Whether the Council was justified, under section 27 of the FOI Act, in charging a fee of €480 for the search for and retrieval of records relating to a flooding incident in Fermoy on 24 February 2021

4 August 2021

Background

On 24 March 2021, the applicant submitted a request to the Council for copies of all documents and reports, emails, and text messages relating to a flooding incident in Fermoy on 24 February 2021, both internally and with all external bodies or organisations.

It appears the Council deemed the request to be voluminous and contacted the applicant on 26 March 2021 to seek a refinement of the request. The applicant replied on 29 March 2021 and indicated that he was seeking records relating to “the period of time from when the weather warning was issued to the period of time after the flooding event, when consideration was being given to the aftermath of that event and the response to it”. 

On 6 April 2021, the Council wrote to the applicant wherein it contended that there was no substantial refining of the request. It informed the applicant of its estimate that 24 hours would be the minimum amount of time required to efficiently complete the 'search and retrieval' work on the request, resulting in an estimated search and retrieval fee of €480. It sought payment of a deposit of €240. The applicant sought a review of the decision to charge a fee of €480, following which the Council affirmed its decision. On 17 June 2021, the applicant sought a review by this Office of that decision.

During the course of the review, the Investigating Officer provided the applicant with details of the Council’s explanation of the basis on which it had estimated that it would take 24 hours to search for and retrieve relevant records and of her view that the Council was justified in its decision to charge an estimated fee of €480. She invited him to make a submission on the matter. In response, the applicant expressed concerns about the charging regime and explained why he requires the records at issue. I will address those comments later in this decision. 

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified, under section 27 of the FOI Act, in charging a fee of €480 for the search for and retrieval of relevant records coming within the scope of the applicant’s request for records relating to a flooding incident in Fermoy on 24 February 2021.

Analysis and Findings

Section 27(1) of the FOI Act provides for the mandatory charging of fees by FOI bodies for the estimated cost of the search for, and retrieval and copying of, records (SRC charge). Under section 27(2), the search for, and retrieval of, records includes time spent by the 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].

In its submissions to this Office, the Council provided details of its estimate of the time that would be required to search for and retrieve relevant records. It said the event was an emergency response across multiple agencies of the State and Local Authority. It said an estimate of six hours for search and retrieval was received from the County Engineer’s Department, an estimate of 17 hours was received for the Roads Directorate, an estimate of time not exceeding one hour was received from the Insurance Department, and an estimate of less than one hour was received from the Municipal Districts office (which was excluded from the overall estimate).

The County Engineer calculation of six hours was based on estimates of two hours for the County Engineer/Senior Engineer, three hours for the Senior Executive Engineer, and one hour for an Administrative Officer. The Roads Directorate estimate of 17 hours was based on estimates of eight hours of work for the search, retrieval and preparation of records from District Office Supervisor, outdoor staff and on-call duty staff, one hour for records concerning the Senior Executive Engineer and one hour for records concerning the Director of Services. The co-ordinator for the Area Office estimated seven hours of work for the search, retrieval and preparation of records of over 10 members of staff involved in operations. It said the information sought reached out to all communications involving:

• the Duty officer of the Flood Early Warning System (FEWS)
• the On-call duty officer for the night
• the Road Operations SMT & staff/executive
• the District Supervisor
• 16 on-call outdoor duty staff for the event covering 23/24th Feb
• MDO, SEO, Director of Roads
• Municipal Services
• Communications Department
• Garda Authorities
• Direct Route
• Lagan Projects
• Civil Defence
• Sub Aqua – river rescue & OPW

The Council added that for post-flood event, further internal and external communications with OPW, EPS, Flood & Coastal department and SMT of Roads Directorate and communication section in relation to the incident would also need to be searched. Generally, the Council said that searches would be required of all email accounts, tablet records, minutes, and notes, and that all relevant files would have to be retrieved and a schedule of records prepared. It added that it is likely that the actual working hours may exceed its estimates.

In response to the details of the Council estimate, as provided by the Investigating Officer, the applicant argued that as a public representative who relies on transparency from public bodies in order to carry out his functions on behalf of constituents, if he had to pay hundreds of euros every time he wanted to get information in the public interest, the daily exercise of democracy would be a costly business for TDs. He queried why it would take a long time to find all the documents required as the request specifically refers to only one night/early morning communications relating to flooding in Fermoy on 24 February 2021.  

He added that the reason for the request in the first instance arises from a flooding incident in Fermoy as a result of which his constituents incurred significant property damage. He said there was no comprehensive publicly available report, made available to him nor his constituents, into the exact events of those hours during which flooding occurred. He said he had not heard from the OPW or the Council on whether there was an error or an oversight on the part of the Council in not putting the warning system in place per the OPW Flood Prevention Plan and that he and his constituents are none the wiser. He said it has been established that there was no contract for the management of defences at one site on the river Blackwater and that he was merely trying to establish facts and timelines.

It is important to note that the provision for the charging of search and retrieval fees in mandatory. Nevertheless, it is also noteworthy that a public body may not charge a fee where the total amount of the charge is less than the prescribed amount, currently €101. This means that if the time required to search for and retrieve relevant records is five hours or less, no fee may be charged. It is open to requesters to engage with FOI bodies with a view to making requests for specific records that might eliminate the need for search and retrieval fees. Indeed, section 27(7) provides that, if asked by the requester, the FOI body shall assist the requester to amend the request in order to reduce or eliminate the SRC charges arising under section 27(1) and make any such amendments specified.

It is also important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

On the substantive issue of the Council’s estimate, 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 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, this Office is generally not inclined to interfere with that decision.

In this case, while the applicant may consider that the records sought should be readily available, it seems to me that the fact that they relate to a single incident on a particular date does not, of itself, mean that all related records should be held together and readily retrievable. Having regard to the Council’s explanation of the basis on which it estimated that 24 hours would be required to search for and retrieve relevant records in this case, I find that it was justified in its decision to charge a fee of €480 in this case.

For the sake of completeness, I would add that under section 27(6), an FOI body may reduce or waive a SRC charge or deposit if some or all of the information in the records would be of particular assistance to the understanding of an issue of national importance. To meet this criterion, the record must satisfy two requirements: it must relate to a matter of national importance, and, if it does, the record must assist in understanding an issue of national importance. Given their likely contents, I am satisfied that the records sought in this case do not meet either requirement.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to charge a fee of €480 under section 27 of the FOI Act.

Right of Appeal

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