Case number: OIC-53441-Y1H6F4 (190192)
9 August 2019
In a request dated 18 March 2019 the applicant sought access to the following:
Following receipt of the request CETB sought clarification of the scope of the request and proposed a set of search parameters for the request. The applicant agreed to CETB’s proposals on 1 April 2019.
On 4 April 2019 CETB informed the applicant by email of its decision to charge a fee of €500 for search for, and retrieval of, relevant records and it sought a deposit of €150. It informed the applicant that he may wish to explore further amendments to his request which might reduce or eliminate the deposit and/or fee. The applicant sought an internal review of the decision to charge a fee of €500 on the ground that he had agreed to confine the search parameters of his request to electronic searches only.
On 24 April 2019, CETB affirmed its decision to charge a search and retrieval fee of €500, due to the size of the organisation and the volume of records held. It provided the applicant with a breakdown of the fee estimate. On the same day, the applicant sought a review by this Office of CETB's decision to charge a fee of €500. In conducting this review I have had regard to the correspondence between the applicant and CETB concerning the request and to the communications between this Office and both CETB and the applicant in relation to this review.
During the course of the review, CETB informed this Office that it discovered an administrative error in the fee calculation and that it had revised its estimate of the search and retrieval fees required to €360.
Accordingly, this review is concerned solely with the question of whether CETB was justified, under section 27 of the FOI Act, in charging a fee of €360 for the search for and retrieval of relevant records coming within the scope of the applicant’s request.
Section 27(1) of the FOI Act provides for the mandatory charging by FOI bodies of fees for the estimated cost of searching for, retrieving, and copying of records (SRC) in respect of the grant of an FOI request. Under section 27 (2), the search for and retrieval of records includes time spent by the body in
a) determining whether it holds the information requested,
b) locating the information or documents containing the information,
c) retrieving such information or documents,
d) extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and
e) preparing a schedule specifying the records for consideration for release
Under section 27(3), the amount of the search and retrieval cost must 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 body, to have been spent, by each person concerned in carrying out the search and retrieval efficiently (currently €20).
Under section 27(5), where the estimated search and retrieval cost is likely to exceed the prescribed minimum level (currently €101), the FOI body must charge a deposit of at least 20% of that cost. The requirement to charge deposits helps to ensure that FOI bodies do not allocate scarce resources to processing requests which requesters may not ultimately pursue because of the cost involved.
In his correspondence with this Office, the applicant stated that he was unhappy with the proposed fee being applied to his request. Among other things, he referred to the fact that his request was explicitly for electronic searches of electronic records only. He stated that for identical requests to the 16 other ETBs, 14 provided responses at no cost and one other ETB estimated the costs of search and retrieval at €175.
It is important to note that this review is concerned solely with the decision taken by CETB in relation to charging search and retrieval fees. The fact that other similar bodies did not charge a search and retrieval fee does not mean that CETB was not justified in doing so.
Whilst FOI bodies are clearly under a duty to use their best endeavours to estimate the cost of any search, retrieval and copying exercise in as accurate and scientific a manner as possible there will be cases in which they will have very little available material or information on which to base such an estimate. In these circumstances, this Office considers that the Oireachtas could hardly have intended that the Information Commissioner substitute his own estimate (based on the same evidence) for that of the body.
Nevertheless, the Oireachtas also felt it necessary to require bodies to calculate search and retrieval costs based on efficient practices. As such, this Office considers that the Oireachtas intended to confer some latitude on public bodies in their estimation of the time to be spent on a search and retrieval of records but that this latitude was to have its limits. At the same time, the FOI Act confers on the Information Commissioner the jurisdiction to vary or annul an estimate where such an estimate falls outside these limits.
Normally, in cases where the dispute between the parties turns solely on the question of the appropriateness of the FOI body's estimate of the time to be taken in a future search and retrieval exercise, this Office would be slow to disturb the decision of the public body. However, the Act clearly foresees that there will be cases in which the amount of the fee or deposit sought by the public body will be found by this Office to be inappropriate. In all cases, this Office would expect the body to be able to explain how its estimate of the costs of search and retrieval was arrived at. If the public body concerned gives reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided upon by it, this Office would not be inclined to interfere with that decision.
In its notification of 4 April 2019 to the applicant, CETB stated that it had estimated the search and retrieval time required as 26 hours. However, as I have outlined above, during the course of the review it stated that it discovered an administrative error in the fee calculation and that it revised its estimate of the search and retrieval fees required to €360.
It stated that the estimated time required to locate relevant records was eight hours in total, three hours for one staff member and five hours for a second staff member but that the data was erroneously entered on the fee calculator as eight hours for each staff member, giving a total of 16 hours. As such, the revised estimated search and retrieval time was 18 hours, resulting in a fee of €360.
In its submissions to this Office, CETB elaborated the basis of its estimate calculations. It estimated that it would take four hours (two hours for each of two staff) to determine whether it held the information requested, to include;
It estimated that it would take eight hours to locate records containing the information sought, as follows:
It estimated that it would take two hours to retrieve and extract information or documents, as follows;
It further estimated that due to the broad nature of the searches to be undertaken, it would take a minimum of four hours (two hours for each of two staff) to prepare the schedule specifying the records for consideration for release as all extracted emails/documentation (and possible attachments to emails) will have to be reviewed to establish if redaction is required before release and may have to be redacted. The total estimated search and retrieval time required, therefore, would be 18 hours resulting in search and retrieval fee of €360.
At this stage, it is worth considering the agreement that was already reached with the applicant before CETB arrived at its estimate. As a result of the agreed search parameters, CETB undertook to carry out the following electronic searches for relevant records:
The mailboxes of the Chief Executive, Directors and the general info mailbox to be searched for all 2018 email contacts with all Catholic clerics, diocesan advisors, and diocesan bodies with whom CETB corresponds and an electronic search for files on the Head Office network where such correspondence is filed (presumably also intended to include schools, as per the third part of the applicant’s request)
The electronic files containing minutes of board meetings held in 2018 will be searched using the key words Catholic, Catholicism, Christianity, Christian, religion, prayer, god, faith, and religious
Having regard to that agreement, I have some concerns about the description of the steps CETB included in its estimate calculations. In estimating that it would take four hours to determine whether it held the information sought, it included time for considering the types of records falling within the scope of the request, identifying staff likely to hold such records, the volume of records to be searched, most efficient and effective search methods to be employed, and follow up correspondence with the requester to identify exactly what the scope of the request was and reach an agreed criteria with the requester.
It is not clear to me why some of these particular steps would be necessary in this case. I accept that some time would be required to identify the individuals and/or bodies with whom CETB may have corresponded in order to identify the searches required, (e.g. what Catholic clerics, diocesan advisors and/or diocesan Bodies might be involved).
However, in circumstances where it has already been agreed that electronic searches will be conducted of certain specified emails, CETB has not explained why it would be necessary to spend time identifying (i) staff likely to hold relevant records, (ii) the volume of records to be searched or (iii) most efficient and effective search methods to be employed. Furthermore, if CETB has already accepted and agreed to process the request based on its understanding of what records are sought and the searches required to identify such records, I fail to see why it should allocate search and retrieval time to following up with the applicant to identify exactly what the scope of the request is and reach an agreed criteria with the applicant.
In relation to the estimated time required to locate the relevant records and to extract the records, CETB has not satisfactorily explained how it might take a member of Legal and Compliance Unit (LCU) a total of five hours to search through emails and other electronic files and documents on Head Office network drives and identity files which might fall within the scope of the request in circumstances where it has also included in its estimate one hour for an LCU staff member to search the mailboxes once the search conditions are set up by ICT and one further hour to extract relevant records from the Corporate Services drive on Head Office network.
CETB also indicate that an estimated four hours would be required for reviewing all relevant records for possible redaction, redacting records where appropriate, and preparing a schedule of records, due to the broad nature of the searches undertaken. However, the broad nature of the searches does not, of itself, give any indication as to the volume of records that might be identified for review and scheduling, nor has CETB gave no indication of the potential volume of records that might be involved. As such, I cannot say if the estimate of four hours for this work to be undertaken is reasonable.
Having considered the matter carefully, and having regard to above, I am not satisfied that CETB has outlined a reasonable basis for the calculation of the fee and deposit charged in the circumstances of this case. Accordingly, I hereby annul the decision of CETB to charge a fee of €360 for the search for and retrieval of relevant records coming within the scope of the request.
However, as I have no indication as to the volume of records that might fall within the scope of the request and as CETB’s submission suggests that it remains uncertain as to the precise scope of the applicant’s request, I direct CETB to undertake a fresh decision making process on the request. It may wish to engage with the applicant in the first instance to ensure that the precise nature of the request is understood and agreed by both parties. If, during the processing of the request afresh, CETB determines that a search and retrieval fee is due, I would expect it to be in a position to give a more reasoned explanation for the basis for the calculation of its estimate, having regard to my findings in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of CETB to charge a fee of €360 for the search for and retrieval of records and I direct it to undertake a fresh decision making process on the request.
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.