Case number: 060358
On 25 May 2006, the applicant sought from the HSE all correspondence that Mr Aidan Browne of the HSE had with politicians, with [certain other persons] and with HSE staff; all correspondence sent by those persons about the applicant's family and the review into the circumstances of the taking into care of the applicant's children as well as minutes of meetings between the reviewers and persons interviewed. The HSE allocated reference number 063A-06 to that request. It estimated the cost of search and retrieval of the records at €62.85. It sought a deposit of 50% of the fee. On 23 June 2006 the applicant paid the fee in full but included a request for an explanation as to why it was being charged. On 5 August 2006 the applicant applied for an internal review of the "deemed refusal" of her request and again made reference to the fee paid. In its letter to the applicant of 7 November 2006, the HSE referred to the applicant's internal review application arising from the decision "together with the decision to charge a fee". It said that "an internal review cannot be undertaken in relation to the fee." My Office accepted the application of 11 November 2006 for review under section 34(1)(c) of the FOI Act. My staff put it to the applicant that the case might be settled but the applicant opted for a formal, binding decision as is her right.
This case is separate from the applicant's application for review under case reference 060306 arising from the decision of the HSE to withhold the records described above. My review in this case is concerned only with whether the HSE is justified in charging the applicant €62.85.
Section 47(1) of the FOI Act states that " a fee of such amount as may be appropriate having regard to the provisions of this section shall be charged by the public body concerned and paid by the requester concerned to the body in respect of the grant of a request under section 7."
Section 47 (2) provides that the amount of the fee shall be equal to " the estimated cost of the search for and retrieval of the record concerned ... as determined by the head concerned".
Section 47(3) states that "the amount of the cost of the search for and retrieval of a record shall be calculated at the rate of such amount per hour as stands prescribed for the time being in respect of the time that was spent, or ought, in the opinion of the head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently.....".
Calculation of amount
The HSE's position is that the fee of €62.85 is based on 3 hours of staff time spent locating and retrieving the records at €20.95 per hour (the current prescribed rate). It says that the request involved search and retrieval of files in the HSE corporate area in Dublin as well as searches of the Primary Community and Continuing Care (PCCC) offices in Meath. It says that, given the type of records involved, the work involved locating files in particular offices as well as checking with the persons mentioned in the request who might hold copies of relevant records. According to the HSE, the actual search and extraction of relevant records from various files took longer than 3 hours and the time taken in retrieving records held by the persons who conducted the review of the circumstances of the taking into care of the children was not included in the estimate.
Where a public body gives reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided by it, I am not inclined to interfere with that decision. However, it is important to note that, in this case, not all of the records identified in the search and retrieval process were released to the applicant. Section 47(1) of the FOI Act provides for the charging of a fee "in respect of the grant of a request...". Section 47(10) further provides for the refund of a deposit paid where a request is refused or is granted only in part although this case is not typical in that the applicant paid the fee sought in full rather than the deposit sought. My examination of the records shows that 20 (31%) of the 65 records identified as coming within the scope of that part of the request in respect of which the fee was charged (i.e. the Aidan Browne and PCCC records) were withheld by the HSE. The HSE does not dispute this and has informed my Office that it is prepared to refund 31% (€19.48) of the €62.85 paid by the applicant.
Having carried out a review under section 34(2) of the FOI Act, 1997, I hereby vary the decision of the HSE to charge a fee under section 47 of the Act and direct it to refund to the applicant the sum of €19.48.
A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.