Case number: OIC-111606-Z1D5M7
In a request dated 7 July 2021, the applicant contacted Údarás na Gaeltachta and sought access to digital copies of records relating to all legal, engineering and consultancy costs incurred during the successful application for planning permission for the former Dingle Workhouse. Following consultation with Údarás na Gaeltachta, he refined this request to seeking a list of the contractors/ consultants/ companies/ individuals and the monetary sum they were paid. The applicant specified in his request that he believed disclosure of the information requested would be in the public interest because it is likely to contribute to public understanding of the operations or activities of the Irish Government and Tax Payer funded bodies. In a decision dated 22 July 2021, Údarás na Gaeltachta responded to the applicant stating that the request would be subject to the payment of search and retrieval fees. The estimate of those fees was €180, and a deposit of €90 was requested in advance of the search and retrieval work being carried out. Údarás na Gaeltachta offered to assist the applicant in refining his request, which may reduce or eliminate the deposit and/or fee.
On the same day, the applicant sought an internal review of the decision on the basis that he believed the costs associated with the planning application would be available in simple, easily accessible format, and that he further did not believe the search would take nine hours. He further stated that redaction would not be part of the definition of what constitutes search and retrieval. The internal review decision of Údarás na Gaeltachta issued on 11 August 2021, setting out that a careful review was carried out and the estimate was revised downwards to six hours’ work at €20 an hour, at a total of €120. On 13 August 2021, the applicant applied to this Office for a review of Údarás na Gaeltachta’s decision to charge search and retrieval fees on the basis that he did not believe it would take six hours to locate the information sought. He further clarified that he believed it could be as easy as checking the financial wing for invoices or receipts relating to the company or individual.
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 relevant parties the applicant’s comments in his application for review and to correspondence between the applicant and the public body. I have decided to conclude this review by way of a formal, binding decision.
The scope of the review is confined to whether Údarás na Gaeltachta was justified under section 27 of the FOI Act in charging a fee of €120 for the search and retrieval of 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 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 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).
On 28 September 2021, this Office received Údarás na Gaeltachta’s submissions. It was clarified that the applicant had refined his request following a phone conversation with the Decision Maker to seeking “a list of the contractors/consultants/companies/individuals and the monetary sum they were paid”, as set out above. Údarás na Gaeltachta specified that after refining the request, it then estimated the work involved to be as follows:
The applicant argued that the costs associated with a successful planning application would be available in a simple, easily accessible format, and that it may be as easy as checking the financial wing of a state funded body for invoices or receipts relating to the company or individual which/who provided assistance. As set out above, the costs were reduced to six hours at €20 per hour, resulting in a total of €120 by the internal reviewer, the Corporate Services Director.
Following receipt of submissions from Údarás na Gaeltachta, the applicant was contacted for final comments on the matter. In response, the applicant queried why Údarás na Gaeltachta would need to contact various bodies or departments for the information, and whether it had an account dealing with each large project. He also queried whether it would be necessary to conduct a planning search for details of the project, as he has stated that he is not seeking background information under the FOI Act. He acknowledged the need for commercial sensitivity around some requests; however he also stated that he does not believe a publicly funded body should be searching for background information which isn’t being requested.
In relation to contacting the Account’s Department, the applicant has argued that this would be 80% of the FOI request completed. He has also countered that as all records are electronic, it should not take a lot of time to conduct searches in electronic folders. He also argued that time should not be needed for clarification, as he did not request clarification on any element of the request, and that the records he sought are ones which already exist.
Further information was sought from Údarás na Gaeltachta on whether it would consider a potential settlement as the estimation for time spent was only one hour above the limit. Following a phone conversation with this Office’s investigator, it set out why it could not revise the time limit further on the basis that its activities are collaborative across many departments within the organisation depending on the project, and that the project in question was not dealt with by solely one department or in one location. It was further clarified that the FOI decision maker does not have the background and details pertaining to all projects and a briefing was required to understand the extent of the project and who else collaborated on the project in order to ensure that all relevant information was included in the search for records. In relation to the double counting of tasks, it argued that many other records exist for projects aside from the ones needed for this FOI request and that time and effort is needed to filter through all of them and extract the relevant information.
It is important to note that the provision for the charging of search and retrieval fees is mandatory. Nevertheless, it is also noteworthy that a public body may not charge a fee where the total amount of the charge is less than the prescribed amount, currently €101. This means that if the time required to search for and retrieve relevant records is five hours or less, no fee may be charged. It is open to requesters to engage with FOI bodies with a view to making requests for specific records that might eliminate the need for search and retrieval fees. Indeed, section 27(7) provides that, if asked by the requester, the FOI body shall assist the requester to amend the request in order to reduce or eliminate the SRC charges arising under section 27(1) and make any such amendments specified.
It is also important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be dis-regarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).
On the substantive issue of Údarás na Gaeltachta’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.
I note that in this case the applicant only requested digital copies of records in relation to costs incurred during a successful planning application for the former Dingle Workhouse. I am also aware via various newspaper articles that Údarás na Gaeltachta managed the redevelopment of the site and that it utilised a number of special external consultants to support its work, which is discussed here: https://www.radiokerry.ie/news/proposed-redevelopment-of-former-dingle-workhouse-ongoing-243655. While the applicant contends that the records should be available in easily accessible format, it appears reasonable to me that use of external consultants would require a more extensive search to ensure that all relevant records are recovered.
The applicant has further argued that the release of the information would be in the public interest as it is likely to contribute significantly to public understanding of the operations or activities of the Irish government, and tax payerfunded bodies. While it may be in the public interest, it does not appear to me to meet the threshold under section 27(6). The Commissioner has highlighted in previous decisions that section 27(6) does not provide for a fee waiver where records contain information that might be made available in the public interest.
For the sake of completeness, I would add that under section 27(6), an FOI body may reduce or waive a SRC charge or deposit if some or all of the information in the records would be of particular assistance to the understanding of an issue of national importance. To meet this criterion, the record must satisfy two requirements: it must relate to a matter of national importance, and, if it does, the record must assist in understanding an issue of national importance. Given the nature of the request, I am satisfied that the records sought in this case do not meet either requirement.
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. In this case, while the applicant may consider that the records should be readily available it seems to me that the fact that they relate to costs alone does not, of itself, mean that all related records should be held together and readily retrievable. Having regard to the Údarás na Gaeltachta’s explanation of the basis on which it estimated the time required to search for and retrieve relevant records in this case, I find that Údarás na Gaeltachta was justified in its decision to charge a fee of €120 in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Údarás na Gaeltachta’s decision to charge a fee of €120 under section 27 of the FOI 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.
24 February 2022