Decision
Mr X and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-143979-V1R5F8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143979-V1R5F8
Published on
Whether the IPS was justified, under section 15(1)(c) of the Act, in refusing the applicant’s request for records relating to persons granted renewable temporary release on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work
16 April 2024
In a request dated 10 July 2023, the applicant sought the following information:
The number of persons granted renewable temporary release since 1 January 2021
The number of persons serving a determinate sentence of 8 years or more who were granted renewable temporary release since 1 January 2021
The number of persons who were granted one third remissions since 27 June 2020
The number of persons in Arbour Hill Prison who were, since 2014, granted the following:
a. Persons serving a determinate sentence of 8 years or more granted renewable temporary release
b. Life sentenced prisoners granted renewable temporary release
c. The number of persons granted one third remission
d. The number of persons granted temporary release under the following
i. Community Release Scheme
ii. Community Return Scheme
iii. Community Support Scheme
5. The number of persons granted renewable temporary release since 27 June 2020 under the following categories:
a. Compassionate or humanitarian grounds
b. Grounds of health
c. Having been rehabilitated (Sect 2(1)(d))
d. Under Sec 2(1)(a) of the 2003 Act
e. Under Sec 2(1)(c) of the 2003 Act
f. Any other grounds
On 16 August 2023, the applicant made a request for an internal review as he had not received a decision on his request within the 4-week period provided in the Act. On 18 August 2023, the IPS wrote to the applicant saying that his request was being worked on and that it hoped to issue records to him by the end of the following week. The IPS asked the applicant if he wished to proceed with the internal review. On 24 August 2023, the applicant informed the IPS that he did not wish to proceed with his internal review request, given the update provided by IPS in its letter of 18 August 2023. On 14 September 2023, the applicant made a new internal review request as he had not received a decision on his request.
On 25 October 2023, the IPS issued an internal review decision answering parts of the applicant’s request. The IPS refused the remaining parts of the request under sections 15(1)(a) and 15(1)(c) of the FOI Act. On 9 November 2023, the applicant applied to this Office for a review of the IPS’s decision. In his application to this Office that applicant stated that he did not agree that his request would cause a substantial and unreasonable interference on the basis that the annual report of the IPS publishes temporary release figures in detail every year and the IPS publishes temporary release figures daily on its website.
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 correspondence outlined above and to the submissions made by the IPS in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
As noted above, the IPS initially refused the request under sections 15(1)(a) and 15(1)(c) of the Act. However, during the course of this review the IPS stated that it no longer wished to rely on section 15(1)(a) of the Act to refuse the applicant’s request. It stated that records exist within the Prisoner Information Management System but cannot be provided in the format requested due to the number of records concerned and the time it would take to access them, which it detailed in its submissions to this Office.
Accordingly, this review is concerned with whether the IPS was justified in its decision to refuse the records sought by the applicant under section 15(1)(c) of the FOI Act.
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 a 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.
It is important to note that under section 15(4) of the Act, 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 IPS was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with section 15(4) before doing so.
Section 15(4)
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.
In its submissions to this Office, the IPS stated that it did not offer assistance to the applicant. It stated that in two other FOI requests made by the applicant, that are not under review with this Office, the applicant was notified that fees would apply and that it would be necessary to reduce the scope of the request before the IPS would proceed. It stated that the IPS offered assistance to the applicant to modify the scope of those requests. The IPS said that although no response was received to either of the fees letters, the applicant proceeded to submit 5 separate requests for the same records broken down into individual terms. The IPS stated that this would appear to be an attempt to circumvent the fees attributable to the original two requests.
Having regard to the IPS’s submissions, I am satisfied that the IPS did not comply with the requirements of section 15(4) before seeking to subsequently rely on section 15(1)(c) as a ground for refusal. While the IPS may have engaged with the applicant in two previous requests in relation to the payment of fees, it did not engage with the applicant on his request in this case to inform him that it considered his present request voluminous, nor did it offer him assistance in narrowing the scope of this request. I find that the IPS did not comply with the provisions of section 15(4) in this case. This finding, of itself, is sufficient for me to find that the IPS was not justified in refusing the applicant’s request under section 15(1)(c) of the Act, and I find accordingly.
In the circumstances, I find that the most appropriate course of action for me to take at this stage is to annul the decision of the IPS to refuse the applicant’s request and to direct it to make a fresh decision on the request. If the applicant is not satisfied with the new decision made by the IPS, the usual rights of review will apply. If the IPS intends to rely on section 15(1)(c), it must comply with the requirements of section 15(4) beforehand and it must engage with the applicant and to offer him assistance to amend the request so that processing it no longer causes an unreasonable interference with, or disruption of, work.
Finally, as noted above, the IPS suggested that the applicant would appear to be attempting to circumvent the fees attributable to two other requests he had made. If the IPS considers other provisions of the FOI Act apply, it should inform the applicant accordingly. It seems to me that further engagement between the parties may be of assistance here.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the IPS’s decision to refuse the applicant’s request under sections 15(1)(c) of the FOI Act. I direct it to process the request afresh.
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