Whether the IDA was justified in refusing access to records relating to the fit-out of new offices under section 36(1) of the FOI Act

10 July 2020

Background

On 13 January 2020, the applicant made an FOI request to the IDA for the amounts spent on specified items in the fit-out of the new IDA offices, the numbers of such items and purchase prices for certain items. On 10 February 2020, the IDA granted access to some information and refused access to other information under section 36(1) of the FOI Act. It did not issue a schedule of records. On 11 February 2020 the applicant applied for an internal review. On 6 March 2020, the IDA issued an internal review decision, in which it affirmed its original decision, under sections 35 and 36 of the FOI Act. On 9 March 2020, the applicant applied to this Office for a review of the IDA's decision.

In conducting this review, I have had regard to the correspondence between the IDA and the applicant as described above, as well to correspondence between this Office and both the applicant and the IDA.

Scope of Review

The IDA released further information to the applicant during the review. The applicant confirmed to the Investigator that he wishes to proceed with the review in respect of the remaining information which he sought. The IDA did not seek to rely on section 35 of the FOI Act during the review process. This review is concerned with whether the IDA was justified in its decision to refuse access to information under section 36(1) of the FOI Act.

Preliminary Matters

It is important to note that requests for information are not valid requests under the FOI Act, except insofar as the request can reasonably be inferred to be a request for records containing the information sought. Furthermore, the FOI Act does not require public bodies to create records if none exist. This is apart from a specific requirement under section 17(4) to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the FOI body must take reasonable steps to search for and extract the records to which the request relates. Finally, a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body.

Analysis and Findings

The IDA did not issue a schedule of records in this case. The FOI Act does not require a schedule. However, scheduling of records is recognised as best practice, since it enables the applicant, decision-makers and any subsequent reviewers to see, in an accessible format, the nature and extent of the records within the scope of the request, whether they are to be released in whole or part as well as the exemptions, if any, being claimed. The only record which the IDA provided to this Office is a record which it created in response to the applicant’s FOI request. During the review process, the Investigator asked the IDA to specify the records about which it made its original and internal review decisions. The IDA said that there are no specific records about which the IDA made its decision other than the record which it created in order to respond to the FOI request. I understand from correspondence with the IDA that there exists a separate document which contains some of the information sought. However, the IDA does not appear to have conducted a record-by-record examination when deciding to refuse access to the information under section 36(1) of the FOI Act.

It seems to me that in this case, the IDA should have considered matters such as: whether records containing the information sought exist and satisfied itself as to whether and where they are held; whether a service-provider possesses any relevant records and whether the IDA is required to take reasonable steps to search for and extract the information sought, under section 17(4). However, I do not consider that it is appropriate or feasible in this case for the Commissioner to carry out the IDA's role in making a first-instance decision and I make no findings on any of these points.

I have considered this matter carefully and had regard to the fact that third party interests may be affected. In the circumstances, I have decided that the appropriate course of action is to annul the IDA’s decision and direct it to conduct a new decision-making process in accordance with the FOI Act. If the applicant is unhappy with the IDA’s new decision, he will be entitled to an internal review and to apply to my Office for a review of the IDA’s decision in the normal course.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the decision of the IDA and direct the IDA to conduct a new decision-making process on the applicant’s FOI request in accordance with the FOI Act.

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