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Whether the Department was justified, under section 10(1)(c) of the FOI Act, in refusing the applicant's request for access to his immigration records due to the fact that the Department had previously supplied the records

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request to the Irish Naturalisation and Immigration Service of the Department on 8 October 2014 for access to records concerning "(i) GNIB (the history of registration with the GNIB (Garda National Immigration Bureau)), (ii) Long Term Residency Section, (iii) Change of Name, Licence, (iv) WCAT (without condition as to endorsement)." On 21 October 2014, the Department stated it had decided to grant all records from the date of the applicant's last FOI request.

The applicant requested an internal review of this decision on 29 October 2014. In particular, the applicant referred to the "Long Term Residency" records which he had been refused. He explained that he had lost documents that he had received from the Department previously, and that he wanted all "Long Term Residency" records relating to him, not just records created since his last FOI request. In its internal review decision of 5 November 2014, the Department upheld its original decision to refuse access to the requested records, under section 10(1)(c) and also referred to section 10(1)(e). The applicant was not satisfied with this and applied to this Office for a review of the Department's decision on 18 November 2014.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office, to the applicant's communications with the Department and this Office, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned with whether or not the Department was justified, under section 10(1)(c) of the FOI Act, in its decision to refuse access to records held by it relating to the applicant.

Analysis and Findings

The Department relied on section 10(1)(c) of the FOI Act to refuse access to the requested records. Section 10(1)(c) provides that a request for a record may be refused if 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 the records concerned as to cause a substantial and unreasonable interference with or disruption of work of the public body concerned.

In its submission to this Office, the Department stated that in its view, section 10(1)(c) applies in this case as the records requested have already been provided to the applicant and to supply a further copy of these records "would mean that the day to day operational function of the Division would be halted for a time frame to enable the reviewer to copy and schedule the records afresh." Section 10(1)(c) does not provide for the refusal of a request on the ground that the records sought have been released previously and is not, on the face of it, an appropriate basis for refusing the applicant's request by reference to the provisions of section 10 of the FOI Act.

In any event, where a public body wishes to refuse a request under section 10(1)(c) it must consider the applicability of section 10(2) before doing so. Section 10(2) provides that a public body shall not refuse a request under section 10(1)(c) unless it has assisted, or offered to assist, the requester concerned in an endeavour so to amend the request so that it no longer falls within the parameters of section 10(1)(c). There is no reference, either in correspondence with the applicant or with this Office, of any attempt made by the Department to assist the applicant to amend the request so that it would no longer fall to be refused under section 10(1)(c).

As section 10(1)(c) is not an appropriate basis for refusing the applicant's request, I consider that the decision of the Department should be annulled and the records sought released.

The Department also made reference to section 10(1)(e), which provides that a request may be refused under section 10(1)(e) if, in the opinion of the head, the request is frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests from the same requester. The head is not required to assist, or to offer to assist, the requester in amending the request so that it no longer falls within the parameters of section 10(1)(e). It is also relevant to note that section 8(4) of the FOI Act, as amended, allows a public body to take into account the motive of a requester when considering if section 10(1)(e) applies.

While section 10(1)(e) appears to be more appropriate in this case than section 10(1)(c), the Department provided no reasoning as to why it considers the applicant's request to be frivolous or vexatious. The applicant stated in his internal review request that he had accidentally lost the records in question, but it does not appear that the Department gave any consideration to this factor. The fact that the records were released previously to the applicant does not in itself amount to a frivolous or vexatious request, or one that forms a pattern of manifestly unreasonable requests, and as such, section 10(1)(e) cannot apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Department's decision to refuse the request on the grounds of section 10(1)(c) and/or section 10(1)(e) and I direct that it release the records sought.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator