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Whether the Department was justified in its decision under section 47 of the FOI Act concerning the fee it sought to charge the applicant for the cost of the search for and retrieval of records he had requested from it.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

On 5 February 2013 the applicant wrote to the Department seeking "Copies of all correspondence between members of the Oireachtas and the Department of Justice and Equality in relation to prisoners incarcerated by the Irish Prison Service from 1 March, 2011 to January 31, 2013".

On 12 February 2013, the Department informed the applicant there would be a fee of €1,425 to locate, gather and photocopy the records he sought. The Department explained that it had estimated the fee based on 66 hours work which would be required to complete the search and retrieval task. On 12 February 2013, the applicant requested an internal review of the decision, maintaining that a fee of €1,425 is disproportionate to the amount of search and retrieval time dealing with his request should require. In a letter of 21 February 2013, the Department affirmed its original decision to charge the fee in question. The applicant wrote to this Office on 26 February 2013 seeking a review of the Department's decision.

During the course of this review the Department revised its original estimate for the amount of search and retrieval work in this case from 66 hours to 7 hours work. On 23 December 2013, Mr Richard Crowley, Investigator, notified the applicant of the Department's revised decision to seek a fee for 7 hours search and retrieval work and informed the applicant of his preliminary view that the Department's revised decision was justified. Mr Crowley suggested to the applicant that the case might be settled at this time. On 13 January 2014 the applicant replied, contending that the Department has frequently responded to routine FOI requests with disproportionate search and retrieval fee demands. The applicant opted for a formal binding decision as is his right.

In conducting my review, I have had regard to correspondence between this Office and the Department, to details of the submissions of the Department, to correspondence between the applicant and the Department, to correspondence between this Office and the applicant and to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in its revised decision to charge the applicant a fee, under section 47(1) of the FOI Act, for the cost of 7 hours search and retrieval work at the prescribed rate per hour.

Analysis and Findings

Section 47
Section 47(1) of the FOI Act provides that " a fee of such amount as may be appropriate having regard to the provisions of this section shall be charged by the public body concerned and paid by the requester concerned to the body in respect of the grant of a request under section 7."

Section 47(2) provides that the amount of the fee shall be equal to " the estimated cost of the search for and retrieval of the record concerned ... as determined by the head concerned".

Section 47(3)(a) provides that "the amount of the cost of the search for and retrieval of a record shall be calculated at the rate of such amount per hour as stands prescribed for the time being in respect of the time that was spent, or ought, in the opinion of the head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently ...".

In its original decision the Department explained how it arrived at the search and retrieval fees in this case. It stated that when this type of request is received a search of the correspondence database is conducted to identify all representations received within the time period stated which must be searched in order to complete the request. The Department stated that a preliminary background search in relation to the retrieval of all correspondence falling within the scope of the applicant's FOI request indicated there are 277 records which must be searched. The Department estimated it would take approximately 66 hours to complete the search and retrieval task. The Department's Internal Reviewer provided a further explanation to the applicant about how the 66 hour estimate was arrived at.

During the course of this review, the Department explained that it decided to carry out an actual search of the 277 records in question as part of its response to queries put by this Office. This actual search and retrieval exercise took approximately 7 hours. The Department subsequently accepted that its original estimate of 66 hours for the search and retrieval of the 277 records should be revised to a fee for 7 hours it states it spent actually searching for the records. I see no reason not to accept the Department's statement of the time spent searching for the relevant records, and nor has the applicant disputed the Department's revised position on its search. On that basis, I consider a search and retrieval fee based upon 7 hours work at the prescribed rate of €20.95 per hour to be reasonable in this instance and I find accordingly.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the Department to charge a fee for the cost of 7 hours search and retrieval work in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Sean Garvey
Senior Investigator