Case number: OIC-107276-G0B7S7

Whether the Council was justified in its decision to refuse the applicants’ FOI request under section 15(1)(h) of the FOI Act on the ground that a deposit payable under section 27 in respect of the request was not paid

 

OIC-107276-G0B7S7

 

Background

 

The history of the FOI request underpinning this application for review is somewhat complex, insofar as – in the course of the Council’s processing of the request – there was considerable interaction and correspondence exchanged between the parties to the request, in the course of which each of the parties adopted different views as regards the scope of the review and certain matters associated with the request, including the decision of the Council to charge a fee for the processing of the request.

 

The applicants initially submitted a three-part request to the Council on 6 August 2020. In response, the Council informed the applicants that the request was not specific enough to enable it to identify the records sought, and sought clarification on the scope of the request, pursuant to section 12(1)(b) of the FOI Act, which provides that a request must contain 'sufficient particulars in relation to the information concerned’ to enable the records sought to be identified by the taking of reasonable steps. Following a significant amount of further interaction between the parties regarding the scope of the request, the applicants clarified, in an email dated 12 October 2020, that their request was for the following:

 

“1. Mr. Y's letter dated 4th August 2016 regarding "ownership of Salthill Park" - ALL information requested below.

 

ALL unredacted information held by Galway City Council both paper and digital surrounding the issuing of this letter both prior to and subsequent to the writing this letter to date. This letter, as you are aware states the lands were the subject of a bequeath.

 

2. Trees Felled in 2016, 2015, 2003 and 2001 - ALL information requested below.

 

ALL unredacted information, both paper and digital, including all correspondence, reports and any petitions held by Galway City Council concerning the above felled trees on lands commonly referred to as Salthill Park, Galway.

 

3. Trees felled at Dr. Mannix Avenue in 2016 - ALL information requested below.

 

ALL unredacted information, both paper and digital, including all correspondence, reports and any petitions held by Galway City Council

concerning the above felled trees at Dr. Mannix Avenue, Salthill, Galway”.

 

The Council considered that the clarifications received were sufficient for the request to be treated as valid and on 20 October 2020, it wrote to the applicants to inform them of its estimate that the services of a staff members for 35 hours would be the minimum amount of time required to efficiently complete the search and retrieval work on the request, resulting in an overall search, retrieval and copying (SRC) fee of €700. It informed the applicants that the estimated cost was above the amount set out in the Act where fees are payable. It advised the applicants to contact it in order to modify the request to bring it within the amount which is payable. It said that, in the event that the request was refined to bring it under the maximum amount, the request would be processed. It added that, if the request was not refined, it might not be in a position to process the request, and that the request might risk being refused under section 15(1)(c) of the 2014, which essentially allows for the refusal of voluminous requests.

 

There followed further interaction between the parties regarding the additional refining of the scope of the request. Ultimately, on 20 November 2020, the applicants clarified that they were seeking access to the following records:

 

“4 No. fellings on lands commonly referred to as "Salthill Park"

1. 2001 (late) Felling of 24 plus trees by Sawgrass Developments .

2. 2003 (late) Felling of 8 No. trees carried out by Mr. Z to include a copy of the Report,

3. 2015 (late) Felling of 8 No trees - Alderbrook, .

4. 2016 felling of 5 No. trees - subject of a Criminal Complaint by Galway City Council and 2 no. prosecutions and convictions, and 1 No. felling at Dr. Mannix Avenue

  1. 2016 felling of 10-12 trees at Dr. Mannix Avenue.

All records held by Galway City Council regarding the issuing of Mr. Y’s letter referring to a Bequeath and the claim of ownership of lands by Galway City Council”.

 

By email dated 27 November 2020, the Council informed the applicants that it was now in a position to proceed with the request. It indicated that as the request was substantially different from the original request, it would begin the FOI process from 26 November 2020.

 

On 9 December 2020, the Council informed the applicants that the revised estimated SRC fee was €460, and sought a deposit of €230. It explained that the relevant timeline for responding to the request would be paused until such payment was received. The Council also indicated that it was open to the applicants, within four weeks, to request a review of the decision to charge SRC fees in respect of their request. Subsequently, more correspondence was exchanged between the parties, in the course of which the applicants queried the regime in relation to SRC fees as provided for in the FOI Act, and the Council’s application of same. However, it would appear that no fee or deposit was paid, and nor was a review sought of the Council’s decision to impose a fee.

 

In an email dated 5 February 2021, the Council noted that the notification of fees issued on 9 December 2020. It asked the applicants to advise by 8 February 2021 how they wished to proceed, namely by paying the deposit of 50% by that date or by further engaging with the Council’s FOI unit in order to refine the request to reduce fees. It informed the applicants that if no engagement was received, a decision on the request would be made.

 

On 9 February 2021, the Council issued a decision on the applicant’s request in which it refused the request under section 15(1)(h) of the Act, which provides that an FOI body may refuse to grant a request where a fee or deposit payable under section 27 in respect of the request concerned or in respect of a previous request by the same requester has not been paid. On 2 March 2021, the applicants sought an internal review of the Council’s refusal of their request. On 24 March 2021, the Council issued its internal review decision, wherein it affirmed its refusal of the request. On 6 May 2021, the applicants sought a review by this Office of the Council’s decision in respect of their request.

 

I have now completed my review of the Council’s decision. In conducting the review, I have had regard to the correspondence between the Council and the applicant as summarised above, and to the correspondence between this Office and both the Council and the applicant on the matter.

 

 

Scope of the Review

 

As outlined above, the decision taken by the Council in this case was to refuse the refined request that the applicants submitted by email dated 20 November 2020 under section 15(1)(h) of the Act. Accordingly, this review is concerned solely with whether the Council was justified in refusing that request under section 15(1)(h) of the FOI Act 2014. It is not concerned with examining the engagements between the parties on the matter of the refinement of the earlier requests or the decision of the Council to charge a SRC fee for processing the request.

 

 

Preliminary Issues

 

In correspondence with this Office, the applicants indicated that their purpose in seeking a review was not to take issue with the Council’s decision to charge a fee, but on what they described as the “substantive supporting issues” of their request. In particular, in their application for a review, and in their written submissions accompanying same, the applicants expressed their dissatisfaction with the Council’s position that part 1 of the refined request of 12 October 2020 (relating to a letter of 4 August 2016 by a Mr. Patrick Foley regarding "ownership of Salthill Park", and information associated with the letter) did not fall within the scope of the FOI Act, on the basis that the records associated with this part of the request were created prior to the commencement of the FOI Act 1997. The Council indicated in its communications with the applicants that, on that basis, it could not consider that aspect of the request. The applicants indicated their wish for this Office to examine this aspect of the matter in its review.

This review has been conducted under section 22(2) of the FOI Act and, as such, is confined to a review of the decision taken on the request. As I have outlined above, the review in this case is confined to a review of the decision of the Council to refuse the refined request under section 15(1)(h). It is not open to this Office to review any aspect of the Council’s handling of the original request that was not ultimately pursued.

 

Nevertheless, for the benefit of both parties, I would note that the position regarding records that pre-date the commencement of the FOI legislative regime is not as straightforward as the Council suggested in its communication with the applicants in respect of part 1 of the request of 12 October 2020. The FOI Act 2014 allows for some circumstances in which access to records created prior to the commencement date of the FOI legislative regime can be granted (section 11(5) refers). As such, it is not correct to suggest that pre-commencement records are not covered by the Act and that a request for such records is invalid. Where a request is made for pre-commencement records and the FOI body considers that section 11(5) does not apply, it should make a decision to refuse the request on the ground that the Act does not apply to the records sought. Such a decision will be subject to the normal rights of internal and external review.

 

 

Analysis and Findings

 
The relevant provisions of the FOI Act

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.

Subsection (5) of section 27 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. The body must notify the applicant, within two weeks of receipt of the request, of the requirement to pay the deposit.

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).

 

Section 15(1)(h) provides that an FOI body may refuse to grant a request where “a fee or deposit payable under section 27 in respect of the request concerned or in respect of a previous request by the same requester has not been paid”.

 

Council’s position

The relevant exchange of correspondence between the parties that ultimately resulted in the Council refusing the request under section 15(1)(h) is set out in the background section of this decision above. In essence, the Council’s position is that it refused the request under section 15(1)(h) as the applicants failed to either pay the deposit or seek to further refine their request. It notified the applicants of the requirement to pay a deposit in respect of the revised request on 9 December 2020 and also informed the applicants on 5 February 2021 that a decision would be taken on the request by 8 February 2021 if the applicants failed to either pay the deposit or seek to further refine the request.

 

My analysis and findings

The requirement to request a deposit where the SRC fee is likely to exceed the prescribed amount is for the benefit of both public bodies and requesters. It helps to ensure that the public body does not allocate scarce resources to processing a request which a requester may not ultimately pursue because of the cost involved. It also offers the requester an opportunity to narrow a request to eliminate or reduce potential cost. Furthermore, section 15(1)(h) allows FOI bodies to bring to a close requests that have essentially been left in abeyance as a result of the failure of requesters to either pay deposits or to pursue an alternative course of action such as seeking a review of the decision to charge a fee in the first instance or seeking to refine the scope of the request in order to reduce or eliminate the SRC fee.

 

The Act is silent on the length of time an FOI body must hold a request before it can refuse the request under section 15(1)(h) on the ground that the deposit sought has not been paid. As such, it seems to me that each case must be considered on its merits. However, it also seems to me that the FOI body must have properly complied with the requirements of section 27 in order to be in a position to refuse a refuse under section 15(1)(h).

 

It is worth noting that the requirement to charge fees in appropriate cases is mandatory, as is the requirement to charge a deposit. It is also mandatory that the notice requesting payment of the deposit issues not later than two weeks after receipt of the request. The requirement on the FOI body to notify the requester of the requirement to pay a deposit within two weeks of receipt of the request ensures that requests are not unduly delayed as a result of charges arising.

 

In this case, the applicants submitted their refined request on 20 November 2020. By email dated 27 November 2020, the Council informed the applicants that having reviewed the refined request, it could now proceed with the processing of the request and that it would begin the processing of the request from 26 November 2020. On 9 December 2020, it issued a notice for payment of a deposit, which was within two weeks of 26 November 2020 but more than two weeks after 20 November 2020, when the refined request was submitted.

 

During the review, the Investigating Officer asked the Council to clarify why it took the decision to treat the request as having been received on 26 November 2020. In response, it said it determined that the request was valid only after all the parties agreed same, namely the applicants and the relevant decision maker. It added that its FOI Unit was required to make certain specified enquiries with the appropriate section before it determined that the request was a valid request.

 

Section 27(5) is clear. The notice requesting payment of the deposit must issue “not later than two weeks after receipt of the request”. The date of receipt of a request is not determined by the date upon which the FOI body determines that a valid request has been made. Rather, it is determined simply by the date of receipt of the request.

 

Notwithstanding the fact that the Council deemed it necessary to seek advice internally in relation to the particulars of the refined request, the fact remains that it was submitted by the applicants on 20 November 2020. As such, by not issuing its notice for payment of the deposit to the applicants until 9 December 2020, the Council failed to meet its obligation under section 27(5)(c) to issue such a notice within two weeks of receipt of the request.

 

Accordingly, in circumstances where the Council has itself failed to meet its obligations under section 27(5) of the Act in respect of the timeframe within which a notice requesting payment of the deposit should issue, I consider that it is not open to me to find that the Council was entitled to refuse the request on the basis that such payment was not received. Accordingly, I find that the Council was not justified in refusing the refined request under section 15(1)(h) of the FOI Act on the ground that it did not comply with the mandatory requirements of section 27(5)(c) of the Act. I consider that the most appropriate course of action is to annul the decision of the Council, the effect of which is that the Council must consider the refined request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicants will have a right to an internal review and a review by this Office if they are not satisfied with the Council’s decision.

 

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse, under section 15(1)(h), the refined request that was submitted to it on 20 November 2020. I direct the Council to conduct a fresh decision making process on the refined request. It is noted that both parties to this decision have a right of appeal, which must be brought within four weeks of notice of the decision having being given to the parties. For the sake of clarity and to assist both parties, in the event that no such appeal is lodged I direct that the Council’s fresh consideration of the request commence from the day after the expiration of the four week period.

 

 

Right of Appeal

 

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.

 

Stephen Rafferty

Senior Investigator