Whether the Department was justified in refusing access to records concerning payments made to CAP beneficiaries for the years 2012 to 2018 under section 15(1)(c), 15(1)(d) or 37(1) the FOI Act

17 June 2022

Background

On 27 April 2021, the applicant submitted an FOI request to the Department for a list of the final beneficiaries of the Common Agricultural Policy of the EU in Ireland for the years 2012 to 2018 to include for each beneficiary: their names, municipality of residence, amount of payment they received and the nature and description of the measures under which the payment was awarded.

In a decision dated 28 May 2021, the Department stated that in accordance with EU Regulation 1306/2013, it is obliged to ensure annual ex-post publication of all the beneficiaries of CAP funding. The Department stated that this information is published by 31 May each year and it remains available on its website for a period of two years in accordance with the regulation. The Department stated that the 2018 CAP beneficiary information was available on its website until 31 May 2021, and it provided the applicant with a link to this information. The Department stated that it was refusing access to the 2018 information under section 15(1)(d) of the FOI Act on the basis that it is publically available. The Department refused access to the 2012-2017 CAP beneficiary information under section 15(1)(c) of the FOI Act on the basis that granting the request would cause a substantial and unreasonable interference with its work. It also refused access to this information under section 37 of the FOI Act on the basis that it contains third party personal information.

The applicant sought an internal review of that decision, wherein she contended that she should have been offered the chance to amend her request in accordance with section 15(4) of the FOI Act. She also contended that as the information she was seeking was previously made public, it should exist in an easily assessable format, and therefore it should be straightforward to provide. In relation to section 37 of the FOI Act, the applicant contended that the information she was seeking was not sensitive. She stated that she had been provided with similar information from 12 other EU countries and she contended that there is a strong public interest in providing this information to allow scrutiny of the spending of public funds.

On 16 July 2021, the Department issued its internal review decision. The Department affirmed its decision in relation to section 37 of the Act. The internal reviewer stated the following in relation to the failure to offer assistance to amend the request:

"Regrettably, you were not offered the chance to amend your request and I wish to apologise for the oversight on this. The offer to amend your request is now extended to you. However, it should be noted that in line with the arguments made above, no data with personal information will be released. We can consider giving statistical information regarding CAP beneficiaries, for example, detailing the top 20 payments per county, but again without releasing the names of the CAP beneficiaries."

The internal reviewer went on to affirm the original decision in relation to section 15(1)(c) of the Act, she stated: "Having regard to the aforementioned, I have decided to affirm the decision made by the original decision maker in relation to your request outlined above."

On 8 October 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 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

As outlined above, the Department provided the applicant with a link to its website, which it said contained the CAP beneficiary information for 2018. During the course of the review, the applicant confirmed that she was agreeable to limiting the scope of this review to the Department's decision to refuse access to the 2012-2017 information under sections 15(1)(c) or 37(1) of the FOI Act. Given the nature of the Department's refusal of the applicant's request, it did not provide this Office with relevant records to assess the application of section 37 of the FOI Act. On this basis, I am only in a position to consider the Department's application of section 15(1)(c) of the FOI Act. 

Accordingly, this review is concerned solely with whether the Department was justified in its decision to refuse the applicant's request for CAP beneficiary information for the years 2012 to 2017 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, work (including disruption of work in a particular functional area) of the body.

However, section 15(4) of the FOI 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, this Office requested submissions from the Department in relation to its compliance with section 15(4) of the FOI Act in this case. In reply, the Department stated that while the internal review letter made it clear that the original decision was affirmed, it also clarified that this was "an entirely new and separate decision". The Department stated that the applicant was offered the chance to amend her request to seek non-personal information and she was informed that the Department could consider giving statistical information regarding CAP Beneficiaries. The Department stated that this offer represented a genuine attempt to assist the applicant to amend the original request in terms that could reasonably be met. The Department stated that the applicant chose not to engage with it in respect of its offer to provide statistical information under section 15(4) of the Act.

The Department is essentially contending that it offered assistance to the applicant in its internal review decision letter of 16 July 2021 and it therefore complied with section 15(4) of the Act in this case. I do not accept this argument.  In my view, it is not open to the Department to assert that it offered to assist the applicant before refusing the request when this offer of assistance is contained in the same letter in which it goes on to refuse the request under section 15(1)(c) of the Act. I find, therefore, that the Department did not comply with the provisions of section 15(4) of the FOI Act in this case.

In relation to the Department's reliance on section 37 of the FOI Act, it seems to me that in order for the Department to be in a position to satisfy itself that section 37 of the FOI Act applies, an examination of the records in scope is required. It seems to me that the Department's approach in this case was that the request was too voluminous to process but that, even if it did process the request and examine the records, it would be refusing access to them under section 37 of the Act. It may well be the case that if the request was processed, some of the records would be exempt under section 37 of the FOI Act. However, it is clear that the Department has not processed the request on the basis that to do so would cause a substantial and unreasonable interference with its work. In my view the Department cannot rely on section 37 without first processing the request and examining the records.

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

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant's request under section 15(1)(c) or 37(1) of the Act 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.

Deirdre McGoldrick
Senior Investigator