Whether the NCCA was justified in refusing access to various records relating to the junior cycle SPHE curriculum 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

3 November 2023

Background

In a request dated 1 March 2023, the applicant made a nine-part request for access to various records relating to the junior cycle SPHE curriculum, following the NCCA's "Report on the Consultation on the draft junior cycle SPHE Curriculum"� dated January 2023. In a decision dated 7 March 2023, the NCCA refused the request under section 15(1)(c) of the FOI Act on the ground that processing the request would require the retrieval and examination of such a number of records as to cause a disruption to the work of NCCA. In its decision, the NCCA informed the applicant that it may be able to examine her request further if she wishes to narrow or refine her request. 

The applicant sought an internal review of that decision, wherein she contended that the request should not have been refused under section 15(1)(c) on the basis that she sought information that should be easily to hand or easily collated, provided proper research and data retention procedures were followed. On 28 April 2023, the NCCA issued its internal review decision wherein it affirmed the original decision on the request, having estimated that a minimum of 134 hours would be required to process the applicant's request. On 4 September 2023, the applicant applied to this Office for a review of the NCCA'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 submissions made by applicant in her application for review and to the comments made by the NCCA. 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 NCCA was justified in its decision to refuse the applicant's request 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.

Preliminary Matters

In her application for review, the applicant made comments about the consultation process around the report referred to in her original request and requested that this Office "consider providing guidance to the NCCA with respect to the Senior Cycle consultation in line with its decision on the Junior Cycle consultation"�. This Office has no role in providing such guidance. It is also important to note that this Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally.

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 this review, in response to a request for clarification from this Office, the NCCA said that in correspondence to the applicant on 7 March 2023 and 28 April 2023, it informed the applicant of the need to narrow the scope of the request and requested that she engage with NCCA in that regard. It said that she did not do so on either occasion.

In essence, the NCCA is arguing that it offered assistance to the applicant in its original and internal review decisions dated 7 March 2023 and 28 April 2023, respectively. However, the NCCA did not offer assistance to the applicant before refusing the request under section 15(1)(c).

The provisions of section 15(4) of the Act are clear. An FOI body shall not refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under section 15(1)(c). The decision maker did not do so in this case before making their decision. Therefore, I find that the NCCA did not comply with the provisions of section 15(4) in this case.

In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of the NCCA and to direct it to undertake a fresh consideration of the request. If the NCCA 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 NCCA to refuse the applicant's request under section 15(1)(c) on the ground that it failed to comply with the provisions of section 15(4) of the FOI Act before refusing the request. 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.
 

Richard Crowley
Investigator