The FOI Act 2014 provides for a general right of access to records held by public bodies and also provides that records should be released unless they are found to be exempt. The Act gives people the right to have personal information about them held by 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 primary role of the Office of the Information Commissioner is to conduct independent reviews of decisions made by public bodies on FOI requests, where members of the public are dissatisfied with responses to those requests. As Information Commissioner, I have a further role in reviewing and publishing commentaries on the practical operation of the Act.
The FOI Act applies to all bodies that conform to the definition of public body in Section 6(1) of the Act (unless they are specifically exempt or partially exempt under the provisions of Section 42 or Schedule 1 of the Act). Bodies such as Government Departments and Offices, local authorities, the Health Service Executive, voluntary hospitals, and universities are included. As new public bodies are established, they will automatically be subject to FOI unless they are specifically exempt by order made by the Minister.
The European Communities (Access to Information on the Environment) Regulations 2007 to 2014 provide an additional means of access for people who want environmental information. The right of access under the AIE Regulations applies to environmental information held by or for a public authority. The primary role of the Commissioner for Environmental Information is to review decisions taken by public authorities on requests for environmental information. Both access regimes are legally independent of each other, as are my roles of Information Commissioner and Commissioner for Environmental Information.
The European Communities (Re-use of Public Sector Information) (Amendment) Regulations 2015 (S.I. No. 525 of 2015) provide that the Information Commissioner is designated as the Appeal Commissioner. As such, my Office can review decisions taken by public bodies in relation to requests made under the Regulations to re-use public sector information, including decisions on fees and conditions imposed on re-use of such information.
In my 2016 Annual Report, I was pleased to report on a significant increase both in the number of reviews completed by my Office over the previous year and in the percentage of reviews completed within four months, against a significant increase in demand for our services.
I am again pleased to report that in 2017 we recorded further significant achievements in throughput. While demand continued to rise, we nevertheless recorded a 16% increase in the number of reviews completed and increased the percentage of reviews completed within four months to an all-time high of 63%. Since 2013, when I first took up Office, the number of reviews completed has almost doubled, while the percentage of reviews completed within four months has increased by 37%. I report in more detail on our 2017 review achievements later in this chapter.
It is particularly pleasing to report that the throughput improvements were achieved at a time when my Office was midway through a significant change process. During the year, we continued to develop our systems and processes in accordance with our Strategic Plan, and made impressive progress on the rollout of our ICT systems. For example, a new document management system is now in place, and work is continuing on developing a new case management system for both Offices.
I was also pleased to be in a position to launch new websites for both Offices at the end of 2017. The new websites have a cleaner design and are easier to navigate and we have significantly improved the accessibility of both sites. The sites also provide a more streamlined on-line application process which, given the significant number of applications we receive this way, is likely to be welcomed by the public.
My Office continued its development and publication of guidance notes during 2017. They have been very well received and I understand that they have also become a valuable resource for equivalent Offices abroad. We will continue in our efforts to extend the supports we can provide both for public bodies and for users of the Act generally, by identifying further relevant topics that might benefit from the publication of guidance.
Apart from the publication of guidance notes, my Office has been examining ways of providing further support and assistance to public bodies with a view to enhancing the quality of decision making generally. In the course of our discussions with the Department of Public Expenditure and Reform in relation to our budgetary provision for 2018, we sought a specific allocation to develop and roll out an Outreach programme.
I am pleased to report that our submission was accepted and as I write this introduction, we are actively developing a plan of action for enhancing the level and nature of our engagement with public bodies for roll out later in 2018. I will also be considering possible topics for investigation pursuant to my powers under section 44 of the Act to address systemic issues of concern.
Freedom of Information legislation was first introduced in Ireland in 1998. To mark the 20th anniversary of this landmark legislation, I hosted a half-day conference in April 2018, reflecting on the impact of FOI in Ireland and its contribution to reform of the public service. The current Act was introduced in 2014. In Chapter 2, I report on a number of issues my Office has encountered in relation to the operation of the 2014 Act. I believe it is now opportune to look for a review of the Act. Later in this Report, I highlight some decisions of interest that my Office issued, while in Part II I report on my role as Commissioner for Environmental Information.
Commissioner for Environmental Information
Case completions increased by 93% since 2013, my first year in Office
In 2017 we launched our new OIC and OCEI websites. The sites provide enhanced online services for both members of the public and other stakeholders. In developing the new websites, we were very aware that visitors expect to have a similar user experience in dealing with the public service as they would have in dealing with other services such as the retail sector. Consequently, we have focused on delivering websites that are secure, reliable and easy to use. Each site includes an online portal offering a fast and efficient facility to submit applications for review and appeals online. They also provide quick and secure facilities to transfer data and documents to us. An enhanced search facility is a key feature of each new website. They are a useful resource for both requesters and decision makers. We will continue to engage with our stakeholders to ensure that our online facilities continue to meet their needs.
Implementation of the remainder of our ICT renewal and improvement plan is ongoing. Significant work has been undertaken to ensure that we successfully harness new technologies to deliver better customer service and knowledge management. In 2017, we rolled out a new document management system to manage primarily non-case-related records. We also made significant progress in developing a new case management system. Both of these new systems will facilitate the digitalisation of services, where appropriate, and the automation of routine tasks that will support the delivery of a more effective and efficient service. We look forward to the completion of the extensive programme of work to upgrade our IT systems in 2018.
We accepted 86% of all applications as reviews - up from 74% in 2015
My Office continued to publish a series of Guidance Notes relating to the FOI Act in 2017. The Notes provide a commentary on the interpretation of various provisions of the FOI Act. They explain the approach my Office takes to the application of the provisions and provide examples from some of my decisions and those of my predecessors. The Notes also include references to relevant court judgments.
In particular, in 2017, my Office published Guidance Notes on the exemption for personal information (section 37) and the provision which applies where there is an enactment relating to non-disclosure of records (section 41).
Guidance Notes were also published on procedural provisions in the FOI Act. We published a Note on the application of section 27 of the Act, which relates to fees and charges under FOI. We also published a Note on section 38 of the Act which deals with the procedures to be followed in certain cases involving third parties. In 2016, representatives of Government Departments had indicated that they would particularly welcome Guidance Notes on sections 27 and 38. I am pleased that these Notes have now been published.
I am aware that decision makers in FOI bodies find the Guidance Notes a useful resource. I very much hope that all users of FOI, including requesters, find the Guidance Notes of benefit. My Office will continue to develop its Guidance Notes and I hope that we will be publishing further Notes in 2018, including Notes on the provision concerning records that do not exist or cannot be found (section 15(1)(a)), the types of records that are excluded from the scope of the Act (section 42) and the consideration of the public interest test contained in many of the exemption provisions.
My Office also publishes Sample Questions for FOI bodies which set out questions that may be relevant when I am reviewing a decision made by a public body. The Sample Questions have been revised and updated in 2017. While they are primarily intended to be used by staff of my Office, I hope that publishing them may provide further assistance to FOI bodies in their decision making and in providing an indication of what my Office is likely to require during the course of a review.
from a public body
“Thank you for all the work and time you put into this review. Your assistance and understanding is much appreciated.”
The Irish Human Rights and Equality Commission Act 2014 introduces a positive duty on public bodies to have due regard to human rights and equality issues. My Office has adopted a proactive approach to implementing this duty. We have set up a staff working group, which has held a workshop on human rights and equality, and met with the Irish Human Rights and Equality Commission. The working group is in the process of identifying all of my Office’s functions and assessing what human rights and equality issues arise in relation to those functions. It will also identify the policies and procedures which are in place to address those issues. It will then propose an action plan for implementing the duty, on foot of its findings. I am keen to ensure that the public sector duty becomes an integral part of how my Office works.
In that regard, my Office is committed to providing a service to all clients that respects their human rights and their right to equal treatment. This is equally applicable to how we interact with our own staff as it is essential in fostering a healthy work environment that promotes engagement, openness and dignity in the workplace. Our approach is underlined by our core organisational values of independence, customer focus and fairness, which are evident in both the culture of our Office and our internal policies and procedures. We have also been proactive in providing training to our staff on human rights and equality.
We issued 12 statutory notices to public bodies to require compliance – down from 17 in 2016
Where a public body decides to refuse a request, whether wholly or partly, it is obliged to give the requester a statement of the reasons for the refusal, including,
It is not sufficient for a body to simply paraphrase the words of the particular exemptions relied upon. A statement of reasons should show a connection, supported by a chain of reasoning, between the decision and the decision maker’s findings on material issues.
Where my Office considers that the statement of reasons given is inadequate, I am obliged, under section 23, to direct the head of the body to provide a statement containing any further information in relation to the above matters that is in the power or control of the head.
In 2017, we issued notices under section 23 to the heads of the following public bodies:
In each case, we considered that the original and/or internal review decisions fell short of the requirements of the FOI Act, and we sought a more detailed statement from the public body.
Under section 45, I can require a public body to provide me with any information in its possession or control that I deem to be relevant for the purposes of a review. The vast majority of requests my Office makes for information relating to reviews are responded to within the time frames specified in such requests. However, regretfully I occasionally have to enforce my statutory powers under section 45 to elicit a response. It is important that public bodies comply with the time frames set out by my Office, as delays impact on our ability to comply with the requirement that we issue decisions as soon as may be and, in so far as practicable, within four months of receipt of applications for review.
During the year, my Office issued five notices under section 45; one each to the Department of Justice and Equality, Mercy University Hospital, National Maternity Hospital, Kildare County Council and the Irish Prison Service. I have provided more details on each case below.
On 7 March 2017, the Department was asked to provide copies of the subject records relating to the review. The review could not proceed without the information sought. The Department failed to provide the information sought within the two-week timeframe given, despite a telephone and email reminder. On 28 March, we issued a notice under section 45 to the Secretary General of the Department and the relevant information was provided two days later.
My Office wrote to the Hospital on 2 November 2016 and invited it to make a submission on the basis of its proposal to charge the applicant a search and retrieval fee for access to records. In accordance with our documented and published review procedures, a two week deadline for responding was set.
Having regard to the issues arising in the review, we considered that it was not possible to proceed in the absence of a response to our request. As no reply was received, we issued a section 45 notice to the Chief Executive Officer of the Hospital on 25 January 2017, requiring the information to be provided within seven days. This deadline passed without a reply. However, on 6 February 2017, the Hospital informed this Office that it had decided not to charge a fee.
On 11 September 2017, the investigating officer wrote to the Hospital and requested information concerning the searches undertaken by it to locate the records sought by the applicant. The Hospital was asked to reply by 25 September 2017 and was also advised of the provisions of section 45 of the FOI Act. On the day a response was due the Hospital contacted my Office and said that it was not yet in a position to respond, primarily due to the absence of a staff member on annual leave. Despite some additional communications, the relevant information was not provided. We eventually issued a section 45 notice to the Master of the Hospital on 6 October 2017. The Master was requested to provide the relevant information by 13 October 2017.
However, on the day a response was due the Hospital’s legal representatives contacted my Office and requested an extension. While this was granted, as the Hospital’s legal representatives had only just received instructions, it was put to the Hospital that it did not appear to be taking its statutory responsibilities under FOI seriously. It was also pointed out to the Hospital that its failure to respond to requests from this Office impacted on our ability to meet statutory time-frames for conducting reviews. A reply was eventually received from the Hospital on 19 October 2017, four weeks beyond the initial deadline date.
My Office accepted an application for review on the basis of a deemed refusal by the Council of the applicant’s FOI request, under section 19 of the FOI Act. On 5 December 2016, we wrote to the Council and asked it to issue a letter to the requester setting out its effective position in respect of the records sought. The Council failed to issue the letter within the two week timeframe given and it failed to act on further reminders to do so.
On 18 January 2017, we issued a section 45 notice to the Chief Executive of the Council, requiring the information to be provided within seven days. A reply was issued to the applicant on 1 February 2017, more than six weeks after the original deadline for responding.
On 16 January 2017, the investigating officer wrote to the Irish Prison Service (IPS) and requested details concerning the searches undertaken by it to locate the records sought by the applicant. A response was due by 30 January. Despite a number of reminders, the IPS failed to provide the details requested. On 15 February 2017, my Office issued a notice under section 45 to the Director General of the IPS. A response to the search request was received on 30 March 2017, two months after the original deadline for responding.
I have included below some key details on FOI usage in 2017. A more detailed breakdown is provided in Chapter 4.
I wish to acknowledge the work undertaken by the lead agencies that collect statistics for inclusion in my Annual Report. In the main, the relevant information is provided to my Office in a timely fashion, but unfortunately there are some exceptions.
In my 2015 Annual Report, I reported that the Department of Transport, Tourism and Sport was very late in submitting its return of FOI statistics for that year. The Department was also late in 2016, as was TUSLA. While figures were eventually provided for 2016, my Office nevertheless wrote to both bodies at that time and reminded them of their responsibility to make timely returns on FOI statistics, without which, my Office explained, it would not be possible to accurately state the level of FOI activity during the year. It is frustrating then to record yet another year where both the Department of Transport, Tourism and Sport and TUSLA were unable to provide statistics by the separate deadlines set by both my Office and the Central Policy Unit (CPU).
In a response for clarification as to the reasons for the delay, TUSLA explained that since its establishment in 2014, it has focused on establishing itself as the national Agency dedicated to supporting children and families, and to place the Agency on a sustainable footing. It said that during this time there has been a necessary reliance on the HSE to provide some of the Agency’s corporate supports through a Memorandum of Understanding. It said that as the form and content of this arrangement was not providing TUSLA with the requisite corporate supports to meet its FOI statutory requirements, it commenced a process during 2017, in a number of key functional areas, to build the Agency’s internal corporate capacity. It said that this involves a significant programme of work to review and implement an operating model that is fit for purpose to deliver on the statutory requirements of FOI.
The Department of Transport, Tourism and Sport also provided a response. It stated that in light of the significant and ongoing rise in FOI requests in recent years, it is looking to better utilise IT systems to assist in the provision of timely statistical returns and expects to move to the ‘Build To Share’ platform in 2018.
I welcome the commitment given by both bodies to take measures to avoid a repeat of the delays in providing timely statistical returns.
33,979 requests were made to public bodies in 2017
The total number of requests received by bodies in 2017 is 33,979, representing an increase of 11% on 2016. The marked increase in usage annually since 2014 is a clear reflection of the impact that the 2014 Act has had. As can be seen here, the total annual usage figure has almost tripled over the last nine years and the increase in activity since 2014 (the last full year to which the 1997/2003 Acts only applied) has risen by 67%.
Clearly, such increased demand gives rise to certain challenges for public bodies. In Chapter 2, I comment on the apparent failure of some bodies to match the increased demand with a corresponding increase in the allocation of resources to the processing of FOI requests. Indeed, I note that the total number of requests carried forward to 2018 by all public bodies now stands at 7,182, representing an increase of 19% on 2017.
FOI requests made to public bodies up by 67% since the introduction of the 2014 Act
The breakdown of requests under this heading has remained fairly static over the past few years.
87% of requests made to the health sector were for access to personal information
Unsurprisingly, the health sector received the largest number of requests for personal information, at 87%. Of all requests received during the year by TUSLA, 92% were for access to personal information.
The figure for receipt of requests for access to non-personal information in local authorities is 81%.
56% of all requests made to Government Departments and State bodies during the year were for access to non-personal information.
The ‘requester’ and ‘release rate’ charts are almost identical to those of last year.
Public bodies carried forward 7,182 requests into 2018, up 19% on 2017
An application for review can be made to my Office by a requester who is not satisfied with a decision of a public body on an FOI request. Decisions made by my Office following a review are legally binding and can be appealed to the High Court only on a point of law.
My Office business plan for 2017 set an objective of validating and accepting applications for review within ten working days. I am pleased to record here that 97% of all applications processed in 2017 met that objective.
I have mentioned in previous reports how the number of applications accepted each year is lower than the total number received, due to factors such as the making of premature applications. However, I note that the annual percentage of applications accepted as reviews by my Office, when compared to the number received, has shown a marked increase in the last three years. The percentage of applications accepted as reviews in 2015 was 74%, while in 2017 that figure increased to 86%.
While it is difficult to be definitive about the reasons for the increase in accepted applications, it does appear that awareness of the FOI process in general is steadily improving.
We accepted 497 applications for review in 2017, up 12% on 2016
Of the 497 applications accepted by my Office in 2017, almost 94% were concerned with refusals by the bodies to grant access (in part, or in full) to some or all of the records sought. This is the highest percentage figure recorded by my Office over the past ten years under that heading. With the exception of ‘Fees’, the remaining headings are at record lows.
An application recorded by ‘type’ indicates whether the applicant is seeking access to records which are of a personal or non-personal nature, or a mix of both. Records from the past ten years show very little variation in the percentage figures related to type.
My Office reviewed 502 decisions of public bodies in 2017. This is 16% more than the number reviewed in 2016, 55% more than the total for 2015 and 93% more than the total for 2013, when I first took up Office.
Our reviews concerned 113 public bodies - up from 77 bodies in 2013
Settled and withdrawn applications often follow as a result of the intervention of my Office, where, for example, a more detailed explanation of a decision is given to the applicant by the public body, or additional records are released or part granted, and the review does not proceed to a formal decision.
This table shows how long it took my Office to complete reviews.
Since 2013, while the number of applications received has increased by 72%, the percentage of reviews completed within four months has increased from 26% to 63%. In that same period, the percentage of cases closed within twelve months has increased from 66% to 98%.
91% of reviews on hand at the end of 2017 were less than six months old
I am pleased to report that a specific initiative introduced by my Office, aimed at prioritising the completion of older cases has been successful. It is inevitable that with the increase in the number of applications accepted by my Office, a few will take longer to conclude due to any number of factors which may need to be considered during the course of the review. These include matters related to legal proceedings, new issues coming to light during the review, or a change in the status of records. For example, decisions of my Office on two reviews which are older than eight months are dependent on the outcome of an appeal to the High Court on another decision. At the end of 2017, 91% of all reviews on hand were less than six months old.
In 2013, my Office accepted applications for review in respect of a total of 77 public bodies. In 2017, my Office accepted applications for review in respect of 113 public bodies.
We completed 502 cases in 2017
We completed 63% of cases within 4 months, a record high
The FOI Act imposes statutory time limits on public bodies for processing an FOI request. Specifically, a decision on an original request should issue to the requester within four weeks and a decision on a request for an internal review should issue within three weeks.
Where a public body fails to issue a timely decision either on the original request (first stage) or on internal review (second stage), the requester is entitled to treat the body’s failure as a ‘deemed refusal’ of the request. Following a deemed refusal at the internal review stage, a requester is entitled to apply to my Office for a review.
29% of reviews were deemed refused at both stages – a record high
In my 2016 Report, I noted that it was the worst year on record in terms of the number of deemed refusals by public bodies. It is with some dismay, therefore, that I must report on the fact that matters have gone from bad to worse. In 2017, 143 (29%) of all applications accepted by my Office were recorded as deemed refused at both stages of the FOI request (in 2013, that figure was 13%).
This is an extraordinary number of cases where the public body failed to issue a timely decision at either stage of the decision making process. While I accept that in many of these cases the public body eventually issued a late decision, it is clear evidence that many public bodies are not properly resourcing the FOI function.
The charts that follow show how many requests were deemed refused in the year at both stages, or at each stage, of the request. As with last year, the worst offenders for 2017 were TUSLA and the Department of Justice and Equality.
See Chapter 4, table 19 for further details on deemed refusals.
47% of reviews were deemed refused by public bodies at the original decision stage of the FOI request
44% of reviews were deemed refused at the internal review stage
General enquiries concern various forms of communication, mostly from members of the public. The nature of those enquiries range from questions on the practicalities of the FOI Act to straightforward information about what to do next, or which public body might be able to assist. 2017 saw a fall in the number of enquiries received: 43% of enquiries were by telephone and 39% were via email.
Where a Minister of the Government is satisfied that a record is an exempt record, either by virtue of section 32 (Law enforcement and public safety), or section 33 (Security, defence and international relations) and the record is of sufficient sensitivity or seriousness to justify his or her doing so, that Minister may declare the record to be exempt from the application of the FOI Act by issuing a certificate under section 34(1) of the Act.
Each year, Ministers must provide my Office with a report on the number of certificates issued and the provisions of section 32 or section 33 of the FOI Act that applied to the exempt record(s). I must append a copy of any such report to my Annual Report for the year in question.
Section 34(13) of the FOI Act provides that
“Subject to subsections (9) and (10), a certificate shall remain in force for a period of 2 years after the date on which it is signed by the Minister of the Government concerned and shall then expire, but a Minister of the Government may, at any time, issue a certificate under this section in respect of a record in relation to which a certificate had previously been issued …”
My Office has been notified of the following certificates renewed or issued under section 34 in 2017.
Copies of the notifications from the Department of Justice and Equality and the Department of Foreign Affairs and Trade are attached at Appendix I to this Report.
In January 2018, I was notified by the Department of the Taoiseach that pursuant to section 34(7) of the FOI Act, the Taoiseach, the Minister for Public Expenditure and Reform and the Minister for Business, Enterprise and Innovation carried out a review of the operation of subsection 34(1) of the Act.
The Department stated that fifteen certificates were reviewed, nine of which were issued by the Minister for Justice and Equality and six by the Minister for Foreign Affairs and Trade. The Department concluded that the Taoiseach, the Minister for Public Expenditure and Reform and the Minister for Business, Enterprise and Innovation are satisfied that it is not necessary to request revocation of any of the 15 certificates reviewed.
A copy of the notification is attached at Appendix II to this Report.
I want to thank all the staff of the Offices of the Information Commissioner and the Commissioner for Environmental Information for their hard work and commitment in 2017. In particular, I thank my Senior Investigators, Elizabeth Dolan and Stephen Rafferty for their support, and Edmund McDaid and Lisa Underwood for their assistance in compiling this Report. I also want to acknowledge the essential work of the Information Communications Technology, Corporate Services, and Quality Stakeholder Engagement and Communications Units, who provide the shared services of the Office.
My thanks also to the Director General of the Office, Jacqui McCrum, for her commitment and support during 2017.
98% of all reviews were closed within 12 months - up from 66% in 2013