Decision
Ms Y and National Shared Services Office
From Office of the Information Commissioner (OIC)
Case number: OIC-147412-R0B8Z1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147412-R0B8Z1
Published on
Whether the NSSO was justified in its decision to extend the period for consideration of the applicant’s FOI request under section 14 of the FOI Act based on the number of records to which the request related
28 June 2024
In a request dated 14 February 2024, the applicant sought access to all records the NSSO held concerning her and her employment from 22 September 2023 to the date of her request, to include but not limited to all correspondence with her employer, the CMO (Chief Medical Officer) and any third party. The applicant asked the NSSO to include:
• A log of all parties who accessed her NSSO record since 22 September 2023,
• Any instructions the NSSO received from any party in such matters as
o Generating absence record (including dates of generation of such record) and details of who received her absence records from the NSSO since 1 July 2023 and when they received that absence record
o Archiving/updating status of PMDS dates of change such that access to it by the applicant were no longer available to it and who instructed the NSSO to so change
o Details of who instructed her record be changed to private i.e. not viewable by her when creating CMO referral
o Noting the automatic referral policy to the CMO of sick leave certs that reference “work stress”, the last date on which the NSSO referred the applicant’s sick leave to the CMO.
In a second email that same day, the applicant outlined further details about the records she was seeking, including details related to CMO referrals and information she was seeking about particular sick leave absences. The applicant wrote again to the NSSO on 26 February 2024 with further details about her request.
On 11 March 2024, the NSSO informed the applicant that it was necessary to extend the period for consideration of her request by a maximum of two weeks under section 14(1) of the Act. The NSSO said that it was extending the period for consideration as the request took into consideration quite a number of information points. On 13 March 2024, the applicant sought a review by this Office of the NSSO’s decision. I understand that the NSSO issued its decision on the applicant’s request on 27 March 2024. The substantive decision is not the subject of this review. I note therefore that this decision can have no tangible benefit for either party.
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 submissions by the NSSO to this Office. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the NSSO’s decision to extend the time frame for considering the applicant’s request was in accordance with the provisions of section 14 of the FOI Act.
The NSSO did not initially specify whether it was relying on section 14(1)(a) or 14(1)(b) of the FOI Act in its correspondence with the applicant. However, in its submissions to this Office it indicated that it was solely relying on section 14(1)(a) of the Act.
Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, under section 14(1)(a), the body may extend that four-week period by up to four further weeks where it considers that the request relates to such number of records that compliance with section 13(1) within the four weeks specified is not reasonably possible.
In its submissions to this Office, the NSSO said that the request was made up of multiple line items and elements relating to the requester’s HR file within a seven-month period. It said that, in some cases, the request sought “all records” the NSSO held and was not clear on the specific records that were required. The NSSO said it issued a request to the applicant to narrow the scope of her request, but this was declined. It said that it asked the applicant to refine her request on the basis that phrases like “all records” can lead to a request being voluminous, and given the nature of the services the NSSO provides, records can span its entire HR, Payroll and Customer Service divisions.
The NSSO said no hard copy records were identified and all records are stored on IT platforms used by the NSSO and would need to be extracted, downloaded, copied etc.
The NSSO said, as a shared service provider of HR, Pension, Payroll and Finance administration to Government Departments, Offices and Public Service Bodies, it was required to consult with the applicant’s employer, as the NSSO has no authority to release records it holds on behalf of her employer. The NSSO said the applicant’s HR file is a matter between her and her Local HR. It said, the NSSO is a data processor and only has access to the applicant’s records for the purposes of taking instructions from and transacting on behalf of her employer. The NSSO said it has an agreed process in place with all clients on the handling of data and specific processes for requests under GDPR and FOI Legislation. The NSSO said its process has been clearly outlined to the requester numerous times and is clear in that an employee of an NSSO client should seek their records through the client FOI/Local HR function. The NSSO said, in the event that a requester does not accept the process signed up to by the employer the NSSO is required to engage extensively with the relevant department/office. In this case, the NSSO had engaged with the applicant’s employer. It said that this took considerable time due to conflicting priorities from both parties and the volume of requests and appeals in the system already from this requester.
In its submissions, the NSSO said that, given that the request included “all records [the NSSO] hold[s] concerning [the applicant] and [her] employment from September 22nd 2023 to date”, the number of records is wide ranging and spans all payroll, pensions and HR information potentially including, but not limited to, all activity on pay/HR related cases, instructions for payments, pension, auto generated notifications on open cases and interactions with her employer etc. It said that the applicant noted five specific case ID numbers in her request, which include multiple pages of information on the system per case. It said that stating “all records” then expands the request much broader.
The NSSO said that, due the nature of the systems used by it, and given that they are not integrated, multiple teams were required to identify the number of records included. It said it would roughly estimate the number of records as upwards of 30. It also estimated that it would take one person per team half a day each across multiple teams to search and establish the records relevant to the request and multiple hours to draw down that information from the various systems used. The NSSO said that the searches conducted are high level, and it was difficult to determine an estimate of the records involved as the NSSO's system is not structured in a way that would allow such estimates to be made. It said that there is no export feature, and the NSSO must 'extract' records by use of screengrabbing or copying and pasting case files text into a single document. It said that the NSSO's system generates a huge number of records. By way of example, the NSSO said that the system would generate a record every time a payroll went out, as well as when the payment was made to an employee's bank account. It said that the auto-updates conducted by the system would also generate records. The NSSO said that a case would involve multiple pages and tabs, and the totality of these would constitute a record. It said that the estimated 30 records referred to above would involve multiple pages per record.
The NSSO said the request fell over a period of time that included three public/bank holidays and members of the relevant teams in scope were on leave, which it said impacted the response time. The NSSO said furthermore, its workload, particularly high volumes of work on operational teams and resourcing constraints, meant that staff members could not be withdrawn from their duties to solely work on investigating the particulars of this request. The NSSO said it transacts on behalf of 54 Government Departments, Officers and Bodies with over 46,000 HR customers and over 162,000 payees.
In its submissions, the NSSO said that the applicant has over a prolonged period of time submitted numerous requests to the NSSO and to her employer. It said this created a level of complexity because engagement is required between both parties and a review of all other requests was required to cross check the information being sought versus what was sought and released/refused previously. The NSSO said that her employer and itself had multiple interactions over the last number of months, which in turns adds to the time required to appropriately handle such requests. It said that some of the delay in processing the request was due to the amount of liaising that needed to be conducted between the NSSO and multiple parties (e.g. the applicant’s employer) in order to identify relevant records. The NSSO said it had one open appeal with this Office, one internal review and this new request from the applicant. In conclusion, the NSSO said it applied section 14(1)(a) of the FOI Act to extend the time for issuing a decision to the applicant by two weeks due to the number of records that were the subject of her request.
As noted above, the NSSO identified upwards of 30 records as relevant to the request, with each record being made up of multiple pages and tabs relating to the subject matter of this request. I note from its original and internal review decisions on the applicant’s request, the NSSO ultimately refused her request under section 15(1)(a), 15(1)(i) and 35(1)(b) of the FOI Act. I note too that in regard to section 35(1)(b) of the Act, the NSSO said it is a Shared Service provider offering HR, Payroll and Finance services to Government Departments and Offices. It said, the NSSO has a signed Memorandum of Understanding and Data Processing Agreement with its clients, outlining the numerous processes in place and detailing how data will be treated by the NSSO in the course of its duties as a data processor. The NSSO said it is not the appropriate authority to make a decision on the release of any personal/non personal data unless the NSSO is the controller of the data. In the case of all NSSO clients, the Office is a data processor and therefore has no authority to take a decision on the release records held for the purposes of transacting on behalf of its clients, in this case the applicant’s employer. The NSSO said that the release of the applicant’s employer’s records would be a breach of its signed agreement and understanding the NSSO has with each of its Client PSB’s. The NSSO said that the process outlined to applicant, advising that she seek her records from her employer is the most appropriate way for her to access the records she is looking for and is the process applied to all NSSO customers, employed by the Departments, Offices and Bodies it provides a service to.
It seems to me the essence of the NSSO’s decision on the applicant’s request is that the records sought either do not exist, or were already available to her, or could and should be accessed directly from her employer. However, I acknowledge that the NSSO still had to consider each element of the applicant’s request in making its decision.
The circumstances in which an FOI body may extend the four-week period for processing a request are quite narrow and specific. Section 14 does not provide for extensions of the time-frame for considering requests on the basis of other FOI-related (or any other) administrative challenges arising. Under section 14(1)(a), the FOI body is entitled to extend the decision making period only where the request relates to such number of records that compliance with the four-week time-frame set out in section 13 is not reasonably possible.
The FOI Act provides no guidance on the number of records that might be involved before an extension can be appropriately applied. Therefore, each case must be considered on its merits based on the particular facts and circumstances. Nevertheless, the provision is clear that a decision to extend the period must be based on the number of records to which the request relates.
In my view, the NSSO has provided insufficient evidence to support a claim that the request related to such a number of records that compliance with the four-week period was not reasonably possible. I acknowledge the NSSO’s comments about the similarities between the applicant’s request in this case and her requests to her employer for similar records and I note that the NSSO needed to contact the applicant about the scope of her request. I note too, that while the applicant made her request on 14 February 2024, it was two weeks later before the NSSO wrote to her seeking to narrow the scope of her request. It seems to me that sooner engagement with the applicant about the scope of her request could have facilitated an earlier decision by the NSSO. I accept however that the applicant had written to the NSSO a number of times about her request and that she raised various issues about the records she was seeking which added to the complexity of her request. Ultimately, however, the applicant’s request was concerned with records relating to her held by the NSSO over a 5-7 month period, which totalled approximately 30 records.
While I acknowledge that processing the applicant’s request was not straight forward, in my view, having regard to the number of records at issue, the NSSO has not justified its decision to extend the time to process the applicant’s request in this case. While I also acknowledge the challenge of balancing competing priorities, the provisions of section 14 are very specific and do not allow for the extension of the period for consideration of a request because of other work priorities, including other FOI requests, save where section 14(1)(b) of the FOI Act applies. In the circumstances of this case, the NSSO has not satisfied me that an extension was warranted.
Accordingly, while my findings in this case can have no tangible benefit for the applicant given that the NSSO has already issued its decision on her request, I find that the NSSO’s decision to extend the period for considering the applicant’s request was not in accordance with the provisions of section 14(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the NSSO’s decision, under section 14(1)(a), to extend the period for consideration of the applicant’s request.
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