Decision
Ms. X and Legal Aid Board
From Office of the Information Commissioner (OIC)
Case number: OIC-146788-N7M6Y2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146788-N7M6Y2
Published on
Whether the Board 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 May 2024
In a request dated 24 January 2024, the applicant sought access to all records held by the Board or its agent the NSSO (National Shared Services Office) touching on her employment, since 1 September 2023, to include all correspondence with third parties. The Board contacted the applicant on 16 February 2024 to request that she clarify and refine her request, as the Board was not clear as to what records she was seeking. It said that this request largely resembled a different FOI request that she had made on 30 November 2023, and offered to assist her in refining her request.
On 19 February 2024, the applicant replied to the Board clarifying her request concerns records relating to the following:
On 21 February 2024, the Board informed the applicant that it was necessary to extend the period for consideration of her request by four weeks under section 14(1)(a) of the Act. The Board said that the nature of the request, as outlined in the four categories, meant it would not be possible to comply with the four-week decision-making period due to the number of records involved. On 26 February 2024, the applicant sought a review by this Office of the Board’s decision. I understand that the Board 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 between the Board and the applicant as outlined above and to correspondence between this Office and both the Board and the applicant on the matter.
This review is concerned solely with whether the Board’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.
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), it 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 Board said that the initial request and subsequent clarification, which was required owing to the lack of particulars in the initial request, covered broadly the same time period and types of records as sought in a previous request (OIC-144884 refers). The Board said that any relevant records would have been in the Human Resources function of the Board, with further records potentially needing to be sought from the NSSO. It said that as the applicant’s request spanned across Human Resources areas – recruitment, absence management and pensions – the records that may have been within those areas had to be searched.
The Board said that Part D of the applicant’s request, which concerns records relating to interactions with the FSPO, required considerable scrutiny as the relevant staff of the Board were not aware of any such interaction. The Board said that following searches of individual and shared email accounts, it also consulted the Board’s IT Unit in order to conduct further searches. It said that searches were conducted of the Board’s email servers to see if there was any correspondence from the FSPO. Following this, the Board said that it requested its specialist IT support team to conduct searches via Mailmeter. It said this was a forensic email analysis tool that conducted a thorough examination of the Board’s email servers. The Board said that while no records relating to an interaction with the FSPO were located, this was, however, after a significant undertaking in respect of searches of the Board’s email servers involving two separate IT functions of the Board.
The Board also said that the applicant had sent in a number of FOI requests in short succession, which it said overlapped with each other, and this had also affected the Board’s ability to issue a decision within the original four-week period. It said that significant time and resources had been spent on the decision-making processes for the applicant’s FOI requests during this period, including on reviews being conducted by this Office.
The Board said that a majority of the records sought were emails and therefore would be held in electronic format, apart from the hard copy employee file. In its submissions, the Board said that the range of records potentially relevant to the request was wide, as it covered a number of different categories of Human Resources records. It said that three senior managers, a HR middle manager, and two IT middle managers were involved in the searches it carried out. The Board estimated it took 25 hours in total to process the applicant’s request. In conclusion the Board said it applied section 14(1)(a) of the FOI Act to extend the time for issuing a decision to the applicant by four weeks due to the number of records that were the subject of her request.
I note from the original decision that was issued to the applicant on 27 March 2024 that the Board part-granted her request. It released 45 records that primarily comprised emails relating to parts A and B of the applicant’s request. It refused parts C and D of her request under section 15(1)(i) and section 15(1)(a) on the ground that some of the records sought had been previously made available to her and records relating to the FSPO do not exist.
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 Board 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 Board’s comments about the similarities between the applicant’s request in this case and her previous request and I note that the Board needed to contact the applicant about the scope of her new request. I note too, that while the applicant made her request on 24 January 2024, it was over three weeks later before the Board wrote to her seeking clarification on 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 Board. While the applicant outlined four sub-categories when the Board sought clarity about the scope of her request, the applicant’s request was ultimately concerned with a relatively small number of records relating to her employment over a four-month period.
It seems to me that the time actually spent in processing the request (25 hours) and the number of records ultimately provided to her also does not support an argument that the extension was necessary. As noted above, a number of the records sought were refused under section 15(1)(a) on the ground that they do not exist, and other parts of the request were refused on the ground that the applicant already has access to those records.
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 Board 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 Board has already issued its decision on her request, I find that the Board’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 Board’s decision to extend the period for consideration of the applicant’s request under section 14(1)(a) of the FOI Act in this case.
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