Decision
Mr Q and Donegal County Council ("the Council")
From Office of the Information Commissioner (OIC)
Case number: 140137
Published on
From Office of the Information Commissioner (OIC)
Case number: 140137
Published on
Whether the Council was justified, under section 10(1)(c) of the FOI Act, in refusing the applicant's request for access to records due to the volume and nature of the records coming within the scope of his request
31 July 2014
On 6 March 2014, the applicant submitted an FOI request to the Council for (i) full statements regarding the payment by Donegal County Council for legal services for the period 2009 to present to include details of all invoices from the relevant law agent(s) and all account statements; (ii) details, if any, including dates, methods, notices etc of the procurement procedure(s) for such services by Donegal County Council; and (iii) details of all successful applicants for the provision of such services, if any; [and] details of who provides legal services to Donegal County Council.
In its decision dated 31 March 2014, the Council refused Part (i) of the request under sections 22(1)(a) and 10(1)(c) and Part (ii) under sections 27(1)(b) and (c) 10(1)(c) of the FOI Act. The Council stated that the information requested contained information that would be exempt from release on the grounds of professional legal privilege (Part (i)) and commercial sensitivity (Part (ii)). The Council also considered Parts (i) and (ii) of the request to be voluminous in nature and contended that the retrieval or examination of the number of records concerned would cause an unreasonable interference with or disruption of work of the Council. The Council did however, provide general information to the applicant in response to his request relating to the provision of legal services to the Council. This included the total fees paid 2009-2014, a statement relating to who currently provides legal services to the Council and details of projects/works where legal services had been procured for the Council during 2009-2013.
On 6 May 2014, the applicant made an application for an internal review of the Council's decision. On 26 May 2014 the internal reviewer upheld the Council's original decision. On 3 June 2014, the applicant sought a review by this Office of the Council's decision on his request.
In conducting this review I have had regard to the Council's decisions on the matter and its communications with this Office; the applicant's communications with the Council and this Office, including the telephone call to the applicant from Ms Sandra Murdiff, Investigating Officer, on 16 July 2014; and the provisions of the FOI Act.
I have decided to conclude this review by way of a formal binding decision.
This review is concerned with whether or not the Council was justified, under section 10(1)(c) of the FOI Act, in its decision to refuse release of the records requested in relation to legal services provided to the Council.
Sections 10(1)(c) and 10(2)
The Council's decision was that the request, in part, comprises information that would be exempt from release on the grounds of professional legal privilege (Part (i)) and commercial sensitivity (Part (ii)) which are protected under section 22(1)(a) and 27(1)(b) of the FOI Act respectively.
However, the Council also relied on section 10(1)(c) of the FOI Act to refuse access to the requested records, which provides that a request for a record may be refused if, "...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 of the public body concerned"
The Council contends that it would cause a substantial and unreasonable interference with or disruption of its work to locate and release the records in relation to the applicant's request.
Section 10(1)(c) provides that a request for a record may be refused if granting the request would cause substantial and unreasonable interference with or disruption of the work of the public body as described above. However, section 10(2) requires that a request shall not be refused under section 10(1)(c) unless the body has "assisted, or offered to assist, the requester concerned in an endeavour so to amend the request so that it no longer falls within" the parameters of section 10(1)(c).
I note that there is no reference, either in correspondence with the applicant or this Office, of any attempt made by the Council to engage with the applicant to narrow the scope of the request so that it would no longer fall to be refused under section 10(1)(c). The applicant and the Council's FOI Liaison Officer have both confirmed to this Office that no such attempt was made.
As stated above, the FOI Act provides that a public body cannot rely on section 10(1)(c) where it has not complied with the requirements of section 10(2) of the FOI Act. As both the applicant and the Council have in this case confirmed that section 10(2) has not been complied with, it is my view that the decision of the Council should be annulled and I find accordingly. The effect of this is that the Council is required to make a new, first instance decision in respect of the applicant's original request.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Council's decision to refuse the request on the grounds of section 10(1)(c). I direct that it undertake a fresh decision making process and inform the applicant of the outcome in accordance with the requirements of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator