Decision
Mr. Y & The Social Welfare Appeals Office (the SWAO)
From Office of the Information Commissioner (OIC)
Case number: OIC-163672-T2F9R5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-163672-T2F9R5
Published on
Whether the SWAO was justified in charging the fee, provided for under section 27(13)(a)(i) of the FOI Act, to carry out an internal review of its original decision on the applicant’s FOI request
5 December 2025
On 16 July 2025, the applicant sought access to a range of information and records relating to what he described as Welfare Appeal Decision Data and Assessment Methodologies.
In a decision dated 13 August 2025, the SWAO refused parts of the applicant’s request under section 15(1)(a) of the FOI Act on the ground that the records do not exist, refused access to appeal outcome datasets under section 15(1)(d) of the Act on the ground that the information is already in the public domain, and granted access to its current appeal decision template. In its decision letter, the SWAO informed the applicant of his right of appeal under the FOI Act that applies for an internal review of its decision. It said he should include a fee of €10 for processing the appeal.
On 14 August 2025, the applicant sought an internal review of the SWAO’s decision. Among other things, he argued that no application fee is payable for internal reviews under the FOI Act. On 19 August 2025, the SWAO emailed the applicant to confirm receipt of his request for an internal review and to inform him that the information it sent regarding the right of appeal was incomplete. It said that a fee of €30 (€10 if he was covered by a medical card) was required in order to process a request for an internal review and outlined methods of payment. It said that section 27(13) of the FOI Act requires that a fee is paid in order for an internal review request to be valid. The applicant replied that same day and said that the fee should be waived under section 27(5)(b) of the FOI Act. He said that if the SWAO was of the view that a fee is mandatory, it should issue a formal refusal setting out the statutory basis for rejecting his public interest waiver claim. During a subsequent exchange of correspondence, the SWAO refused to waive the fee.
On 17 October 2025, the applicant applied to this Office for a review of the SWAO’s decision to charge a fee to process his request for an internal review.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence outlined above and to the correspondence between this Office and both parties in the matter. I have decided to conclude this review by way of a formal binding decision.
This review is concerned solely with whether the SWAO was justified in charging the applicant a fee, provided for under section 27(13) of the FOI Act, to carry out an internal review of its original decision on the applicant’s FOI request.
This review is not concerned with the substantive decision made by the SWAO on the applicant’s request. Should the applicant choose to pay the fee for an internal review, it will be open to him to make a new application to this Office for a review of the SWAO’s substantive decision if he is not satisfied with its internal review decision.
Section 27(13)
Section 27(13)(a)(i) of the FOI Act provides that a fee of such amount (if any) as may be prescribed shall (my emphasis) be charged by the FOI body and paid by the applicant to the body in respect of an application for internal review under section 21. These application fees are sometimes referred to as ‘up-front’ fees. The prescribed fee is set out in the Freedom of Information Act (Fees)(No.2) Regulations 2014 [S.I. No. 531 of 2014] (hereafter the Regulations). Under Regulation 4, a fee of €30 is prescribed for such applications, or €10 in the case of a medical card holder or a dependant of a medical card holder.
Under the Regulations, a fee is not payable in respect of an application for internal review where:
a) the record(s) contain only personal information relating to the applicant,
b) the application is in relation to a decision under section 9 or 10 or,
c) the application is in relation to a decision to charge a fee or deposit, or a fee or deposit of a particular amount, under section 27.
The Regulations do not contain any other exceptions to the prescribed fee for an application for internal review. It is clear, therefore, that the FOI Act requires applicants to pay a fee to the FOI body when requesting an internal review of its original decision where their FOI request concerns access to non-personal information. It is also clear that the applicant’s FOI request seeks access to records containing non-personal information and not records that contain only personal information relating to the applicant.
In his correspondence with this Office, the applicant said that section 27(5)(b) requires waiver of fees where disclosure is in the public interest and that Regulation 3(2) of S.I. 531/2014 prohibits charging fees where records relate to matters of significant public interest in understanding Government activities. He said that the SWAO had conflated provisions governing search, retrieval and copying fees with internal review fees. He also said that the SWAO’s stance was ‘legally erroneous, procedurally defective, and substantively indefensible’.
The applicant is mistaken in his argument that section 27(5)(b) of the FOI Act requires a waiver of the fees where disclosure is in the public interest. There is no such provision in section 27(5)(b) of the Act. Similarly, the applicant’s claim that the Regulations prohibit charging fees where records concern matters of significant public interest is also mistaken. While there is a provision under section 27(6) of the Act which allows an FOI body to reduce or waive a search and retrieval and copying charge if 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, this provision relates solely to search and retrieval fees and does not apply to the upfront fee for an internal review. The fee for an internal review is a separate charge to the search and retrieval fees provided in the Act. It seems to me that the applicant may be confusing the provisions in the FOI Act whereby an FOI body can charge a fee to search for and retrieve the records sought with the fee provided in the Act to process a request for internal review.
The language of the Act is clear that the charging of an upfront fee for an internal review is mandatory and must be paid prior to an FOI body accepting a request for an internal review. Where the appropriate fee is not paid, the body shall refuse to accept the application, and it is deemed, for the purposes of the FOI Act, not to have been made. While there are specific circumstances as outlined above where no fee applies, such as requests for personal information, it is clear that none of those circumstances apply in this case. In the circumstances, I am satisfied that the SWAO was justified in requiring the applicant to pay the appropriate fee for an internal review of its decision and I find accordingly.
If the applicant wishes to proceed with his request for internal review, he must pay the appropriate fee to the SWAO. If he does proceed and is unhappy with the SWAO’s internal review decision, a right of appeal to this Office will apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the SWAO’s decision to levy the fee prescribed in the Regulations and provided for under section 27(13)(a)(i) of the FOI Act to carry out an internal review of its decision on the applicant’s FOI 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.
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Richard Crowley
Investigator