Case number: OIC-124364-G0L2J5

Whether the Council was justified, under section 27 of the FOI Act, in deciding to impose a fee of €780 for the search and retrieval of records coming within the scope of the applicant’s request for certain records relating to a named housing estate

 

16 August 2022

 

Background

In a request dated 15 March 2022, the applicant, a residents’ association, made the following two-part request for access to records held by the Council relating to lands granted public open spaces at their housing estate:

A. “all communications between Cork Co Officials and Elected Representatives on the Carrigaline Municipal District Including inter alia

  • the dates of,
  • attendees at and;
  • matters discussed at meetings/discussions held with our elected representatives

B. all communications between Cork Co Officials and

The original Developer and owner of [a named housing estate] including their agents

  • [named Developer/agent]

And parties who have purchased lands granted public open access at [a named housing estate] including their agents

  • [named parties/agents]”

In subsequent email exchanges, the Council informed the applicant that the request appeared to be voluminous and that it may incur fees or be refused if not refined. It offered to assist the applicant with refining the request by highlighting a number of items which required clarification and/or rephrasing. The applicant said it rejected the Council’s suggestion that the scope of the request was not refined and again referred the Council to its request which the applicant submitted was very well defined.

On 30 March 2022, the Council informed the applicant that the estimated cost of searching for and retrieving the records concerned was €780. The Council said it was proposing to refuse the request unless it could be refined so that the estimated cost of search, retrieval and copying falls below the overall ceiling limit. It again offered to assist the applicant in refining the request. It sought a deposit of €100, subject to the request being refined. It also informed the applicant it could appeal the decision to charge a fee, and details were provided on how to do so.

On 6 May 2022, the applicant sought an internal review of the Council’s decision to charge search and retrieval fees, following which the Council affirmed its decision. On 31 May 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.

Scope of Review

This review is concerned solely with whether the Council was justified, under section 27 of the FOI Act, in deciding to impose a fee of €780 for the search and retrieval of records coming within the scope of the applicant’s request for certain records.

Preliminary Matters                                                                        

This history of the FOI request underpinning this application for review is somewhat complex, insofar as there was considerable interaction and correspondence exchanged between the parties to the request, during which each of the parties adopted different views as regards the scope of the review. The Council said the applicant did not amend or limit its request, while the applicant argued that it refined and calcified the request numerous times. I note that in an email dated 28 March 2022, the Council informed the applicant that it had logged, numbered and forwarded the unedited request to the relevant sections of the Council. The Council said no correspondence refining the request was subsequently received from the applicant who instead chose to exercise the right to appeal the quoted fees. Having reviewed the correspondence between the parties, I cannot see when or how the applicant refined the scope of the request. Moreover, it seems to me that the applicant reiterated its original request throughout the course of the review by this Office. I will proceed, therefore, on the basis that the applicant did not refine the request.

Analysis and Findings

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.

Where the requester does not amend or limit the request such that the charge arising or likely to arise is reduced to an amount less than or equal to the overall ceiling limit, the body may refuse to process the request. However, it may also still decide to process the request, in which case the requester will be required to pay the full charge. The prescribed maximum amount of €500 for search and retrieval charges does not apply in such circumstances. However, the body must also comply with the provisions of section 27(5), i.e. it must also issue a notice, not later than two weeks after the receipt of the request, requiring the payment of a deposit in the event that the requester amends the request or the body decides to process the request regardless of any amendment.

Submissions of the Parties

The Applicant’s Submissions

In its application to this Office, the applicant said it was appealing the Council’s unreasonable attempt to apply charges to access records which should already be in the public domain. It argued that the Council was attempting to frustrate access to records which should be in the public domain and contained in a given planning file and it referred the Investigating Officer to the Planning and Development Act 2000 (Section 38) Regulations 2020 (S.I. 180 of 2020). The applicant said all of the records requested refer to lands granted public access areas under a specific planning file and should be published on the Council’s website in accordance with Section 38 of the Planning Act.

The applicant argued that the records in question should be minimal and no more than ten records as elected representatives are precluded from attempting to influence the planning process and that all records are required in any event to be on the planning file. It referred to the Council’s estimate that the services of at least 3 staff members for at least 39 hours would be the minimum amount of time required to efficiently complete the search and retrieval work on the request, and argued the Council had not attempted to substantiate in any way how this estimate was arrived at. The applicant said it wanted full details of how the amount of the cost of copying the records had been calculated. The applicant said it requested the records in electronic format so no physical copying activities are required. It said the Council did not dispute the fact that all of the records should be in the public domain in its decision letter dated 30 March 2022.

The Council’s Submissions

In its submissions to this Office, the Council provided details of the steps required to search for and retrieve the records sought in this case and outlined the different locations in which the records may be stored. It said it conducted a preliminary examination in three relevant divisions comprising Planning, Municipal Districts and the Chief Executive Office from 2006 to date. It said that even refining the request in its preliminary examination (which refinement was not clearly approved by the applicants) returned a quotation above ceiling limit in the amount of €1,600 (80 hours). The Council provided the following breakdown of the 80 hours which it initially estimated would be required to process this request:

Planning Estimate (10 hours)

a. determining whether it holds the information requested – N/A

b. locating the information or documents containing the information – 1 hour

c. retrieving such information or documents – 1 hour

d. extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request – 6 hours

e. preparing a schedule specifying the records for consideration for release – 2 hours

Municipal Districts Estimate (30 hours)

a. determining whether it holds the information requested - 3 hours

b. locating the information or documents containing the information – 5 hours

c. retrieving such information or documents – 2 hours

d. extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request – 8 hours

e. preparing a schedule specifying the records for consideration for release – 12 hours

Chief Executive Office Estimate (40 hours)

a. determining whether it holds the information requested - 1 hour

b. locating the information or documents containing the information – 2 hours

c. retrieving such information or documents – 4 hours

d. extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request – 30 hours

e. preparing a schedule specifying the records for consideration for release – 3 hours

The Council said the €1,600 (80 hours) estimate was reduced to €780 (39 hours) in light of the anticipated duplication of records across the three directorates. It said the variations in the estimates provided were explicable on the basis of the different nature of the records held by two offices, and the fact that the Chief Executive office, having the highest estimate, is likely to be copied in a high number of emails which reference the applicant/the named housing estate.

The Council said that the applicant's request seeks all communication with all departments of the Council. It said the records would be stored on all individual and group email addresses of all employees, on digital and paper files of all employees in all county hall offices and local area offices. It said there is no central record system that can be interrogated about all communication with a specific developer, therefore the decision makers would be required to look through records from “any time” to 2022 to assess whether there was at any stage communication between the Council and the developers mentioned in the request.

The Council said there generally is a voluminous amount of data concerning the applicant, made more complex by its persistent contacting of Council offices through different channels, offices and employees, including FOI. It said from 2015 to June 2022, 1,278 email records exist originating from the applicant. It said that while these emails are not strictly relevant to the scope of this request, the large amount of communication from the applicant received and replied to by Council officials will inevitably complicate and affect any search for records which contain any reference to the named housing estate. It provided a screenshot of a sample search it had carried out on a member of staff of the Chief Executive office’s email account to this effect.

The Council said the planning department has a portal on www.corkcoco.ie where all planning applications files are in the public domain. It said any document concerning a planning application would be published there. Following queries from this Office, the Council clarified that the specific planning application to which the applicant refers is an older file pre-dating scanning to the website. The Council said the file is available to be viewed on site and its FOI Officer understands the applicants have done so before. The Council said that the planning department makes planning applications available on the web portal on www.corkcoco.ie, however, the requested records are not part of the planning application file. It said the scope of the applicant’s request relates to all records, irrespective of when submitted and, moreover, to records relating to the taking in charge of open spaces which do not form part of the planning application.

The Applicant’s Response

Following receipt of the Council’s submissions, the applicant was contacted for final comments on the matter. By way of reply, the applicant reiterated that it was not looking for access to any other correspondence other than records on planning matters related to [a named housing estate]. It said the Council has on file correspondence going back over ten years, from the applicant and other members of the public, in relation to over eighteen serious planning irregularities to which the Council refuse to respond. The applicant said the only reason the Council has this file is due to this continued refusal to respond to queries from members of the public. It said the records in question should be minimal and no more than ten records, and all should be in the public domain in any event. It said that charges applied for access to records that all agree, including the Council, should be in the public domain, is completely unreasonable and unacceptable. It said it has tried to access these records and made an appointment to view same but has been refused access.

My Analysis

It is important to repeat at this stage that this review is concerned with whether or not the Council was justified, under section 27 of the FOI Act, in deciding to impose a fee of €780 for the search and retrieval of records coming within the scope of the applicant’s request for certain records.

It is also important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

On the substantive issue of the Council’s estimate, I fully accept that what is required of the FOI body in such cases is that it must estimate the SRC charge, without actually carrying out the steps required to locate the record sought. Accordingly, 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. In that regard, 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.

In this case, the applicant considers that there should be no more than ten records relating to this request. However, the fact the applicant believes only a small number of records are relevant to the request, is not an indicator of how much time will be required by the Council to carry out the necessary searches to ultimately reach that conclusion. I note, for instance, that the name of the applicant residents’ association derives from the named housing estate to which the request relates, therefore, any emails sent to, or originating from, the applicant would likely include the name of the estate. As such, I accept that the 1,278 emails originating from the applicant which were generated in the Council’s preliminary examination could add to any search and retrieval work for relevant records carried out by the Council. Therefore, I am satisfied that the Council has provided a reasonable basis on which it has estimated the search and retrieval fee at €780.

Regarding the applicant’s submission that the records sought should be in the public domain and on a specific planning file, this review is not concerned with whether records should be in the public domain in accordance with S.I. 180 of 2020 and section 38 of the Planning Act. In any event, I accept the submission of the Council that the requested records do not form part of the planning application file, irrespective of whether same is in the public domain.

In conclusion, therefore, I find that the Council was justified in deciding that the cost of searching for and retrieving relevant records coming within the scope of the applicant’s request was €780. I would add that it remains open to the applicant to engage further with the Council for the purpose of making a refined request for records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to impose a fee of €780 for the search and retrieval of records coming within the scope of the applicant’s request for certain records.

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