This Chapter highlights issues which arose during the year concerning the operation of the FOI Act.
I was pleased to note that when the Minister for Public Expenditure and Reform decided to reform the FOI legislation in light of the commitment in the Programme for Government, he also decided to consolidate the legislation to improve its accessibility for users of the Act. However, this was not a straightforward task as the legislation is quite complex and rather technical. Having had the benefit of operating the FOI Act 2014 for the past year, my staff have identified a number of technical issues of interpretation which have given rise to specific challenges in conducting reviews. I report on a number of those issues below.
An issue of great concern to my Office relating to the application of the FOI Act 2014 arose as a result of the manner in which the Central Bank of Ireland (the Central Bank) has interpreted its inclusion in Schedule 1, Part 1 of the Act. The vast majority of bodies are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in any of the categories set out in section 6. Schedule 1, Part 1 contains a list of bodies that are partially included for the purposes of the Act and also includes details of the functions and/or records of those bodies that are included or excluded.
During the course of a review by my Office, the Central Bank argued that the Act does not apply to records held by it which fall within the categories of records identified in Schedule 1, with the result that the Act, including the internal and external review provisions, does not apply to such records. It further argued that as the exclusion applies to records containing certain specified information, the Act does not apply to such records even though they may also contain information that would otherwise be subject to the provisions of the Act.
Clearly, I could not accept such an argument. To do so would essentially allow the Central Bank to throw a blanket over all of its records without external independent oversight by my Office. Furthermore, it would result in the possible withholding of information that the Oireachtas clearly intended should be released under the Act. In my view, the effect of the Central Bank’s inclusion in Schedule 1 is that it is entitled to refuse access to certain records as described in Schedule 1, but in doing so it must comply with the provisions of the legislation, which include offering rights of internal review and review by my Office.
My officials met with the Central Bank to express my Office’s concerns as to the position it adopted. My Office also contacted the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform, given its responsibility for ensuring that the policy and legislative framework for FOI supports the effective operation of FOI in public bodies.
Following receipt of legal advice from the Office of the Attorney General on the matter, CPU confirmed that my interpretation of the legislation was correct. To put the matter beyond doubt, it subsequently published Guidance Note 23. The Guidance Note clarifies that where access to records (or parts of records) is refused on the basis that the body is not a public body for the purposes of records covered by Schedule 1, Part 1 of the Act, the requester is entitled to apply for an internal review of that decision and ultimately to appeal to the Information Commissioner if the internal reviewer upholds the original decision.
The Guidance Note further clarifies that in the case of a request where part of the records contain information which fall into the specific categories listed in Schedule 1, Part 1, only those parts of the records should be excluded consistent with the purpose of the Act, namely to give members of the public access to the greatest extent possible to records that are in the possession of public bodies.
Following publication of the Guidance Note, my Office again contacted the Central Bank to determine if it was prepared to accept the approach set out. In response, the Central Bank stated that it did not agree with the interpretation of Schedule 1 adopted in the Note and that it remained its position that my Office has no jurisdiction to entertain review applications in respect of Schedule 1 records.
At the invitation of the Central Bank, my officials attended a second meeting, following which the Central Bank made a set of proposals for allowing reviews by my Office on a non-statutory basis. At that stage, I wrote to the Governor of the Central Bank to express my profound disappointment with the position the Central Bank chose to adopt on the matter.
In my letter, I questioned how the Central Bank’s interpretation of the Act could be regarded as consistent with its previously stated commitment to the principles of openness, transparency and accountability in respect of the governance and functions of public bodies, or with its stated claim that it embraces the provision of access to records held by it in accordance with the Act.
I pointed out that the Central Bank’s position was entirely at odds with the spirit and intent of the legislation and that adopting the position taken by the Central Bank would lead to absurd consequences that could never have been intended by the Oireachtas in the passing of the Act. I also noted that a number of other bodies included in Schedule 1 had readily adopted the position outlined in Guidance Note 23.
I understand that CPU also wrote to the Central Bank to ask it to accept my jurisdiction to conduct reviews in accordance with Guidance Note 23. At the time of writing, the Central Bank has not accepted my jurisdiction to conduct reviews in respect of Schedule 1 records.
Under section 46 of the FOI Acts 1997 & 2003, the Act did not apply to certain records relating to specified functions of a number of bodies. For example, the Act did not apply to records relating to reviews conducted by my Office, regardless of what body held the records.
Under the FOI Act 2014, a number of such bodies are now included in Schedule 1, Part 1 as partially included agencies. While this means that those bodies remain entitled to refuse access to those records that they hold which are excluded under Schedule 1, the protection from release does not extend to such records if they are held by other bodies that are subject to FOI. A potential right of access to such records now exists unless they are exempt under other provisions of the Act.
It is important that the affected bodies are aware of this change in the level of protection for records relating to their functions.
Certain provisions of the FOI Acts 1997 & 2003 were realigned when the FOI Act 2014 was passed in October 2014. A number of those re-alignments have caused my Office to revisit its understanding of, and approach to, the application and interpretation of those provisions. One such issue arises in relation to records that are publicly available for inspection, purchase, or removal and how the FOI Act 2014 operates in respect of such records.
Under the FOI Acts 1997 & 2003, section 46(2) provided that the Act did not apply to records that were available for public inspection, purchase, or removal. This provision was not included in the FOI Act 2014. Instead, under section 15(2) a public body is now entitled to refuse to grant access to such records.
On the face of it, it may appear that there is no significant difference in the way such records are treated. However, as it is no longer the case that the Act does not apply to such records, certain other provisions of the Act are affected.
For example, my Office took the view that the right of amendment of records as provided for under section 17 of the FOI Acts 1997 & 2003 did not apply in the case of publicly available records, as the Act did not apply to such records. However, as such records are now subject to the provisions of the FOI Act 2014, while it is open to a public body to refuse requests for access, it may not refuse a request for amendment on the ground that the Act does not apply to them.
My Office has not yet had to make a formal determination on such a matter.
With one or two notable exceptions (see below), for the vast majority of public bodies that have been brought within the scope of FOI for the first time under the FOI Act 2014, the right of access to records held by those bodies applies to records created on or after 21 April 2008.
Amidst a significant level of publicity surrounding its activities, and prior to the passing of the FOI Act 2014, the Minister for Public Expenditure and Reform introduced the Freedom of Information Act 1997 (Prescribed Bodies) Regulations 2014 (S.I. No. 140/2014) in March 2014, prescribing Irish Water as a public body “for the purposes of paragraph 1(5) of the First Schedule to the Freedom of Information Act 1997”.
Article 2 provides that “These Regulations shall be deemed to have come into operation on 17 July 2013”. In other words, Irish Water became a public body for the purposes of the FOI Acts 1997 & 2003 with effect from 17 July 2013.
During the course of the year, my Office had cause to consider the scope of the right of access to records held by Irish Water, i.e. to what records held by Irish Water does the right of access under the FOI Acts 1997 & 2003 apply? In determining that issue, my Office must look to the provisions of the FOI Acts 1997 & 2003, under which the Regulations were made.
Section 6(4) of the FOI Acts 1997 & 2003 provides for a right of access to “records created after the commencement of this Act”. Under section 2(1), the term “commencement of this Act” means “the time at which this Act (other than subparagraphs (3) and (4) of paragraph 1 of the First Schedule) comes into operation”. Under section 1(2), the Act came into operation on 21 April 1998.
Irish Water was prescribed for the purposes of paragraph 1(5) of the FOI Acts 1997 & 2003. Accordingly, it seems to me that the right of access to records held by Irish Water extends to records created on or after the commencement of the FOI Act 1997 & 2003, namely 21 April 1998.
My Office raised this matter with CPU, who take the view that the right of access is restricted to records created on or after the date the Regulations are deemed to have come into operation, namely 17 July 2013. However, in my view, the fact that the Regulations are deemed to have come into operation on 17 July 2013 does not mean that the right of access to records held by Irish Water is limited to records created on or after that date. The Regulations operated to prescribe Irish Water as a public body, but did not determine the records to which the right of access applied.
Since the coming into operation of the FOI Act 2014, the question of the right of access is determined by that Act. Under section 11(4), the right of access to records held by Irish Water extends to records created on or after the effective date. Under section 2(1), in the case of an entity that immediately prior to the enactment of the FOI Act 2014 was a public body within the meaning of the Act of 1997, the effective date is 21 April 1998. As Irish Water was such an entity, the effective date is 21 April 1998.
It should be noted, however, that I have not yet had cause to make a formal determination on this specific point in the course of a review before my Office.
Article 4(1)(b)(iii) of the Freedom of Information Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009) provides that a request for access to records which would disclose the personal information of a deceased individual shall be granted to the spouse or the next of kin of the individual in certain circumstances and having regard to any relevant guidelines published by the Minister.
Article 4(2) of S.I. No. 387 of 2009 provides that “next of kin” is the person or persons standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act, 1965. The Department of Public Expenditure and Reform published Guidance Notes in 2009 pursuant to the provisions of S.I. No. 387 of 2009.
According to the Guidance Notes, for the purpose of establishing a claim to be the next of kin of the deceased, next of kin are described (in accordance with the Succession Act, 1965) as follows:
The Succession Act, 1965 sets out, at Part VI, the rules relating to the distribution of the estate of a deceased individual on intestacy. Sections 67 to 69 set out the rules of hierarchy relating to the deceased’s spouse, children, parents, brothers and sisters, and nieces and nephews. Sections 70 and 71 address shares of next-of-kin and ascertainment of next-of-kin. In essence, the Succession Act 1965 distinguishes next-of-kin from other close relatives as described in sections 67 to 69. In other words, the ascertainment of next-of-kin as set out in section 71 arises only where the individuals concerned are not captured by the provisions of sections 67 to 69. Section 71 of the Act provides as follows:
Article 4(2) of S.I. No. 387 of 2009 provides that next-of-kin is the person or persons standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act, 1965. As worded, the Regulations do not allow for sections 67 to 69 of the Succession Act to be considered when establishing next-of-kin. They specifically require that next-of-kin must be established in accordance with section 71(2) and as a result, a number of potential issues arise.
Arguably, S.I. No. 387 of 2009 does not provide access rights for close relatives of the deceased as described in sections 67 to 69 of the Succession Act, 1965 in any circumstances, apart from the spouse who is specifically mentioned as a class of requester in Article 4(1)(b) (iii). Also, the application of the rules set out in section 71(2) of the Succession Act, 1965 for establishing next-of-kin in the context of S.I. No. 387 of 2009, may produce results which run contrary to the objectives of sections 67 to 69 of the Act. For example, pursuant to rules set out in section 71(2), it would appear that the brother or sister of the deceased stands nearer in blood relationship than the children of the deceased.
Accordingly, while it appears to be the case that the Oireachtas intended that the establishment of the next-of-kin would follow the approach set out in sections 67 to 71 inclusive of the Succession Act, 1965 (and the Guidance Notes suggest this to be the case), then it appears that this is not what is provided for in S.I. No. 387 of 2009.
While this is a rather technical issue, it is an important point in the context of the ability of the close relatives to access records of deceased persons under the FOI legislation. I am happy to report that when my Office raised the issue, CPU acknowledged the problem and at the time of writing, new regulations are being drafted which should resolve the matter.
From time to time, my reviews highlight particular problems with how an FOI body processes requests or otherwise complies with the provisions of the Act. Sometimes it is sufficient to highlight such matters in published decisions or in correspondence, including statutory notices, to the public body concerned. However, when the issues appear to show a systematic ongoing failure to properly operate the legislation, I normally contact the head of the FOI body to offer a meeting with my staff who will assist in supporting improvements, including participating in training interventions where necessary.
In this context, senior staff from my Office met with officials of the Department of Justice and Equality in 2014. They welcomed the Department’s positive response and committed to offering whatever support my Office might be in a position to provide in terms of improving the Department’s application of FOI, including participating in any training interventions the Department might wish to roll out. Unfortunately, I have seen little evidence that the proposals to engage and to improve from 2014 have met with success, since that meeting.
During 2015, my Office has dealt with several cases involving the Department in which provisions of the Act have not been complied with, including those covering time periods for decision making and release of records, notification of appeal rights, provision of records and other information to my Office and application of certain exemptions.
For instance, in Case No. 150284, the Department failed to furnish to the applicant the reasons for its refusal of a request with the result that a statutory notice was served on the Secretary General requiring that a proper statement of reasons be given to the applicant and to me. While I recognise that compliance with the Act places demands on the resources of FOI bodies, I find it difficult to understand why offers of support from my Office along with the substantial training, guidance, sample letters and other materials available through CPU are not taken up. This is even more surprising in the case of bodies such as the Department that have been subject to the FOI Acts for the past 18 years.
It seems to me, from the cases that come before me, that the commitment of senior management in the public service to the objectives of FOI and to improved openness and better governance varies considerably between the various bodies. In any case, I propose to continue to engage in 2016 with the Department of Justice and Equality and with other bodies whose FOI practices have been identified by my Office as being particularly poor.
As I outlined above, the right of access to records held by the vast majority of public bodies that have been brought within the scope of FOI for the first time under the FOI Act 2014 applies to records created on or after 21 April 2008. However, there are a number of exceptions. The Minister for Public Expenditure and Reform introduced the Freedom of Information Act 2014 (Effective Date for Certain Bodies) Order 2015 in April 2015. The Order provides for a different effective date for certain bodies, as follows:
21 April 2012 for the Private Residential Tenancies Board, and 14 October 2014 for the Refugee Applications Commissioner and the Refugee Appeals Tribunal.
Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information, and the earlier Directive it amends (2003/98/EC), create an EU statutory framework for the re-use by businesses and citizens of existing information held by public sector bodies in new products and services.
The Directive places an obligation on public sector bodies to provide information about material that they are prepared to release under the Directive, to the benefits of re-users, with the aim of boosting economic activity. It is important to note that the Directives do not create any new rights of access to information.
Directive 2013/37/EU has recently been transposed into Irish law. The European Communities (Re-use of Public Sector Information) (Amendment) Regulations 2015 (S.I. No. 525 of 2015) came into force on 24 November 2015. S.I. No. 525/2015 amends S.I. No. 279/2005 (the Re-use of Public Sector Information Regulations).
The new Regulations amend the regime in the 2005 Regulations by giving effect to a number of provisions contained in the 2013 Directive, including that the means of redress available to a re-user must now include the possibility of review by an impartial body capable of making binding decisions. While the 2005 Regulations provided for an Appeal Commissioner, S.I. No. 525/2015 designates the Information Commissioner as the Appeal Commissioner.
Accordingly, my Office can now accept applications for review of decisions taken by public bodies in relation to requests made under the Regulations to re-use documents. However, no such applications for review have been made to date.
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. A decision of the High Court can be appealed to the Court of Appeal/Supreme Court.
Three appeals of decisions of my Office were made to the High Court in 2015, one by the applicant and two by the relevant public body. In one of the cases involving the Office of the Houses of the Oireachtas, the matter was remitted back to my Office on consent. The second case was heard in 2015 but judgment was reserved to 2016. The third case is listed for hearing later in 2016.
There were no High Court judgments delivered in 2015. While two High Court cases were brought to a conclusion in 2015, neither required a High Court judgment. I mentioned the first of the two cases in my Annual Report for 2014. I explained at the time that the applicant, on behalf of Westwood Club, applied to the High Court for an Order directing my Office to complete the review in his case that had been suspended, pending the outcome of a related High Court appeal concerning the same applicant.
In the event, I issued my decision prior to the hearing of the judicial review proceedings and the appeal was effectively withdrawn when the applicant accepted that only the issue of costs remained to be determined following the making of the decision.
In the second case, the applicant appealed to the High Court arising from my decision to affirm the decision of the Department of Defence to release certain records with the name and address of the applicant redacted. He argued that even with the redactions, the release of the records would disclose personal information relating to him. During the exchange of affidavits it became apparent that the Department had failed to notify my Office of the entirety of the records it had intended to release.
Accordingly, my Office successfully applied to the High Court to have the matter remitted back for reconsideration. However, the applicant subsequently appealed that decision of the High Court to the Court of Appeal. This was the only appeal to the Court of Appeal made in 2015. The case is listed for hearing later in 2016.
One Court of Appeal judgment was delivered in 2015. The full text of the judgment is available on www.oic.ie. What follows is a summary of the main points in the case.
Background and issue
In her High Court judgment of 7 October 2014, O’Malley J. held that the Court had no jurisdiction to entertain an appeal of the discontinuance by the then Information Commissioner of seven of the applicant’s review applications on the ground that they were vexatious. The applicant appealed the decision of the High Court to the Court of Appeal.
The principal issue before the Court of Appeal concerned the interpretation of section 42(1) of the FOI Acts 1997 & 2003, which provides for a right of appeal to the High Court on a point of law from a decision by my Office following a review.
Conclusion of the Court
The Court of Appeal dismissed the appeal and found that the High Court had not erred in finding that there is no right of appeal to the High Court where the Information Commissioner has discontinued a review. The Court found that where the Commissioner discontinues a review, the review has essentially been aborted, or discontinued, and that there has been no decision following a review that is capable of appeal to the High Court on a point of law. It upheld the finding of the High Court that the correct method of challenging the discontinuance by the Commissioner of a review is by way of judicial review.
EM - 12/10/2015
Irish Independent - 09/05/2015
Irish Independent - 14/07/2015