The purpose of this chapter is to highlight issues relating to the operation of the FOI Act which arose over the last year. Some of the issues are operational and relate to particular public bodies, while others are matters which fall to be resolved at Government level or by the Department of Public Expenditure and Reform.
The issues discussed are:
When the Draft Heads of the FOI Amendment Bill were published in July 2012, the Minister for Public Expenditure and Reform also announced that his Department would undertake a focused review of the management of FOI requests by public bodies to determine what improvements in the working of the Act could be achieved and what steps may be necessary to seek to promote good practice in the use of the Act.
I very much welcomed this proposal and I am pleased that my Office has been asked to participate in the review group. In my view, there are a range of important matters which require urgent attention, including the future role of the Central Policy Unit within the Department, ongoing FOI training needs within public bodies, including bodies currently within remit and those proposed for inclusion, and the need to increase the amount of information made available as a matter of course outside of the FOI regime. I look forward to positive outcomes from the group’s deliberations.
I am hopeful that the proposed changes to FOI will bring about more meaningful and beneficial openness and transparency. A well functioning FOI regime contributes a vital element to a genuine democracy. It plays an essential role in contributing to political and administrative accountability but most importantly to legitimacy.
Section 32 of the FOI Act provides for the mandatory refusal of access to certain records whose disclosure is prohibited, or whose non-disclosure is authorised, by other enactments. Section 32 is a very important provision because it subordinates the access provisions of the FOI Act to all non-disclosure provisions in statutes, except for those which are cited in the Third Schedule to the FOI Act. The Act provides for the review by the Joint Committee on Finance, Public Expenditure and Reform every five years of the operation of any enactments that authorise or require the non-disclosure of records, to determine whether they should be amended or repealed or be added to the Third Schedule.
The last such review was conducted in 2005 and a further review is now several years overdue. When I appeared before the Joint Committee to discuss the Draft Heads of the FOI Amendment Bill, I reported that the reports of individual Ministers which have been made available to my Office show that, since the FOI Act became law in April 1997, many new non-disclosure provisions have been introduced in individual enactments. Indeed, the non-applicability of the FOI Act is appearing as a standard component of many new Acts.
The number of non-disclosure provisions being introduced in individual enactments is increasing. Departments are reporting approximately 230 enactments containing non-disclosure provisions, of which 50% became law since 1 January 1998. This means that as many non-disclosure provisions have been introduced since 1997 as were introduced in the preceding 75 years. I proposed to the Joint Committee that the current proposals to amend the FOI legislation presents an opportune time for it to conduct a review of the operation of section 32 and to incorporate into the Bill any changes proposed arising from that review. At the time of writing (March 2013), I have not received notification of the Joint Committee’s intention to conduct such a review.
In the current economic climate, almost all public bodies face the challenge of meeting increasing demand with diminishing resources, and my Office is no different. Furthermore, as I explained in chapter 1, the number of reviews of a more complex and time-consuming nature continues to increase. Nevertheless, I am acutely aware of the effects of delays in completing applications for review. I have often publicly expressed my view that information delayed is information denied.
At the start of this year, my Office had over 200 applications for review on hand, which is roughly the equivalent to the total number of reviews completed in 2012. This is unacceptable as is the fact that only 19% of cases closed in 2012 were closed within the timeframe provided for in the FOI Act.
With this in mind, my Office has begun a process of reform, involving a complete review of organisational structures and processes with a view to implementing changes aimed at improving case turnaround times and increasing case throughput. The process is similar to that undertaken by the Office of the Ombudsman, a process which yielded significant improvements.
As an interim measure, my Office has introduced a “triage” process whereby all new applications are examined to determine if it might to possible to effect a more speedy resolution of the matter. This ‘triage’ process was adapted from the Ombudsman initiative mentioned above and commenced in late 2012. I am hopeful that the structures and processes review will achieve tangible improvements in case throughput and turnaround times.
My Office is keen to foster better working relationships with all public bodies so that, for example, in the event of difficult or complicated cases, issues may be resolved with a minimum of fuss and in a spirit of cooperation. Good communications are critical to maintaining those relationships but occasionally, the personal contact between staff of my Office and representatives of the public bodies is not enough to ‘get the job done’. This is where I must rely on provisions such as section 37 of the FOI Act.
My staff have recorded a small number of instances during the year when certain public bodies questioned whether or not information required by my Office under section 37 of the FOI Act should in fact be forwarded. I fully appreciate the concerns and obligations of public bodies relating to information held by them, which may be regarded as highly sensitive. However, section 37 of the FOI Act provides for a public body to furnish my Office with any information which is deemed relevant for the purposes of a review. In particular, I would remind public bodies that section 37(3) of the FOI Act provides that no enactment or rule of law prohibiting or restricting the disclosure or communication of information shall preclude a person from furnishing to the Commissioner any such information or record. In certain cases in 2012, confusion about the provisions of section 37 and the obligations on public bodies, has given rise to delays in the investigative process.
Another worrying trend, most noticeable in 2012, is a tendency for public bodies to request an extension to a deadline set by my staff when a request is made for records, submissions etc. While each case is treated on its merits, it is not generally appropriate that extensions would be granted on the grounds of insufficient resources. It remains the fact that some public bodies fail to recognise that the administration of the FOI Act is one of their statutory functions which should be afforded as much weight as any other statutory function. It is of significant concern to me if extensions become the norm, or default position, of public bodies in considering requests from my Office.
On more than one occasion in 2012, some public bodies did not provide staff cover for FOI Officers who were on leave. In one case, my Office received a copy of correspondence in which the requester was untypically informed by the public body that due to staff resource issues, the FOI request was unlikely to be dealt with within the time frame provided for in the Act. The letter also informed the requester about the definition of ‘deemed refusals’. In another case, my Office was informed that the FOI Unit of a public body would close for one month and consequently, would not be available to process enquiries from my Office.
As I have already mentioned, my Office has set specific goals of achieving a higher rate of review completion within a four-month time period. Clearly, this will require a significant degree of cooperation by public bodies, and I sincerely hope that public bodies will recognise the importance of complying with deadlines and with the provisions of the Act if the level of service for users of FOI is to be improved.
During the course of a review, my Office may examine the possibility of a settlement between the parties concerned, with the aim of resolving the case without the need for a binding decision. During 2012, 45% of completed reviews were either settled or withdrawn. It has consistently been the experience of my Office over the years that there exists significant scope for settlement of reviews and I have stated previously that this would suggest there is considerable scope for public bodies to take a more active approach in consulting with requesters to determine if their requirements may be met by narrowing the differences between the two parties and reaching an agreement on an acceptable settlement.
While the settlement process can sometimes be time-consuming for staff of my Office and may involve a degree of flexibility from all parties concerned, I am nevertheless convinced it is a worthwhile process. I would encourage public bodies to engage directly with requesters with a view to achieving settlements in those cases where a full granting of the request is unlikely.
The following is an example of a case which was settled in 2012
My Office reached a settlement in February 2012 with the Department of Foreign Affairs in relation to a request for access to records relating to the Visa Office in Abu Dhabi, United Arab Emirates. The case involved a large number of records for which numerous exemptions had been claimed. Many of the records contained information relating to the international relations of the State and my Investigator accepted that they could therefore fall within the ambit of section 24(1)(c) of the FOI Act. However, she disagreed with the Department regarding the applicability of the class-based exemption under section 24(2)(c) of the Act. She also disagreed with the Department that section 20(1) of the Act, the exemption relating to the deliberative processes of a public body, applied to records relating to certain administrative matters that had been settled with the opening of the visa office. In addition, she had questions about some of the other claims for exemption that had been made.
In the circumstances, my Investigator proposed a meeting with the Department, explaining that she wished to work towards a settlement of the matter on the basis of the release of the information that was not, or was no longer, sensitive, while protecting the information that was. The Department agreed to the proposal, and a constructive meeting was subsequently held at which my Investigator and two officials from the Department discussed the contents of the records and the relevant issues at length. Following the meeting and additional contacts, the Department agreed to the administrative release of the records that had not been shown to be of a sensitive nature. The applicant, in turn, agreed to settle the case on this basis and therefore withdrew his application for review.