Case number: OIC-122465-D7J5S0
9 November 2022
The case has its background in a decision to close the Owenacurra Mental Health Centre in Midleton, which has been the subject of public debate since around June 2021.
In a request dated 14 January 2022, the applicant sought access to records of any communications to or from eight named managers within the Cork Mental Health Services that mention “Owenacurra” or “Owenacurra Centre”, for the period from January 2019 to the date of his request. On 19 January 2022, the applicant modified his request by including a ninth named manager to his original request. On the same date the HSE informed the applicant that the processing of the request would require an extensive search and would involve a time period where the HSE ICT infrastructure was compromised as a result of a cyber-attack. It invited the applicant to refine his request.
On 26 January 2022, the applicant submitted a revised request to the HSE, wherein he said the HSE could exclude any records relating to staff annual leave returns, sick leave returns or wage returns. He argued that it was appropriate that a wide-spanning search of records be carried out “[i]n circumstances where there remains many unanswered questions about this mental health facility and the broader service context”.
On 27 January 2022, the HSE informed the applicant that the estimated cost for searching for and retrieving the relevant records was €600, based on an estimated resource requirement of one staff member for 30 hours to process the request. It sought a deposit of €120 in order to process the request. It also invited the applicant to amend his request with a view to reducing or eliminating the fee. On 24 March 2022, the applicant sought an internal review of the decision of the HSE to impose a search and retrieval fee.
On 24 April 2022, as he had not received an internal review decision from the HSE, the applicant applied to this Office for a review of the decision to charge a fee. On 25 April 2022, the HSE affirmed its decision to charge a fee of €600 for processing the request.
During the course of the review, in an effort to settle the matter the HSE released a number of records about Owenacurra to the applicant which it had released in response to a similar FOI request. However, the timespan of the records sought by the applicant in this case differed from that of the previous similar request. After receipt of those records, the applicant suggested that further records should exist, specifically within the time period between August 2021 to January 2022. He said he wanted to proceed with the review.
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 submissions made by the HSE and the applicant’s comments in his application for review and to the submissions made by the HSE in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the Investigating Officer provided the applicant with details of how the HSE calculated its estimate for the search and retrieval fees. In reply, the applicant suggested narrowing the scope of his request to a number of particular records and he argued that there is a clear public interest in the release of the records sought. However, this review is not concerned with whether a right of access exists to the records sought. It is concerned solely with whether the HSE was justified, under section 27 of the FOI Act, in charging a fee of €600 for the search and retrieval of the records sought. If the applicant wishes to explore the option of obtaining access to a limited number of specified records, it is open to him to pursue that matter separately with the HSE.
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 (SRC) of, records sought on foot of an FOI request where the estimated SRC fee is equal to or greater than the prescribed minimum amount (currently €101). Subsection (2) provides that the search for and retrieval of records includes time spent by the body in:
Subsection (3)(a) provides that the amount of SRC fee shall 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 (3)(c) provides that, subject to subsection (12), the total amount of a charge under subsection (1) shall not exceed such amount as stands prescribed for the time being as the appropriate maximum amount for search and retrieval and copying (the prescribed maximum amount, which is currently €500).
Under subsection (5), where the estimated search and retrieval cost is likely to be equal to or in excess of the prescribed minimum amount, 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).
Submissions of the Parties
In submissions to this Office, the HSE said the applicant declined its request to narrow the scope of his request. It said the fee of €600 is based on an estimated 30 hours of search and retrieval work. It acknowledged that all records sought are stored electronically. In summary, it said it estimated that it would take nine hours in total to check the nine email addresses provided by the applicant in his application, one hour on each email account. It said that based on a previous FOI request that is very similar in nature, albeit with different search terms, it estimated a total of 21 hours for extracting the information from the emails accounts in question. It said its estimate of 30 hours does not include time for examining the records with a view to deciding on whether or not they may be released. It added that during the five months between the applicant’s FOI request and a previous FOI request for similar records (reference 27800), a substantial number of additional records could have been created as the closure of the Owenacurra Centre became a matter of public debate during this period and the closure received regional and national media attention. It said that in light of this knowledge, and further to the above calculations, it estimated that 30 hours in total was the amount of time necessary for the search & retrieval of the requested information.
On the matter of the estimate of one hour per email account, it said that while the keyword “Owenacurra” should be sufficient, the search of an email account is not confined to one single but multiple searches. It said the search would include folders per year and folders for sent and received emails. It added that searches will include electronic folders where large email attachments are saved and stored within the HSE’s ICT system.
The HSE explained that once emails containing the search word ‘Owenacurra’ have been identified, they must then all be examined in order to retrieve the portion of the email that refers to ‘Owenacurra’ only. It said that email threads often contain information on more than one item. It said they could also contain personal information relating to staff e.g. personal HR issues, personal information relating to service users or indeed discussion on other Mental Health Service issues not linked to Owenacurra. It argued, therefore, that it would be important to review each email in detail to ensure that only the pertinent information is considered for release and to avoid accidental disclosure of records that are beyond the scope of the request. It said this analysis is part of the retrieval process and is only concerned with isolating the 'Owenacurra' records from those that are outside the scope of the request.
As noted above, the Investigating Officer provided the applicant with details of the HSE’s submission on the matter of the basis of its estimation of the SRC fee. In response, the applicant suggested that this Office should have regard to the overall context of his request and other related requests, the significance of the public interest in the information sought and the “contrary and obstructive handling of the requests so far by the HSE”. He also noted that no fees were charged by the HSE in a previous request which concerned a large number of records.
It is important to note that the provision for the charging of SRC fees in accordance with the provisions of section 27 is mandatory. Accordingly, the fact that the HSE may have previously released records without seeking an SRC fee is not a relevant consideration in this case, nor are the arguments concerning the HSE’s handling of previous related requests or concerning the public interest in the release of the records.
On the substantive issue of the HSE’s estimate, many disputes about fees will turn on the question of the FOI 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 FOI bodies in their estimation of the time to be spent on search and retrieval, but that this latitude was to have its limits. In all cases, we expect the FOI body to be able to explain how its estimate of the costs of search and retrieval was arrived at. Where a public body gives reasons for its estimate that indicate there was a reasonable basis for the calculation of the fee decided upon by it, this Office is not generally inclined to interfere with that decision.
I appreciate that the applicant requested only electronic records of correspondence from specific managers related to the Owenacurra Mental Health Centre. Although the applicant argues that the records should be easily accessible, using word searches “Owenacurra and “Owenacurra Centre”, he appears to accept in his email dated 26 January 2022 to the HSE that there may be a large volume of emails.
As I have outlined above, subsection (2) of section 27 provides the search for and retrieval of records includes time spent by the body in extracting the information sought from the files, documents electronic or other information sources containing both it and other material not relevant to the request. I accept the HSE’s argument that a potentially large number of emails may have to be processed to identify the information sought.
Having regard to the HSE’s explanation of the basis on which it estimated the time required to search for and retrieve relevant records in this case, I am satisfied that the estimate of 30 hours for carrying out the necessary search and retrieval work is reasonable. However, I note that the HSE failed to have regard to the requirements of section 27(3)(b). As I have outlined above, that section provides that the total amount of a charge under subsection (1) shall not exceed the prescribed maximum amount which is currently €500.
Accordingly, while I find that the HSE was justified in its decision to charge an SRC fee in this case, I find that it was not entitled to charge a fee of €600. Rather, it was entitled to charge a fee of €500.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision to charge a search and retrieval fee of €600 under section 27 of the FOI Act. I find that, having regard to the requirement of section 27(3)(c), it was entitled to charge a fee of €500 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.