Whether the CDETB was justified, under section 27 of the FOI Act, in charging a fee of €760 for the search for and retrieval of relevant records coming within the scope of the applicant’s request
14 October 2019
Background
On 24 June 2019 the applicant made a request to the CDETB seeking access to all correspondence between the Dublin Youth Service Board and two named third party groups for the period September 2018 to 24 June 2019.
On 8 July 2019 the CDETB informed the applicant that the estimated cost for the search for, and retrieval and copying (SRC) of, relevant records was €880, which was in excess of the overall prescribed ceiling limit of €700. It offered to assist the applicant in refining his request in order to reduce the SRC charges to below the ceiling limit. It informed him that should the request not be refined, it would be refused under section 27(12) of the FOI Act.
On 9 July 2019, following a telephone conversation with the CDETB, the applicant reduced the period covered by his request to January 2019 to June 2019.
On 25 July 2019, the CDETB notified the applicant that the refined request would still attract SRC fees of €760 but that it was happy to process the request subject to receipt of a €152 deposit. It also provided the applicant with a breakdown of the fee estimate.
Further exchanges of correspondence followed, following which the applicant sought an internal review of the decision to impose the relevant fee on 1 August 2019. On 13 August 2019 the CDETB affirmed its original decision to charge a fee of €760. On 14 August 2019, the applicant sought a review by this Office of the CDETB’s decision to charge the fee.
In conducting this review, I have had regard to the correspondence between the applicant and the CDETB concerning the request and to the communications between this Office and both the CDETB and the applicant in relation to this review. I have also had regard to the guidance provided by the Central Policy Unit of the Department of Public Expenditure and Reform (CPU) in Guidance Note 6 (REV) on Fees and Charges (available at www.foi.gov.ie).
Scope of Review
This review is concerned solely with whether the CDETB was justified, under section 27 of the FOI Act, in charging a fee of €760 for the search for and retrieval of relevant records coming within the scope of the applicant’s request.
Analysis and Findings
I should say at the outset that the relevant provisions in the FOI Act relating to the charging of SRC fees are quite complex. They are also subject to strict requirements and time-frames which can prove challenging for FOI bodies to meet, given the complexity of the issues to be considered.
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 in respect of the grant of an FOI request.
Under section 27(5), where the estimated cost of the SRC is likely to exceed the prescribed minimum level, currently €101, the FOI body must charge a deposit of at least 20% of that cost. It must, not later than two weeks after the receipt of the request, issue a notice in writing to the requester requiring payment of the deposit.
Section 27(12) allows an FOI body to refuse to process a request where the cost of the SRC exceeds, or is likely to exceed, a prescribed amount, currently €700. This is referred to as the overall ceiling limit. However, before the body can refuse to process a request on those grounds, it must first offer to assist the requester in amending or limiting the request to bring the charge below the overall ceiling limit.
Where the requester does not amend or limit the request such that the charge arising or likely to arise is reduced to an amount less than or equal to the overall ceiling limit, the body may refuse to process the request. However, it may also still decide to process the request, in which case the requester will be required to pay the full charge. The prescribed maximum amount of €500 for SRC charges does not apply in such circumstances. However, the body must also comply with the provisions of section 27(5), i.e. it must also issue a notice, not later than two weeks after the receipt of the request, requiring the payment of a deposit in the event that the requester amends the request or the body decides to process the request regardless of any amendment.
The Act is silent on the time-frame within which an FOI body must notify a requester that it is considering refusal under section 27(12). However, if the 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 of receipt of the original request. Failure to do so would mean that the body cannot comply with the provisions of section 27(5).
The Central Policy Unit (CPU) of the Department of Public Expenditure and Reform has published a Guidance Note on Fees and Charges (available at www.foi.gov.ie) to assist FOI bodies in ensuring compliance with the provisions of section 27. The Note describes the procedures that must be followed by FOI bodies when applying the provisions of section 27(12). The procedures outlined are as follows:
- 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;
- 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;
- A specific deposit must be requested and should be calculated as a proportion of the appropriate maximum amount (currently €500, 20% of which is €100);
- The FOI clock stops once this letter issues (including the request for a deposit);
- 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;
- When a request is refined under Section 27(12), the refined request does not constitute a new FOI request but the clock starts again when the deposit is paid.
The requirement set out at step 2 above (that the letter issuing under section 27(12) must also request a deposit in the event that the requester decides to refine the request) arises as a result of the fact that the Act makes no provision for treating the refined request as a new request. As such, in order to comply with section 27(5), the notice requiring the payment of a deposit must issue within two weeks of receipt of the original request.
In this case, the CDETB properly issued a notification under section 27(12) within two weeks of receipt of the original request. However, the notification contained no mention of the need to pay a deposit in the event of the request being refined.
As the refined request did not have the effect of eliminating the need for a deposit, the CDETB should have requested payment of a deposit within two weeks of receipt of the original request, not the refined request. As such, I find the CDETB was not justified in its decision to charge SRC fees in this case on the ground that it failed to comply with the requirements of section 27(5).
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the CDETB to charge a fee for the search for and retrieval and copying of records in respect of the applicant's request on the basis that the CDETB failed to comply with the provisions of section 27(5) of the 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