Responding to Freedom of Information requests during the Covid-19 pandemic

In A&B c/o XYZ Solicitors and Department of Education, the Office of the Information Commissioner (“OIC”) addressed the question of processing Freedom of Information ("FOI") requests while dealing with Covid-19 business disruptions. 

The Department of Public Expenditure and Reform’s Central Processing Unit has previously issued guidance on the continuity of FOI services during the pandemic (the “Covid-19 Guidance”). It clarifies that the FOI Act remains in force notwithstanding the pandemic, and that arrangements should be put in place to ensure that requests are processed to the “greatest extent possible”. FOI bodies should constructively engage with FOI requesters to try and reach an arrangement to satisfy the request. FOI requesters are urged to take a pragmatic and proportionate approach and work with FOI bodies.

In A&B the requester sought records on the designation of land for educational purposes. The Department of Education refused access, citing the disruption caused by Covid-19 but without citing any section of the FOI Act. Processing hardcopy records would, it said, impose an unreasonable workload having regard to resourcing and remote working. 

On review by the OIC, the Department confirmed it was not relying on Section 15(1)(c) (substantial and unreasonable interference with or disruption of work). It said the reason the request could not be finalised was Covid-19 restrictions which limited access to the office preventing the decision maker from accessing paper records. The Department acknowledged that the FOI Act did not cover this eventuality, but considered it to be a proportionate response in the circumstances.

The OIC decided as follows: as the decision was not made within the scheme of the FOI Act, the Department’s decision was annulled and remitted back for fresh consideration. No information was put before the OIC of the outcome of efforts to engage with the requester, nor whether electronic records had been considered. While appreciative of the Department’s difficulties, the OIC was of the view that it had insufficient regard to the Covid-19 guidance in its decision. 

Along with the Covid-19 Guidance, this decision is of assistance for FOI bodies during the current, and any future, restrictions: 

• Notwithstanding the difficulties presented by the pandemic, requests must continue to be processed within and with reference to the FOI Act.

• FOI bodies should have regard to the Covid-19 Guidance, along with any other relevant guidance, and implement arrangements in order to meet their objectives to the greatest extent possible.

• At the same time, FOI bodies should engage constructively with requesters. This might include, for instance, agreeing to limit requests to electronic records. Failing agreement, consideration can be given to whether the forms of administrative refusal in Section 15 of the FOI Act are engaged.

For further information or advice, please contact Patrick McClean and John Anthony Devlin or any member of the ByrneWallace LLP Health and Social Care team.