Decision
Mr Y & The Department of Social Protection (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-163332-N9Y1N0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-163332-N9Y1N0
Published on
Whether the Department was justified in charging a fee, provided under section 27(13)(a)(i) of the FOI Act, to carry out an internal review of its original decision on the applicant’s FOI request
5 December 2025
In a request dated 17 August 2025, the applicant sought access to a broad range of records and information relating to the enforcement of EU free movement law, welfare and housing entitlements by nationality, and the provision of state pensions to asylum seekers.
In a decision dated 12 September 2025, the Department refused the applicant’s request under section 15(1)(a) of the FOI Act on the ground that the records do not exist. It provided some information in response to certain parts of the request, including where the applicant could find copies of the Department’s Annual Statistics Reports, and notified the applicant that parts of his request were matters for the Department of Justice, Home Affairs and Migration. In its decision letter, the Department informed the applicant of his right of appeal under the FOI Act and explained that a fee of €30 (€10 for a medical card holder) applies for an internal review of its decision.
On 14 September 2025, the applicant sought an internal review of the Department’s decision. He said that any attempt to impose fees is unlawful. During a subsequent exchange of correspondence, the Department referred the applicant to this Office’s Guidance Note on section 27 of the FOI Act and said that the charging of a fee for processing the internal review request was required. On 7 October 2025, the applicant applied to this Office for a review of the Department’s decision to charge a fee to process his request for an internal review.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal binding decision.
This review is concerned solely with whether the Department was justified in charging the applicant a fee, provided for under section 27(13) of the FOI Act, to carry out an internal review of its original decision on the applicant’s FOI request.
This review is not concerned with the substantive decision made by the Department on the applicant’s request. Should the applicant choose to pay the fee for an internal review, it will be open to him to make a new application to this Office for a review of the Department’s substantive decision if he is not satisfied with its internal review decision.
Section 27(13)
Section 27(13)(a)(i) of the FOI Act provides that a fee of such amount (if any) as may be prescribed shall (my emphasis) be charged by the FOI body and paid by the applicant to the body in respect of an application for internal review under section 21. These application fees are sometimes referred to as ‘up-front’ fees. The prescribed fee is set out in the Freedom of Information Act (Fees)(No.2) Regulations 2014 [S.I. No. 531 of 2014] (hereafter the Regulations). Under Regulation 4, a fee of €30 is prescribed for such applications, or €10 in the case of a medical card holder or a dependant of a medical card holder.
Under the Regulations, a fee is not payable in respect of an application for internal review where:
a) the record(s) contain only personal information relating to the applicant,
b) the application is in relation to a decision under section 9 or 10 or,
c) the application is in relation to a decision to charge a fee or deposit, or a fee or deposit of a particular amount, under section 27.
The Regulations do not contain any other exceptions to the prescribed fee for an application for internal review. It is clear, therefore, that the FOI Act requires applicants to pay a fee to the FOI body when requesting an internal review of its original decision where their FOI request concerns access to non-personal information. It is also clear that the applicant’s FOI request seeks access to records containing non-personal information and not records that contain only personal information relating to the applicant.
In his correspondence with this Office, the applicant claims that the fee should be waived in the public interest and refers to section 27(5)(b) of the Act and the Fee Regulations to support his claim that the fee should be waived. However, the applicant is mistaken in his argument that section 27(5)(b) of the FOI Act requires a waiver of the fees where disclosure is in the public interest. There is no such provision in section 27(5)(b) of the Act. Similarly, the applicant’s claim that the Regulations prohibit charging fees where records concern matters of significant public interest is also mistaken. While there is a provision under section 27(6) of the Act which allows an FOI body to reduce or waive a search and retrieval and copying charge if some or all of the information contained in the record concerned would be of particular assistance to the understanding of an issue of national importance, this provision relates solely to search and retrieval fees and does not apply to the upfront fee for an internal review. The fee for an internal review is a separate charge to the search and retrieval fees provided in the Act. It seems to me that the applicant may be confusing the provisions in the FOI Act whereby an FOI body can charge a fee to search for and retrieve the records sought with the fee provided in the Act to process a request for internal review.
The language of the Act is clear that the charging of an upfront fee for an internal review is mandatory and must be paid prior to an FOI body accepting a request for an internal review. Where the appropriate fee is not paid, the body shall refuse to accept the application, and it is deemed, for the purposes of the FOI Act, not to have been made. While there are specific circumstances as outlined above where no fee applies, such as requests for personal information, it is clear that none of those circumstances apply in this case. In the circumstances, I am satisfied that the Department was justified in requiring the applicant to pay a fee for an internal review of its decision and I find accordingly.
If the applicant wishes to proceed with his request for internal review, he must pay the appropriate fee to the Department. If he does proceed and is unhappy with the Department’s internal review decision, a right of appeal to this Office will apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to levy the fee prescribed in the Regulations for an internal review of its decision, as provided for under section 27(13)(a)(i) of the FOI Act.
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.
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Richard Crowley
Investigator