Chapter 1: The year in review

Table of Contents

Your right to information

The Freedom of Information Act, 1997 as amended by the FOI (Amendment) Act, 2003 (FOI Act) gives people a right of access to records held by Government Departments, the Health Service Executive, Local Authorities and many other public bodies. It also gives people the right to have personal information about them held by these public bodies corrected or updated and gives people the right to be given reasons for decisions taken by public bodies, where those decisions expressly affect them.

The European Communities (Access to Information on the Environment) Regulations 2007 to 2011 provide an additional means of access for people who want environmental information. The Regulations cover more organisations than the FOI Act. The Department of the Environment, Community and Local Government has published a set of Guidance Notes which are available on the website of the Commissioner for Environmental Information at www.ocei.gov.ie

It should be noted that these two functions are legally independent of one another, as indeed, are my respective roles of Information Commissioner and Commissioner for Environmental Information.

Introduction

I am pleased to present my tenth Annual Report as Information Commissioner, which covers the period from 1 January 2012 to 31 December 2012.

As 2013 marks the 15th anniversary of the introduction of the FOI Act, I have had cause recently to pause and reflect upon the peaks and troughs of the evolution of the FOI legislation since its introduction. It is significant that I should do so in a year when the Government is putting the finishing touches to delivering on the commitment it made in its Programme for Government in 2011, namely, to restore the FOI Act to what it was before it was amended in 2003 and to extend its remit to other public bodies.

In an address which I gave at a conference hosted by the University of Limerick on 11 February 2013 to examine the impact of 15 years of the FOI Act on Ireland, I commented that the ebb and flow of an Act which was widely lauded when introduced, subsequently significantly truncated, and now proposed for restoration, highlights one particular truth about FOI – that Governments worldwide treat the information in their possession as a resource, to be doled out in amounts as they see fit, either copious flows or mean little trickles. I noted that ultimately, it is the Government that controls the tap.

I have stated before that the introduction of FOI cued nothing less than a complete culture shift. Before FOI, a culture of withholding information unless exceptional circumstances prevailed and even a paternalistic approach to dealing with the private affairs of citizens was the norm.

The introduction of FOI in Ireland in 1998 “let in the light” on many areas of public administration. Over the course of the following years, we witnessed huge improvements in the amount and type of information which is now available as a matter of course. Access to far greater levels of personal information empowered citizens. Indeed, many of my Office’s decisions played their part, often significant, in shining the light on previously unbreached areas of the public service.

Of course, as I have suggested above, the Government controls the tap, and it was the Government of the day who, in 2003, decided that the flow of information should be curtailed. The Amendment Act restricted the right of access in many areas. It also led to the introduction of fees for FOI requests and substantial, prohibitive fees for applications for review to my Office. The introduction of fees had a considerable impact on FOI usage, and particularly on applications for review to my Office. In 2005, the [then] Joint Oireachtas Committee on Finance and the Public Service considered the impact of fees on the operation of the FOI Act. The Committee considered the fee for an application to my Office to be excessive, and in any event recommended that the fee be refunded where an appeal is successful. The Committee wrote to the Minister for Finance seeking to have “the matter addressed by way of legislation at the first available opportunity”. It is very difficult to believe that “the first available opportunity” arose only this year.

Nevertheless, the fact remains that, at the time of writing, the restoration of the FOI Act to what it was before and the extension of the Act to a significant number of additional public bodies is imminent. In previous Annual Reports, I welcomed the Government’s proposals for change. However, I also stated at the launch of my 2011 Report that the “acid test” would be if the Government introduced FOI legislation which was as comprehensive as that promised in the Programme for Government.

Ten months later, it is somewhat disappointing that the Amendment Bill remains to be published in full, although I am aware that the wheels of legislative development can often turn slowly. I am also cognisant of the efforts made by the Department of Public Expenditure and Reform to drive through the Government’s legislative commitments. Furthermore, I note that there are some very positive additional measures proposed, such as the automatic application of FOI legislation to all newly formed public bodies. I also understand that an amended Act is expected to pave the way for Ireland’s ratification of the Council of Europe Convention on Access to Official Documents 2009, which is to be very much welcomed. All in all, I am hopeful that the proposed changes to FOI will bring about greater levels of openness, transparency and accountability that will be both meaningful and beneficial.

Each year, my Office publishes statistical returns from all public bodies that come within the remit of the FOI Act. The statistics highlight the extent to which members of the public, journalists, private organisations and others avail of access rights under the Act. Comparisons are made between the year in question and previous years, and trends are noted. However, this year is different. I am disappointed to record in this Annual Report that for the first time since my Office was established, I am unable to offer commentary on a significant number of public bodies, as statistical returns for 2012 for the majority of civil service bodies have not been forwarded to my Office for publication.

Previously, statistical returns for civil service bodies were collected by the Department of Jobs, Enterprise and Innovation. However, in 2012, the Department informed my Office that the process of collection and verification was becoming administratively unsustainable. The Department commented that when the FOI Act first came into effect, its role was to make statistical returns on behalf of approximately 40 public bodies. However, the number of bodies involved in 2011, when the last returns were made, was at least 188.

At this point, I wish to acknowledge the contribution made by the Department over the years in performing this increasingly demanding function. Nevertheless, I am disappointed that alternative arrangements for the collation of relevant statistics were not agreed in advance of the Department’s decision to end its role in the matter. I am informed that the Department of Public Expenditure and Reform is considering how to resolve the issue.

In my Annual Report for 2012, I highlight a number of significant cases and issues that were dealt with by my Office during the year. The Report highlights some of the information which was brought into the public domain through FOI which would otherwise have remained unknown. Some of the FOI-based headlines which appeared in published media reports are reproduced here.

In Part II of this Report, although there is no statutory requirement on me to do so, I report on my work as Commissioner for Environmental Information, as I have done in previous years. This function is legally separate to my role as Information Commissioner.

Office news in 2012

Farewell to the former Director General

In February 2012, my colleague Pat Whelan retired from the position of Director General. Pat held that position when I was appointed Ombudsman and Information Commissioner in June 2003. I want to thank him sincerely for helping me through my early years in Office and at other times when his wisdom and experience helped steer me and the Office through demanding and challenging periods. I wish Pat well in retirement and in future endeavours.

Welcome to the new Director General

In April 2012, I was pleased to announce the appointment of Ms Bernadette McNally as Director General to the Office of the Ombudsman, Office of the Information Commissioner, Office of the Commissioner for Environmental Information, the Secretariat to the Standards in Public Office Commission (SIPOC) and the Office of the Commission for Public Service Appointments. The appointment was made by the Minister for Public Expenditure and Reform, Mr Brendan Howlin T.D., following a recommendation by the Top Level Appointments Commission.

Prior to her appointment, Bernie worked as a Senior Investigator at the Office of the Ombudsman and also was Chief Therapist Advisor in the then Department of Health and Children. I wish Bernie well in her new position and look forward to working with her in the years to come.

A personal note on my predecessor

Kevin Murphy RIP

I was greatly saddened at the passing of my predecessor and friend Kevin Murphy, in 2012. As Ombudsman and Information Commissioner, Kevin worked to develop principles of good administration, complaint handling and customer service for public bodies. In so doing, he helped to focus the attention of public officials on the needs of the people they served, rather than on the interests of the public bodies themselves.

Kevin exemplified everything that is good about the public servant and the public service and displayed a strong sense of ethical behaviour in everything that he did. He did his work diligently, thoughtfully and modestly. The values that should be embedded in our public service were deeply embedded in him, and his legacy will be a renewed effort on the part of this Office towards honouring those values and his memory through our own service to the public.

On my own behalf and on behalf of all of my staff, present and past, I again offer my condolences to Kevin’s wife, Kay and to his children, grandchildren and wider family.

Key FOI statistics for the year

As I mentioned in my introduction, the statistical returns are incomplete for the year in review. Consequently, it is not possible to compare many of the statistics presented in this chapter and in Chapter 4 -Section (I) of this Report, with previous years. At the time of writing this Report it is estimated that the number of bodies for whom no statistical information is available for publication is in excess of 110.

In this regard, I would like to acknowledge the following Departments and Agencies who made returns to my Office for 2012. Statistical returns are complete for the following Departments and Agencies, and the bodies on whose behalf they collate statistics.

  • National Federation of Voluntary Bodies, on behalf of the Intellectual Disability Sector
  • Higher Education Authority
  • Department of Health - on behalf of the Voluntary Hospitals and Physical Disability Sector. Separately, the Department also made returns on its own behalf and on behalf of certain agencies related to the Department.
  • Colleges of Education, on behalf of Colleges including St Patrick’s College, Drumcondra, Mary Immaculate College, Limerick, Mater Dei and others.
  • Universities sector
  • Institutes of Technology
  • Health Service Executive
  • Local Authorities

The following public bodies also made returns directly to my Office.

  • Department of Jobs, Enterprise and Innovation
  • Department of Communications, Energy and Natural Resources
  • Department of Health
  • Office of the Information Commissioner
  • Office of the Ombudsman
  • Standards in Public Office Commission
  • Office of the Commission for Public Service Appointments

The absence of key statistics means that I am not in a position to comment comprehensively upon important usage statistics such as

  • the number of requests made to the various bodies,
  • a sectoral breakdown of FOI requests to public bodies,
  • details of the top ten bodies which received most requests in 2012,
  • types of request and requester to public bodies,
  • rates of applications for review, and
  • release rates for public bodies.

Office of the Information Commissioner (OIC) caseload

The charts and graphs in this section are complete.

A requester who is not satisfied with the decision of the public body on an FOI request may apply to my Office for a review of that decision. In most circumstances, this review will constitute the third analysis and decision in that case. The decision which follows my review is legally binding and can be appealed to the High Court, but only on a point of law.

Applications to OIC 2010-2012

Applications to OIC 2010-2012

The diagram above shows that the number of applications to my Office in 2012 has increased by 38% on 2011, while the number of applications accepted has increased by more than 35%.

It can also be seen that a number of applications to my Office are not accepted for review. This is mainly due to applications being invalid or withdrawn by the applicant at an early stage.

Subject matter of review applications accepted by OIC

Subject matter of review applications accepted by OIC

The majority of applications accepted by my Office in 2012 concerned applicants seeking access to records, following refusal of access by the public bodies concerned.

Applications accepted by OIC by type 2010 - 2012

Applications accepted by OIC by type 2010 - 2012

The table above illustrates that in 2012, as in previous years, there was another increase in the percentage number of cases accepted by my Office in which the applicant sought access to personal information.

Outcome of reviews by OIC in 2012

Outcome of reviews by OIC in 2012

In 2012, my Office reviewed decisions of public bodies in 200 cases, the same as in 2011. Similar to last year, the number of reviews of a more complex and time-consuming nature continued to increase in 2012, particularly the reviews concerning non-personal information. At the end of December 2012, my Office had 202 cases on-hand, compared to 166 at the end of 2011.

Settlements and withdrawals

45% of cases referred to my Office for review in 2012 were either settled or withdrawn (the figure for 2011 was 56%).

Settlements were achieved in 20% of cases closed during the year, and 25% of applications were withdrawn. I have commented further on settled cases in chapter 2 of my Report.

In a case where an application is withdrawn, this may come about following detailed discussions between the applicant and a member of my staff, and often follows as a result of a more detailed explanation of the public body’s decision.

Age profile of cases closed by OIC

Age profile of cases closed by OIC

In every Annual Report, I comment on the age profile of cases and it is worth noting the significance of that profile as it relates to 2012.

The table above illustrates a significant decline in the number of cases closed by my Office within a four-month period. I am very disappointed that the rate of case closure within the four-month period has fallen so significantly. However, of the 200 cases reviewed in 2012, 62% were closed within a year which is a significant improvement on 2011, when 44% of cases were closed within a year.

I will not attempt to diminish the impact on applicants of the time taken by my Office to close cases. However, it is worth noting that my Office is making more formal, binding decisions on reviews than in previous years. In 2011, 22% of all applications for review resulted in a decision by my Office, whereas in 2012, the percentage of cases closed by way of formal decision was 52%. While I comment on the workload of my Office in chapter 2, it is nevertheless important to note that efforts are ongoing to reduce the time taken to review all applications.

Age profile of cases on hand in OIC at end 2012

Age profile of cases on hand in OIC at end 2012

At the end of 2011, there were 76 cases on hand which were more than 1 year old. At the end of 2012, while the number of cases on hand has increased by almost 22%, the number of cases on hand which are more than 1 year old has fallen to 29. This reflects a specific initiative aimed at closing older cases.

Breakdown by public body of applications for review accepted by OIC

Breakdown by public body of applications for review accepted by OIC

Breakdown of HSE cases accepted by OIC

Breakdown of HSE cases accepted by OIC

The above diagrams show a breakdown by public body of the cases which were accepted for review by my Office during 2012. Of all the cases reviewed in 2012, 69 or 29% relate to the HSE. This represents a numerical increase but a percentage decrease in HSE cases accepted in 2011. The Department of Agriculture, Food and the Marine and the Office of the Revenue Commissioners have recorded significant increases in applications to my Office in the year.

‘Other bodies’ account for 43% of all applications for review in 2012 and represents a total of 65 public body organisations. While in percentage terms there is no change in 2012 over the 2011 figure, the ‘other bodies’ in 2011 represented just 50 public body organisations.

The second diagram shows a breakdown of a total of 69 applications to my Office concerning the HSE. There has been a significant increase of over 70% in applications concerning HSE National, from 26 in 2011 to 45 in 2012. However there are decreases across the board in all other HSE areas in 2012.

Deemed refusals

The FOI Act imposes statutory time limits on public bodies for the various stages of an FOI request. Specifically, a decision on an original request should issue within four weeks and, in the event of an application for internal review, a decision following receipt of that application should issue within three weeks. A breach of these time limits (whether by means of no decision, or a late decision at internal review stage), means that the requester has the right to take it as a deemed refusal of access. Following a deemed refusal at internal review stage, a requester is entitled to apply for a review to my Office.

Deemed refusals 2008 - 2012

Deemed refusals 2008 - 2012

The chart shows that deemed refusals increased in 2012. As can be seen, the increase is the second highest total of deemed refusals over the five-year period shown. It may appear that the level of deemed refusals, as a percentage of the total number of requests made to public bodies, is relatively small. However, as with many statistics, greater detail lies within. The figure above records that of the 236 applications for review received by my Office in 2012, 15% were deemed refused at both the first stage (the original request by the applicant to the public body), and the second stage (the application for internal review). However, my Office has also recorded details on deemed refusals by public bodies at either the first or the second stage. In this regard, it is worth noting that in 2012, my Office recorded 52 (22%) applications for review as having the original request deemed refused by the public body. Similarly, 55 (23%) applications for review were recorded as having the internal review request deemed refused by the public body.

Deemed refusals 2012

Deemed refusals 2012

Breaches occurred in respect of 18 public bodies in 2012, up from eight in 2011. This is disappointing and appears to reflect a worrying trend of FOI request processing not being afforded due weight in the allocation of diminishing resources within public bodies.

General enquiries to OIC

General enquiries to OIC

In 2012, the number of enquiries made to my Office increased by 53% to 1,262, consisting of 976 telephone calls, 256 e-mails and letters and 30 personal callers. These general enquiries do not relate to any particular review and typically involve requests for information about my Office or about the operation of the FOI Act, as well as matters outside my remit as Information Commissioner. It is likely that this substantial rise in enquiries to my Office was at least partially driven by the continuing economic downturn.

Fees received by OIC

Application fees for certain FOI requests apply in the following circumstances:

  • €15 for an FOI request to a public body (reduced to €10 for medical card holders and their dependants);
  • €75 for a request to the public body for an internal review of the FOI decision (reduced to €25 for medical card holders and their dependants);
  • €150 for an application for review of a FOI decision by my Office (reduced to €50 for medical card holders and their dependants); and
  • €50 for an application, by the third party to whom the records relate, for a review by my Office of a FOI decision to grant public interest access to records, following section 29 consultation procedures.

During 2012, my Office received 116 applications for review where a fee was paid. The total amount received in application fees by my Office in 2012 was €14,625. A total of €6,750 was refunded to applicants for the following reasons:

  • €4,750 because the applications in question were either rejected as invalid, withdrawn or settled;
  • €1,650 because the public body had not issued a decision or internal review decision within the time limits and was therefore of ‘deemed refusal’ status (section 41 of the FOI Act refers) which does not attract an application fee;
  • €350 was refunded to applicants because of situations either where decisions were annulled, or a fee was not due.

Statutory notices

In most situations public bodies are very co-operative in supplying my Office with information which relates to submissions, records which are subject of review and statements of reasons for decision. I value this level of co-operation. The timely production of the information requested assists my Office in the decision-making process. The corollary is that where there is a delay in providing information to my Office, it takes longer to examine the application for review and arrive at a decision.

There are specific provisions in the FOI Act concerning the production of records and information to my Office. These include:

  • Section 35 of the FOI Act which empowers me to direct the head of a public body where I consider that the reasons given in support of a decision are not adequate, to direct that a full statement of reasons for the decision be provided to the requester concerned and my Office, and
  • Section 37 of the FOI Act which empowers me to require the production of information and/or records, and to enter premises occupied by a public body for the purpose of acquiring any information which is required for the purpose of conducting a review.

In 2012, my Office served three notices, under section 37, on two public bodies who had not co-operated, following the normal issuing of correspondence, two of which were served on the National Maternity Hospital and one on University College Dublin.

National Maternity Hospital

An email request for records associated with the applicant’s FOI request was made to the hospital. Two letters of reminder followed. However, a reply was not received from the Hospital by the deadlines specified. Consequently, my Office issued a section 37 notice to the Master of the Hospital. The hospital’s FOI Unit acknowledged the section 37 notice and the records were received.

A second section 37 notice issued to the Master of the National Maternity Hospital in similar circumstances. Again, the FOI Unit of the hospital contacted my Office (in relation to both section 37 notices) following which, records were received.

University College Dublin

A request was made to the FOI Unit of the College for a submission relating to a statement of reasons under section 18 of the FOI Acts. The College requested and was granted an extension to the initial submission deadline. However, when the record was not received by the new deadline, my Office issued two reminder letters to the College. The FOI Unit of the College contacted my Office and acknowledged the delay in supplying a submission. However, a section 37 notice was eventually issued to the President of the College, following which a submission was received one month later.

section 37 notices

Statutory Certificates issued by Ministers/Secretaries General

The FOI (Amendment) Act of 2003 introduced provisions whereby certain records could be removed from the scope of the FOI Act by means of certification by a Minister or by a Secretary General of a Department. The relevant provisions are contained in sections 19, 20 and 25 of the FOI Act which also provide that a report specifying the number of such certificates issued must be forwarded to my Office.

Section 19

Section 19 is a mandatory exemption which provides protection for records relating to the Government or Cabinet. The definition of Government was amended by the 2003 Act to include a committee of officials appointed by the Government to report directly to it and certified as such by the written certification of the Secretary General to the Government.

I have been informed by the Secretary General to the Government that no section 19 certificates were issued by him in 2012.

Section 20

Section 20 of the FOI Act is a discretionary exemption which may protect certain records relating to the deliberative process of a public body. In the case of a Department of State, the Secretary General may issue written certification to the effect that a particular record contains matter relating to the deliberative process of that Department. Where such a certificate is issued, the record specified cannot be released under the FOI Act. In effect, the exemption becomes mandatory. Any such certificate is revoked in due course by the issue of written certification by the Secretary General.

Having consulted with each Secretary General, my Office has been informed that no new section 20 certificates were issued during 2012.

I am informed that a certificate under section 20 issued by the Secretary General of the then Department of Justice, Equality and Law Reform (now The Department of Justice and Equality) on 11 August 2006, and referred to in previous Reports, has not been revoked in line with the provisions of section 20(1A)(b). Therefore, it remains in force. A copy of the notification is attached at Appendix I.

A certificate under section 20, issued by the Secretary General of the Department of Defence on 4 March 2009, remains in place until 4 March 2013. A copy of the notification is attached at Appendix I.

Section 25

Where a Minister of the Government is satisfied that a record is an exempt record, either by virtue of section 23 (law enforcement and public safety), or section 24 (security, defence and international relations) and the record is of sufficient sensitivity or seriousness to justify doing so, that Minister, by issuing a certificate under section 25(1), may declare the record to be exempt from the application of the FOI Act. Each year, the Minister(s) in question must provide my Office with a report on the number of certificates issued and the provisions of section 23 or section 24 of the FOI Act which applied to the exempt record(s). I must append a copy of any such report to my Annual Report for the year in question.

Having consulted with each Secretary General, my Office has been notified of the following certificates issued under Section 25 of the Freedom of Information Acts, 1997 and 2003.

Six section 25 certificates were in place concerning the Department of Justice and Equality at 31 December 2012, three of which were renewed by the Minister in February, March and November 2012. A copy of the notification from the Secretary General is attached at Appendix I
to this Report. The certificates issued above will fall for review under section 25(7) of the FOI Act in 2014.

Three section 25 certificates were in place concerning the Department of Foreign Affairs and Trade at 31 December 2012. A copy of the notification from the Secretary General is attached at Appendix I to this Report. The certificates issued above will fall for review under section 25(7) of the FOI Act in 2014.

I was notified by letter dated 21 December 2012 that, pursuant to section 25(7) of the FOI Act, the Taoiseach, the Minister for Public Expenditure and Reform and the Minister for Jobs, Enterprise and Innovation, having reviewed the 12 certificates that were in operation for the period ended October 2012, were satisfied that it was not necessary to request the revocation of any of the 12 certificates in question. I attach a copy of the notification at Appendix II to this Report.

Appeals to the Courts

No Supreme Court or High Court judgments were delivered in 2012 in respect of decisions of my Office.

A party to a review, or any other person who is affected by a decision of my Office, may appeal to the High Court on a point of law. Following the amendment of the FOI Act in 2003, the decision of the High Court can be appealed to the Supreme Court.

Websites

I am pleased to note the new look to the websites of the Information Commissioner. During 2012, a Web Review Group was convened to consider among other things, how well people are engaging with the websites. The newly-designed sites are working well and one significant improvement is the search facility for decisions of the Information Commission.

Staffing matters

As with the past few years, 2012 was demanding on my staff and colleagues and once again, I would like to thank them sincerely for their continued hard work and support during the year.

In particular, I want to thank the former Director General, Pat Whelan, who retired in February 2012 and Bernadette McNally, the new Director General of the Office. I wish Bernadette well in her new role.

I also thank my Senior Investigators, Stephen Rafferty and Elizabeth Dolan, for their contribution and Melanie Campbell, Edmund McDaid and the staff of my Office for their help in compiling this Report.

There were a number of staffing changes in the Office during 2012.

I am pleased to welcome to the Office in 2012, Derek Charles, Roisin Connolly, Rachel Dunn and Anne Lyons, Investigators; and Kathleen Smyth, Clerical Officer.

I also want to thank Denise Freeman, Marie O’Brien and Colin Stokes who left the Office during the year. I am grateful and appreciative of their hard work and commitment not only in 2012 but in the many years prior to their departure.

newspaper clippings