Whether the Council was justified in its decision to refuse the applicant's request on the ground that the amount of a search and retrieval and copying charge was likely to exceed the prescribed ceiling of €700

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

The applicant, through her solicitors, submitted a request that was received by the Council on 15 January 2015 for a wide range of records relating to the repair and maintenance of Upper Pearse Road, Sligo, including records relating to the applicant's accident at the location in question. For the purposes of this decision, all references to the "applicant" may be read as references to the applicant or her agents, as appropriate.

On 20 January 2015, the Council wrote to the applicant requesting that she specify the actual records sought as it was of the opinion that her initial request did not contain sufficient particulars to identify the relevant records. The Council also requested the applicant to specify the time-frame covered by the request. By letter dated 26 January 2015, the applicant provided more detailed information concerning the records sought. She indicated that as she was unsure as to what information may be relevant to her claim, she required all records created since the enactment of the FOI Act 1997 relating to the particular stretch of road.

On 23 February 2015, the Council informed the applicant that it estimated the cost of searching for and retrieving relevant records at €1,020. It informed her as the estimated cost was in excess of the prescribed ceiling limit of €700 it was proposing to refuse the request unless the request was refined to bring the search and retrieval costs below the ceiling. It further explained that if an appropriate refinement could not be agreed, then the request would be refused under section 27(12)(a)(iii) of the FOI Act.

On 27 February 2015, the applicant requested an internal review of the decision of the Council in relation to the estimated search and retrieval costs. On 27 March 2015, the Council issued its decision on internal review, wherein it stated that as the request had not been refined, the decision to refuse the request on the ground that the estimated cost of search and retrieval was in excess of the prescribed ceiling limit of €700 was upheld. The applicant applied to my Office for a review of that decision on 1 May 2015.

In conducting this review, I have had regard to correspondence between the Council and the applicant as set out above. I have had regard to submissions received by this Office from the applicant and the Council, and to the provisions of the FOI Act. I have also had regard to the guidance provided by the Department of Public Expenditure and Reform's Central Policy Unit in Notice No. 6 (available at www.foi.gov.ie) relating to the procedures to be followed under section 27(12) of the FOI Act.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant's request under section 27(12)(a)(iii) of the FOI Act on the ground that the estimated cost of searching for and retrieving relevant records was in excess of the prescribed ceiling limit of €700.

Analysis and Findings

The provisions relating to charging for the estimated cost of the search for and retrieval and copying of records are set out in section 27 of the Act and in the Freedom of Information Act 2014 (Fees) (No. 2) Regulations 2014. The provisions of relevance in this review are summarised below.

Section 27(1) provides for the mandatory charging by public bodies for the estimated cost of the search for and retrieval and copying of records. Section 27(3) provides that, subject to section 27(12), the total amount of a charge under section 27(1) shall not exceed such amount as stands prescribed as the appropriate maximum amount, currently €500. Section 27(5) provides that where the estimated cost of the search and retrieval is likely to exceed the appropriate minium level as prescribed, currently €101, the body shall charge a deposit of not less than 20% of the cost and shall, within two weeks of receipt of the request, issue a notice in writing to the requester requiring the payment of the deposit. Section 27(7) provides that the public body shall assist the requester, if asked to do so, to amend a request in order to reduce or eliminate charges arising under section 27(1). Section 27(12) provides that a public body may refuse a request where the amount of a search and retrieval and copying charge exceeds or is likely to exceed the overall ceiling limit prescribed, currently €700. Before doing so, however, it must inform the requester and, if asked, assist the requester in amending the request to reduce the charges to an amount equal to or less than the ceiling limit.

The relevant provisions may be summarised as follows. While a public body is obliged to charge for the estimated cost of searching for and retrieving records, it may not charge more than €500. If the estimated charge is likely to exceed €101, it must seek a deposit within two weeks of receiving the request. However, if the estimated search and retrieval costs are likely to exceed €700, it may refuse to process the request if the requester does not amend the request to reduce the costs to €700 or less.

It seems to me that the Act seeks to strike a balance between ensuing access to records to the greatest extent possible and managing the administrative burden on bodies in dealing with requests that require a significant allocation of time and resources. For example, the requirement to request deposits helps to ensure that public bodies do not allocate scarce resources to processing requests which requesters may not ultimately pursue because of the cost involved. Similarly, the entitlement to refuse to process requests where the estimated search and retrieval costs are likely to exceed €700 is a clear acknowledgement that there are limits on the administrative efforts required of public bodies in processing requests. Indeed, public bodies are also entitled to refuse requests where they consider that granting the request would cause a substantial and unreasonable interference with or disruption of their work, including disruption of work in a functional area (section 15(1)(c) refers).I note that in its submission to my Office, the Council stated that due to the voluminous nature of the request, it had hoped that the applicant would have narrowed the request down sufficiently to avoid the high costs associated with the search and retrieval of information.

However, the provisions also contain a number of safeguards for requesters. For example, a public body is obliged to assist the requester in amending a request both when a deposit is required and when it is considering refusal of a request as a result of the search and retrieval costs exceeding €700, in order to reduce or eliminate costs and/or to ensure the request is processed. Furthermore, the requirement on the public body to notify the requester of the requirement to pay a deposit within two weeks of receipt of the request ensures that requests are not unduly delayed as a result of charges arising. In the normal course, public bodies are required to issue decisions on requests within four weeks of receipt. Section 27(11) provides that where a deposit is required, the normal four week time-frame for making decisions may be extended by the period from the giving of notice of the deposit to the date of receipt of the deposit. In other words, while the clock is stopped for the period while the deposit is outstanding, the general requirement to process the request within four weeks remains.

As I have outlined above, where a public body is considering refusal of a request on the ground that the amount of search and retrieval and copying charge exceeds or is likely to exceed €700, it must first inform the requester and, if asked, assist the requester in amending the request to reduce the charges to an amount equal to or less than €700. The effect of a requester amending the request and thereby reducing the charges to the required level is that the public body can no longer rely upon the provisions of section 27(12) to refuse access. However, the other requirements of section 27 remain to be considered, including the requirement to charge a deposit. I note, for example, that under section 27(12)(a)(iv), where the body decides to process the request regardless of the fact that the search and retrieval costs exceed €700, the requester shall be required to pay the full cost of the charges likely to be payable and section 27(5) shall apply.

I note that the Act is silent on the time-frame within which a public body must notify a requester that it is considering refusal under section 27(12). However, it seems to me that if a public body is to be in a position to comply with the remaining provisions of section 27, including the provisions relating to the charging of a deposit set out in section 27(5) either in circumstances where the requester is willing to amend the request or where the public body decides to process the request regardless of the fact that the search and retrieval costs exceed €700, then it must issue the notification under section 27(12) within two weeks. Failure to do so would mean that the body cannot comply with the provisions of section 27(5).

The Central Policy Unit of the Department of Public Expenditure and Reform has published CPU Notice No. 6 to inform public bodies of important issues in relation to the operation of the FOI fees regime under the 2014 Act. The Notice contains guidance on the timing associated with the refusal of a request under section 27(12), as follows:

"Legal advice has been received in relation to the timing associated with this provision. Important points arising from legal advice:

(i) Letter telling requester that his/her request is to be refused under Section 27(12) and offering assistance in refining the request must issue within 10 working days or request cannot be refused on that basis;
(ii) In order to charge fees for the refined request, the letter issuing under Section 27(12) must also request a deposit in the event that the request is refined;
(iii) A specific deposit must be requested and should be calculated as a proportion of the appropriate maximum amount (currently €500);
(iv) The FOI clock stops once this letter issues (including the request for a deposit);
(v) If letter does not issue within 10 working days informing the requester that his/her request exceeds the overall ceiling limit, the request cannot be refused on that basis and no fees can be charged;
(vi) When a request is refined under Section 27(12), the refined request does not constitute a new FOI request".

I note that the CPU guidance supports my understanding of the provision.

In this case, while the Council issued a notification to the requester under section 27(12) wherein it (i) informed her that the amount of search and retrieval charge was likely to exceed €700, (ii) invited her to amend her request, and (iii) informed her that a deposit would be required in the event that the request was amended to bring it within the ceiling, it did not do so within two weeks of the date of receipt of the request. Indeed, the letter did not issue until almost four weeks after the requester submitted her amended request. I understand that CPU Notice No. 6 was not published on the Central Policy Unit's website when the Council received the applicant's request. Nevertheless, while it is unfortunate that the guidance was not available to the Council at that time, it does not alter the fact that it did not fully comply with the relevant provisions. Therefore, following careful consideration, I find that the Council was not justified in deciding to refuse the request under section 27(12)(a)(iii) as it failed to comply fully with the provisions of section 27.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse the applicant's request under section 27(12)(a)(iii) of the FOI on the basis that the required notification under section 27 was not issued within two weeks of receipt of the request.

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

Peter Tyndall
Information Commissioner