Whether the Council was justified, under section 27(12) of the FOI Act, in refusing the applicant-™s request for certain records relating to the Cliffs of Moher Development on the ground that the estimated cost of searching for and retrieving records coming within the scope of the request exceeds the overall ceiling limit of €700

26 September 2022

Background

Clare County Council owns a company called the Cliffs of Moher Centre Limited which operates the Cliffs of Moher visitor centre. In September 2021, the applicant submitted a request to the Council for certain records relating to the Cliffs of Moher development. Following communications between the parties, he clarified that he was seeking records of communication between the Council and any environmentalist pertaining to impacts on flora and fauna, wildlife, groundwater and wastewater in relation to the Cliffs of Moher Development between December 2006 and December 2020.

The Council refused the request under section 15(1)(c) on the ground that searching for and retrieving relevant records would cause a substantial and unreasonable interference with or disruption of work of the relevant section. Following our review, I annulled the Council-™s decision on the ground that it had not complied with the requirements of section 15(4) and remitted the request back on 17 February 2022 for the Council to consider afresh (Case OIC-115423).

The Council wrote to the applicant on 18 February 2022 and informed him that the request was too broad. It asked him to narrow his request to specific years, named environmentalists, and impacts. It wrote to him again on 7 March 2022 as it had not received a response to its earlier letter and purported to refuse the request under section 15(1)(b). That section provides for the refusal of a request where the request does not contain sufficient particulars in relation to the information concerned to enable the record sought to be identified by the taking of reasonable steps. On 8 March 2022, the applicant submitted an amended request for copies of any communication between the Council and/or the Cliffs of Moher with any environmentalist, including but limited to a named environmentalist company, pertaining to impacts on flora and fauna, wildlife, groundwater and wastewater in relation to the Cliffs of Moher development between December 2013 and December 2020. In essence, he reduced the time span for the request from 14 to seven years.

In response, the Council informed the applicant that the estimated cost of searching for, retrieving, and photocopying relevant records was more than the overall ceiling limit (which currently stands at €700). It said it was proposing to refuse the request under section 27(12) of the Act unless the request could be refined so that the estimated cost of search, retrieval and copying fell below the overall ceiling limit. It again offered to assist the applicant in further refining the request. It indicated that a deposit of €100 would be required, provided the request was suitably refined. It also informed the applicant he could apply for a review of the decision to charge a fee. The applicant wrote to the Council and said that he was not in a position to refine his request further. On 31 March 2022, the Council refused the request.

On 11 April 2022, the applicant sought an internal review of the Council-™s decision, following which the Council affirmed its decision. On 6 May 2022, the applicant sought a review by this Office of the Council-™s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the Council as set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing, under section 27(12) of the FOI Act, the applicant-™s request for certain records relating to the Cliffs of Moher development on the ground that the estimated cost of searching for and retrieving the records sought exceeds the overall ceiling limit of €700.

Analysis and Findings

Section 27 provides for the mandatory charging by FOI bodies for the estimated cost of the search for, and retrieval and copying (SRC) of, records in respect of the grant of an FOI request. Among other things, search and retrieval includes time spent by the FOI body in determining whether it holds the information sought, locating the information or records containing the information, retrieving the information or documents, extracting the information from the files, documents, electronic or other information sources containing both the information and other material not relevant to the request, and preparing a schedule specifying the records for consideration for release.

The amount of the cost of the SRC charge must be calculated at the rate of such amount per hour as stands prescribed (currently €20) in respect of the time that was spent, or ought, in the opinion of the FOI body, to have been spent, by each person concerned in carrying out the search and retrieval efficiently. Subject to subsection (12) of section 27, the amount of the SRC charge must not exceed such amount as stands prescribed (currently €500) as the appropriate maximum SRC charge.

Under section 27(12), where the amount of SRC charges exceeds or is likely to exceed the overall ceiling limit prescribed (currently €700), the FOI body must inform the requester, and must assist the requester if the requester wishes to amend or limit the request in order to reduce the SRC charges that arise or are likely to arise to an amount less than or equal to the overall ceiling limit. If the requester does not amend or limit the request such that the charges that arise or are likely to arise are reduced to an amount less than or equal to the overall ceiling limit, the body may refuse the request. Where the body decides, nevertheless, to process the request, the requester must pay the full cost of the charges likely to be payable.

In this case, the Council notified the applicant that the estimated SRC charge exceeded the overall ceiling limit. I note that the applicant in this case refused to refine his request further when requested by the Council prior to the refusal of his request.

In its submissions to this Office, the Council said it initially estimated that it would take 36 hours to search for and retrieve the records sought, resulting in SRC fees of €720. It said that to complete a search it would have to search all of its manual archives. the Council said that it would have to retrieve all archive material from its archives in Dublin for the period 2013-2017.  It said the information sought would be combined with other areas of the Cliffs of Moher from this period.

In order to locate all records relevant to the applicant-™s request, It said this would involve reviewing and arranging this information, which as noted above is in the thousands of documents. It said this would take two people a minimum of one 8-hour day each. It said that records from the period 2018 -“ 2020 would have to be located through various departments from within the Council (planning, environment, tourism, rural development). The Council said that it would take one person from each department a minimum of three hours to search for all records associated with the request. It said that to sort and put all the documents into a schedule would entail a minimum of eight hours of work.

The Council added that there are 235 boxes of files in archives dated between 2013 and 2020 and that it would have to search a minimum of 159 boxes out of the 235 for records that could relate to the request. It estimated that there would be an average of 200 to 300 pages per box to review. It said that this would require a review of an estimated 47,700 pages to determine if there is any information that relates to the request within them.

In a subsequent submission, the Council said it had completed a trial review of 2 boxes retrieved from its archive, and this took 30 minutes. It said it estimated that the time needed to review all 159 boxes would be 39.75 hours (or 9.9 hours each for four members of staff) based on this trial review. It noted that this exceeded its initial estimate of 36 hours.

Many disputes about fees will turn on the question of the FOI body-™s estimate of the time to be spent on a search, retrieval and copying exercise that has yet to take place. This Office considers that the Oireachtas intended to confer some latitude on FOI bodies in their estimation of the time to be spent on search and retrieval, but that this latitude was to have its limits. We expect an FOI body in all cases to be able to explain how its estimate of the costs of search and retrieval was arrived at. If an FOI Body gives reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided upon by it, we are not inclined to interfere with that decision.

In this case, having regard to the Council-™s submissions on the matter, I am satisfied that that Council has provided a reasonable explanation for the basis on which it estimated the SRC fees to exceed the overall ceiling limit of €700. Accordingly, I find that the Council was justified in refusing the applicant-™s request under section 27(12) of the FOI Act. It remains open to the applicant to engage further with the Council if he wished to submit a more refined request for records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse the applicant-™s request under section 27(12) 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