Whether the Department was justified in refusing the applicant’s refined request under section 15(1)(h) of the FOI Act on the ground that he had not paid a fee or deposit payable under section 27 in respect of the request concerned

12 October 2021

Background

On 15 September 2020, the applicant submitted a request to the Department for access to:

• “…all the relevant information leading up to and including the decision of the Minister for Local Government of the day, Deputy Phil Hogan, TD, to abolish all existing town authorities - including, for the avoidance of ambiguity, Kilkenny and Waterford Corporation and any other like status…
• Where meetings have taken place between parties, including lobbyists, TDs, Councillors, Church bodies, industrialists and others, a copy of the record of such meetings and if no notes or minutes were taken of them, a listing of who the persons (and their relevant occupations or agencies) taking part in such meetings or discussions were.
• A copy of all written submissions by the members of the public including persons representing organisations; by public representatives and all notes of oral submissions of like kind.
• A copy of any synopsis of proposals made, including grounds for same, and appraisals of same by civil servants.
• A record of appraisals done of the merits and demerits of the proposals to abolish town councils.
• A record of what decision was made in respect of the assets and future deployment of the assets of town councils, if any…”

On 21 September 2020, a staff member from the Department’s Business and Strategic Support Unit informed the applicant by email that the request as framed would be considered invalid and she drew his attention to the requirement, under section 12(1)(b) of the FOI Act, that a request for records must contain sufficient particulars in relation to the information concerned to enable the records to be identified by the taking of reasonable steps. The staff member added that the request may also be refused under section 15(1)(c), which essentially allows for the refusal of voluminous requests. She asked the applicant to clarify and provide (i) a narrower timeframe for the request, (ii) a more refined list of the bodies with whom the Department may have met, and (iii) a more refined list of the submissions sought. She asked for such clarifications and refinements “for the purposes of processing [the] request more efficiently and to reduce an[y] potential search and retrieval fees that might be incurred.” She also offered to discuss the request by phone.

On 23 September 2020, the applicant essentially challenged the validity of the email of 21 September 2020 on the basis that it had not come from the FOI Officer or a staff member acting on her behalf. He said he would not respond to the email until he had received clarification of the matter. The FOI Officer issued an email response the following day. She explained that the Department’s FOI Unit has a role in assisting requesters to formulate or refine requests and that the email of 21 September 2020 was issued by the FOI Unit. She said that the request would fall to be refused under section 15(1)(b) and that it would also likely be refused as a voluminous request. She further noted that there are mandatory, search, retrieval, and copying fees to be applied at a rate of €20 per hour and stated the following:

“[t]here is an upper limit where a request can be refused if the Search, Retrieval and Copying goes above 35 hours. As your request is currently worded, it is unclear how the Department can process it by taking reasonable steps and furthermore based on a preliminary estimation due to the timeframe and breadth of the request, it is likely to go above the 35 hour mark.”

The FOI Officer added that the Department had provided assistance in asking questions to help refine the request to ensure that the correct records are identified and to provide the opportunity of minimising the fees to be applied.

In his response of 30 September 2020, the applicant said he essence of his request was for all relevant information leading up to and including the then Minister’s decision to abolish all existing town authorities. He suggested that the Minister would have had “a modest file setting out his proposal to abolish all town and borough authorities and the reasons - following an appraisal - for same, including a summary of representations made to him and legal advice and consideration by him and his Department”.

On 7 October 2020, the Department again notified the applicant that his request “may still be voluminous or at least incur significant search and retrieval fees.” It said it was in the process of consulting with the relevant business unit that was reviewing its files and working on a search and retrieval estimate. It said this work would enable it to advise on revised language and to ensure an efficient search and retrieval of any relevant records. In response, the applicant said he would expect the Minister’s file on the matter to be intact.

On 9 October 2020, the Department summarised the applicant’s request of 15 September 2020. It explained that the relevant business unit had estimated that the request would be voluminous and involve more than 35 hours of search and retrieval. It suggested a reformulation of the applicant’s request to bring the search and retrieval work below 35 hours, as follows:

“The final submission by his Department to the Minister for the Environment regarding implementation of the local government structural reform proposals contained in Putting People First and the memo for Government thereafter proposing implementation of those proposals”.

It asked the applicant to indicate if he was happy to proceed based on the revised suggested wording.

On 14 October 2020, the applicant argued that in his correspondence dated 30 September 2020, he had confined his request to the Minister’s file used to make his case for the abolition of all the town and borough authorities. He submitted that the Department, in its correspondence dated 9 October 2020, had not acknowledged the existence of the file and, in summarising his initial FOI request, had ignored his confinement of the request to that file.

The Department responded on the same date, wherein it acknowledged the request that it deemed to have been received on 30 September 2020 and it described the request as it understood it to be. It made no mention of whether or not a file of the type suggested by the applicant existed.

By way of separate correspondence on the same date, the Department notified the applicant that the estimated cost of searching for and retrieving and copying (SRC fees) the records sought was €400 and it sought payment of a deposit of €200. It explained that the relevant timeline for responding to the request would be paused until such payment was received. The Department also indicated that it was open to the applicant, within four weeks, to request a review of the decision to charge SRC fees.

On 13 November 2020, the Department informed the applicant that if the deposit sought was not received within ten working days, his request may be refused under section 15(1)(h) of the FOI Act, which provides for the refusal of a request where a fee or deposit payable under section 27 in respect of the request concerned or in respect of a previous request by the same requester has not been paid. On 26 November 2020, the Department issued a decision refusing the applicant’s request, as described in its correspondence dated 14 October 2020, under section 15(1)(h) of the Act.

On 7 December 2020, the applicant sought an internal review of the Department’s decision. He suggested that the Department had not taken account of his correspondence dated 30 September 2020 wherein he had indicated that he would be prepared to settle for a copy of the Minster’s file. On 29 January 2021, the Department affirmed its refusal of the request under section 15(1)(h). In doing so, it said it deemed the interpretation of the applicant’s request, as described in its correspondence dated 14 October 2020, to be accurate as per his correspondence dated 30 September 2020. On 8 June 2021, the applicant sought a review by this Office of the Department’s decision.

I have decided to bring this case to a close by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified, under section 15(1)(h) of the FOI Act, in refusing the request that it deemed to have been received on 30 September 2020 on the ground that the applicant had not paid a fee or deposit payable under section 27 in respect of the request concerned.

Analysis and Findings

Section 15(1)(h) of the FOI Act provides that an FOI body may refuse to grant a request where “a fee or deposit payable under section 27 in respect of the request concerned or in respect of a previous request by the same requester has not been paid.”

The applicant’s initial request, as set out in his email of 15 September 2020 was, in my view, extremely broad. As such, I consider that the Department reasonably sought to assist the applicant in refining his request. Unfortunately, however, despite the subsequent exchanges of correspondence between the parties, it appears that no consensus was reached in terms of agreed wording.

Nevertheless, having considered the various exchanges as described above, I am satisfied that the Department accepted the applicant’s email of 30 September 2020 as containing a refinement of the request and it proceeded on that basis. In that email, the applicant said that the essence of his request was for all relevant information leading up to and including the then Minister’s decision to abolish all existing town authorities. He suggested that the Minister would have had “a modest file setting out his proposal to abolish all town and borough authorities and the reasons - following an appraisal - for same, including a summary of representations made to him and legal advice and consideration by him and his Department”. He suggested that the Minister might have also given consideration to the deployment of the residual assets of the town authorities.

In its acknowledgement of 14 October 2020 of the refined request as set out in the applicant’s email of 30 September 2020, the Department described the request as a request for

• “All relevant information leading up to and including the decision of the Minister to abolish all existing town authorities
• Including a summary of representations made to the Minister
• Any legal advice provided to the Minister
• A record of what decision was made in respect of the assets and future deployment of the assets of town councils, if any”.

While the Department made no mention of whether or not it held a file of the type the applicant suggested should exist, it seems to me that the Department’s description of the information sought is an accurate reflection of the type of information sought as set out in the applicant’s email of 30 September 2020. On the basis of its understanding of the nature of the information sought, it proceeded to seek payment of a deposit based on its estimate of the SRC fees involved.

The essence of the applicant’s argument is that he refined the scope of his request to a file he believes the Department should hold, namely the Minister’s file for Cabinet containing the relevant information that he is seeking relating to the decision to abolish all town and borough authorities. He argued that the notification he received of the SRC fees arising did not take account of the fact that he had refined the request to the file sought. In his application for review to this Office, he acknowledged that he received the Department’s reminder to pay a deposit on 13 November 2020 but that he did not respond to that reminder as he did not find it acceptable.

It seems to me that if the applicant considered that the SRC charge applied was unreasonable based on his view that a specific file containing the information sought should exist, then the appropriate course of action to take would have been for him to apply for an internal review of the decision to charge the SRC fee. Indeed, the Department informed him of his right to apply for such an internal review in its letter of 14 October 2020. However, the applicant did not avail of that right. Instead, he chose not to engage further with the Department in respect of either the request for payment of a deposit or he subsequent reminder.

I should add that as the applicant did not apply for a review of the Department’s decision to charge the SRC fee, it is not open to me in this review to consider whether the charge levied was justified, nor is it open to me to consider whether or not a file of the type the applicant suggests should exist actually exists. As I have outlined above, my review is confined to considering whether the Department was justified, under section 15(1)(h) of the FOI Act, in refusing the request that it deemed to have been received on 30 September 2020 on the ground that the applicant had not paid a fee or deposit payable under section 27 in respect of the request concerned.

Section 15(1)(h) allows FOI bodies to close off requests that have essentially been left in abeyance as a result of the failure of requesters to either pay deposits or to pursue an alternative course of action such as seeking a review of the decision to charge a fee in the first instance or seeking to refine the scope of the request in order to reduce or eliminate the SRC fee. The Act is silent on the length of time an FOI body must hold a request before it can refuse the request under section 15(1)(h) on the ground that the deposit sought has not been paid. As such, it seems to me that each case must be considered on its merits.

In this case, the Department informed the applicant of its decision to charge SRC fees and sought payment of a deposit on 14 October 2020. One month later, on 13 November 2020, it forewarned the applicant that if the deposit sought was not received within ten working days, his request may be refused under section 15(1)(h). The applicant did not engage with the Department in respect of either notification. Following the passage of the relevant period, as no deposit had been paid, the Department refused the request under section 15(1)(h). In the particular circumstances of the case, I am satisfied that it was entitled to do so.

In conclusion, therefore, I find that the Department was justified, under section 15(1)(h) of the FOI Act, in refusing the request that it deemed to have been received on 30 September 2020 on the ground that the applicant had not paid a fee or deposit payable under section 27 in respect of the request concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the applicant’s refined request under section 15(1)(h) of the FOI 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