Whether the Department was justified in its decision to refuse parts of the applicant's request for records relating generally to the Future Trans-European Transport Network 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 and under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist

31/08/2018

Background

The Trans-European Transport Network (TEN-T) is a European Commission policy directed towards the implementation and development of a Europe-wide network of roads, railway lines, inland waterways, maritime shipping routes, ports, airports and rail-road terminals. On 14 March 2018, the applicant submitted a five part request to the Department for records and/or information generally relating to the Future Trans-European Transport Network (TEN-T). His specific request was as follows:

• A list of all meetings which discussed the refinement of the EU TEN-T maps during 2011
• A list of all meetings which discussed the TEN-T Consultation organised by the Department
• A list of the directors of all agencies and companies under the remit of the Department
• A copy of an application to the EU, as outlined in the Programme for Government, for the revision of the TEN-T CORE Network and for the reinstatement of the cross-border Western Arc and a list of all meetings where this was discussed

A list of all studies and evaluations undertaken by or with the support of the Department relating to the cross-border route from Derry/Donegal to Limerick/Cork/Waterford/Rosslare or cross-border parts thereof during the past 20 years

On 29 March 2018, the Department contacted the applicant by email wherein it sought clarification of a number of aspects of the request. In relation to parts 2, 3, and 5, it stated that compilation of a list is not a record. It added, however, that certain information could be provided outside of the FOI process but that the request would need to be narrowed down. It sought clarification of the request in relation to parts 1, 2, and 5 and also sought a narrowing of the time-frame involved in respect of parts 2 and 5. It stated that what the application sought at part 4 was being reviewed and offered to provide a list of recent meetings with the Commission at which the submission was discussed. In relation to part 3, it provided a link to its website containing the information sought.

On the same day the applicant responded to the Department's request for clarification and narrowing of the request. He stated that he required all information to be provided under FOI and not outside of the process. In relation to part 1, he stated that he wanted all of the documentation suggested, together with a list of every other document the Department holds for 2011 which can explain the decision making process which led to the refinement of the TEN-T maps by Ireland in that year. In relation to part 2, he identified a particular EU consultation for which he required a list of all meetings where that consultation was discussed. He did not suggest a narrower time-frame for parts 2 or 5.
On 23 April 2018, the Department informed the applicant that the record sought at part 4 did not exist as no application was made. In relation to parts 1, 2, and 5 it stated that detailed searches were ongoing. However, it also acknowledged that the time frame for issuing a decision on the request had passed and it informed the applicant of his right to seek an internal review of the Department's deemed refusal of his request.

On 24 April 2018, the applicant sought an internal review, following which the Department issued an internal review decision in which it decided to part-grant the request. It informed the applicant that schedules of the meetings mentioned in parts 1 and 4 were being compiled and that copies of the records of the meetings would be released. It decided to refuse the information sought at part 4 on the ground that no such record exists. It refused the information sought at parts 2 and 5 of the request under section 15(1)(c), which allows for the refusal of a request where granting the request would cause a substantial and unreasonable interference with, or disruption of, work of the body.
On 16 May 2018, the applicant sought a review by this Office of the Department's decision in respect of parts 2, 4 and 5 of his request. I have now concluded my review in this case. In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in its decision to refuse parts 2 and 5 of the applicant's request under section 15(1)(c) and to refuse access to the record sought at part 4 under section 15(1)(a) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.
Firstly, it is important to note 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. 
Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reasons that a requester gives for the request must be disregarded. Therefore, while the applicant has explained, in his correspondence with this Office, why he wants access to the information sought, I cannot have regard to those reasons except in so far as they reflect what might be regarded as public interest factors in favour of the release of the information where the Act requires such a consideration of the public interest. Having regard to the grounds upon which the Department refused parts of the request, the requirement to consider where the balance of the public interest lies does not arise in this case.
Finally, it seems to me that the applicant appears to be confusing the role and responsibilities of the Information Commissioner with those of the Ombudsman. Both Offices operate entirely independently of each other. This Office has no role in examining the manner in which public bodies perform their functions generally, or in investigating complaints made against public bodies concerning the performance of their administrative functions. Such matters fall within the jurisdiction of the Ombudsman. The remit of this Office is limited to reviewing decisions taken by public bodies on FOI requests and in determining whether those decisions are in accordance with the provisions of the FOI Act.

Analysis and Findings
Section 15(1)(c)

Section 15(1)(c) allows an FOI body to 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 the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area. 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).
Section 15(1)(c) is an explicit acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources.

As I have outlined above, the applicant sought a list of all meetings which discussed the TEN-T Consultation organised by the Department (part 2), and a list of all studies and evaluations undertaken by or with the support of the Department relating to the cross-border route from Derry/Donegal to Limerick/Cork/Waterford/Rosslare or cross-border parts thereof during the past 20 years (part 5). In its submission to this Office, the Department provided an outline of the work that would be required to process the relevant parts of the applicant's request. In essence, the Department's position is that the search parameters are so broad (essentially all meetings where TEN-T was discussed and an examination of records stretching over 20 years) as to result in large numbers of records that would require significant man hours to examine with a view to identifying relevant records. The Department estimated that it would take upwards of 150 hours of searching electronic databases in numerous sectorial divisions, as well as hard copy searches of those divisions.
In relation to part 2, the Department stated that the requirement to list the relevant meetings would have required a considerable trawl of its TEN-T records and would have required the particular Unit with responsibility for TEN-T matters to review thousands of records. In relation to part 5, it stated that there is no central point of collation for the studies sought. It stated that significant researching of records over a 20 year period across a number of the Department's Divisions to identify studies undertaken would have been required and that this would have placed a considerable strain on a small team.

In relation to the requirement to offer assistance under section 15(4), the Department provided correspondence with the applicant as evidence of its attempts to assist the applicant, by outlining which aspects of the request would need to be narrowed in order to be fulfilled. As I have outlined above, it sought clarification of the request and a narrowing of the time-frame involved in relation to parts 2 and 5. While the applicant provided further clarification in relation to part 2, he did not engage with the Department in respect of part 5 or in respect of the suggestion that he narrow the time-frame. Rather, it seems to me that he simply re-iterated his request for the information concerned.

I should say at this stage that it is not clear to me that the Department holds the records actually sought at parts 2 and 5, namely lists of certain meetings, studies and evaluations. As I have explained above, 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. As such, the Department is not required to compile lists of records if those lists do not already exist or cannot reasonably be extracted from information held electronically. In the circumstances, it seems to me that it might have been more appropriate for the Department to consider if the request should be refused under section 15(1)(a) on the ground that the records sought do not exist.

Nevertheless, in so far as the Department may have been able to produce a list from electronic records held, and I have seen no evidence to suggest that it could, I accept the Department's contention that the search parameters relating to the applicant's request are so broad that a potentially significant number of records would have to be retrieved and examined. I note the applicant's argument that the search should not be extensive as only one search parameter should be required for part 2, namely TEN-T Consultation. However, this ignores the fact that such a limited search would most likely identify a significant number of records of no relevance to the request that would remain to be examined. In the circumstances I accept the Department's contention that processing 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 the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area.

I am also satisfied that the Department has fulfilled the requirements under section 15(4) by outlining which aspects of the request would need to be narrowed in order to be fulfilled. With regard to parts 2 and 5 of the request the Department suggested that the applicant might provide a narrower time-frame in order to assist the Department in fulfilling the request. In response, the applicant failed to provide a narrower time-frame in relation to part 2 and stated that he was seeking records from the last 20 years in relation to part 5. Having regard to this correspondence between the Department and the applicant, I am satisfied that the Department has fulfilled the requirements under section 15(4).
I am satisfied that processing parts 2 and 5 of the applicant's 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 the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work. I find, therefore, that the Department was justified in refusing parts 2 and 5 under section 15(1)(c).

Section 15(1)(a)

Section 15(1)(a) of the FOI Act 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 and 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.

The applicant sought, at part 4 of his request, a copy of an application to the EU, as outlined in the Programme for Government, for the revision of the TEN-T CORE Network and for the reinstatement of the cross-border Western Arc. In essence, he wants access to the application submitted in accordance with the commitment given in the Programme for Government. In its submission to this Office, the Department confirmed that no such application has been made to date. I have no reason to doubt this. I find, therefore, that the Department was justified in refusing access to the application sought at part 4 of the applicant's request under section 15(1)(a) on the ground that no such record exists.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department in this case.

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