Whether the Council was justified in refusing access to records containing details of regulatory traffic signs provided by the Council under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work

3 November 2023

Background

On 12 August 2022, the applicant made a ten-part request to the Council seeking an Excel spreadsheet containing details of every traffic sign provided by the Council from 2019 to 2022 inclusive. He indicated that he wished the information sought to be "analysed"� with regard to the following in relation to each sign: the year and date it was provided, the type and function of each sign, the name of the road or street on which each sign was placed and the position of the sign on the road or street, the date the Garda Commissioner asked the Council to erect each sign under section 95(3) of the Road Traffic Act 1961 (the RT Act), the date the Council sought the Garda Commissioner's consent to provide each sign and the date the Garda Commissioner consented, under section 95(5) of the RT Act. Part 10 of his request sought the percentage of each type of sign which was non-compliant with section 95(3) or 95(5) of the RT Act "for each calendar year, to the first decimal place"�.

On 22 August 2022, the Council informed the applicant of its view that his request, as it stood, was voluminous and was "likely to cause an unreasonable interference with the work of the sections involved"� in the Environment and Transportation Department. It said that recommendations for the installation, revision and removal of regulatory traffic signage and the associated consultation with the Garda Commissioner "number in [the] 1000s per annum"�. It stated that the information sought was "recorded in different formats and locations for each section involved in the process"�. It also said that the provision of the information sought "would require [the] identification, retrieval and matching of records from ["�] multiple sections and systems, including, in some cases, [the] manual retrieval of ["�] information"�. The Council said that in accordance with section 95 of the RT Act, as amended by section 37 of the Road Traffic Act 1994, and section 78 of the Road Traffic Act 2010, it was obliged "to consult with the Garda Commissioner in respect of regulatory traffic signs only"�. It stated that that it would not be possible to provide the information requested in relation to every traffic sign, as the information sought did "not exist"� in respect of non-statutory signage. The Council also informed the applicant that the information sought at part 10 of his request did not exist. It asked the applicant to consider refining his request "to bring it to a more manageable level"�.

On 23 August 2022, the applicant indicated that he would refine his request to "every Regulatory Traffic Sign"�, analysed in line with parts 1-6 and 10 of his original request. He amended parts 7-9 to seek the date the Garda Commissioner asked the Council to "provide, transfer, alter or remove each regulatory sign"�, in accordance with section 95(5) of the RT Act (as amended), the date the Council consulted with the Garda Commissioner before providing each desired regulatory sign, in accordance with section 95(3) of the RT Act (as amended), and the date the Garda Commissioner replied to each such consultation before the Council provided each desired regulatory sign, in accordance with section 95(3) of the RT Act (as amended). The applicant indicated his view that his refinement would reduce the volume of the request by more than 90 per cent.

On 30 August 2022, the Council again wrote to the applicant and informed him that the Environment and Transportation Department had advised that the request was still voluminous and likely to cause "severe disruption to the work of the section"�. It noted that the applicant's refined request still sought records relating to every regulatory traffic sign. It stated that this would require the search, retrieval and review of thousands of records, which was not feasible. The Council estimated that there might be weeks of work involved in attempting to respond to the request. It again asked the applicant whether he could make any further refinements to the request to reduce the workload involved.

On 7 September 2022, the applicant responded to the Council. He disagreed that his refined request would cause the disruption envisaged and did not accept that his request was voluminous. He stated that his request, as refined, still stood.

On 19 September 2022, the Council refused the applicant's request under section 15(1)(c) of the FOI Act, as the volume of work required would cause a substantial and unreasonable interference with, and would significantly disrupt the workload of, the relevant sections of the Council. It also stated that it refused the final part of his request under section 15(1)(a) on the basis that such a record "does not exist and would in practice require an audit of all existing on-street traffic signs and [the] retrieval of records associated with each"�. Following a request for an internal review, on 4 November 2022, the Council affirmed its decision to refuse the applicant's request under section 15(1)(c) of the FOI Act. It did not rely on section 15(1)(a). On 3 May 2023, the applicant applied to this Office for a review of the Council's decision.

During the course of the review, the Investigating Officer provided the applicant with the key details of the Council's submissions in support of its refusal of his request under section 15(1)(c) of the FOI Act. The Investigating Officer informed the applicant of her view that the Council's decision was justified. The applicant was invited to respond and he provided further submissions on 12 September 2023.

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

The applicant has made various arguments in relation to the Council's internal review decision, which he considers to be invalid. Among other things, he stated that the decision was incorrectly dated and that as the internal reviewer had affirmedandvaried the original decision by solely relying on section 15(1)(c), it was not valid.

Section 21(2)(b)(i) of the FOI Act provides that, following a review of the initial decision, the head of an FOI body may "affirm or vary the decision". On 4 November 2022, the internal reviewer informed the applicant that the decision "was an entirely new and separate decision"� on his request. The internal reviewer proceeded to refuse the request under section 15(1)(c) of the FOI Act. In the circumstances, I am satisfied that it was open to the Council to affirm its refusal of the request under section 15(1)(c) in its entirety and that its decision at internal review stage was valid.

Accordingly, this review is concerned solely with whether the Council was justified in its decision to refuse, under section 15(1)(c) of the FOI Act, the applicant's request for information relating to regulatory road traffic signs.

Preliminary Matters                                                                        

It is important to note that this Office has no role in examining the administrative actions of FOI bodies, nor does the FOI Act allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the FOI Act.

In his correspondence with this Office during the course of the review, the applicant raised a number of concerns in relation to the review process itself. While I do not propose to address each of those concerns, I am satisfied that the process followed was fair and generally in compliance with the summary procedures we have published on our website (available here:https://www.oic.ie/guidance-and-resources/Our-Procedures/Summary-ProceduresV3.pdf). As previously explained to the applicant, section 45(6) of the FOI Act provides that the procedure for conducting a review under section 22 shall be such as the Commissioner considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the Commissioner.

Lastly, the applicant argued in his correspondence with the Council that there is a public interest in the release of the records sought. Section 15(1)(c) provides for the refusal of a request on administrative grounds and it is not subject to a public interest balancing test. As such, I cannot have regard to the applicant's arguments as to why he considers that release of the records at issue is in the public interest.

Analysis and Findings

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request where in the opinion of the head, 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 the 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 FOI body concerned.

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)

As set out above, there were a number of exchanges between the parties concerning the scope of the request in this case and whether it could be amended. Both parties provided this Office with a copy of the relevant correspondence for the purposes of this review.

Essentially, the Council's position is that it offered assistance as required by section 15(4), but that the applicant did not refine his original request in any significant way.

In his submissions to this Office, the applicant stated that the Council provided "once-off reasonable assistance"� on 22 August 2022, in response to his original request. He said that he subsequently refined his request by more than 90 per cent. The applicant stated that the Council did not mention "any possibility of a refusal"� of his request and that it did not provide any additional "reasonable assistance"�, although it was aware of his "willingness to refine"�. The applicant made substantial arguments on the matter and essentially was of the view that the Council "failed to provide actual assistance, failed to offer meaningful assistance, and failed to make a suggestion to assist another, informed, refinement"�. He argued that the Council's only post-refinement engagement "did not amount to reasonable assistance, or a meaningful offer to assist, or a suggestion designed to assist"� and that the internal reviewer's assertion that his refinement did not significantly reduce the volume of his original request was "false, misleading and dishonest."�

The applicant is of the view that the Council failed to satisfy its obligations under section 15(4) before it issued its internal review decision, and that, therefore, its refusal of his request under section 15(1)(c) was invalid.

While the FOI 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.

Parts 1-9 of the request

Having considered the exchanges between the parties during the consideration of the applicant's request and their respective submissions to this Office on section 15(4), I am satisfied that the Council attempted to engage with the applicant to refine parts 1-9 of the request on two occasions before it refused same. I note that on 22 August 2022, the Council informed the applicant of its view that his request, as it stood, "was voluminous and likely to cause an unreasonable interference with the work of the sections involved"� in the Environment and Transportation Department. I am satisfied that this can reasonably be interpreted as an indication that the Council was considering a refusal of the request under section 15(1)(c) of the FOI Act. The Council also informed the applicant that it had a statutory obligation "to consult with the Garda Commissioner in respect of regulatory traffic signs only"� and that it would "not be possible to provide the information requested in relation to 'every' traffic sign as the information does not exist for non-statutory signage"�. I note that it asked the applicant to consider the request and advise if he was in a position to offer any refinements to same. I also note that the applicant engaged with the Council in this regard and refined his request. On 30 August 2022, the Council again asked the applicant to refine his request, which in its view, was "still voluminous and likely to cause severe disruption to the work of the section"�. The applicant chose not to do so, stating that his "request, as refined, stands"�.

Having carefully reviewed the correspondence in question, I am satisfied that the Council outlined the reasons why it considered parts 1-9 of the applicant's request to be voluminous and that it attempted to engage with him in order to reduce the scope of those parts of the request. In the circumstances, I am willing to accept that the Council complied with the requirements of section 15(4) of the FOI Act in relation to parts 1-9 of the request.

Part 10 of the applicant's request

However, I am not satisfied that the Council complied with its obligations under section 15(4) in relation to part 10 of the applicant's request. As I outlined above, the Council initially refused part 10 under section 15(1)(a) of the FOI Act. In its internal review decision, it relied on section 15(1)(c). I note that in its correspondence to the applicant during the consideration of his request, the Council informed the applicant that the information sought in the final part of his request, i.e. part 10, "does not exist"�. I am satisfied, therefore, that the Council's engagements with the applicant in order to reduce the scope of his request concerned parts 1-9 only and did not extend to part 10. No evidence has been presented to this Office to suggest that the Council engaged with the applicant in relation to part 10 of the request, prior to refusing that part under section 15(1)(c) in its internal review decision.

The provisions of section 15 of the Act are clear. A public body cannot refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under section 15(1)(c). The internal reviewer did not do so in this case, therefore, I find that the Council did not comply with the provisions of section 15(4) in relation to part 10 of the applicant's request.

In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of the Council in relation to part 10 of the request and to direct it to consider the matter afresh. In considering the matter afresh, I would draw the Council's attention to sections 15(1)(a) and 17(4) of the FOI Act.

It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.

Section 15(1)(a) provides that an FOI body can refuse a request for records where the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. Where the search and extraction needed to collate or extract information requires a body to go beyond reasonable steps, this Office has found that it can rely on section 15(1)(a) to refuse a request, i.e. that no relevant record exists having taken all reasonable steps to locate it.

What remains to be considered is the Council's decision to refuse parts 1-9 of the applicant's request, which I will consider below.

Section 15(1)(c) and parts 1-9 of the applicant's request

In establishing whether a request would cause a substantial and unreasonable interference with or disruption of work, the number of records which need to be retrieved and examined and/or the kind of examination which is required are relevant. A number of factors may have a bearing on this issue, such as:

• the nature and number of the records covered by the request;
• the location(s) in which they are held or stored and whether these are readily identifiable;
• how the records are stored or filed and the relevant filing system;
• the tasks or steps necessary to search for, identify, locate, retrieve and examine the records;
• the nature and number of the relevant records to be examined;
• the length of time and the personnel required to do so;
• the length of time required to consider the records in order to determine their relevance to - the request and whether they are appropriate for release; and
• the size, staffing levels and work of the FOI body (including the relevant functional area) concerned.

It should be noted that a refusal may be made on the basis of a disruption of the work of a particular functional area, and not necessarily on the basis of disruption of work of the body as a whole.

The Council's submissions

In its submissions to this Office, the Council said that the applicant was not seeking a specific record or records held by it, but a spreadsheet combining specific data elements of multiple records. Essentially, the Council's position was that providing the information sought in the manner requested would require extraction from different records and record systems, which would cause a substantial and unreasonable interference with or disruption of the work of the relevant sections of the Environment and Transportation Department.

The Council said that it is required to consult with the Garda Commissioner in respect of all regulatory traffic signs it provides. It said that the administration of requests and recommendations for all traffic signage, including the majority of regulatory traffic signs, was managed by the Transport Advisory Group (TAG) administrative section of the Environment and Transportation Department, which comprises seven members.

The Council said that requests for signs are received by way of an online form and/or direct correspondence to the section, which are set up on its Transport Asset Management System (TAMS). It outlined the processes relating to the referral, review, recommendation and consultation involved before a sign can be installed. It said that the identification and retrieval of individual records on the TAMS is done by location, i.e. road name. It said while it is possible to search just statutory (STAT) files for regulatory sign records, this is also done by individual road or street name, with all records associated with a particular road or street then selectable individually.

The Council said that details of all street names and regulatory traffic signs in its administrative area are included on the TAMS. It said that, following the applicant's request, it created an ad-hoc query on the TAMS, wherein it searched all street names and all regulatory signs between the relevant dates. It said that this search identified 2,890 records relating to all permanent, temporary, approved and/or rescinded regulatory traffic signs.

The Council said that Speed Limit regulatory signs are subject to a different administrative and statutory process, which is managed by the Road Safety, Policy, Strategy and Innovation section of the Environment and Transportation Department. It said that statutory consultation with the Garda Commissioner is carried out in relation to speed limit zones, which are then set out in the relevant bye-laws.

The Council said that upon completion of either of these processes, notification is issued to the Senior Traffic Officer in the Traffic Management and Control Section for assignment to individual Assistant Traffic Officers for installation. It said that the completion of the installation is recorded manually by the section on individual worksheets. It said that hardcopy worksheets are scanned in pdf format and saved on a shared drive. It said that installation records do not include any TAMS reference. It said that in order to cross-reference regulatory signs identified on the TAMS, it would be necessary to identify the exact date, location and sign on the scanned worksheets and manually match it with the TAMS records. It estimated that there are in the region of 1,000 worksheets per annum.

The Council's position was that in order to process the applicant's request, it would be necessary to assign all staff in the relevant section to the task of retrieving and matching installation records, which it estimated would take well in excess of 100 hours to complete. It said that even if such a matching exercise was undertaken, given the type and content of the records concerned, it was doubtful that it could be completed successfully.

The applicant's submissions

The applicant made various arguments in his request for internal review, which have been considered in full. As set out above, this Office provided the applicant with an overview of the Council's submissions in support of its decision to refuse his request. In response, the applicant stated that the TAMS system was the only relevant system and that it was "not fit for purpose"�. He referred to the FOI Decision Makers Manual published by the Central Policy Unit of the Department of Public Expenditure and Reform, which provides that "[a] body will not be able to include additional time or work needed because [its] filing or directory searching is cumbersome or inefficient ... The records system in use should be fit for the purposes of the function."� Essentially, he seemed to be of the view that the Council's decision to refuse his request as voluminous was based, at least in part, on the inefficiency of its systems.

The applicant was of the view that the Council's description of the functional area(s) that managed the information sought had changed in its correspondence. He argued that the Roads and Traffic section was the only relevant functional area. Among other things, he stated that the Council had repeatedly referred to Road and Traffic section as a functional are in job information booklets. He contended that his request would not cause a substantial and unreasonable interference with, or disruption of, the work of this functional area. The applicant also argued that all of the information sought was held on "Floors 5-7, Block 2, Civic Offices, Traffic Section, Roads and Traffic Division"� and was "readily available"�.

The applicant said that, based on an invitation to tender published by the Council, it spent €110,000 on road signs in 2018. He said that only 10 per cent (or €11,000) of that number were regulatory signs. He estimated that the Council provides less than 110 regulatory signs annually. His position was that his refined request related to only about 110 regulatory signs provided annually, and that therefore, it could not amount to a substantial and unreasonable interference with, or disruption to, the work of the Roads and Traffic functional area, which he believes has approximately "1,000 [full time equivalent] staff"�.

Following the applicant's submissions to this Office, the Investigating Officer sought to clarify the relevant functional area of the Council for the purposes of processing the applicant's request. In response, the Council said that the Roads and Traffic section forms part of the Environment and Transportation Department, and that while they are commonly cited together, they are separate functional areas within the department, each with their own divisions and sections and with different roles to play in the provision of services.

The Council said that in order to continue to provide the administrative support necessary for TAG to provide its services, it would "not be realistic"� for a number of staff of the section to be assigned to attempt the record retrieval and manual matching necessary to provide the information sought by the applicant. It also said that other staff do not have the experience or knowledge of the relevant system to undertake this exercise. The Council's position is that the individuals best placed to identify the records containing the information sought by the applicant are the seven members of the TAG, which is part of the Environment and Transportation Department.

Analysis

Section 15(1)(c) of the FOI 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.

The applicant is of the view that the TAMS "is not fit for purpose"�. While I note the applicant's comments, they seem to relate to the Council's ability to collate information relating to his request, rather than the system's capacity to serve the Council's functions in terms of the management of traffic signage, etc. However, this Office has noted in previous cases that while public bodies collect, generate and use vast amounts of information as a matter of course, the maintenance of and access to such information, by design or practice, relate to their own particular functions and reporting requirements, not necessarily those of applicants. Simply put, FOI bodies are not required to design reports and systems in order to best answer FOI requests. 

The parties in this case have made conflicting submissions as to the number of records to be examined and time needed in order to process the applicant's request. The applicant estimated that the Council solely deals with 110 regulatory signs per year and contended that his refinement of his request brought it within manageable levels. He disputed the Council's statements regarding the relevant section(s) and functional area(s) which would be disrupted. He argued that the Council could not refuse his request as voluminous based on his understanding of its systems. On the other hand, the Council stated that traffic signs are subject to a complex process of review, recommendation and/or consultation before being assigned for installation. It said that the final installation worksheets are manually completed, then scanned. It also said that these scanned documents are filed and searchable by year, but that they don't have any reference which would allow cross-referencing with the TAMS system. The Council also stated that the relevant electronic files are searchable by location, and that combining the information held in different formats across different systems would be onerous and time-consuming. On balance, it seems to me that the Council would be in the best position to describe its systems and how the records concerned are stored and accessed. Accordingly, I am willing to accept its submissions on the steps that would be required to respond to the applicant's request in this case.

As outlined above, a refusal under section 15(1)(c) of the FOI Act may be made on the basis of the disruption of the work of a particular functional area in an FOI body. In its correspondence with the applicant on foot of his request, the Council stated that his request as drafted was "likely to cause an unreasonable interference with the work of the sections involved"� in the Environment and Transportation Department. In its submissions to this Office, it referred to various processes carried out by the Road Safety, Policy, Strategy and Innovation section, the TAG administrative section and the Traffic Management and Control Section. While I note the applicant's arguments, I do not consider that a description of an FOI body as set out in job information booklets to necessarily be determinative when considering what comprises a functional area for the purposes of the FOI Act.

I also note the Council's argument that the seven members of the TAG would be best placed to identify the information and records sought. In the circumstances, I am willing to accept that the time and resources that would be required to retrieve and examine approximately 1,000 worksheets per year and manually match each installation record with the relevant TAMS record in order to process the applicant's request, would cause a substantial and unreasonable interference with, and disruption of, the work of the TAG section of the Environment and Transportation Department of the Council.

Having regard to the above, I find that the Council was justified in its decision to refuse parts 1-9 of the applicant's request on the basis of section 15(1)(c) of the FOI Act. Accordingly, I find that the Council was justified in refusing parts 1-9 of his request on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work. I would add that it remains open to the applicant to submit a revised request to the Council for relevant records if he wishes to do so.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision. I affirm its decision to refuse parts 1-9 of the applicant's request under section 15(1)(c) of the FOI Act. I annul its decision to refuse part 10 of the applicant's request under section 15(1)(c) and I direct it to consider this part of his 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.

Sandra Murdiff
Investigator