Whether the EPA was justified in effectively refusing an FOI request for access to records relating to Ireland's emissions

8 November 2023

Background

On 15 May 2023, the applicant made a ten-part request to the EPA under the FOI Act in which he sought records and information relating to Ireland's emissions and the work of the EPA. In short, he sought access to: records which led the EPA to reach certain conclusions, the number of scientific papers reviewed in respect of certain matters, and the geographical distribution of grant aid. He also posed a number of questions relating to methods and models employed by the EPA. He queried what proof the EPA had in respect of certain statements and the basis for certain positions.

On 30 May 2023, the EPA wrote to the applicant and said that the information requested "appears to be publicly available"�. It said that it would deal with the request "outside the FOI mechanism"�. On 19 June 2023, the applicant wrote to the EPA stating that his request had not been fulfilled and seeking to appeal its decision. On 28 June 2023, the EPA wrote to the applicant. It said that it had dealt with the request outside the FOI process "due to the broad nature of the questions posed"� and "the fact that any relevant data is already publically available"�. It provided a response to each of the applicant's ten points, as well as an overall comment. Its response included links to certain publicly available documents but no records were released. On 10 July 2023, the applicant applied to this Office for a review of the EPA'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 submissions made by the EPA and the applicant in his application to this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, the EPA made the decision to progress the applicant's request outside the FOI process. In its correspondence to the applicant dated 28 June 2023, it provided links to a number of publically available reports and guidelines alongside its responses to each of the ten points raised. In his application to this Office, the applicant said that he was not given an official reply to his FOI request and that the partial reply provided by the EPA was unsatisfactory.

This review is therefore solely concerned with whether the EPA was justified in its effective refusal of the applicant's FOI request.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, as noted above, the EPA did not progress the applicant's request in line with the FOI Act. I will comment on this matter further below, but at the outset, I would note that the Central Policy Unit (CPU) of the Department of Public Expenditure, NDP Delivery and Reform has published, pursuant to section 48(1) of the Act, a Code of Practice and guidelines on FOI for public bodies (see www.foi.gov.ie). Under section 48(3) of the Act, FOI bodies are required to have regard to the Code and guidelines in the performance of their functions under the Act. I encourage decision makers to use the FOI resources available, including the CPU guidance, to assist them in processing requests and in ensuring that their decisions comply with their obligations under the Act.   

Secondly, section 11 of the FOI Act provides for a right to access to records held by an FOI body. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the legislation, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Of relevance, section 11(2) of the FOI Act requires an FOI body to give reasonable assistance to a person who is seeking a record under the Act in relation to the making of the FOI request for access to the record. It is open to the FOI body to clarify the request with the requester where the wording of the request is not clear.

Finally, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the EPA to satisfy this Office that its decision was justified.

Analysis and Findings

As noted above, the EPA did not progress the applicant's request in line with the FOI Act. During the course of the review, I sought submissions from the EPA as to why a decision under FOI did not issue to the applicant.

In its submissions, it said that it notified the applicant that it would deal with his request outside FOI and that the applicant "did not dispute this with the EPA at the time"�. While I note that the EPA communicated this intention, the applicant does not appear to have agreed to this approach. Rather, he next wrote to the EPA seeking an appeal in respect of his FOI request as it had not been "fulfilled"�. He referenced his right to make an application for review to this Office in his correspondence.

As noted above, and as the EPA is no doubt aware, the CPU, pursuant to section 48(1) of the Act, has published guidance notices, including in respect of the release of information outside of FOI. Section 2.2 of the relevant guidance note (Notice 2) provides that where an FOI body identifies that a request may be handled outside of the FOI process it should first ensure that records identified may be released. Section 2.3 provides that it should then engage with the requester and get agreement from them that the request can be handled outside the FOI process. The EPA said that it felt a "direct response to the questions posed would not have provided relevant records"� and that "the team expended considerable effort to provide detailed responses to [the applicant's] questions with reference to publicly available EPA and internal sources"�.

It seems to me that the applicant in this case did not agree to the EPA progressing the request outside of the FOI process. Indeed, in his application to this Office he stated that he was not given an "official and signed off reply"� to his FOI request. He also made submissions in respect of the correspondence issued to him by the EPA and noted that he has not been told by the EPA that certain information is unavailable. He said that he wants an official reply from the EPA in respect of whether it holds such information.

While acknowledging that the EPA sought to assist the applicant and provide him with meaningful responses to the questions he posed, the FOI Act provides for a right of access to records held by FOI bodies. Requesters are entitled to be notified of the decision of the FOI body. Section 13(2) provides that the relevant notice shall specify the decision, the name and designation of the person dealing with the request, the reasons for the refusal and the provisions of the Act pursuant to which the request is refused, as well as the rights of review and appeal. The EPA has not progressed the applicant's request in accordance with the FOI Act.

In a request for submissions, I also asked the EPA to outline its position in respect of the FOI request and to outline the legislative basis on which the request was refused. In submissions received, the EPA sought to rely on sections 15(1)(a), 15(1)(b) and 15(1)(d) of the FOI Act. I will consider in brief the submissions it made to this Office.

Section 15(1)(b)

The EPA has sought to rely on section 15(1)(b) of the FOI Act in respect of the applicant's request. This section enables an FOI body to refuse a request that does not comply with section 12(1)(b) of the FOI Act. Section 12(1)(b) provides that a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

The EPA's position is that due to the broad nature of the applicant's request, it was unable to identify records relevant to his request/questions. It noted that the applicant's request comprised a series of questions. It said that it directed him to publicly available sources of information which it "felt would allow the requester to better understand the subject matter which may in turn allow him to make a more informed request"�. It said that the EPA was of the view that the request did not comply with section 12(1)(b) as it did not contain sufficient particulars for the EPA to identify records by taking reasonable steps.

Section 15(1)(b) does indeed allow for the refusal of a request where it does not contain sufficient particulars to enable the identification of records by taking reasonable steps. However, such a refusal is subject to section 15(4). Section 15(4) provides that the FOI body shall not refuse to grant an FOI request under section 15(1)(b) unless it has assisted, or offered to assist, the requester to amend the request so that it no longer falls within that paragraph.

I am not satisfied that the EPA assisted or offered to assist the applicant in this regard. No evidence has been put before me in support of such a position. While I note that the EPA referenced the broad nature of the questions posed by the applicant in its correspondence dated 28 June 2023, I do not accept that this constitutes assistance.

Section 15(1)(a)

The EPA said that it is also refusing access to records in respect of nine parts of the applicant's request on the basis of section 15(1)(a). That section provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Generally, our role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This involves having regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and assessing the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. Where an FOI body claims that a record never existed, it may be that the circumstances of the case, rather than the actual searches carried out, are more relevant.

The EPA's position is that relevant records do not exist in respect of nine parts of the applicant's FOI request. It said that it referred the applicant to other EPA sources of information published on its website. In communications with this Office, the EPA made submissions in support of its position that it does not hold relevant records. For example, it said that it does not undertake certain measurements or analysis or compile certain reports. However, as noted above, this detail has not been provided to the applicant. Nor has the EPA provided this Office with submissions in respect of specific searches undertaken.

Where an FOI body relies on section 15(1)(a) of the FOI Act to refuse a request, it is this Office's position that decision letters should always include detailed information relating to the nature of the searches carried out and of the locations searched. The inclusion of additional background information and detail, as to the nature of the searches carried out or the locations searched, presents a more complete picture to requesters of the efforts made to locate the requested records. Decision letters should always explain the basis on which the FOI body concluded that the requested records did not exist or could not be found.

Section 15(1)(d)

The EPA also referenced section 15(1)(d) in its submissions to this Office. This section provides for the refusal of a request where the information is already in the public domain. It appears that the EPA is seeking to apply this ground for refusal in respect of sources of information which it provided to the applicant in its correspondence dated 28 June 2023. However, such sources of information were largely provided in circumstances where the FOI body was claiming that it did not hold relevant records requested.

Findings

It is important to note that a review by this Office is considered to be "de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. While I note that the EPA has now outlined its position in respect the applicant's request and has relied on a number of administrative grounds for refusal, the fact remains that it did not communicate a decision under the FOI Act to the applicant. Given the circumstances, I do not consider that it would be an appropriate use of the resources of this Office to effectively stand in and communicate the EPA's position to the applicant, particularly as it is not normally the practice of this Office to exchange submissions between parties to a review. Neither would it be appropriate for this Office to effectively act as an internal decision maker in circumstances where an initial decision under FOI did not issue.

In addition, it seems to me that the EPA has advanced a number of contradictory arguments in its submissions to this Office. It said that the majority of the records requested do not exist. However, it also said that the applicant's request did not contain sufficient particulars to enable relevant records to be identified. Critically, it did not assist the applicant to amend his request accordingly. As such, I am not in a position to accept the application of section 15(1)(b). In addition, I consider that the EPA's reliance on this provision undermines its position that section 15(1)(a) applies. If its position is that it was unable to identify the relevant records, it seems to me that it cannot simultaneously claim that no relevant records exist.

Finally, I am not satisfied that the EPA has applied section 15(1)(d) in respect of records actually sought by the applicant. It seems to have applied the provision to other sources of information to which it directed the applicant. I would note that section 15(1)(d) is the only provision claimed in respect of part 7 of the applicant's request. On its face, this appears to be an appropriate use of the subsection. However, in light of my other findings, I do not consider it appropriate to make a discrete finding on this point, particularly in circumstances where the applicant is unaware of the EPA's reliance on this refusal ground.

In sum, having carefully considered the relevant correspondence and submissions received, I am not satisfied that the EPA has justified its decision to effectively refuse the applicant's request. I consider that the appropriate course of action in this case is to annul the FOI body's decision and direct it to undertake a fresh decision making process in relation to the request. I understand that this will result in further delays for the applicant and further work for the FOI body but I do not believe that any other course of action would be appropriate. The effect of this finding is that the EPA should consider the request afresh and make a new, first instance decision in respect of it. The applicant will then have a right to internal review and to a review by this Office if he is not satisfied with that decision.

In making a new first instance decision, the EPA should have close regard to guidance issued by this Office and the CPU as well as the comments above. Should it seek to rely on any exemptions or administrative grounds for refusal, it should ensure that the requirements of the relevant subsection are met. 

I would also remind the applicant that the FOI Act provides for a right to request access to records held by an FOI body; it does not entitle requesters to an answer to each and every question they may have. Notwithstanding my findings above, I consider that the EPA has endeavoured to answer questions posed by the applicant and has expended time and energy compiling and collating information. In the context of fresh decision-making, I encourage the applicant to engage with the FOI body in good faith and I would remind him that there is an onus on requesters to provide sufficient information to allow the FOI body to identify the records sought by the taking of reasonable steps.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the EPA and direct it to undertake a fresh decision-making process in relation to the FOI 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.

Alison Connolly
Investigator