From Office of the Information Commissioner (OIC)
Case number: OIC-150161-S7G2R5
Published on
Whether the Department was justified in refusing access, under section 15(1)(c) of the FOI Act, to records relating to applicants for international protection on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of the work of the Department
9 October 2024
In a request dated 22 February 2024, the applicant sought access to five categories of records relating to applicants for international protection who have no fixed address and/or who are homeless. The applicant’s request in this case follows on from a previous similar request she made to the Department, which it deemed to be voluminous. In her application to this Office, the applicant outlined the history of her dealings and frustration with the Department in regard to its processing of both the request in this case and in relation to her previous request. The applicant said that in order to progress matters, she submitted a new and refined FOI request to the Department on 22 February 2024, that is the subject of this review.
In a letter to the applicant dated 5 March 2024, the Department outlined its efforts to secure accommodation to those who arrive in Ireland seeking international protection. It said that the applicant’s FOI request “returned over 600 pages and due to the ongoing pressure on the International Protection Procurement Service (IPPS) in this Department, it is currently not possible to fulfil your request”. The Department’s decision made no reference to any provision in the FOI Act for refusing the request.
On 15 March 2024, the applicant sought an internal review of the Department’s decision. Having received no response to her request for an internal review within the statutory timeframe, on 22 April 2024 the applicant applied to this Office for a review of the Department’s deemed refusal. Upon receipt of the application, this Office instructed the Department to issue its effective position on the request to the applicant. On 24 May 2024, the Department issued its effective position on the request, wherein it refused the request under section 15(1)(c) of the FOI Act. It said that if the applicant wished to submit a new request with a reduced scope, it would endeavour to provide any assistance necessary to refine the request. It noted that one category of the records sought, concerning payments made to International Protection applicants, is a policy matter for the Department of Social Protection and suggested that the applicant may wish to submit a request to that Department regarding that matter. The applicant subsequently asked this Office to proceed with our review of the Department’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 provided by the applicant and the Department during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified, under section 15(1)(c) of the Act, in refusing the applicant’s request dated 22 February 2024.
The Department’s processing of the applicant’s request in this case, and indeed in other recent cases before this Office, falls well short of the requirements of the Act. This Office recently highlighted our concerns with senior management of the Department about its handling of FOI requests. As noted below, the Department has acknowledged its shortcomings in its management of FOI requests and said it is putting in place measures to ensure that it is compliant with its obligations under the FOI Act.
Section 15(1)(c) provides for the refusal of a request where the FOI body 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 of the body (including disruption of work in a particular functional area).
However, section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. Accordingly, before I 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.
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 willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
When requesting submissions from the Department in this case, the Investigating Officer drew the Department’s attention to section 15(4) and queried whether it had assisted or offered to assist the applicant in amending the request so that it no longer fell to be refused under section 15(1)(c). In its submissions, the Department stated that, on review, it accepted that the correct procedures were not followed in this case as the applicant was not offered the opportunity to revise the request so that it was possible for the Department to carry out an effective search. It said that in applying section 15(1)(c), it accepted that it should have first satisfied the conditions of 15(4) in assisting the applicant to narrow the scope of the request.
The Department said by way of background it has experienced significant year on year increases in the overall number of FOI requests it receives. It said that in addition to the increased volumes, many of the FOI requesters have sought voluminous and diverse records dispersed across different Business Units and stored under different arrangements. The Department said that the area of greatest interest to requesters has been its International Protection Division whose staff have been under particularly acute pressure in responding to their front-line operational responsibilities.
The Department said that, despite the above, it understands that it must take steps to address the shortcomings in its management of FOI requests and it is putting in place measures to ensure that it is compliant with its obligations under the FOI Act. It said that it anticipates that it will likely have to conduct this request afresh and said it awaited this Office’s decision in this regard.
I note that the Department has outlined its position that the applicant’s request could disrupt the Department’s work, in particular the International Protection Division of the Department. However, the fact remains that no offer of assistance was made in this case before the request was refused under section 15(1)(c). The terms of section 15(4) are clear. The FOI body must assist, or offer to assist, the requester in amending the request before it can be refused under section 15(1)(c). I find, therefore, that the Department did not comply with the provisions of section 15(4) in this case. My finding that the Department did not comply with the provisions of section 15(4) is, of itself, sufficient for me to find that it was not justified in refusing the applicant’s request under section 15(1)(c) of the FOI Act, and I find accordingly. In the circumstances, I am satisfied that the most appropriate course of action is to annul the decision of the Department and to direct it to undertake a fresh consideration of the request.
I understand that this will be frustrating for the applicant, as she has already had to endure a lengthy wait in order to receive a decision from the Department. However, I do not consider it appropriate to simply direct the release of the records in circumstances where the Department has indicated that it considers that processing the request, as it is currently worded, would cause a substantial and unreasonable interference with, or disruption of, its work.
In light of the lengthy delays that have already occurred in this case, I would strongly urge the Department to process the applicant’s remitted request in line with the statutory timeframes set out in the FOI Act. I would add that if the Department remains of the view that the request is voluminous, it must first comply with section 15(4) if it is minded to once again consider refusal of the request under section 15(1)(c). If the applicant is not satisfied with the new decision made by the Department, the usual rights of review will apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant’s request under section 15(1)(c) of the FOI Act on the basis that it did not first comply with the provisions of section 15(4) of the Act. I direct the Department to conduct a fresh decision-making process on 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