Decision
Mr. Y and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-146701-J0F1X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146701-J0F1X9
Published on
Whether the Department 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
30 May 2024
This request has its background in the Thirty-ninth Amendment to the Constitution that was proposed by the Government and was subject of the referendum that took place on 8 March 2024.
In a request dated 18 January 2024, the applicant sought access to the following:
The applicant said that he was only seeking records created, reviewed, or updated within the last two years. The Department contacted the applicant on 24 January 2024 to advise him that the request in its current format was potentially voluminous. It informed him that it had examined the records of one of the individuals at Assistant Secretary level in the Department, and this initial examination had resulted in a voluminous amount of records being located. It said that this was related to participation in an Interdepartmental Group chaired by the Department of Children, Equality, Disability, Integration and Youth, and it informed him that that Department would hold the relevant papers and meeting notifications, etc. if he was seeking those types of records. The Department asked the applicant if, in the circumstances, he would be open to limiting his request to emails directed solely to, or from, an Assistant Secretary in the Department of Justice. The applicant subsequently replied on 1 February 2024. He said that he was happy to exclude records relating to the meeting notifications and papers relating to the Interdepartmental Group that were sent to the named Assistant Secretary, but he did not wish to limit his request to only material directed solely to, or from, an Assistant Secretary in the Department.
On 23 February 2024, the Department informed the applicant that it was necessary to extend the period for consideration of his request by four weeks under section 14 of the Act. It said it would make every effort to respond to his request no later than 25 March 2024. On that same date, the applicant sought a review by this Office of the Department’s decision. I understand that the Department issued its decision on the applicant’s request on 4 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 Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.
This review is concerned solely with whether the Department’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 Department did not specify whether it was relying on section 14(1)(a) or 14(1)(b) of the FOI Act 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) of the 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), the body 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 Department said that the request spanned two areas within the Department: Civil Legislation, and Immigration Service Delivery – Modernisation and Co-ordination Unit. It said that records were stored in electronic format in the Department’s electronic database (eDocs), the email accounts of Assistant Secretaries in the Civil Policy and Legislation area and the Head of Immigration Service Delivery, along with the email accounts of staff in the Civil Policy and Legislation area and staff in the Immigration Service Delivery area.
The Department said that staff within the Civil Legislation area were requested to search their records, and a manual search was carried out on the email account of the Assistant Secretary in this area. It said that a request for searches was issued to nine areas across the Immigration Service Delivery area, comprising of 14 staff. The Department said a manual search was also carried out on the email account of the Head of Immigration Service Delivery.
It said that a large volume of records, consisting of hundreds of emails, most of which had multiple attachments, were contained in a folder titled ‘Referendum’ in a named Assistant Secretary’s email account, and these had to be individually examined in order to determine which records came within the scope of the request. It said that the Principal Officer in this area also conducted searches for any relevant correspondence held. The Department said that the Civil Legislation area’s eDocs files on the Referendums were searched using the keywords from the applicant’s request. It said that as the request related to Family Law and Migration matters, there was only one member of staff who works in that particular area, and therefore they had to process the request with no support team. The Department said that the decision maker for the Civil Legislation area advised that approximately 75% of their workday over a 3-4-week period was needed in order for a decision to be made on each item. The decision maker estimates the entire task took up at least 100 hours including the decision making process and compilation of the schedule.
It said that hundreds of emails also had to be reviewed in the Modernisation and Co-ordination Unit of the Immigration Service Delivery area, and these also had numerous attachments. It said that the records also had to be cross-referenced with the records held by the Civil Legislation Unit to identify duplicates. The Department said that the 14 staff in this Unit spent approximately 7 hours in total carrying out searches for relevant records.
In conclusion, the Department 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 his request. Details of the Department’s submission to this Office were provided to the applicant during the course of this review and he was invited to make submissions on the matter. To date, no submissions have been received.
I note that while the Department extended the time to process the applicant’s request until 25 March 2024, it subsequently issued its original decision on his request on 4 March 2024. In its submissions to this Office, the Department said that it may have been more prudent to advise the applicant that the decision would issue within a week following the original due date rather than applying the time extension. The Department identified 78 records in total as relevant to the request, with each record being made up of email threads and attachments relating to the subject matter of this request, which consisted of legal advice, briefing notes, and papers for the cabinet committee, which came to hundreds of pages in total. I understand that while the Department ultimately refused access to the relevant records under a number of sections of the FOI Act, it still had to locate and process each individual record in order to decide what, if any, exemption of the Act applied.
Having regard to the description provided by the Department of the steps it had to take to ensure that all relevant records had been identified, as well as the number of records that required processing, I am satisfied that it was justified in its decision to extend the time-frame for issuing a decision in this case. Accordingly, I find that the Department’s decision to extend the period for considering the applicant’s request was in accordance with the provisions of section 14(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision, under section 14(1)(a) of the FOI Act, to extend the period for consideration of the applicant’s request.
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