Decision
Mr G and Cork County Council ("the Council")
From Office of the Information Commissioner (OIC)
Case number: 130201
Published on
From Office of the Information Commissioner (OIC)
Case number: 130201
Published on
Whether the Council was justified, under section 10(1)(c) of the FOI Act, in refusing the applicant's request for access to records due to the volume and nature of the records coming within the scope of his request
23 May 2014
The applicant made a request for records to the Council under the Freedom of Information Act (FOI Act) on 19 February 2013, seeking copies of the annual accounts for:
I. the operation and maintenance of the Midleton WWTP from 2000 to 2011 (and 2012 if available).
II. the disposal and treatment of the Midleton sludge from 2000 to 2011 (and 2012 if available).
III. The Council refused access to the records on 18 April 2013 under section 10(1)(c) of the FOI Act. An application for Internal Review of this decision was also refused by the Council on the same basis on 21 June 2013.
In the course of the review I have taken into account the decisions issued by the Council and its communications with the applicant and the applicant's communications with this Office. I have also had regard to communications between this Office and the Council, particularly the preliminary views letter sent to it by Ms Sandra Murdiff, Investigating Officer, dated 25 April 2014. Finally, I have had regard to the provisions of the FOI Act. As the time frame in which Ms Murdiff invited a response to her preliminary views letter has now elapsed without reply from the Council, I have decided to conclude the review by way of a formal binding decision.
This review is concerned with whether or not the Council was justified, under section 10(1)(c) of the FOI Act, in its decision to refuse release of the records requested in relation to Midleton Wastewater Treatment Plant.
The Council has relied on section 10(1)(c) of the FOI Act to refuse access to the requested records, which provides that a request for a record may be refused if, "...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 of the public body concerned".
In its submissions to this Office the Council has stated that annual reports of the kind requested do not exist. It said that records exist from which it may be possible to source some, if not all, of the information sought by the applicant but that it would be necessary to search a number of different locations in order to locate and identify them. It cited staff turnover, the number of FOI requests received in relation to the Wastewater Treatment Plant and the fact that the request covers 13 years of records as additional issues impeding the retrieval and release of the records. The Council contends that it would cause a substantial and unreasonable interference with or disruption of its work. On the face of it, it would appear to me that the Council might indeed have difficulty in processing the request as currently formulated.
Section 10(1)(c) provides that a request for a record may be refused if granting the request would cause substantial and unreasonable interference with or disruption of the work of the public body as described above. However, section 10(2) requires that a request shall not be refused under section 10(1)(c) unless the body has "assisted, or offered to assist, the requester concerned in an endeavour so to amend the request so that it no longer falls within" the parameters of section 10(1)(c).
I note that the Council has stated in its Internal Review decision to the applicant dated 21 June 2013 that its Director of Services, Water Services, would be happy to meet with him to discuss any aspect of his request should he so wish. However, there is no reference, either in correspondence with the applicant or this Office, of any attempt made by the Council to engage with him to narrow the scope of the request so that it would no longer fall to be refused under section 10(1)(c).
The Council has not furnished any evidence that the applicant was given an opportunity to reword his request as per section 10(2). It was invited to comment on Ms Murdiff's preliminary views that this was the case, but did not do so. As the Council has not presented this Office with any evidence that it offered to assist the applicant in reducing the scope of his request, I am satisfied that it has not complied with the requirements of section 10(2) of the FOI Act. Therefore, it is my view in this case that the decision of the Council should be annulled and I find accordingly. The effect of this is that the Council is required to make a new, first instance, decision in respect of the applicant's original request.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the Council's refusal in this case. I direct that it undertake a fresh decision making process and inform the applicant of the outcome in accordance with the requirements of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator