Whether the Department was justified in its decision to refuse the applicant-�s request for access to information relating to Unilateral Declarations under section 15(1)(b) of the FOI Act

27 January 2023

Background

In a request dated 26 July 2022, the applicant made a two-part request which essentially sought the following:

• Information on how many times since 2000 the Department, in conjunction with the Attorney General on behalf of the Irish State, invoked a -�Unilateral Declaration-� to prevent Irish citizens from bringing a case before the European Court of Human Rights (the ECHR) with the co-operation and acceptance of the ECHR
• Information on what undertakings, agreements and obligations have been made or entered into by the Irish Government with the ECHR or the European Commission to allow the Irish State to invoke a -�Unilateral Declaration-� on an Irish citizen.

In a decision dated 2 September 2022, the Department refused the applicant-�s request under section 15(1)(b) of the FOI Act, on the basis that the request did not comply with the requirements of section 12(1)(b) as it was too broad. The applicant sought an internal review of that decision, and on 26 October 2022, the Department affirmed its original decision.

On 4 January 2023, the applicant applied to this Office for a review of the Department-�s decision.

During the course of this review, the Department confirmed to this Office that it did not assist the applicant so that his request would not be refused on the basis of section 15(1)(b), nor did it seek to clarify his request. I also understand that the Department has identified some records which may relate to the applicant-�s request on foot of his application to this Office, which appears to have provided some insight into the categories of records he sought.

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 correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. 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 Department was justified in its decision to refuse the applicant-�s request for information relating to Unilateral Declarations under section 15(1)(b) of the FOI Act.

Analysis and Findings

Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps.

It is important to note, however, that section 15(1)(b) is subject to section 15(4) of the FOI Act. Section 15(4) provides that a body cannot refuse a request under section 15(1)(b) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refused under section 15(1)(b).

As noted above, in its correspondence with this office, the Department confirmed that it did not offer assistance to the applicant to amend his request in this instance. It is therefore clear that the Department failed to comply with the provisions of section 15(4).

In the circumstances, as the Department did not provide assistance or offer assistance to the applicant in accordance with section 15(4), I find that it was not justified in its decision to refuse the request under section 15(1)(b).

As the Department has indicated that it may have located some records relating to the applicant-�s request, which have not been the subject of a first instance decision by the Department, I do not consider it appropriate to direct their release. Accordingly, I annul the decision of the Department in this case and direct it to make a new decision on the applicant-�s request, in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department-�s new decision. In making its decision, should the Department wish to rely on section 15(1)(b) in respect of any part of the applicant-�s request, it must have regard to its obligations under section 15(4) of the FOI Act.

Additional comments

For the benefit of the parties, I would like to make the following additional comments.

Firstly, the applicant should note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Finally, 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)(b), 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, nature and/or location of records held. Nevertheless, as outlined above, section 12(1)(b) provides 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. Accordingly, I would expect the applicant to engage with the Department to clarify the precise nature of the records sought in this case, where necessary.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case on the basis that it failed to offer assistance to the applicant under section 15(4) of the FOI Act. I direct the Department to conduct a new decision-making process on the applicant-�s request.

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.
 

Sandra Murdiff
Investigator