Decision
Mr. X and Irish Prison Service (IPS)
From Office of the Information Commissioner (OIC)
Case number: OIC-143944-X9G8W5
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URL: http://www.bailii.org/ie/cases/IEIC/2024/143944.html
Cite as: [2024] IEIC 143944
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Whether the IPS was justified in refusing access to various records under section 15(1)(h) of the FOI Act on the ground that the applicant had not paid a fee or deposit in respect of two previous requests
17 September 2024
This review concerns one of four requests the applicant made to the IPS. In my decision in Case No. OIC-141606 involving the same two parties, I explained that the IPS sought a deposit for estimated search and retrieval fees in respect of a request for records relating to prison tuck shops and other records and that it had also sought a deposit in respect of a second request. The IPS decided to refuse both requests under section 15(1)(h) when no response was received. That section provides for the refusal of a request where a fee or deposit payable in respect of the request concerned or in respect of a previous request by the same requester has not been paid. The review in Case No. OIC-141606 concerned the decision of the IPS to refuse the request for prison tuck shop records. I found that the IPS was justified in refusing the request under section 15(1)(h).
This review is concerned with a 6-part request the applicant submitted to the IPS on 22 May 2023, seeking various records relating to cost and supply of fans and fridges to staff and inmates in Midlands prisons and correspondence between government officials regarding inmates. On 23 June 2023, the IPS issued a decision refusing the applicant's request under section 15(1)(h) of the FOI Act on the basis that the applicant had not paid either a deposit or search and retrieval fees on a previous request, that request being the request that was the subject of my review in Case No. 141606.
On 29 June 2023, the applicant wrote to the IPS in connection with the requests he made to the IPS. The applicant stated that he had received correspondence in relation to the present request under review and another request reviewed by this Office (Case No. OIC-142352 refers) but had received no correspondence regarding the other two requests outlined above. The applicant stated that he was seeking an internal review in respect to all four requests. On 10 July 2023, the IPS issued an internal review decision affirming its original decision to refuse the applicant's request on the ground of section 15(1)(h) of the FOI Act. On 22 November 2023, the applicant applied to this Office for review of the IPS's decision.
During the course of this review, the Investigating Officer sought submissions from the IPS regarding its decision to refuse the applicant's request. The IPS, in its submissions stated that in addition to refusing the applicant's request on the ground of section 15(1)(h), it was also refusing the applicant's request under sections 15(1)(c) and 15(1)(g) of the FOI Act.
I have now completed my review of these cases in accordance with section 22(2) of the FOI Act. In carrying out my reviews, I have had regard to the correspondence between the applicant and the IPS as outlined above.
This review is concerned with whether the IPS was justified in refusing, under section(s) 15(1)(h), 15(1)(c) and 15(1)(g) of the FOI Act, the applicant's request that he made on 22 May as described above.
Before addressing the substantive issues, I wish to make a few preliminary comments.
First, Section 13(4) provides that, subject to the other provisions of the Act, any reason that the requester gives for the request shall be disregarded when deciding on whether to grant or refuse an FOI request. This means that this Office cannot generally have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest, or, for example, when considering whether the request is frivolous or vexatious.
Secondly, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role is confined to reviewing the decision taken by the IPS on the applicant's FOI request.
Section 15(1)(h) of the Act 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. 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 of records in respect of the grant of an FOI request. Section 27(5) provides for the charging by FOI bodies of deposits where the estimated search, retrieval and copying fees are likely to exceed the prescribed minimum amount. The Freedom of Information Act 2014 (Fees) Regulations 2014 (S.I. 484/2014) fixes this minimum amount at €100. Section 27(5) provides that where the body considers that the estimated cost of search and retrieval is likely to exceed the minimum amount, a deposit shall be charged and the process of search for, and retrieval of the records shall not be commenced until the deposit has been paid.
Subsection 7(a) provides that where subsection (5) applies, the body must, if request by the requester, assist the requester to amend or limit the request in order to reduce or eliminate the charge that arise or are likely to arise under section 27(1).
As outlined in my decisions in Case No. OIC-141606 and Case No. OIC-142352, the IPS wrote to the applicant on 15 September 2022 in respect of the request that was the subject of my review in Case No. OIC-141606. The IPS informed the applicant that the decision maker considered the request voluminous and the basis for that assessment. It asked that the applicant narrow the scope of his request. The IPS explained that the amount chargeable would be €500 and that a deposit of 20% of the cost would be required. It asked the applicant to revert to it if he wished the request to proceed. The IPS also wrote to the applicant on 28 September 2022 in respect of a second request wherein it outlined the estimated cost of processing that request and explained that it would require a 20% deposit of the cost. It offered the applicant an opportunity to limit the request in order to reduce the charges. In its submissions to this Office, the IPS stated that it received no response from the requester to either of these letters and after allowing a considerable amount of time for the requester to contact the IPS, it made the decision to refuse the above referenced requests.
Section 15(1)(h) does not confine an FOI body to refusing a request only where the fee or deposit payable in respect of that request has not been paid. It also allows the body to refuse a request where a fee or deposit payable in respect of a previous request by the same requester has not been paid. As the Senior Investigator explained in his decision in Case No. OIC-141606, section 15(1)(h) essentially allows FOI bodies to close off requests that have 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 or eliminate the SRC fee. It also allows FOI Bodies to ensure that scarce resources are not allocated to the processing of requests in circumstances where the requester may not ultimately pursue the request when search and retrieval costs arise. Having regard to the nature of the request at issue in this case, such costs were likely to arise had the IPS sought to process it.
I find that the IPS was justified in refusing, under section 15(1)(h) of the Act, the applicant's request of 22 May 2023 on the ground that he failed to pay a fee or a deposit in respect of a previous request. Having found section 15(1)(h) to apply, I do not need to consider the applicability of section 15(1)(c) or 15(1)(g) of the Act in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS's decision to refuse, under section 15(1)(h) of the FOI Act, the applicant's request of 22 May 2023.
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