Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-145659-R5W6C5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the applicant’s request for all communications that passed between it and RTE in relation to RTE’s participation on a committee of the Department, under section 15(1)(b) of the FOI Act, on the basis that the request did not contain sufficient particulars to enable the records sought to be identified by the taking of reasonable steps
23 May 2024
In a request dated 4 May 2023, the applicant made a request for copies of all communications that passed between the Department and RTE in relation to RTE’s participation on a committee of the Department.
On 10 May 2023, the Department emailed the applicant and asked him to provide further details of the records requested, namely if the request was in relation to a specific committee and if the applicant could provide a timeframe for any records sought. On 11 May 2023, the applicant replied to the Department stating that he assumed that RTE had only one representative on one of the departmental committees. Additionally, the applicant stated that RTE’s head of compliances, in correspondence with the applicant, referred to the relevant committee and informed the applicant that the purpose of the relevant committee was to promote a government on government strategy and referred to Deputy Flanagan’s period as Justice Minister. The applicant stated that he understood that this committee was a major plank in the Minister’s LGBT strategy. The applicant sent further emails to the Department on 25 May 2023 and 28 September 2023, stating that he had not received a response to his previous correspondence or a decision from the Department in relation to his FOI request. In his email of 25 May 2023, the applicant made a number of other comments, which on the face of it seem unrelated to his FOI request.
On 3 January 2024, the applicant emailed the Department again, stating that he was re-sending his reply to the Department’s email of 10 May 2023. On 12 January 2024, the applicant made a request for an internal review of the Department’s deemed refusal. On the same day, the Department informed the applicant that it would be unable to process his request unless further details were provided and asked that the applicant specify what committee the request was in relation to and to set out a timeframe for the records sought. The Department said “if you do not know the name of the specific committee, then the purpose/topic of the committee may suffice in identifying it”. On 12 January 2024, the applicant requested an internal review, saying the Department is fully aware which committee is involved. On 22 January 2024, the Department issued an internal review decision refusing the applicant’s request under section 15(1)(b) of the FOI Act on the basis that his request did not contain sufficient details to enable the records to be identified. On 23 January 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of this review, the Investigating Officer provided the applicant with details of the submissions made by the Department to this Office in support of its decision and invited him to comment. No response has been received to date.
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 submissions made to this Office. 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 refusing the applicant’s request for records of all communications that passed between the Department and RTE in relation to RTE’s participation on a committee of the Department, under section 15(1)(b) of the FOI Act.
Before I consider the Department’s decision to refuse the applicant’s request under section 15(1)(b) of the Act, I wish to note that the Department did not issue a decision when the applicant first made his request. In its internal review decision, the Department informed the applicant “your original request was not processed by the original decision maker as they were not satisfied that you had provided sufficient detail for a search for records to take place”. While I note the Department initially engaged with the applicant in May 2023 about the scope of his request, it did not inform him at that time that it was refusing his request under section 15(1)(b) of the Act or of his rights to appeal its decision. It is simply not acceptable not to process an FOI request without informing the requester about the outcome of his request, even where the Department considers that insufficient details have been provided. As the Department is aware, it is required to issue a decision on a request made under the FOI Act, and where the request is refused to provide reasons for the refusal and include particulars of the rights of review under the Act.
Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. Section 12(1)(b) of the FOI Act is concerned with the processing of FOI requests and is not valid ground of itself for refusing an FOI request. A refusal of a request on the basis that the applicant has not complied with section 12(1)(b) is, essentially, a refusal under section 15(1)(b) of the Act.
Section 15(1)(b) is subject to section 15(4) of the FOI Act. Section 15(4) provides that an FOI body cannot refuse a request under section 15(1)(b) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refuse under section 15(1)(b).
Section 15(4)
In its submissions to this Office, the Department stated that it corresponded with the applicant, on 10 May 2023, asking him for clarification of his request. It stated that, in particular, it sought clarifications on the specific committee the applicant’s request related to, and the provision of a timeframe to limited the scope of the request. It stated that it can be inferred from the applicant’s response that the committee is in relation to LGBTI+ policy, but no timeframe was provided. The Department provided this Office with copies of the correspondence between the applicant and the Department.
In further correspondence with the applicant on 12 January 2024, the Department again asked the applicant to specify what committee his request was in relation to and said that if he did not know the name of the specific committee, then the purpose or topic of the committee may be sufficient to identify the relevant committee. I note that, in response to this correspondence from the Department, the applicant stated that he was entitled to an internal review and that the Department was fully aware of what committee and which members of staff are involved in the committee.
While there is an onus of FOI bodies to assist, or at least offer to assist, requesters (as required under section 15(4), it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward, as requesters may not necessarily be aware of the type, nature and/or location of records held. However, I note that the Department asked the applicant to clarify what committee the applicant sought records in relation to and what timeframe the applicant sought records from. While the applicant may not have been aware of the exact committee, it seems to me that he could have engaged with the Department regarding a specified timeframe or further explanation of the purpose or topic of the relevant committee.
In all of the circumstances of this case, I am satisfied that the Department assisted or offered to assist the applicant to amend his request so that it would no longer fall to be refused under section 15(1)(b). I will now consider whether the Department was justified in refusing the applicant’s request under section 15(1)(b) of the FOI Act.
Section 15(1)(b)
The general thrust of the Department’s submissions was that the applicant’s request was very broad and vague. In its submissions to this Office, it stated that the Department has a large number of committees, fora, and working groups across the broad suite of policy and service delivery areas within its remit. The Department stated that by way of example, it leads in excess of 60 different interdepartmental groups and is a member of approximately 180 such other groups. It stated that as a result, it would need to check with every unit within the Department as to whether RTÉ was on any such group and that further searches for all records would be required, going as a far back as possible relating to these groups. The Department said that it was of the view that the scope of the applicant’s request did not provide sufficient specifics to limit the searches required, when such could have been made easily available. The Department stated that there is no centralised unit which would contain a list of the committees the Department is part of and reiterated that each individual unit would have to be consulted to ascertain what committees the Department was involved in.
The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. I believe this is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps. As such, the question I must consider in this case is whether the request contains sufficient particulars to enable the records sought to be identified by taking reasonable steps.
I have carefully considered Department’s submissions and the applicant’s engagement with the Department on its requests for clarification on the scope of his FOI request. While I accept the applicant attempted to elaborate on his original request and referred to the period when the former Minister of Justice was in Office, he did not address the queries put to him by the Department. In the circumstances, it seems to me that, effectively, the Department is in a position where it does not know which one of the many committees the applicant is referring to and that it would be required to contact each unit of the Department in an effort to ascertain which committee may hold records relating to the applicant’s request before it could begin to process his request. It also seems to me that it was not unreasonable for the Department to request further clarification from the applicant so that it can process his request. In the circumstances, I am satisfied that the Department was justified in refusing the applicant’s request under section 15(1)(b) of the Act, and I find accordingly.
Finally, it is open to the applicant to make a new request to the Department for access to the records he is seeking. In doing so, I suggest he provide any further details he may have about the committee in question or the purpose of the committee and also provide a timeframe for the records he wishes to access. The applicant could also seek further assistance from the Department in identifying the relevant committee and the specific records he is seeking.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant’s request under section 15(1)(b) of the FOI Act.
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