Decision
Ms X and the Department of Justice and Equality (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170072
Published on
From Office of the Information Commissioner (OIC)
Case number: 170072
Published on
Whether the Department has justified its refusal to fully grant certain aspects of the applicant's request for information and records concerning particular types of visa applications
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
25 Obtober 2017
The applicant's FOI request of 7 April 2016 is quite detailed. In summary, what I will refer to as Part A of the request sought specified information (in two different tables) about "all applications submitted to INIS [the Irish Naturalisation and Immigration Service] by non-EEA family members between 16 March 2015 and 4 April 2016 inclusive for a single category C visa to join/accompany an EU citizen into the Republic of Ireland." She also sought particular information about any such applications processed otherwise than in order of receipt ("Part B"), and "all and any" internal policy and operational procedure documents (including instructions) issued or in use in the relevant period, whether held manually or electronically ("Part C").
The Department told the applicant that her request could be refused under section 15(1)(c). This is a provision that may be applied (provided certain requirements have been complied with by the FOI body) to requests that, if processed, would cause a substantial and unreasonable interference with or disruption of an FOI body's work. The Department invited the applicant to modify her request so that it would no longer fall under section 15(1)(c). In subsequent correspondence with the Department, the applicant amended parts of her request. I see no need to detail those changes here.
The Department's decision of June 2016 granted access to some records. It refused to grant access to further information and/or records on the basis of various provisions in the FOI Act, including section 15(1)(c). The applicant sought an internal review of the Department's decision on 21 July 2016, in which she further modified some parts of her initial request. The Department's internal review decision, dated 10 August 2016, granted access to some additional records but refused to grant access to further information and/or records further to various FOI provisions, again including section 15(1)(c). On 9 February 2017, the applicant sought a review by this Office of certain aspects of the Department's refusal to fully grant access to information and/or records relevant to her request.
I have now decided to conclude my review by way of binding decision. As will be clear from the analysis below, it was open to me to continue to seek clarification from the Department on matters arising in the review. Having considered the question carefully, and given the nature and extent of the issues that would need to be clarified, I decided instead to proceed to a final, binding decision at this stage. In carrying out my review, I have had regard to the above, and to correspondence between this Office, the Department, and the applicant. I have also had regard to the provisions of the FOI Act.
This review is confined to whether or not the Department has justified its refusal to fully grant access to those records relevant to Parts A, B and C of the request, as amended, of which the applicant has sought a review by this Office.
The review cannot consider the release of any records that the applicant did not seek (whether specifically or effectively (that is, by asking for information)) in her original request. Accordingly, the Department's decision on any changes the applicant made to her request, which resulted in the broadening of that request, is outside the scope of this review.
This Office's Approach To Directing Release of Parts of Records
Before I make my decision, it is useful to summarise this Office's position on issues arising in this type of case.
Requests for Records (Sections 11 and 12 of the FOI Act) vs. Requests for Information/Questions
The FOI Act provides for a right of access to records held by FOI bodies (section 11 refers). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.
However, requests for information, as opposed to requests for records, are not valid requests under the Act. Parts A and B of the request seek information about certain visa applications, which must be taken as a request for access to records that would give the applicant the information that she seeks. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.
Requirements in the FOI Act to Create Records (Section 17 of the FOI Act)
The FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices.
Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.
However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act.
Granting Access to Records With Exempt Information Redacted (Section 18)
Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
At the outset, it strikes me that the applicant's understanding of her general entitlements under FOI, to information in the manner she has requested, is not very realistic. This, coupled with the nature of the Department's submissions, has made this review more difficult and complicated than it ought to have been.
In her application to this Office, the applicant refers to information to which she was granted access, concerning "the total number of EUTR visa applications and initial decisions within the given period". She indicates that she had been refused access to information about the number of applications granted and refused with respect to each nationality of applicant within the given period.
The Investigator took this to mean that the Department had granted access to information about the number of applications granted and refused within the given period but had refused to break these details down further to specify nationality. She also understood the Department to have refused access to the latter under section 15(1)(c). She explained her understanding to the applicant on 1 March 2017 and made it clear that the review would proceed on this basis if the applicant did not reply. The applicant's reply of 10 March 2017 did not suggest that this understanding was incorrect. Submissions were then sought from the Department that, in pertinent part, were based on the Investigator's understanding of Part A(i) as she had described it to the applicant.
On further examination of the review file, however, the Department's decision refers to it granting access to details of applicants' nationality. Its submission to this Office, on the other hand, suggests that such details have been withheld, in that it says that nationality of applicant is exempt under section 37 (the personal information exemption). It also says that the visa applicants concerned have not consented to the release of their nationalities, which "may lead to further identification of the applicant".
On 17 May 2017, the Investigator outlined the apparent contradictions in the Department's position to the applicant. The applicant's reply of 31 May 2017 says that "the Department has released ... details of the number of applications that were processed within the given period broken down into nationality but has only released ... the overall totals of applications granted or refused within the given period i.e. without reference to nationality." She reiterated that her "original request for information pertains specifically to the number of such applications that were granted or refused within the given period with reference to nationality."
The applicant goes on to say she understood the Department to have relied on section 37 in refusing to grant access to the information concerned. She believes that the information is readily available to the Department and is data it "actively seeks to collate and retain", which can be extracted from its databases further to section 17(4) without any need to modify its software. I would point out that the applicant did not make these comments regarding the basis for the Department's refusal of the relevant information in response to the Investigator's letter of 1 March 2017.
Firstly, I will address suggestions made by the applicant in her initial contacts with the Department that it apply various "filters" to the relevant database(s) in order to produce the records and/or information she wanted. I wish to make clear that this Office does not accept that section 17(4) requires an FOI body to modify its software to enable searches for information relevant to a request.
This issue aside, I am not in a position to make any decision on records relevant to Part A(i). Firstly, submissions were not sought from the Department on section 37. While it alluded to the provision in its submission, I cannot consider its relevance in circumstances where I have not had sight of any relevant records or information. Furthermore, the Department has not explained how release of a visa applicant's nationality, in the relevant circumstances (which it did not identify) would enable identification of the applicant concerned. However, neither am I am prepared to direct the release of what might be personal information of individuals other than the applicant that would be exempt under section 37. In addition, the Department's submission is very unclear. Its arguments that the relevant information is exempt under section 37 suggest that this information can be extracted from the Department's databases further to section 17(4) in the first instance. However, its submission does not clearly state that applicant nationality is, in fact, contained in a searchable field. Rather, the Department's submission is largely concerned with the difficulties in retrieving information relevant to those matters under review. Because it does not distinguish between the different matters under review, I am unsure whether the Department is arguing that Part A(i) of the request should be refused under section 15(1)(c). If this is actually the Department's position, it would suggest that the relevant information is not retrievable on foot of database searches further to section 17(4).
It seems to me that the best option open to me in the circumstances is to annul the Department's decision on this aspect of the review and remit the matter (for avoidance of any doubt, the relevant matter is as quoted above from the applicant's email of 31 May) for fresh consideration. The Department's decision is subject to the usual rights of internal, and external, review.
It is appropriate, in this instance, to give some guidance on the approach the Department might take in making this fresh decision. It should firstly establish whether the relevant information is held electronically and may be retrieved further to section 17(4). If it is, the Department should retrieve the relevant details and then decide whether they can be released, or are exempt under one or more of the FOI Act exemption provisions. If the Department considers the information to be exempt, its decision should explain clearly why it considers the relevant exemption(s) to apply to the information concerned and apply the public interest test where required under the Act.
If section 17(4) is not relevant, the Department's decision should explain why this is the case. It should then establish whether it holds any discrete, extant, hard copy record holding the information sought, and in turn, consider whether that record is releasable. However, if the only means of obtaining the relevant information is further to an examination of individual visa application files, my analysis and decision in relation to Parts A(ii) and B (see next section) would seem relevant.
While it may not be necessary to consider section 15(1)(c) in the Department's fresh decision making, I should add at this point that section 15(4) provides that section 15(1)(c) shall not be applied unless the FOI body has assisted, or offered to assist, the requester to amend the request for re-submission such that it no longer falls within section 15(1)(c). Having considered the correspondence that resulted from applicant's request, it is my view that the Department has complied with the requirements of section 15(4) in the circumstances of this case.
The applicant's internal review application also identifies 64 particular visa application files. She said she wants the Department to examine the 64 files, and extract from each one all of the information specified at part A of her request. The Department refused to do so, citing section 15(1)(c). Part A(ii) of this review refers.
In her OIC application, the applicant suggests that searching 64 files is not unreasonable in the context of the number initially covered by Part A of the request, which she says is 3,594 files. I should make it very clear that, if the matter of granting access to parts of 3,594 files was before me, I would extremely unlikely to direct the Department to examine such a volume of files. Even in the absence of any submission on the matter, any reasonable person would consider a request that requires searches of such a number of files to be excessive. The FOI Act does not require public bodies to carry out excessive, unreasonable searches that interfere with its day to day work. Neither do I consider it appropriate for this Office to direct FOI bodies to search for records in such circumstances.
The element of Part B under review is concerned with the Department's refusal to examine the 64 files and to extract all information comprising "reason[s]" why any such files were examined "more than 14 days 'out of kilter'" as opposed to being processed in order of receipt. The Department refused to do so under various provisions of the FOI Act, including sections 15(1)(a) (records do not exist), and 15(1)(c). I have already described section 15(1)(c). Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or, as in this case, that the requested records do not exist.
It seems clear that the Department maintains it does not hold any discrete hard copy record(s) containing information relevant to parts A(ii) and B. Noting that it was the applicant's suggestion that it search the 64 files for the information concerned, I am satisfied that she does not dispute this.
Furthermore, while the Department appears able to extract some relevant details from searches of its databases, its position is that other fields on its databases are not searchable such that it can retrieve all of the information relevant to Parts A(ii) and B. I have no reason to dispute this. It also says that it would have to modify the relevant software to carry out searches of such fields. As already explained, I do not consider section 17(4) to require such steps to be taken. I find that section 17(4) is not relevant in this case.
In short, it appears that the information relevant to Parts A(ii) and B is held throughout records in hard copy visa application files.
The term "record" is defined in section 2 of the FOI Act as including a range of material such as books, other written or printed material in any form, maps, drawings, discs, tapes etc. It is also defined as including a copy or part of any such material
The applicant clearly wants access to any part of any hard copy record that contains the information relevant to Parts A(ii) and B. I have considered whether the FOI Act requires the Department to grant access to the relevant parts of those hard copy records.
Generally speaking, the specific circumstances and the context in which a request falls to be considered are important. For example, it may be appropriate to direct an FOI body to extract details of a particular subject matter from the minutes of a meeting of an FOI body.
I have already outlined that this Office does not favour of the cutting or "dissecting" of records for the purpose of granting access to particular words, sentences or paragraphs under section 18. More significantly, this Office considers that the primary purpose of section 18 is to ensure that FOI bodies do not refuse access to records to which access has been sought simply because they contain some exempt information, regardless of the extent of the exempt information. It is worth noting that the definition of an exempt record means a record to which access would be refused on the ground that one or more of the exemptions in Part 4 of the Act apply or on the ground that the Act does not apply to the particular record, under Part 5.
In this case, the relevant information is contained in visa application files with other information. That other information is outside the scope of this review and indeed the original request, rather than being exempt. I do not consider section 18 to impose an obligation on the Department to extract the relevant information in such circumstances.
In addition, the Act provides for a right of access to records held. It also places an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis). Even if it may be reasonably straightforward to identify the files on which the relevant information may be held in this case, this does not change the fact that there exist no discrete records containing that information. Addressing Parts A(ii) and B would essentially require the processing of records to create records that did not previously exist. Noting that there is no express requirement in the FOI Act to extract data from records held in hard copy (as opposed to the requirement to extract data held electronically), it seems to me that the Oireachtas did not intend that FOI bodies should be required to do so. That said, FOI bodies should take a reasonable and proportionate approach in determining whether to grant access to parts of records in order to address requests for information, as opposed to requests for specific, identified, records.
In the particular circumstances of this case, I find that the Department is not obliged to extract information from hard copy files that would be relevant to Parts A(ii) and B.
Summary
I have found that, in this case, the Department is not required to extract the relevant information either further to section 17(4) or from hard copy files. It is also not in dispute that the Department does not collate the information sought. I find that the Department was justified in refusing to grant access to records relevant to Part B of the applicant's request under section 15(1)(a), on the ground that the records sought do not exist. While it did not rely on section 15(1)(a) in refusing to grant access to records relevant to Part A(ii), I find the provision to apply nonetheless.
Further to the narrowing of this part of her request, including in her internal review application, the applicant sought communications between three named parties (two Department staff, and one other person). She also appears to be seeking such communications that contain the words "Pakistani national" or variants thereof or "British citizen" or variants thereof (although I cannot rule out the possibility that the reference to these terms was also in the context of other records generally). I am prepared to accept that communications between the named parties containing these terms may contain what one could consider to be "instructions" of the sort referred to in the original request.
The Department's internal review decision simply said that it had taken it that the applicant was not seeking communications between the two named Department staff. It did not explain why it took this view, even though it seems to me that the applicant's internal review application clearly covered such records. It appears to have refused access to the other communications described by the applicant in her internal review application on the basis that there "are no records" or that the records concerned were exempt under section 15(1)(c), which refusal one could also take to apply to the communications between the two named Department staff.
Further to comments in the applicant's letter to this Office of 9 February 2017, the Investigator's letter to the applicant of 1 March 2017 explained that she understood the applicant to be seeking a review of the Department's refusal under section 15(1)(c) of the applicant's request for communications between the two named Department staff that contain the words "Pakistani national" or variants thereof or "British citizen" or variants thereof.
The applicant did not dispute this understanding, other than to say that this aspect of my review should also address the Department's refusal to release further internal policy and operational documents concerning the processing of applications that were issued or in use during the relevant period, other than Visa Officer guidelines that have been released to her. I will deal with this issue separately.
Submissions were sought from the Department that, in pertinent part, were based on the Investigator's understanding of Part C as she had described it to the applicant. The Department did not explain why it did not consider the communications between the two named Department staff to be covered by the request as amended. It remains the position that the Department has not made a valid decision under the FOI Act on records relevant to Part C.
I also note the Department's comments that it would consider section 15(1)(c) to apply. The submission says that, based on a preliminary search, the Department considers it would have to search at least 2,000 emails held in the email accounts of both staff. However, it did not describe this preliminary search. It is unclear, for instance, whether the 2,000 emails that the Department claims need to be searched comprise all emails in the relevant officials' email accounts, including emails not relevant to this element of the review, or if this figure is indicative of all emails that contain some or all of the terms specified by the applicant. Neither do I know how easy it may be to search the email accounts for emails between the two named staff that contain the specified terms. While I note the Department's comment that variants of the terms "Pakistani national" or "British citizen" could cover a wide range, and indeed, while it also seems to me that "communications" can encompass more than just emails, I do not have sufficient argument from the Department to make a decision on the application of section 15(1)(c) in relation to this aspect of the review.
I consider the most appropriate decision to make is to annul the Department's decision on records relevant to Part C and remit the matter for fresh determination. My findings in relation to Parts A(ii) and B may also be relevant to that fresh consideration. For avoidance of any doubt, the scope of the matter I am remitting to the Department is as set out in the third paragraph under the heading "Part C".
Finally, I do not consider the application to this Office to cover the Department's refusal to release further relevant internal policy and operational documents. Thus, I do not intend to make any decision on this matter. However, it should be noted that I would have no reason to dispute the Department's contention that there are no further such documents, in that each case is decided with regard to the Visa Officer guidelines and the particular circumstances of that case. If I had remit to decide on the question of access to such further records, I would find them to be exempt under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant access to those elements of the applicant's request, described as Parts A(ii) and B above, on the basis that such records do not exist and that section 15(1)(a) applies.
I annul its decision on what I have described as Parts A(i) and C. In the circumstances of this case, a remittal of these matters is appropriate. I direct the Department to undertake a fresh decision making process on these matters (which, in relation to part A(i), is as quoted above from the applicant's email of 31 May 2017, and which, in relation to part C, is as set out in the third paragraph under the heading "Part C"), and to inform the applicant of the outcome in accordance with section 13 of the FOI Act.
Furthermore, for clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the statutory time limit for the making of the decision begins on the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act. It is open to the Department to contact the applicant to establish that she wishes to proceed with a fresh decision.
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.
Elizabeth Dolan
Senior Investigator