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Cases Number: 170231, 170232

Whether the IGB was justified in refusing access to additional records under section 15(1)(a) of the FOI Act

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

The applicant made two separate requests to the IGB on 18 May 2016. The first request was for a wide range of records relating to the IGB's Employee Benefits Plan from 1997 to date, while the second was for all deeds and subsequent amendments in relation to the defined benefit pension schemes in place and copies of actuarial funding valuation reports from 1997 to date.

On 31 May 2016, the IGB released a number of records falling within the scope of the first request. It also referred to an apparent agreement with the applicant that it would provide a decision on two further aspects by 27 June 2016 and the remainder by 20 July 2016. It also stated that it would provide a decision on the second request by 15 June 2016.

As the IGB failed to respond within the agreed time-frames, the applicant sought an internal review of the deemed refusal of the relevant parts of her requests on 7 November 2016. In its response of 25 November 2016, the IGB referred to the extensive time-frame of the request and stated that it might take some considerable time to produce the information sought. It provided a suggested schedule of dates by which it proposed to address the various parts of the applicant's request, from 22 December 2016 to 24 March 2017. It subsequently provided the applicant with additional records on 21 December 2016, 24 February 2017 and 23 March 2017.

On 7 May 2017, the applicant applied to this Office for a review of the IGB's decision in respect of both requests on the ground that she had not received all relevant records.

As the parties to each review are identical, I have decided to consider both applications together. In conducting the review, I have had regard to correspondence between the applicant and the IGB in relation to the request, and to communications between this Office and both the applicant and the IGB on the matter.

Scope of Review

This review is concerned solely with whether the IGB was justified in refusing access to additional records relating to the IGB's Employee Benefits Plan from 1997 to the date, all deeds and subsequent amendments in relation to the defined benefit pension schemes in place and copies of actuarial funding valuation reports from 1997 to date, on the ground that no further records exist or can be be found.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or

cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

It is clear to me in this case that the IGB's searches fell well short of the requirements of section 15(1)(a). During the course of the review, the IGB provided this Office with details of the searches conducted in response to the request. I do not propose to repeat those details in full as they have been provided to the applicant already. The IGB has informed this Office that it did not consult all relevant persons and that it believes a significant number of additional relevant records exist that were not considered for release. Therefore, I find that the IGB's decision was not justified under section 15(1)(a).

I note however, IGB's concern that the records sought cover quite a long period of time and that it would be quite an onerous task that would take up an inordinate amount of time and resources. It is clear to me that the potentially significant volume of records coming within the scope of the applicant's requests influenced the manner in which IGB processed the requests. Where large volumes of records are involved, it is open to a body to consider whether an administrative refusal under section 15(1)(c) might be appropriate. That section allows a body to refuse a request where it considers that granting the request would, by reason of the number or nature of the records concerned, require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the body. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c).

As the IGB did not rely upon section 15(1)(c) in this case, I make no finding in whether or not it would have been justified in doing so. Nevertheless, I consider that it is not appropriate to direct the release of records that have not first been considered by IGB for release or in the absence of any reasonable estimate of the volume of records involved. Therefore, following careful consideration, it is my view that the decision of the IGB should be annulled. The effect of my finding is that the IGB must consider the request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. I would again draw the IGB's attention to the provisions of section 15(4) in the event that it remains of the view that processing the request would take up an inordinate amount of time and resources. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the IGB's new decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IGB to refuse access to further relevant records as I find that it has not conducted all reasonable searches in an effort to identify all records relevant to the applicant's requests. I direct the IGB to conduct a fresh decision-making process in respect of the requests.

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