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Whether the HSE was justified in its decision under section 47 of the FOI Act to charge a fee for the cost of the search for and retrieval of records sought

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 11 June 2014 the applicant submitted a request to the HSE for copies of records held by various members of staff of Galway Roscommon hospital. On 18 July 2014 the HSE wrote to the applicant requesting payment of a deposit of €419 on the basis of estimated search and retrieval fees of €838. It also invited the applicant to amend the request in order to reduce or eliminate the deposit or fee required. On 13 August 2014 the applicant sought an internal review of the HSE's decision to charge a fee for the search and retrieval of relevant records.

Following further contact between the applicant and the HSE, the applicant submitted an amended request on 2 September 2014. On 12 November 2014 the HSE informed the applicant that the amended request continued to attract search and retrieval fees and that, in line with the introduction of a revised fees regime introduced under the FOI Act 2014, it had decided to cap the search and retrieval costs at €500 and to seek a deposit of €250. The applicant sought a review of that decision on 2 December 2014 and the HSE upheld the decision by letter dated 9 January 2015. The applicant applied to this Office for a review of the HSE's decision to charge the estimated fee on 29 January 2015.

In conducting my review, I have had regard to the correspondence between my Office and both the HSE and the applicant, to the correspondence between the applicant and the HSE, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The scope of this review is concerned solely with the question of whether the HSE was justified in deciding to charge a fee of €500.00 for the release of records in response to the applicant's request as set out in her letter of 2 September 2014.

Analysis and Findings

The relevant provisions concerning the charging of search and retrieval fees by public bodies for granting requests are set out in section 47 of the FOI Act. For the purposes of this review, it is important to note that section 47 provides for the charging by public bodies of deposits where the estimated search and retrieval fees are likely to exceed a certain amount. Section 47(7)(a) provides that where the body considers the estimated cost of search and retrieval is likely to exceed €50.79 (the prescribed amount under the FOI Acts 1997-2003),

"... a deposit of such amount as may be determined by the head (not being less than 20 per cent of such cost) shall be charged ..."

Section 47(7)(c) provides that

"the head shall, not later than two weeks after the receipt of the request, cause a request in writing for payment of the deposit to be given to the requester ... and a statement that the process [of search and retrieval] will not be begun until the deposit has been paid ..."
The requirement to request a deposit where the fee is likely to exceed the prescribed amount is for the benefit of both public bodies and requesters. It helps to ensure that the public body does not allocate scarce resources to processing a request which a requester may not ultimately pursue because of the cost involved. It also offers the requester an opportunity to narrow a request to eliminate or reduce potential cost. The requirement to request a deposit is mandatory. It is also mandatory that the request should issue not later than two weeks after the receipt of the request.

The FOI Act provides for adherence to strict time-frames for processing FOI requests. Section 8 of the Act provides that, subject to the provisions of the Act, decisions taken by public bodies on FOI requests must issue not later than four weeks after receipt of the request while section 47(12) provides that the time-frame for issuing decisions set out in section 8 shall be construed as comprising four weeks plus the time taken from the notification of the request for a deposit to the time actually taken to pay the deposit. It is clear, therefore, that failure to comply with the statutory time-frames as set out in section 47(12) is a failure to comply with the mandatory provisions of section 47.

On this point, I note the contents of Notice No. 6 that was published by the Central Policy Unit of the Department of Public Expenditure and Reform as guidance for public bodies on the operation of the fees regime under the FOI Act. That Notice clearly explains that a public body cannot charge search and retrieval fees where the notification of a deposit has not issued within ten working days. While that Notice refers to the fees regime under the 2014 Act, the point at issue also applies in the case of requests processed under the FOI Acts 1997-2003.

In this case, the applicant submitted a revised request on 2 September 2015. While the HSE treated that as a new request in light of the additional information sought, it did not issue the notification of the deposit until 12 November 2014, more than 10 weeks later. Accordingly, I find that the HSE failed to comply with the provisions of section 47 of the FOI Act in this case and for this reason I find that it was not justified in charging a search and retrieval fee.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the HSE's decision to charge a fee of €500.00 for search and retrieval of the relevant records in this case and I direct it to proceed to process the request in accordance with the provisions of the FOI Acts 1997-2003.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator