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Mr F and the Department of Justice and Equality(FOI Act 2014)

Case Number: 160464

Whether the Department was justified in refusing to release records concerning difficulties associated with the fixed charge processing system for driving offences on the ground that granting the request would cause a substantial and unreasonable interference with the work of the Department

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 14 March 2016, the applicant submitted a request to the Department for copies of all records concerning the operation of the fixed charge notice system for driving offences and the mailing solutions company that prints the fixed charge notices. On 23 March 2016, the Department suggested to the applicant that as the mailing solutions company was contracted by An Garda Síochana (AGS), he should direct that part of his request relating to the company to AGS. It also informed him that in so far as his request related to records concerning the Fixed Charge Processing System (FCPS), a significant number of records fell within the scope of that request. It stated that the retrieval, examination, collation and duplication of such records would involve a substantial and disproportionate use of its resources. It noted that the request may be refused under section 15(1)(c) and it asked the applicant to consider refining his request by clearly stating which specific aspects of the FCPS he was interested in and provided a number of examples of the types of records that relate to the FCPS, including FCPS legislation or policy, issuing or cancellation of Fixed Charge Notices (FCNs), and FCN payment processing.

This was followed by a protracted exchange of emails between the parties. On 30 March 2016, the applicant stated that the examples cited were the areas about which he would be interested to receive records and he identified a number of other types of records, including records relating to "difficulties that have arisen in the operation of the FCPS, the service of fixed charge notices, prosecutions being dismissed, etc.". In an email dated 6 April 2016 the Department sought further clarifications as to the nature of the records sought and also informed the applicant that AGS are responsible for the operation of the FCPS. On 13 May 2016, the applicant provided clarification relating to the difficulties he had referred to in his previous email.

The Department subsequently informed the applicant that the request was more appropriate for AGS and that it was transferring the request to AGS. The applicant noted the transfer but sought details as to whether the Department had considered whether it held relevant records. In its response of 20 May 2016, the Department stated that it has no role in relation to road traffic enforcement. It noted that it receives a small volume of correspondence annually from members of the public in relation to the operation of the FCPS but that it would not be straightforward to collate such correspondence. It added that it considered such correspondence to be exempt in any event. It again stated that the nature of the request was such that it had been forwarded to AGS for direct response.

By email of 20 May 2016, the applicant clarified that he was seeking records relating to what he described as "well-reported problems experienced in the operation of the FCN system". He asked that if no such records were held, the Department might confirm this. In response, the Department suggested that it should consider his email of 20 May 2016 as a new request and asked the applicant to consider refining the request by perhaps specifying a particular time period/dates and by clarifying his statement about well-reported problems.

By email of 29 June 2016 the applicant stated that he was happy to limit the request to 2012 -2016 and that his request was in relation to "any problems". On 5 July 2016, the Department informed the applicant that the relevant Division considered that the request was still too voluminous and would stand to be refused under section 15(1)(c) as he had not clarified what he meant by well-reported problems. It suggested that he identify the reports he was referring to so that his request could be processed.

On 15 July 2016, the applicant stated that such problems would include difficulties in prosecuting fixed charge offences due to problems with the delivery of FCNs and proving service, difficulties in prosecuting fixed charge offences generally, defendants being convicted of fixed charge offences despite having complied with a FCN, and errors in the records of the FCPS.

The Department issued a decision on the 5 October 2016, refusing the applicant's revised request under 15(1)(c) of the FOI Act, on the basis that the request remained voluminous and granting the request would cause a substantial and unreasonable interference with the work of the Department. Following internal review, the Department affirmed this decision. On 21 October 2016, the applicant sought a review by this Office of the Department's decision.

I have decided to conclude this review by way of a formal binding decision. In carrying out this review, I have had regard to the correspondence between the Department and the applicant, as set out above, and to the correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in refusing the applicant's request for records relating to problems associated with the operation of the FCPS for driving offences for the period 2012 - 2016 under section 15(1)(c) of the FOI Act on the ground that granting the request would cause a substantial and unreasonable interference with the work of the Department.

Analysis and Findings

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 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).

In its decision on the revised request, the Department stated that the focus of the request remained more appropriate for AGS as the body with responsibility for the operational aspects of the FCPS. However, it also stated that it jointly chairs the multi-agency Criminal Justice (FCPS) Working Group, charged with the oversight of implementation of Garda Síochána Inspectorate (GSI) recommendations in relation to the FCPS. It added that the working group has overseen the implementation of the short-term recommendations arising from the GSI report and that it currently continues to focus on implementation of medium to long term recommendations of GCI in relation to FCPS. It argued that an analysis of the possible relevant records indicated that the request was voluminous and fell to be refused under section 15(1)(c).

In a submission to this Office, the Department explained that the relevant records are held by its Crime Division which is responsible for providing crime policy advice to the Tánaiste and the Minister for Justice and Equality. It described the Division as a small and extremely busy unit and stated that there are just two members of staff in the Division working on road traffic matters. The Department stated that in so far as the Criminal Justice (FCPS) Working Group is concerned, the Crime Division hold a series of files concerned with the Group's work programme, meeting minutes, and agenda, in addition to files relating to subgroups of the Group, charged with considering various medium to long term GSI FCPS recommendations. It argued that in the absence of a precise request with clearly defined parameters, it was not feasible for the small number of staff to go through all potential records, both electronic and hard copy, held by the Division for the period in question to ascertain if such records might fall within the scope of the refined request.

Following a request by this Office for further clarification of the potential volume of records involved, the Department stated that it holds approximately 70 hard copy files relating to traffic matters in the Division, and it estimated that there may be as many as 14,000 pages for review within the files as the majority of its documents would reference the FCPS and FCNs. It stated that this does not include documents held on its database or email, parliamentary questions, briefing documents or other documents prepared for the use of the Tánaiste for Dáil business. It added that the Crime Division receives approximately 1,000 representations from members of the public each year and of these, approximately 20-30% related to traffic matters. As such, it estimated that there were approximately 800 representations relating to traffic matters for the period 2012 - 2015.

The Department further stated that the Criminal Justice (FCPS) Working Group is a cross-agency group with representatives from many Government departments and bodies. It stated that the FCPS report, which was published at the time and is available on the GSI's website, contains 37 recommendations and it is these recommendations that chiefly concern the Working Group. It stated that many of the recommendations were directed towards AGS but that other bodies such as the Department are the lead contact point in the case of some recommendations. It suggested that had the requester clearly stated which of the recommendations he wished to obtain information about, this would have assisted the Department in helping him with his query.

Having regard to the Department's explanation of the volume of records that would have to be examined to process the applicant's request I accept the Department's contention that granting the request would cause a substantial and unreasonable interference with, and disruption of, work in the Department, and more particularly within the functional area of the Crime Division. I find, therefore, that that the Department was justified in deciding that section 15(1)(c) should apply.

However, that is not the end of the matter. As I have outlined above, section 15(4) provides that an FOI 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). As can be seen from the background section of this decision as set out above, there were clearly a number of engagements between the parties in an effort to come up with a refined FOI request that would be acceptable to both parties. However, even after the parties agreed that the applicant's refinements as set out in his email of 20 May 2016 could be treated as a new request, the matter was unresolved as the Department sought further refinements based on its view that the "new" request remained voluminous. The Department made further suggestions and sought further clarification, particularly in respect of the scope of his request for records relating to "well-reported problems experienced in the operation of the FCN system".

While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), 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.

I might add that while there is an onus on FOI bodies to assist, or 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 and nature of records held. Nevertheless, it is also noteworthy that a request for access to records must contain sufficient particulars in relation to the 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 on a particular matter, becomes apparent.

In this case, the Department provided this Office with an explanation of why it considered the refined request to be voluminous. It gave a brief description of the types of records held and suggested how the requester might have made a more manageable request. It is unfortunate that the Department did not provide the applicant with that same information as had it done so, the applicant may have been better informed as to how he might refine his request. On balance, however, having regard to the exchanges of correspondence between the parties following receipt of his refined request of 20 May 2016, I am prepared to accept that the Department did, indeed, offer reasonable assistance to the applicant, such that it could be deemed to have complied with the requirements of section 15(4).

In conclusion, therefore, I find that the Department was justified in refusing the applicant's request for records relating to problems associated with the operation of the FCPS for driving offences for the period 2012 - 2016 under section 15(1)(c) of the FOI Act on the ground that granting the request would cause a substantial and unreasonable interference with the work of the Department.

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