Decision
Mr X and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-144313-C1K4S7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144313-C1K4S7
Published on
Whether the OPW was justified in refusing access, under section 15(1)(c) of the FOI Act, to records relating to the lands surrounding Castletown House on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work
5 April 2024
Castletown House is a national heritage site operated by the OPW. The request in this case relates to the OPW’s attempt to buy lands which formed part of the historic Castletown demesne.
On 4 October 2023, the applicant made a multi-part request, covering the period from 1 June 2010 until the date of his request, for records relating to Castletown House including, minutes of meetings between the OPW and the owner of the lands surrounding Castletown House, records of communications and minutes of meetings between the OPW and a number of third parties regarding the lands surrounding Castletown House and a list of all meetings and phone calls pertaining to land around Castletown between the OPW and a number of third parties and for all communications between the OPW and Kildare County Council in relation to the carpark on lands adjacent to Castletown House. On 9 November 2023, the applicant applied for an internal review as the OPW had not made a decision on his request within the 4-week time frame provided in the Act. On 1 December 2023, the OPW issued an internal review decision refusing the applicant’s request on the ground of section 15(1)(c) of the FOI Act. The OPW said it anticipated that the request would attract a substantial search and retrieval fee and it advised the applicant to amend his request so that it no longer falls to be refused under section 15(1)(c). The OPW also provided the applicant with a copy of records which had been released on foot of two separate FOI requests made by third parties. It said that some of these records may answer queries that the applicant had raised. On 1 December 2023, the applicant applied to this Office for review of the OPW’s decision.
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 the OPW during the review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the OPW was justified in refusing access to the applicant’s request dated 4 October 2023 for records relating to meetings and communications between the OPW and a number of third parties regarding Castletown House.
Before I address the substantive issues arising in this case, it is important to note that section 22(12)(b) of the Act provides that a decision to refuse a request is presumed not to have been justified unless the public body “ shows to the satisfaction of the Commissioner that the decision was justified”. Therefore, in this case, the onus is on the OPW to satisfy this Office that its decision to refuse access to the records at issue was justified.
Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request where in the opinion of the head 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 the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption in a particular function area) of the FOI body concerned.
In its submissions to this Office, the OPW said that due to the volume of FOI requests received, it was not possible to respond to the applicant within the specified period. It stated that the request itself was of an extraordinarily voluminous and wide-ranging nature. The OPW stated that the request covers a period of 13 years of intensive engagement between the State and the previous and current owners of the lands concerned. It said that a conservative estimate of the hours involved would be 25 hours of retrieval and assessment of the records for 2 to 3 staff members. The OPW said that the negotiations to which the records requested by the applicant refer were at Commissioner level and would require a very extensive trawl across sections of the OPW. It stated that that some records relevant to the applicant’s request may be located in Castletown House, which is not currently accessible by OPW staff. It said that the Section that deals with the matter is a very small one and an attempt to answer the FOI request would bring the work of the Section to a halt due to the voluminous nature of the request and the considerable time period of 13 years which it covers. The OPW stated that individual recent communication records are stored on the hard drives of the officials concerned and that the historical communication records would require retrieval by its IT Section. It stated that any physical records held in Castletown House are not currently accessible. The OPW said that most of the more recent records would be held electronically, however IT intervention would be required to retrieve them as a result of a system change. The OPW stated that many of the historic records would be on paper files. It said that there is no fool proof method of deciding which records are relevant, though the use of key words would be of some assistance.
It is important to note that under section 15(4) of the Act, 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 the section. As such, before I can consider whether the OPW was justified in refusing under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). 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 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.
The question I must consider in this case is whether the OPW provided reasonable assistance to the applicant in amending the request, or whether it offered to provide assistance in circumstances where the applicant was not willing to amend the original request.
In this case, the OPW did not issue an original decision nor did it inform the applicant before making its decision on his request that it intended to refuse the request under section 15(1)(c) of the Act if he did not amend his request so that it no longer falls to be refused under that section. While I note the internal reviewer advised the applicant to amend the scope of his request, this was done after having made a decision to refuse the request as it stands. Accordingly, I find that the OPW did not comply with provisions of section 15(4) in this case. My finding that the OPW did not comply with the provisions of section 15(4), is sufficient for me to find that the OPW was not justified in refusing the applicant’s request under section 15(1)(c) of the FOI Act, and I find accordingly.
In addition to its submissions to this Office about the voluminous nature of the applicant’s request, the OPW has advanced a number of other grounds for refusing the request, which appears somewhat contradictory to me. On the one hand, the OPW claim that the request should be refused under section 29(1)(a) of the Act as negotiations will continue on access to and on the purchase of lands. On the other hand, the OPW also said the request should be refused under sections 15(1)(d) and 15(1)(f) of the Act as the information is already available or will be published. The OPW also said that since September 2023 it had received 71 FOI requests on this subject and suggests that all requests on this subject matter should be refused under section 15(1)(g) of the Act as it is clear that these requests were submitted in a co-ordinated manner.
Section 15(1)(d) of the Act provides for the refusal of a request where the information is already in the public domain and section 15(1)(f) of the Act provides for the refusal of a request where the FOI body intends to publish the record and such publication is intended to be effected not later than 6 weeks after receipt of the request. The OPW said that an independent consultant advised the Section responsible for Castletown House that it should upload documents previously released under FOI so that they would be available to the public. It said that some thousands of pages of documents have already been uploaded and the process is continuing. The OPW stated that these documents contain much of the information sought in the applicant’s current FOI request. I note that the OPW at no stage informed the applicant of its position that certain records sought by him are already in the public domain, nor has it identified in its submissions to this Office any such records or the relevant parts of the applicant’s request to which such records apply. Furthermore, as the OPW has stated that it currently cannot access records that may be relevant to the applicant’s request, it seems to me that the OPW is not in a position to publish records it does not currently have access to nor can readily identify as relevant to the applicant’s request. Having regard to the OPW’s submissions in this case, I am not satisfied that all relevant records are currently in the public domain.
Furthermore, I am not satisfied that the OPW has applied section 29(1)(a) in respect of the actual records sought by the applicant. In its submissions, the OPW stated that since negotiations on access, on purchase of the lands, portions of the lands and/or a new licence for the OPW staff to pass and re pass over the lands will continue between the parties, it is considered that the request should be refused under section 29(1)(a). The OPW has not identified any specific records coming within the scope of the applicant’s request that fall to be refused under section 29(1)(a), nor has it outlined how granting access to any such records would be contrary to the public interest, section 29(1)(b) refers. It seems to me that the OPW has adopted a blanket approach by claiming that section 29(1)(a) of the Act applies to records coming within the scope of the request and did not conduct a record by record examination. It may well be the case that certain records are exempt from release on the basis of the exemption cited. However, I am not satisfied that the OPW has undertaken any substantial consideration of the content of the individual records as required by the FOI Act.
The OPW also referenced section 15(1)(g) in its submissions to this Office as grounds for refusal of the applicant’s request. Section 15(1)(g) of the Act provides for the refusal of a request where the request is considered frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who appear to have made the requests acting in concert. The OPW said that since it was clear that these requests were being submitted in a co-ordinated manner, all requests on this subject should be refused under Section 15(1)(g) of the Act. It did not however, provide any evidence to show that the applicant’s request in this case forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who appear to have made the requests acting in concert.
In summary, the OPW did not engage with the applicant before refusing his request about the administrative burden in processing his wide ranging request, nor did it inform the applicant that certain information that may be relevant to his request is in the public domain or will be published shortly. Furthermore, the OPW has not identified any specific records that may be exempt under section 29(1) of the Act, nor did it inform the applicant of its position that any such records are exempt. Also, the OPW did not inform the applicant that it considers his request should be refused under section 15(1)(g) or provide him with an opportunity to contest its position in this regard. Finally, as outlined above, the OPW originally refused the applicant’s request under section 15(1)(c) of the Act and I have found that it did not comply with provisions of section 15(4) in this case.
In the circumstances, I find that the most appropriate course of action for me to take at this stage is to annul the decision of the OPW to refuse the applicant’s request and to direct it to make a fresh decision on the request. If the applicant is not satisfied with the new decision made by the OPW, the usual rights of review will apply.
If the OPW intends to rely on section 15(1)(c) in making its new decision, it must comply with the requirements of section 15(4) beforehand. While I am making no finding on whether section 15(1)(c) would have applied in this case had I found that the OPW complied with section 15(4), it seems to me that the applicant’s request is, indeed, quite broad. I would encourage the applicant to engage with the OPW with a view to establishing the precise nature of the information he wishes to access, and to take into consideration the OPW’s submissions regarding the timeframe involved and the potential disruption to the work of the relevant section of the OPW.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the OPW’s decision to refuse the applicant’s request under section sections 15(1)(c) of the FOI Act on the ground that it did not comply with the provisions of section 15(4) of the Act. I direct it to process 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.
Richard Crowley, Investigator