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Mr X and Department of Defence (FOI Act 2014)

Case Number: 160411

Whether the refusal of access by the Department to records relating to investigations by the Ombudsman for the Defence Forces is justified under sections 15(1)(c) of the FOI Act

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

Background

On 17 June 2016, the applicant made an FOI request to the Department for six items of information relating to complaints to the Ombudsman for the Defence Forces in the period 1 January 2000 to 17 June 2016. By letter dated 24 June 2016, the Department granted access to two items and refused access to the remaining four items, on the basis that they were exempt from release under section 15(1)(c) of the FOI Act. On 2 August 2016, the applicant applied for an internal review in respect of the withheld records. By letter dated 22 August 2016, the Department issued its internal review decision, in which it affirmed its original decision under section 15(1)(c). In its internal review decision, the Department also referred to other provisions of the FOI Act: sections 6, 31(1), 35(1) 37(1) and Schedule 1 Part 1 of the FOI Act. On 27 September 2016, the applicant applied to this Office for a review of the Department's decision.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.

Scope of the Review

As noted above, in its internal review decision, the Department invoked further exemptions in addition to section 15(1)(c) of the FOI Act: sections 6, 31(1)(a), 35(1), 37(1) and Schedule 1 Part 1 of the FOI Act. However, the basis of an argument under section 15(1)(c) is that the retrieval and examination of the records involved would cause a substantial and unreasonable interference with the FOI body's work. In the circumstances, I do not accept that it is appropriate for the Department simultaneously to claim other exemptions under the FOI Act, since according to its own submissions, it has not retrieved and reviewed the records for the purposes of considering which exemptions may apply to each of them. Therefore, I do not propose to consider its submissions under sections 31, 35 or 37 of the FOI Act.

However, I will consider section 6 and Schedule 1 Part 1. This is because if Schedule 1 Part 1 applies so as to exclude the records from the application of the FOI Act, it is not necessary to consider whether section 15(1)(c) applies.

Accordingly, the question for me is whether the Department is justified in refusing access to the records under section 6 and Schedule 1 Part 1 or under 15(1)(c) of the FOI Act.

Analysis and Findings

Section 6 - Public Bodies &
Schedule 1 Part 1 - Partially included agencies

Section 6 of the FOI Act defines those bodies which are "public bodies" (and therefore "FOI bodies") for the purposes of accessing records under the FOI Act. Part 1 of Schedule 1 to the FOI Act lists bodies which are only partially included under section 6 of the FOI Act.

In its internal review decision, the Department submits that the records cannot be released under the FOI Act, since the Ombudsman for the Defence Forces is a partially included agency under Schedule 1 Part 1 insofar as records related to an examination or investigation carried out by the Ombudsman for the Defence Forces are concerned.

It is true that paragraph (ad) of Part 1 of Schedule 1 to the Act provides that section 6 of the FOI Act does not apply to the Ombudsman for the Defence Forces, insofar as it relates to records concerning an investigation or examination carried out by the Ombudsman for the Defence Forces under the Ombudsman (Defence Forces) Act 2004.

However, the applicant made his FOI request to the Department, which is not a partially included agency under the FOI Act and to which section 6 of the FOI Act applies fully. The Department did not refuse access to the records on the basis that it did not hold them; it refused access on the basis that it would cause a substantial interference with its work to retrieve them.

I find that the Department is not justified in refusing access to the records on the basis that the Ombudsman for the Defence Forces is a partially included agency. I am satisfied that the FOI Act applies to the records concerned.

Section 15(1)(c) - Refusal on administrative grounds

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request if granting the request would cause a substantial and unreasonable interference or disruption of the work of the FOI body.

Section 15(4) of the FOI Act provides that FOI bodies are not entitled to rely on section 15(1)(c) unless they have assisted or offered to assist the requester to amend the request so that it no longer falls within section 15(1)(c). Therefore, this is the first issue which should be considered in any case in which an FOI body is relying on section 15(1)(c).

During this review, this Office asked the Department to point to when and how it had offered the applicant assistance under section 15(4). In response, the Department refers to email correspondence between it and the applicant. By email dated 22 June 2016, the Department said: "I refer to our conversation earlier in which the possible narrowing of the focus of your FOI request was suggested. Perhaps you would confirm my understanding that it is your wish to suspend the FOI request in lieu of a meeting on the matters raised. Otherwise, the Department will proceed with processing of the FOI request." By email of the same date, the applicant replied: "The questions I have raised in the FOIs you refer to could be dealt with by way of a meeting with a senior member of the staff of the Department of Defence. It is important that the person in question would be a person who, has now and had in the period referred to in my FOI, been in a decision making position. I am not in a position to suspend my FOIs until the person selected by the Department to meet with me has been named and I am satisfied that this person is of a sufficiently senior position to deal with all of my queries. I am anxious to work with the Department on these important issues which I feel are of public interest. I look forward to hearing from you." The Department then issued its decision by letter dated 24 June 2016.

In conversation with this Office, the applicant confirmed that the Department had asked him to narrow the scope of his request and that he had then asked to be put in touch with someone with decision-making authority in relation to one of the complaints to the Ombudsman for the Defence Forces. However, according to the applicant, this had not happened. The applicant also said that at this point, he could not see a way of narrowing the scope of his FOI request.

The FOI Act is silent on the precise nature or level of assistance to be offered under section 15(4). However, this Office considers that the mere offer to amend a request so that it no longer falls to be refused is of itself not sufficient for the purposes of compliance. This is given the general requirement on FOI bodies under section 11(2) of the FOI Act to give reasonable assistance to requesters in relation to the making of requests. The level or nature of the assistance to be provided will depend on the particular facts of the case and will often depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances. In that regard, requesters are often well placed to offer suggestions as to a more focused request, based on their knowledge of the type of information they wish to access. Equally, an FOI body might usefully explain in broad terms the nature and extent of the records and any particular issues as regards their retrieval.

Section 15(1)(c) is an explicit acknowledgment 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 often limited resources. However, section 15(4) envisages that the FOI body and the requester should, between them, attempt to amend the request.

In the circumstances and on balance, I am not satisfied that the Department has complied with section 15(4) of the FOI Act. The Department is clearly better placed than the applicant to offer practical suggestions as to how the request may be narrowed. If the applicant cannot see a way of narrowing the scope of his request at this point in time, I believe that it is partly because the Department has not offered him sufficient assistance. The Department's detailed submissions to this Office indicate that there exist various records, stored in different places, which may be relevant to the applicant's FOI request. Yet, the Department has not provided this Office with evidence of having assisted the applicant to refine his request in light of the way in which the various records are stored. The applicant's email of 22 June 2016 indicates to me an attempt on his part to engage with the Department about his FOI request, which does not appear to have been followed up.

Having said all of this, I recognise of course that the Department may be in a position, following meaningful engagement with the applicant under section 15(4), to justify the section 15(1)(c) exemption having regard to all the circumstances. I fully accept that the Department is entitled to have regard to the impact that processing an FOI request such as this would have on its work.

Decision

I annul the Department's decision on the records, on the basis that it has not properly complied with section 15(4) of the FOI Act. I direct the Department to undertake a fresh consideration of the applicant's FOI request and, if the applicant requires this following assistance or the offer of assistance under section 15(4), to take a new, first instance, decision on the records.

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.



Elizabeth Dolan
Senior Investigator