Mr X and Irish Prison Service [2024] IEIC 141606 (29 April 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the IPS was justified in refusing the applicant's request for a variety of records under sections 15(1)(c), 15(1)(h) and/or 15(1)(g) of the FOI Act

29 April 2024

Background

The applicant has three cases with this Office involving the IPS. This decision is concerned with a request he made by letter dated 25 March 2022. In that letter, the applicant submitted a detailed 15-part request to the IPS seeking a broad variety of records relating to, among other things, prison tuck shops covering a three-year period, audits, appropriation accounts, contracts, and inmate gratuity payments.

On 15 September 2022, the IPS wrote to the applicant wherein it said it received the request on 5 September 2022. It informed the applicant that the decision maker considered the request voluminous and the basis for that assessment. It asked that the scope of the request be narrowed. It explained that in the event that the request was significantly revised, it estimated that the amount chargeable would be €500 and that a deposit of 20% of the cost would be required. It asked the applicant to revert to it if he wished the request to proceed.

On 28 September 2022, the IPS wrote to the applicant in relation to a second, separate request he had submitted, wherein it outlined the estimated cost of processing that request was €1,570 and explained that it would require a 20% deposit of the cost. It offered the applicant an opportunity to limit the request in order to reduce the charges.

The IPS said no response was received from the applicant to either of its letters and that the decision was made to refuse both requests. In its decision dated 20 June 2023 in respect of the request that is the subject of this decision, it said it had not received a response to its request that the request be narrowed and neither was the relevant deposit paid. It refused the request under section 15(1)(h) of the Act which provides for the refusal of a request where a fee or deposit payable in respect of the request concerned or in respect of a previous request by the same requester has not been paid.

On 28 June 2023, the applicant wrote to the IPS in connection with the two requests described above and two other requests he had made. Referring to other communications with the IPS, he said he had received correspondence concerning the two other requests but had received no correspondence concerning the requests referenced above. He sought an internal review in respect of all four requests.

On 10 July 2023, the IPS issued its internal review decision in respect of the request that is the subject of this decision wherein it affirmed its refusal of the request under section 15(1)(h) and also cited section 15(1)(c) as a further ground for refusing the request. That section provides for the refusal of a request where processing the request would cause a substantial and unreasonable interference with, or disruption of, work of the FOI body. On 15 August 2023, the applicant applied to this Office for review of the decision of the IPS.

During the course of the review, the IPS indicated that in addition to refusing the applicant's request under sections 15(1)(h) and 15(1)(c), it also wished to rely section 15(1)(g), which provides for the refusal of a request where the FOI body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester. The Investigating Officer provided the applicant with details of the IPS submissions and he was invited to make further submissions, which he duly did.

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

Scope of Review

This review is concerned solely with whether the IPS was justified in refusing, under sections 15(1)(h), 15(1)(c) and/or 15(1)(g) of the FOI Act, the applicant's request dated 25 March 2022.

Preliminary Matters

Before addressing the substantive issues arising, I wish to make a number of preliminary comments.

First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, such as section 15(1)(g), as a general rule the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the Act.

Secondly, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role in this case is confined to reviewing the decision taken by the IPS on the applicant's FOI request.

Analysis and Findings

Section 15(1)(h)

As I have outlined above, section 15(1)(h) of the Act provides that an FOI body may refuse 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.

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 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 search, retrieval and copying fees are likely to exceed a certain minimum amount. The Freedom of Information Act 2014 (Fees) Regulations 2014 (S.I. 484/2014) fixes this minimum amount at €100. Section 27(5) provides that where the body considers that the estimated cost of search and retrieval 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.

In its submissions, the IPS referred to the letter dated 15 September 2022 that it issued in respect of the request at issue. It said the letter advised the applicant that fees of approximately €500 for search, retrieval and copying of the records if the request was significantly reduced would be applicable to his request. It said the applicant was asked to contact the IPS to progress the matter. It said no response was received from the applicant and after allowing a considerable amount of time for him to make contact, the decision was made to refuse the request.

As I have outlined above, during the review the Investigating Officer provided the applicant with a summary of the IPS submissions and invited him to respond. While I note that the applicant's response addressed the IPS claims for refusing the request under sections 15(1)(c) and 15(1)(g), he made no comment whatsoever in respect of the applicability of section 15(1)(h). Nevertheless, I also note that in his application for internal review dated 28 June 2023, he suggested that he had received no correspondence in respect of the request.

I have examined the letter dated 15 September 2022. I note that it was addressed to the applicant at the address he provided in his original FOI request. I have no reason to conclude that the IPS did not issue the letter. I also note that the IPS did not issue its decision to refuse the request until 20 June 2023, nine months later. The applicant submitted no evidence to suggest that he made any enquiries with the IPS in the intervening period concerning non-receipt of a reply to the request he had made. Accordingly, I consider it appropriate to have regard to the contents of the letter of 15 September 2022 for the purpose of determining whether the IPS was justified in refusing the applicant's request under section 15(1)(h).

It seems to me that the primary purpose of the letter was to inform the applicant that the request, as it stood, was voluminous and fell to be refused under section 15(1)(c) unless he was willing to refine the request. However, the letter also indicated that if the request was

significantly edited, the estimated amount chargeable would be approximately €500 and that a deposit of 20% of the cost would be required.

Moreover, the letter stated that;

"The actual 'search and retrieval and copying' work to be carried out will not commence until the deposit is paid, and the final amount that you pay will be based on the actual work undertaken in relation to the records which are released to you."

It further stated the following:

"In the event that the final amount is less than the deposit which you have paid you will be refunded the excess. You should also note that this notice suspends the running of the time limit for our final decision on your request for access to the records. That time limit will commence running again only if and when the deposit is paid".

Having regard to the contents of the letter, I am satisfied that the applicant was put on notice of the fact that the request would be processed only if he was agreeable to refining the request and if he paid the requisite deposit. The applicant did neither. Section 15(1)(h) specifically provides for the refusal of a request where a deposit payable under section 27 in respect of the request concerned has not been paid. In essence, section 15(1)(h) allows FOI bodies to close off requests that have been left in abeyance as a result of the failure of requesters to either pay deposits or to pursue an alternative course of action such as seeking a review of the decision to charge a fee in the first instance or seeking to refine the scope of the request in order to reduce or eliminate the SRC fee.

Section 48(1) of the FOI Act provides that the Minister for Public Expenditure, National Development Plan Delivery and Reform 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 FOI bodies are required to have regard to any such guidelines in the performance of their functions under the Act. The Central Policy Unit of the Department has published CPU Guidance Note 6 concerning fees and charges. The guidance provides as follows:

"It is considered reasonable that, in a case where a deposit requested under Section 27(5) has not been paid within 8 weeks, the deposit can be deemed not to have been paid and the FOI request can fall."

As I have outlined above, nine months passed between the time the IPS notified the applicant of the requirement for the payment of a deposit in respect of the request and its refusal of the request. Having regard to the fact that no deposit was paid in respect of the request, I find that the IPS was justified in refusing the request under section 15(1)(h).

Having found section 15(1)(h) to apply, I do not need to consider the applicability of section 15(1)(c) or 15(1)(g) of the Act in this case. Nevertheless, while I make no finding on the applicability of section 15(1)(c), I wish to make the following observations for the information of the applicant. In his submissions to this Office, the applicant said that his request was "justified and solid" and that under no circumstances would he reduce the scope of his request, to suit the IPS and/or this Office. He went on to explain why he requested the records in question.

As I have explained above, I must disregard any reason a requester gives for making a request. Moreover, the request appears, on its face, to be quite broad and detailed. While the purpose of the Act 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, section 15(1)(c) is an express acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources.

In any event, as I have indicated, above, I make no finding on the applicability of section 15(1)(c) in this case given my finding that the IPS was justified in refusing the request under section 15(1)(h).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS's decisions to refuse the applicant's request dated 25 March 2022 under section 15(1)(h) 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

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