FOI boss orders fee review on records search

| 21/04/2016 | 6 Comments
Cayman News Service

Jan Liebaers, Acting Information Commissioner

(CNS): In his latest hearing decision, the information commissioner has found that while there are instances when a public authority can charge a freedom of information applicant a fee to search for records, it must be reasonable. Following a hearing over a fee of more than $500 that was charged to recover deleted emails by the Computer Services Department for correspondence between the applicant and the Department of Child and Family Services, Jan Liebaers said the fee in this case was unreasonable should be recalculated to take into account the actual hourly rate of the CSD employee who did the search.

The FOI applicant had claimed that a social enquiry report about him in relation to a court case was fraudulent because the social worker who wrote it indicated that the person had not responded to her emails, which the applicant denied.

Already in possession of some of the emails supporting his claim, the applicant had asked for copies of all of the correspondence between himself and the social worker over a 16-day period in February 2014. The department, however, claimed it did not have the emails, but according to Liebaers’ ruling, there was no explanation for the disappearance of the correspondence or why emails had clearly been deleted.

The department told the applicant it would need to ask the CDS to do the search and because they would charge the DCFS, the department would need to pass that charge on to the applicant.

The applicant challenged the fee and his need to pay it. With no amicable resolution between the parties, Liebaers conducted a hearing. During the course of that hearing he found the public authority had failed to comply with the law regarding its request for an extension.

“Public authorities, including DCFS, need to recognize that processing time cannot be extended once the initial time allotted has already expired. Applicants must be informed of any extension before expiry of the initial period for responding. Consequently, DCFS did not meet its obligation to respond to the applicant within the statutory timelines,” he wrote.

However, the commissioner pointed out that the fee in this case was provided for in the law, and as the applicant had not provided sufficient evidence that they had no means to pay a fee or that there were such circumstances that the fee should be waived, he dismissed the applicant’s challenge on that point but nevertheless indicated that the fee should be recalculated.

He wrote, “I believe a reasonable fee would be the exact hourly rate of the CSD administrator needed to conduct the search.”

By way of example, he said, if the CSD administrator was on point 7 of salary scale grade L and made $51,348 per year, then that person’s hourly rate would be $28.53 per hour. “That hourly rate would then be multiplied by five hours which would be the fee that can be charged by DCFS,” he added.

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Category: Government oversight, Politics

Comments (6)

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  1. Anonymous says:

    CNS – can you post the full case file here for this one as you just did for the Health City case.

    CNS: You can find it here on the ICO website

  2. Who not here? says:

    Since the applicant could produce the emails would that not indicate that their claim is valid? Just because the defendant (DCFS) could not, or had deleted, the emails it should not fall on the applicant to pay to produce them a second time.

    Using this line of thinking all government entities have to do is “lose” or delete emails and they can then force a FOI request to cost more than those that made the request can afford.

    What are the policies of the DCFS in regards to electronic records? If their policy is that emails (or other electronic records) should be deleted then they shouldn’t have gone looking for them in any case. If their policy is that they are to be retained for X period of years then they haven’t followed their own policy, which should have some kind of consequence.

    In either case having the applicant pay for the recovery of the emails is, in my opinion, an incorrect judgement by the commissioner.

    Oh and CSD, 1995 called and want their technology back.

    • Anonymous says:

      One would also imagine that perhaps the deletion of emails should be investigated as I believe it falls foul of record keeping and archiving requirements by law. 100% agree though that there should be no fee for this request as the records would normally have been available in the regular course of business, and the cost to re-obtain them is an internal issue at the fault of government. Generally fees should only be assessed for the publication costs of providing records (if someone wanted paper copies or a CD, for example) or if the scope of the request is so broad as to require an extensive diversion of resources to compile the records for review and/or release. Poor decision from the ICO.

  3. Anonymous says:

    Thank goodness for the office of Information Commission. For the Computer Services Department to tack on some $72 per hour above the actual cost is an outrage. I mean, everything they use is provided from the public purse – equipment, utilities, accommodation etc. What kind of a shakedown is this?!!!!

  4. Anonymous says:

    5TB of data goes missing from police, Family Services hiding emails? HSA emails hinting at bribes from an email?
    Isn’t it TIME that the CI Govt uses the same email services that all our law firms use? come on, you only have to be in business here for a few months to know that your IT Admin holds an archive, it isn’t rocket science CDS. There are dozens of reliable software offerings that would solve this mess.

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