Case number: OIC-94805-N3Q5D4
19 November 2020
In a request dated 26 June 2020, the applicant sought access to “aon taifead, idir chomhfhreagras, aighneachtaí srl (ón 1/3/20 go dáta) a bhaineann le scéim cúitimh do choláistí samhraidh mar thoradh ar COVID 19” [any record, including correspondence, submissions, etc regarding a compensation scheme for Irish summer colleges as a result of COVID 19].
On 2 July 2020, the Department informed the applicant that the estimated cost of searching for and retrieving the records concerned was €840. It informed him that the charge could be reduced by refining the request and that the request may be refused under section 27(12) of the Act if he could not refine it so that the estimated cost fell below the overall ceiling limit of €700. It also sought a deposit of €100, subject to the request being refined so as to bring the estimated cost below the overall ceiling limit.
On 3 July 2020, the applicant expressed his dissatisfaction with the estimated fee to the Department. According to the Department, to assist the applicant in refining his request and reducing the estimated fee accordingly, it informed him on 7 July 2020 that there were two FOI requests related to his own request and that the records could be sent to him, namely, copies of records held referring or relating to decision that all summer Gaeltacht language courses will be cancelled due to the COVID-19 pandemic, for the period 1 April 2020 to 4 May 2020, and all information held by the Department about a recently announced €4.7m Stabilisation Initiative for the Irish Language College Sector.
On the same day, the applicant said he would like to see the records released under the previous requests but that he still wanted the Department to send him the schedule of records so that a final decision could be made on whether to pay the €840 fee. On 8 July 2020, the Department explained that the schedule could not be put together without identifying and retrieving the records. It also recommended that the requester look at the records which had already been provided to see if they could help him to refine his request. He was also reminded that he could appeal the decision to charge a fee, and details were given on how to do so.
On 13 July 2020, the applicant sought a review of the decision to charge a fee, following which the Department affirmed its decision. On 24 July 2020, the applicant sought a review by this Office of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review and to the submissions made by the Department in support of its decision.
This review is concerned solely with whether the Department was justified, under section 27(12) of the FOI Act, in refusing the applicant’s request on the ground that the estimated cost of searching for and retrieving records coming within the scope of the request exceeds the overall ceiling limit of €700.
Section 27 provides for the mandatory charging by FOI bodies for the estimated cost of the search for, and retrieval and copying (SRC) of, records in respect of the grant of an FOI request. Among other things, search and retrieval includes time spent by the FOI body in determining whether it holds the information sought, locating the information or records containing the information, retrieving the information or documents, extracting the information from the files, documents, electronic or other information course containing both the information and other material not relevant to the request, and preparing a schedule specifying the record for consideration for release.
The amount of the cost of the SRC charge must be calculated at the rate of such amount per hour as stands prescribed (currently €20) 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. Subject to subsection (12) of section 27, the amount of the SRC charge must not exceed such amount as stands prescribed (currently €500) for the time being as the appropriate maximum SRC charge.
Under section 27(12), where the amount of SRC charges exceeds or is likely to exceed the overall ceiling limit prescribed (currently €700) the FOI body must inform the requester, and must assist the requester if the requester wishes to amend or limit the request in order to reduce the SRC charges that arise or are likely to arise to an amount less than or equal to the overall ceiling limit. If the requester does not amend or limit the request such that the charges that arise or are likely to arise are reduced to an amount less than or equal to the overall ceiling limit, the body may refuse the request. Where the body decides, nevertheless, to process the request, the requester must pay the full cost of the charges likely to be payable.
In this case, the Department notified the applicant that the estimated SRC charge exceeded the overall ceiling limit. It offered to assist the applicant in refining his request. It informed the applicant of two related FOI requests it had recently processed and provided the applicant with copies of the 35 records released in respect of these requests. In response to the Department’s offer of assistance, the requester sought a copy of the schedule of records. The Department explained that it estimated that there were more than 500 records and preparation of a schedule would require examination of these records. Given that the estimated SRC charge was €840, it said it was not in a position to provide a schedule. The applicant did not engage further to refine the request, but sought an internal review of the decision.
It is worth noting that under section 27(12), the FOI body must assist the requester if the requester wishes to amend or limit the request in order to reduce the SRC charges (my emphasis). I note that the applicant sought a copy of the schedule of records to allow him to consider if he might be in a position to refine his request. Indeed, I also note that in his application for review to this Office, he said he would like the Commissioner to make a ruling requiring the FOI body to make a schedule of the records available to requesters to help them refine their requests. I cannot do so.
Section 27(2) specifically provides that the search for and retrieval of records includes time spend by the FOI body in preparing a schedule specifying the records for consideration for release, i.e. the preparation of a schedule is part of the work that the FOI body does not have to carry out where it intends to refuse a request under section 27(12). Furthermore, the preparation of a schedule would require the FOI body to carry out a number of other steps that form part of the search and retrieval process. It would have to determine whether it holds the records sought and would have to locate and retrieve those documents to determine if they are appropriate for listing on a schedule.
It seems to me that the applicant is of the view that he could not reasonably be expected to amend his request with having access to a schedule of records. I disagree. I note that his request was quite broad and it was open to him to explore possible refinements of his request with the Department but he chose not to do so. I see no ground for finding that the Department failed to comply with the requirements of section 27(12) by refusing to provide a schedule of relevant records.
On the matter of whether the Department was justified in estimating the SRC charge at €840, the Department explained that it based its estimate on a preliminary examination done in the relevant division of the number of emails about the subject and which may be relevant to the request from 1 March to 20 June. It said there are about 500 emails in question that will have to be analysed and if five minutes are spent on each one, that will be 2,500 minutes in question – hence the 42 hours.
If an FOI body gives reasons for its SRC estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided upon by it, this Office is not inclined to interfere with that decision. I am satisfied that the Department has set out an explanation which provides a reasonable basis for its estimated search and retrieval costs in this case.
Finally, I note the applicant’s comments in his application for review that FOI bodies seek excessive fees to get rid of journalists and that such an approach is not in the spirit of the legislation. On this point, the applicant should note that the charging of SRC fees is mandatory. The Act clearly requires FOI bodies to charge such fees which cannot be regarded as not in the spirit of the Act. Furthermore, section 27(12) is, in my view, an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. The 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.
In conclusion, therefore, I find that the Department was justified in refusing the applicant’s request under section 27(12) of the FOI Act. It remains open to the applicant to engage further with the department for the purpose of making a refined request
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse the applicant’s request under section 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.