Whether the CDETB was justified, under section 27 of the FOI Act, in charging a fee of €1,140 for the search for and retrieval of relevant records coming within the scope of the applicant’s request
19 November 2019
Background
On 18 June 2019, the applicant submitted a request to the email account of the City of Dublin Youth Service Board (the CDYSB), which is a committee of the CDETB, for the timetables of activities and services provided by a named youth centre and a related youth project in the last five years.
According to the CDETB, the request was not processed as the CDYSB assumed it was part of an earlier request it had received from the applicant. On 9 July 2019, the applicant sent an email to the CDETB to enquire if his request of 18 June had been received, at which stage the CDETB commenced the processing of the request.
The CDETB emailed the applicant on 18 July 2019 and informed him that the estimated cost of searching for, and retrieving and copying, (SRC) of relevant records was in excess of the overall prescribed ceiling limit of €700. It asked the applicant to contact it to refine the request to bring the estimated cost below the ceiling limit.
Several exchanges of emails followed between the parties concerning the basis on which the estimated cost had been calculated, during which the CDETB again offered assistance in refining the request. It also provided a breakdown of the basis on which the estimated SRC charge of €1,140 had been calculated. The applicant continued to press the CDETB for further clarification of the estimated cost and how the request might be refined to reduce the estimated cost.
On 19 August 2019 the CDETB informed the applicant that the request would be processed upon receipt of a deposit of €228 and informed him of the right to apply for an internal review of the decision to charge the fee in question. The applicant sought an internal review of the decision on 28 August 2019. On 6 September 2019 the CDETB affirmed its original decision to charge a fee of €1,140, following which 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 €1,140 for the search for and retrieval of relevant records coming within the scope of the applicant’s request.
Analysis and Findings
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:
i. 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;
ii. 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;
iii. 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);
iv. The FOI clock stops once this letter issues (including the request for a deposit);
v. 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;
vi. 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.
I accept that in this case, the staff members within the CDETB who manage FOI requests did not become aware of the request until the applicant followed up on the matter on 9 July 2019. I also accept that the CDETB first notified the applicant that the estimated SRC charge exceeded the overall ceiling limit within two weeks of that date, on 18 July 2019. However, this does not alter the fact that the body received the request on 18 June 2019 and that the notification was outside the two week time limit set out in section 27(12).
Furthermore, the notification of 18 July 2019 did not comply with the requirements of section 27(5). While it stated that the estimated cost exceeded the overall ceiling limit and offered assistance to refine the request, it did not specify the amount of the estimated cost or seek payment of a specified deposit.
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).
For the benefit of the parties, I would add that I am satisfied that the CDETB offered ample opportunity for the applicant to refine his request in this case. However, it would have been useful had the CDETB provided a more detailed explanation of the basis on which it had estimated the SRC charge at an early stage during the engagement between the parties. This Office expects public bodies to be able to explain how they have arrived at their SRC estimates. I would add, however, that this does not mean that public bodies must provide detailed explanations of any matters applicants may consider relevant to the calculation of such estimates.
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