Whether the IPS was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for information relating to the cost of sick leave within the IPS for 2020 by prison under three specified headings

6 January 2022

Background

In a request dated 17 May 2021, the applicant sought information relating to the cost of sick leave within the IPS for 2020 by prison, under three headings, namely cost, total sick leave days, and days lost on average. In a decision dated 26 July 2021, the IPS refused the request, citing sections 30(1)(b), 32(1)(a)(iii), 32(1)(a)(v) and 32(1)(b) of the FOI Act as the grounds for its decision. On 27 July 2021 sought an Internal Review of the IPS’s decision. He argued that the data for 2019 is already in the public domain and caused none of the harms identified by the IPS in its decision. On 18 August 2021, the IPS affirmed its refusal of the request, following which the applicant sought a review by this Office of that decision.

Subsequently, during the course of the review, the IPS revised its basis for refusing the request. It argued that the records sought do not exist and that the request was being refused under section section15(1)(a) of the Act. This Office put to the applicant the modified position of the IPS. In response, the applicant argued that it should still have been possible for the IPS to provide him with the information sought, having regard to the provisions of section 17(4). This Office put the applicant’s arguments regarding the applicability to section 17(4) of the Act to the IPS. Its arguments on the applicability of that section are examined below.

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 submissions made by the IPS and the applicant’s comments in his application for review and in subsequent correspondence. 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 IPS was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for information relating to the cost of sick leave within the IPS for 2020 by prison.

Preliminary Matters

Before I address the substantive issues arising in this case, there are a number of preliminary points I wish to make.

First, I note that the IPS alluded in its submission to the reasons it believed the applicant had sought access to the records in question. As the IPS well knows, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded.

Secondly, in his correspondence with this Office, the applicant expressed frustration that the IPS had cited certain provisions of the Act for its refusal of the request and modified the basis for its decision only upon being requested to make submissions by this Office, some five and a half months after the initial request. This Office has some sympathy for the applicant’s position and takes the view that a public body in receipt of an FOI request should take steps to ensure that, where it intends to refuse a request, it establishes in early course the relevant provisions of the FOI Act upon which it considers it appropriate to rely. In particular, it is disappointing to note that the IPS sought to refuse the request in this case without having first established whether the records sought actually exist. It seems to me that this is the first step a body should take when processing a request.

Nevertheless, a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I consider it appropriate to consider the applicability of 15(1)(a) in this case notwithstanding the fact that the provision was not originally relied upon by the IPS as a ground for refusing the request.

Finally, it is important to note that under section 22(12)(b) of the Act, a decision to refuse to grant a request is presumed not to have been justified unless the body can satisfy the Commissioner that the refusal was, indeed, justified.

Analysis and Findings

As outlined above, during the review the IPS argued that the records sought do not exist. Section 15(1)(a) provides that an FOI body may refuse to grant the request where the record concerned does not exist.

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

Furthermore, the Act does not require FOI 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. Section 17(4) provides that 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 and 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. However, 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 it is entitled to refuse the request under section 15(1)(a).

The role of this Office in a case where a request has been refused under section 15(1)(a) is to decide whether the refusal was justified. We will generally have regard to matters such as the steps actually taken to search for the records and information about the record management practices of the FOI body, insofar as those practices relate to the records in question. In this case, the IPS argued in its submissions that the record sought does not exist in the format requested.

On the matter of the 2019 figures the applicant referred to as being in the public domain, the IPS said that, as part of a 2020 IPS Anti-Fraud Audit report completed by the Internal Audit Unit of the Department of Justice, it was asked to provide figures relating to its 2019 sick leave levels and costings. It said those figures were amended by staff members of the Department and included in the 2020 IPS Anti-Fraud Report. It said the applicant requested from the Department a copy of the 2020 IPS Anti-Fraud Audit Report and that the Department released the 2019 sick leave figures and costings in error and without the consent of the IPS.

The IPS said that it did not create the 2019 record in the format provided to the applicant, that it did not release the record to the applicant, and that the updated record for 2020 sought does not exist in the format requested. It added that it releases its sick leave figures to the Department of Public Expenditure and Reform (DPER) on a yearly basis at DPER’s request and that DPER publishes only a very small portion of the figures provided, namely the average working days lost per full time equivalent staff member. It said these figures are available on the DPER website.

The IPS did not, however, explain how it was in a position to provide the Department with figures relating to its 2019 sick leave levels and costings, notwithstanding the fact that the figures provided may not have been the same as the figures released by the Department. Moreover, the fact that DPER publishes only a proportion of the information sought is of no relevance to the question of whether or not the records sought exist.

As I have outlined above, section 17(4) provides that, where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned,

a) the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that 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, and
b) if such reasonable steps result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.

In its subsequent submission to this Office on the relevance of section 17(4) to the request at issue, the IPS said that the relevant files are kept electronically, being stored on staff clocks, and that it generates/manipulates reports from its systems as required. It confirmed that the information relating to 2019 provided to the Department of Justice was pulled from data on its systems. It acknowledged that it is within the capabilities of the IPS to extract the relevant information from its systems in the manner provide for by section 17(4).

In essence, the argument of the IPS is that it extracted the 2019 figures at the request of the Department and that it was not required to do so for 2020 figures. It argued that it was not required to create or generate a new record to respond to an FOI request.

I must admit I find it quite concerning that the IPS acknowledges that it can extract the information in accordance with section 17(4) but continues to argue that it is entitled to refuse the request under section 15(1)(a) on the ground that it is not required to create a new record to respond to an FOI request. The purpose of section 17(4) is to ensure that where an FOI body can extract data held electronically using facilities that are already being used by the body, it must do so, regardless of the fact that it would result in the creation of a new record. Such new record is deemed to have been created on the date of receipt of the request, which means that the FOI body simply cannot argue that the record sought does not exist. In the circumstances, I find that the IPS was not justified in refusing the request under section 15(1)(a) of the Act.

Given the initial arguments advanced by the IPS for refusing the request as set out in its decision letters to the applicant, it is open to me to annul the decision of the IPS to refuse the request under section 15(1)(a) and to remit the matter back for consideration afresh. However, I do not think such a course of action is necessary or appropriate in this case.

The IPS cited several harm-based exemptions in support of its initial refusal of the request but it provided no detail, either in its original decision or in its internal review decision, as to how the release of the records sought might give rise to the harms identified. The IPS was invited to make submissions on the applicability of the relevant exemptions and instead chose to rely on section 15(1)(a) to refuse the request. As such, while no specific arguments have been made as to how the release of the information sought might give rise to the various harms identified, and while it forms no part of this decision, it is not apparent to me how such harms might arise. In holding this view, I am cognisant of the fact that the 2019 figures are essentially in the public domain and of the fact that the information sought is, at this stage, historic.

In all the circumstances, I find that the appropriate course of action to take is to annul the decision of the IPS to refuse the request under section 15(1)(a) and to direct the release of the information sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IPS to refuse, under section 15(1)(a) of the Act, the applicant’s request for information relating to the cost of sick leave within the IPS for 2020 by prison under three specified headings and I direct the release of the information sought.

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