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Case Number: 170075

Whether UCC was justified under sections 31(1)(a), 35(1)(b) and 37(1) of the FOI Act in refusing the applicant's request for records relating to costs incurred by UCC in respect of legal claims

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 11 November 2016 the applicant made a request to UCC for:

• A breakdown of all costs incurred by UCC in defending or settling legal claims, including costs awarded against UCC, from 2010 to the date of the request
• Details of all reports to the President or Board of Governors of UCC prepared in order to authorise/approve settlements in actions threatened or issued against UCC, for the same period

As UCC failed to issue a decision within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request on 15 December 2016. UCC issued a decision on 17 January 2017. In that decision, the decision maker stated that he did not propose to release any record and instead provided some general information on costs. He also cited sections 31(1)(a), 35(1)(b) and 37(1) of the FOI Act as a basis for refusing access to any records. On 13 February 2017 the applicant sought a review by this Office of UCC's decision.

In conducting this review I have had regard to communications between the applicant and UCC as outlined above and to the correspondence between this Office and both the applicant and UCC in relation to this review.

Scope of Review

This review is concerned solely with the question of whether UCC was justified in its decision to refuse the applicant's request for information relating to legal costs under sections 31(1)(a), 35(1)(b) and 37(1) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of more general points. Firstly, it is important to note at the outset that the FOI Act confers a general right of access to records held by FOI bodies, rather than a general right of access to information. The applicant stipulated in his request that the information sought relating to costs incurred should include cost code, relevant department, supplier/legal firm, description, and date, or alternatively, all fields captured in any relevant electronic system, excluding personal information. There is no general obligation on an FOI body to provide a particular form of record in response to an FOI request, where such a record did not exist on the date of the request.

However, it is worth noting that under section 17(4) of the FOI Act, where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

Secondly, I would like to draw the attention of UCC to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant a request under section 12 of the FOI Act shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. Therefore, the onus is on UCC to satisfy this Office that its decision to refuse the applicant's request was justified.

Analysis and Findings

UCC's decision of 17 January 2017 fell well short of the requirements of the FOI Act. It did not identify any relevant records as coming within the scope of the applicant's request. Rather, it provided an overview of the general application of the sections of the Act relied upon in refusing access. It did not explain how the exemptions claimed applied to relevant records, nor did it demonstrate any meaningful consideration of the public interest in favour of release of relevant records with regard to the exemptions cited.

In correspondence with this Office concerning relevant records, UCC stated that no relevant records had been searched for, retrieved or collated, nor had the particular information sought been extracted from records. It stated that the decision maker knew that UCC held relevant information and, knowing the types of record, legal arrangements and circumstances pertaining to and conditioning same, he considered himself to be in a position to issue a decision as a matter of principle on the basis of his knowledge of the matter.

I consider UCC's approach to decision-making in this case to be particularly unsatisfactory. It appears that the decision maker sought to apply a blanket approach to the request by claiming that the exemptions cited would apply to any records that might fall within the scope, without having given any consideration to the nature of any actual records held. It is very difficult to see how a decision could be made to refuse access to all records coming within the scope of the request without first having identified precisely what records might exist.

In its correspondence with this Office, UCC also argued that the information sought would be contained in a large array of records and is not readily available within any record(s). It claimed that the work involved in responding to the applicant's request would be very burdensome. However, at no stage did UCC seek to rely on section 15(1)(c) of the FOI Act, which provides for the refusal of a voluminous request by an FOI body. In any case, UCC could not rely on section 15(1)(c) in refusing access without having first assisted, or offered to assist, the applicant in an endeavour to amend the request so that it would no longer fall to be refused under that section, as required under section 15(4) of the Act.

In the circumstances, I find that UCC was not justified in refusing the request. However, I do not consider it appropriate to direct UCC to grant the request in the absence of more detailed knowledge of the nature and number of records at issue. I am also cognisant of the fact that the nature of the request is such that a decision to release all relevant records is likely to affect the interests of third parties. Instead, I consider that the appropriate course of action in this case is to annul UCC's decision and direct it to undertake a fresh decision-making process in respect of the applicant's request. The effect of such a finding is that UCC must consider the request afresh and make a new, first instance, decision. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with UCC's new decision. In making that decision, UCC must comply with the statutory requirements of the FOI Act and have full regard to the scope of the request as defined by the applicant in his email of 11 November 2016.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of UCC. I direct UCC to conduct a new decision-making process on the applicant's FOI 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