Decision
Ms X and Department of Environment, Climate and Communications
From Office of the Information Commissioner (OIC)
Case number: OIC-146130-N4S4R8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146130-N4S4R8
Published on
Whether the Department was justified, under section 15(1)(c) of the FOI Act, in refusing access to all records relating to a specific Foreshore Licence, on the ground that processing the request would cause a substantial and unreasonable interference with, and disruption of, its work (including disruption of work in a particular functional area of the Department)
14 June 2024
On 15 August 2023, the applicant made an FOI request to the Department of Housing, Local Government and Heritage for all records relating to a specific Foreshore Licence. The applicant also sought access to the same records under the Access to Information on the Environment (AIE) Regulations. This review solely concerns the Department’s decision on the applicant’s FOI request.
On 23 August 2023, the Department emailed the applicant and said that their request would include a voluminous number of records. In its correspondence with the applicant, the Department said that all the application documents and reports referred to in the process of determination of the specific Foreshore Licence were publicly available on the Department’s website. The Department suggested the applicant either withdraw their FOI request or refine the scope of the records requested. On 12 September 2023, after contacting the applicant by telephone on 5 September 2023 to discuss the scope of their request, the Department refused the applicant’s request under section 15(1)(c) of the FOI Act. The Department estimated that 455 records would need to be reviewed to determine if they fall within the scope of the applicant’s request. The decision maker also refused those records that are already in the public domain under section 15(1)(d) of the Act. The Department suggested that the applicant could submit a new request refined to reflect the fact that relevant documents relating to the Foreshore Licence are available online.
On 15 September 2023, the applicant wrote to the Department saying that they did not require copies of the records which are publicly available. On 28 September 2023, the Department wrote to the applicant stating that as the records the applicant continued to request would still have to be cross-checked to identify the various versions of documents against those already publicly available it did not consider the scope of the applicant’s request to be refined. The Department said that its original decision still stands and said it was open to the applicant to seek an interview review of that decision, which the applicant subsequently did on 4 October 2023. On 24 October 2023, the Department affirmed its original decision to refuse the request under section 15(1)(c). On 29 January 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of this review, the Foreshore Unit of the Department of Housing, Local Government and Heritage transferred to the Department of Environment, Climate and Communications. As a result of this transfer, the relevant records are now held by the Department of Environment, Climate and Communications.
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 provided by the applicant and from both Departments during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is concerned solely with whether the Department 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 its work.
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
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.
However, 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 Department 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.
Section 15(4)
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), and 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.
I should add that while there is an onus on FOI bodies to assist, or to at least offer to assist, requesters, 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. This is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held.
As set out above, following receipt of the applicant’s request, the Department wrote to the applicant on 23 August 2023 and informed them that their request was voluminous. The Department informed the applicant that all the application documents and reports referred to in the process of determination of the Foreshore Licence were available online and provided the applicant with a link to the relevant information. The Department then asked the applicant, in light of these documents being publicly available, whether it would be possible to either withdraw the FOI request or refine the scope of the request. The Department provided the applicant with a contact number if they wished to discuss the matter further. Having received no response to the abovementioned offer of assistance, the decision maker called the applicant on 5 September 2023. In submissions to this Office the Department stated that during this call the decision maker offered the applicant a variety of suggestions regarding the refinement of their request. By way of example, the decision maker stated that she offered to provide unredacted copies of all the documents publicly available, as the redaction policy regarding staff names had changed since publication. The decision maker also stated that she attempted to discern if there was a particular area of interest/ specific section of the records the applicant was interested in, which would narrow the scope of the request. The decision maker stated that the applicant was unwilling to refine the scope of their request, stating that they still required all records relating to the specific Foreshore Licence.
I note in their application to this Office the applicant states that during the telephone call on 5 September 2023, they confirmed that they did not require sight of any documentation available on the Foreshore Licence webpage and that it also advised the Department that it was considering its position regarding the Department’s letter of 23 August 2023, which dealt with the scope of the request. In its original decision dated 12 September 2023, the Department said it would be happy to process a new request, refined to reflect that relevant records are publicly available. The applicant reverted to the Department on 15 September 2023 to confirm that it did not require copies of the records that are publicly available. On 28 September 2023, the Department wrote to the applicant stating that as the records the applicant continued to request would still have to be cross-checked to identify the various versions of documents against those already publicly available it did not consider the scope of the applicants request to be reduced. The Department said that its original decision still stands and said it was open to the applicant to seek an interview review of that decision, which the applicant subsequently did on 4 October 2023.
In its submissions to this Office, the Department said that its letter of 12 September 2023 advised the applicant that a request for documents not publically available could be processed. It said that the intent of this offer was to provide the requester with the opportunity to be more specific as to what documents they required. The Department said that the applicant’s response did not refine the scope of the request but rather confirmed that all documents, notes etc. were required with the exception of those publically available. The Department said that in its response to applicant’s letter dated 15 September 2023, it confirmed that the offer to refine the request to exclude the publically available information would not reduce the scope of the original request. The Department said the reason for this is that the original wording of the request remained unchanged resulting in the scope not actually being reduced. It said that the unpublished drafts, versions of documents which make up the remainder of the circa 400 documents would still have to be accessed so they could be cross-checked to identify the various versions of documents against those published, as the original scope of records has not been reduced.
Based on the above, I am satisfied that the Department endeavoured to assist the applicant in refining their request so that it no longer fell to be refused under section 15(1)(c) of the Act. I acknowledge that the applicant engaged with the Department and agreed to exclude records already in the public domain from their request. While it seems to me that further engagement between the parties may have resulted in an agreeable solution, in the circumstances, I accept that the Department complied with the provisions of section 15(4) of the FOI Act.
Section 15(1)(c)
The applicant’s position is that by excluding publicly available documents from their request, which relates to roughly 40 documents, that they have significantly reduced the scope of their request. The applicant believes that the remaining circa 400 records should not pose a substantial interference with the relevant Unit of the Department, considering the volume of documentation that passes through the Department. The applicant also contends that the public interest in transparency regarding the finite marine resources of the State outweigh any potential interference with the work of the Department. It is important to note that this review is concerned solely with the administrative refusal by the Department of the applicant’s FOI request under section 15(1)(c) of the FOI Act. A refusal of a request under section 15(1)(c) is not subject to a public interest test.
In its submissions to this Office, the Department stated the Foreshore Unit staffing level was at 26 in September 2023. The Department explained that the unit has a number of functions, dividing the staffing into 4 teams, 2 of which deal with consent cases. It said that staff assigned to an FOI request of this type would have to be from the 2 of those teams, as familiarity with the processes and types of documents etc. would be required to deal with the request. The Department said there was 15 staff in these areas, and circa 150 active cases were in process at the time of the request.
The Department then outlined its reasoning for concluding that processing the applicants request for all records relating to the Foreshore Licence would cause a substantial and unreasonable interference with or disruption of work to the Foreshore Unit. The Department stated that it carried out a high level assessment of the number of documents on file. It said the high level count consisted of counting the folders within the document and the number of files within each folder. The Department outlined that the records in question included various correspondence with the applicant, requests for reports, correspondence related to public consultation, and general administrative correspondence. The Department noted that it may also include various versions of documents not used in the determination of the Foreshore application. The Department noted that older or incorrect versions of documents would not have been used in the determination of the case as all documents used are submitted to the Minister and subsequently published online, hence the Department’s initial assertion that all relevant records were publicly available.
The Department stated that files are stored in an electronic document filing system. It explained that each Foreshore Licence application has its own folder with a number of subfolders for each stage of the consenting process. The Department said the Foreshore Consenting process is complex, comprising of a number of different stages. Each of these stages has an allocated overarching folder, with a number of subfolders within each. Every subfolder then contains the relevant documents, emails etc. The Department outlined that the work necessary to process the applicants FOI request consisted of the retrieval of records, opening each folder, listing the files within, and then carrying out a review process of each document to ascertain if any redaction is necessary.
The Department then provided an estimated calculation of the time it would take for one staff member to complete the necessary work. It estimated that an average of 20 minutes per document would be required for all relevant steps to be completed. The Department said approximately 450 records were located as part of a high level search, and consequently it would take one staff member an estimated 150 hours or 4.5 weeks to process the applicants FOI request. The Department stated that the average length per document ranged between 10-20 pages, and it would take on average 5 minutes to check for duplicate files, 5 minutes for review of the document in its entirety, and 10 minutes for necessary redactions of personal information, commercially sensitive information, and legally privileged information. Based on the Department’s estimate, if each of the 450 documents was estimated at the lower end of this average length i.e. 10 pages, this could involve the Department processing approximately 4,500 pages in order to process the applicant’s request. The Department stated that if 2 staff members were assigned, it would still take over 2 weeks to process the request. The Department said that the allocation of one (or 2) staff members to this task for the length of time mentioned above would put an undue strain on the ability of the Foreshore Unit to carry out its functions effectively. The Department stated its belief that reassigning staff members to process this request, especially considering relevant records are available online, would put an unfair pressure on other staff members in the unit without reasonable cause.
Section 15(1)(c) of the FOI Act is an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. It should be noted that a refusal may be made on the basis of a disruption of the work of a particular functional area, and not necessarily on the basis of disruption of work of the body as a whole.
In the circumstances, and having taking into consideration the fact that the applicant has said they are not seeking copies of those records that are publicly available, I accept the Department’s estimate of the time and resources that would be required to retrieve and examine all 450 relevant records. I am also satisfied from the Department’s description of the work involved, that processing the applicant’s request as it stands would cause a substantial and unreasonable interference with, and disruption of, the work of the Foreshore Unit. Accordingly, I find that the Department was justified in its decision to refuse the applicant’s request under section 15(1)(c) of the FOI Act.
I would add that it remains open to the applicant to submit a revised request to the Department if they wish to do so. Should they wish to make a new request, they might engage with the Department again to explore options on refining the scope of their request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant’s request under section 15(1)(c) of the Act.
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