X and the National Sports Campus Development Authority

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 02 November 2015
• Case Outcome: The Commissioner varied the NSCDA's decision. He found that it had not justified its decision to refuse access to most of the records under sections 22(1)(a), 22(1)(b) and 23(1)(a)(iv) of the FOI Act; he annulled those parts of the decision. He found that the NSCDA had justified its decision to refuse access to one record under section 22(1)(a) of the Act. He directed the release of records subject to the redaction of personal information of third parties under section 28 of the Act. He was not satisfied that a finding could be made that section 10(1)(a) applies to the effective refusal of access to any further records held that fell within the reduced scope of the request. He annulled that part of the decision and directed the NSCDA to undertake a fresh decision making process on those records.
• Court: Information Commission
• Record Number: 150068
• Respondent: National Sports Campus Development Authority

Whether the NSCDA was justified in refusing a request for access to records of certain correspondence between the NSCDA and its advisers about the National Aquatic Centre and a VAT dispute under sections 10(1)(a), 22(1)(a), 22(1)(b) and 23(1)(a)(iv) of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by the Information Commissioner

Background

The FOI request which gave rise to this review was first made to the NSCDA in late 2012. The applicant originally sought access to all records held concerning VAT on the lease of the National Aquatic Centre between 15 May 2003 and 20 February 2012, all advices on that matter and on the dispute with the applicant's company in the same period. This application for review came about as a result of a public body failing to appreciate its statutory obligations under the FOI Act and failing to comply with the directions I gave in a previous decision on the same issue (Case Reference 130027 and 130058 on www.oic.ie). That previous decision sets out the background to the parties' dispute, including litigation, which I will not repeat here.

Almost three years after the original FOI request, I have to make another decision on a matter that could and should have been concluded within a much shorter timeframe, had the NSCDA properly complied with the requirements of the FOI Act. Its handling of both the previous request and of the process which gave rise to this latest review has been most unsatisfactory. In fact, as will become clear later in this decision, a significant premise of the NSCDA's argument against release of the records would not have been an issue at all had the requests been properly decided upon from the outset.

In the course of this review, I had to serve notice on the Chief Executive of the NSCDA under the provisions of section 37(1)(a) of the FOI Act, formally requiring him to attend before me for the purpose of furnishing information necessary to conduct my review. While attendance of the Chief Executive at my Office was ultimately not required, since the necessary decision was eventually communicated to the applicant, the necessity to resort to this rarely used power is indicative of the difficulty my Office encountered in conducting the review.

Previous Direction and requirements of a new decision
In November 2012, the applicant sought access to records held by the NSCDA. Following my review, I found that the NSCDA had not justified its finding that the applicant's request formed part of a pattern of manifestly unreasonable requests for information. In October 2014, I annulled the decision and directed that the NSCDA undertake a fresh decision making process in accordance with the requirements of section 8 of the FOI Act. That new decision making process should have involved a consideration by the NSCDA of the applicant's original request, a fresh decision and internal review decision if necessary. The time for beginning a new decision making process should have commenced no more than eight weeks after 3 October 2014. However, a new decision making process was not initiated by the NSCDA until three months after that decision.

Deemed Refusal
On 12 January 2015, the NSCDA wrote to the applicant and explained that it was considering his original request as a result of my October 2014 decision and that a new decision would issue to him within three weeks. On 11 February 2015, having received no decision from the NSCDA, the applicant requested an internal review on the basis of a deemed refusal of his original request. However, the NSCDA failed to issue an internal review decision within the three weeks provided for at section 14(4) of the FOI Act. Consequently, the applicant applied to this Office on 4 March 2015 for a review, on the basis of a deemed refusal.

Further, on 6 March 2015, the NSCDA advised the applicant that it was considering refusing his request on the basis of section 10(1)(c) of the FOI Act. Section 10(1)(c) provides that a request for a record may be refused if granting the request would cause substantial and unreasonable interference with, or disruption of, the work of the public body. However, section 10(2) requires that a request shall not be refused under section 10(1)(c) unless the body has assisted, or offered to assist, the requester concerned in an endeavour to amend the request that it no longer falls within the parameters of section 10(1)(c). The NSCDA advised the applicant that under the provisions of section 10(2), it was inviting him to narrow or refine the scope of his request such that it no longer fell within section 10(1)(c).

Narrowed Scope
My Office subsequently advised the NSCDA that it did not accept that its letter of 6 March was an internal review decision, as provided for at section 14(4) of the FOI Act. It seems to me that the Act requires that, if a public body believes that section 10(1)(c) might apply, this must be invoked within the statutory time periods. Otherwise, the deemed refusal provisions of section 41 apply when decisions are not given within the statutory periods. The Office further advised the NSCDA that the applicant's application for review had been accepted on the basis of a deemed refusal. Following communications between this Office, the applicant and the NSCDA, in an effort to bring the matter to a satisfactory conclusion and to avoid my Office having to annul the refusal and remit it to the public body for a second time, the applicant wrote to the NSCDA on 18 March 2015 and narrowed the scope of his request to:

" All emails received by Mr. David Conway, Mr. Sean Benton, Mr. Donagh Morgan and Ms. Laura Magahy from the following [professional services firm] personnel... [four named individuals]...between 1st May 2003 and 20 February 2011."

Section 37
Having accepted the applicant's narrowed request of the 18 March, 2015, the NSCDA stated that it would make a decision by 17 April. However, on 16 April, the NSCDA said that it would not be in a position to issue a decision until 24 April. I considered that this further delay was unacceptable. While the result of the NSCDA's consideration of the narrowed scope request is referred to here as a "decision" or "internal review decision", it was well outside of the statutory time limits in the FOI Act and its status was, I believe, closer to that of an "effective position" statement. This arose because the Act did not envisage that a direction from my Office would not be complied with in a timely manner; neither was it envisaged that I would have to consider annulling a decision for a second time. Thus, my Office attempted to ensure that the applicant secured some response from the public body together with the independent review to which he was entitled. On 24 April 2015, my Office wrote to the Chief Executive of the NSCDA, under the provisions of section 37(1)(a) of the FOI Act, requiring him to attend before me for the purpose of providing information on the following:

"(a) the NSCDA's decision as issued to the applicant on the matter, or (b) an explanation as to why the NSCDA has not made a decision on [the applicant's] request, despite a direction from the Commissioner in his decision of 3 October 2014 and (c) in the event that a decision has been made and that certain records are being withheld, copies of those records and a statement of the reasons for that decision with reference to the exemptions relied upon and the public interest balancing tests applied where relevant."

The section 37 letter overlapped with an internal review decision of the NSCDA being forwarded to the applicant. While an electronic version of that letter was received in my Office after office hours on 24 April (effectively received on 27 April), the hard copy letter to the applicant was undated. On foot of that decision letter to the applicant, I decided to suspend the requirement that the Chief Executive attend.

I note here that had the NSCDA complied with the directions I gave in my decision of 3 October 2014, it would have been reasonable for the applicant to anticipate receiving an internal review decision by the third week in January 2015. However, as can be seen from the events described above, a purported decision was not issued to the applicant for a further three months beyond that anticipated deadline and then only as a result of my Office's intervention.

NSCDA's position on the records identified
In its internal review decision, the NSCDA identified a total of 77 records relating to the applicant's request. The NSCDA refused access to 54 records on the basis of section 22(1)(a); those 54 records and one other were also withheld on the basis of section 22(1)(b); 19 records were withheld on the basis that they were "not relevant" to the applicant's request. The NSCDA also referred to the discretionary exemption at section 23(1)(a)(iv) but did not provide details about the records to which it had applied that exemption. Three records were released to the applicant. The NSCDA did not at this stage provide the applicant with a schedule identifying the records and the related exemptions. Consequently, the applicant was not in a position to know which exemption had been applied to which record.

I am mindful of the responsibilities and obligations that public bodies have under the FOI Act. However, I do not accept that the NSCDA's staff and legal advisers can have been unaware of the requirements of a proper decision, the necessity to give reasons for withholding records under the various exemptions and my Office's requirements on review. I would remind public bodies generally that the Department of Public Expenditure and Reform's Central Policy Unit (CPU) website is a useful resource in relation to the Act's operation. Staff from my Office were in contact with both the applicant and the NSCDA in an effort to clarify, in particular, the statutory timescales and the...