Mr X and Department of Children, Equality, Disability, Integration and Youth [2024] IEIC 149498 (12 September 2024)

Background
Scope of Review
Preliminary Matter
Analysis and Findings
Decision
Right of Appeal

Whether the Department was justified in refusing access, under section 15(1)(c) of the Act, to a range of records concerning the Interdepartmental Group on the Family and Care referendums

12 September 2024

Background

On 3 March 2024 the applicant submitted a 12-part request to the Department of Children, Equality, Disability, Integration, and Youth (the Department) for a wide range of records concerning the Interdepartmental Group on the Family and Care referendums. As the Department failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request on 3 April 2024. On the same date, the Department apologised to the applicant for its failure to acknowledge or issue a decision on the request. It said the request had been assigned to the relevant section for a response. As the Department again failed to issue a decision within the statutory timeframe, the applicant applied to this Office for a review of the Department's deemed refusal of his request on 29 April 2024.

Upon receipt of the application, this Office instructed the Department to issue its effective position on the request to the applicant. Yet again, the Department failed to issue a timely response, so a formal notification was sent to the Secretary General pursuant to section 45 of the Act, directing the Department to issue its effective position within 7 days. On 31 May 2024, the Department issued its effective position on the request, wherein it said it determined the request to be voluminous and would be refused under section 15(1)(c). It suggested that the request should be refined and indicated that certain parts of the records sought would be refused on various grounds. 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.

Scope of Review

The effect of the Department's position is that the applicant's request for certain records concerning the Interdepartmental Group on the Family and Care referendums was refused under section 15(1)(c) of the FOI Act. Accordingly, this review is concerned solely with whether the Department was justified in its decision to refuse the request under section 15(1)(c).

Preliminary Matter

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 made arrangements to follow up on these issues with the Department's Secretary General.

Analysis and Findings

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.

In its submissions to this Office, the Department said it offered to assist the applicant should he wish to refine his request in the effective position decision dated 29 May 2024. It said it regretted that this offer was not made in the usual timeframe which it said was due to an administrative error on its part in the handling of the request.

I acknowledge that in its effective position, the Department provided some guidance on which elements of the request would require refinement and also said that it would be willing to release records that were previously released on foot of previous FOI requests made on similar topics. 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 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 he 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 certain records are exempt 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. Indeed, on its face, the request does appear to be quite broad and potentially capturing a substantial number of records.

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. If the applicant finds it necessary to once again apply to this Office for a review of the Department's decision on the request, we will endeavour to process the review as quickly as possible.

Decision

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.

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

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and Department of Children, Equality, Disability, Integration and Youth [2024] IEIC 149498 (12 September 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/149498.html Cite as: [2024] IEIC 149498

Irish Information Commissioner's Decisions