Decision
Ken Foxe Right To Know & Office of Public Works (the OPW)
From Office of the Information Commissioner (OIC)
Case number: OIC-156565-B1W9B7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156565-B1W9B7
Published on
Whether the OPW was justified, under section 27 of the FOI Act, in deciding to impose a fee of €280 for the search and retrieval of records relating to the National Flood Forecasting & Warning Service Steering Group and the related Flood Forecasting Communications Working Group
5 August 2025
On 8 January 2025, the applicant made a request to the OPW for the following:
1) National Flood Forecasting & Warning Service Steering Group - agendas, minutes and related meeting presentations or reports provided to or by the Group since established.
2) Any minutes, agendas or reports/presentations to/from the related Flood Forecasting Communications Working Group since it was established.
On 17 January 2025, the OPW asked the applicant to refine its request. The applicant requested a schedule of meetings of the Steering Group with a sample record to enable it to reduce the scope of its FOI request. On 21 January 2025, the OPW provided the establishment date of the Steering Group (2016), the number of meetings to date (40), and said that there are approximately 200 records of varying lengths that are within the scope of the FOI request. In reply, the applicant refined its request to the period to 2023 - 2025(YTD).
On 22 January 2025, the OPW informed the applicant that the estimated cost of searching for, and retrieving and copying, relevant records was €280 based on the services of four staff members for 14 hours. It sought a deposit of €56 to allow for the processing of the request to proceed. The OPW said the actual 'search and retrieval and copying' work to be carried out will not commence until the deposit is paid, and the final amount to be paid will be based on the actual work undertaken in relation to the records which are released to the applicant. It said incorporated in this final charge will be the cost of any copying of records at the prescribed rate. The OPW said that in the event that the final amount is less than the deposit any excess will be refunded. The applicant was invited to contact the OPW if it wished to explore possible amendments to the FOI request that might reduce or eliminate the deposit and/or fee. On the same day, the applicant sought an internal review of the OPW’s decision to charge search and retrieval fees, following which the OPW affirmed its decision. On 14 February 2025, the applicant applied to this Office for a review of the OPW’s decision to charge a fee.
During the course of the review, this Office provided the applicant with details of the OPW’s explanation of the basis on which it had estimated that 14 hours would be required to search for and retrieve relevant records, and invited the applicant to make a submission. In response, the applicant said it had no additional comments.
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 outlined above and to the submissions made in this case. 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 its decision to charge search and retrieval fees of €280 in order to process the applicant’s FOI request.
Section 27
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 (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 body in‒
• determining whether it holds the information requested,
• locating the information or documents containing the information,
• retrieving such information or documents,
• extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and
• 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, not later than two weeks after the receipt of the request, issue a notice in writing to the requester requiring payment of the deposit.
In its submissions to this Office, the OPW said that it had estimated that the services of four staff members for a total of 14 hours would be the minimum amount of time required to efficiently complete the ‘search and retrieval’ work on the FOI request, which amounts to an overall fee of €280 as set out in its fees letter of 22 January 2025.
The OPW said that it would take approximately 30 minutes for various staff members to determine whether it held the information requested. It said that one staff member would need to carry out a search of the relevant email directory and National Flood Forecasting and Warning Service folder and subfolders to establish if all of the relevant records are contained in the folders for the period concerned. It said that, as some documents may have been presented on the day of a meeting in either softcopy or hardcopy format or circulated following a meeting, this staff member would need to contact other members of staff who would need to search their relevant email directories and folders to establish if they hold these documents.
It said that it would take four members of staff approximately 5.5 hours to locate the records that are within the scope of the request. It said that in order to locate the relevant records, each individual electronic document contained in the Steering Group Meeting folder needs to be examined to determine if it falls within the scope of the request. The OPW said that this includes all relevant minutes and agendas of the meetings of the Steering Group for the period concerned, which it said would need to be examined to identify all meeting presentations or reports referred to in the minutes or agendas that may have been circulated to/by the Steering Group members. It said that this may include documents presented on the day of a meeting in either softcopy or hardcopy form or circulated following a meeting. It said that in any cases where these records are not contained in this folder, a search will need to be carried out of the email directory, and in any cases where documents were circulated in hardcopy form, the records concerned will need to be retrieved from the member who circulated the document. The OPW said that, in addition, files relating to the general administration of the Steering Group such as meeting invites and responses etc that are contained in this folder will also need to be examined.
The OPW said that it would take three members of staff approximately three hours to retrieve such records and extract the relevant information and/or records from the files, documents, electronic or other information sourced, which it said would contain material both relevant to the FOI request and not relevant to the FOI request. It said that it had carried out a preliminary exercise for the purpose of estimating the search and retrieval costs, and it estimates that approximately 100 records, containing approximately 900 pages, would be within the scope of the FOI request.
In its submissions, the OPW said that it would then take one member of staff approximately five hours to prepare a schedule specifying the records for consideration for release. It said that this estimate is based on the number of records to be itemised on the schedule, and has regard to previous experience of the time taken to produce similar schedules of records arising from other FOI requests the OPW has processed. It said that in order to prepare a schedule of the relevant records, a member of staff would need to download a template model schedule and save it to the relevant FOI directory on the file drive. The OPW said that this staff member would then need to access each of the approximately 100 records on the electronic filing system, and open and save them into this directory. It said that, in saving the records to the directory, a record number would be allocated to the file name description of each record. It said that the following information would then be derived from each document and entered onto the schedule: the date of the record, the record number, a brief description of the record, and the number of pages comprised in the record. It said that the reference number of the case would also be entered on the schedule. The OPW said that, based on an estimated total of 900 pages contained in 100 records, it had estimated a total of five hours for completion of the above processes.
The OPW said that its estimate of 14 hours did not take into account any time that may be needed to redact any exempt information contained within the relevant records in order to enable their release and to note any such redactions on the schedule.
It is important to note that many 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. This Office considers that the Oireachtas intended to confer some latitude on FOI bodies in their estimation of the time to be spent on search and retrieval, but that this latitude was to have its limits. In all cases, we expect an FOI body to be able to explain how its estimate of the costs of search and retrieval 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, we are not inclined to interfere with that decision.
It seems to me that the essence of the OPW’s submission is that the number of records involved that would need to be searched for, retrieved, and extracted are such that it would take nine hours and a number of staff members to do so. In the absence of any evidence to the contrary, it therefore seems to me that the OPW appears to hold a considerable number of records that would have to be searched to indicate if they fall within the specific scope of the applicant’s request. It also estimates that a further five hours would be needed in order to generate a schedule, bringing the total estimate of time to 14 hours as outlined in its fee letter to the applicant. Given the broad categories of record sought by the applicant, and the fact that the OPW’s estimate for the time needed to create the schedule is based on using the schedule template provided by the Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform, the OPW’s outline of the steps required is not unreasonable, in my view.
In the circumstances, I am therefore satisfied that the OPW has provided a reasonable basis on which it estimated the search and retrieval fee at €280. In conclusion, therefore, I find that the OPW was justified in deciding that the cost of searching for and retrieving and copying relevant records was €280.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the OPW to impose a fee of €280 for the search and retrieval of records relating to 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.
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Richard Crowley
Investigator