Whether LMETB was justified in its decision to charge a fee of €175 for the cost of search and retrieval of records sought by the applicant under section 27 of the FOI Act

20 August 2019

In a request dated 16 March 2019 the applicant sought access to the following:

• All communications, correspondence and emails between LMETB and religious bodies during calendar year 2018, to include all communications involving representatives of religious institutions such as Diocesan Advisors and religious votaries
• All meetings, minutes and internal communications within LMETB during calendar year 2018, which refers to Catholicism, Christianity, religion or Religious Education
• All communications, correspondence and emails between LMETB and schools under the purview of LMETB which refer to Catholicism, Christianity, religion or Religious Education

On 1 April 2019 LMETB informed the applicant by email of its decision to charge a fee of €175 for the search and retrieval of records based on an estimate of 8.75 hours being required to efficiently complete the search and retrieval work on the request. It sought a deposit of €88 and also informed the applicant that he may wish to explore further amendments to his request which might reduce or eliminate the deposit and/or fee.

Following a number of email exchanges in relation to the refinement of his request which did not result in a reduction or elimination of the search and retrieval costs, the applicant sought an internal review of the decision to charge the fee of €175.

On 24 April 2019 LMETB issued its internal review decision in which it affirmed its original decision. It also provided the applicant with a breakdown of the fee estimate. On the same day, the applicant sought a review by this Office of LMETB’s decision to charge a fee of €175.

In conducting the review I have had regard to the correspondence between the applicant and LMETB concerning the request and to the communications between this Office and both LMETB and the applicant in relation to this review. 

Scope of Review

This review is concerned solely with whether LMETB was justified, under section 27 of the FOI Act, in charging a fee of €175 for the search for and retrieval of relevant records coming within the scope of the applicant’s request. 

Analysis and Findings

Section 27(1) of the FOI Act provides for the mandatory charging by FOI bodies for the estimated cost of the search for and retrieval and copying of records in respect of the grant of an FOI request. Under section 27 (2), the search for and retrieval of records includes time spent by the body in

1. Determining whether it holds the information requested,
2. Locating the information or documents containing the information,
3. Retrieving such information or documents,
4. Extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and
5. Preparing a schedule specifying the records for consideration for release

Under Section 27(3), the amount of the search and retrieval cost must 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 (currently €20). 

Under section 27(5), where the estimated search and retrieval cost is likely to exceed the prescribed minimum level (currently €101), the FOI body must charge a deposit of at least 20% of that cost. This requirement to charge deposits helps to ensure that FOI bodies do not allocate scarce resources to processing requests which requesters may not ultimately pursue because of the cost involved.  

During the course of the email exchanges between the parties in relation to the possible refinement of the request, the applicant clarified that the searches could be restricted to electronic searches and using certain search parameters. LMETB informed the applicant that the suggestions were similar to those it had taken into account for the purpose of estimating the search and retrieval fee. In a subsequent email it stated that process involved more than searches and that it would also involve the printing of each record, the copying of each record, and the numbering and redaction (where necessary) of each record.

In response, the applicant argued that no copying would be required as electronic delivery of the records would suffice. In its reply, LMETB stated that redactions would apply where necessary on third parties mentioned if they fall within the exemptions in the legislation and that the only way to do this is to examine each record which would then be scanned electronically for forwarding.

In a subsequent email the applicant argued that there is no provision in the Act to include in its estimate time for redacting records or for printing or scanning records. In response, LMETB argued that extractions are covered by the Act and that redactions apply where information is to be extracted from a record before release.

In his application to this Office, the applicant argued that as his request was for electronic records only, LMETB should not be entitled to include in its estimate time to be spent on printing documents, applying manual redactions and scanning the redacted records. He said he had already explained to LMETB that there are many free and widely available software packages which will allow redactions to be applied electronically.

In its submission to this Office, LMETB stated that as was stated in the official letter to the applicant and the schedule of fees provided, time for examination of the records was not included in the fees estimate. It added that it had identified seven staff members who would be required to search relevant mailboxes and had estimated that each staff member would require 30 minutes to conduct the searches. It also estimated that two staff members would require one hour each to retrieve the information or records and one hour each to “extract the pieces of records that fall under the scope” of the request. It indicated that one hour also was allowed for preparing a schedule and 15 minutes for determining if and where it held the information sought, giving an overall estimated total of 8.75 hours.

LMETB further stated that before preparing the estimate, it performed a sample search of the mailbox of the Director of Schools. It stated that when it included all search suggestions given by the applicant, an error report was returned due to the information overload. It said this resulted in the search suggestions having to be individually or partially broken down for search and retrieval. It said the time estimated to search alone was recorded as approximately 40 minutes.

Whilst FOI bodies are clearly under a duty to use their best endeavours to estimate the cost of any search, retrieval and copying exercise in as accurate and scientific a manner as possible there will be cases in which they will have very little available material or information on which to base such an estimate. In these circumstances, this Office considers that the Oireachtas could hardly have intended that the Information Commissioner substitute his own estimate (based on the same evidence) for that of the body.

Nevertheless, the Oireachtas also felt it necessary to require bodies to calculate search and retrieval costs based on efficient practices. As such, this Office considers 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. At the same time, the FOI Act confers on the Information Commissioner the jurisdiction to vary or annul an estimate where such an estimate falls outside these limits

Normally, in cases where the dispute between the parties turns solely on the question of the appropriateness of the FOI body's estimate of the time to be taken in a future search and retrieval exercise, this Office would be slow to disturb the decision of the public body.  However, the Act clearly foresees that there will be cases in which the amount of the fee or deposit sought by the public body will be found by this Office to be inappropriate.  In all cases, this Office would expect the body to be able to explain how its estimate of the costs of search and retrieval was arrived at.  If the public body concerned 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 would not be inclined to interfere with that decision.

A key issue arising in this case is whether the search and retrieval process proposed by LMETB is efficient for the purposes of section 27(3).

While LMETB stated in its email exchanges with the applicant that redactions would apply where necessary on third parties mentioned if they fall within the exemptions in the legislation, it subsequently clarified that time for examination of the records was not included in the fees estimate. I accept LMETB’s clarification of this matter.

Nevertheless, the Act allows for the time taken to retrieve relevant records and to extract information from the files, documents, electronic or other information sources containing both the information sought and other material not relevant to the request to be included when estimating the search and retrieval costs.

As such, confining the request to purely electronic records identified through electronic searches does not negate the need to examine each of the records identified as relevant for the purpose of determining what information, if any, contained within the records falls within the scope of the request and to extract only relevant information. Redacting non-relevant material is generally widely accepted as an appropriate method for retrieving and extracting relevant information.

The applicant argued that such redaction should be carried out electronically, thereby negating the need to print records, manually redact them, and scan them for electronic delivery. On the other hand LMETB argued that under section 17(4) it is required to take reasonable steps to extract electronic data using the facilities “that existed on the date of the request and was used by the FOI body in the ordinary course”. It argued that it does not have redaction or specific extraction software and that it is not obliged to buy-in additional expertise to process an FOI request.

It seems to me that the primary purpose of section 17(4) is to clarify that if an FOI body can extract data held electronically using facilities that are already being used by the body, it must do so notwithstanding the fact that doing so would result in the creation of a new record. The applicant’s argument is not that LMETB should extract relevant data electronically. Rather, his argument is that LMETB’s proposals for redacting out-of-scope information from the records (i.e. printing, manually redacting, and subsequent scanning for electronic delivery) could be carried out more efficiently by using freely available software that allows for electronic redacting of records.

On its face, I agree that the electronic redaction is a more efficient method of redacting electronic records than the process proposed by LMETB in this case. However, what is not clear in this case is how much time has been estimated by LMETB for printing and subsequent scanning of redacted records. In any event, it seems to me that the process of considering records for redaction would generally account for significantly more time than the printing and rescanning process. Regardless of whether redactions are applied manually or electronically, the staff member would have to examine each record identified as relevant with a view to identifying only relevant information within such records.

In this case, LMETB has estimated that two staff members would require one hour each to redact the records. While I have no indication as to the potential number of records that may be involved, the allocation of two hours in circumstances where a sample search returned a significant number of potential records, does not, in my view, appear to be unreasonable. I also note that LMETB has, on a number of occasions, explained to the applicant that the fee is an estimate only and should the actual time taken to process the request be less than originally estimated, the fee would be reduced/refunded/annulled in line with the provisions of the Act.

In the circumstances, I am satisfied that LMETB has given reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided upon by it. As such, I am not inclined to interfere with that decision. Accordingly, I hereby affirm the decision of LMETB to charge €175 for the search and retrieval of relevant records coming within the scope of the request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of LMETB to charge a fee of €175 for the search for and retrieval of records in respect of the applicant’s request.

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