Whether the Department was justified in its decision to charge a search and retrieval fee of €838 under section 47(1) of the FOI Act

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

Background

On 29 January 2013, the applicant wrote to the Department seeking all information regarding the total process and instigation for the National Memorial for Victims of Institutional Abuse as recommended in the Commission to Inquire into Childhood abuses in Residential Institutions (The Ryan Report).

On 13 February 2013, the Department informed the applicant of an estimated fee of €838 for the cost of the search and retrieval of the records sought and it sought payment of a deposit of €167.60. On 26 February 2013, the applicant appealed the decision to charge search and retrieval fees, maintaining that the information sought was personal information in that it directly relates to him and others who were incarcerated in such institutions. In a letter of 22 March 2013, the Department affirmed its original decision to charge the fee in question. The applicant wrote to this Office on 10 May 2013 seeking a review of the Department's decision.

On 10 July 2013, Mr Derek Charles, Investigator, notified the applicant of his preliminary view that the Department's decision to seek a deposit in respect of search fees was justified and in accordance with section 47 of the FOI Act. As the applicant has not responded to Mr Charles' letter, I have decided to conclude this review by way of a formal binding decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant, to the Department's submission to this Office, and to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in its decision to charge a search and retrieval fee of €838 under section 47(1) of the FOI Act.

Analysis and Findings

In its submission to this Office, the Department outlined the background to the Memorial Committee's work and the type of records which the Department holds. According to the Department, the remit of the Committee is to:
consider the views of the survivor groups in relation to the location and the nature of the memorial to be erected;
make recommendation on the location and nature of the memorial in a manner that best takes account of the views of the groups representing the survivors of abuse and to consider arrangements for a national day of remembrance and solidarity;
oversee the commissioning and delivery by the OPW (through competition) of a design and building of the memorial.

The Department explained that it has provided secretarial services to the Memorial Committee for over three and a half years and the records held relate primarily to that function. It provided the following description of the different types of records held:

• Arranging of meetings/room hire/payment of expenses,
• Memos of meetings between Survivor Groups / interested parties and the Committee,
• Placement of public notices as instructed by the Committee,
• Circulation of the OPW draft competition documentation to Committee members,
• Records regarding logistics surrounding the International Juror's participation in both competition stages,
• Payments regarding the Committee and competition expenses,
• Ministerial Representations, Parliamentary questions regarding the project.

The Department has reported that references to the Memorial project are also to be found in the following:

• Appropriation Accounts material,
• Public account Committee briefing material,
• Select Committee hearing briefing material,
• Overall Redress issues briefing material,
• Financial reports including annual estimates and monthly profiling,
• Government Memos, updates on the Committee's progress etc.

The applicant sought access to all records relating to the Memorial project. He argued that the information sought was personal information relating to him and that search and retrieval fees should not apply. The Department contends that the records sought are not personal to the applicant. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential". The definition goes on to include twelve categories of information which are considered to constitute personal information. Having regard to the Department's description of the type of records held as set out above, I am satisfied that the information contained in the records is not personal information relating to the applicant. In any event, even if the information sought did fall within the definition of personal information, section 47(4)(a) provides for the charging of search and retrieval fees if the request relates to a significant number of records. Having regard to broad nature of the applicant's request and to the explanation provided by the Department as to the type of records held, I am satisfied that a significant number of records is at issue in this case. Accordingly, the only question I must consider is whether the Department was justified in its decision to charge a search and retrieval fee of €838.

Section 47
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) 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) 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 Department has informed this Office that in an attempt to establish the cost of the search and retrieval fees in this case, it initially selected one random month (May 2012) and ascertained that it would take one hour to gather together all the relevant records for this month. As the Committee had been in existence for three and a half years or 40 months, the Department estimated that it would require 40 hours at €20.95 per hour (the current prescribed rate) to complete the search and retrieval work.

The Information Commissioner has explained in previous decisions that where a 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, she is not inclined to interfere with that decision. In this case, I am satisfied that the basis on which the Department calculated the search and retrieval estimate was reasonable. Accordingly I find that the Department was justified in its decision to charge a search and retrieval fee of €838 in accordance with section 47 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department to charge a fee of €838 in this case.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
6 August 2013