Case number: OIC-139858-F0X1C9
21 September 2023
In a request dated 13 February 2023, the applicant made a request to the Council for information comprising the number of planning permissions granted before 13 February 2017 where interest charges had been applied to the financial contributions, and the value of interest charges collected in respect of the permissions concerned. On 16 February 2023, the Council notified the applicant that the estimated cost of searching for, retrieving and copying the records sought was €391.22. It informed the applicant that it required a deposit of 20% to begin processing his request.
On 1 March 2023, the applicant indicated that he would pay a deposit of €100 on being provided with the cost breakdown. On 7 March 2023, the Council provided the following breakdown:
€371.22 (one day’s salary for Financial Accountant)
€20.00 (copying & stationery charge)
On the same date, the applicant informed the Council that while he would pay the deposit, he wished to appeal the charge of €391.22. He also queried why a Financial Accountant was required to process the request. The following day, on 8 March 2023, the applicant paid the deposit of €100. However, it appears that the Council did not treat his email as a request for an internal review of its decision to charge a fee.
On 29 March 2023, the Council informed the applicant that the balance of €291.22 was due. It indicated that it would send on the requested information on payment of the balance of the fee. The applicant paid the fee of €291.22, but he indicated that he was doing so without prejudice to his appeal in respect of the charge. On 31 March 2023, he sought an internal review of the Council’s decision to charge a fee of €391.22.
On 18 April 2023, the Council affirmed its decision. On 23 June 2023, the applicant applied to this Office for a review of the Council’s decision to charge a fee of €391.22 for the search, retrieval and copying (SRC) of relevant records.
While it does not form part of this review, I understand that on 6 April 2023, the Council issued a decision on the applicant’s substantive request. It informed the applicant that only two planning permissions during the relevant timeframe met the criteria and notified him of the amount charged in total. Following a request for clarification, the Council provided the applicant with a breakdown of the payment in each case.
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 applicant and to the submissions made by the FOI body in support of its decision. I have also had regard to the guidance provided by the Central Policy Unit of the Department of Public Expenditure and Reform (CPU) in Guidance Note 6 (REV) on Fees and Charges (available at www.foi.gov.ie) relating to the procedures to be followed under section 27 of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether the Council was justified, under section 27 of the FOI Act, in deciding to charge a fee of €391.22 to search for and retrieve records within the scope of the applicant’s request.
During the course of this review, the Council stated that it had been open to it to refuse the applicant’s request under section 15(1)(a) of the FOI Act, as information sought did not exist in the format requested. It stated that in order to respond to the applicant’s request, its staff had to manually cross-reference two data sets from separate IT systems.
It is important to note at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Furthermore, the FOI Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
In the circumstances, it appears as though the Council could have reasonably refused the applicant’s request on the basis that it did not hold any records containing the specific information in the format sought and that it was not required to manually collate or create a new record to respond to his request. This Office has noted in previous cases that while public bodies collect, generate and use vast amounts of information as a matter of course, the maintenance of and access to such information, by design or practice, relate to their own particular functions and reporting requirements, not necessarily those of applicants. Simply put, FOI bodies are not required to design reports and systems in order to best answer FOI requests. However, in this case, the Council chose not to refuse the applicant’s request on that basis and instead informed him that an SRC fee would apply. As noted above, the Council’s decision to charge the fee concerned and the amount charged is the sole matter under review in this case.
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.
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.
The SRC charge is calculated at a prescribed amount per hour in respect of time that was spent, or ought, in the opinion of the body, to have been spent in carrying out the search for and retrieval of the records efficiently (section 27(3) refers). This amount is currently set at €20 per hour under the Freedom of Information Act 2014 (Fees) (No. 2) Regulations 2014 [S.I. No. 531 of 2014] (the Regulations). The Regulations also set out the current, maximum amount which may be charged for copying a record, which is 4 cent per sheet.
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.
During the course of the review, the Council confirmed that it has actually carried out the search and retrieval work in this case. As such, in its submissions, the Council provided the details of the actual time taken to search for and retrieve relevant records and the relative charge for same. In its submissions, the Council stated that it arrived at a figure of €394.63 in question based on the following calculations:
On receipt of details of the fee charged by the Council, the Investigating Officer informed the Council of her view that it had not complied with section 27(3) of the FOI Act nor the Regulations. In response, the Council acknowledged that it made an error applying a fee based on what it described as “actual cost” as opposed to the fees set out in the 2014 Regulations. It stated, however, that having regard to the cost incurred by the Council in facilitating the requestor, it was nevertheless appropriate to charge a fee at a “reduced rate” of 10 hours at €20, i.e. €200 plus copying charges of €2.40, giving a new total of €202.40. It said that this fee would comply with the relevant Regulations. Despite a query from the Investigating Officer regarding the basis for the copying charge it did not explain what copying was carried out.
The Central Policy Unit (CPU) of the Department of Public Expenditure and Reform Guidance Note 6 (REV) states that “when the records relating to the FOI request are ready to be released to the requester, the FOI body should calculate how much SRC was actually involved in processing the request in respect of the records actually released. In that regard, unless the FOI body has evidence to calculate differently, it is reasonable to calculate the cost of the released records on the basis of the proportion of the total records”.
In the present case, the Council did not release records to the applicant, but instead it provided nominal information by way of answering his substantive FOI request. I also note that the Council’s answer was that in only two cases were interest charges applied to financial contributions concerning planning permission granted before 13 February 2017. While the Council has not made any submissions as to the specific number of records which contained the information actually provided in response to his request, the SRC charge applied seems wholly disproportionate in relation to the small amount of information provided to the applicant in response to his request. Furthermore, the Council has provided two conflicting versions of the calculations used to arrive at the fee charged, one to the applicant and one to this Office, neither of which complies with the Regulations.
In the circumstances of this case, I find that the Council was not justified in charging a fee of €391.22 and I direct that the monies paid should be refunded to the applicant.
For the benefit of the Council, I wish to add that the relevant provisions in the FOI Act relating to the charging of SRC fees are quite complex. They are also subject to strict requirements and time-frames which can prove challenging for FOI bodies to meet, given the complexity of the issues to be considered. However, comprehensive guidance is available on the applicability of the provisions, both on our website www.oic.ie and on the website of the Central Policy Unit of the Department of Public Expenditure and Reform www.foi.gov.ie. I expect the Council to make the relevant staff aware of the guidance available and to have regard to it when processing such requests in future.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to charge a fee of €391.22 for the search for and retrieval of the records sought by the applicant and direct that the applicant be refunded the monies already paid by him.
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.