Mr X and Roscommon County Council [2024] IEIC 149164 (21 November 2024)

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

Whether the Council was justified was justified in refusing to waive a fee of €480 for the search and retrieval of records relating to the applicant-�s request for information relating to the N5 primary road at Cloonfree under section 27(6) of the FOI Act

20 November 2024

Background

This review relates to a request for records relating to a stretch of road at Cloonfree, Co. Roscommon on which the applicant-�s brother lost his life. I wish to express my condolences to the applicant at the outset for his loss.

On 17 April 2024, the applicant made an FOI request to the Council wherein he sought information relating to all road traffic accidents on the N5 primary road at Cloonfree over the past five years, including but not limited to:

● Inspection Reports

● Road design information

● Communication between Roscommon County Council and the National Transport Agency

● Traffic Data

● Work Orders

● Budget Records

● Asset Inventory

● Pavement Condition Data

● Environmental Impact Reports

● Safety Reports

● Traffic Control Plans

● Geographic Information System (GIS) Data

● Survey Data

● Weather and Climate Data

● Material Testing and Quality Reports

● Project Progress Reports

● Public Feedback and Complaints

● Incident Reports

● Statistics on fatalities on the Cloonfree N5 road over the past 5 years

● Number of times the roads has been, and if so, where, it was shot blasted in the past 5 years.

● Correspondence with Law Enforcement

● Maintenance Schedules and Records

● Risk Assessments and Safety Audits

● Minutes of Council Meetings

● Expert Assessments or Recommendations

● Legal and Liability Documentation

● Community Impact Assessments

On 26 April 2024, the Council wrote to the applicant to advise on the costs of his request and provided him with a fee estimate of €480 for -�search and retrieval-� work on the request. The Council sought a deposit in the amount of €240 to allow for the processing of the request to proceed. It also indicated that it was willing to discuss the scope of the applicant-�s request so as to limit or eliminate the relevant fee.

By response dated 27 April 2024 the applicant wrote to the Council asking them to waive the fee for search and retrieval work on the basis that the information sought related to a matter of national importance and the provisions of section 27(6) applied. In response the Council, on 29 April 2024, indicated that it did not consider that the provisions of section 27(6) applied in this case. The applicant therefore sought, by correspondence of the same date, an internal review of the decision to impose a fee in relation to the processing of the request. On 20 May 2024 the internal reviewer affirmed the decision to impose search and retrieval fees in the amount of €480.

On 20 May 2024, the applicant applied to this Office for a review of this 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 between the Council and the applicant as set out above, and to the 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 in refusing to waive the search and retrieval fees of €480 in order to process the applicant-�s FOI request on the ground that section 27(6) of the FOI Act does not apply in the particular circumstances of the case.

Preliminary Matter

In the course of correspondence with this Office, the applicant for the first time made arguments to the effect that as the records sought relate to the stretch of road on which his late brother died, these records can be said to comprise the personal information of his late brother. The applicant therefore referred to the provisions of section 27(4) which state that in circumstances where the records concerned contain only [my emphasis] personal information relating to the requester concerned then a fee shall not be charged unless the request relates to a significant number of records. The applicant said that he is his deceased brother-�s next of kin and, bearing in mind the provisions of section 37(8) and subsequent Regulations, therefore search and retrieval fees should not apply.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential". The definition goes on to include fourteen categories of information which are considered to constitute personal information.

I have carefully considered the applicant-�s arguments and the specific wording of his request as set out above. Having done so, I am satisfied that records falling within the scope of his request do not solely contain personal information relating to his late brother. In any event, even if the information sought did fall within the definition of personal information, section 27(4) provides for the charging of search and retrieval fees if the request relates to a significant number of records. Having regard to broad nature of the applicant's request and to the explanation provided by the Council as to the type of records held which is set out in greater detail below, I am satisfied that a significant number of records is at issue in this case.

I am therefore satisfied that the provisions of section 27(4) do not apply in this case and I can proceed to examine the applicability of section 27(6).

Analysis and Findings

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. 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].

Under section 27(6), an FOI body may reduce or waive the SRC charge if it considers that some or all of the information contained in the records concerned would be of particular assistance to the understanding of an issue of national importance. It is not sufficient that the information simply relates to an issue of national importance. It must also assist in understanding an issue of national importance. It is noteworthy that the section does not provide for the waiver of a fee where records contain information that might be made available in the public interest. Rather the information must assist in the understanding of an issue of national importance, which this Office considers to be a much higher test.

In circumstances where records have not yet been retrieved and a deposit is requested, as in this case, the FOI body is limited in its consideration of section 27(6) to making a judgement as to whether some or all of the records that are the subject of a given request may potentially contain information which would be of particular assistance to the understanding of an issue of national importance.

The question of what constitutes an issue of national importance is not defined in the Act nor does this Office consider that it is possible to devise a formulaic definition that might apply in all circumstances. As the former Commissioner noted in Case 030421 (available at www.oic.ie ),

"The reality is that it is society itself which determines if an emerging issue is a matter of national importance at a particular time and not just a matter of general public interest or a matter of widespread discussion. In the context of an FOI review where section 47(5) [the equivalent provision in the FOI Acts 1997 & 2003] might apply, I consider that each case would have to be examined on its merits in light of all the circumstances pertaining at the time."

Submissions of the Parties

In his submission to this Office, the applicant said that numerous accidents have occurred on the road in question in recent years, including fatalities and accidents leading to severe injuries. He said that in addition to the significant loss of life and injury, these accidents have caused profound emotional distress to the affected families and communities. The applicant said that it is crucial to investigate the contributing factors to these incidents to enhance road safety and prevent future tragedies.

The applicant said that for these reasons he had sought to invoke the provisions of section 27(6) and therefore petitioned the Council to waive the search and retrieval fees in the amount of €480 which had been communicated to him. He said that the death of his late brother had highlighted the urgent need to address the avoidable hazards on the road in question. He said he requested the Council to waive the fees in question as he considers that the information sought is critical to understanding a matter of national significance and one which is of paramount public interest.

The Council said that it considers that the estimated fees of €480 are proportionate based on the current estimates of the time required to search and retrieve the considerable volume of records falling within the scope of the applicant-�s request. With regard to the applicant-�s request to waive such fees, the Council said that for section 27(6) to apply, two requirements must be met; namely that the records related to a matter of national importance and that the records assist in understanding such a matter of national importance. While the Council said that they were sympathetic given the applicant-�s personal interest in the matter, they said that they were not satisfied that the requirements of section 27(6) were met in this case, as it considers that the safety of the road in question is a local issue as opposed to a matter of national importance.

My Analysis

The essence of the applicant-�s submission to this Office is that the disclosure of information relating to the N5 primary road at Cloonfree relates to a matter of national importance due to the high number of serious road traffic accidents which have occurred there. The applicant contends that, in light of the fatalities and other serious accidents which have occurred, not least the accident involving his late brother, his request relates to matter of genuine public importance and national interest.

I have carefully considered the applicant-�s submissions. I accept that matters relating to road safety of the road in question may be of genuine importance to stakeholders and other interest groups in the locality. I can also fully understand and appreciate the importance the applicant places on obtaining the records sought.

However, it seems to me that this is not the same as finding that the issue is one of national importance which, as I have indicated earlier, this Office considers to be a much higher test. Whilst I fully appreciate the importance placed on the matter by the applicant, and accept that matters relating to the safety of the road in question are of genuine concern to members of the wider community in the area, I do not accept that it is an issue that society itself would regard as one of national importance.

As set out above, section 27(6) contains two requirements, both of which must be satisfied for the provision to apply. While I have found that the first requirement has not been met, for completeness, I have also considered whether, if I had found the records to relate to a matter of national importance, they would be of particular assistance to the understanding of that issue. In the circumstances of the case, and given the likely contents of the records, I am prepared to accept that certain of the records sought by the applicant could assist in understanding matters relating to the safety of the specified road. However, as I have found the first requirement set out in the section 27(6) not to apply, and as both requirements must be met in order for the provision to apply, it remains the case that I am satisfied that the requirements of that provision have not been met in this case.

Accordingly, I find that the Council was justified in refusing to waive the deposit/fee under section 27(6) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision to decline to waive a deposit/fee for the cost of search and retrieval of records sought by the applicant relating to the N5 primary road at Cloonfree, under section 27(6) 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.

Mary Connery

Investigator

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