The Commissioner found that, in the particular circumstances of this case, the HSE is not justified in its decision to charge a fee to copy x-rays under section 47 of the FOI Act.

Case Summary

Whether the HSE is justified under section 47 of the FOI Act in its decision to charge a fee of €368.30 in respect of the copying of  58 x-rays. 

Date of Decision: 25.02.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The HSE's decision to charge a fee for copying x-rays arose from an FOI request received on 11 November 2008. The Applicant, through his solicitors, sought copies of all x-rays taken when he was admitted to Cork University Hospital (CUH) following his involvement in a road traffic accident in 2005. The HSE told the Applicant that it had to charge a fee of €6.35 per film to copy the x-rays. The Applicant applied to the HSE on 1 December 2008 requesting an internal review of the decision to levy this charge on the basis that he viewed the copying charge as a refusal and said that he cannot afford the sum of €368.30. The HSE's internal reviewer, on 11 December 2008, upheld the original decision to charge a fee. The Applicant applied to this Office on 9 February 2009 for a review of the HSE's decision.

I note that Ms Alison McCulloch, Investigator of this Office, wrote to the Applicant on 3 July 2009 setting out her preliminary views on this case and that a response was received on 14 July 2009. Since that time, my Office has been in contact with the parties and although I understand that the Applicant's solicitors paid the charge under protest in order to access the records, the parties are still in disagreement as to the imposition of the copying charge. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review I have had regard to the submissions of the HSE as well as those of the Applicant (including those made to the HSE) and the provisions of the FOI Acts.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner.

Scope of Review

This review is concerned solely with the question of whether the HSE is justified in its decision to charge a fee of €368.30 to copy 58 x-rays, in accordance with the provisions of the FOI Act.

Submissions

.

Findings

Statutory Position

Section 47

The position in relation to the charging of fees under the FOI Act is set out in section 47 of the Act. Section 47(1) provides for the charging of fees -

"of such amount as may be appropriate having regard to the provisions of this section.. ".

Section 47(1) also provides for the payment of such fees by the requester "in respect of the grant of a request under section 7."

Section 47(2) states that the amount of a fee under this section shall be equal to:

"(a) the estimated cost of the search for and retrieval of the record concerned, and

(b) the estimated cost of any copy of the record made by the public body concerned for the requester concerned".

Section 47(3) relates to the amount that can be charged and states that :

"...

(b) the amount of the cost specified in subsection (2)(b) shall not exceed such amount (if any) as stands prescribed for the time being and the determination of that amount shall be in compliance with any provisions standing prescribed for the time being in relation to such determination."

The rates referred to in section 47(3) were prescribed in the Freedom of Information Act, 1997 (Section 47(3)) Regulations, 1998 [Statutory Instrument No. 139 of 1998] at €6.35 per radiograph.

Section 47(4) of the FOI Act provides that:

''Where the record or records concerned contain or contains only personal information relating to the requester concerned, then, in calculating the amount of the fee under subsection (1) -......[paragraph (b) of subsection (2)] shall be disregarded if, in the opinion of the head concerned, it would not be reasonable, having regard to the means of the requester and the nature of the record concerned, to include the cost specified in that paragraph in the calculation."

The Submissions of the Parties

It is not in dispute that the records contain personal information relating to the Applicant. Although the Applicant claimed at one stage that the prescribed charge of €6.35 should cover all of the copies as opposed to each of the copies, this does not appear to have been pursued and I am satisfied that the charge prescribed is in relation to each of the films held.

The HSE submission says that the charge permitted under the 1998 regulations is out of date and uneconomic and that the actual printing, which is carried out by an outside agency, is much higher. However, this is not a matter to which I can have regard in that it is a matter for the Minister for Finance to review the prescribed amounts. While I note the HSE's contention that the HSE and the Hospital concerned is operating under budgetary constraints and must move towards applying economic charges, this, in itself, does not justify the levying of charges in this case unless the charge is in accordance with the provisions of the FOI Act.

The HSE further argues that the Applicant is represented by solicitors who would have the ability to pay the charges and that it is reasonable to require payment in the same way as expert and technical reports would be paid for in the preparation of any medico-legal case. Ms McCulloch put this point to the Applicant 's solicitors who responded that they are agents on the Applicant's behalf and that it is their client's and not their own financial circumstances which are relevant. They said that the payment for reports created by a professional service arises from the assessment involved which is not the case where copies of existing records are being sought. I have considered this issue and I must reject the HSE's position. I agree with the Applicant's agent that it is not their circumstances that fall to be assessed here and I consider that it would be untenable to treat a person represented by a solicitor less advantageously than an applicant representing themselves. The HSE says that in handling requests it does not differentiate between individuals and solicitors but that the ''rule of thumb'' is that a copying fee is sought unless the amount is less than €10.

If there is any case to be made for the treatment of the applicant as someone who may, as a result of legal action taken by him, potentially improve his own financial circumstances, this would have to be assessed under section 47(4) which I deal with below. In the course of the review, my Office clarified that the HSE would not consider refunding the charge in the event that the Applicant's legal case was unsuccessful. I am inclined to accept its view that it would be an inappropriate use of resources for the HSE to set up a repayment arrangement if circumstances were to change in the future.

The HSE states that, in view of the large number of x-ray films involved, it would have been open to the Applicant to narrow his request and prioritize those films he required which would have the result of reducing the charge. It says that it is not the intention to cause hardship to requesters and that the Hospital involved is sympathetic to people for whom the fees pose financial difficulty.

In his original request for access to records, the Applicant was stated to be the holder of a medical card and ''without funds''. My Office put it to the applicant that, according to the HSE, he did not hold an Irish medical card at the time of the FOI request. It invited the applicant to provide information about his means as at November 2008. In response, the Applicant's solicitors said that their client had a medical card while resident in Ireland but was not the holder of the medical card or equivalent when he left Ireland. They said that in November 2008, the Applicant was in receipt of a "disablement benefit'' from Ireland. My Office put this information to the HSE which confirmed that had it been previously available, it would have been taken into account.

Onus of Proof

In Case Number 99151 (Mr Michael Grange and the Department of Enterprise, trade and Employment), the previous Commissioner found that section 34(12) of the FOI which place the burden of proof on public bodies to justify refusal of access to records under section 7 does not apply to section 47 cases. Although the present case does not involve an estimate of fees or of time spent on search and retrieval, I would adopt his approach insofar as the following applies:

" ...the Act clearly foresees that there will be cases in which the amount of the fee or deposit sought by the public body will be found by me to be inappropriate. In all cases, I would expect the public body to be able to explain how its estimate ....was arrived at. If the public body concerned gives reasons for its estimate which would indicate that there was a reasonable basis for the calculation...., I would not be inclined to interfere with that decision."

Thus, in assessing whether section 47(2)(b) was properly applied by the HSE, I would expect that it would be able to demonstrate what considerations it took into account when it decided that the provision did not apply in this case having regard to both the nature of the records and the applicant's means. My role is then to assess the reasonableness of that approach.

Section 47(4)(b)- the Applicant's Means

Section 47(4)(b) of the FOI Act provides that the photocopying fee prescribed in section 47(2)(b) shall be disregarded where the decision maker is of the opinion that it would not be reasonable, having regard to the means of the requester and the nature of the records concerned, to include that cost. The Applicant made reference to his means in his FOI request saying that he was "...without funds in case you propose levying any charges". In applying for an internal review, the Applicant said that he is subject to State Benefits in another European country and queries the reasonableness of the charge. Although I accept that it is the HSE's practice to contact applicants or their representatives with a view to exploring whether the charge could be reduced by scaling down the number of records required, my Office has not been supplied with any evidence that this occurred in the present case. Other than references to the fact that "a medical card does not cover costs" and ''Unfortunately, we cannot waive this fee", the HSE's decision making records and its response to queries from my Office do not disclose any consideration of the means of the requester or the reasonableness of applying the statutory charge at the time the decision was made. There is no evidence the HSE made any enquiries to validate the Applicant's claim in regard to his means.

Conclusion and Findings

Although it forms no part of my formal decision, I should say here that I have some sympathy with the HSE's position that managers in the various areas are under increasing pressure to account for resources and to avail of approved revenue generating provisions where possible. However, this cannot be a concern which overrides the proper application of the fees regime in section 47 of the FOI Act. The provisions as regards fees are relatively complex and make significant demands of decision makers in relation to time periods and other considerations; however, that is not something to which I can give weight in applying their provisions. It is interesting to note that this appears to be only the second case in which my Office has had to consider the application of section 47(4)(b). The first case - Case number 090176 - is also a recent decision involving the HSE.

Having examined the information supplied, I have come to the conclusion that, on the balance of probabilities, when it made its decision the HSE failed to consider whether the copying charge should be disregarded as unreasonable under section 47(4) having regard to the Applicant's means and the nature of the records. It seems to me that the HSE is bound, especially when the issue of means is highlighted in the FOI request as in this case, to consider section 47(4)(b) and to form an opinion as to whether the charging of the fee is reasonable having regard to both the means of the requester and the nature of the records concerned. Given that the Oireachtas put such a provision into the FOI Act, it is not open to public bodies to disregard it. In summary, I am not satisfied that the HSE has justified its decision to charge the fee in this particular case either at the time of its decision or subsequently. It appears that undue emphasis has been placed on the fact that the Applicant is represented by a particular firm of solicitors. The actual costs of producing the x-ray films copies and/or the feasibility of reducing the number of copies required may arguably be of some relevance to a consideration of the nature of the records but it is more difficult to see how this would have a bearing on the necessary consideration of the means of the requester.

I note that the waiver of FOI fees on hardship grounds is a common feature of FOI legislation abroad and that assessment of who may qualify for such waiver is generally on a case by case basis. In Victoria, Australia, for example, practice notes suggest that evidence of receipt of social security payments of some kind may generally be taken as sufficient evidence that payment of fees would cause hardship to an individual (see http://www.foi.vic.gov.au/). I cite this example merely to draw attention to the fact that it should be practicable for public bodies to draw up some criteria for decision makers to have regard to when deciding whether to levy charges for records involving personal information.

The HSE submitted in the course of this review that possession of a medical card does not in all circumstances warrant "special arrangements'' being made as regards copying charges. This may well be the case and I make no finding as to the appropriateness or otherwise of using the medical card or particular State benefits as evidence of limited means. While there will always be exceptional cases where discretion can be exercised, it is clearly desirable and fairer to decision makers and to the public that public bodies adopt some measure or indication of what ought to be considered in relation to section 47(4). In this regard, the existing provisions for the payment of a reduced fee for FOI requests and for applications for reviews to my Office are based on the requirement that the applicant be a medical card holder or the dependent of one although there is no exercise of discretion in that context.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997 (as amended) I hereby annul the decision of the HSE in relation to the fee of €368.30.

Right of Appeal

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 decision.

Emily O'Reilly

Information Commissioner

25 February 2010