Decision
Mr. Ken Foxe, c/o Right to Know CLG and the Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-109689-C1H6K2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-109689-C1H6K2
Published on
Whether the OPW was justified in refusing, under section 15(1)(c) of the Act, the applicant’s request for records relating to an RTÉ Primetime programme that aired on 1 April 2021 on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, the work of its Property Management Section
OIC-109689-C1H6K2
29 September 2021
The OPW provided the following background information to put into context the request that is the subject of the review in this case. It said the FOI request is based on a number of requests made by RTÉ Primetime in connection with a programme, which subsequently aired on 1 April 2021. The programme was to feature a number of OPW managed properties, and in the interest of providing comprehensive factual information as well as context around OPW’s approach to property management, OPW decided to provide a detailed briefing document to RTÉ in advance of the programme. A follow-up document was subsequently prepared following further queries. In addition to the briefing documents, a number of other property related queries were dealt with directly by e-mail. Due to the extensive nature of the programme several OPW staff were involved in providing, collating, presenting, reviewing and approving information in the process of furnishing information to RTÉ. This resulted in a large volume of e-mail traffic, much of which was copied to the Chairman, hence the reason for the high number of records identified for further examination. These records were all created for the purpose of this exercise.
In a request dated 16 April 2021, the applicant sought access to copies of all records held by the OPW, for the period from 1 March 2021 to the date of his request, referring or relating to the ‘Room to Improve’ programme that featured on RTÉ Primetime on 1 April 2021. The OPW contacted the applicant on 20 April 2021 to ask if he would be open to accepting the records outside of the FOI process. In response, the applicant expressed his preference for the FOI request to be processed.
On 17 May 2021, the OPW informed the applicant that the request did not contain sufficient particulars to enable the records sought to be identified without causing an unreasonable interference to the work of its Property Management Section. It said his request may have to be refused under section 15(1)(c) of the Act on the basis that it is too voluminous. It said it was offering to assist the applicant with his request and said it may be able to proceed with a consideration of the request if he considered revising the scope and the search period to identify more specifically the records sought. However, whilst the OPW did not purport to make a decision in this letter, it provided the applicant with details of a right of internal review of its “decision”.
On 17 May 2021 the applicant refined his request by confirming that he was happy for searches for relevant records to be confined to records held in the email account of the OPW chairman only.
On 1 June 2021, the OPW informed the applicant that the request did not contain sufficient particulars to enable the records sought to be identified without causing an unreasonable interference to the work of its Property Management Section. It refused the request on the basis
that it is too voluminous. While it referenced sections 12(1)(b) and 15(1)(c) in its decision letter, it did not specifically indicate which of the sections cited it was relying upon to refuse the request.
On the same day, the applicant sought an internal review of the refusal of his request. He noted that “all that is required in this case is a search of the chairman's email account using such keywords as "RTÉ", "RTÉ Investigates", "Room to Improve" etc.”. On 24 June 2021, the OPW issued its internal review decision wherein it indicated that it had decided to affirm the refusal of the request under section 15(1)(c) of the Act. The Internal reviewer said that he had liaised with the OPW Chairman’s Personal Assistant and had sight of the results of searches of the Chairman’s e-mail account. He said the searches were conducted using parameters that he considered reasonable in determining the number of records that would likely be covered in the scope of the request and that the number of records identified was in the order of 1,400. He said he considered that the examination of same, even if the examination of each could be completed in a short time, would cause a substantial and unreasonable interference with or disruption of work of the OPW Property Management section. On 30 June 2021, the applicant sought a review by this Office of the OPW’s decision.
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 between the OPW and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the OPW 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, the work of its Property Management Section.
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.
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 OPW 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.
In its submissions to this Office, the OPW said that the original request was broader in its remit in that it sought copies of all records pertaining to the RTÉ Prime Time programme. It said that as several staff were involved in preparing material for the programme, they were requested to check e-mail histories in order to gauge the volume of records concerned. When the results of this check were amalgamated, it became apparent that the number of records ran into thousands. The OPW said its decision maker duly contacted the applicant and relayed this information, inviting him to narrow the scope of the original request. It said the applicant narrowed the scope to include e-mails associated with the OPW Chairman’s e-mail account only. In essence, its argument is that it did, indeed, offer assistance but that the refined request still fell to be refused under section 15(1)(c).
In case 160364 - Company A and the National Asset Management Agency, (available on www.oic.ie), I considered the extent of the onus that section 15(4) imposes on public bodies. I stated the following:
“While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), it seems to me that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is not sufficient for the purposes of compliance with the section. In holding this view, I am cognisant of the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests.
As such, it seems to me 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, it seems to me 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.”
As outlined above, upon receipt of the original request, the OPW informed the applicant that his request may have to be refused under section 15(1)(c) and it offered to assist with the request. It said it may be able to proceed with a consideration of the request if he considered revising the scope and the search period to identify more specifically the records sought.
In response, the applicant said he was happy for searches for relevant records to be confined to records held in the email account of the OPW chairman only. In my view, this is a clear indicator of the applicant’s willingness to engage with the OPW to refine his request so that it would no longer fall to be refused under section 15(1)(c). It seems to me that he could not reasonably have expected that the refinement proposed would make no material difference to the OPW’s view that the request remained within the parameters of section 15(1)(c). However, the OPW did not seek to further engage with the applicant in an effort to explain why the proposed amendment was not acceptable or to provide advice in relation to how he might further refine the request. Instead, it simply refused the request under section 15(1)(c). I note that in its decision letter, the OPW informed the applicant that it was open to him to consider further refinements to the request. That offer does not constitute assistance for the purposes of compliance with section 15(4) as the decision to refuse was already made at that stage.
Having considered the exchanges between the parties, I find, on balance, that the OPW fell short in its provision of assistance in this case. I accept that it made an offer of assistance. However, it seems to me that the OPW ought reasonably to have known that the applicant could not have expected that his proposal for refinement would make no material difference to its views on the voluminous nature of that refined request. Had it provided the applicant with the same information it provided in its internal review decision in relation to the volume of relevant emails held in the chairman’s email account before making a decision on the request, it would have been open to the applicant to seek to engage in further discussions on further possible refinements to the request or, indeed, to seek a decision based on the refined request. In light of the applicant’s willingness to engage with the OPW in refining his request, and having regard to that fact that he could not reasonably have been expected to know that the refined request would still fall to be refused under section 15(1)(c), I consider that the OPW’s failure to further engage with the applicant in the manner suggested represents a failure to provide assistance as required under section 15(4).
I find, therefore, that the OPW 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 OPW was not justified in refusing the refined request under section 15(1)(c). In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of the OPW and to direct it to undertake a fresh consideration of the request. If the OPW intends to rely on section 15(1)(c) in making its new decision, it must comply with the requirements of section 15(4) beforehand. It seems to me that there may be some merit in the applicant engaging with the OPW with a view to establishing the precise nature of the information he wishes to access.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the OPW to refuse, under section 15(1)(c), the applicant’s request for records relating to an RTÉ Primetime programme that aired on 1 April 2021 and I direct it to consider 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.
Stephen Rafferty
Senior Investigator