Whether the IPS was justified under section 27 of the FOI Act in charging a fee of €145 for the search for and retrieval of certain correspondence on the tender evaluation process for the Limerick Prison Redevelopment Project

18 August 2021

Background

On 7 April 2021, the applicant made an FOI request to the IPS for copies of all correspondence between two named people regarding the tender evaluation process for the Limerick Prison Redevelopment Project, up to and including one month following the date of the issue of the final tender evaluation report. On 20 April 2021, the IPS informed the applicant that it had estimated the cost of searching for and retrieving relevant records to be €145, on the basis that 7.24 hours would be the minimum amount of time required to efficiently complete the 'search and retrieval' work on the request. It sought a deposit of €145 to allow for the processing of the request to proceed. It asked the applicant to let the IPS know if he wished to explore possible amendments to his request which might reduce or eliminate the deposit and/or fee. On 22 April 2021, the applicant sought an internal review of the IPS’s decision to charge the search and retrieval fee of €145. On 11 May 2021, the IPS affirmed its decision. It said that it was open to assisting the applicant in narrowing the scope of the request in order to reduce the cost involved. On 26 May 2021, the applicant sought a review by this Office of that decision.

During this review, this Office provided the applicant with details of the IPS’s explanation of the basis on which it had estimated what would be required to process the request. The Investigator informed the applicant of her view that the IPS was justified in its decision to charge an estimated fee of €145 and invited him to make a submission. The applicant did not make a submission in response. I have decided to conclude this review by way of a binding decision. 

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

Scope of Review

The scope of this review is confined to whether the IPS was justified under section 27 of the FOI Act in charging a fee of €145 for the search and retrieval of the records sought by the applicant.

Analysis and Findings

Section 27

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. Subsection (2) provides that the search for and retrieval of records includes time spent by the body in:

a) Determining whether it holds the information requested,
b) Locating the information or documents containing the information,
c) Retrieving such information or documents,
d) Extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and
e) Preparing a schedule specifying the records for consideration for release.

Subsection (3) provides that 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).

Subsection (5) provides that 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 and the process of searching for and retrieving the records sought shall not commence until the deposit has been paid.

Subsection (7)(a) provides that where subsection (5) applies, the body must, if requested by the requester, assist the requester to amend or limit the request in order to reduce or eliminate the charges that arise or are likely to arise under section 27(1).

The IPS estimated that the search and retrieval work would take 7.24 hours, or one working day. It says that the records relate to a major capital project for the redevelopment of Limerick Prison, which includes the construction of a new cell block for male prisoners, a prison for female prisoners, rehabilitation facilities, staff facilities, new gate lock and new offices for Probation Services. It says that given the complexity of the project, external consultants were engaged to prepare the tender specification, evaluate the tender and manage the project. One of the people named in the FOI request is a contracted quantity surveyor on the evaluation team and the other is the Director of Finance and Estates for the IPS. The IPS says that the evaluation process took a number of months and culminated in an evaluation report, which took a considerable number of communications between the parties. It says that some of this correspondence was passed to the internal design team and technical consultants for response.

The IPS says that the records are stored electronically and consist of a series of communications between the relevant parties via emails and attachments, which span a time period of 7 to 8 months. It based its estimate on that time period. It also included in its estimate the search and retrieval of communications with the internal design team and technical consultants, into which one of the named people may have been copied. It says that due to the large volume of communications between the parties and the significant time frame covered by the request, this exercise is estimated to require one day, or 7.24 hours. The IPS says that the records would need to be located and examined to see if they are relevant to the FOI request. It based its estimate on the following: 3 hours to locate the information or documents containing the information; 1.5 hours to retrieve such information or documents; 1.5 hours to extract the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request; and 1.4 hours to prepare a schedule specifying the records for consideration for release.

The IPS confirmed that its estimate does not include time for the examination of the records with a view to deciding on whether they may be released. The applicant did not request any assistance in amending or limiting the request in order to reduce or eliminate the deposit, in response to the IPS’s two offers to so assist.

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 is not generally inclined to interfere with that decision. In this case, I am satisfied that the IPS has provided a reasonable basis on which it has estimated the search and retrieval fee at €145.

I find that the IPS was justified under section 27 in its decision to charge a fee of €145 for the search for and retrieval of the records sought by the applicant. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the IPS to charge a fee of €145 for the search for 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.

Deirdre McGoldrick

Senior Investigator