Case number: 160284
This review follows a previous decision of this Office in relation to the applicant's request for records. On 13 April 2016, this Office annulled a decision of the Department to refuse part of the applicant's request for certain records under section 15(1)(c) in view of its failure to assist, or offer to assist, the applicant to amend the request, as required under section 15(4). The Senior Investigator directed the Department to make a new, first instance, decision on the relevant part of his request.
Following on from that decision, the Department subsequently engaged with the applicant to allow him an opportunity to narrow the scope of his request, following which he submitted a revised request by email dated 20 May 2016. On 8 June 2016, the Department notified the applicant that the estimated cost of €1,440 for the search for, and retrieval of, relevant records was in excess of the overall prescribed limit of €700. However, the Department informed the applicant that it had decided to process the request in accordance with section 27(12)(a)(iv) of the Act. It notified him that he would be required to pay the full amount of the estimated search and retrieval costs, not exceeding €500, and that he would be required to pay a €100 deposit.
The applicant sought an internal review of the Department's decision to charge a fee of €500. On review, the Department affirmed its decision to charge the fee. On 1 July 2016, the applicant sought a review by this Office of that decision.
I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and the Department, outlined above, and to correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the guidance provided by the Central Policy Unit of the Department of Public Expenditure and Reform (CPU) in Guidance Note 6 (REV) on Fees and Charges (available at www.foi.gov.ie) relating to the procedures to be followed under section 27(12) of the FOI Act.
This review is concerned solely with the question of whether the Department was justified in its decision to charge a fee of €500 for the search for and retrieval of the records sought.
I should say at the outset that the relevant provisions in the FOI Act relating to the charging of fees for search for and retrieval and copying (SRC) of records are quite complex. They are also subject to strict requirements and time-frames which can prove challenging for FOI bodies to meet, given the complexity of the issues to be considered.
Section 27(1) provides for the mandatory charging by FOI bodies for the estimated cost of the search for and retrieval and copying of records in respect of the grant of an FOI request. Section 27(3) provides that, subject to section 27(12), the total amount of a charge shall not exceed the prescribed maximum amount, currently €500.
The FOI Act 2014 also introduced, for the first time, a provision which allows an FOI body to refuse to process a request where the amount of a search and retrieval and copying charge exceeds, or is likely to exceed, a prescribed amount, currently €700. This is referred to as the overall ceiling limit. However, before the body can refuse to process a request on those grounds, it must first offer to assist the requester in amending or limiting the request to bring the charge below the overall ceiling limit. Furthermore, where the requester does not amend or limit the request such that the charge arising or likely to arise is reduced to an amount less than or equal to the overall ceiling limit, the body may still decide to process the request, in which case the requester will be required to pay the full charge. The prescribed maximum amount of €500 for SRC charges does not apply in such circumstances. However, the body must also comply with the provisions of section 27(5).
Under section 27(5), where the estimated cost of the SRC is likely to exceed the prescribed minimum level, currently €101, the FOI body must charge a deposit of at least 20% of that cost. In accordance with section 27(5), the body must, not later than two weeks after the receipt of the request, issue a notice in writing to the requester requiring the payment of the deposit. Section 27(7) provides that where section 27(5) applies, the body must, if requested by the requester, assist the requester to amend or limit the request in order to reduce or eliminate the charges that arise or are likely to arise under section 27(1).
It is also important to note that the application of section 27(12) is mandatory. Therefore, where the SRC charge exceeds or is likely to exceed the overall ceiling limit of €700, the body must follow the procedures outlined in the section. It must notify the requester that the charge exceeds or is likely to exceed the overall ceiling limit of €700, and it must offer to assist the requester in amending the request in order to reduce the charge to an amount less than or equal to €700. Furthermore, given that the body must also comply with the provisions of section 27(5), it must also issue a notice, not later than two weeks after the receipt of the request, requiring the payment of a deposit in the event that the requester amends the request or the body decides to process the request regardless of any amendment.
The Central Policy Unit (CPU) of the Department of Public Expenditure and Reform has published a Guidance Note on Fees and Charges (available at www.foi.gov.ie) to assist FOI bodies in ensuring compliance with the provisions of section 27. The Note describes the procedures that must be followed by FOI bodies when applying the provisions of section 27(12). The procedures outlined are as follows:
i. Letter telling requester that his/her request is to be refused under Section 27(12) and offering assistance in refining the request must issue within 10 working days or request cannot be refused on that basis;
ii. In order to charge fees for the refined request, the letter issuing under Section 27(12) must also request a deposit in the event that the request is refined;
iii. A specific deposit must be requested and should be calculated as a proportion of the appropriate maximum amount (currently €500, 20% of which is €100);
iv. The FOI clock stops once this letter issues (including the request for a deposit);
v. If letter does not issue within 10 working days informing the requester that his/her request exceeds the overall ceiling limit, the request cannot be refused on that basis and no fees can be charged;
vi. When a request is refined under Section 27(12), the refined request does not constitute a new FOI request but the clock starts again when the deposit is paid.
This particular case has been further complicated by the fact that it followed a decision by this Office to annul a decision of the Department to refuse part of the applicant's request under section 15(1)(c). That provision allows an FOI body to refuse to grant a request if it considers that granting the request would cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area, due to the number or nature of records that would be required to be retrieved and examined. However, while there is an obvious overlap, it is important to note that section 15(1)(c) is an entirely separate, stand alone, provision which operates independently of section 27(12).
The effect of this Office annulling the Department's earlier decision was that the Department was required to deal with the original request afresh. In doing so, the Department clearly engaged with the requester to determine if he would be willing to narrow the scope of his request. The requester submitted a fresh request, following which the Department decided to process the request notwithstanding the fact that the charge arising or likely to arise remained above the prescribed limit.
The Department did not follow the procedure outlined in Guidance Note 6 (REV) as it failed to offer to assist the requester in amending the request in order to reduce the charge to an amount less than or equal to the overall ceiling limit of €700. It may be that the Department considered that by assisting the requester under section 15(4) in amending the request so that it no longer fell to be refused under section 15(1)(c), that this was sufficient for the purposes of compliance with the requirement under section 27(12) to assist the requester in amending the request in order to bring the search and retrieval and copying charge to an amount below the prescribed limit. On the other hand, it may have considered that by agreeing to proceed with the request, it was not required to offer to assist the requester further. In either case, it was wrong to do so, in my view, although I can appreciate how the complexity of the overlapping requirements might give rise to some confusion.
In my view, the Department's engagements with the requester were carried out in accordance with the requirements of section 15(4). Once the requester submitted a revised the request, the Department decided to proceed with an examination of that revised request. In my view, it is only at this stage that the provisions of section 27 must be considered. Rather than inform the requester of its decision to process the request under section 27(12), it should have informed him of the fact that the charge was likely to exceed the overall ceiling limit and given him a further opportunity to limit or amend the request. Furthermore, it should have done so within two weeks of having received the amended request that it decided to process.
The Department received the amended request on 20 May 2016. It did not notify the requester of its decision to impose a charge and to seek a deposit until 8 June 2016. This notification was outside of the two week time limit for notifying requesters of the charging of deposits. Furthermore, as I have outlined above, the Department did not comply with the requirement, under section 27(12)(a), to assist the requester in further amending the request in order to bring the SRC charge to an amount below the overall ceiling limit. I find, therefore, that the Department was not justified in its decision to charge an SRC fee of €500 as it failed to comply fully with the provisions of sections 27(5) and 27(12).
For the benefit of the Department, I would add that the prescribed maximum amount of €500 that applies in respect of the amount that an FOI body may charge for SRC fees does not apply where a body decides to process a request under section 27(12) notwithstanding the fact that the charge exceeds the ceiling limit of €700. In this case, the Department estimated an SRC fee of €1,440. Had it complied with the other provisions of section 27, it would have been entitled to seek payment of that fee.
The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. The requirement to request deposits helps to ensure that FOI bodies do not allocate scarce resources to processing requests which requesters may not ultimately pursue due to the cost involved. Likewise, the entitlement to refuse to process requests where the estimated search and retrieval costs are likely to exceed €700 is an acknowledgement that there are limits to the administrative efforts required of FOI bodies in processing requests. I would urge the Department to ensure that its officials who are responsible for processing FOI requests are fully aware of the contents of CPU's Guidance Note on Fees and Charges and of the specific requirements that section 27 imposes on FOI bodies. This Office intends to issue a detailed Guidance Note on section 27 shortly, that I hope may be of further assistance to FOI bodies in their understanding of the section.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to charge a fee for the search for and retrieval of records in respect of the applicant's request because the Department failed to comply fully with the provisions of sections 27(5) and 27(12) of the Act.
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.