Whether the IHB was justified in its decision, under section 27 of the Act, to charge a fee of €200 for the cost of search and retrieval of copies of all affiliation agreements between the IHB and Horse Sport Ireland

11 December 2020

Background

In a request dated 30 June 2020, the applicant sought access to a copy of all affiliation agreements between the IHB and any other organisation that were in effect or remain in effect during the period 1 January 2008 to 30 June 2020. On 10 July 2020, the IHB notified the applicant that the estimated cost of searching for and retrieving and copying relevant records was €200 based on an estimate of 10 hours and the services of four staff members.  It sought payment of a deposit of €100 before any search and retrieval would take place. It also asked the applicant if he wished to explore amendments to his request to reduce or eliminate the costs.

The applicant subsequently revised his request to a copy of all affiliation agreements between the IHB and Horse Sport Ireland (HSI) that were in effect or remain in effect during the period 1 January 2008 to 10 July 2020. In response, the IHB said that the applicant’s revision did not amend the search and retrieval process sufficiently to reduce the fee required. It subsequently explained that there would be no other affiliation agreement in place with any other organisation aside from HSI and that the narrowing of his request had no effect on the effort required to complete the search and retrieval work.

On 14 July 2020, the applicant sought an internal review of the decision to charge fees of €200. On 5 August 2020, the IHB affirmed that decision. It provided a breakdown of the time that would be required to carry out the search and retrieval work that formed the basis for its estimate. On 11 August 2020, the applicant sought a review by this Office of that decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting the review, I have had regard to the correspondence between the applicant and the IHB as outlined above and to correspondence between this Office and both the applicant and the IHB in the matter.

Scope of Review

The review is concerned solely with whether the IHB was justified, under section 27 of the FOI Act, in charging a fee of €200 for the search and retrieval of relevant records coming within the scope of the applicant’s FOI 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.

In submissions to this Office, the IHB provided details of the steps required to search for and retrieve the records sought in this case, outlining the different locations in which the records may be stored. Ms Greenalgh of this Office provided the applicant with details of the IHB’s submissions and the breakdown of the 10 hours the IHB estimated would be required to process his request.

In summary, the IHB said that the applicant's request covers a 12-year period and that potentially relevant records are held in various locations in both electronic and hardcopy format. It said it does not know how many affiliation agreements, if any, between the IHB and HSI are in existence from 1 January 2008 to 30 June 2020. It said there may be no actual affiliation agreement in place or there could be several iterations/versions of an agreement in place and, until it carries out the search and retrieval process, it cannot definitively say how many records are potentially in existence.

The IHB noted that the relevant files are stored in four locations/formats, including physical paper files in a filing cabinet (at least 10 plus files), physical paper files in several archive boxes (number of files unknown, but may date back to 1990), electronic files (hundreds of files) on a server and electronic files on email (many thousands of emails). While the electronic files can be searched using digital tools, the physical files will have to be retrieved and manually examined to ascertain whether they contain any affiliation agreements or related documents. Some of the IHB files are held within the Director General’s filing cabinet but the vast majority are not held in that location. Until it can retrieve and examine all the files that might relate to this request, it is impossible for it to say where these documents are held or, in fact, if they even exist.

In response, the applicant referred to his internal review request, saying he reduced the scope of his original FOI request by asking for only two documents and believes that the fee system in place is being used to impede him from securing these documents. As noted above, the IHB do not consider the applicant’s revision to his request reduced the scope of his original request, as there would be no other affiliation agreement in place with any other organisation aside from HSI.  The IHB considers that the initial request essentially asked for the exact same records as the applicant’s revised request.

The applicant believes it is not credible for the IHB to assert that it is unknown if the documents exist and that it will take a substantial effort to find these two documents. He is of the view that the two documents are readily available, as the 2008 affiliation agreement was used as the basis for the new affiliation agreement.  In addition, he asserts that the IHB and the Chairman are aware that the 2008 affiliation agreement exists and they know that a new affiliation agreement was negotiated. He also alleges this new affiliation agreement was the subject of protracted negotiations between the IHB and HSI over the last two years, and this is in the public record and the two requested documents are held by, or are directly accessible by the IHB and the Chairman.

This Office sought to clarify whether the information provided by the applicant would allow for the searches required, in an effort to locate the records sought, to be refined. In response, the IHB again reiterated its position that it simply does not know whether an affiliation agreement exists. It said its staff have never seen, negotiated, witnessed, nor signed any affiliation agreement between the IHB and HSI. It said that it does not know if it holds the records sought and cannot say if the records exist until it examines its files.

The IHB acknowledged that affiliation arrangements between the two bodies are in place but cannot say if those arrangements are on the basis of a written agreement. It said there are no new negotiations ongoing concerning a new affiliation agreement. During the review, the applicant provided copies of email correspondence between the IHB and HSI from 2018 in support of his contention that a new agreement was under negotiation and he argued that this also supports his argument that an earlier agreement exists.

Having examined the email correspondence, it appears that HSI took a decision to draft a new affiliation agreement. Indeed, the correspondence confirms that the IHB Chairman “learned that it was in preparation” by HSI’s external lawyers and he sought a copy of same. The IHB informed this Office that the proposed affiliation agreement was not, to its knowledge, ever completed and that it did not receive a copy of same. The email correspondence provided by the applicant does not suggest that the draft agreement was ever forwarded to the IHB.

The email correspondence also makes reference to “existing agreements”. This phrase was used in the context of HSI explaining to the IHB that, given the different types of affiliates, further consideration had to be given to existing agreements. This is not necessarily a reference to existing agreements between the IHB and HSI. On this point, the IHB suggested that the phrase may also refer to the arrangements that were in place at that time - essentially how the two organisations co-existed.  It said its current staff inherited those practices when they came on board with the IHB, without ever seeing, negotiating, witnessing nor signing any affiliation agreement whatsoever.

It is important to repeat at this stage that this review is concerned with whether or not the IHB was justified in charging a fee of €200 for the search and retrieval of the records sought. It is not concerned with whether the records sought actually exist. Accordingly, the information provided by the applicant is relevant only insofar as it might support his argument that the records sought should be readily available. Having regard to the IHB’s responses to the queries posed by this Office, I am satisfied that the records sought, if they exist, are not readily available as suggested by the applicant.

On the substantive matter of the decision to charge of a fee for the search and retrieval of the records sought, where a public body gives reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee decided upon by it, this Office in not generally inclined to interfere with that decision. In this case, I am satisfied that the IHB has provided a reasonable basis on which it has estimated the search and retrieval fee at €200.  Indeed, in correspondence with this Office, the IHB confirmed that on reflection it now believes that it underestimated the level of effort involved in processing this request and understands it cannot retrospectively change the fees once it issued a decision letter.  However, it states that the fee estimate is just that, an estimate, and it would be their intention to charge for the actual hours it takes to process this request, while abiding with the specific ceiling rules contained within the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the IHB to charge, under section 27 of the FOOI Act, a fee of €200 for the search and retrieval of the records sought by the applicant.

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