Decision
Mr. Y and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-154143-D2N9X6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154143-D2N9X6
Published on
Whether the IPS was justified in refusing, under section 15(1)(h) of the FOI Act, the applicant’s request on the ground that he did not pay fees related to previous FOI requests he had made
11 February 2025
In a request dated 26 August 2024, the applicant sought access to a list (used by the IPS) of offences, the nature of which precludes those committed of such offences from all forms of temporary release, enhanced remissions, or open prison, and the genesis of such list. On 16 September 2024, the IPS refused the request under section 15(1)(h) of the FOI Act on the ground that the applicant had neither paid a deposit on a previous request that attracted a fee under section 27 of the FOI Act, nor had he sought to narrow the scope of the request.
On 18 September 2024, the applicant sought an internal review of the decision to refuse his request for what he described as records he had never sought before. On 21 November 2024, the IPS affirmed its refusal of the request. On 25 November 2024, the applicant applied to this Office for a review of the IPS’s decision.
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 by the IPS in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the IPS was justified in refusing, under section 15(1)(h) of the FOI Act, the applicant’s request for a specified list of offences and the genesis of such list.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner’s satisfaction that its decision was justified. This means that the onus is on the IPS to satisfy this Office that its decision to refuse the request was justified.
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. Section 27(5) provides for the charging by FOI bodies of deposits where the estimated SRC cost is likely to exceed a certain minimum amount, currently €101. Section 27(5) provides that where the body considers that the estimated SRC cost 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.
Section 27(12) allows an FOI body to refuse to process a request where the SRC cost 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 offer to assist the requester in amending or limiting the request to bring the charge below the overall ceiling limit.
Section 48(1) of the FOI Act provides that the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation may draw up and publish guidelines for the effective and efficient operation of the Act to assist FOI bodies in the performance of their functions under the Act. Under section 48(3), FOI bodies are required to have regard to any such guidelines in the performance of their functions under the Act.
The Central Policy Unit (CPU) of the Department of Public Expenditure, NDP Delivery and Reform has published a Guidance Note on Fees and Charges (available at www.foi.gov.ie) to assist FOI bodies in ensuring compliance with the provisions of section 27. The Guidance describes the procedures that must be followed by FOI bodies when applying the provisions of section 27(12). The procedures outlined include the following:
i. Letter telling requester that his/her request is to be refused under Section 27(12) and offering assistance in refining the request must issue within 10 working days or request cannot be refused on that basis;
ii. In order to charge fees for the refined request, the letter issuing under Section 27(12) must also request a deposit in the event that the request is refined;
iii. A specific deposit must be requested and should be calculated as a proportion of the appropriate maximum amount (currently €500, 20% of which is €100);
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.
IPS Submissions
In its submissions to this Office, the IPS said it refused the request under section 15(1)(h) as fees were not paid in relation to two previous requests made by the applicant. It said the decision to charge fees was not responded to in either case and no appeal was received for either request. It said that the guidance on this Office’s website “clearly states that where a fee for a previous request has not been paid by the same requester the request can be refused under Section 15(1)(h)”.
The IPS provided this Office with copies of the notification letters it issued pursuant to section 27(12) in respect of the two previous requests. In both cases, the applicant was informed that the estimated SRC cost exceeded the overall ceiling limit. He was offered an opportunity to refine his request and was informed that in the event that the request was refined, a deposit of €100 would be required. On 7 March 2024, the IPS refused both requests under section 15(1)(h) as it received no response to its notifications under section 27(12).
My Analysis
Section 15(1)(h) allows an FOI body to refuse a request where a fee or deposit payable under section 27 has not been paid in respect of (i) the request concerned, or (ii) a previous request by the same requester. The Act is silent on when an FOI body might appropriately exercise its discretion to refuse a request under section 15(1)(h) as a result of a fee or deposit not having been paid in respect of a previous request.
On its face, it appears that section 15(1)(h) allows an FOI body to refuse any and all further requests from a requester where a fee or deposit payable under section 27 has not been paid in respect of a previous request, regardless of the prevailing circumstances. In my view, such a literal interpretation and application of the provision, which could effectively amount to a lifetime ban on the exercise by an individual of rights afforded under the FOI Act, would not be in keeping with the spirit and intent of the Act which as the Long Title states, is to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies.
The Guidance Note on Fees and Charges referenced above provides advice to FOI bodies where the requested fee has not been paid. Among other things, it says that where a deposit has not been paid within eight weeks, the deposit can reasonably be deemed not to have been paid and the FOI request falls. It further advises as follows:
“Where a person has failed to pay a fee or deposit in respect of SRC, the Act (Section 15(1)(h)) confers discretion on an FOI body to refuse the request or a subsequent FOI request from the same requester. Certainly, …, it is considered reasonable that an FOI request would fall in the case where a deposit is not paid within 8 weeks of the deposit being requested and that records should not be released in a case where a deposit has been paid but the final payment is not forthcoming.
It is recommended, however, that failure to pay a fee or deposit should not ordinarily be a basis for refusing a subsequent request from the same requester. An FOI body might simply impose a deposit of well over 20% or even for the full estimated amount of SRC on a subsequent request that qualifies for fees.” (my emphasis)
While it would not be feasible for me to provide an exhaustive list of the circumstances when an FOI body might appropriately refuse a subsequent request under section 15(1)(h) on the ground that a fee or deposit has not been paid in respect of a previous request, I fully accept that there may be occasions when it would be appropriate to do so. For example, the use of section 15(h) might be appropriately considered where an applicant is seeking to circumvent having to pay a fee on a previous request by making subsequent multiple narrower requests for essentially the same information. Moreover, I would expect that an FOI body might give due consideration to the application of section 15(1)(h) where a requester has established an ongoing pattern of submitting requests that attract SRC fees and failing to further engage on such requests, perhaps for nuisance value, although it seems to me that section 15(1)(g) might provide a more appropriate ground for refusal in such circumstances. The key principle, however, is that each case must, in my view, be treated on its individual merits.
In this case, it seems to me that the IPS decided to refuse the applicant’s request under section 15(1)(h) simply because it considered that it was entitled to do so. It did not appear to have due regard to the Guidance issued by the CPU. The sole reason it provided for relying on the provision was that fees were not paid in relation to two previous requests made by the applicant. Such an approach could effectively amount to an indefinite ban on the applicant exercising right to seek access to records held by the IPS. I noted above that the IPS referenced guidance issued by this Office which it considered to “clearly” state that where a fee for a previous request has not been paid by the same requester the request can be refused under section 15(1)(h). It is important to note that the comment referenced was contained in Guidance this Office issued on section 27 and it was included simply as a statement of the factual position. It did not purport to offer advice on the application of section 15(1)(h) itself.
In this case, the applicant clearly informed the IPS that his request was for information that he had not previously requested. It is also apparent from his correspondence with this Office that he believed his new request was such that it could be processed by the IPS without attracting SRC fees and that this distinguished it from the previous requests. While I fully accept that he could usefully have informed the IPS that he did not wish to proceed with his previous requests having regard to the SRC fees involved, I do not believe that his failure to do so, of itself, justified the refusal of his subsequent request.
Accordingly, I am not satisfied that the IPS was justified in refusing the applicant’s request under section 15(1)(h) of the FOI Act, and I find accordingly. In all of the circumstances, therefore, I consider that the most appropriate course of action to take in this case is to annul the IPS’s decision to refuse the applicant’s request and to remit the matter back to the IPS to make a new, first instance, decision on the applicant’s request. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the fresh decisions on his request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IPS to refuse the applicant’s request under section 15(1)(h) of the FOI Act. I direct the IPS to conduct a fresh decision-making process on the 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.
Stephen Rafferty
Senior Investigator