Whether the HSE was justified, under section 27 of the FOI Act, in deciding to impose a fee of €260 for the search and retrieval of records relating to the applicant-™s request for information relating to a 2021 EHO recruitment campaign

1 November 2022

Background

In a request dated 24 February 2022, the applicant sought certain information from the HSE-™s National Recruitment Service (NRS) relating to three recruitment campaigns, namely;

1. Reference: NRS02780 Senior Environmental Health Officer recruitment campaign 2015
2. Reference: HBS09116 Principal Environmental Health Officer recruitment campaign 2020
3. Reference: HBS09752 Senior Environmental Health Officer recruitment campaign 2021

On 7 March 2022, the HSE informed the applicant that the estimated cost of searching for, and retrieving and copying, relevant records was €280 based on the services of one staff member for 14 hours. It sought a deposit of €140 to allow for the processing of the request to proceed. It offered to assist the applicant with refining the request by exploring possible amendments which might reduce or eliminate the fee in the matter.

Following communications between the parties, the applicant refined the scope of her request to the HBS0972 Senior Environmental Health Officer campaign 2021 (part 3). The refined request sought:

An anonymised summary of the Section 7 informal appeals received in respect of this campaign, the date on which each of these appeals was received by NRS, the date on which the reviews were completed by the NRS and the date on which each candidate was notified of the outcome of their appeal. Please include details relating to my appeal using my name and provide the information requested in tabular format

AND

A detailed breakdown of the interview preparation training received by members of the interview panel members for this campaign, including the nature of the training (online/face to face), the name and duration of the training course and verification method to ensure that training had been completed.

On 19 May 2022, the HSE issued a revised a fee estimate of €260, based on the services of one staff member for 13 hours. On 25 May 2022, the applicant sought an internal review of the HSE-™s decision to charge search and retrieval fees, following which the HSE affirmed its decision. On 5 July 2022, the applicant applied to this Office for a review of the HSE-™s decision.

During the course of the review, this Office provided the applicant with details of the HSE-™s explanation of the basis on which it had estimated that 13 hours would be required to search for and retrieve relevant records. The Investigating Officer also informed the applicant of her view that the HSE was justified in its decision to charge an estimated fee of €260 and invited her to make a further submission, which she duly did. 

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 parties as outlined above and to the submissions made by the applicant and the HSE. 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 HSE was justified, under section 27 of the FOI Act, in its decision to charge search and retrieval fees of €260 in order to process the applicant-™s FOI request.

Analysis and Findings

Section 27(1) of the Act 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. 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.

The SRC charge is calculated at a prescribed amount per hour in respect of time that was spent, or ought, in the opinion of the body, to have been spent in carrying out the search for and retrieval of the records efficiently. This amount is currently set at €20 per hour under the Freedom of Information Act 2014 (Fees) (No. 2) Regulations 2014 [S.I. No. 531 of 2014].

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.

Submissions of the Parties

In her application to this Office, the applicant said she was informed by the NRS that the vast majority of the time estimate related to her request to collate the data in relation to appeals. She said she was notified that the information she had requested was (possibly) stored across four separate electronic areas. She said she would be required to pay for the time taken to establish where the information is stored, rather than the actual electronic retrieval of the information.

The applicant said the information sought is recent and by her own estimation, the numbers involved are small, possibly fewer than ten appeals. She said she had been requested to pay a sum of €260 towards the cost of searching for this information which is held electronically. She said she assumed that the reason it will take an estimated 13 hours to retrieve the information requested is that the NRS doesn-™t know where it has stored it. She argued it is unfair that she should be expected to pay for what is effectively the mismanagement of data by the NRS.

In its submissions to this Office, the HSE provided details of the steps required to search for and retrieve the records sought relating to appeals received and outlined the different locations in which records relating to the recruitment campaign in question are stored. In summary, the HSE explained that relevant files are stored in four locations/formats comprising hard copy files (101 applications), electronic files on a recruitment server, a controlled document depository (main campaign folder containing 41 sub folders and multiple files) and outlook mail.

The HSE said it would be required to search the Apply Allied Health and team member email accounts for appeal emails, as well as any emails left pertaining to the campaign, as candidates do not always refer to -˜appeal-™ in the subject line. It said these types of appeals are personal in nature and are held as part of an individual-™s application for any particular campaign. It said due to the informal nature of its appeals procedure there is no structure imposed on job applicants when lodging an appeal. It said in many cases an applicant will respond to a communication issued by the NRS and within the body of their email include details of their appeal. It said as the subject of their email correspondence might not indicate that their email relates to an appeal, there is a requirement to review all candidates in relation to this campaign.

The HSE said informal appeals can be submitted at any stage of the recruitment process concerning appeals for missing key deadlines, omissions from application forms submitted, application of any shortlisting criteria and appeals of interview outcomes/results. It said there is no restriction on the number of appeals that any one individual can lodge. It said it cannot assume that if it finds a record of an appeal from a candidate at an early stage of their application that this is the only appeal lodged by that individual. It said the level of searches that need to be conducted in order to facilitate this request are therefore significant, regardless of the number of appeals submitted. It said the NRS is aware where the information is held. It said the information being requested is particular to each applicant and therefore must be searched for on an individual manual basis, as there is no search function that will allow collation of the information that has been requested. On that basis, the HSE estimated that it will take 13 hours to carry out search and retrieval which equates to €260. It 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.

Following receipt of the details of the HSE-™s submissions, the applicant contested the HSE-™s assertion that due to the informal nature of its appeals procedure there is no structure imposed on job applicants when lodging an appeal. She argued that when she contacted the HSE regarding her own submission of an informal appeal, she was instructed to make an informal appeal to the Campaign Lead, for whom an email address was provided. The applicant said she was told informal appeals prior to interview must be submitted within 2 working days of receipt of a decision, while informal appeals after interview must be submitted within 5 working days of notification of a decision. As such, the applicant argued that a search of the Campaign Lead-™s email account within the timeframe 5-10 May [2021] would provide the required information. She said she did not understand the necessity to undertake manual searches of hard copy files, as all applications had to be submitted electronically by email and only an email address was provided for making an informal appeal.

Following a request by this Office for clarification on a number of related matters, the HSE explained that it is obliged to accept appeals in whatever format the individual submits them, as part of the Commission for Public Service Appointments (CPSA) licence requirements. It said while it is preferable for applicants to follow the process referred to by the applicant, it is not mandatory, and the HSE is required to accept an appeal if correspondence from an applicant makes it clear that they wish to make an informal appeal. It said informal appeals are individual to each applicant and are not held at a level to allow the quick retrieval of the breakdown requested by the applicant. It said it could not be confident it had all relevant records unless it exhausted all searches which it outlined in its submissions. While this additional information was subsequently provided to the applicant, she did not respond substantively to the HSE-™s explanation on the matter.

My Analysis

It is important to note that 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. In all cases, we expect an FOI body to be able to explain how its estimate of the costs of search and retrieval was arrived at. If the 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.

It seems to me that, notwithstanding the applicant-™s views as to where she believes relevant records might be held, the essence of the HSE-™s submission is that appeals can be submitted at any stage of the recruitment process and that it is obliged to accept appeals in whatever format the individual submits them, hence the need to conduct manual searches across the four locations in which records relating to the recruitment campaign are held.

In all of the circumstances, I am satisfied that the HSE has provided a reasonable basis on which it estimated the search and retrieval fee at €260. In conclusion, therefore, I find that the HSE was justified in deciding that the cost of searching for and retrieving and copying relevant records was €260.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to impose a fee of €260 for the search and retrieval of records relating to the applicant-™s request for information relating to a 2021 EHO recruitment campaign.

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