Case Number: 160061

Whether the Hospital was justified in its decision to charge a fee of €320 for the cost of search and retrieval of records sought by the applicant relating to the funding of posts at the Hospital between 2013 and 2015

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 Hospital on 12 January 2016 for records relating to funding received by the Hospital from pharmaceutical companies or medical device companies since 2013, posts/hours in the Hospital funded or part funded by pharmaceutical companies or medical device companies since 2013, and the names of external organisations or charities that have provided grants which were used to fill posts in the Hospital since 2013.

On 18 January 2016 the Hospital informed the applicant that it had estimated the cost of processing her request to be €500, on the basis that the fulfilment of her request would involve one member of staff working for 25 hours, and it sought a deposit of €100. It also offered the applicant the opportunity to explore the amendment of her request in order to reduce or eliminate the deposit and search and retrieval fees.

On 20 January 2016 sought clarification as to why 25 hours would be needed and sought to appeal the Hospital's decision to charge the fee, if that remained its decision. In response, the Hospital informed the applicant that it had reduced its estimate of the time required to process the request to 16 hours with the result that the estimated search and retrieval fee was now €320, with an associated deposit of €64. On 28 January 2016, the applicant sought a review of the Hospital's decision to charge a fee of €320. In its internal review decision dated 10 February 2016, the Hospital affirmed its decision to charge a fee of €320. The applicant sought a review by this Office of the Hospital's decision to charge a fee on 10 February 2016.

I note that Mr Art Foley of this Office wrote to the applicant on 22 April 2016 providing details of the basis on which the Hospital had estimated that 16 hours would be required to process the request, and outlining his view that the Hospital's decision to charge a fee of €320 was justified. He invited the applicant to make a further submission on the matter. As no response has been received, I consider that this 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 correspondence between the Hospital and the applicant as outlined above and to communications between this Office and both the applicant and the Hospital on the matter.

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to charge a fee of €320 for the search and retrieval and copying of records coming within the scope of the applicant's request.

Analysis and Findings

Section 27 of the FOI Act requires a body to charge a fee for the estimated cost of searching for, retrieving, and copying records in respect of the grant of an FOI request. 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) are prescribed in the Freedom of Information Act 2014 (Fees) (No.2) Regulations 2014 [Statutory Instrument No. 531/2014] at €20 per hour.

As I have outlined above, Mr Foley of this Office provided the applicant with a detailed breakdown of the basis on which the Hospital had estimated the time required to process the request at 16 hours. He also provided the applicant with details of the steps that would be required to search for and retrieve all relevant records. While I do not propose to repeat those details here, I confirm that I have had regard to them for the purposes of this review.

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. In this case, I am satisfied that the Hospital has provided a reasonable basis on which it calculated the search and retrieval fee at €320. Indeed, in correspondence with this Office, the Hospital confirmed that it had carried out the searches detailed in its submission, and that the search and retrieval had taken considerably longer than had been initially estimated.

In her submission to this Office, the applicant stated that she made a number of FOI requests in the same terms to other hospitals in the country, and that the Hospital was the only one to charge a fee. Nevertheless, it is important to note that the charging of search and retrieval fees in respect of the grant of requests is mandatory, provided the requirements of section 27 are met. As such, the fact that the other hospitals may not have charged search and retrieval fees can play no part in my consideration of whether the Hospital was justified in charging a fee of €320 in this case.

Having regard to the information provided by the Hospital as to the basis on which it estimated the search and retrieval fee in this case, I find that the Hospital was justified in its decision to charge a search and retrieval fee of €320.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to charge a fee of €320 under section 27 of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, 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