Decision
Mr. X and Department of Health
From Office of the Information Commissioner (OIC)
Case number: IC-143388-W6N2G3
Published on
From Office of the Information Commissioner (OIC)
Case number: IC-143388-W6N2G3
Published on
Whether the Department was justified, under section 15(1)(c) of the FOI Act, in refusing the applicant’s request for all Divisional Report Cards for each month of the past 5 years on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work
The Department holds Divisional Report Cards (DRC) which are used by the Department’s Performance Officers to assess and report on the delivery of the HSE’s objectives under its National Service Plan.
In a request dated 8 July 2023 the applicant sought access to records of all DRC’s for each months of the past 5 years ending in May 2023. The applicant requested these in their original electronic format. The applicant also requested all files used to process and track payments made under the Temporary Assistance Payments Scheme (TAPS). On 13 July 2023 the Department informed the applicant that it had checked with the appropriate units within the Department about the records he sought in relation to the TAPS and they found no records. It said this part of his request is more appropriate to the HSE as it was involved in the running of the TAPS scheme and suggested that the applicant send this part of his request to the HSE.
In a decision dated 17 August 2023 the Department refused the applicant’s request for Divisional Report Cards under section 15(1)(c) of the Act. It said it had, as required by section 15(4) of the Act, attempted to assist the applicant in refining his request in its correspondence dated 1 August 2023 and 4 August 2023. On 18 September 2023, the applicant requested an internal review of the Department’s decision. On 25 October 2023, the Department affirmed its original decision. On this same date, the applicant the applicant applied to this Office for a review of the Department’s decision.
During the course of this review, the Department provided submissions in support of its reliance on section 15(1)(c) of the FOI Act. The Investigating Officer provided the applicant with details of the Department’s submissions and invited the applicant to make further 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 the Department and the applicant during the review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified, under section 15(1)(c) of the FOI Act, in refusing the applicant’s request for all Divisional Report Cards for the 5-year period ending in May 2023.
In his application to this Office, the applicant contends that the Department holds the information in its Finance Unit relating to the second part of his request for files used to process and track payments made under the Temporary Assistance Payments Scheme. The Department’s position is that any such records would be held by the HSE.
Section 12(4) of the Act provides “Where a request under this section relating to more than one record is received by the head of an FOI body (“the first-mentioned body”) and one or more than one (but not all) of the records concerned is or are held by the body, the head shall inform the requester concerned, by notice in writing or in such other form as may be determined, of the names of any other FOI body that, to his or her knowledge, holds any of the records. As noted above, the Department said that it checked with the appropriate units within the Department if they held any relevant records relating to payments under the TAPS scheme and no such records were found. It said that this part of the applicant’s request is more appropriate to the HSE, as the HSE administered the TAPS scheme. The Department informed the applicant that he should send this part of his request to the HSE. While I note the applicant considers that the Department ought to hold relevant records, the Department has stated that it does not. In the circumstances, I am satisfied that the Department appropriately directed the applicant to the HSE as the relevant body that may hold the information in question.
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 Department 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)
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), however, 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.
On 1 August 2023, the Department wrote to the applicant and informed him that his request, as currently worded, is excessively broad and said that the processing of this request would cause a substantial disruption of the work in the business unit concerned. It asked the applicant to refine the scope of his request. As a way of an example, it asked him to “specify the policy area and the specific reporting period to which the request relates.” In his response dated 1 August 2023, the applicant said that his request could not be any clearer, or narrower in scope. He said that each Division in the Department completes one monthly Divisional Report Card. He said he is requesting a copy of this document for each Division for each month for the last five years. On 4 August 2023, the Department wrote to the applicant and again asked him to refine the scope of his request. As noted above, it subsequently refused the request under section 15(1)(c) of the Act.
Having regard to its correspondence with the applicant on 1 and 4 August 2023, I am satisfied that the Department 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 Department complied with the provisions of section 15(4) of the FOI Act. I will now consider whether the Department was justified in refusing the applicant’s request under section 15(1)(c) of the Act.
Section 15(1)(c)
The applicant’s position is that these records are easily accessible and all located within one place. In his response to the Department regarding the scope of his request, the applicant stated that the scope was narrow as it focused on each Division’s monthly DRCs for the past five years. In further correspondence with the Investigating Officer, the applicant reiterated that the Department should be able to locate these DRCs without any further clarifications.
In its submissions to this Office, the Department said that there are 3 members of the Performance Management Unit (PMU) team that have dealings and familiarity with these DRCs. It noted that 2 of the 3 members are assigned responsibility for specific DRCs representing specific Units/areas in the Department. The Department said that that the disruption to its work caused by this request is therefore not confined to PMU given the DRCs encompass, more or less, all service and policy areas in the Department.
The Department said that there are approximately 570 DRCs within the period of the request (May 2018 to May 2023) that would need to be reviewed. It said that each DRC varies in length between 5 and 18 pages. The Department provided an estimate of all steps that would need to be taken before each DRC was released to the applicant. It said that these steps included the retrieval and review of each DRC and consultation with each division in regards to what information could be released. The Department said that potential issues with regard to the release of unpublished performance data and commentary would need to be carefully considered and this would impact on the administrative burden associated with this request. The Department also said that the HSE, as a third party to the request, would need to be consulted. It said that the extent of the original request would be a significant draw on that team of 3 persons who currently support and manage the performance model for the Department as a whole.
In further submissions to this Office, the Department estimated a total of 1,384 hours would be necessary to process the applicant’s request as it stands. A detailed description of tasks and hours calculated by the Department was provided to the applicant. The Department further stated that many of the steps will “have to be carried out sequentially as to do so in parallel could possibly result in redaction requests coming in from several areas in relation to the one DRC, creating additional work for PMU in ensuring the accurate processing of all redaction requests.”
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.
The applicant seems to be of the opinion that the DRCs can be easily located and identified and that his request is very specific and therefore the records should be easily released. While it may be relatively straightforward to identify and locate all DRC’s for the requested 5-year period, the Department said it must then consider the content of each record to establish if they contain any information that may be exempt from release under the FOI Act. As part of this process, the Department said that the Performance Management Unit, which comprises 3 staff, must consult other sections within the Department and the HSE. Based on the Department’s calculation that each DRC contains between 5 and 18 pages, the Department would be required to consider somewhere between 2,800 - 10,000 pages of records. While the Department has provided an estimate of 1384 hours to process the applicant’s request, it did not provide any substantial detail or basis for this estimate. However, in the circumstances where it would be required to examine approximately 570 DRC’s, ranging in size from 5 to 18 pages each, to determine whether they are appropriate for release, I am willing to accept that the time and resources that would be required to retrieve and examine all DRC records for the 5-year period sought by the applicant would cause a substantial and unreasonable interference with, and disruption of, its work, and in particular the work of the PMU.
In conclusion, therefore, I find that the Department was justified in its decision to refuse the applicant’s request for all DRCs over the five-year period ending in May 2023 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.
I would add that it remains open to the applicant to submit a revised request to the Department if he wishes to do so. In making a new request, he might consider confining his request to a shorter time frame or a specific policy area, as suggested to him by the Department, or he might engage with the Department about alternative options.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department 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