Decision
Ms X and Legal Aid Board
From Office of the Information Commissioner (OIC)
Case number: OIC-144884-L6G1S0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144884-L6G1S0
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
8 May 2024
In a request dated 30 November 2023, the applicant sought access to ‘all documentation and records in existence since 1st September 2023 in the power, possession or procurement of the Legal Aid Board touching upon and/or concerning the clearance for appointment of [the applicant] to a new civil service position, the recruitment being conducted by PAS, up to and including work references, employment reports, performance management report, health information, sick leave records, to include records as sought and orally or in writing, or by electronic means, communicated to other parties (whether on [the Board’s] own volition or pursuant to a particular request) to the Public Appointments Service (PAS) or any other party in the context of the current recruitment process in which [the applicant was] engaged’. The applicant asked that her request include:
The applicant sent another email to the Board on 7 December 2023, outlining in further detail a list of the information she was seeking about her sick leave and employment records.
On 21 December 2023, the Board informed the applicant that it was necessary to extend the period for consideration of her request by four weeks as, owing to the nature of her request and in particular the number of records being sought as requested in her second email, it would not be reasonably possible to examine and gather all such records that may be relevant to her request within the four-week period. On the same date, 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 22 January 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 outlined above and to the Board’s submissions to this Office. I have decided to conclude this review by way of a formal, binding decision.
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.
The Board did not specify whether it was relying on section 14(1)(a) or 14(1)(b) in its correspondence with the applicant. However, in its submissions to this Office it indicated that it was solely relying on section 14(1)(a).
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 number of records sought in both the original request and in the follow-up email, as well as the need to identify if what the applicant was seeking was actually a record pursuant to the 2014 Act, was the basis upon which it extended the time for making its decision under section 14. The Board said that the applicant identified eight sub-categories of records that she listed as A-H in her initial request, and in her follow-up email identified three sub-categories related to her sick leave record and then 12 sub-categories of records related to what she described as her employment report.
It said that it did not agree with the applicant’s contention to this Office that she “simply highlighted specific information sought that was encompassed within the original request dated 30 November 2023” in her follow-up email and that “[i]t was not a request for further information”. The Board said that it had to take each point in turn and to verify if there was a record and then to make a decision. It said that this is evident in the decision issued and the schedule of records provided to the applicant on 22 January 2024.
The Board said that any records identified by the applicant in her request would have been in the Human Resources function of the Board. It said there were also records sought from the National Shared Services Office (the NSSO), which is a shared services provider for Human Resources, payroll administration and finance services for Government Departments and Public Service Bodies. It said a request had to be raised with the NSSO for certain information the applicant was seeking, which in itself has a lead time. It said that the NSSO indicates a 14 calendar day time-frame in which they strive to answer requests for records pursuant to the FOI Act raised by FOI bodies, and therefore the applicant’s request for those records could not be processed until those records were acquired.
The Board said there were also records sought from the Office of the Chief Medical Officer (the CMO), who provides an occupational health service to the Civil Service. It said that internally, as the applicant’s request spanned across Human Resources areas – recruitment and absence management – the records within those areas all had to be searched.
The Board said that a majority of the records sought would be held in electronic format, apart from the hard copy employee file. It said that, amongst other things, it had to search individual and shared email accounts, its Zoom account, and seek records from both the NSSO and the CMO.
The Board said that it needed to search hundreds of records in order to identify if any records relevant to the request were held. For the purpose of an FOI request, the Board said that the decision maker will request a search be undertaken by any staff member that may have records, the decision maker will search their own records if appropriate, and shared mail boxes will be searched for any records that would reasonably be seen to be relevant to the request.
The Board said that a cursory estimate for processing the applicant’s request was 35 hours. It said that staff needed to search three shared mail boxes: the general HR email box, a shared mail box dedicated to interactions with the NSSO (which includes CMO referral records) and a shared email box pertaining to interactions with PSSC (Payroll Shared Services). It said that three senior managers as well as four HR unit staff were required in order to conduct searches for relevant records. The Board said that this meant searches had to be conducted by six of the 12 members of the HR unit of the Board, with one to handle administration around collating the records. The Board said that the applicant’s request was dealt with while the decision maker was undertaking all other duties he had pursuant to his role at a senior management level in the Board.
The Board in its submissions said that the applicant has made further FOI requests, which are being dealt with by the Board via the same decision maker at the same time as the current request and subsequent appeal to this Office. It said that these requests include overlapping time-frames and/or relate to the same records as those sought in this case. It said that these further affected the Board’s ability to issue the decision within the four-week deadline as it stretched the resources available.
The Board said that, given the above, the request was deemed to relate to such number of records that compliance with the four-week timeline set out in the FOI Act was not reasonably possible. 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 22 January 2024 that the Board part-granted her request. In correspondence with this Office, the Board stated that it provided the applicant with approximately 69 pages of records in total.
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 that dealing with the applicant ‘s request was made more challenging by the very detailed wording of her request. I note, however, that while the applicant’s FOI request contained a significant number of sub-categories, and that the introduction of these sub-categories complicated the process for searching for relevant records, the time period covered by her request was only three months. Furthermore, while there were a significant number of sub-categories outlined in her request, the applicant’s request was ultimately concerned, in my view, with records relating to clearance for her appointment to a new position. It seems to me that the time actually spent in processing the request (35 hours) and the number of records ultimately provided to her also does not support an argument that the extension was necessary. I note too that a number of records 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 had not provided sufficient particulars to enable the identification of relevant records.
I acknowledge that processing the applicant’s request was not as straightforward as she argues. 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