Mr Ken Foxe, Right to Know CLG and Investment and Development Agency (IDA Ireland) (IDA Ireland) [2020] IEIC 58374 (27 January 2020)

Whether the IDA was justified in its decision to extend the period for consideration of the applicant-䏭 FOI request under section 14 of the Act

27 January 2020

Background

In a request dated 1 October 2019, the applicant sought access to all records referring or relating to the management/handling of a previous FOI request (IDA reference 0368) made by him, excluding records already released to him during the FOI process. On 25 October 2019, the IDA-䏭 FOI Unit informed the applicant that it was necessary to extend the period for consideration of his request by two weeks and that the reasons for the extension included the high level of workload in the section and in the sections with access to the relevant records. On 30 October 2019, the applicant sought a review by this Office of the decision to extend the time for considering his request. On 13 November 2019, the IDA issued its substantive decision on the request.

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 IDA and the applicant as outlined above and to correspondence between this Office and both the IDA and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the IDA-䏭 decision to extend the deadline for considering the applicant-䏭 request was in accordance with the provisions of section 14 of the Act.

Analysis and Findings

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), it may extend that four week period by up to four further weeks where it considers that

the request relates to such number of records,
or the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such,

that compliance with section 13(1) within the four weeks specified is not reasonably possible.

In its submission to this Office, the IDA said the records sought were those which referred to request 0368 which, in turn, related to records concerning a Revenue scheme known as Special Assignee Relief Programme (SARP). It argued that section 14(1)(b) applies in this case, in that there were a number of other FOI requests relating either to the records to which the applicant-䏭 current request related or to information corresponding to that which the request related, such that compliance was not reasonably possible within the period specified.

The IDA said the records subject to the applicant-䏭 current request constitute documents relating to the management and handling of request 0368 and consist mainly of internal IDA emails, associated documents, and correspondence with the IDA-䏭 external legal advisors. It said in order to locate and determine those records which were within scope a much larger number of documents had to be searched. It said this was partially due to the fact that the applicant had a number of FOI requests with it which were active during the time frame in question. It said while it is its policy to allocate reference numbers to FOI requests it receives, not all correspondence generated may have used the appropriate reference number in the subject line. It said the reference number is generally not used in internal emails. It said all correspondence to and from the applicant as well as any records referring to him or any of his previous FOI requests had, therefore, to be reviewed to determine whether they came within the scope of the current request. The schedule of records attached to the decision which the IDA subsequently issued to the applicant consists of 16 records, totalling 81 pages.

The IDA said the records at issue are stored in electronic format and were mainly held by personnel in the FOI Unit and Legal Unit. It said soft copy records in those units were reviewed and a search of relevant MS Outlook folders was undertaken. It said certain records were only available in the email account of the former FOI officer who had left the IDA at the time of the request. It said the process of retrieving these records took some time and required the approval of the Data Protection Officer, the Head of HR and the IT Manager. It said if the decision had been issued within the original four week deadline, no records sent or received by the former FOI officer would have been included in the records released to the applicant, as the approval to access the former FOI officer-䏭 email account had not been granted by that date. It said consideration of the records could not commence until these records had been retrieved. It also said legal advice was sought to determine whether the correspondence generated in obtaining the legal advice in relation to request 0368 attracted legal professional privilege.

The IDA added that on 30 September 2019, the applicant submitted a separate FOI request (reference 0390) seeking further records concerning the same subject as case 0368. It said processing of 0390 was prioritised and a decision and associated records were released to the applicant on 25 October 2019. In addition, it said that since January 2019, the applicant has made eight FOI requests and two Access to Information on the Environment requests which have resulted in the generation of a substantial amount of correspondence, both to and from him, internal emails referencing his requests and also other associated documents. While it said it takes no issue with the applicant making such requests, it said this resulted in a large number of documents which had to be reviewed to determine if they fell within the scope of his request in this case. While noting that the Act provides for a maximum extension of four weeks, the IDA said it extended the time period only by two weeks, which was the period it considered necessary in the circumstances.

In essence, the IDA has advanced two substantive arguments in support of its decision to extend the period for processing the request, namely;

Due to the large number of records that had to be examined as a result of the number of active requests it had on hand involving the applicant, and
Due to the manner in which certain records were held and the actions required to access the records.

It is worth repeating that the circumstances in which an FOI body may extend the four week period for processing a request are quite narrow and specific. As such, the IDA-䏭 arguments concerning the difficulties arising in accessing certain records for examination arising from the manner in which they were held is of no relevance to section 14.

As I have outlined above, the IDA based its decision to extend the period on the provisions of section 14(1)(b) on the ground that that there were a number of other FOI requests relating either to the records to which the applicant-䏭 current request related or to information corresponding to that which the request related, such that compliance was not reasonably possible within the period specified.

In my view, the IDA has not provided sufficient evidence to support its claim that section 14(1)(b) applied. It seems to me that for the section to apply, the IDA would have had to identify other specific FOI requests that were on hand at the time on which a decision had not issued and that related to the records or information to which the current request related. The IDA simply did not do so. The fact that the applicant made eight FOI requests since January 2019, of itself, is of no relevance if the requests did not relate to the records or information at issue in the current case.

However, it seems to me that the IDA-䏭 arguments are of more relevance to section 14(1)(a). As I have explained, that section applies where the request relates to such number of records that compliance with the four week time frame if not reasonably possible. Accordingly, the only remaining argument I must consider is whether the IDA was justified in extending the time period for processing the request in light of the large number of records it had to examine to identify relevant records. In my view, it was not.

Section 14(1)(a) is essentially concerned with requests that involve large numbers of relevant records. While I accept that the IDA may well hold a large volume of records concerning the applicant-䏭 engagements with it on his various requests, I find it difficult to accept that it can reasonably argue that all such records had to be examined. The request was specific and concerned a discrete period of time, namely the time within which request 0368 was processed. I do not accept that any and all records concerning the applicant can reasonably described as relating to the current request.

I should add that it cannot be the case that a body can extend the period for processing a request under section 14 due to poor record management practices. It seems to me that any records held by the IDA relating to the management/handling of a previous FOI request should properly be retained on the relevant FOI file. I accept that it might also be appropriate to ask relevant staff who were involved in processing that request to undertake searches of their records. However this, of itself, does not mean that the body can argue that the request relates to such number of records that compliance with the four week processing time is not reasonably possible.

In conclusion, therefore, while my findings in this case can have no tangible benefit for the applicant given that the IDA has already issued its decision on his request, I find that the IDA was not justified in extending the period for consideration of the request under section 14 of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the IDA-䏭 decision to extend the period for consideration of the applicant-䏭 request under section 14 of the Act in this case.

Right of Appeal

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.

Stephen Rafferty

Senior Investigator