taken to search for relevant records -�-�. He also noted that the Department had found additional records during that review. He said that he was therefore not in a position to find that the Department had taken all reasonable steps to ascertain the whereabouts of relevant records. The Senior Investigator annulled the Department-�s decision and directed it to carry out a fresh decision-making process on the request.

The Department-�s fresh decision issued on 17 December 2021, and the applicant sought an internal review on the basis that he believed that there was a number of records missing. The Department-�s internal review decision, which affirmed its original decision on the basis that -�no other relevant material [was] available in addition to that already released-�, was subsequently subject to a review by this Office in Case No. OIC-119845-Q6J1P9. In a decision dated 27 March 2023, the Commissioner said that, -�[i]n summary, the Department has again not provided sufficient information about the steps taken to search for relevant records and again has located additional records in the course of this review. I have no basis to find that it has taken all reasonable steps to ascertain the whereabouts of relevant records and I find that the Department [has] not justified its effective reliance on section 15(1)(a) in relation to the forestry applications-�. He made a similar finding in relation to the requested policy records. The Commissioner annulled the Department-�s decision and directed it to carry out a fresh decision-making process on the applicant-�s request.

On 24 April 2023, the Department informed the applicant that it was necessary to extend the period for consideration of his request by 4 weeks under section 14(1)(a) of the FOI Act. On 25 April 2023, the applicant sought a review by this Office of the Department-�s decision to extend the time to consider his request. I understand that the Department issued its substantive decision on the applicant-�s request on 19 May 2023. That decision is not the subject of this review. I note therefore, that the decision in this case 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 timeframe for considering the applicant-�s request was in accordance with the provisions of section 14 of the FOI Act.

Preliminary Matters

The Department-�s handling of the applicant-�s request in this instance is wholly unsatisfactory and falls well below the required standards. Its decision had been annulled and remitted by this Office on two occasions, and following the second annulment it extended the time for consideration of the applicant-�s request by four weeks. The matter has been prolonged over two years primarily due to inadequacies in the searches carried out by the Department while processing the applicant-�s request. I would expect the Department to more appropriately make use of section 14 of the FOI Act in future.

Analysis and Findings

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.

Department-�s Submissions

In its submissions to this Office, the Department said that the records that are relevant to the request include application forms, reports, policy documents, and emails. It said they are held in a variety of formats, namely Outlook, Word, Excel, and PDF. It said that the records released with its original decision dated 29 April 2021 were in hardcopy format. It said that electronic versions of these records are stored on the Department-�s eDocs filing system. It also said that hardcopy files are held in various areas of the Department-�s offices, and documents in relation to forestry licence and scheme applications are held electronically on the Department-�s Integrated Forestry Information System (IFORIS).

The thrust of the Department-�s submissions related to the records collated during its processing of the applicant-�s request in the earlier cases is set out above. It stated that 946 records were located when the applicant-�s request was first processed, but that a comprehensive records schedule was not created at the time. It also stated that these records were not stored as individual files and in many cases were grouped together and saved as one PDF. It said that the decision maker in the current case had to examine 364 electronic files containing the 946 records released in the first case in order to -�properly schedule-� these records.

The Department said that its decision in the second case concerned previously-released as well as newly-located records. It said that no detailed records schedule had been created in respect of the electronic records released to the applicant in that case. It also said that some of the previously-released records were renamed when they were released in the second case. The Department said that an additional 53 new files were located that held 128 additional records when it processed the applicant-�s request in the second case. It also said that a further 116 records were identified and released on foot of its internal review in that case.

The Department referred to this Office-�s comments in the previous decisions set out above and said that a large amount of the time spent on this request was needed to create a meaningful schedule of records, which it described as a cumbersome and time consuming task that was necessary to ensure that new records could be easily identified. It said that there was a large volume of records involved covering seven licence applications and requiring the input of a number of staff in various locations, and it also wanted to ensure that all relevant records were identified and provided to the applicant, and that was why it extended the time for making a decision under section 14(1)(a) of the Act.

Essentially, the Department-�s position is that in order to process the applicant-�s request afresh, it was necessary to crosscheck the records previously identified in order to create an accurate record of what had already been released and to avoid duplication. It stated that, in total over the course of the two sets of decision-making processes, it had released 1,190 records to the applicant. It said that it has now provided a detailed schedule of these records to the applicant.

The Department further stated that, following this Office-�s decision in case OIC-119845-Q6J1P9, it undertook a full search of records to inform its fresh decision on the applicant-�s request. The Department stated that the records sought included records up to 2 April 2021. It said that under its email retention policy, emails are deleted from a user-�s mailbox after two years, and therefore many of the relevant emails had already been deleted from individual mailboxes. The Department said that in order to search its electronic archives, the relevant Principal Officer had to give permission for 14 individual mailboxes to be searched. It said that each individual also had to give their permission. The Department said this process added to the time taken to gather all the records.

The Department stated that two staff were mainly involved in processing the applicant-�s request, and staff in the Department-�s IT area conducted an archive search. It also said that it asked staff to search their own folders for any emails or other records that they may have saved locally. The Department estimated that the time for processing the applicant-�s request in this case was approximately 40 hours in total.  It said that 332 records were located as part of these fresh searches, which had to be examined to determine whether they fell within the scope of the request, and if so, if they had already been released to the applicant. The Department stated that 131 additional records were released with its original decision that issued in the course of this review. It also said that in total it had now released 1,321 records to the applicant since his original request was made.

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. Section 14 does not provide for extensions of the time-frame for considering requests on the basis of other FOI related (or any other) administrative challenges arising. 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 FOI 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.

It is worth repeating that the circumstances in which an FOI body may extend the four-week period for processing a request are quite narrow and specific. As such, the Department-�s arguments concerning the difficulties arising in identifying which records had previously been considered or released arising from the manner in which the applicant-�s previous requests had been processed is of no relevance to section 14.

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 was not reasonably possible. It seems to me that the time actually spent in processing the request (40 hours) does not support an argument that the extension was necessary. While it seems there is a significant volume of records associated with processing the applicant-�s request, it is apparent that the majority of these were released previously. Furthermore, it seems from the Department-�s submissions that the work in this case seems to have arisen primarily due to failures of the Department to carry out adequate searches in the first (and second) instance and due to poor scheduling. As noted above, the core of the Department-�s submission seems to be that the time for making a decision in this case was extended mainly in order to create a meaningful schedule of records, not to conduct searches or to process newly located records (which, I note, totalled 332 records, of which only 131 were released). I also note that the FOI Act expects efficiency on the part of FOI bodies when locating and processing records relevant to a request.

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