Case number: OIC-104673-D8P1F4
25 May 2021
Following a number of email exchanges between the parties, the applicant submitted an amended request to the Council on 9 February 2021 for copies of four completed internal audit reports. He had stated in his original email that his preference was to receive the reports electronically, ideally in their original electronic format. On 12 February 2021, the Council notified the applicant that the estimated cost of searching for and retrieving and copying the records was €220, representing an estimated 11 hours of work required, and it sought a deposit of €110 before the processing of the request could proceed.
On the same day, the applicant sought an internal review of the decision to charge a fee, following which the Council affirmed its decision. On 5 March 2021, the applicant sought a review by this Office of the Council’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 correspondence between the parties as described above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
The review is concerned solely with whether the Council was justified, under section 27 of the FOI Act, in charging a fee of €220 the search for, and retrieval and copying of, four specified internal audit reports.
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 (SRC), records 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 (currently €20) 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. Section 27(3)(d) provides that there shall be no charge if the total amount of the charge would be less than the prescribed appropriate minimum charge, currently €101.
Under section 27(5), where the estimated SRC 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. This 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.
It appears, from the Council’s submissions to this Office, that the Council has actually carried out the search and retrieval work in this case, notwithstanding the fact that, under section 27(5)(b), the process should not be commenced by the FOI body until the deposit has been paid. As such, in its submissions, the Council provided details of its original estimate of the search and retrieval time that would be required and, it appears, the actual time taken.
The Council said that final audit reports are stored in hard copy and electronically along with other relevant records. It said that to extract the information, the following process must be completed:
With regard to the original estimate, the Council said that the charge was calculated using what appear to be internal guidelines for adhering to the charges laid out by the FOI Act 2014, as follows:
The Council also provided details of what appears to be the time actually taken to search for and retrieve the records:
The Council added that the costs charged do not include the time taken to examine the records to confirm information for release or to redact the records. On the matter of the preparation of a schedule, the Council said the estimated time for preparing a schedule was calculated using a best estimate approach in order to ensure the schedule contained all relevant information. It said the actual time in preparing the individual schedules was actually in excess of 5 hours but that Internal Audit deemed it appropriate not to exceed the initial hours originally being charged for. It said a schedule was prepared for each individual audit and that all areas of the audit as well as background information in relation to the audit were assessed to determine any sensitive information which was not to be released. It said this was a time-consuming process and that, for instance, the Housing Loans audit contained 23 separate documents that contained sensitive information.
The applicant was informed of the breakdown of the Council’s calculations. In his submission to this Office, he argued that there should be no time spent determining whether the Council holds the records, or locating and retrieving the records as it is implicit that the records are held, the location is known and as a matter of fact there is no cost associated with retrieval of electronic information.
Among other things, he noted that he sought only electronic copies of the reports and had no interest in the hard copies or the relevant background material, nor did he ask for a comparison of the records to ensure accuracy. He also argued that the time allocated for scheduling records has been grossly exaggerated. He said it was impossible to see how preparing a schedule of a small number of documents could ever take 5 hours. He argued, in any event, that once the ineligible costs are excluded the search and retrieval effort drops below the €101 threshold, below which no fees can be charged.
Given that the Council has already carried out the search and retrieval work in this case, I accept that the time taken in doing so is as described by the Council in its submissions. However, that is not the end of the matter. It seems to me that the questions I must consider are, first, whether the Council was entitled to include the various steps it took when calculating the time spent on search and retrieval and, second, whether the search and retrieval process was carried out efficiently.
On the first question, I note that the applicant sought access to electronic copies of four specific audit reports that the Council had already confirmed as having been completed and presented to its audit committee in 2019/2020. I also note that the Council confirmed in its submissions that the audit reports are stored electronically.
In my view, the Council included time spent on tasks that fall outside of the scope of the tasks that can be included for search and retrieval. As set out above, the Council described a process that it said must be completed to extract the information. It seems to me that the steps outlined can more accurately be described as steps the Council took to ensure the accuracy of the reports for release and to confirm that they could properly regarded as complete. The Act provides for a right of access to records held by the Council. The question of whether or not the records sought are accurate or complete is not a matter that can be considered when calculating the time take to search for and retrieve the records.
Furthermore, in circumstances where the Council had already agreed with the applicant that the reports sought were, indeed, complete, I fail to see how it can reasonably expect to be entitled to include any of those tasks in its calculation of the time spent searching for and retrieving the reports. A such, I do not accept that the Council was entitled to include in its calculations the six hours it said it took on those tasks. It seems to me that the Council had already determined that it held the records sought and could readily locate and retrieve them electronically.
This leaves the five hours the Council spent preparing a schedule of records for release. While I note that the Council prepared four schedules, one in respect of each report, it seems to me that in circumstances where only four records were sought, the time spent preparing the schedules appears to be excessive. Nevertheless, even if I was to accept that the five hours taken to complete the schedules in question could reasonably be described as efficient for the purposes of section 27(3), it remains the case that under section 27(3)(d), a public body is not entitled to charge search and retrieval fees if the total amount of the charge would be less than the prescribed appropriate minimum charge, currently €101. Given that the amount of the search and retrieval cost must be calculated at the prescribed rate (currently €20 per hour), the five hours taken to prepare the schedules in question, of itself, fails to bring the total amount of the charge above the prescribed minimum charge. Accordingly, I find that the Council was not entitled to charge for search and retrieval fees in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to charge, under section 27 of the FOI Act, a fee of €220 for the search and retrieval of the records sought by the applicant in this case.
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.