Decision
Mr. X and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-142352-M0J9P4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142352-M0J9P4
Published on
The Senior Investigator affirmed the IPS’s decision to refuse the applicant’s request under section 15(1)(h) of the FOI Act.
25 July 2023
The 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 had 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. My 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 detailed 12-part request the applicant submitted to the IPS on 15 May 2023, seeking a broad range of records relating to, among other things, certain construction/fit-out/installation/repair costs covering a number of different time periods, reasons for decisions taken regarding prison smoke and carbon-monoxide detectors, certain communications with the Portlaoise Chief Fire Officer, and all related correspondence with the Minister for Justice. On 23 June 2023, the IPS issued a decision refusing the 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. OIC-141606.
On 29 June 2023, the applicant wrote to the IPS in connection with the three requests described above and a fourth request he had made. The applicant stated that he had received correspondence in relation to the present request under review and the fourth request but had received no correspondence regarding the other two requests outlined above. The applicant stated that he was seeking an internal review in respect of all four requests. On 6 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 14 September 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 request under sections 15(1)(c) and 15(1)(g) of the FOI Act. The Investigating Officer provided the applicant with details of the IPS’ submissions wherein it outlined its reasons for refusing his request. The applicant was invited to make further submissions, which he duly did. The applicant made a number of submissions concerning section 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 review, I have had regard to the correspondence between the applicant and the IPS as outlined above and the correspondence between this Office and both parties on the matter.
This review is concerned with whether the IPS was justified in refusing, under section(s) 15(1)(h), 15(1)(c) and/or 15(1)(g) of the FOI Act, the applicant’s request that he made on 15 May 2023 as described above.
Before addressing the substantive issues, I wish to make a few preliminary comments.
First, 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.
Secondly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, such as 15(1)(g), as a general rule the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the Act.
Additionally, I note that in his submissions to this Office, that applicant raised arguments of relevance to the General Data Protection Regulation (GDPR). It is important to note that the applicant’s request in this case was made under the FOI Act, which is entirely independent of data protection legislation. Requests for access to records under the FOI Act must be processed in accordance with the provisions of the FOI Act.
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.
As I outlined in my decision in Case No. OIC-141606, the IPS wrote to the applicant on 15 September 2022 in respect of the request that was the subject of my review in that case. It informed the applicant that the decision maker considered the request voluminous and the basis for that assessment. It asked that the scope of the request be narrowed. It explained that in the event that the request was significantly revised, it estimated 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.
The request at issue in this case was made on 15 May 2023. At that stage, the applicant had made no effort to engage with the IPS about the two earlier requests. This meant that the IPS was facing a situation where it had four open requests on hand from the applicant and had received no indication as to whether or not the applicant intended to proceed with the earlier requests. It seems to me that the IPS was reasonably entitled to consider that the applicant was, at that stage, establishing a pattern of submitting requests and not seeing them through to conclusion where deposits were being sought.
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 I explained in my 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 to reduce 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 Department sought to process it.
In all of the circumstances, I find that the IPS was justified in refusing, under section 15(1)(h) of the Act, the applicant’s request of 15 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 15 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