Decision
Mr X and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-148814-X5Y2J5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148814-X5Y2J5
Published on
Whether the OPW was justified in refusing, under section 15(1)(c) of the FOI Act, the applicant’s request for certain records relating to commercial properties leased to public bodies
30 September 2024
On 15 February 2024, the applicant submitted a 21-part request to the OPW for various records relating to commercial properties leased to public bodies. On 21 February 2024, the OPW wrote to the applicant and said that his request appears to be voluminous and is likely to attract significant search and retrieval fees. The OPW informed the applicant that his request could potentially exceed the upper ceiling limit for search and retrieval fees provided for in the FOI Act and may result in a refusal of his request. The OPW invited the applicant to reduce the scope of his request and said it would be happy to assist him in this process if necessary.
On 27 February 2024, the applicant submitted a refined 15-part request for records. On 29 February 2024, the OPW wrote to the applicant informing him the estimated cost of search, retrieval and copying (SRC) fees to process his request would be €1,700 (85 hours @ €20 per hour). The OPW said that the estimated cost of processing the request is in excess of the ceiling limit of €700 provided for in the FOI Act. The OPW said that it proposed to refuse to process the request, under section 27(12)(a)(iii) of the Act, unless it can be refined so that the estimated cost falls below the €700 ceiling limit. The OPW said it would be happy to assist the applicant in refining his request.
On 4 March 2024, the applicant emailed the OPW and asked the decision maker to call him to discuss the possibility of refining his request. He suggested it may be possible to further narrow the scope of his request by limiting the timeframe for some parts or possibly deleting other elements of his request. On 6 March 2024, the OPW responded to the applicant by email and noted that certain information sought in his request does not fall under the remit of the OPW. The OPW said that “While this information may assist you with a further refinement, you should note that in my opinion the remaining questions would likely result in significant costs and time, and possible refusal”. On 12 March 2024, the OPW refused the applicant’s request under section 27(12)(a)(iii) of the Act on the basis set out in its letter of 29 February 2024. The OPW said it considers the request is voluminous. On 15 March 2024, the applicant sought an internal review of the OPW’s decision. On 22 April 2024, the OPW issued an internal review decision refusing the applicant’s request under section 15(1)(c) of the FOI Act. On 7 May 2024, the applicant applied to this Office for a review 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 outlined above, to the applicant’s comments in his application for review and to the submissions made by the OPW in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
The OPW’S position is that the applicant’s request is voluminous. While the OPW initially refused the applicant’s request under section 27(12)(a)(iii) of the Act, it subsequently refused his request at internal review stage under section 15(1)(c) of the FOI Act. Accordingly, 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.
As noted above, the OPW originally refused the applicant’s request under section 27(12)(a)(iii) of the Act. Section 27(12) allows an FOI body to refuse to process a request where the amount of the SRC charge exceeds, or is likely to exceed, the overall ceiling limit prescribed (currently €700) provided certain requirements are met. Under section 15(1)(c) FOI bodies are also entitled to refuse requests where they consider that granting the request would cause a substantial and unreasonable interference with or disruption of their work, including disruption of work in a particular functional area, again provided certain requirements are met. There is a certain amount of overlap between these two provisions and both provisions may be relevant in certain cases. They are, however, separate provisions which operate independently of each other.
Section 15(1)(c) provides for the refusal of a request where the FOI body 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 of the body (including disruption of work in a particular functional area).
However, section 15(4) of the Act provides that a request cannot be refused under section 15(1)(c) unless the body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. Accordingly, 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.
The FOI Act is silent on the precise nature or level of 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.
When requesting submissions from the OPW in this case, the Investigating Officer drew the OPW’s attention to section 15(4) and queried whether it had assisted or offered to assist the applicant in amending the request so that it no longer fell to be refused under section 15(1)(c). In its submissions, the OPW stated that upon receiving the request, the decision maker estimated how long they thought it would take to retrieve the information sought in the request. It stated that it assessed each element of the request and assigned an estimated minimum time to each element. The OPW stated that the total time estimated to process the applicant’s original 21-part request was 89.5 hours. The OPW said that on foot of this calculation, an email issued to the applicant on 21 February 2024 advising him that the request would likely be refused on the grounds it exceeded the upper ceiling limit of €700 for search and retrieval fees, provided for under section 27 of the Act. It said that it invited the applicant to reduce the scope of his request and offered assistance if needed.
The OPW stated that on 27 February 2024, it received a refined request from the applicant containing 15 parts of the original 21-part request. The OPW stated that on 29 February 2024, it wrote to the applicant notifying him of a proposed refusal of the request due to the estimation of the search and retrieval fee exceeding the upper ceiling limit. It said that an invitation to refine that request was offered. The OPW said that the applicant corresponded with it on 4 March 2024 about narrowing the scope of his request further. The applicant in his correspondence stated that he was having difficulty refining his request and asked if the OPW could call him, as he would find this helpful. In his correspondence the applicant proposed certain methods to further narrow the scope of his request, including deleting elements of the request. The OPW stated that on 6 March 2024, it emailed the applicant advising that his refined request remained voluminous and that his request may have to be refused. The OPW stated that in order to assist the applicant with a further refinement it was stated that a number of items did not fall under the remit of the OPW. In its submissions to this Office, the OPW stated that the decision maker conducted searches on the OPW property database in order to establish and confirm that no information was held in relation to the bodies and properties identified in the decision maker’s email of 6 March. The OPW said it received correspondence from the applicant on 7 March 2024, in which he stated that he did not think the OPW was assisting him in refining the request.
The OPW said that on 12 March 2024, it issued a formal decision letter advising that as no refinement of the applicant’s request was received since 27 February 2024, its estimated costs remained in excess of the upper ceiling limit. It said that on 15 March 2024, the applicant corresponded with the OPW to state that he did not think he had received guidance as to what level of refinement would result in the request falling below the €700 cap. The OPW said it received an internal review request from the applicant on 19 March 2024. It said that on 19 April 2024, it offered the applicant another opportunity to refine his request, before it issued its internal review decision on 22 April 2024 in which it refused the applicant’s request under section 15(1)(c) of the Act.
In its submissions to this Office the OPW said its decision maker calculated that it would take approximately 89.5 hours in relation to the original 21-part FOI request and approximately 85 hours in relation to the refined request. The OPW provided this Office with a spreadsheet containing a breakdown of its estimate of the time it would take to fulfil each part of the applicant’s request. During the course of the review, the Investigating Officer asked the OPW when the calculations to generate these estimated times were performed and whether the applicant had been informed of the estimated times each part of his request would take to fulfil. The OPW stated the calculations were performed at the original request stage. It stated that the estimated time it would take to address all elements of the request (85 hours) was provided to the applicant in its letter of 29 February 2024.
The question I must consider is whether the OPW complied with the provisions of section 15(4) before refusing the relevant part of the applicant’s request under section 15(1)(c). It is evident from the correspondence between the OPW and the applicant that the OPW made a number of offers to the applicant to amend the scope of his request so that it no longer fell to be refused. I note for example that on 6 March 2024 the OPW informed the applicant that the OPW only retains information relating to leases held by the Commissioners. It said that information relating to leases held by other State bodies would be a matter for those bodies directly. It also informed the applicant that certain information he requested does not fall under the remit of the OPW.
I also note that the applicant refined his original request and offered to refine his request further. He also asked the OPW for further assistance in refining his request.
While the OPW calculated the estimated time it would take to fulfil each part of the applicant’s request at original request stage it did not provide the applicant with this breakdown. While the overall estimated time of 85 hours was provided to the applicant, having examined the spreadsheet, it appears that parts 12 and 13 of the applicant’s request had an estimated time of 28 hours and 35 hours respectively. I further note that the applicant in his correspondence with the OPW stated that he felt he had not been provided with guidance as to what level of refinement would result in the request falling below the €700 cap.
While it is unclear if this information might have been of assistance to the applicant in refining his request, I believe it is information that might usefully have been provided to him in the course of exchanges about reducing the scope of his request. I note that while there is an onus on FOI bodies to provide assistance, 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. However, having considered that a significant portion of the time estimated for the applicant’s request is in relation to only two parts of his request, and that this information was available to the OPW when it informed the applicant that his request was voluminous, in my view providing this information to the applicant would have enabled him in considering how he might reduce the scope of his request further. In my view, providing reasonable assistance to the requester in this case would include giving the applicant details of the most voluminous parts of his request. This may have facilitated a meaningful discussion between the parties as to how the scope of the request could be reduced.
I acknowledge the OPW endeavoured to assist the applicant in amending his request so that it no longer falls to be refused. However, having regard to the correspondence outlined above, including the applicant’s request for further assistance and to the OPW’s estimated breakdown of the time required to process the different elements of the applicant’s request, I am not satisfied that it complied with the provisions of section 15(4) of the Act before refusing the applicant’s request under section 15(1)(c). Accordingly, I consider that the most appropriate course of action is to annul the decision of the OPW to refuse that applicant’s request under section 15(1)(c) and to remit the matter back to the OPW for a fresh decision. If the OPW remains of the view that the request is voluminous, it must first comply with section 15(4) if it is to once again consider refusal of the request under section 15(1)(c). If the applicant is not satisfied with the new decision made by the OPW, the usual rights of review will apply.
I would add, for the benefit of both parties, that the request as framed does, on its face, appear to be extremely broad and it seems to me that both parties might benefit from a discussion on the scope of the request before commencing a fresh consideration of the matter.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the OPW’s decision to refuse, under section 15(1)(c) of the FOI Act, the applicant’s request on the ground that it failed to first comply with the provisions of section 15(4). I direct the OPW 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.
Richard Crowley
Investigator