Decision
Mr Ken Foxe, Right to Know CLG and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-132957-X3Q5B9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-132957-X3Q5B9
Published on
Whether the OPW was justified, under section 27 of the FOI Act, in deciding to impose a fee of €800 for the search and retrieval of certain records relating to the refurbishment of the Public Appointments Service’s (PAS) headquarters
8 March 2023
On 14 October 2022, the applicant made the following three-part request to the PAS for access to records relating to its project for refurbishment of its headquarters:
1. A copy of any inspection reports or other such condition reports associated with the PAS' project for refurbishment of its headquarters.
2. A copy of the business case, cost benefit analysis, sanction or approval document associated with the above project.
3. A database/spreadsheet/record broken down in as much detail as possible outlining all expenditure, refurbishment, office equipment costs etc., incurred during this project.
On 26 October 2022, the PAS formally transferred the applicant’s request to the OPW pursuant to section 12(3)(a)(i) of the FOI Act, having agreed with the OPW that it held the records sought. On the same date, the PAS informed the applicant that it had transferred the request to the OPW.
On 7 November 2022, the OPW informed the applicant that the estimated cost of searching for and retrieving the records concerned was €1,160. It said that it was proposing to refuse the request under section 27(12) unless it could be amended so that the estimated cost of search, retrieval and copying fell below the overall ceiling limit. It offered to assist the applicant with refining the request and sought a deposit of €100, subject to the request being amended. It also informed the applicant that he could appeal the decision to charge a fee, and details were provided on how to do so.
On 8 November 2022, the applicant sought an internal review of the decision of the OPW to charge search and retrieval fees. He was of the view that the estimate of costs involved in this case was “unrealistic”, given that the request was “quite specific”. On 7 December 2022, the OPW issued its internal review decision, wherein it said it had decided to affirm the decision made by the original decision maker. However, it also stated that the number of hours could “could potentially be reduced” so that the fee would be “circa €800”. On 15 December 2022, the applicant sought a review by this Office of the OPW’s decision to charge a search and retrieval fee of €800.
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 correspondence between the OPW and the applicant as set out above, and to the correspondence between this Office and both the OPW and the applicant on the matter. I have also had regard to the guidance provided by the Central Policy Unit of the Department of Public Expenditure and Reform (CPU) in Guidance Note 6 (REV) on Fees and Charges (available at www.foi.gov.ie ) relating to the procedures to be followed under section 27(12) of the FOI Act. I have decided to conclude this review by way of a formal binding decision.
This review is concerned solely with whether the OPW was justified, under section 27 of the FOI Act, in deciding to impose a fee of €800 for the search and retrieval of records coming within the scope of the applicant’s request for certain records.
In its internal review decision, the OPW stated that it considered the applicant’s request to be “voluminous”. Section 15(1)(c) of the FOI Act essentially provides for the refusal of voluminous requests. However, it is of note that the OPW proposed to refuse the applicant’s request under section 27(12), which allows an FOI body to refuse to process a request where the amount of the search and retrieval and copying (SRC) charge exceeds, or is likely to exceed, the overall ceiling limit prescribed. While I accept that there may be a degree of overlap between the provisions of sections 15(1)(c) and 27(12), in that they both recognise that there are limits on the amount of resources a body should expend in dealing with FOI requests, it is important to note that they are separate provisions which operate independently of each other.
Section 27(1) of the FOI Act provides for the mandatory charging by FOI bodies for the estimated cost of the SRC of records in respect of the grant of an FOI request. Under section 27(2), the search for, and retrieval of, records “includes time spent by the FOI body in—
(a) determining whether it holds the information requested,
(b) locating the information or documents containing the information,
(c) retrieving such information or documents,
(d) extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and
(e) preparing a schedule specifying the records for consideration for release.”
The SRC charge is calculated at a prescribed amount per hour in respect of time that was spent, or ought, in the opinion of the body, to have been spent in carrying out the search for and retrieval of the records efficiently. This amount is currently set at €20 per hour under the Freedom of Information Act 2014 (Fees) (No. 2) Regulations 2014 [S.I. No. 531 of 2014].
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. It must also, not later than two weeks after the receipt of the request, issue a notice in writing to the requester requiring payment of the deposit.
Section 27(12) allows an FOI body to refuse to process a request where the cost of the SRC exceeds, or is likely to exceed, a prescribed amount, currently €700. This is referred to as the overall ceiling limit. However, before the body can refuse to process a request on those grounds, it must first assist the requester, if he or she so wishes, in amending or limiting the request to bring the charge below the overall ceiling limit.
Where the requester does not amend or limit the request such that the charge arising or likely to arise is reduced to an amount less than or equal to the overall ceiling limit, the body may refuse to process the request. However, it may also still decide to process the request, in which case the requester will be required to pay the full charge. The prescribed maximum amount of €500 for search and retrieval charges does not apply in such circumstances. However, the body must also comply with the provisions of section 27(5), i.e. it must also issue a notice, not later than two weeks after the receipt of the request, requiring the payment of a deposit in the event that the requester amends the request or the body decides to process the request regardless of any amendment.
The OPW’s Submissions
In its original decision the OPW provided the following breakdown of the 58 hours which it initially estimated would be required to process this request at an estimated cost of €1,160:
(a) determining whether it holds the information requested – 1 hour
(b) locating the information or documents containing the information – 4 hours
(c) retrieving such information or documents – 16 hours
(d) extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request – 16 hours
(e) preparing a schedule specifying the records for consideration for release – 21 hours
The OPW reduced its fee estimate to €800 at internal review stage, based on a revised time estimate of 40 hours. It said that the Senior Manager in the M&E department had originally included time for the “examination of the data” with a view to determining whether or not records should be released as part of its original estimate of 58 hours. The OPW said it reduced the fee estimate for part 1 of the request from 28 hours to 10 hours on foot of this, which resulted in a revised estimate of 40 hours broken down as follows:
(a) determining whether it holds the information requested – 1 hour
(b) locating the information or documents containing the information – 4 hours
(c) retrieving such information or documents – 7 hours
(d) extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request – 7 hours
(e) preparing a schedule specifying the records for consideration for release – 21 hours
In its submission to this Office, the OPW said that part 1 of the applicant’s request accounts for the “majority” of the costs. It said the records relating to part 1 of his request are held electronically and on hardcopy files in two sections within the OPW, namely, the Mechanical and Engineering (M&E) and Property Maintenance Services (PMS) sections. It said the relevant M&E files date back to 2017, relate to plant and services, and are stored electronically.
The OPW said that a Senior Manager in M&E stated that due to the “voluminous nature of the task”, it would take two people two days to “gather” all the data relating to the request. It said it “did not obtain an exact number of records” as the decision maker was “working on the fees estimate”.
The OPW also said that based on an initial examination of the files held by the PMS section, there are approximately 90 reports held electronically concerning weekly or fortnightly site inspection reports and building condition reports, relating to part 1 of the applicant’s request. It further said that the PMS section allocated 3 hours for search and retrieval in relation to parts 2 and 3 of the request, for which it said relevant data is “readily available”.
On the matter of the preparation of a records schedule, the OPW said due to the “large volume of reports” it holds on this project, a “higher proportion of the fee estimate” was allocated to preparing the schedule. It said the decision maker estimated 3 days to prepare the schedule and that the reviewing officer “verified” this estimate.
Following receipt of the OPW’s submissions, the Investigating Officer sought clarification from the OPW on its calculations. Specifically, she asked the OPW to clarify whether the M&E section provided a breakdown of its estimate, and why the OPW estimated 3 hours for SRC relating to parts 2 and 3 of the request, given that the data is "readily available". The Investigating Officer also asked the OPW to clarify the basis on which it estimated that it would take 3 days (21 hours) to prepare the records schedule in this case.
In response, the OPW said that its M&E section did not provide a written breakdown of the estimate of time, but that it conducted “an initial examination of the file” and provided an estimate “based on the number of records/reports that were in the file”. It said there are “a number of approvals/submission on file for inclusion” for part 2 of the request. The OPW also stated that while data can be requested from the PMS Furniture Branch and the financial system in respect of part 3 of the request, this “requires some work” for which an allowance was made in the estimate.
The OPW said that it estimated that a “maximum of 300 records” would need to be entered on the records schedule “based on the information at hand at the time” when processing the request. It said that this included the fact that the PMS section holds approximately 90 reports and the M&E section indicated it holds “many more reports” on plant and services. It said this estimation formed the basis for its estimate of 21 hours (3 days) to prepare the schedule. Following a request for further clarification, the OPW confirmed verbally to the Investigating Officer that its estimate of 21 hours was based on experience and a data entry speed of about 4 minutes per record/report.
My Analysis
As set out above, this review is concerned solely with whether or not the OPW was justified, under section 27 of the FOI Act, in deciding to impose a fee of €800 for the search and retrieval of records coming within the scope of the applicant’s request.
I fully accept that what is required of the FOI body in such cases is that it must estimate the SRC fee, without actually carrying out the steps required to locate the record sought. Accordingly, most disputes about fees will turn on the question of the FOI body's estimate of the time to be spent on a search, retrieval and copying exercise that has yet to take place. The view of this Office is that the Oireachtas intended to confer some latitude on FOI bodies in their estimation of the time to be spent on a search and retrieval of records, but that this latitude was to have its limits. In all cases, we expect the FOI body to be able to explain how its estimate of the costs of search and retrieval was arrived at. If the FOI body concerned 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, we are not inclined to interfere with that decision.
Having considered the OPW’s submissions, I am not satisfied that it has explained the basis on which it calculated the SRC estimate in this case, or that it is a reasonable estimate, for a number of reasons.
Firstly, the M&E section of the OPW did not provide a breakdown of the estimated number of hours which would be required to process the request, nor is there any evidence before me to indicate that the PMS section provided such a breakdown. In the absence of details of the steps required by these sections to search for and retrieve the records sought, and the time estimated to complete each step using the headings set out in section 27(2), it is not clear to me how the OPW arrived at its estimate of 19 hours for parts (a)-(d) of its search and retrieval process as set out above. In those circumstances, I am not satisfied that the OPW has provided an informed estimate of the volume of records that will have to be searched to identify what relevant records it holds.
Secondly, I am not satisfied with the estimate of 21 hours the OPW considers would be required to prepare a schedule of records for release (section 27(2)(e) refers). I understand that this is based on an estimated maximum of 300 records to be entered on the schedule. However, it is difficult to say whether this estimate is or is not reasonable in circumstances where it appears that only one section of the OPW gave an estimate of the number of records it holds relating to part 1 of a three-part request, namely, the Property Management Services section, which holds approximately 90 records.
Nevertheless, even if I was to accept the OPW’s estimate of 300 records to be entered on its schedule of records, I find its estimate of 21 hours (3 days) to complete the schedule excessive and disproportionate, especially given that it is more than twice the number of hours estimated for the actual search and retrieval of records. It is also of note that the OPW provided no objective basis for its estimate of 4 minutes per entry on the schedule of records. Furthermore, while the FOI Act provides that the time to prepare a schedule of the records to be considered for release can be factored into the SRC fees estimate, it is important to note that this does not include the time taken to consider the records for release. It is not clear to me from the OPW’s submissions in this case whether the 21 hours estimated were intended to include the consideration of whether records were to be released or not.
It is also important to note that under section 27(3), the cost of SRC must be calculated at the rate of such amount per hour as stands prescribed in respect of the time that was spent, or ought to have been spent, by each person concerned in carrying out the search and retrieval efficiently. As such, in the absence of any evidence to the contrary, I do not accept that the 21 hours (3 days) estimated to complete the schedule of records in question can reasonably be described as efficient for the purposes of section 27(3) of the Act.
Having carefully considered the matter, I am not satisfied that the OPW has justified its decision to charge SRC fees of €800 in this case. However, I am not in a position to simply provide an alternative estimate. Neither do I consider it appropriate to direct the OPW to process the request without charging SRC fees in circumstances where I have no real knowledge of the potential amount of records that might have to be searched by the OPW, in particular, its M&E section, to locate the records sought.
In the circumstances, I consider that the most appropriate course of action to take is to annul the decision and direct the OPW to process the request afresh. When doing so I would strongly urge it to take steps to ensure that any SRC estimate is based on a more informed estimate of the volume of records that will have to be searched to identify what relevant records, if any, it holds. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the OPW’s decision.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the OPW to charge a fee of €800 for the search for and retrieval of the records sought by the applicant. I direct the OPW to undertake a fresh decision making process in respect of the applicant’s request.
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.
Sandra Murdiff, investigator