Whether the Council was justified under section 27 of the FOI Act in its decision to charge a fee of €160 for the cost of search and retrieval of records sought by the applicant concerning the inspection of bridges

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Council on 2 June 2015 for all records relating to Eirspan reports on inspections of bridges within its area from 1 January 2014 assessed as category 5 and a record of the total number of bridge inspections carried out in 2014 and the breakdown of such inspections by category under the Eirspan reporting system.

On 11 June 2015 the Council informed the applicant that the estimated cost of processing the request was €160 and it sought a deposit of €32. It also offered the applicant the option of amending his request to reduce or eliminate the fee payable. On 12 June 2015, the applicant revised the wording of his request. He sought access to details of the total number of bridges within the Council's area that it had a duty to inspect and a breakdown of the bridges inspected by rating category and the projected repair costs for each category. He also sought a copy of the reports for all bridges given a category rating of 5.

In response, the Council stated that, notwithstanding the clarification provided, the estimated fee was unchanged. On 19 June 2015, the applicant applied for an internal review of the decision to charge a search and retrieval fee. By letter dated 1 July 2015, the Council affirming its decision to charge a fee of €160. On 9 July 2015 the applicant a review by this Office of the Council's decision.

Mr Art Foley of this Office wrote to the applicant on 2 October 2015 outlining his view that the Council was justified in its decision to charge a fee of €160 in respect of his FOI request. The applicant indicated that he wished for this review to proceed to a final decision. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to the correspondence between the Council and the applicant and to communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to charge a fee of €160 for the search and retrieval of records within the scope of the applicant's request.

Preliminary Matters

During the course of this review, the applicant suggested that this Office might perform an audit of the Council's use of the fees regime in relation to other requests. This review is being carried out under the provisions of section 22(2) of the FOI Act, and is concerned with whether the fees charged in this instance alone were justified. An examination of the manner in which the fees regime is being utilised by the Council would have to be conducted pursuant to section 44 of the FOI Act, and I am of the view that such an examination would not be appropriate at this time.

Analysis and Findings

Section 27 of the FOI Act provides for the charging of fees for the estimated cost of searching for, retrieving, and copying records in response to FOI requests. The section provides as follows:

"(1)Such amount as may be appropriate having regard to the provisions of this section shall be charged by the FOI body concerned under this subsection and paid by the requester concerned to the body in respect of the grant of an FOI request. The amount of a charge under this subsection shall be equal to the estimated cost of the search for and retrieval and copying of the record concerned by the FOI body concerned for the requester."

(2) For the purposes of subsection (1) "search for and retrieval" includes time spent by the FOI body in-
(a) determining whether it holds the information requested,
(b) locating the information or documents containing the information,
(c) retrieving such information or documents,
(d) extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and
(e) preparing a schedule specifying the records for consideration for release."

(3) For the purposes of subsection (1)-

(a) 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 rates referred to in section 27(3) were prescribed in the Freedom of Information Act 2014 (Fees) (No.2) Regulations 2014 [Statutory Instrument No. 531/2014] at €20 per hour.

During the course of the review, the Council confirmed that the applicant paid the required fee and the relevant information was released by the Council. Accordingly, while the Council's decision to charge a fee was based on the estimated cost of processing the request, it provided details of the time actually spent on the search for and retrieval of the information in its submissions to this Office. The Council stated that one staff member spent eight hours searching for and retrieving the relevant information sought. It stated that the staff member spent one hour determining whether and where the information was held, five hours extracting the relevant information and two hours preparing the schedule of information. This required the retrieval and examination of 91 hard copy bridge reports, in order to extract the information sought by the applicant in his FOI request and the preparation of a document containing the relevant information. It stated that these hard copies of the reports are held in storage in Ballyogan Depot.

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 upon by it, this Office in not generally inclined to interfere with that decision. Indeed, this Office takes 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.

In any event, in this case the Council has provided details of the time actually spent to search for and retrieve the information sought. Nevertheless, it is important to note that the Act requires that the cost of the search for and retrieval of records shall be calculated "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". It seems to me, therefore, that if the Council had been in a position to reduce the time spent on processing the request by conducting a more efficient search and retrieval process, then its decision to charge a fee based on a less efficient process would not be justified.

Following further enquiries by this Office, the Council explained that the 91 reports it retrieved and examined are also stored in electronic files in pdf format. While on its face, an electronic search may appear to present a more efficient process, I accept that all 91 pdf documents would have to be accessed individually and the relevant information extracted manually, and that the schedule of information sought would remain to be prepared, given the precise wording of the applicant's request. It is not clear to me, therefore, that such an electronic search, rather than the manual search performed, would have made a clear and substantial difference in the time expended by the Council in preparing its response in this instance.

In his submission to this Office the applicant stated that he contacted 31 local authorities with an identical request and that the Council was the only one to charge a fee. Furthermore, while he stated that he does not question the Council's bona fides in claiming that it took eight hours to process the request, he has expressed concerns as to the efficiency of the Council's processes given that other authorities appear to him to collate information in a more efficient manner.

On the question of the Council being the only one to charge a fee, I cannot comment upon the reasons why none of the other authorities did so. However, it is important to note that the charging of search and retrieval fees is mandatory, provided the requirements of section 27 are met. Accordingly, the fact that the other authorities did not charge fees is of no relevance to my consideration of whether the Council was justified in charging a fee of €160 in this case. However, I share the applicant's concerns that the Council does not appear to have considered if there may have been a more efficient manner of conducting its search and retrieval in this case. I expect the Council to ensure that future search and retrieval processes are conducted efficiently. Nevertheless, in the circumstances of this particular case, I find that the Council was justified in its decision to charge a search and retrieval fee of €160.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to charge a fee of €160 under section 27 of the FOI Act.

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.

Stephen Rafferty,
Senior Investigator