19 June 2018

Whether LOETB was justified in its decision to charge a fee of €500 for the search for and retrieval of records under section 27 of the FOI Act

Background

On 13 October 2017 the applicant requested access to the following records for the period 1 July 2013 to 13 October 2017:

• All records of LOETB's communications with representatives of the Roman Catholic Church regarding Community Colleges
• Those parts of LOETB meeting minutes referring to six specified matters
• All records of communications between LOETB Community Colleges and the representatives of the Roman Catholic Church
• Those parts of all records of communications between LOETB and LOETB Community Colleges, including meetings of school principals, relating to four specified matters

On 26 October 2017 LOETB informed the applicant by email of its decision to charge a fee of €500 for search for and retrieval of records and sought a deposit of €100. Following a request for internal review of its decision to charge the fee in question, LOETB affirmed that decision. Having paid the relevant fees and received records from LOETB, the applicant subsequently sought a review by this Office of LOETB's decision to charge €500, on the basis of the quantity of records released to her. 

I have decided to conclude this review by way of a formal, binding decision. In conducting the review I have had regard to the correspondence between the applicant and LOETB concerning the request and to the communications between this Office and both LOETB and the applicant in relation to this review. 

Scope of Review

This review is concerned solely with the question of whether LOETB was justified, under section 27 of the FOI Act, in charging a fee of €500 for search for and retrieval of relevant records coming within the scope of the request. 

Analysis and Findings

Section 27(1) of the FOI Act provides for the mandatory charging by FOI bodies for the estimated cost of the search for and retrieval and copying of records (SRC) in respect of the grant of an FOI request. In cases involving section 27, this Office expects the public body concerned to be able to explain how its estimate of the cost of the SRC 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, the Commissioner is not inclined to interfere with that decision. 

Section 27(3) provides that, subject to section 27(12), the total amount of a charge shall not exceed the prescribed maximum amount (currently €500). It also provides that the amount of the cost of the search for and retrieval of a record shall be calculated at the rate of such amount per hour as stands prescribed for the time being in respect of the time that was spent, or ought, in the opinion of the head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently (currently €20). 

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. This requirement is intended to encourage short, focused requests. The requirement to request deposits also helps to ensure that FOI bodies do not allocate scarce resources to processing requests which requesters may not ultimately pursue because of the cost involved. In accordance with section 27(5), the body concerned must, not later than two weeks after receipt of the request, issue a notice in writing to the requester requiring the payment of the deposit. Furthermore, where a deposit is payable, section 27(7) provides that, if asked by the requester, the FOI body shall assist the requester to amend the request in order to reduce or eliminate the charges arising under section 27(1) and make any such amendments specified.  

On 26 October 2017 LOETB notified the applicant that it had estimated that a minimum of 25 hours work would be required to fulfil the request, that a fee of €500 would therefore be payable, and that a 20% deposit of €100 was payable before search and retrieval would commence. LOETB requested that the applicant inform it if she wished to explore possible amendments to her request which might reduce or eliminate a deposit and/or fee. Nothing has been presented to indicate that the applicant sought to amend her request subsequently and she did not dispute this point in correspondence with the Investigator of this Office during the course of the review. 

On 15 December 2018 LOETB provided the applicant with a breakdown of the estimated work involved, which amounted to 34 hours. This breakdown referred to three hours for preparation of a schedule of records to be considered. However, in submissions to this Office regarding the work carried out pursuant to the request, LOETB stated that it had not spent any time preparing a schedule, and that the work involved had totalled 31 hours. The applicant has confirmed that she did not receive such a schedule. 

The Central Policy Unit of the Department of Public Expenditure and Reform has published a Code of Practice for public bodies to secure a sustained improvement in the performance by public bodies of their responsibilities under the Act. The Code provides that public bodies should provide a schedule of records when responding to requests. I expect LOETB to have regard to the Code when responding to all future requests. 

Nevertheless, the three hours originally detailed in respect of the schedule would not have altered the chargeable amount of €500 because in the circumstances of this case, that amount was chargeable for SRC costing between €500 and €700 (the prescribed overall ceiling limit), i.e. work amounting to between 25 and 35 hours. 

Following completion of the SRC, LOETB informed the applicant by email on 24 November 2017 that a balance of €400 was due. The applicant paid the balance and LOETB subsequently released the records identified to her. 

In its submissions to this Office outlining the work conducted pursuant to the request, LOETB stated that the records identified as potentially relevant included 29 sets of LOETB 

board minutes (electronic), eight sets of principals' meeting minutes (hard copy) and 128 sets of minutes of school boards of management (hard copy). It stated that these records were stored across nine schools and in LOETB administrative offices. LOETB stated that all of the records in question had to be read physically to ensure a thorough search was conducted for relevant information. 

According to LOETB, 11 hours were spent contacting offices/departments to ascertain whether they held relevant information. It said this work involved the Director of Schools, nine school principals, nine school secretaries and the secretary to the board of LOETB. LOETB submitted that another 11 hours were spent locating relevant information/records and that this work involved nine school secretaries and three other officers. Furthermore, during the course of the review, LOETB clarified that 5 hours had been spent retrieving records, involving the work of nine school secretaries and three other officers and four hours were spent extracting information from records, again involving the work of nine school secretaries and three other officers. 

LOETB stated that its estimate did not include time for the examination of records with a view to deciding on their release. 

The applicant contends that the quantity of records identified and released is a ground on which she may challenge the fee charged. This Office takes the view that, in calculating the amount due, the time taken to search for and retrieve records which are ultimately refused or withheld must be disregarded. It considers that this view is supported by section 27(9) of the Act, which provides that where a deposit is paid, and the grant of the FOI request is subsequently refused or is only part granted, the deposit or, if a charge is payable, the amount of the deposit which exceeds the amount of the charge, shall be repaid to the requester. 

However, based on the records before me, my understanding is that LOETB decided to grant the request in full, providing the applicant with the records/extracts thereof it had identified containing the information as requested. The applicant has not challenged the decision of LOETB on the basis of a refusal of any part of her request, and where a request is granted, the quantity of records released is not a ground for challenging the relevant fee. Therefore, I cannot agree with the applicant on this point. 

Having considered the matter carefully, and having regard to the broad nature of the request, the variety of locations involved, and the fact that the records to be examined comprised a mixture of electronic and hard copy records, I am satisfied that LOETB has outlined a reasonable basis for the calculation of the fee and deposit charged in the circumstances of this case. Accordingly, I hereby affirm the decision of LOETB.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of LOETB to charge a fee of €500 for the search for and retrieval of records, on the basis that LOETB complied with the provisions of section 27 of the Act in calculating the relevant fee and deposit to be charged. 

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