Whether the CRO was justified in refusing, under section 15(2)(b) of the FOI Act, the applicant-�s request for access to all company records on the ground that the records sought are available for purchase by members of the public

10 November 2022

Background

On 17 August 2022, the applicant sought access to -�ALL company records-� held by the CRO. On 18 August 2022, the CRO refused the request on the ground that the records sought -�are outside of the Act-� and are publicly available for purchase. It provided details of how and where the records requested could be accessed and the details of the fees involved. The applicant requested an internal review of that decision on 12 September 2022 and on 16 September 2022, the CRO affirmed its decision. On 23 September 2022 the applicant applied to this Office for a review of the CRO-�s decision.

During the course of the review, the CRO cited section 15(2)(b) of the Act as a basis for refusing the request. As the applicant had not previously had an opportunity to consider the applicability of this provision of the Act, we wrote to him to bring to his attention the fact of the CRO-�s reliance on section 15(2)(b) and to invite him to make any additional submissions that he wished in relation to same. He made a brief submission in response.

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 submissions made by the applicant and to the submission made by the FOI body in support of its decision. I have also had regard to the communications between the parties involved.  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 CRO was justified in its decision to refuse, under section 15(2)(b) of the FOI Act, the applicant-�s request for all company records.

Analysis and Findings

Section 15(2)(b) -� records available for inspection

Section 15(2)(b) provides that an FOI body may refuse to grant access to a record a copy of which is available for purchase or removal free of charge by members of the public.

In its submissions to this Office, the CRO said it publishes all its records on its website www.cro.ie where it hosts a complex search engine and provides the technical infrastructure necessary for any members of the public to identify and purchase any records of interest to them at an administrative cost of €2.50 per record.

The CRO added that it also has a mechanism intended exclusively for the sole use of commercial data re-sellers. It said its files are made available under the Re-Use of Public Sector Information Regulations in what is referred to the CRO Bulk Data facility. It said it supplies, under licence, data in bulk format for high volume users of its data. It said it currently has eight commercial customers who access its data using this method and that this is an entirely commercial facility which is available at a significant annual cost and is utilised by those data re-sellers who -�add value-� to its data and resell it at a substantial cost to their own data customers who have very specialist data requirements.

In his correspondence with this Office, the applicant argued that the records cannot be said to be publically available as they are essentially behind a paywall.

The language of section 15(1)(b) is clear. It does not require that records be available free of charge. Rather, it provides that the records must be available for purchaseorremoval free of charge by members of the public. The records at issue in this case are available for purchase by members of the public. It is not within the remit of this Office to consider the appropriateness of FOI bodies charging for making records publicly available. Accordingly, I find that the CRO was justified in refusing, under section 15(2)(b) of the FOI Act, the applicant-�s request for all company records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the CRO in this case. I find that the CRO was justified in refusing, under section 15(2)(b) of the Act, the applicant-�s request all company records on the ground that the records requested are available for purchase by members of the public.

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