Whether the Department was justified in refusing access to records relating to part 4 of the applicant-�s request on the basis of section 31(1)(a) of the FOI Act, and in refusing the remaining part of his request under section 15(1)(c)

25 August 2023

Background

In a request dated 15 August 2022, the applicant made a 23-part request to the Department seeking access to various records relating to specific letters concerning him and related letters, emails, notes, memos, correspondence, etc., from 2005 to 2019.  On 23 August 2023, the Department informed the applicant that the Inspectorate Unit of the Department would process parts 11, 12, 13, 14, 15 and 16, of his request, as well as elements of part 18. On 26 August 2023, the Department wrote to the applicant and requested that he revise the scope of part 18 of his request. On 6 September 2022, the applicant informed the Department that he would not reduce the timeframe of part 18 of his request.

On 9 September 2022, the Department asked the applicant to narrow the scope of the entirety of his request. Its letter stated that his 23-part request was specific in what it sought, but -�broad in its reach-�-�. Additionally, the Department suggested that the applicant should consider making each part of his request separately. It appears that the applicant did not response and accordingly, on 16 September 2022, the Department issued a decision refusing parts 11 -16 and 18 of the applicant-�s request under section 15(1)(c) of the FOI Act. On 1 October 2022, the applicant made a request for internal review.  The Department-�s position is that it did not receive the applicant-�s internal review request. However, on foot of correspondence from this Office, on 11 October 2022, the Department issued a decision wherein it refused part 4 of his request under section 31(1)(a) of the FOI Act. The applicant applied to this Office for review, case OIC-133216-D5K9X5 refers, stating that he wished to appeal the decision issued by the Department on 11 October 2022 regarding part 4 of his original request and to state that he had not received an internal review decision regarding the other 22 parts of his original request.  On 5 January 2023, the Department issued an effective position affirming its original decision to refuse part 4 of the applicant-�s request under section 31(1)(a). The Department refused the remaining parts of the applicant-�s request under section 15(1)(c). On 19 January 2023, the applicant applied to this Office for a review of the Department-�s decision. On 14 February, 18 April and 25 May 2023, the applicant provided further submissions to this Office. This Office requested submissions from the Department in support of its decision to refuse the applicant-�s request. The Investigating Officer provided an outline of the Department-�s submissions to the applicant and offered him an opportunity to comment, which he duly did. Of foot of his response, the Investigating Officer requested additional submissions from the Department, which it has provided.

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 applicant and the Department as set out above, as well as to the submissions made by the applicant and by the FOI body in support of its decision. I have also had regard to the contents of the record refused under section 31(1)(a). I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Department was justified in refusing access to a record relating to part 4 of the applicant-�s request under section 31(1)(a) of the FOI Act, and in refusing to release records relating to the remainder of his request under section 15(1)(c) of the FOI Act on the ground that his request was voluminous.

Preliminary Matters                                                                       

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record refused on the basis of section 31(1)(a) is limited.

Analysis and Findings

Section 31(1)(a)

The Department refused part 4 of the applicant-�s request which sought a copy of a specified letter from the Department-�s Legal Services section to the Chief State Solicitor-�s Office, on the basis of section 31(1)(a) of the FOI Act. Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
• Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated or pending litigation (litigation privilege).

Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege may, in certain circumstances also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

Essentially, the Department-�s position is that the record at issue consists of confidential communications made between a client (the then Minister for Education) and his/her legal adviser (the Chief State Solicitor-�s Office) for the purpose of giving or receiving legal advice.

The Department stated that this record was created in response to correspondence received by the Department from the applicant-�s solicitors, which raised the prospect of legal proceedings against or involving the Minister. The Department-�s position is that the letter in question is part of a continuum of correspondence.

Having carefully reviewed the record concerned, I am satisfied that the record forms part of a continuum of correspondence in which legal advice is requested, given or received. As such, I find that the Department was justified in refusing access to a record relating to part 4 of the applicant-�s request under section 31(1)(a) of the FOI Act.

Section 15 (1)(c)

Section 15 (1)(c) of the FOI Act 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 a number of records or an examination of such kind or 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. As such, before I can consider whether the Department was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.

Section 15(4)

The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), however, this Office takes the view that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

It is important to note that the onus is on FOI bodies to assist, or to at least offer to assist, requesters, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type, nature and/or the location of records held. Nevertheless, it is also noteworthy that a request for access to records must contain sufficient particulars in relation to information concerned to enable the record to be identified by the taking of reasonable steps. In such circumstances, the difficulty with requesters making broad or non-specific requests, such as a request for any and all records, becomes apparent.

During the course of the review, the Investigating Officer asked the Department 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 Department said that it had engaged with the applicant before making its original decision, on 23 and 26 August 2022, regarding parts 11-16 and elements of part 18, and on 9 September 2022 regarding all 23 parts of his request. As set out above, the Department asked the applicant to narrow the scope of his request. Essentially, it suggested that he either make new, individual requests for each of the 23 parts of his original request, in an order that -�best suited-� him; or that he group the parts of his request together and submit new requests for each group. The Department also suggested that he wait until each new request was addressed before making his next request. I also note that on 26 August 2022, the Inspectorate Unit of the Department suggested that the applicant narrow the timeframe of part 18 of his request. However, it made no reference to the other parts of the applicant-�s request being handled by the Inspectorate Unit.

Analysis

While the FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), it seems to me that a mere offer to amend a request so that in no longer falls to be refused under section 15(1)(c), is not generally sufficient for the purposes of compliance with the section. In holding this view, I am cognisant of the general requirement on an FOI body, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests.

The question I must consider in this case is whether the Department provided reasonable assistance to the applicant to amend his request, or whether it offered to provide assistance in circumstances where the applicant was not willing to amend the original request.

In the correspondence outlined above, I note that the Inspectorate section of the Department made specific suggestions about narrowing the timeframe of part 18 of his request.  The Department acknowledged that elements of the applicant-�s request were specific, but it was also of the view that the request itself was broad. I also note that it suggested that the applicant refine the scope of his request and submit a number of requests relating to fewer records, which could be dealt with separately. I further note that the applicant did not agree to any of the Department-�s suggestions in this regard.

The Department-�s position is that it -�proposed multiple means-� by which the requester might refine his request, but that he refused to do so.

I am satisfied that the Department-�s correspondence with the applicant on 23 and 26 August and 9 September 2022 were all reasonable attempts to engage directly with the applicant. I note that the applicant did not engage with the Department, nor did he attempt to reduce the number of parts to his request as suggested in correspondence by the Department, nor engage directly with the Department to refine the scope of the records. In the circumstances, I find that, on balance, the Department provided reasonable assistance to the applicant and that it complied with the provisions of section 15(4) of the FOI Act in this regard.

Section 15(1)(c)

Section 15(1)(c) provides for the refusal of a request where the FOI body 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, work (including disruption of work in a particular functional area) of the FOI body concerned.

Parts 11-16 and elements of part 18 of the applicant-�s request

As outlined above, the Department considered parts 11-16 and some elements of part 18 to relate to the Inspectorate Unit. In its submissions to this Office, the Department described the steps taken to identify relevant records relating to these parts of the request. It stated that a discussion was held with a representative from the Office of the Chief Inspector to verify the location of all possible relevant records. It said that searches were undertaken of the files of the Office of the Chief Inspector and Individual File Registers (IFRs) of the relevant District, Divisional, and Assistant Chief Inspectors. It also outlined the steps taken to try and access dormant email accounts relating to staff members who had since left the organisation. The Department stated that electronic records were searched using keywords such as the name and roll number of the relevant school, as well as individual names and initials. It also stated that files of former staff members held in off-site storage were also screened for relevant records.

The Department estimated that it would take three personnel -�in excess of one hundred hours-� to screen and retrieve the records held by the Unit within the scope of the applicant-�s request. It said that manual cross-referencing would be required to ensure that the specific records identified by the applicant were identified. Its position was that the steps required would incur a major disruption to the work in the Inspectorate Unit.

When informed of the Department-�s submissions regarding the records held by the Inspectorate Unit, the applicant simply reiterated his view that these parts of his request contained sufficient detail, in his opinion, to locate records. The applicant stated that under the FOI Act, he was entitled to access all personnel records relating to him.

However, regardless of the applicant-�s entitlements under the Act, section 15(1)(c) is an express acknowledgment of the fact that there are limits to the resources a public body must expend on processing requests.  The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources.

I accept the Department-�s explanation of the time and resources that would be required to retrieve and examine the records coming within the scope of the seven parts of the applicant-�s request being handled by the Inspectorate Unit. I also accept the Department-�s contention that processing these parts of the applicant-�s request would cause a substantial and unreasonable interference with, and disruption of, the work of the particular functional unit. I find therefore, that the Department was justified in refusing parts 11-16 and elements of part 18 of the applicant-�s request on the basis of section 15(1)(c) of the FOI Act.

Parts 1-3, 5-10, 17, 18 (in part) and 19-23 of the applicant-�s request

The remaining parts of the applicant-�s request were handled by the Department-�s FOI Unit directly. During the course of the review, by way of background, the Department informed this Office that it has received 9 -�complex, detailed and inter-related-� FOI requests from the applicant since 2006. It said that all of his requests related to the same legal matter and that each comprised multiple elements. It noted that the request in this case comprised 23 separate parts and covered a 17- year time frame. It was of the view that the request relates to an ongoing grievance the applicant has with -�multiple parties-�, including the Department. The Department also stated that it had complied with a voluntary legal discovery on one of the applicant-�s request in 2014. Its position was that there was no reluctance on its part to similarly engage with the applicant in ensuring that any reasonable requests submitted were considered.

The Department stated that the legal matter to which these requests revisit periodically, reaches back over a decade and a half. It said that the applicant-�s FOI are -�very detailed, often overlapping-�, and owing to the multiple parts therein, were becoming -�increasingly difficult-� for it to manage.

In its submissions to this Office, the Department stated that it was not possible to provide an estimate of the number of records at issue. It stated that ascertaining the figure concerned would involve a -�significant trawl-� of records across multiple Units. It stated that it considered the applicant-�s request as voluminous -�as there was no record identified at initial search stages-�.

By way of an initial estimate, the Department stated that at least six units (as well as the Inspectorate Unit) would be involved in processing the applicant-�s request. In total, it estimated that at least ten individuals in at least seven separate units would be involved in the initial stages of processing the request. The Department-�s position was that as a number of records and topics would cross various Units, this would entail -�considerable coordination, examination and consideration of the legal implications-�. In relation to one particular unit, the Department said that the Parents and Learners Unit stated that the applicant-�s request would have to be narrowed and refined significantly in order for it to take a -�reasonable and proportionate approach-� to processing the relevant parts of his request. The Department also stated that the request was -�too detailed and convoluted-� for its FOI Unit to be able to coordinate the handling of the request across the Department with certainty.

Essentially, the Department stated that multiple sections had carried out preliminary keyword searches of their files, but were unable to find any records relevant to the remaining parts of the applicant-�s request. Accordingly, it could not determine the number or nature of records that would have to be retrieved in order to grant the remaining parts of the applicant-�s request. The Department stated that as there were no records identified at the initial search stages, follow-up searches would be required which would have adverse effects on already busy units. Its position, in effect, was that as the preliminary searches had not identified relevant units or records, that the amount of work needed would extend well beyond the parameters of what was deemed reasonable in the FOI Act.

The Department also indicated its view that the applicant was submitting -�unreasonable, complex and byzantine-� requests as part of an ongoing grievance, rather than seeking anything specific.

Determining whether the processing of a 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 of the body, will necessarily require the particular facts of the case to be examined. For example, the number of records at issue that might trigger the application of section 15(1)(c) will vary from case to case and will depend on a number of factors, such as the size of the body or the particular functional area charged with processing the request. The FOI Act is silent on the number of records that might give rise to a refusal under the section or on the level of resources required that might be deemed to constitute unreasonable interference with, or disruption of, work.

While I accept that the Department made a number of efforts to engage with the applicant in order to narrow the scope of his request, it has not been able to provide details of the number of records that may exist relevant to the applicant-�s request. Neither, in my view, has it provided sufficient information to explain how searching for and identifying these records would cause a substantial and unreasonable interference with, or disruption of, work of the FOI Unit and other relevant Units. While I also accept that the applicant-�s request is broad and wide-ranging in part, the Department has not provided enough information to satisfy me that the initial searches carried out to locate records were adequate or why it considers that further searches would be required. In this regard, I note that some parts of the request clearly refer to specific individuals or offices which would be expected to hold relevant records. For instance, part 23 concerns one particular individual. The Department has not made any specific arguments in support of its position that it would cause a disruption of its work to search this individual-�s records using relevant keywords. Furthermore, other parts of the applicant-�s request concern records relating to specific letters. It is not clear to me from the Department-�s submissions what the difficulties are in locating such records.

I also note that the Department-�s submissions to this Office suggest that, to date, no records have been located relating to the remaining parts of the applicant-�s request. This could be taken as a reference to section 15(1)(a) of the FOI Act, which provides for the refusal of a request on the basis that no records exist or can be found once all reasonable steps have been taken to ascertain their whereabouts. Some of the Department-�s comments regarding the applicant-�s motives for making his FOI request seem more to relate to section 15(1)(g), which provides for the refusal of a request on the basis that it is frivolous or vexatious. The Department-�s comments concerning the overlap of the applicant-�s request could also be construed as a reference to section 15(1)(i), which provides that a request can be refused where the records have already been released to the requester. However, the Department has not relied on sections 15(1)(a), 15(1)(g) or 15(1)(i) to refuse the applicant-�s request in this case. Furthermore, I cannot have regard to any perceived motive the applicant might have in considering whether section 15(1)(c) might apply.

In any event, while the FOI Act is silent on the number of records that might give rise to a refusal under section 15(1)(c), it is not completely clear to me how a public body could refuse a request on the basis that it is voluminous where, to date, no records relating to the remaining parts of the applicant-�s request have been identified. Furthermore, as set out above, the Department-�s arguments seem to relate to other administrative provisions, rather than the one relied upon to refuse the applicant-�s request. While I have sympathy for the Department, in the circumstances of this case, I am not satisfied that it has adequately explained why it considers that section 15(1)(c) would apply to the remainder of the applicant-�s request. Accordingly, I find that the Department was not justified in refusing the remaining parts of the applicant-�s request under section 15(1)(c).

In the circumstances, I am satisfied that the appropriate course of action to take is to annul the decision of the Department and to direct it to process the remaining parts of the applicant-�s request, namely parts 1-3, 5-10, 17 and the elements of part 18 relating to Units other than the Inspectorate Unit, and 19-23, afresh. I would encourage the applicant to engage with the Department to clarify the specific records sought, having regard to any records already released to him in response to previous requests.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I affirm the Department-�s decision to refuse part 4 of the applicant-�s request under section 31(1)(a) of the FOI Act. I also affirm the Department-�s decision to refuse parts 11-16 and elements of part 18 relevant to the Inspectorate Unit of the Department of the applicant-�s request under section 15(1)(c) of the Act. I annul the Department-�s decision to refuse the remaining parts of the applicant-�s request under section 15(1)(c) of the FOI Act and I direct it to conduct a fresh decision-making process in relation to these parts of the request.

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.

Sandra Murdiff
Investigator