Decision
Mr. Z and National Transport Authority
From Office of the Information Commissioner (OIC)
Case number: OIC-146255-D6G8C5
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URL: http://www.bailii.org/ie/cases/IEIC/2024/146255.html
Cite as: [2024] IEIC 146255
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Whether the NTA was justified, under section 15(1)(c) of the FOI Act, in refusing access to submissions made to it relating to three rounds of public consultation it undertook about the Kimmage to City Centre Bus Corridor on the ground that processing the request would cause a substantial and unreasonable interference with, and disruption of, its work
The BusConnects Dublin Programme is the NTA's programme to improve bus services in the Greater Dublin Area. The programme contains 12 stand-alone Proposed Schemes. The NTA undertook three rounds of non-statutory public consultation around proposed route options and design of the schemes, following which planning applications for all 12 schemes were submitted to An Bord Pleanála (ABP). The Kimmage to City Centre Core Bus Corridor Scheme is one of 12 proposed schemes.
In a request dated 6 October 2023, the applicant sought all submissions made to the NTA in the three stages of consultation on the Bus Connects scheme that referred to the section of the corridor on the Lower Kimmage Road from the Kimmage Cross Road Junction (at Terenure Road West) to the entrance of the Hospice at Harold's Cross.
On 18 October 2023, the NTA emailed the applicant and said that his request is likely to be refused as a voluminous request under section 15(1)(c) of the FOI Act. The NTA invited the applicant to refine his request so that it no longer falls to be refused under section 15(1)(c) of the Act and offered to assist him in amending his request. On 28 October 2023, the applicant responded to the NTA's email, outlining his view that while the records requested are potentially voluminous, he believed that all the records would have been already sub-categorised by the NTA into sections of the corridor for the report published on the Bus Connects website. The applicant did not refine the scope of his request.
On 7 November 2023, the NTA refused the applicant's request under section 15(1)(c) of the Act. On 10 November 2023, the applicant requested an internal review of the NTA's decision and reiterated his belief the submissions were already categorised by section for the report published on the Bus Connects website. On 8 December 2023, the NTA affirmed its original decision. The NTA said that upon receiving the applicants internal review application, it focused on identifying whether there were any methods to refine, identify, and process the significant number of records requested. It said it had received 1,034 submissions relating to the Kimmage to City Centre Bus Corridor Scheme. While it accepted that many of these submissions were categorised, the NTA said this did not reduce the amount of work necessary to process the applicants request. The NTA said it would still be necessary to review all the records to extract the relevant information and to redact personal information which would not be suitable for release. Based on testing it carried out of a limited sample of the records, the NTA estimated it would take a staff member 2-3 weeks to complete the required work.
On 8 February 2024, the applicant applied to this Office for a review of the NTA's decision. The applicant reiterated his belief that very little examination of the records should be necessary, barring minimal redaction of email addresses and names.
During the course of this review, the Investigating Officer provided the applicant with details of the NTA's submissions to this Office wherein it outlined its reasons for refusing the request under section 15(1)(c), which included a breakdown of the anticipated work that would be necessary if the NTA were to grant the request. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 outlined above and to the submissions made by both the NTA and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the NTA was justified in its decision to refuse the applicant's request under section 15(1)(c) of the Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of its work.
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) 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 NTA 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.
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), and 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). The question I must consider in this case is whether the NTA provided reasonable assistance to the applicant in amending his request, or whether it offered to provide assistance in circumstances where the applicant was not willing to amend the original request.
As noted above, the NTA wrote to the applicant on 18 October 2023 explaining that his request would likely fall to be refused under section 15(1)(c) of the FOI Act. The NTA stated that pursuant to section 15(4) it wished to assist him in amending his request so that it no longer falls within section 15(1)(c). The NTA invited the applicant to contact it if he wished to avail of assistance. On 28 October 2023, the applicant responded to the NTA disputing its position that his request would cause an unreasonable interference with its work and chose not avail of the offer to amend his request.
Section 15(4) does not require the FOI body to offer unlimited assistance, and it is often the case that applicants are best placed to make suggested refinements due to their specific knowledge of the records they are seeking. In this case, the NTA informed the applicant his request is voluminous and invited him to amend it so that it no fell to be refused under section 15(1)(c). As noted above, the applicant chose not amend his request and did not avail of the offer of assistance. In the circumstances, I am satisfied that the NTA offered to assist the applicant in amending his request so that it no longer falls to be refused under section 15(1)(c). Accordingly, I am satisfied that the NTA complied with the provisions of section 15(4) of the FOI Act. I will now consider whether the NTA was justified in refusing the applicant's request under section 15(1)(c) of the Act.
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 within the FOI body, and not necessarily on the basis of disruption of work of the body as a whole.
In its submissions to this Office, the NTA explained that it held three rounds of non-statutory public consultations relating to the Core Bus Corridor project. Reports on the outcome of the public consultation are published on https://kimmagescheme.ie/ . I understand that submissions were categorised according to specific sections of the bus corridor. In the consultation reports published, the NTA provided a table which detailed the number of submissions received per section during each round of consultation. The applicant identified sections 1 and 2 of the bus corridor as relevant to his request. The NTA explained that during the course of the three rounds of public consultation it received 1,034 submissions in total. Of these, approximately 440 submissions were not categorised as they referred to multiple sections of the corridor. I understand that approximately 424 submissions were received relating specifically to either section 1 or 2 of the corridor. The NTA's position is that in order to grant the applicant's request it would be necessary to locate, review and redact where necessary the 424 section specific submissions. The NTA said the 440 non-categorised submissions would also need to be reviewed in full in order to ascertain if any relevant information relating to sections 1 and 2 are held in those submissions. The NTA said that any relevant submissions which are identified from the non-categorised submissions would then need to be redacted where appropriate before release. The NTA stated that the applicant's request as it presently stands is considered voluminous, and it believes the request would cause a substantial and unreasonable interference with or disruption of the work of the Bus Connects Infrastructure Dublin Team (BCID team), which is the relevant functional area concerned.
The applicant does not accept his request is voluminous. The applicant believes the information should be easily accessible and easily retrieved by the NTA. The applicant does not accept there would be a large volume of personal information to redact. The applicant argued it would not take an unreasonable amount of time to search and collate these submissions as they would have previously been categorised for the report on the Bus Connects website. The applicant contends that the NTA must have the records grouped into categories in order to be aware of the precise number of submissions received relating to each section of the corridor. The applicant said that he accepts there are a lot of submissions, but that it is abundantly clear that NTA has already identified a significant quantity of those records that are relevant to his request. He contends that little redaction would be required, based on similar submissions made to An Bord Pleanála relating to the bus corridor.
In its submissions to this Office, the NTA said that the relevant functional area, the Bus Connects Infrastructure Dublin Team (BCID team), is relatively small in size- consisting of 24 people and one Administrator. The team is responsible for the management of delivery of the Core Bus Corridors Infrastructure Works within the overall Bus Connects Dublin programme. The NTA stated that the single Administrator on the team would be tasked with processing this request, and its position is that being without an Administrator for an extended period of time - 2-3 weeks - would place the remainder of the team in an unreasonable position. The NTA said that as the work of the Directorate is involved in progressing a number of key elements of the National Development Plan, it is of the view that the processing of the request in its current format would impose significant and unreasonable interference with the work of the NTA and in particular the work of the Transport, Planning and Investment Directorate.
The NTA said that submissions were received in a number of formats, including meetings with landowners potentially subject to CPO, by physical letters by post, emails submissions and through an online form on the Bus Connects website. The NTA said that all meeting notes and postal submissions were scanned into PDF format. The NTA said that all files received during public consultation were then renamed to include the date, name of sender, and where available address, to the file name. The NTA said that in order to grant the applicant's request, each file would need to be reviewed and renamed. In relation to the redaction of information, the NTA said that because most of the files were received in email format, and email does not allow for redaction, that it would have to convert each file to PDF in order to facilitate redaction. The NTA said that in order to retrieve the relevant submissions, all files would need to be read in detail in order to clarify their relevance to the scope of the applicant's request.
The NTA provided an average time estimate to complete the tasks needed per submission in order to process the applicants FOI request, based on a sample exercise it carried out. The NTA initially estimated it would take an average of 4.5 minutes per submission, accounting for the 1,034 submissions received, which totalled over 70 hours of work for one person. The 4.5 minutes relates to the time necessary for location of the file, review, conversion, and redaction where necessary.
During the course of this review, the Investigating Officer asked the NTA whether processing the applicant's request for submissions solely related to the sections 1 and 2 of the bus corridor would still be voluminous. The NTA said it would. The NTA stated that in order to process the section specific submissions which account for approximately 424 submissions, the stored submission file would need to be cross-referenced with spreadsheets used to manage the categorisation of submissions. It stated this adds an additional average time of two minutes per submission for location, to be added to the average 4.5 minutes per submission accounted for. In the case of the 424 submissions, averaging 6.5 minutes per submission, this would require a total time of approximately 45 hours of work on a full-time basis for one person. The NTA stated that as the BCID team is relatively small, a request to solely process the 424 submissions would still leave the team in the unreasonable position of having no Administrator for an extensive period of time. The NTA stated that while the 424 submissions referred to relate only to specific sections of the corridor, this does not negate the need to review the circa 440 submissions which were not categorised. The NTA stated that these 440 submissions would need to be reviewed in order to identify any submissions under this category that referenced sections 1 or 2 of the corridor, as the 440 submissions were not categorised because they referred to multiple sections of the scheme. The NTA estimated, based on an average of 6.5 minutes per submission, that it would take approximately 48 hours for one person to process the 440 non-categorised submissions.
To summarise, the NTA's position is that in order to grant a request for all submissions made to the NTA which refer to sections 1 and 2 of the corridor, the NTA would need to locate, review and redact as necessary both the 424 categorised submissions, and review all of the 440 non-categorised submissions to identify any submissions within this category which refer to sections 1 and 2 of the corridor. To complete this work, the NTA estimate that in total it would take approximately 93 (45+48) hours of work.
In his submissions to this Office, the applicant queried why the NTA deemed it necessary to redact personal information. The applicant said he believes the submissions provided to the NTA are unlikely to consist of a large amount of personal information. The applicant referenced submissions that are published on An Bord Pleanála's website in relation to the proposed Kimmage Bus Corridor Scheme and said that these submissions contain only small amounts of personal information.
The NTA said that two privacy notices were in place throughout the three rounds of non-statutory public consultations carried out. The first privacy notice was a physical copy given to landowners potentially subject to land-take through CPO, and the second privacy notice was, and is currently, available on the Bus Connects website. The NTA has said that both privacy notices detail the purpose of processing the personal data, the legal basis, and recipients of the data, among other relevant information received in submissions. The NTA stated the privacy policy in place does not allow for the publication of personal information provided in submissions. Consequently, the NTA has stated that in line with its privacy policy, it cannot release personal information provided in submissions to the public, therefore redaction is necessary.
I note that having been made aware of this information, the applicant said it is reasonable to assume the 84 submissions publicly available on An Bord Pleanála's website likely contain much of the same information as those submitted to the NTA. In relation to the volume of personal information received, the NTA said that in many cases the submissions received contain large amounts of personal information which were not required but many people chose to volunteer in their submissions. This information included names, addresses, phone numbers, age, club membership, employment, medical information etc. all of which the NTA states would need to be redacted to comply with the privacy notice in place for submissions.
The applicant also noted that submissions to ABP have been published online with very minimal redactions. The applicant argued that if ABP can publish its submissions with minimal redactions, the NTA should therefore be able to do the same. The NTA explained that the three rounds of public consultation the NTA carried out were non-statutory, whereas the ABP public consultation has a statutory basis. Consequently, the privacy notices for each consultation differ. ABP's privacy notice states that it is legally required to publish all submissions received, whereas the NTA's privacy notice states that no personal information will be shared publicly.
While this review solely concerns the NTA's decision to refuse the applicant's request under section 15(1)(c) of the Act, it is worth noting here that personal information is protected under section 37 of the FOI Act. I am satisfied that, if the NTA were to process the applicant's request, it would need to examine each submission and redact any personal information contained in those records in accordance with the provisions of the FOI Act.
In submissions to this Office the applicant said he did not believe it was fair for an FOI Body to cite its staffing levels in support of refusing a request under section 15(1)(c). In this case, the applicant does not believe the fact the BCID team only has one administrator, who would be required to complete this work, can be taken into consideration under section 15(1)(c). The applicant also claims the time taken to convert the files from email to PDF should not be taken into consideration in determining whether the request is voluminous.
As noted above, generally this Office will take into consideration the size and staffing levels of an FOI body (including the relevant functional area) when determining whether the request can justifiably fall under section 15(1)(c). Equally, as noted above, both how the records are stored and the tasks or steps necessary to retrieve and examine the records can also be taken into consideration. I accept that if the NTA were to decide to convert the files as an optional step, then the time estimated to carry out this task may not be relevant. However, in this case, the NTA have stated that the conversion of files from email to PDF is a necessary step to allow for redaction, which would be required if records were to be granted. Therefore, in the circumstances I accept that the time taken to convert the files held is relevant and can be considered as contributing to the overall time required to process the request.
Finally, in submissions to this Office, the applicant took issue with the fact the NTA had conducted its sample exercise unilaterally and argues that he should be entitled to have an independent party review a sample of the submissions to ascertain whether granting his request would cause a substantial and unreasonable interference with the work of the NTA. While I have noted the applicant's comments in this regard, I do not agree it is necessary for an independent party to review a sample of submissions. The question I must consider is whether the NTA has provided reasonable grounds to justify its decision to refuse the applicant's request. For the reasons set out above, I am satisfied that it has.
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. 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.
In the circumstances, having taken into consideration the submissions provided by both the NTA and the applicant, I accept that the time and resources that would be required to retrieve and examine both the categorised and non-categorised submissions requested would cause a substantial and unreasonable interference with, and disruption of, the work of the BCID team in the NTA.
In conclusion, I find that the NTA was justified, under section 15(1)(c) of the FOI Act, in its decision to refuse the applicant's request for all submissions made during the three stages of public consultation relating to the relevant sections the Kimmage Bus Corridor Scheme on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.
I note that the applicant, having reviewed the update letter provided by the Investigating Officer, indicated in his submissions that he would be willing to accept only the 424 section specific submissions, foregoing the need for the 440 non-categorised submissions to be reviewed. The applicant said he believes this will offer him the overall picture he is seeking. While I note the applicant's willingness to reduce the scope of his request at this time, this review is concerned with the NTA's decision on his original request. However, I would add that it remains open to the applicant to submit a new request to the NTA if he wishes. Before doing so, I suggest the applicant avail of the NTA's offer of assistance to help him narrow the scope of his request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the NTA to refuse the applicant's request under section 15(1)(c) of the Act.
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.
Richard Crowley
Investigator