Annual Report of the Information Commissioner 2016

Chapter 2: Issues Arising

Table of Contents

This Chapter highlights issues which arose during the year concerning the operation of the FOI Act.

Issues discussed include:

I also set out a brief summary of court activity during the year, and conclude the chapter with a note on my role as Appeal Commissioner under the European Communities (Re-use of Public Sector Information) (Amendment) Regulations 2015.

Review of FOI Act 2014

I believe it is generally accepted that post-legislative scrutiny has many benefits. At the very least, such scrutiny serves to allow for the examination of whether the new legislation has met the intended policy objectives, and if it has done so in the most effective and efficient manner.

2017 represented the third full year of the operation of the 2014 Act. Given the complexity of the Act and the significant amendments introduced, I believe it is now opportune to pause and consider if it has achieved its intended purpose and if it is operating efficiently and effectively.

As the long title explains, the purpose of the Act is to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of FOI bodies. The 2014 Act introduced two measures that have generally had a significant and positive impact on access rights and the operation of the FOI regime in Ireland.

Firstly, FOI legislation was extended to all public bodies with the effect that a significant number of additional bodies were brought within the regime for the first time. Secondly, the requirement to pay up-front fees for making FOI requests was removed and the fees for availing of the relevant appeal and review mechanisms were significantly reduced.

Both measures had an almost immediate impact on levels of FOI usage and since then usage has steadily increased. For example, between 2014 and 2017, the number of requests made to FOI bodies has increased by 67%, while my Office recorded a 62% increase in the number of applications for review received during the same period. I also note that the proportion of requests made by journalists increased from 12% in 2014 to 22% in 2017. Indeed, it seems to me that hardly a day goes by without a mention of how FOI has played a part in the investigation or development of a news story.

Overall, it is clear that the increased reach of FOI and the elimination and/or reduction of associated fees has enhanced access rights and that the 2014 Act is generally working well. However, this does not mean that there is no room for improvement. One of the biggest challenges we now face is ensuring that the FOI regime is adequately resourced to meet the increased demand whilst maintaining a high quality of decision making. It is also the case that my Office has identified what might best be described as teething issues relating to some of the amendments introduced in the 2014 Act. I comment on a number of these issues below. My Office has also engaged in discussions with the Central Policy Unit of the Department of Public Expenditure and Reform on the various issues and on the question of whether a more formal review of the Act is now required.

from an applicant
“I received the decision in the post yesterday,… thank you so much for all your much appreciated assistance.”

Resourcing of the administration of FOI

In my 2016 Annual Report, I noted that the increase in FOI usage levels did not appear to have been matched by a corresponding increase in the allocation of resources by public bodies to the processing of FOI requests. I expressed my concern at this emerging trend and urged public bodies to make every effort to ensure that the resources afforded to the processing of requests are sufficient to deal with the demand levels.

Unfortunately, with the exception of a small number of bodies, the overall trend continued in 2017. This is evidenced by my comments in Chapter 1 on issues such as the increased level of requests on hand at the end of the year and the ever-increasing number of deemed refusals recorded by my Office, whereby a public body fails to engage with the requester at one or both stages of an FOI request. At the extreme end of that engagement spectrum, my Office has on occasion recorded the failure of a public body to respond at both stages of the request and then, during the review, felt it necessary to issue a statutory notice to compel the body to comply with a request for relevant documentation.

I fully accept that most, if not all, public bodies are grappling with the challenge of meeting increased demand across the range of services they provide and that they often have to make difficult decisions in terms of prioritising the allocation of scarce resources. In my experience, many bodies tend to differentiate between what they regard as their core functions and other, secondary functions. However, as I have stated many times previously, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function.

Unfortunately, this is not an issue that my Office, of itself, can readily rectify. However, we are available and willing to offer whatever assistance and support we can. As I outlined in Chapter 1, one of the more successful initiatives we introduced in recent years was the development and publication of a suite of guidance notes to support decision makers. I have also mentioned plans my Office has to develop our relationships with public bodies through an outreach programme. We will use the opportunities that the programme provides to ensure that the issue of the resourcing of the FOI function is considered by public bodies at the highest levels.

In addition, I would again draw the attention of public bodies to the comprehensive supports offered by the Central Policy Unit, both through its website and through its support of the various FOI liaison network groups.

Ultimately, the public bodies themselves must take responsibility for ensuring that they have sufficient resources to deal with the demand. I will be keeping this matter under close scrutiny during 2018.

Definition of Public Bodies

Prior to the introduction of the 2014 Act, there was absolute certainty around which public bodies were subject to the FOI legislation as the bodies in question were expressly specified as such.

The 2014 Act saw a departure from the previous practice of specifying the various bodies. Instead, bodies are now deemed to be public bodies for the purposes of the Act if they come within one or more of the categories described in section 6(1). Some of those categories are immediately obvious (e.g. a Department of State) while others are not so obvious (e.g. an entity that is directly or indirectly controlled by a public body).

Where a dispute arises between my Office and an entity as to whether or not it is a public body for the purposes of the Act, the dispute must be submitted to the Minister for Public Expenditure and Reform for a binding determination, under section 6(7).

In my 2016 Annual Report I explained that the Central Policy Unit had to amend a previously published Dispute Resolution Policy and Procedure for processing such referrals to the Minister to take account of the fact that section 6(7) does not provide for binding determinations in cases where my Office agrees that the entity is not a public body and the dispute is between the entity and a requester. I made the point that this leaves my Office in a position of having to make determinations on whether or not certain entities are public bodies, with no corresponding right of appeal except, perhaps, through the Courts.

In light of the further experiences of my Office on the matter, it appears that section 6(7) is also potentially problematic even where a binding determination should appropriately be sought. If a body wishes to challenge such a determination, this would most likely happen by way of a judicial review of my Office’s refusal to accept an application for review based on such a determination.

It is important to bear in mind that it is entirely a matter for the Oireachtas to determine which bodies should be subject to the FOI regime. As such, it seems to me that a practical solution could be to amend section 6(7) so that the Minister can make a binding determination in all cases where the issue of whether or not an entity is a public body for the purposes of the Act is in dispute, and to provide for a right of appeal to the Courts arising from the Minister’s determination.

There are other potential solutions. Combining current and previous practices, the Minister could expressly specify entities as public bodies and also allow for the inclusion of entities not so prescribed where they come within one or more of the categories in section 6(1). Alternatively, it might be open to the Minister to put the matter beyond doubt by prescribing certain entities as public bodies where disputes arise. Section 7 empowers the Minister to declare, by order, an entity to be a prescribed body for the purposes of the Act.

During 2017, my Office received a number of cases where the question arose of whether or not the entity was a public body.

In one case, a request was refused by the Office of the Secretary General to the President on the ground that it was not a public body for the purposes of section 6(1) of the Act. As my Office disagreed, we sought a binding determination by the Minister on the matter.

The Minister held that the Office of the Secretary General to the President is a public body under section 6(1)(b) (an entity established by or under any enactment, other than the Companies Acts).

In an interesting twist on the question of whether or not an entity is a public body, my Office dealt with another case where the question arose as to whether a particular body that had processed a request in accordance with the provisions of the Act was, in fact, a public body. The body in question was the Royal Institute of the Architects of Ireland (RIAI). The RIAI believed that it was a public body, at least in so far as certain statutory functions had been previously assigned to it.

My Office had cause to examine whether the RIAI was a public body for the purposes of the Act and took the view that it was not, as it did not appear to come within any of the paragraphs (a) to (h) of section 6(1).

While the RIAI did not dispute our view, my Office referred the matter to the Central Policy Unit for a binding determination by the Minister. However, the Central Policy Unit argued that the Ministerial power at section 6(7) of the Act is premised on the existence of a dispute between my Office and an entity, and as the RIAI was not disputing the finding of my Office, it would not submit the matter to the Minister. It argued that a Ministerial determination in those circumstances would be ultra vires.

In another case, my Office found that Galway University Foundation CLG was not a public body as it did not come within any of the paragraphs (a) to (h) of section 6(1).

Issues of the interpretation and application of section 6 apart, it seems to me that a bigger issue to be considered is whether the Act should be amended to ensure that information relating to all public services is potentially available under the Act, regardless of what entities provide those services.

I have previously referred to issues associated with the out-sourcing of the delivery of public services to private entities and noted that many services are provided by independent or private bodies on behalf of the State and its agencies. I would argue that entities to which certain public functions are outsourced (such as refuse collection) should be subject to the same levels of transparency and accountability in respect of the delivery of those public services as public bodies.

97% of all applications to my Office were validated within ten working days

Compliance with Section 8 - Publication Schemes

Under section 8 of the Act, public bodies are required to make certain information publicly available via a publication scheme. The scheme must conform with any model publication scheme, or be in accordance with any guidelines on such schemes, published by the Minister for Public Expenditure and Reform. It must also include all of the information set out in section 8(2).

The Minister has published both a model scheme and specific guidance on the publication of such schemes. In preparing, reviewing or revising a publication scheme, the public body must have regard to the public interest,

  • in allowing public access to information held by the body,
  • in the publication of reasons for decisions made by the body, and
  • in publishing information of relevance or interest to the general public in relation to its activities and functions generally.

The requirement to publish such schemes is a very welcome and positive measure in terms of enhancing accountability and transparency of public bodies. It also has the potential to reduce the administrative burden arising from processing FOI requests by the proactive, advance publication of information of general public interest.

Under section 8, public bodies are required to review and, where necessary, revise the material published under a publication scheme at least annually. They are also required to review and update the publication scheme itself every three years.

The Act provides that I may examine and report in my Annual Report on the extent to which I consider public bodies to be in compliance with the requirements relating to publication schemes. Given the increased demands on the services of my Office over the last few years, we have not examined the level of compliance by public bodies with those requirements. However, we intend to give attention to publication schemes as part of our outreach programme for 2018.

Section 41 - non-disclosure provisions

Section 41 of the Act provides for the mandatory refusal of access to records whose disclosure is prohibited, or whose non-disclosure is authorised, by other enactments. A similar provision was contained in the FOI Acts 1997 & 2003. The section subordinates the access provisions of the FOI Act to all non-disclosure provisions in statutes except for those cited in the Third Schedule.

The Act provides for the review by a Joint Committee of both Houses of the Oireachtas 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.

All Government Ministers must furnish to the Joint Committee a report on the provisions of any enactments within their respective areas of governance that authorise or require the non-disclosure of records specifying whether they consider any of the provisions should be amended or repealed, or be added to the Third Schedule. Each Minister is required to lay the report before the Oireachtas and to furnish my Office with a copy. I am entitled to furnish my opinion to the Joint Committee in relation to those reports.

Under section 41(6), the first such report must be furnished within 30 days after the fifth anniversary of the day on which the last report was furnished under the FOI Acts 1997 & 2003 and subsequent reports must be furnished every five years thereafter.

In accordance with the provisions of the FOI Acts 1997 & 2003, reports were to be furnished and considered by the Joint Committee in 1999, 2004, 2009 and 2014. Unfortunately, this did not happen.

My Office first reported to the relevant Joint Committee in 1999. In essence, the review process is completed when the Joint Committee provides a report of the results of the review to each House of the Oireachtas. However, I understand that the dissolution of Dáil Éireann and its Committees in May 2002 occurred before the Joint Committee could report to the Houses.

My predecessor, Emily O’Reilly, subsequently presented her opinions and conclusions relating to the 2004 reports to the Joint Committee in 2005, following which the Joint Committee presented its report to the Oireachtas. The next round of reports fell due in 2009. However, my Office did not receive all of the reports until 2012. Emily presented her opinions and conclusions relating to those reports in June 2013.

When the next round of reports fell due in 2014, the report of the Joint Committee’s deliberations of the third round of reports remained outstanding. The Joint Committee has not, to date, presented a report of those deliberations to the Oireachtas. I should say that no reports that fell due in 2014 were ever submitted to my Office.

The next round of reports fall due in 2019. At this stage, it seems to me that neither the Joint Committee’s deliberations of the third round of reports, nor the reports that fell due in 2014, are likely to be reflective of the current position relating to the many legislative provisions that prohibit, or authorise the non-disclosure of, records. As such, a practical way of bringing the process back on track for future reporting requirements may be to ensure that all Ministers submit their next reports to the Joint Committee by May 2019, following which I will be happy to present my opinions and conclusions relating to those reports. I intend to pursue this matter with the Department of Public Expenditure and Reform during 2018.

Appeals to the Courts

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.

Five appeals of decisions of my Office were made to the High Court in 2017. Three decisions were appealed by the applicant, one by the relevant public body, and one by an affected third party. All five appeals are ongoing or are listed for hearing or mention in 2018.

Two appeals of decisions were made to the Court of Appeal during the year, one by the applicant and one by the relevant public body.

One written High Court judgment and one Supreme Court judgment were delivered in 2017. Both are summarised below and can be accessed on our Office website at One appeal to the High Court that had been made in 2016 was withdrawn by the applicant in 2017.

The Minister for Communications, Energy and Natural Resources v the Information Commissioner [2015 No. 394 MCA]
Background and issue

The High Court delivered its judgment on 6 April 2017. The case concerned the question of access to a concession agreement between the Department of Communications, Energy and Natural Resources and a private company, enet. Under the agreement, enet manages a network of fibre optic cables which is State-owned and which enables telephone and broadband services.

In my decision, I directed release of the agreement. I concluded that the release of the agreement would not involve a breach of a duty of confidence between the parties. I accepted that it contained commercially sensitive information for the purposes of section 36(1)(b), but concluded that on balance, the public interest would be better served by releasing the agreement. In making this finding, I took into account that enet was the successful bidder in a tender process for the use of a State-owned asset which generates revenue.

The Department appealed my decision to the High Court. The issues before the Court were whether I had been correct in finding that, under section 22(12)(b), the Department’s decision to refuse the request was presumed not to have been justified unless it satisfied me otherwise, and whether I had erred in the way in which I had applied the exemptions set out in sections 35 (confidentiality) and 36 (commercial sensitivity).

Conclusions of the Court

The Court upheld my decision. It concluded that there was no error in my applying the presumption under section 22(12)(b). It found that this section applies to all information in the possession of public and other bodies subject to the FOI Act. It agreed that section 35(2) applied and therefore consideration of section 35(1) was immaterial. On section 36, the Court said that I had explicitly engaged with the arguments advanced in support of non-disclosure and discounted them in turn. It found that the balancing exercise under section 36(3) was one uniquely within my remit. It found that my decision could not be said to be irrational or contrary to reason and common sense or erroneous.

Note: the Department has since appealed the High Court’s judgment to the Court of Appeal.
Kelly v Information Commissioner [2017] IESC 64
Background and issue

A judgment of the High Court in 2014 found 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. It found that the statutory appeal process is intended to relate to points of law arising from substantive decisions following a review and not to a decision as to whether to carry out a review or to discontinue one that has commenced.

The applicant appealed that decision to the Court of Appeal. The Court issued its judgment in November 2015, wherein it dismissed the applicant’s appeal. It found that the High Court was correct in finding that no appeal lay from a discontinuance of a review by the Commissioner and that the mode of challenging the discontinuance was by way of judicial review.

In 2016, the applicant was granted leave to appeal to the Supreme Court on two certified questions, namely:

  • Did an appeal lie to the High Court under section 42(1) of the Freedom of Information Act 1997 in respect of the decision of the then Commissioner to discontinue the review pursuant to section 34(9)(a)(i) of the FOI Act?
  • Does a similar issue arise under the Freedom of Information Act 2014?
Conclusions of the Court

In its judgment, which was delivered in June 2017, the Supreme Court held that the correct interpretation of the relevant provision does not permit an appeal to the High Court under section 42(1) of the Freedom of Information Act 1997, from a discontinuance by the Commissioner under section 34(9)(a)(i) of the Act. The Court also held that the same conclusion follows in respect of the equivalent provisions of the 2014 Act.

The Court determined that a person aggrieved by such a decision of the Commissioner is not without recourse to legal remedy, as the judicial review procedure is available. It held that the fact that leave may have to be obtained and that the remedy is discretionary creates no injustice where a decision is made under section 34(9)(a) of the 1997 Act.

Re-use of public sector information

European Communities (Re-use of Public Sector Information) Regulations 2005

Under the PSI Regulations, an individual or a legal entity may make a request to a public sector body to release documents for re-use. The Regulations provide that, on receipt of a request in respect of a document held by it to which the PSI Regulations apply, a public sector body must allow the re-use of the document in accordance with the conditions and time limits provided for by the Regulations.

Where possible and appropriate, documents made available for re-use must be provided in open and machine-readable format.

Under Regulation 10 of the Regulations, decisions of public sector bodies can be appealed to my Office, which can review the following decisions:

  • A refusal to allow the re-use of a document
  • A refusal to grant the exclusive re-use of a document
  • A decision to impose a fee for the re-use of a document, which the requester believes does not comply with the Regulations
  • A decision to impose conditions on the re-use of a document

No appeals were made to my Office under the PSI Regulations in 2017.

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