Case number: OIC-92559-W9V0T3
8 October 2020
On 6 April 2020, the applicant submitted a request to the Department seeking access to final sanctions issued, from the period 1 December 2019 to 28 February 2020, for salaries (in respect of civil or public servants with salaries above €110,000), relocation expenses, car allowances, bonus payments, or performance-related pay, in excess of previously agreed rates.
On 20 April 2020, the Department informed the applicant that it had estimated the cost of searching for and retrieving relevant records to be €200 on the basis that processing the request would require 10 hours to efficiently complete the search and retrieval work on the request. It sought a deposit of €40 to allow for the processing of the request to proceed. It also informed the applicant that he may wish to explore possible amendments to his request which might reduce or eliminate the deposit and/or fee.
Following a number of email exchanges in relation to the refinement of his request which did not result in a reduction or elimination of the search and retrieval costs, the applicant sought an internal review of the decision to charge the fee of €200. On 8 June 2020, the Department affirmed the decision to charge the search and retrieval fees. On 9 June 2020, the applicant sought a review by this Office of that decision.
During the course of this review, Ms Swanwick of this Office provided the applicant with the details of the Department’s explanation of the basis on which it had estimated that 10 hours would be required to process the request. She informed him of her view that the Department was justified in its decision to charge an estimated fee of €200 and invited him to make a submission on the matter. In response, the applicant indicated that he wished the review to proceed.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.
This review is concerned solely with whether the Department was justified, under section 27 of the FOI Act, in charging a fee of €200 for the search and retrieval of relevant records coming within the scope of the applicant’s request.
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 (2) provides that 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
Subsection (3) provides that the amount of the 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).
Requirement to assist:
The applicant’s primary argument in this case is that the Department did not properly comply with the requirement to assist him in amending or limiting the request. He argued that the Department should have presented him with viable options for amending his request and that it did not do so.
In response to the Department’s notification of 20 April 2020 requiring payment of a deposit, the applicant informed the Department that he was happy to discuss refinements that would bring the request below the threshold at which search and retrieval fees apply. He asked for suggestions as to how this might be possible. On 12 May 2020, the Department suggested that to reduce the estimate, the applicant might consider focusing his request to a specific post or posts, or to posts under the aegis of a particular Department. In response, the applicant said there was no way for him to know what post(s) or department(s) are involved but if it was possible for the Department to provide a list, he would confine the request on that basis.
On 15 May 2020, the Department said that to provide a list would require staff who may hold relevant records to undertake some of the search and retrieval activities, effectively fulfilling a significant portion of the request. It suggested that if he wanted to resubmit a request focused on a particular post or Department, it could reassess the level of fees involved. In response, the applicant said he was open to any suggested refinement of the request that would do this. He argued that he had been presented only with options that are impossible for a person who is not employed in the Department. He reiterated his position that he was open to further discussions on refining the request which do not involve him having prior knowledge he cannot possibly have.
While the Act is silent on the precise nature or level of the assistance to be provided under subsection (7)(a), I am cognisant of the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests. On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances. While there is an onus on FOI bodies to assist when asked to do so, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type and nature of the records held.
On the other hand, while FOI bodies would have a far greater knowledge of the nature and types of records held, it seems to me there may be occasions where, in order to provide a sufficient level of assistance sought that might readily allow a requester to refine a request, the body would have to undertake, in part at least, one or more of the steps that would have formed part of the search for and retrieval of the records sought in the original request. It seems to me that to require an FOI body to do so would defeat the purpose and intent of the mandatory obligation to charge search and retrieval fees and to charge a deposit in the first instance. For example, the 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.
The applicant argued that, given what he considers to be the low numbers and the quite unusual process the sanctions involve, the information would be quite readily remembered by those who deal with such requests. He suggested that they are, by their nature, infrequent and exceptional cases and he argued that the appointments generally require the approval of the Minister and/or Secretary General for whom submissions are created. He suggested the records would be logged on the Department's e-submission system and can easily be searched.
The records sought in this case relate to the discrete issue of pay related sanctions issued by the Department. In its submission to this Office, the Department explained how such sanction requests are processed. It explained that, in general, a department submits a sanction request for the filling of a post, within either the civil service or a public body under its aegis, to the relevant Vote Section within the Expenditure Division and it is then directed to the Public Service Pay and Pension Division, which leads the assessment. It noted, however, that if the request forms part of a wider restructuring proposal, the decision comes primarily under the remit of the Expenditure Division.
The Department said that, in general, once a decision is made, the sanction issues from the relevant Vote Section. However, it could also issue directly from the Senior Pay Policy Unit. Copies of the sanction issued are saved on its “eDocs” filing system, while the Public Service Pay and Pensions Division and the Expenditure Division maintain their own separate filing. Vote Sections may also retain a hard copy of the sanction issued.
The Department further explained that, in many cases, a sanction would outline what terms are to apply, potentially referencing salary, tenure, and means of advertisement. It said, however, that it is unlikely that a sanction would directly address whether the terms represented an increase on the previous salary for the post, thereby requiring a further investigation to confirm whether a particular sanction fell within scope. It is, in essence, the Department’s view that the applicant’s request is broad in nature as it does not identify a particular record and, instead, refers to records that may or may not exist. It noted that it is not possible to identify potential records within scope by performing an electronic search for a particular post(s) or by using a phrase such as “sanction in excess of agreed rates” and that a manual searched, carried out by a number of officials in different sections of the Department would be needed. It went on to describe the specific nature of the search and retrieval tasks to be undertaken by both the Senior Pay Policy Unit and the Expenditure Division.
In my view, this is not a case where the manner in which the Department can offer assistance to the requester that would definitively allow him to refine his request is immediately apparent. While I fully accept that the applicant may not have the required knowledge that would allow him to refine the scope of his request to a particular post or posts, it is also apparent, from the Department’s description of the manner in which sanction requests are processed, that the Department would not be in a position to offer a list of relevant posts for consideration without conducting a search for relevant records. I also note that the timeframe for which records were sought is not excessive and does not offer an obvious opportunity to refine the request.
In this case the applicant sought access to a discrete set of records relating to salary related sanctions for a specified period. In essence, the Department’s position is that the only way it can identify the specific records sought is to conduct a search of the relevant areas.
In my view, subsection (7)(a) does not impose such a burden on FOI bodies as to oblige them to attempt to identify discrete proposals for amending a request to allow for the reduction or elimination of search and retrieval fees where such proposals are not apparent. Nor do I accept that an apparent failure of an FOI body to readily identify such proposals means that it cannot charge search and retrieval fees. It seems to me that, depending on the particular circumstances, of the case, it may not always be possible to give such a level of assistance.
I note that the Department previously assisted the applicant in refining an earlier request for records relating to salary related sanctions issued. In that case, the applicant originally sought access to a range of records relating to such sanctions. Following engagements between the parties, the applicant accepted the Department’s suggestion that the request be refined to the sanctions that issued. While the Department processed that request without requiring search and retrieval fees, I understand that it underestimated the time that would be required to process the request in that case.
In this case, the applicant has submitted a similar request based on the agreed wording of the previously refined request. However, the Department’s position, having direct experience of processing the prior request, is that the estimated cost of searching for and retrieving relevant records is €200. Accordingly, in an effort to reduce or eliminate that charge, the applicant considers that the Department should go further in terms of its suggestions for further refining the current request.
It seems to me that both parties were clear as to the nature of the records sought and that opportunities for further refining the request were not apparent. Nevertheless, the Department suggested that the applicant may wish to resubmit his request for records relating to a particular post or Department. Understandably, the applicant argued that he did not have the requisite to knowledge to identify a particular post. However, he did not offer any other alternative suggestion as to what records he might be prepared to accept.
In the particular circumstances of this case, and in light of my views as to the limitations that apply to the requirement on FOI bodies to provide assistance under section 27(7), I find that it is not a case where it can be said that the Department failed to comply with the provisions of section 27(7).
The estimated charge:
On the matter of whether the Department was justified, under section 27 of the FOI Act, in charging a fee of €200 for the search and retrieval of relevant records coming within the scope of the applicant’s request, I have noted above that Ms Swanwick of this Office provided the applicant with the details of the Department’s explanation of the basis on which it had estimated that 10 hours would be required to process the request. As such, I do not propose to repeat those details in full here, although I have had regard to them for the purpose of this decision.
In summary, the Department estimated that the search and retrieval work would take five staff members a combined total of 10 hours. In providing a breakdown, it noted that, while there was some overlap in the carrying out of activities, it would take 2.5 hours to determine if records are held, 2 hours to locate the records, 1 hour to retrieve the records, 2.5 hours to extract the records from files, and 2 hours to prepare a schedule.
In support of its estimate, the Department referred to the previous similar request submitted by the requester, the scope of which was narrowed to bring the search and retrieval fees below the prescribed minimum threshold. That request also concerned sanctions for salaries (above €110,000), relocation expenses, car allowances, bonus payments, or performance-related pay, in excess of previously agreed rates, and covered the final sanction that issued from the Department.
However, it concerned a longer timeframe of seven months, from 1 May 2019 to 30 November 2019. The Department said that following the processing of that request, it was conscious that the time involved in search and retrieval was greater than the five hours initially envisaged and, as such, consulted a staff member who had been involved in the matter. It said the staff member had spent approximately 10 hours on the search and retrieval work for that request, and that this figure did not include the work of other staff members. The Department noted that the fee estimate for the request at issue was calculated in light of this previous experience and in consideration of its own particulars, such as the timeframe involved.
Where a public body gives reasons for its estimate which indicate that 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, I am satisfied that the Department has provided a reasonable basis on which it has estimated the search and retrieval fee at €200.
Issue of national importance:
Finally, section 27(6) provides that an FOI body may reduce or waive a search and retrieval charge or deposit if it considers that some or all of the information contained in the records concerned would be of particular assistance to the understanding of an issue of national importance. It is not sufficient that the information simply relates to an issue of national importance. It must also assist in understanding an issue of national importance. It is noteworthy that the section does not provide for the waiver of a fee where records contain information that might be made available in the public interest. Rather the information must assist in the understanding of an issue of national importance, which this Office considers to be a much higher test.
In circumstances where records have not yet been retrieved and a deposit is requested, as in this case, the FOI body is limited in its consideration of section 27(6) to making a judgement as to whether some or all of the records that are the subject of a given request may potentially contain information which would be of particular assistance to the understanding of an issue of national importance.
The question of what constitutes an issue of national importance is not defined in the Act nor does this Office consider that it is possible to devise a formulaic definition that might apply in all circumstances. As the former Commissioner noted in Case 030421 (available at www.oic.ie),
"The reality is that it is society itself which determines if an emerging issue is a matter of national importance at a particular time and not just a matter of general public interest or a matter of widespread discussion. In the context of an FOI review where section 47(5) [the equivalent provision in the FOI Acts 1997 & 2003] might apply, I consider that each case would have to be examined on its merits in light of all the circumstances pertaining at the time."
It is, in essence, the applicant’s position, that there is a public interest in relation to the disclosure of information relating to the negotiation and approval of salary sanctions for senior civil/public service posts in excess of previously agreed rates, in particular, given the Covid 19 pandemic. As I have indicated above, the question I must consider not whether some or all of the information contained in the records sought relates to an issue of national importance but whether it would be of particular assistance to the understanding an issue of national importance.
It might be argued, given the current climate and the significant demands being placed on the public purse, that the general issue of the management of the public service pay bill is one of national importance. I accept that information which may disclose that sanction issued in respect of specific posts for salary related payments in excess of previously agreed rates can generally be regarded as relating to that issue. However, having regard to the Department’s description of the likely contents of the records sought, even if I was to accept the management of the public service pay bill to be an issue of national importance, I am not persuaded that the information in the records at issue would be of particular assistance to the understanding of that issue.
As I have outlined above, the Department explained that a sanction would generally outline what terms are to apply, potentially referencing salary, tenure, and means of advertisement. It said, however, that it is unlikely that a sanction would directly address whether the terms represented an increase on the previous salary for the post. It would appear that the sanction sought would not contain any kind of detailed analysis of the management of the public service pay bill that would be of particular understanding to its management. I find, therefore, that section 27(6) does not apply in this case.
In conclusion, I find that the Department was justified, under section 27, in its decision to change a fee of €200 for the search for and retrieval of records coming within the scope of the applicant’s request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to charge a fee of €200 for the search for and retrieval of final sanctions issued, from the period 1 December 2019 to 28 February 2020, for salaries (in respect of civil or public servants with salaries above €110,000), relocation expenses, car allowances, bonus payments, or performance-related pay, in excess of previously agreed rates.
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.