From Office of the Information Commissioner (OIC)
Case number: OIC-150581-P0Y4H5
Published on
Whether the Department was justified in refusing access, under section 15(1)(c) of the FOI Act, to records concerning measures being taken to provide supports and accommodation to applicants for international protection, in particular those who have no fixed address and/or are homeless, on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of the work of the Department
10 October 2024
On 12 January 2024, the applicant submitted an eight-part request to the Department for access to a range of records for the period 9 January 2023 to the date of the request concerning measures being taken to provide supports and accommodation to applicants for international protection, in particular those who have no fixed address and/or are homeless.
On 31 January 2024, the Department contacted the applicant to notify her that it considered her request to be voluminous and that it intended to refuse the request on that basis. It asked the applicant to narrow the scope of the request, and to identify more specifically what information was sought. The applicant in her reply asked if the Department could assist her, for example by indicating if any specific parts of the request are particularly voluminous, and/or if the time period set out in the request was a factor. The Department and applicant subsequently exchanged a number of emails discussing a refinement. The Department indicated that if the timeframe for each point was reduced to the period September 2023 to the date of the request and the copies of correspondence sought was kept to Principal Officer and above the request would no longer be voluminous and would be manageable. On 12 February 2024, the applicant submitted a refined request amending the scope of correspondence sought and the time period covering the request. On 13 February 2024, the Department confirmed that it would proceed with the refined request. On 4 March 2024, the applicant contacted the Department to seek confirmation on when a decision was due to issue. Further emails were sent to the Department on 6 and 15 March 2024. As no response was received and the Department failed to issue a decision on the refined request within the statutory timeframe, the applicant sought an internal review of the deemed refusal of her request on 20 March 2024. As the Department failed to issue a decision within the statutory timeframe, the applicant applied to this Office for a review of the deemed refusal of her request on 18 April 2024.
Upon receipt of the application, this Office instructed the Department to issue its effective position on the request to the applicant. The Department again failed to issue a timely response, so a formal notification was sent to the Secretary General pursuant to section 45 of the FOI Act, which directed the Department to issue its effective position within seven days. On 4 June 2024, the Department issued its effective position on the request, wherein it said it had determined the request to be voluminous, as despite the narrowed scope of the request, the search had returned a significant number of documents across the eight parts of the request, many of which it said contained personal data. The Department said that significant time would be needed to process the FOI request, including more than 30 hours for the redaction of personal information from the records, particularly records relevant to part 6 of the applicant’s request. The Department said that the International Protection Accommodation Services have been under considerable pressure in recent months with a 75% increase in arriving international protection applicants, and it was refusing 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, and identified part 6 and part 8 of the request as particularly broad in nature. The applicant asked this Office to proceed with its review.
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 in its decision to refuse the applicant’s request under section 15(1)(c) of the Act.
As is apparent from the Background section above, the Department’s processing of the applicant’s request in this case fell well short of the requirements of the Act. This Office is aware of a number of similar recent situations involving the Department and has followed up on these issues with senior management in the Department. 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 FOI 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 FOI 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 an FOI body can refuse a request under section 15(1)(c), the FOI 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.
Applicant’s submissions
In summary, the applicant stated in her submissions that the Department had failed to provide sufficient assistance to amend the request so that it no longer falls to be refused under section 15(1)(c) of the FOI Act. The applicant said that the scope of the request was refined through positive engagement between the Department and her in response to suggestions and proposals from the Department. She said that the Department raised no further issues with her following the agreement of the refined request on 13 February 2024. She said that the Department appeared satisfied with the refinement as proposed, and therefore further assistance should have been offered if it considered that the refined request was voluminous. She said such assistance was not offered, and since no initial decision issued, she did not receive any indication of the volume of records identified. The applicant said that in her view the Department had not fulfilled the requirements of section 15(4) of the FOI Act.
The applicant said that, notwithstanding the above, she is in a position to limit the scope of the FOI request to parts 4, 6 and 8 as described and set out in the effective position letter from the Department dated 4 June 2024.
Department’s submissions
In its submissions to this Office, the Department said that, following receipt of the initial FOI request, the relevant unit assisted the applicant in refining the request, and these changes were agreed on 13 February 2024. It said that, however, further searches later revealed that the scope of the request was still overly broad. The Department said that, unfortunately, this was not communicated to the applicant. It said that the applicant did seek an update from the relevant unit prior to contacting this Office, and regrettably a response did not issue from the Department at that time.
The Department said that, on review, it accepts 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 accepts that it should have first satisfied the conditions of section 15(4) in assisting the applicant to narrow the scope of her request.
In its submissions, the Department said that it wished to add some context to explain the decision-making in this, and other cases. The Department said 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, nevertheless, 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.
The question I must consider is whether the Department complied with the provisions of section 15(4) before refusing the applicant’s request under section 15(1)(c) of the FOI Act. It is evident from the correspondence between the Department and the applicant that the Department made an offer to the applicant to amend the scope of her request so that it no longer fell to be refused, and provided some assistance in refining the request, and the applicant was willing to refine the request so that it no longer fell to be refused under section 15(1)(c) of the FOI Act.
In my view, providing reasonable assistance to the applicant in this case would include informing the applicant that the refined request remains voluminous, and giving her details of the most voluminous parts of her request. This may have facilitated a meaningful discussion between the parties as to how the scope of the request could be further reduced. However, the Department did not identify that it considers parts 6 and 8 of the applicant’s request to be particularly broad until it issued its effective position letter.
I acknowledge that the Department did initially assist the applicant in amending her request so that it no longer fell to be refused, and provided some guidance on which elements of the request would require refinement. However, having regard to the correspondence outlined above, including the applicant’s indication of her willingness to refine the request further, I am not satisfied that the Department has complied with the provisions of section 15(4) of the FOI Act before refusing the applicant’s request under section 15(1)(c). As noted above, the fact remains that the applicant was led to believe her refinements were sufficient and she was not notified that her request remained voluminous, and no further offer of assistance was made in this case before the request was refused under section 15(1)(c). Indeed, I note the Department accepts the requirements of section 15(4) were not met in this instance.
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 many records contain exempt information, and where 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.
Finally, as noted above, the applicant indicated in her submissions to this Office that she is willing to reduce the scope of her request further. In the circumstances, I suggest that the Department contact the applicant before considering her request again in order to clarify the precise scope of her request at this time.
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) on the basis that it did not first comply with the provisions of section 15(4) of the FOI 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