Case number: 090176
Whether the HSE is justified under section 47 of the FOI Act, in its decision to charge a fee of €92.00 in respect of the estimated cost of photocopying records relating to her personal information and that of her children.
The Commissioner found that, in the particular circumstances of this case, the HSE is not justified under section 47 of the FOI Act in its decision to charge a fee for the copying of the records in advance of any decision as to whether they will be released to the applicant.
The HSE's decision of 24 April 2009 to charge a fee for photocopying records was in response to an FOI request it received from the Applicant on 15 April 2009 seeking access to records held by social workers about the Applicant and her children. Whilst the HSE's letter of 24 April 2009 did not indicate that it had decided to release the records; it said that ''the volume of records to be copied is such that the HSE propose to exercise its right to levy an appropriate charge. The estimate photocopying cost involved is €92.00 (4 cent per copy x 2,300 records approximately). A deposit of €46.00 was requested. The Applicant submitted an internal review application to the HSE on 6 May 2009 in which she said that she was totally dependant on social welfare and was not in a position to pay the fee. The decision letter stated that no ''search fee" was being charged and that the copying fee estimate was reasonable as was the seeking of a deposit which would be returned where the request is refused. The internal reviewer went on to advise that it might be possible to amend the request so as to reduce the number of records involved which might result in the reduction or elimination of the fee or deposit in this case.The Applicant applied to my office on 9 july 2009 for a review of the hse's decision.
i note that elizabeth dolan, senior investigator of my office, set out her preliminary views to the hse on 23 november 2009 and on 25 november 2009 in this case and that the hse indicated that it disagreed with her approach. i consider that i should now bring this review to a close by the issue of a formal, binding decision.
In conducting this review I have had regard to the submissions of the HSE as well as those of the Applicant (including those made to the HSE) and to the provisions of the FOI Acts.
Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner (the Commissioner).
This review is concerned solely with the question of whether the HSE is justified under the FOI Act in its decision to charge a fee of €92.00 including a deposit of €46.00 in respect of the estimated cost of photocopying of the records the subject of the FOI request.
The position in relation to the charging of fees under the FOI Act is set out in section 47 of the Act. Section 47(1) provides for the charging of fees -
"of such amount as may be appropriate having regard to the provisions of this section... ".
Section 47(1) also provides for there payment of such fees by the requester "in respect of the grant of a request under section 7."
Section 47(2) states that the amount of a fee under this section shall be equal to:
"(a) the estimated cost of the search for and retrieval of the record concerned, and
(b) the estimated cost of any copy of the record made by the public body concerned for the requester concerned".
Section 47(3) relates to the amount that can be charged and states that :
" (a) 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, and
(b) the amount of the cost specified in subsection 92)(b) shall not exceed such amount (if any) as stands prescribed for the time being and the determination of that amount shall be in compliance with any provisions standing prescribed for the time being in relation to such determination".
The rates referred to in section 47(3) were prescribed in the Freedom of Information Act, 1997 (Section 47(3)) Regulations, 1998 [Statutory Instrument No. 139 of 1998] at £16.50 (= € 20.95) per hour and 3 pence (= 4c per photocopied sheet).
Section 47(4) of the FOI Act provides that:
''Where the record or records concerned contain or contains only personal information relating to the requester concerned, then, in calculating the amount of the fee under subsection (1) -......[paragraph (b) of subsection (2)] shall be disregarded if, in the opinion of the head concerned, it would not be reasonable, having regard to the means of the requester and the nature of the record concerned, to include the cost specified in that paragraph in the calculation."
Further, section 47(7) provides that, where the estimated cost of the search and retrieval of a record is likely to exceed €50.80, a deposit of not less than 20% of the estimated cost shall be charged by the public body. Under section 47(7)(b) a public body is required, if seeking a deposit, to request this in writing from the requester within 2 weeks of receipt of the request and to include an estimate of the length of time that the process of searching and retrieval of the record will take. Section 47(7)(b) further provides that the process of search and retrieval shall not commence until the deposit has been paid.
Under section 47(8) the public body, shall, if requested to do so by the requester, specify the amendments, if any, to the request that would reduce or eliminate the deposit.
The provisions of section 47 are quite complex and place significant demands on public bodies if they are to be properly applied. While there is reference in the internal review decision to the charging of a deposit ''where the total search and retrieval fee together with photocopying is likely to exceed €50.79", it is clear from the original decision, the internal review decision and the submissions of the HSE to my Office that the HSE had decided not to charge any search and retrieval fee in respect of the 7 volumes of records identified as being covered by the applicant's request. Instead, a decision was taken to apply the photocopying charge at the prescribed rate.
The issue I have to decide is whether, in the circumstances of this case, this is an option for which the statute provides and, if so, whether it has been properly applied. It is not in dispute that the records contain personal information relating to the applicant and her children.
It is clear from the scheme of section 47 and explicitly stated in section 47(2) that the fee to be charged is divided into (a) the estimated cost of the search for and retrieval of the records and (b) the estimated cost of copies made of the records by the public body. Given the provisions of section 47(4), the HSE would have been entitled to consider including a search and retrieval fee in accordance with subsection (a) in assessing the amount of the fee because, although the records contain personal information relating to the requester, the estimated total of 2,300 pages of records, is, by any standards, " a significant number of records''. However, the HSE's decision is confined to the charging of a photocopying fee; therefore subsection (b) is the relevant provision. I will return to this later.
The HSE's decision provides a formal estimate of the photocopying costs and requests a deposit of €46.00. However, the unambiguous requirement of section 47(7) is that such a deposit shall be charged where the ''estimated cost of the search and retrieval of the record" is likely to exceed €57.79 (40 pounds). In fact, all of section 47(7) is confined to the search and retrieval process; it has no provisions in relation to photocopying fees.
Section 47(4) (b) of the Act provides that the photocopying fee prescribed in section 47(2)(b) shall be disregarded where the decision maker is of the opinion that it would not be reasonable, having regard to the means of the requester and the nature of the records concerned, to include that cost in the calculation. The applicant made reference to this provision in her application to my Office. She said that her income is limited to welfare allowances and that she has two children to care for. The HSE's response quoted the section 47(4)(b) provision but did not refute the applicant's claim in regard to her means. It said that it applies the charges in accordance with the guidelines of the Department of Finance's Central Policy Unit (Notice No. 11) and that charges are not applied in respect of photocopying where requests for personal information cover 250 records or less. It pointed out that the applicant did not respond to invitations to refine the request which may have had the effect of eliminating the fee. It stated that it considered it reasonable to levy the €92.00 charge where no charge had been made for search and retrieval and the number of records involved is substantial.
My Office, in an effort to clarify whether the case could be settled, asked the HSE whether a decision had been taken to release all of the records as, if some material was to be refused as exempt or redacted, this would have implications for the photocopying charges. The HSE was also invited to clarify possible options for refining or reducing the number of the records i.e. what kind of records could the applicant possibly leave out in response to its invitation to reduce the number of records? In addition, my Office asked if the HSE had a policy or practice as regards the means of requesters when levying photocopying charges. In response, the HSE said that no processing of the request would commence until the deposit is received. It confirmed that if records were found to be exempt and thus did not fall to be copied, the applicant would be charged only for the records actually provided. Although the HSE did not expand on the type of records that might be omitted if the applicant was to refine her request, it did say that the case is the subject of court proceedings. It provided no further information on the issue of the applicant's means but reiterated its position that no search and retrieval fees were applied in this case and that the applicant had the option of reducing the scope of her request.
Elizabeth Dolan, Senior Investigator in my Office notified the HSE of her preliminary view that the various provisions of section 47 appeared to provide that the photocopying charge cannot be applied before the records are examined and quantified and that the charge and deposit might not be in accordance with section 47 of the Act. She drew the HSE's attention to section 47(7) which is confined to search and retrieval fees and suggested that her interpretation is supported by the provisions of section 47(10) of the Act which relates to deposits and the refund of a fee in cases where a request is refused or granted only in part.
Having examined the scheme of section 47 as a whole, I have come to the conclusion that what the HSE proposed to do in this case i.e. to levy a photocopying fee in advance of consideration of the records and to require a deposit under section 47(7) without applying a search and retrieval fee, is not permitted under the FOI Act.
If the HSE wishes to consider the charging of a photocopying fee under section 47(2)(b), it seems to me that it is bound, when it has decided how many pages of records fall to be released, to consider section 47(4)(b) and to form an opinion as to whether the charging of the fee is reasonable having regard to both the means of the requester and the nature of the records concerned. Given that the Oireachtas put such a provision into the FOI Act, it is not open to public bodies to disregard it.
Although it forms no part of my formal decision, I should add here that I have some sympathy with the HSE's position that it must seek to use resources wisely and is trying to avoid a situation where many hours are spent scheduling and copying records when a requester might refuse to pay the copying charges. Clearly, managers in the various areas are under increasing pressure to account for resources and to avail of approved revenue generating provisions where possible. However, the fee regime in section 47 is structured in such a way as to allow public bodies not to commence the search and retrieval process until a deposit in respect of the estimated cost of this process has been paid and there are specific provisions in relation to personal information which must be considered.
Having carried out a review under section 34(2) of the FOI Act 1997 (as amended) I hereby annul the decision of the HSE in this case in relation to the estimated fee of €92.00.
A party to a review, or any other person affected by a decision of the Information 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 decision.