Case 030421. Appeal of deposit under section 47(7) on the basis that section 47(5) applied. Whether section 47(5) envisaged reduction or waiver of deposit in absence of retrieved records.

Case Summary

Facts

The applicant in this case appealed the decision of the Department of Finance to charge a deposit in advance of the search and retrieval of records that were the subject of a request under section 7. The appeal was made on the basis of the applicant's view that section 47(5) applied to the records.

Section 47(5) provides that the head of a public body may reduce the amount of, or waive, a fee or deposit if, in his or her opinion "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".

Decision

Following an examination of section 47(5), the Commissioner concluded that section 47(5) envisages situations where a decision maker, having estimated search and retrieval cost of records in the scope of a request, could, in advance of their retrieval, decide that the records, or some of the records, may potentially be of particular assistance to the understanding of an issue of national importance and reduce or waive the deposit accordingly. The Commissioner noted that section 47(5) is discretionary and that it refers to "the opinion" of the head. She said that while she is not obliged to accept such opinion, she must have strong grounds for rejecting it. Furthermore, the Commissioner noted that section 47(5) does not provide for a fee waiver where records contain information that might be made available in the public interest. Rather, the record must assist in the understanding of "an issue of national importance" which she considers to be a much higher test.

In this case the Department of Finance, during the course of the review, accepted that some of the records in the scope of the request may, potentially, contain information which met the requirement of section 47(5). On that basis the Department agreed to reduce the deposit payable by 10 euro. The Department made the case that, in the absence of the records, it was not possible for a decision maker to make a final determination as to whether "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". The Commissioner agreed with this position and accepted that the deposit be reduced without prejudice to the final outcome of search and retrieval when final costs would be determined.

The Commissioner stated her view that it is not possible to devise a formulaic definition, applicable in all circumstances, of what constitutes a matter of national importance. She considers that each case would have to be examined on its merits in light of all the circumstances pertaining at the time.

Having considered all of the issues in this case, and the decision of the Department to reduce the deposit payable, without prejudice to the final determination on this case which can be made only on review of the records, the Commissioner affirmed the Department's decision.

Date of Decision: 22.12.2004

Our Reference: 030421

22.12.2004

Mr. X

Dear Mr. X

I refer to your application under the Freedom of Information Acts 1997 and 2003 ("the FOI Act") for a review of the decision of the Department of Finance to charge you a deposit in relation to your FOI request ..., in which you sought access to records relating to the proposed ending of tax exemptions for "bookies horse trainers, income from stallions fees, betting income, writers royalties, and the ending of SSIAs".

Background

I have now completed my review of the Department's decision in accordance with the provisions of the FOI Acts 1997 and 2003 (the FOI Act). You make the point in your submission, dated 17 June 2003, that as your request was made prior to the amendment of the FOI Act, the FOI Amendment Act 2003 cannot apply. I must advise you that this view is incorrect. My decisions are de novo, that is, only the circumstances and the law as they pertain at the time of my decision may be taken into account. This view is supported by the 2001 High Court Judgement in the case of the Minister for Education and Science v the Information Commissioner which is available on my Office's website at www.oic.gov.ie (Cases Numbered 98104, 98130 and 99024 - The Sunday Times, The Sunday Tribune and the Kerryman Newspapers and the Department of Education and Science, also available on the website, refer). Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended by the 2003 FOI Act.

On a point of information, I am advised by the Department of Finance that there are no tax exemptions for either bookies or horse trainers per se. As these exemptions do not exist, the question as to whether to continue or discontinue them did not arise in the period covered by your request.

In the course of my review I have had regard to your correspondence with the public body and with this Office, to correspondence between this Office and the Department, and to the provisions of the FOI Act generally. I considered submissions which you made to this Office in the matter on 17th June 2003 and 7th September 2004. I also considered submissions received from the Department of Finance dated 27 June 2003 and 10th September 2004.

The Department's decision was to impose a fee in respect of search and retrieval and to request a deposit from you in accordance with the provisions of section 47, subsections (1), (2), (3), (6A), and (7). At internal review stage the Department reduced the estimate of time it would take to search for and retrieve the records from 28 to 20 hours. Based on the revised estimate, the deposit requested was 83.80 euro (total fee: 419 euro). The amount of the deposit represents 20% of the total estimate in accordance with the provisions of section 47(7)(a).

Scope of Review

The only matter for review at this time is whether the decision to impose the fee and request a deposit, as stated in the Department's internal review decision, was justified.

In your application to this Office you stated that you had requested, along with the information listed above, records related to the building industry. I must advise you that you did not request records related to the building industry in your original request.

Findings

You appealed the Department's decision to charge a fee in this case on the basis that, in your view, the records relate to a matter of national importance and section 47(5) applies. You also appealed the estimate of time the search and retrieval would take and upon which the fee and deposit are based.

Estimate of Search and Retrieval Time

I will deal with the Department's estimate of search and retrieval time first. The position in relation to the charging of fees under the FOI Act is set out in section 47 of the Act. Section 47(2) allows for the charging of a fee for " the estimated cost of the search for and retrieval of the record concerned ... as determined by the head concerned". Section 47(3) relates to the amount that can be charged and states that : "the amount of the cost of the search for and retrieval of a record shall 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.....".

The Department states that the fee of 419.00 euro is based on 20 hours of staff time spent locating and retrieving the records which are being released to you, at 20.95 euro per hour (the current prescribed rate). My predecessor dealt with the matter of fees in some detail in Case Number 99151 - Mr ABW and the Department of Enterprise, Trade and Employment - which is available on my Office's website at www.oic.gov.ie. In that decision he stated that in all fees cases he would expect the public body to be able to explain how its estimate of the cost of search and retrieval was arrived at. He also stated that if the public body gives reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided by it, he would be inclined not to interfere with that decision. I agree with this approach.

My predecessor also drew attention to the fact that whereas section 34(12) provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to my satisfaction that the decision was justified, these provisions do not apply to a decision under section 47. I agree with him when he said "Many (although not all) disputes about fees will turn on the question of the head's estimate of the time to be spent on a search, retrieval and copying exercise that has yet to take place. It would be strange, indeed, if the legislation were to raise a presumption that anestimatewas not justified and to require the head to rebut this presumption in the course of a review by me".

In its submission, the Department stated that your request covered "a broad and diverse range of tax reliefs and exemptions". I am advised that these matters are dealt with by four separate sections within a division of the Department of Finance. The Department stated that due to the broad scope of your request thirty files would have to be retrieved and searched for records. I am also told that records relating to the matters requested by you can be created at different times and be properly filed with other records on other issues (examples given included pre-Budget submissions, representations and papers related to the Budget and Finance Bill). Accordingly, it is not simply a question of locating files on the particular subjects mentioned. I accept the Department's argument that its filing system is not a contributory factor in the time estimated for search and retrieval and that rather this is attributable to the nature of your request. In the circumstances I accept the Department's estimated search and retrieval time in this case.

Section 47(7)(b)

Section 47(7)(b) provides that the process of search and retrieval shall not commence until the deposit has been paid. As you have appealed the amount of the deposit in this case, it follows that the records have not yet been retrieved.

Section 47(5)

Section 47(5) provides that the head of a public body may reduce the amount of, or waive, a fee or deposit if, in his or her opinion "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". To meet this criterion, the record must satisfy two requirements: it must relate to a matter of national importance, and, if it does, the record must assist in understanding an issue of national importance. Section 47(5) does not provide for a fee waiver where records contain information that might be made available in the public interest. Rather, the record must assist in the understanding of "an issue of national importance" which I consider to be a much higher test.

The FOI Act clearly provides, at section 47(5) that the decision maker, having estimated search and retrieval cost of records in the scope, may, in advance of their retrieval, decide that the records, or some of the records, may potentially be of particular assistance to the understanding of an issue of national importance and reduce or waive the deposit accordingly.

The first thing to notice about section 47(5) is that it is discretionary. It provides that head "may" waive or reduce a deposit. Section 47(5) also refers to the opinion of the head. This does not mean that I must accept such an opinion but if I am to reject it there must be strong grounds for doing so.

The Department makes the case that, in the absence of the records it is not possible for a decision maker to make a final determination as to whether "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". I agree with the Department on this point. The Department also notes that there is a distinction to be made between records that relate to a matter of national importance, and records that may "be of particular assistance to the understanding of an issue of national importance". As discussed above, I agree with the distinction made. However, the Department does accept that "one option open to the Deciding Officer, at his or her discretion, would be to make a determination that there may potentially be such information in some of the records". The Department's view is in such circumstances, the deposit may be reduced without prejudice to the final outcome of search and retrieval "when final costs would be determined and when the decision making process is finalised". I agree with the Department's interpretation of the provision as described in this paragraph.

To summarise, in circumstances where records have not yet been retrieved and a deposit is requested, the public body is limited, in its consideration of section 47(5) 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". At the request of my Office, the Department of Finance reconsidered its position on the records that are the subject of your request and decided to reduce the deposit sought by 10 euro. The deposit was reduced on the basis that there may, potentially, be some information in the records which meets the requirement of section 47(5).

In the context of your request which related to taxation, the Department considered that an issue of national importance could be one concerning "those issues which would involve either a substantial amount of the nation's resources or which affect a large number of people". It went on to say "this is not to say that other criteria for the determination of what is a matter of national importance might not apply in other circumstances and for different issues". I accept the implication that it is not possible to devise a formulaic definition, applicable in all circumstances, of what constitutes a matter of national importance. Recent experience of tribunals and public enquiries in Ireland supports this view as many of the matters examined did not necessarily involve a substantial amount of money, nor did they affect a large number of people directly, nonetheless have been considered to be matters of national importance in so far as their impact on Irish society is concerned. I am reluctant, therefore, to develop a definition in this area as I consider to do so may be reductive. 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) 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.

Having considered all of the issues in this case, and the decision of the Department as it now stands to reduce the deposit payable, without prejudice to the final determination on this case which can be made only on review of the records, I consider the Department's approach and decision reasonable and justified.

It is now open to you to pay the deposit and have Department retrieve the records. On receipt of the records you may consider that there are grounds for a waiver of the fee, in which case it would be open to you to appeal the decision at that time. Section 47(11) provides that where a fee is paid and the fee is annulled or varied under section 14, 34, or 42, the amount of the fee so annulled, or the amount by which the fee is varied, shall be repaid to the requester.

Decision

In accordance with section 34 of the FOI Acts I hereby affirm the decision of the Department of Finance in this case.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner