Whether the Department was justified in its decision to extend the period for consideration of the applicant-�s FOI request under section 14 of the Act

12 May 2021

Background

In a request dated 26 March 2021, the applicant submitted a very broad request to the Department for all records since 20 September 2020 referencing her son-�s name, her name or the name of any of her family members. She identified a wide category of records and record formats. The request also indicated that all records were sought relating to the applicant, her son, and her daughter whenever created. It also suggested a wide range of searches that should be undertaken. It further sought access to all records that reference the applicant-�s name or any members of her family in relation to a GSOC FOI release and schedules of documents, from January 2018 onwards.

On 8 April 2021, the Department informed the applicant that it was necessary to extend the period for consideration of her request by 4 weeks under section 14 of the FOI Act. The Department said it would make every effort to respond to the applicant-�s request no later than 27 May 2021. However, the Department said that this may not be possible as it, in common with other public sector bodies, is currently facing an unprecedented challenge in the face of the public health emergency arising from COVID-19 and that staff are now working remotely. The Department noted that staff may require access to hard copy files to process the applicant-�s request, in which case, it may not be in a position to finalise the applicant-�s request until a later date. On 9 April 2021, the applicant sought a review by this Office of the Department-�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 Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

The FOI Act entitles a requester to seek a review by this Office of a public body-�s decision to extend the time-frame for processing a request in certain, limited circumstances as set out in section 14 of the Act. As such, the scope of this review is concernedsolelywith whether the Department-�s decision to extend the time frame for considering her request was in accordance with the provisions of section 14 of the Act.

The review will not, however, consider the appropriateness of the Department-�s assertion that it might not be in a position to respond to the request within the extended time-frame. If this Office finds that the Department-�s decision to extend the time-frame was justified, the Department will be required to issue a decision within that extended time-frame. If it fails to do so, the applicant will be entitled to treat that failure as a deemed refusal of her request and will be entitled to apply for an internal review of that refusal. I would also urge the Department to have regard to the guidance published by the Department of Public Expenditure and Reform-�s Central Policy Unit for processing requests during the Covid-19 pandemic.

Analysis and Findings

Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, under section 14(1), it may extend that four week period by up to four further weeks where it considers that

a) the request relates to such number of records, or
b) the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such,

that compliance with section 13(1) within the four weeks specified is not reasonably possible.

In its submission to this Office, the Department said that the decision to apply a time extension was made under section 14(1)(a), due to the number of records involved. It said the applicant-�s request is expansive in that it covers many different types of records. It said that searches are to be conducted on all, -�correspondence, communication, minutes of meetings, email, files, including legal files, briefing notes, agenda notes, memos, letters, reports, submissions, power point presentation, hand written notes, fax etc, to and from the Department of Justice and within the Department of Justice and any communication with all state bodies /agencies-�. The Department said that due to the volume of different records encompassed by the request, searches are ongoing. The Department said it is expecting that several hundred records will fall within scope of the request following preliminary searches. The Department also noted that previous, similar FOI requests returned 19,613 and 2,219 records respectively following appropriate searches by the Department.

The Department said that due to the broad scope of this request, records will be located in a number of different areas of the Department. It said that searches are being conducted in the following areas:

• Civil Governance Division
• Criminal Governance Division
• FOI Coordination Unit
• Legal Unit
• Management Support
• Transparency Criminal Division
• Minister-�s Office.

The Department explained that each of the above Divisions have their own electronic record databases which need to be searched and that relevant staff in those divisions will also need to conduct searches of their emails and other correspondence. It said that searches are also being conducted by Ministerial Liaison Officers, the office of the Secretary General and Deputy Secretary General and further searches are being conducted on its eSubmissions and Parliamentary Questions systems. The Department explained that all relevant records in this request are being submitted to the FOI Unit so that records can be considered in the context of the wider request and to ensure a unified approach to the decision made on records. The Department said that the retrieval and decision making process on the records will take a significant amount of time due to the volume of records and the likelihood of duplication between different areas of the Department.

The Department said that the majority of records are expected to exist in electronic format. It said, however, that some records, particularly relating to correspondence, are likely to exist in hardcopy. The Department explained that as the request spans several divisions of the Department, there will be approximately ten members of staff retrieving and scheduling records for this request. It said that even with this number of staff members facilitating the request, the volume of records involved means that this process will take a significant amount of time and that coordinating the process is also time intensive. The Department said it is expected that this process will take upwards of 20 hours per staff member, with staff members in areas with a significant number of records expected to require significantly more time.

In its submissions to this Office, the Department also explained that due to Covid-19 level 5 restrictions the number of staff members who can attend its office at a time, and the amount of time these staff members can spend in the office, is limited. The Department explained, whereas staff members have been retrieving and scheduling electronic records while working from home, searches for hardcopy records can only be performed from the office and this will be impacted by the outlined restrictions. Furthermore, the Department said that as the request will need to be provided to the requester in hard copy, staff members will be required to attend the office in order to print the records and schedules, which will also need to be done in compliance with Covid-19 restrictions.

The Department said that while it has not yet issued a decision on this request, it is currently actively processing the request in order to issue a decision as soon as possible. It said that due to the factors outlined above, it is difficult to estimate when the decision will issue. The Department said it will keep the applicant updated with regard to the case and ensure that a decision issues in as timely a manner as is practicable.

In conclusion, the Department said it applied section 14(1)(a) of the FOI Act to extend the time for issuing a decision to the applicant by 4 weeks due to the number of records that were the subject of her request. I am satisfied, from the description provided by the Department of the steps it has to take to ensure that all relevant records are identified, that it was justified in its decision to extend the time-frame for issuing a decision in this case. Accordingly, I find that the Department-�s decision to extend the period for considering the applicant-�s request was in accordance with the provisions of section 14(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision to extend the period for consideration of the applicant-�s request under section 14 of the Act.

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