Whether the Agency was justified, under section 27 of the FOI Act, in charging a fee of €140 for the search for and retrieval of relevant records coming within the scope of the applicant’s two requests

18 November 2019

Background

On 5 August 2019 the applicant made a request to the Agency for any correspondence, notes and minutes relating to meetings between the Agency’s Chief Executive and representatives of two named third parties on three specified dates. In a second request on the same day, the applicant sought access to any correspondence, notes and minutes relating to meetings between the Agency’s Chief Executive and representatives of six different named third parties on certain specified dates.

On 15 August 2019 the Agency wrote to the applicant in respect of both requests and informed her that the estimated cost for the search for, and retrieval and copying (SRC) of, relevant records was €140. It stated that this fee was based on an estimate of 7 hours required to efficiently complete the search and retrieval work on the two requests. It sought a deposit of €70 and also informed the applicant that she may wish to explore amendments to her requests that might reduce or eliminate the deposit and/or fee, such as seeking only notes of the meetings listed.

It appears that the applicant mistakenly understood the Agency’s letter to correspond only to the second of the requests. In her response to the Agency, she offered to remove two of the meetings she had identified in her second request based on her calculation that this would bring the fee below the minimum threshold for charging a fee, currently €101. Her calculation was based on an apportionment of the SRC cost on a per meeting basis.

In response, the Agency stated that the calculation of the estimated cost was not based purely on the number of meetings. It stated that the amendment suggested would not reduce the estimated SRC charge as a trawl of correspondence to identify relevant records would still be required.

The applicant sought an internal review of the decision to charge a fee of €140. On 5 September 2019 the Agency affirmed its original decision to charge a fee of €140. It stated that the estimate was based on the two requests that were taken to be one request, in light of the identical wording of the two requests and the fact that they were sent by email within a couple of minutes of each other.

On 9 September 2019, the applicant sought a review by this Office of the Agency’s decision to merge the two requests and charge a fee.

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

Scope of Review

This review is concerned solely with whether the Agency was justified, under section 27 of the FOI Act, in charging a fee of €140 for the search for and retrieval of relevant records coming within the scope of the applicant’s two requests.

Analysis and Findings

In her application for review to this Office, the applicant in particular contended that the Agency should not have merged the two requests together for the purposes of charging a fee, without notifying her that it was doing so in the first instance. She also stated that, in her view, even taken together, the requests would fall below the fee threshold.

In its submissions to this Office the Agency stated that the two requests were submitted within one minute of each other. It said the requests were “a follow on request resulting from a previous request”. It said that as both requests were worded in an identical manner it took it that the second request was a follow on from the first and that it did not think that this was a deliberate attempt to avoid fees.

The Agency also argued that there were certain economies in dealing with both requests together and that if it was to separate the requests a fee would apply to both requests based on the fact that the applicant was seeking access to “any correspondence or notes that relate to” the meetings in question.

The FOI Act simply does not provide for the merging of requests for the purpose of calculating a fee for the search for, and retrieval and copying of, relevant records. If doing so would give rise to certain economies, it is incumbent upon the body to seek the permission of the applicant to do so in the first instance.

I note that the wording of the letter the Agency sent to the applicant on 15 August 2019 concerning the estimated SRC charge indicates that the charge was in respect of the cost of both requests. However, it did not seek the applicant’s consent to treat both requests as one, nor does the letter suggest that there were certain economies in dealing with both requests together.

In the circumstances, I find that the Agency was not entitled to treat the two requests as a single request and that it was not justified in its decision to charge a SRC fee of €140 for processing the requests as one. I consider that the most appropriate course of action is to annul the decision of the Agency and direct it to process the two requests afresh. If the Agency remains of the view that certain economies would arise by dealing with both requests together, it should seek the consent of the applicant to do so.

For the sake of completeness, I would add that I have not considered the Agency’s argument that if it was to separate the requests a fee would apply to both requests based on the fact that the applicant was seeking access to “any correspondence or notes that relate to” the meetings in question. However, the Agency may wish to explore this particular matter further with the applicant when processing the requests afresh.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Agency to charge a fee of €140 for the search for, and retrieval and copying of, records in respect of the applicant's two requests on the basis that there is no provision in the FOI Act for merging FOI requests for the purpose of charging a fee. I direct it to process the two requests afresh.

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