Case Number: 170243

Whether the Council was justified in refusing to waive a fee of €200 for the cost of searching for and retrieving records sought by the applicant relating to the regulation of dog breeding establishments under section 27(6) of the FOI Act

Review: 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 detailed multi-part request to the Council on 8 March 2017 for records concerning various matters relating to the regulation of dog breeding establishments (DBEs). The request was for specific documents referenced in emails of Council officials and relating to a specific, separate, FOI request made by a journalist. On 14 March 2017 the Council informed the applicant that it had estimated the cost of searching for and retrieving the records sought to be €200 and it sought a deposit of €100 in order to process the request. It also offered the applicant the option of exploring possible amendments to the request that might reduce or eliminate the deposit and/or fee.

It appears that the applicant and the original decision maker subsequently exchanged emails on whether the fee should be waived under section 27(6) of the FOI Act and that the Council did not agree to waive the fee. On 19 April 2017, the applicant sought an internal review of the Council's decision to impose a search and retrieval fee. She argued that the fee should be waived under section 27(6). On 11 May 2017, the Council affirmed its decision to charge a fee of €200. The applicant subsequently sought a review by this Office of the Council's decision to refuse to waive the search and retrieval fee.

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

Scope of Review

This review is concerned solely with whether the Council was justified in refusing to waive the search and retrieval fee of €200 for processing the applicant's request on the ground that section 27(6) of the FOI Act does not apply in the particular circumstances of the case.

Analysis and Findings

Section 27(1) provides for the mandatory charging by FOI bodies for the estimated cost of the search for and retrieval and copying of records (SRC charge) in respect of the grant of an FOI request. Under section 27(6), an FOI body may reduce or waive the SRC charge if it considers that some or all of the information contained in the records concerned would be of particular assistance to the understanding of an issue of national importance. It is not sufficient that the information simply relates to an issue of national importance. It must also assist in understanding an issue of national importance. It is noteworthy that the section does not provide for the waiver of a fee where records contain information that might be made available in the public interest. Rather the information must assist in the understanding of an issue of national importance, which this Office considers to be a much higher test.

In circumstances where records have not yet been retrieved and a deposit is requested, as in this case, the FOI body is limited in its consideration of section 27(6) to making a judgement as to whether some or all of the records that are the subject of a given request may potentially contain information which would be of particular assistance to the understanding of an issue of national importance.

The question of what constitutes an issue of national importance is not defined in the Act nor does this Office consider that it is possible to devise a formulaic definition that might apply in all circumstances. As the former Commissioner noted in Case 030421 (available at www.oic.ie),

"The reality is that it is society itself which determines if an emerging issue is a matter of national importance at a particular time and not just a matter of general public interest or a matter of widespread discussion. In the context of an FOI review where section 47(5) [the equivalent provision in the FOI Acts 1997 & 2003] might apply, I consider that each case would have to be examined on its merits in light of all the circumstances pertaining at the time."

In an email of 5 April 2017 to the applicant, the Council questioned whether the issue of DBEs would be one that the whole country considers important or of high value and it noted that some of the information sought strays considerably from the core issue of DBEs.

In her correspondence with the Council, the applicant argued that as a result of media coverage, concerns have been raised about the regulatory regime relating to DBEs and the discharge of functions under the legislation by Councils. She argued, therefore, that the question of how Councils and government deal with all issues relating to puppy farms is of concern to the public and a matter of national significance.

It seems to me that the applicant is essentially arguing that there is a public interest in the disclosure of information relating to the regulation of DBEs. While I cannot disagree, it seems to me that this is not the same as finding that the issue is one of national importance which, as I have indicated earlier, this Office considers to be a much higher test. I accept that the regulation of DBEs may be of genuine importance to stakeholders and other interest groups. However, I do not accept that it is an issue that society itself would regard as one of national importance. Furthermore, even if I was to find it to be an issue of national importance, it seems to me that the precise nature of the records sought is such that while they may well relate to DBEs, they are unlikely to contain information that would be of particular assistance to the understanding of that issue.

In her request for internal review to the Council, the applicant refers to two other FOI bodies that waived the fee relating to similar FOI requests on the basis that the matter is of national importance. However, the question of whether the bodies in question were justified in doing so is not before me and their actions do not mean that the Council must follow suit.

In conclusion, therefore, I find that the Council was justified in refusing to waive the deposit/fee under section 27(6) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to decline to waive a deposit/fee for the cost of search and retrieval of records sought by the applicant relating to the regulation of dog breeding, under section 27(6) 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