Case number: OIC-122597-Q7P0M4
7 November 2022
It appears that on foot of a separate FOI request, the CIB provided the applicant with a Service Level Agreement and other records. On 24 January 2022, the applicant wrote to the CIB requesting 25 different types of information and records related to the Service Level Agreement and other matters.
On 28 January 2022, the CIB informed the applicant that his request may have to be refused under section 15(1)(c) of the Act on the ground that processing the request would cause an unreasonable administrative burden. It explained that requests for information or for answers to questions, as opposed to request for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. It invited the applicant to revise the scope of his request to identify more specifically the records sought.
On 31 January 2022, the applicant amended his request and sought access to 15 records or categories of records. On 3 February 2022, the CIB informed the applicant that the estimated cost of processing his request was €860, based on an estimated time of 43 hours to complete the search and retrieval work. It explained that the estimated cost was in excess of the overall ceiling limit which currently stands at €700 and that it was proposing to refuse to process the request unless it could be refined so that the estimated cost of search, retrieval and copying cost falls below the overall ceiling limit. It further explained that if he agreed to refine his request, he would be required to pay a deposit of not less than 20% of the maximum amount for SRC and it sought payment of a deposit of €100. It also informed him of his right to appeal the decision to impose the stated fee and deposit.
On 4 February 2022, the applicant sought an internal review of the decision to impose search and retrieval fees. On 14 February 2022, the CIB issued a decision wherein it formally refused the request under section 27(12) and informed the applicant that his appeal of the decision to charge search and retrieval fees would be considered by amore senior member of staff. On 28 February 2022, the CIB issued its internal review decision, wherein it said it had decided to affirm the decision made by the original decision maker in relation to the request. On 22 April 2022, the applicant sought a review by this Office of the CIB’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 CIB and the applicant as set out above, and to the correspondence between this Office and both the CIB and the applicant on the matter. 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(12) of the FOI Act. I have decided to conclude this review by way of a formal binding decision.
This review is concerned solely with whether the CIB was justified, under section 27(12) of the FOI Act, in refusing the applicant’s request on the ground that the estimated cost of searching for and retrieving records coming within the scope of the request exceeds the overall ceiling limit of €700.
Section 27(1) of the Act provides for the mandatory charging by FOI bodies for the estimated cost of the search for and retrieval and copying (SRC) 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. 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].
Under section 27(5), where the estimated cost of the SRC is likely to exceed the prescribed minimum level, currently €101, the FOI body must charge a deposit of at least 20% of that cost. It must, not later than two weeks after the receipt of the request, issue a notice in writing to the requester requiring payment of the deposit.
Section 27(12) allows an FOI body to refuse to process a request where the cost of the SRC exceeds, or is likely to exceed, a prescribed amount, currently €700. This is referred to as the overall ceiling limit. However, before the body can refuse to process a request on those grounds, it must first assist the requester, if he or she so wishes, in amending or limiting the request to bring the charge below the overall ceiling limit.
In his application to this Office for a review of the CIB’s decision, the applicant presented a number of arguments. He argued that;
It is important to note that the only issue before this Office is whether the CIB was justified in its decision to refuse the request under section 27(12) based on its estimation of the SRC as being in excess of €700. The question of the adequacy of the information released on foot of a previous request is of no relevance. On the matter of whether the CIB failed to properly consider the prior reduction in the scope of the request, I note that its calculation of the SRC was on the basis of the refined request. In relation to the arguments concerning the nature and form of the records sought, I must have regard to the actual manner in which the CIB holds the relevant records.
In relation to the argument that the release of the information sought is in the public interest, it is important to note that the charging of applicable SRC fees is mandatory and the question of whether or not there is a public interest in the release of the information sought is not relevant consideration when estimating the fees involved. Nevertheless, section 27(5) of the Act provides that an FOI body may reduce the amount of, or waive, a search and retrieval and copying charge if it considers that some or all of the information contained in the record concerned would be of particular assistance to the understanding of an issue of national importance. Having regard to the nature of the records sought, I am satisfied that this is not the case here.
The remaining argument is that the fee charged is disproportionate and unreasonable. In its submissions to this Office, the CIB provided a breakdown, by each of the 15 parts of the applicant’s request, of the basis on which it had estimated that processing the request would take 43 hours. In summary, it estimated that the time that would be required for each step in the processing of the request would be as follows:
More generally, the CIB said it migrated to the Build to Share document management platform, eDocs, which moves to replace the previous records management system. The old records management system is still in place, holding records pre-migration, and so a search for electronic records will involve a search of both platforms. On average, teams will have migrated 2 years of work, and so the previous years remain on records management. This will remain the case for CIB until the retention periods are reached and the documents are removed from the previous records management system.
Among other things, the CINB explained that various parts of the request would require varying search and retrieval measures, including ensuring that the correct versions of certain records are identified, consulting staff who were involved in processes for which records are sought, consulting multiple teams (Corporate Services, ICT and senior management, and potential engagement with members of the service delivery company.
In subsequent submissions, the CIB explained that its records management system is divided into eight service delivery companies, with each company administered by an individual in the CIB. It said that each individual has created their own filing system and these are not consistent throughout. It said that while this is something CIB is standardising in the new eDocs system, it is not always a clear path to locate a record, prior to beginning the search. It said that if the records management or eDocs search is not successful in locating the required records, there will be a requirement to search records stored in emails. The CIB added that following internal consultations, it had reviewed and revised downwards its SRC estimate to €720, based on a reduction in the hours allocated to search for and retrieve records relating to parts three, seven, and 10 of the request. It emphasised that the times given are estimates based on previous experience in processing FOI requests but the actual time taken could in fact be more or less.
It is important to note that 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. We expect an FOI body in all cases to be able to explain how its estimate of the costs of search and retrieval was arrived at. If an FOI Body 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, we are not inclined to interfere with that decision.
It seems to me that the CIB has, indeed, provided a reasonable explanation of the basis for its calculation of the SRC fee in this case. As that estimate is in excess of the overall ceiling limit of €700, I find that the CB was justified, under section 27(12) of the FOI Act, in refusing the applicant’s request on the ground that the estimated cost of searching for and retrieving records coming within the scope of the request exceeds the overall ceiling limit of €700.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the CIB to refuse to process the applicant’s request under section 27(12) 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.