Case number: OIC-104267-X9R3T4
On 20 December 2020, the applicant requested all reports, documentation, emails, meeting notes between Fingal County Council or the Aircraft Noise Competent Authority (ANCA) and the Dublin Airport Authority (DAA) in relation to their plans to amend the planning conditions at Dublin Airport. He indicated that the timeframe for the request was from 1 September 2019. The Council has been designated as the Competent Authority for the purposes of aircraft noise regulation at Dublin Airport.
On 6 January 2021, the applicant clarified that the planning conditions referred to in his request are those subject of the current planning application F20A/0668- namely condition no. 3(d) and condition no. 5 of the North Runway Planning Permission (Register Reference F04A’1755-ABP Ref: PL06F.27429 as amended F19A/0023-ABP 305289-19).
On 12 January 2021, the Council informed the applicant that it had estimated the cost of searching for and retrieving the relevant records to be €600, based on an estimate of 30 hours. It said that as the maximum amount chargeable for search, retrieval and copying (SRC) work is €500, it sought a deposit of €100 to allow for the processing of the request to proceed.
On 12 January 2021, the applicant asked the Council to provide a schedule of records or an outline of the number of records it estimates to exist. He clarified that he was not looking for any records that are publicly available on its planning website. He also asked that the Council provide guidance on how the search could be narrowed.
In response the Council said that schedule preparation is included in the estimate and is not prepared until the search and retrieval work is carried out. It said that the estimate took into account the period of time requested and also the number of bodies that the request relates to. In relation to narrowing the scope, the Council directed the applicant to the section 247 pre-planning consultation meetings records available on its website.
In response, the applicant wrote to the Council on 14 January 2021 stating that he was reducing the scope of his request to email communications only. On 25 January 2021, the Council informed the applicant that ANCA advised that as the bulk of the records relate to email correspondence they do not expect that the time/persons required to undertake the work estimated would be reduced, notwithstanding the amendment to the request.
On the same day, the applicant sought an internal review of the decision to charge SRC fees of €500. He argued that the Council should consider section 27(6) of the Act which allows a public body to reduce or waive a fee if the information contained in the record would be of particular assistance to the understanding of an issue of national importance. He also argued that an email system can be searched quickly using keywords and email addresses. He noted that there are no manual records to search for and argued, therefore, that a search of this kind should fall below the minimum charge fee.
On 18 February 2021, the Council affirmed its decision to charge SRC fees of €500. On 25 February 2021, the applicant sought a review of that decision by this Office. During the course of the review, this Office provided the applicant with details of the Council’s explanation of the basis on which it had estimated what would be required to process the request. The Investigating Officer informed the applicant of her view that the Council was justified in its decision to charge an estimated fee of €500 and invited him to make a submission. The applicant did not make a submission in response.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.
The scope of this review is confined to whether the Council was justified under section 27 of the FOI Act in charging a fee of €500 for the search and retrieval of the records sought by the applicant.
Section 27(1) of the FOI Act 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. Subsection (2) provides that the search for and retrieval of records includes time spent by the body in:
Subsection (3) provides that 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 head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently (currently €20).
Subsection (5) provides that 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 and the process of searching for and retrieving the records sought shall not commence until the deposit has been paid.
Subsection (7)(a) provides that where subsection (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).
In submissions to this Office, the Council provided details of the steps required to search for and retrieve the records sought in this case, outlining the different locations in which the records may be stored. The investigating officer provided the applicant with details of the Council’s submission and the breakdown of the estimate work which would be required to process his request.
In summary, the Council said that the applicant’s request covers records held by both ANCA and the Planning Authority Units. It said that both areas had different record management policies/ structures.
ANCA said it has a separate folder dealing with each of 12 Pre-Planning Consultation meetings. These folders are stored on the Council’s network. In the case of each meeting, in addition to the minutes produced, there were a number of interactions, requests for information, information templates provided and clarifications sought. ANCA’s preliminary search identified that there would be approximately 1,300 relevant records to be located and examined. The Council explained that the records in these folders include, but are not limited to, separate correspondence between ANCA and the DAA, technical specialist advisors, legal advisors and the Planning Authority. It said that the volume of the interactions not included in the scope of the request adds to the complexity of the search and retrieval process. It said that all emails are saved in a relevant folder, with the relevant date and subject matter in the title. It is then deleted from the email system. It said there is no consistent naming of documents which would facilitate the search. Based on that, ANCA estimated that it will take two staff members 12 hours each (24 hours in total) to carry out search and retrieval which equals €480.
The Planning Authority estimates that it would take 6 hours to carry out search and retrieval of its records totalling €120. The Planning Authority holds records relating to the matter both electronically and hard copy file. It said in order to comply with the request, a planner from the Development Management Team with responsibility for the Airport will be tasked to undertake a search of relevant hard folders in the Planning Section- Dublin Airport Cabinet. It outlined that a review will also be required of electronic records regarding the subject matter of the request.
The Council outlined that a number of staff from the Council’s Dublin Airport Development Management team have left the organization. The Planning Authority would carry out searches on five current and four former staff members’ MS Outlook accounts. It said that emails are also stored in electronic folders and searches of these folders would be carried out to ensure no records were deleted in Outlook. These folders could contain a wide variety of records related to the noise abatement directive and due to the complexity of the project there are no specific references or codes which would facilitate a quick search to identify relevant emails. The Planning Authority said that staff members’ records are stored on a Council server and spilt based on business need. Each team member has a folder relevant to airport related work, which may contain relevant subfolders and would have to be searched. It outlined that due to the changeover in staff within the section, certain records are also retained in hard-copy format which the Council proposes to search to ensure the integrity of the search and retrieval process.
The Council confirmed that its estimate does not include time for the examination of the records with a view to deciding on whether they may be released.
Disputes about fees generally turn on the question of the public body's estimate of the time to be spent on a search, retrieval and copying exercise that has yet to take place. 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. In all cases, this Office expects the FOI body to be able to explain how its estimate of the costs of search and retrieval was arrived at. If the FOI 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 is not inclined to interfere with that decision.
I note that in this case, the Council appears to hold a considerable number of records of communications relating to the noise abatement directive that would have to be searched to indicate if they fall within the specific scope of the applicant’s request. It seems to me that key factors are that (i) ANCA does not retain relevant email communications within its email system and instead transfers them to its DMS, and (ii) a wide variety of records are held related to the noise abatement directive. As such, I accept that its records are not held in such a way as to allow for a simple search for records that will identify only those records coming within the scope of the request. In the circumstances, I am satisfied that the Council has provided a reasonable basis on which it has estimated the SRC fees at €500 in this case.
I relation to the applicant’s argument that section 27(6) applies, that section allows a public body to reduce or waive the SRC fees if it considers that some or all of the information contained in the records concerned would be of particular assistance to the understanding of an issue of national importance. It is not sufficient that the information simply relates to an issue of national importance. It must also assist in understanding an issue of national importance. It is noteworthy that the section does not provide for the waiver of a fee where records contain information that might be made available in the public interest. Rather the information must assist in the understanding of an issue of national importance, which this Office considers to be a much higher test.
In circumstances where records have not yet been retrieved and a deposit is requested, as in this case, the public body is limited in its consideration of section 27(6) to making a judgement as to whether some or all of the records that are the subject of a given request may potentially contain information which would be of particular assistance to the understanding of an issue of national importance.
The question of what constitutes an issue of national importance is not defined in the Act nor does this Office consider that it is possible to devise a formulaic definition that might apply in all circumstances. As the former Commissioner noted in Case 030421 (available at www.oic.ie),
"The reality is that it is society itself which determines if an emerging issue is a matter of national importance at a particular time and not just a matter of general public interest or a matter of widespread discussion. In the context of an FOI review where section 47(5) [the equivalent provision in the FOI Acts 1997 & 2003] might apply, I consider that each case would have to be examined on its merits in light of all the circumstances pertaining at the time."
In his application for review, the applicant stated that the emails concerned are of immense public interest as the involve the setting of a ‘Noise Abatement Objective’ for Dublin Airport. He said that the Council, in its role as ANCA, is responsible for setting this objective and it is paramount that ANCA is totally independent in the performance of its duties in accordance with the Aircraft Noise Regulation legislation. He noted that publicly available pre-planning consultation material shows that ANCA were in discussions with the DAA on the ‘Noise Abatement Objective’ and he argued that the requested records will help the public understand if independence was adhered to.
In its submissions, the Council said that it did not consider the information contained in the records request would assist with the understanding of an issue of national importance. While I cannot disagree that there is a public interest in the matter, it seems to me that this is not the same as finding the issue to be one of national importance. I fully accept that the setting of a Noise Abatement Objective may be of genuine importance to stakeholders and other interest groups. However, I do not accept that it is an issue that society itself would regard as one of national importance.
In conclusion, therefore, I find that the Council was justified under section 27 in its decision to charge a fee of €500 for the search for and retrieval of the records sought by the applicant.
Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the Council to charge a fee of €500 for the search for and retrieval of the records sought by the applicant.
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.