Whether the Council was justified in refusing access to certain information relating to derelict sites under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work

17 September 2020

Background

In an email request dated 24 April 2020, the applicant sought access to all available details regarding the enforcement and implementation of the Derelict Sites Act in the Council’s jurisdiction since 1990. In a subsequent email dated 18 June 2020, he reported that he had not received a reply to his earlier email and he asked the Council to provide four specific pieces of information relating to derelict sites, along with its current register of derelict sites.

In a decision dated 25 June 2020, the Council refused access to the records and information sought in the applicant’s email of 18 June 2020 under section 15(1)(c) of the FOI Act which provides for the refusal of a request if granting the request would cause a substantial and unreasonable interference with, or disruption of, the work of the FOI body. 

On 20 July 2020, the applicant sought an internal review of the Council’s refusal of his request. He did not take issue with the Council’s treatment of his email of 18 June 2020 as his request. On 20 August 2020, the Council affirmed its original decision to refuse the request under section 15(1)(c). It said the request covers a period of 22 years and that its Planning Department holds a significant number of records covering that period but that they are not held electronically.  On 2 September 2020, the applicant sought a review by this Office of the Council’s decision.

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 Council and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant’s request for certain information relating to derelict sites under section 15(1)(c) of the FOI Act.

Analysis and Findings

Section 15(1)(c) provides that an FOI body may refuse to grant a request if it 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, wok (including disruption of work in a particular functional area) of the body.

However, section 15(4) of the Act provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.

During the course of the review, the Investigating Officer asked the Council to clarify whether it had complied with the requirement under section 15(4) to assist, or offer to assist, the applicant in amending his request.

In response, the Council said that the request was received at the height of the Covid-19 crisis and at a time when reduced staff numbers were attending its Offices. It said that the Planning Department is responsible for the operation of the Derelict Sites Act. It said it received an increase in planning applications during this period. Senior members of staff in the Planning Department advised they were unable to re-direct limited resources to address the request. The Council noted that the applicant was advised by other local authorities that his request was voluminous and in an email dated 18 June 2020 he reduced his request to five categories.

While I can fully understand the difficulties FOI bodies have faced in recent months in delivering services, including FOI services, arising from the COVID-19 crisis, the act remains in force and FOI bodies cannot simply ignore its provisions.

I note that the Department of Public Expenditure and Reform has issued guidance for FOI bodies for dealing with requests during the crisis. The guidance, entitled “Continuity of FOI Services”, explains that the FOI Act remains in force and arrangements must be put in place to ensure that requests continue to be processed to the greatest extent possible. It encourages FOI bodies to proactively engage with requesters. Indeed, while the guidance suggests that section 15(1)(c) may be relevant where either a particular unit has been significantly impacted, or where processing the request would impose an unreasonable workload on the organisation or a particular business unit having regard to current resourcing and working arrangements, it specifically notes that section 15(4) requires that the body must first “assist or offer to assist” the requester in making a more focused request.

It is clear that the Council did not assist or offer to assist the applicant as required under section 15(4) of the Act in this case. While I acknowledge the unprecedented circumstances outlined by the Council, the provisions of the FOI Act are clear. An FOI body cannot refuse a request under section 15(1)(c) unless it has complied with the requirements of section 15(4) beforehand.

In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of the Council and to direct it to undertake a fresh consideration of the request. If the Council intends to rely on section 15(1)(c) in making its decision, it must comply with the requirements of section 15(4) beforehand.

For the benefit of the applicant, I should explain that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter. In the circumstances, the applicant may wish to engage with the Council in the first instance to get a better understanding of the type and nature of records held.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse the applicant’s request under section 15(1)(c) and I direct it to consider the request afresh.

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