Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 53:

In page 43, between lines 4 and 5, to insert the following:“Fees and Charges
27. (1) (a) A fee of such amount (if any) as may be prescribed shall be charged by the FOI body concerned under this subsection and paid by the requester or, as the case may be, the applicant concerned to the body in respect of an FOI request, or an application under section 21 or an application under section 22.

(b) A fee under this subsection shall be paid at the time of the making of the request or application concerned and, if it is not so paid, the head concerned or, as the case may be, the Commissioner shall refuse to accept the request or application, and it shall be deemed, for the purposes of this Act, not to have been made.
(c) Fees of different amounts may be prescribed under paragraph (a) in respect of different classes of requester or different classes of applicant.

(2) Such amount as may be appropriate having regard to the provisions of this section shall be charged by the FOI body concerned under this subsection and paid by the requester concerned to the body in respect of the grant of an FOI request. The amount of a charge under this subsection shall be equal to the estimated cost of the search for and retrieval and copying of the record concerned by the FOI body concerned for the requester.
(3) For the purposes of subsection (2) “search and retrieval” includes time spent by the FOI 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.

(4) For the purposes of subsection (2)—

(a) 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,
(b) the amount of the cost of the copying of a record shall not exceed such amount (if any) as stands prescribed for the time being, and the determination of that amount shall be in compliance with any provisions standing prescribed for the time being in relation to such determination,
(c) the total amount of a charge under subsection (2) shall not exceed the maximum amount prescribed for the time being as the appropriate limit for search and retrieval and copying,
(d) there shall be no charge under subsection (2) if, in the opinion of the head concerned, the total amount of the charge would be less than the amount (if any) as stands prescribed for the time being as the appropriate search and retrieval and copying minimum, and
(e) different maximum and minimum amounts may be prescribed under this section in respect of public bodies and prescribed bodies.

(5) Where the record or records concerned contains or contain only personal information relating to the requester concerned—

(a) no fee under subsection (1) shall be payable, and
(b) the search and retrieval and copying charge under subsection (2) shall be disregarded unless the grant concerned relates to a significant number of records.

(6) Subject to subsection (4), where, in the opinion of the head concerned, the estimated cost, as determined by the head, of the search for and retrieval and copying of a record
the subject of an FOI request is likely to exceed the appropriate minimum level as prescribed—

(a) 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 by the FOI body concerned and paid by the requester concerned to the body,
(b) the process of search for and retrieval of the record shall not be commenced by the body until the deposit has been paid, and
(c) the head shall, not later than 2 weeks after the receipt of the request aforesaid, cause a request in writing for payment of the deposit to be given to the requester and the document shall include an estimate of the length of time that the process of searching for and retrieving the record will occupy and a statement that the process will not begin until the deposit has been paid and that the date on which a decision will be made in relation to the request will be determined by reference to the date of such payment.

(7) A head may reduce the amount of or waive a search and retrieval and copying charge or deposit under subsection (2) or (5) if, in his or her opinion, some or all of the information contained in the record concerned would be of particular assistance to the understanding of an issue of national importance.
(8) In a case to which subsection (6) applies, the head concerned shall, if so requested by the requester concerned—

(a) assist the requester if the requester wishes to amend or limit the request in order to reduce or eliminate the charges that arise or are likely to arise under subsection (2),
(b) if amendments are specified under paragraph (a), make such of them (if any) to the request as the requester may determine.

(9) Where a deposit under subsection (6) is paid, the amount of the charge under subsection (2) payable in respect of the grant of the FOI request concerned shall be reduced by the amount of the deposit.
(10) Where a deposit under subsection (6) is paid and, subsequently, the grant of the FOI request concerned is refused or is granted in relation to a part only of the record concerned, the amount of the deposit or, if a charge under this section is payable in respect of the grant, so much (if any) of that amount as exceeds the amount of the charge shall be repaid to the requester concerned.
(11) Where a charge or a deposit under this section is paid and, subsequently, the charge or deposit is annulled or varied under section 21, 22 or 24, the amount of the charge or deposit so annulled or, as the case may be, any amount thereof in excess of the amount thereof as so varied shall be repaid to the requester concerned.
(12) Section 13(1) shall be construed and have effect—

(a) in relation to a case in which a deposit is payable under subsection (6), as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the request under subsection (6) concerned to the requester concerned to the date of the receipt of the deposit,
(b) in relation to a case in which such a deposit is annulled following a review under section 21 or 22 or an appeal under section 24, as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the request under subsection (6) to the requester concerned to the date of the decision under section 24 or, as the case may be, of the giving to the requester concerned of notice under section 21 or 22 of the decision, and
(c) in relation to a case in which an amendment pursuant to subsection (8) has the effect of eliminating such a deposit, as if the reference to the receipt of a request under that section were a reference to the making of the amendment.

(13) Where the amount of a search and retrieval and copying charge under subsection (2) exceeds or is likely to exceed the maximum amount prescribed for the purposes of this paragraph—

(a) the body concerned shall so inform the requester,
(b) the body shall assist the requester if the requester wishes to amend or limit the request in order to reduce the charges that arise or are likely to arise under subsection (2) to an amount less than or equal to the amount prescribed under this subsection,
(c) if the requester does not amend or limit the request such that the charges that arise or are likely to arise under subsection (2) are reduced to an amount less than or equal to the amount prescribed under this subsection, the body may refuse the request, and
(d) where the body decides to process the request, the requester shall be required to pay the full cost of the charges likely and subsection (6) shall apply.

(14) An FOI body shall endeavour to establish a facility by which payment or refund of any fees due under this Act may be made electronically.".

I have indicated to the committee my intention to withdraw. The amendment relates to the introduction of a cap of €500 on freedom of information search and retrieval fees. The intention of the amendment from the point of view of requesters and public bodies was that there was a sharp focus on the estimation of freedom of information requests that would require up to 25 hours of search and retrieval time. If the time spent examining records by the decision maker were included, this could account for approximately seven days' administrative work.

The concept of a cap, as members of the committee will recall, was first suggested by Deputy Fleming in his Private Members' Bill on freedom of information. Having reflected on the provision further, in light of the debate on the application fee, my assessment is that the same objective can be achieved by allowing a public body make the case, if it considers it appropriate, that a request exceeding the threshold of 25 hours in search and retrieval time, and €500 in fees, is voluminous, and such a request can be refused on this basis under the relevant provisions of the Bill. I propose retaining the €500 cap on maximum search and retrieval fees and removing the provision allowing a public body refuse a request on the basis that the search and retrieval costs to the body would be above €500.

This will complement the further provision included in this amendment to provide that the first number of hours of search and retrieval time be free of charge to the requester, as I have indicated. This is a significant confirmation of the fundamental objective of the legislation to facilitate access to public information to the greatest extent possible, consistent with the public interest. It is my intention after this debate to withdraw the amendment and restate it with the cap but removing the capacity of the public body to refuse to process an application that would involve work beyond the 25 hours or the €500 cap.