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K Solicitors and National Asset Management Agency (FOI Act 2014)

Case Number: 160166

Our Reference : 160166
Your Reference: *******

15 December 2016

K Solicitors

Dear Sirs/Mmes

Re: Application for review under the Freedom of Information Act 2014 (the FOI Act)

I am writing to inform you that I have decided to discontinue my review of your application under the Freedom of Information Act 2014 (the FOI Act) for a review of the National Asset Management Agency's (NAMA) decision on your FOI request of 29 June 2015, in which you sought access to the following:

[the original request sought access to six categories of records, all concerning any engagement NAMA may have had in relation to the planning process and related matters for a particular development]

Section 22(9)(a)(vii) - refusal to accept/ discontinue a review
My Office's letter of 11 November 2016 informed you of the possibility that this review could be discontinued under section 22(9)(a)(vii) of the FOI Act. Section 22(9)(a)(vii) of the FOI Act provides that I "may refuse to accept an application [for review], or may discontinue a review under this section if [I am, or become,] of the opinion that - accepting the application would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the 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 of [my] Office." Furthermore, section 22(9)(b) provides that in determining whether to discontinue a review under section 22, I shall act in accordance with my own discretion.

Invitation to reduce number of records
Our letter of 11 November 2016 invited you to significantly reduce the number of records. This was in order to refine the scope of the review given the over 4,400 pages of information sought. In addition, NAMA refused access to part 4 of the request on the basis that it did not hold any such records, and that therefore section 15(1)(a) of the FOI Act applied. NAMA further informed my Office that its position was that no records existed which related to part 3 of the request and that this part of the request should have been refused under section 15(1)(a) also. I note that NAMA provided you with a schedule describing the records held.

In this case, while the volume of withheld information is a key factor, a number of other factors, as set out in our letter of 11 November 2016, are also relevant including the nature of the information concerned, the number of exemptions claimed by NAMA, the need to establish the identity and status of the parties to the records and the likely need to notify and invite submissions from potentially affected third parties.

The invitation to reduce the scope of your request was not an attempt to deny you your rights under the legislation. Rather, it was made in an effort to help you continue to exercise your rights. I note that you did agree to narrow your request such as to exclude part 4, which had been refused by NAMA on the basis that it did not hold such records. The fact is that this would have no impact on the number of records known to be held that fall to be considered. I reject your assertion that invoking section 22(9) does not represent a fair approach by my Office.

In relation to the nature of the information concerned, I note that, as you have given me no indication that you are representing a client in this matter, all parties to whom the records relate would have to be treated as third parties for the purposes of the review.

I note your comments in relation to section 22(11)(a) and the four month statutory objective which applies "in so far as is practicable" to certain reviews by my Office. The provisions of section 22(3) apply a decision under section 22(2) and not to a discontinuation under section 22(9), which this is.

The withheld records contain over 4,400 pages of information. NAMA has claimed that eight provisions of the FOI Act apply to that information, and that section 15(1)(a) applies to two parts of the request. I have considered your application to this Office, the fact that the number of records being sought has not been reduced, the nature of the information at issue and the relevant provisions of the FOI Act. In addition, any release of the withheld information may affect the rights of third parties. As a result, I would have to identify, consult with, and take account of the views of any third parties that may be affected by my decision. The extent of such consultations would only become apparent on examination of the withheld information. I have also considered the interference that allocating further resources to this review would cause to the other work of my Office. I am satisfied that a thorough examination of the content and context of the withheld information, along with any submissions that may be made by you, NAMA and/or other parties regarding the application of the various exemptions would be necessary before a decision could be made on the review.

I conclude that the number of records involved and the nature of the information concerned are such that a review in this would cause a substantial and unreasonable interference with or disruption of work of my Office.

Accordingly, in the exercise of my discretion under section 22(9)(b), I discontinue this review pursuant to section 22(9)(a)(vii) of the FOI Act.

Yours sincerely


Peter Tyndall
Information Commissioner