Case number: OIC-124385-R2H2Q5
7 October 2022
In a request dated 27 January 2022, the applicant made the following three-part request to the Council:
On 10 February 2022, the Council informed the applicant that the estimated cost of searching for and retrieving and copying (SRC) the relevant records, at €750, was in excess of the overall prescribed ceiling limit of €700. It said it was proposing to refuse the request under section 27(12) unless it could be refined so that the estimated SRC charge falls below €700. It offered to assist the applicant in exploring possible amendments to his request.
I understand that on 11 February 2022, the applicant accepted that the records sought at part two of his request were available online and that he agreed to remove part three, thus leaving only part one of the request to be considered.
On 17 February 2022, the Council informed the applicant that it had estimated the SRC fee for processing the refined request to be €380 and it sought payment of a deposit of €190. It also informed the applicant that he could seek a review of the decision to charge a fee and details were provided on how to do so. On the same date, the applicant sought an internal review of the Council’s decision to charge a fee, following which the Council affirmed its decision. On 1 June 2022, 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 submissions made by the applicant and the Council and to the correspondence between the parties as outlined above. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in its decision to charge search and retrieval and copying fees of €380 in order to process the applicant’s FOI request.
In its submissions to this Office, the Council said its estimated fee of €380 covered the cost of searching for and retrieving and copying records held in its FOI Unit only. It said the estimate did not include search and retrieval of records from other sections of the Council, namely, the Human Resources and Transport sections, as well as any records that may have been generated at a Senior Management level, considering the sensitive nature of the original FOI requests. The Council explained that as the initial fee estimate [on the original request] reached above the ceiling limit, its focus shifted to engaging with the requester and refining the scope so that the estimate fell under the ceiling limit, rather than estimating SRC fees for any further records.
The Council’s submission seems to be at odds with its decision to charge search and retrieval fees in respect of the refined request. In its letter dated 17 February 2022, the FOI Officer informed the applicant that she would have to contact several sections
in the Council to retrieve all of the information sought and on that basis, she was of the view that this would require search and retrieval work and that it was therefore appropriate to charge a fee, which she estimated to be €380.
Moreover, I note that in its internal review decision dated 23 February 2022 wherein the Council affirmed the original decision to charge an estimated fee of €380, it stated the following:
“While the FoI Unit would hold many of the records involved in the 2 requests to which you refer, it would not be safe to assume that ‘all internal correspondence and records generated in assessing, working on and deciding on’ the requests would be held by the FoI Unit. Therefore, in the interests of completeness, the FoI Unit decided that searching and retrieving other records not held by the FoI Unit are also applicable to this request, and calculated the estimate of fees accordingly, with regard to correspondence of other sections that may have been contacted and/or are involved in the processing of these requests.”
This Office’s Investigating Officer subsequently requested estimates for the other areas of the Council, which the Council duly provided. In summary, the Council estimated that a further 60 hours would be required in addition to the original 19 hours it previously estimated in relation to the applicant's revised request across its Human Resources, ICT, Internal Audit and T&I sections. The Council said the revised estimated cost of search and retrieval and copying of records now stood at €1,580.
Following receipt of the revised fee estimate, the Investigating Officer queried whether the Council was now relying on section 27(12) of the Act in relation to the applicant’s refined request, in circumstances where the estimate exceeds the overall ceiling limit of €700. The Council confirmed it was now relying on section 27(12). It said the revised estimate was not arrived at until this Office requested submissions from the Council. It said it accepted this revision was an oversight on its part.
Section 27(12) of the Act 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.
The Council’s revised estimate stands at €1,580 which pushes the estimate above the overall ceiling limit. I do not accept that the Council is entitled, at this stage in the process, to refuse the request under section 27(12), in circumstances where it previously agreed to process the request and without having offered the applicant an opportunity to further refine the request.
Moreover, given that the Council sought to rely on section 27(12) during the course of the review, as opposed to during the decision making process, it could not conceivably follow the process for refusing a request under section 27(12) as provided for in the Act. Nor do I deem it appropriate to essentially act as a first instance decision maker following the Council’s change of position.
Accordingly, I have decided to annul the Council’s decision on the original request. I direct it to consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of section 27. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s decision.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council to charge a fee of €1580 for the search for and retrieval of the records sought by the applicant. I direct the Council to undertake a fresh decision making process in respect of the applicant’s request.
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.