Decision
Mr X and Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: OIC-150867-D4V4R9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150867-D4V4R9
Published on
17 December 2024
On 30 May 2024, the applicant submitted a request to Revenue for a copy of the recording of his phone call to Revenue’s Local Property Tax (LPT) Helpline on 22 March 2024 in relation to a specified property ID. By letter dated 6 June 2024, Revenue informed the applicant that his request was too broad and offered to assist the applicant in narrowing the scope of his request so that it contained “sufficient particulars to enable the records to be identified by the taking of reasonable steps”. It said the phone number used to make the call and the date (and time if possible) the call was made was required.
On 3 July 2024, the applicant sought an internal review of Revenue’s deemed refusal of his request. He said his request was sufficiently particularised in accordance with section 12(1)(b) of the FOI Act. By letter dated 10 July 2024 Revenue informed the applicant that his request had not been refused. It said the request as worded would require the retrieval and examination of such a number of records as to cause substantial and unreasonable interference with or disruption of work in a particular functional area. It said this goes beyond the taking of reasonable steps. It again reiterated its position that the request did not contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. It said that as the request did not comply with section 12(1)(b) of the Act, it risked being refused under section 15(1)(b). It again asked the applicant to provide the phone number used to make the call and the approximate date and time the call was made. It said that once the required information was received, the request would be considered further. On 29 July 2024, the applicant applied to this Office for a review of the deemed refusal of his request.
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 both the applicant and the Revenue Commissioners during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
Revenue’s position in this case is that it has not refused the applicant’s request and is still awaiting the provision of the additional information requested. In essence, its argument is that no valid request has been made as the request as worded fails to comply with section 12(1)(b) of the Act. A request that fails to comply with section 12(1)(b) falls to be refused under section 15(1)(b). Revenue also appears to be of the view that the request also falls to be refused under section 15(1)(c). The applicant’s position is that a valid request has been made and that his request is deemed refused as Revenue failed to issue both original and internal review decisions within the required time-frames.
For the reasons I have set out below, I am satisfied that the applicant is entitled to regard Revenue’s failure to issue a decision on his request as a deemed refusal of his request and that I have the jurisdiction to review that refusal. Accordingly, I will consider whether a valid request has been made in this case.
Before I address the substantive issues arising, I would like to address concerns the applicant raised in his submissions to this Office regarding Revenue’s handling of his request. The applicant referenced section 48(3) of the FOI Act, which provides that FOI Bodies must have regard to the Code of Practice and guidelines drawn up by the Minister for Public Expenditure, NDP Delivery and Reform under section 48(1) in the performance of their functions under the Act. He argued that the Code of Practice for FOI for Public Bodies and the Decision Makers Manual are considered statutory instruments. He also referenced the timelines set out in the Decision Makers Manual, such as “contact with the requester… should take place… certainly not later than two working days following receipt of the initial request.” He said Revenue did not meet this two-day deadline, and as such he considered this as a failure on the part of Revenue to comply with its functions under the FOI Act, Code, or Manual. He said he believed this failure rendered Revenue’s challenge to the validity of his request ultra vires, and out of time.
The Code of Practice and Decision Makers Manual referenced by the applicant comprise best practice guidance. While FOI bodies must have regard to them, they do not constitute legally binding timelines. As such, a failure by an FOI body to comply with the two-day deadline does not render its response invalid. I would add, in any event, that this review has been undertaken pursuant to section 22(2) of the Act and as such, is confined to a consideration of the decision taken on the request made.
In its letter of 6 June 2024 in response to the applicant’s request, Revenue informed the applicant of its view that the request did not comply with section 12(1)(b) of the FOI Act. That section provides that a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.
In its submissions to this Office, Revenue said that while the applicant may believe his request contains sufficient particulars, the actual position is that the record is not readily identifiable from the limited information provided. It said that due to the type of record involved and how it is stored, the search for and retrieval process would require a significant allocation of time and resources and would cause a considerable administrative burden on the functional area involved. It said that the provision of basic additional information would help focus the search for the record so that it could be retrieved, examined and considered for release by the taking of reasonable steps. It said the applicant was advised of the specific information required and asked to provide it and that to date, he has not provided this information.
Revenue also argued that the claim by the applicant that there was a deemed refusal of his request is not accurate. In its submissions of 7 October 2024 to this Office during the course of the review, it said it did not issue an FOI decision or an internal review decision in this case. Instead, it said it was still awaiting the provision of the additional information requested so that sufficient particulars were provided to enable the record to be identified by the taking of reasonable steps. Revenue further said that as per the FOI Decision Makers Manual published by the Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform (the CPU Manual), the relevant date for receipt of the request is the date on which agreement is reached between the requester and the FOI body on the terms of a revised request. It said that to date, the terms of the revised request have not been agreed despite repeated requests to the applicant.
Having considered Revenue’s submissions, it seems to me that its arguments are based on a misinterpretation of both (i) section 12(1)(b) of the Act and (ii) the relevant part of the CPU Manual.
On the matter of whether the request complies with section 12(1)(b), the essence of Revenue’s argument is that the request as worded would require the retrieval and examination of such a number of records as to cause substantial and unreasonable interference with or disruption of work in a particular functional area. It said this goes beyond the taking of reasonable steps.
During the course of the review, the Investigating Officer asked Revenue why it considered that the request did not contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. In response, it said that based on the information provided, the steps that would need to be taken to search for, identify, locate, retrieve and examine the record requested would be considerable, given the number of calls to the LPT Helpline on the day in question and the difficulty in establishing definitely the identity of the caller.
The taking of reasonable steps in section 12(1)(b) is not concerned with the steps that would need to be taken by the FOI body to search for and locate the record sought. Rather, it is concerned solely with an FOI body’s ability to identify the record sought. Section 15(1)(c) is the provision that allows an FOI body to refuse a request where granting the request would cause a substantial and unreasonable interference with or disruption of work. However, for an FOI body to be in a position to rely on section 15(1)(c) to refuse a request, it necessarily follows that the FOI body must be aware of the identity of the records sought.
I am satisfied that Revenue was, indeed, aware of the precise identity of the record sought in this case. The record sought was a copy of the recording of his phone call to its LPT Helpline on a specified date in relation to a specified property ID. It seems to me that Revenue was concerned about its ability to efficiently locate the record as opposed to any concern about its ability to identity what record was being sought. I fully accept that had the applicant provided the information sought, it would have greatly assisted Revenue in its efforts to locate the record. However, this does not mean that it could not identify the record that the applicant was seeking, as opposed to locating the record. Accordingly, I am satisfied the request made in this case did, indeed, comply with the provisions of section 12(1)(b) of the Act.
On the matter of Revenue’s argument that the claim by the applicant that there was a deemed refused of his request is not accurate, Revenue relied on an extract from the CPU Manual which is concerned with the validity of requests. The text of the relevant section, entitled “2.4 Validity of Requests” is worth restating here:
“A request comes within the scope of the Act (section 12) if it is possible to identify the records concerned, notwithstanding that the request is large in its scope or covers a large number of records. A voluminous request is therefore valid . However before the process of search and retrieval commences, the FOI body would be advised to consult the requester in relation to a voluminous request in order to clarify those records of interest to him/her.
A request is not valid if it is not possible, by the taking of reasonable steps, to identify the records concerned from the information supplied . In these circumstances, the FOI body is obliged to consult with the requester to assist them in identifying the records sought. When the terms of a revised request are agreed between the requester and the FOI body, the date on which such agreement is reached becomes the relevant date for receipt of the request.” (emphasis in original)
As can be seen from the fuller extract above, a voluminous request (one which falls to be refused under section 15(1)(c)) is a valid request if it is possible to identify the records sought. Moreover, the key point being made in the section, i.e. that the date upon which agreement is reached on the terms of a revised request becomes the relevant date for receipt of the request, is relevant only where agreement on the terms of the request has been reached. Its purpose is to explain that the time-frame specified in section 13 for issuing a decision on a request commences only at the date of the agreement. It does not mean that the FOI process as set out in the FOI Act may be suspended indefinitely until such time as agreement on the wording of the request is reached. Situations will invariably arise where such agreement cannot be reached. Nor does it mean that a requester is not entitled to argue that the original request made complies with the requirements of section 12(1)(b) or to regard a failure to issue a decision on that request within the time-frame specified in section 13 as a deemed refusal of that request pursuant to section 19. Indeed, if I was to accept Revenue’s argument, it seems to me that this Office would never be entitled to review a refusal to process a request on the ground that it does not comply with section 12(1)(b). If an applicant is not forthcoming with information that an FOI body considers it needs for the request to comply with section 12(1)(b), then it is open to the body to refuse the request under section 15(1)(b). It is not open to the body to circumvent the deemed refusal provisions of section 19 by simply not processing a request on the ground that no agreement on the terms of the request have been reached.
In summary, I am satisfied that the request made in this case complies with the requirements of section 12(1)(b) and that the applicant was entitled to treat Revenue’s failure to issue decisions on the request as a deemed refusal of the request.
My finding that the request made in this case complies with the requirements of section 12(1)(b) is, of itself, sufficient for me to find that Revenue was not justified in refusing the applicant’s request and to direct the release of the record sought. However, having regard to Revenue’s submissions in relation to the disruption of work that would be caused by virtue of the steps that would be required to locate the record, I do not consider it appropriate to do so. Instead, I am satisfied that the most appropriate course of action to take is to annul Revenue’s deemed refusal of the request on the ground that it does not comply with section 12(1)(b) and to direct it to consider the request afresh. I am satisfied that this course of action is open to me pursuant to section 22(2) of the Act which entitles me to annul a decision and to make such decision in relation to the matter concerned as I consider appropriate.
While it is not necessary for me to do so, I would like to add some general observations on the matter which may be of assistance to both parties in relation to the fresh processing of the request.
First, I find it difficult to understand why the applicant does not simply provide the information Revenue has sought, namely the phone number used to make the call, and the time it was made, if possible, so that it may efficiently carry out a search for the record he is seeking. On this point, it is relevant to note that while the FOI Act demands that FOI bodies meet very high standards in dealing with requests, it also assumes reasonable behaviour on the part of requesters. It seems to me that the applicant has provided no good reasons for refusing to provide the information requested in his efforts to obtain a copy of the record sought. I would strongly suggest that he should consider providing the information sought.
Secondly, I would like to make an observation on the position taken by Revenue to date on the request, namely that granting the request as it stands would cause a substantial and unreasonable interference with or disruption of its work. Revenue has provided detailed submissions to this Office on the steps that would ordinarily be required to locate a record of the type sought by the applicant. It explained that Revenue contracts an External Service Provider (ESP) for the provision of customer call handling, in respect of Local Property Tax (LPT) and Vacant Homes Tax (VHT). It said the ESP deals with customer queries as a first point of contact, and where the ESP is unable to resolve the query, calls are escalated to Revenue’s internal Helpline service. It said that in terms of call recordings, there are two separate call recording systems: the ESP call recording system, and Revenue’s internal call recording system. It said that when an FOI request of this nature is received, it is necessary to search both systems to obtain the relevant call recording(s). It said it is necessary in the first instance to locate the initial call received by the ESP as the first point of contact. It said the only guaranteed method of identifying a call on the ESP system is by using the telephone number from which the call was made.
However, Revenue then went on to say that the ESP could search their systems by Property ID, if the caller provided it on the initial call and the agent who handled the call recorded it. It added, however, that the Property ID alone is rarely sufficient to enable the ESP to identify the initial call and that it is therefore standard practice to provide the ESP with the
contact phone number, date, and approximate time of call to enable them to find the first
contact call. It said that once the ESP locates the call, they provide the recording and a transcript to Revenue, and where the call was escalated to Revenue’s internal Helpline service, the ESP provides Revenue with the approximate time that the call was escalated, to allow Revenue to locate the call on its internal recording system.
While I fully accept Revenue’s assertion that the Property ID alone is rarely sufficient to enable the ESP to identify the initial call, Revenue itself acknowledges that it is possible for the ESP to search their systems by Property ID. It is also possible that the agent who handled the applicant’s call may have recorded the Property ID in this case. It seems to me that had an initial search been undertaken using the Property ID provided, Revenue would have been in a position to make a more informed decision as to whether the provision of further information was necessary in order to conduct an efficient search for the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Revenue’s deemed refusal of the applicant’s request on the ground that it did not meet the requirements of section 12(1)(b) of the Act 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