The Commissioner found that the HSE is justified under section 47 of the FOI Act in charging a search and retrieval fee proportionate to those records to which access was granted by the one decision maker (out of a total of 7 decision makers involved) who levied the fee; she varied the decision and directed that the HSE refund to the Applicant the balance of the fee paid.

Case Summary

Whether the HSE is justified under section 47 of the FOI Act in the level of fee charged for search and retrieval of records.

Date of Decision: 14.06.2010

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

Background:

The Applicant's request for a review of the decision of the HSE to impose search and retrieval fees of €335.20 on his FOI request was submitted to my Office on 2 September 2009 and accepted on 22 September 2009.

The FOI request in question was made on 21 June 2009 when the Applicant sought access to the following records:

1. All insurance policies held by the HSE since 01/01/04 pertaining to health and safety of HSE employees/advisers
2. All insurance policies held by the HSE since 01/01/04 pertaining to the CEO, National Directors or former health board CEOs or Programme Managers or CEOs of health agencies employed by the HSE or interim HSE
3. All insurance policies that existed in 2003, 2004 or 2005 for the CEO of each or any health board, the ERHA, area health board, the HSEA or other body subsumed into the HSE
4. The procedures that exist to deal with allegations of bullying by the HR Director
5. The procedure put in place by the Board to deal with allegations of bullying by the HSE CEO or any of his personal advisers who are not HSE employees
6. Records of all meetings of the HSE Board Committee on Remuneration (and Organisation) since its establishment including meetings with HSE officials, advisers, external consultants, CEO, Department of Health etc. to date
7. Records of all correspondence between Prof Drumm CEO and the Board Chairman, Remuneration Committee and Department of Health regarding his bonus claims and payments since 2005 to date
8. All records of secret meetings between Prof Drumm, Maureen Lynatt, John O'Brien and the Mater Hospital authorities when CEO tried to persuade the Mater to move to Grangegorman site with proposed new Paediatric Hospital in defiance of Government decision to locate new paediatric hospital on Mater site in 2006
9. All records in relation to the engagement/procurement of Professor Gerry Lyons, NUIG/ Organisation Design Consultants in 2006 and subsequent correspondence/procurements up to and including 2008 including personal notes of telephone and other conversations and meetings, emails etc involving Prof Lyons, Prof Drumm, Phil Shovlin, Liam Woods and others
10. All records related to the engagement/procurement by the HSE of McKinsey Consultants since August 2005 including correspondence between Ian Simmington, Martin Dewhurst of McKinseys and Brendan Drumm and Phil Shovlin
11. Records of all invoices from (1) McKinsey Consultants (2) Prof Gerry Lyons / Organisation Design Consultants for payment for services rendered incl. hotels, travel in Ireland and abroad, telephone bills, subsistence payments, mobile phones and other electronic equipment
12. All records incl. minutes of meetings / workshops in Winter 2007 involving Prof Gerry Lyons, Liam Downey, Brendan Drumm and his personal advisers Phil Shovlin and others incl. Laverne McGuinness, Liam Woods and John O'Brien regarding organisational structures / integrated care

The HSE assigned Reference No C120/09 to the FOI request. On 6 July 2009, a letter issued to the Applicant on behalf of the National Lead, FOI.

That letter advised the Applicant that his FOI request had been forwarded to seven FOI Decision Makers and that (a) in the absence of further notification regarding delays, he was entitled to a decision within 20 working days and (b) if he did not receive the decision within 20 working days, the FOI Act provided that he could appeal to Mr. Donal Devery, National Lead, FOI.

On 8 July 2009, one of the Decision Makers (Ruth Langan) wrote to the Applicant to advise that she ''was coordinating with all the decision makers involved'' and where possible she would correspond with the Applicant on behalf of all the Decision Makers. Her letter continued with advice on the "costs of your request" and estimated the costs for search and retrieval, at €419 (20 hours at the prescribed hourly rate of €20.95). The Decision Maker went on to explain to the Applicant that the FOI Act provided for a formal estimation of search and retrieval fees where those fees were estimated to exceed €50.79 and for the payment of a deposit in such circumstances The deposit amount requested was €209.50 (50% of the estimated total). The Applicant was further advised that the actual search and retrieval work would not begin until the deposit was paid and that the time limit for the decision on his FOI request would be suspended until such time as the deposit was paid. The Applicant was also invited to consider amending his request for the purpose of reducing the search and retrieval fees. Finally, he was advised of his right to seek an internal review of the decision to impose the search and retrieval fees and the deposit as stated.

On 9 July 2009, the Applicant sought an internal review of the decision on fees. In his request for internal review to the National Lead, FOI, the Applicant advised that he had been informed by the Decision Maker that items 1 to 6 of his FOI request (see above) did not give rise to any search and retrieval fee and that all of the estimated fees related to items 7 to 12. The Applicant raised a number of specific questions and described the fees sought as "wildly excessive and clearly aimed at frustrating, denying and/or delaying the release of certain information contrary to the public interest ..." In relation to the records which were attracting a search and retrieval fee (numbered 7 to 12 above), the Applicant contended that a search of 2 hours should retrieve all the records concerned. In relation to the percentage of the fee which was being sought as a deposit (50%), the Applicant stated that he had been advised by the Freedom of Information Central Processing Unit in the Department of Finance that the normal deposit is 20% of the estimated search and retrieval fee and that the imposition of a deposit of 50% to his request was excessive. The Applicant included two cheques, one for the imposed 50% (€209.50) and one for 20% (€84) which he felt to be the reasonable rate. The FOI Act - section 47(7)(a) - provides that the percentage of estimated search and retrieval costs to be sought as a deposit will be not less than 20%.

On 16 July 2009, the coordinating Decision Maker (Ms Langan) advised the Applicant that his cheque for €84 - 20% of the estimated search and retrieval costs - was being accepted in good faith. The cheque for €209.50 was returned to the Applicant. The letter also advised him that additional time would be necessary for processing his FOI request and that he could expect to receive a decision by 25 August 2009.

On 4 August 2009, the Assistant National Director - HR Operations (John Smith) responded to the Applicant with a breakdown of the estimated work schedule required to search for and retrieve the records requested - a total of 20 hours. Mr Smith also advised that he considered the deposit of 20% to be reasonable and that a detailed record would be kept by all Decision Makers involved of the actual time spent on search and retrieval and that it would be reconciled with the estimated time at the end of the process. The inference was that, if the estimated hours were greater than the actual hours, the Applicant's account would be adjusted accordingly.

On 6 August 2009, a reply issued from the National Lead, FOI,(Donal Devery) which identified the Decision Makers and the Internal Reviewers dealing with the Applicant's FOI request, as follows:

The letter referred to the practice in relation to the charging of a deposit in accordance with the provisions of section 47(7) of the FOI Act and referred to the fact that the minimum deposit of 20% had been accepted in the case. The letter also dealt with a query from the Applicant as to the number of "ordinary citizens (not media)" who had been charged search and retrieval fees for access to corporate records in excess of €400 since January 2008 and advised that the writer was not aware of any such search and retrieval fees having been applied.

On 13 August 2009, the Applicant replied to the National Lead FOI in relation to both his letter of 6 August 2009 and Mr. Smith's earlier letter of 4 August 2009, not having "succeeded in speaking by phone to you or Mr. Smith to clarify a number of matters arising from the correspondence". He listed twenty questions which included a query on Mr Smith's breakdown of costs and particularly a query on the authority to impose a search and retrieval charge for discussions / consultation / review (total of 10 hours). The Applicant concluded his letter by requesting that his application for internal review of the decision to charge him search and retrieval fees be dealt with. On 14 August 2009, the National Lead, FOI replied to the Applicant addressing some of his points, stating that he was not one of the designated decision makers and indicating that he would obtain further clarification from colleagues.

On 20 August 2009, the Coordinating Decision Maker (Ruth Langan) advised the Applicant that the search and retrieval time on his FOI request had been re-calculated at 16 hours, the consequential search and retrieval fee was €335.20 and that, taking the deposit of €84 which had already been paid into account, the balance due was €251.20. The Applicant was advised that the decision on his FOI request would not issue until that balance was received; he was given 8 weeks from the date of that letter to pay.

At that stage, the Applicant submitted his application for review to my Office.

On 4 September 2009, the National Lead, FOI wrote to the Applicant to advise of the significant time and effort which had been "expended to date by many staff in various parts of the HSE in processing your FOI request in accordance with the legislation" and that "the HSE does not intend to engage in extended correspondence in relation to your FOI request outside the process which is provided for by legislation." The Applicant was advised of his right to internal review by the HSE and thereafter to review by the Information Commissioner if necessary.

On 24 September 2009, the Applicant requested an internal review by the HSE on the basis that the statutory time limit for receipt of a decision had passed.

On 30 September 2009, the Head of Workforce Planning & Professional Education (Martin McDonald) advised the Applicant that, having discussed the matter with the coordinating Decision Maker, a "schedule of all records relevant to your request and copies of records to be released will be made immediately available to you upon receipt of the balance of the search and retrieval charges which have been levied in accordance with the legislation."

On 6 October 2009, it appears that the Applicant paid the balance of the fee on the basis that a refund could be made depending on the outcome of this review.

On 6 October 2009, Ruth Langan, the Coordinating Decision Maker issued a decision to the Applicant. The decision was accompanied by a 52 page schedule setting out the records retrieved during the search and the individual Decision Makers' decisions on access. The decision was to grant access to most of the records by way of providing photocopies rather than the requested inspection of original records. This was in accordance with section 12(2)(a) of the FOI Act for reasons of (a) the volume of records involved(b) their multiple geographic locations and (c) the fact that some of the decisions required deletion of parts of some records. The Applicant was advised that the photocopies would not attract a charge. (note: the standard copying charge is €0.04 per sheet). Some information was redacted from the records as exempt and others scheduled were found not to be within the scope of the request.

In my review, I have taken account of the submissions of the parties, the provisions of the FOI Act and the schedule of records provided. In the course of the review, Ms Marie O'Brien, Investigator and Ms Elizabeth Dolan, Senior Investigator put their views to the parties on the application of section 47 of the FOI Act in the context of this case. My Office put it to the Applicant that the HSE might be amenable to settling the case by way of agreement on a reduced number of hours charged for the search and retrieval. The Applicant indicated that he would prefer a formal, binding decision.

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

Scope of Review

This review is concerned only with whether the HSE is justified in the level of search and retrieval fee imposed on the Applicant in relation to his FOI request. The Applicant has made criticisms of the HSE's handling of his detailed request. I have addressed some of the issues raised where relevant to the matter of the fee under review. However, I do not intend to comment on all of the Applicant's views.

Submissions

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Findings

Analysis and Findings

FOI Act Provisions on Search and Retrieval Fees

Section 47(1) of the FOI Act provides that

"... a fee of such amount as may be appropriate having regard to the provisions of this section shall be charged by the public body concerned and paid by the requester concerned to the body in respect of the grant of a request under section 7."

Section 47 (2)(a) of the FOI Act provides that the amount of the fee shall be equal to:

"the estimated cost of the search for and retrieval of the record concerned ... as determined by the head concerned".

Section 47(3)(a) of the FOI Act provides 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 rate referred to in section 47(3) was prescribed by the Freedom of Information Act, 1997 (Section 47(3) Regulations, 1998 (S.I. No. 139 of 1998) at €20.95 per hour.

Application of the Search and Retrieval Fee Provision

Section 47(7) provides that, where the estimated cost of search and retrieval is likely to exceed €50.79, the public body must, within two weeks of having received the FOI request, provide an estimate of the search and retrieval time involved and request payment of a percentage of that cost (not less than 20%) and advise that the process of searching for and retrieving records will not begin until the deposit is paid. The date of payment of the deposit is also a determinant of the date of decision, i. e. the time which elapses between the request for a deposit and its payment does not count in determining the normal four weeks provided for by the FOI Act to make a decision on an FOI request. When a deposit has been paid, the requester has a further 8 weeks in which to pay the remainder of the search and retrieval fee and thereby be granted access to the records scheduled for release in the decision which followed payment of the deposit.

As already noted in the Background section of my decision, the HSE had initially proposed a deposit of 50% of the fee estimated but subsequently accepted the 20% deposit paid by the Applicant.

In her letter of 20 August 2009, Ms Ruth Langan, Coordinating Decision Maker, advised the Applicant that a decision on his FOI request would not issue until the balance of the search and retrieval fee was received (at this point the actual cost of search and retrieval had been calculated at €335.20). It is my understanding that what is envisaged by section 47 is that, on receipt of the deposit, the actual search and retrieval process can begin. The balance of the search and retrieval fee is not required until the requested access is being granted. In other words, the decision on the FOI request, together with the schedule of records retrieved on search, is the trigger for determining the balance of the fee to be paid by the requester. The deposit is based on an estimate; the balance is based on the actual time spent on search and retrieval of the records to which access is being granted.

Previous Decision of Information Commissioner on Search and Retrieval Fees

In the case of Mr ABW and the Department of Enterprise, Trade and Employment(Case Number 99151) the Information Commissioner commented as follows in relation to the estimation of search and retrieval fees:

"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. I note that these provisions do not apply to a decision under section 47. This is hardly surprising. 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 an estimate was not justified and to require the head to rebut this presumption in the course of a review by me.

Whilst public bodies are clearly under a duty to use their best endeavours to estimate the cost of any search, retrieval and copying exercise in as accurate and scientific a manner as possible there will be cases in which they will have very little available material or information on which to base such an estimate. In these circumstances, the Oireachtas could hardly have intended that the Information Commissioner substitute his own estimate (based on the same evidence) for that of the public body.

I incline to the view that the Oireachtas was cognisant of this practical consideration. Nevertheless, it also felt it necessary to require heads to calculate search and retrieval costs based on efficient practices. I am therefore of the view that the Oireachtas intended to confer some latitude on public bodies in their estimation of the time to be spent on a search and retrieval of records but that this latitude was to have its limits. At the same time, the FOI Act confers on the Information Commissioner the jurisdiction to vary or annul an estimate where such an estimate falls outside these limits.

Normally, in cases where the dispute between the parties turns solely on the question of the appropriateness of the public body's estimate of the time to be taken in a future search and retrieval exercise, I would be slow to disturb the decision of the public body. However, 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 of the costs of search and retrieval was arrived at. If the public body concerned 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, I would be inclined not to interfere with that decision."

I have sought to apply this approach in dealing with the current case. However, while the details retained by the Decision Maker in respect of the nature and time spent on searching for and retrieving records from the CEO's Offices are of significant assistance, the fact that there were six other Decision Makers involved in the composite decision has complicated the matter. I appreciate that the request was quite far reaching and covered various areas within the HSE. In response to queries from my Office, the HSE has indicated that only one of the Decision Makers (Ms Whyte) applied a search and retrieval fee. For reasons which are not clear to me, the other six Decision Makers did not.

Calculation of Search and Retrieval Fee

Firstly, I should reiterate that the FOI Act provides that public bodies shall levy the statutory fee and the HSE was fully entitled to do so in this case. The question of whether it did so in relation to other requests is not one which I can address in this review. I am concerned only with the amount calculated. The Applicant argued that the records to which Ms Whyte's decision relates would have been readily available without the need for lengthy searches. The HSE denies that the searches conducted were in any way inefficient and says that its administration and management practices ''conform with professional standards''. Given the detailed notes kept by the Decision Maker in relation to the searches conduced and the responses of the HSE to my Office's queries, I am not satisfied that the records management practices themselves were inefficient. However, it does appear that some elements of the time recorded could not be attributed solely to the Decision Maker's search for and retrieval of records.

During the course of the review my Office drew the HSE's attention to section 47(1) of the FOI Act which makes it clear that a fee falls to be paid in respect of the grant of a request. I have found in other cases that this means that the time taken to receive records which are ultimately refused or withheld must be disregarded in calculating the amount. This view is supported by Article 47(1) of the FOI Act which provides for the refund of a sum paid where a request is refused or is granted only in part. I note that the decision in this case was to grant access in part to the records requested.

My Office also drew attention to the fact that only time spent on searching for records and retrieving them was to be included in the calculation of the fee as the Act did not provide for the time spent on other tasks more related to the processing of the request or the making of the decision. The HSE revised its calculation of fees for search and retrieval downwards from 18 hours 15 minutes (rounded down to 16 hours) to 12 hours 15 minutes (rounded down to 10 hours). This followed a review by the HSE as a result of which any activity other than actual search and retrieval was subtracted from the calculated hours.

The corresponding reduction in the search and retrieval fee was from €335.20 (rounded down by the HSE from 18 hours 15 minutes to 16 hours @ €20.95 per hour) to €209.50 (12 hours 40 minutes rounded down to 10 hours @ €20.95 per hour).

In response to queries posed by Ms Dolan of my Office, the HSE stated in December 2009 that the records under the control of Decision Maker Ms Whyte in the CEO's Office to which the search and retrieval fee provisions of section 47 had been applied were subsequently released in full. My Office established that of the 241 records to which access was granted, only 91 belonged to Ms Whyte's decision.The HSE accepted this and the review proceeded on the basis that the fee at issue was confined to those records to which access was granted by Ms Whyte in her decision under sections 7, 8, 9, 10 and 12 of the Schedule. In May 2010, the HSE confirmed Ms O'Brien's understanding that the revised search and retrieval time calculated related to all 184 records in sections 7, 8, 9, 10 and 12. Having identified the released records appropriate to the one Decision Maker who imposed a search and retrieval fee (Ms Whyte) in sections 7, 8, 9, 10 and 12 of the schedule of records (see table on next page). I find that a fee of €58.65 is proportionate for the 91 records to which the Applicant was granted access by Ms Whyte.

The Applicant has paid a search and retrieval fee of €335.20 to the HSE. Accordingly, a sum of €276.55 falls to be refunded to the Applicant.

Decision

Having carried out a review under section 34(2) of the FOI Act, 1997, I hereby vary the decision of the HSE on the level of fee under section 47 of the Act and direct it to refund to the Applicant the sum of €276.55.

Right of Appeal

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

14 June 2010