Over the past year a number of issues arose in relation to the operation of the Freedom of Information Act to which I would like to draw attention. Some of the more significant issues are discussed in this chapter as follows:
Regulations under section 28(6) of the FOI Act
In my Annual Report for 2006, I raised the issue of difficulties in the 1999 Regulations under section 28(6) as drafted, which provide for a potential access to deceased persons' records. As detailed in that Report, the Regulations as drafted resulted in my being left in the position of having to find that the Regulations provided that the next of kin of deceased persons would get access to the records of those persons regardless of any other factors, including any opinion on the matter expressed by the deceased person while living. At a conference on FOI (“Freedom of Information: A 2008 Update”, TCD, 8th March 2008), the Department of Finance gave a commitment that the Regulations would be revised by the end of 2008. While the timeframe committed to by the Department was not met, I am happy to say that revised Regulations were finally introduced on 23 September 2009. As a result of the Freedom of Information Act, 1997 (section 28(6)) Regulations, 2009, S. I. No 387 of 2009, decision makers can now take account of factors other than the relationship between the applicant and the person to whom the requested records relate when making decisions on deceased persons' records.
The issue of FOI access to records of expenses of TDs and Senators was dealt with by my predecessor in Case 99168 from 1999. In that case, my predecessor found that the expenses records should be released in the public interest, and in doing so, established FOI case law on the matter. Since release of the travel expenses in FÁS, following an FOI request in 2008, many media stories based on records sourced through FOI requests appeared in 2009 commenting on expenses incurred by various public bodies. I welcome the development where details of expenses are generally released as a matter of course in reply to FOI requests without the need for the case to be referred to my Office for review. An exception to this is the RTÉ expenses case considered in chapter 1. In that case, despite repeated warnings that they were necessary for the review to proceed, relevant records were not provided to my Office. This resulted in my officials finding it necessary to issue a formal notification under section 37 of the FOI Act requiring production of the records, which were eventually provided.
Public Bodies falling outside the FOI Act
I have placed on the public record on a number of occasions my concerns regarding public bodies or functions of public bodies being removed from the scope of the Freedom of Information (FOI) Act without me or my Office being informed of such removal. This is a fundamental issue of accountability and I am concerned that it is happening indirectly rather than by way of publicly stated policy.
Earlier this year, in an address to a conference on goverence hosted by the Institute of Public Administration & Chartered Institute of Public Finance and Accounting (text available on oic.gov.ie), I highlighted a number of key public bodies remaining outside the scope of the FOI Act, among them An Garda Siochána, the Vocational Educational Committees, the National Treasury Management Agency and the newly established National Assets Management Agency.
I also highlighted the practice in recent years of removing public bodies or functions of public bodies that had been under FOI from the scope of the FOI Acts, including the enforcement functions of the Health and Safety Authority, the road safety functions now carried out by the Road Safety Authority, the functions of the Land Registry and the Registry of Deeds now performed by the Property Registration Authority, and the proposed removal of the enforcement function of the National Employment Rights Authority.
I am very concerned about these developments. I intend to keep this under review and continue to place on record my views about these and any other bodies falling outside of the FOI Act.
Managing expectations of sections 17 and 18
As well as providing for a public right of access to records held by public bodies, the FOI Act also obliges public bodies to amend personal information that is incomplete, incorrect, or misleading (section 17), and to provide reasons for acts affecting a person, including a decision (section 18). This has understandably led requesters to believe that public bodies are generally obliged to explain their decisions under section 18 and, where relevant, to amend personal information upon request in all circumstances. However, just as the exemption provisions of the FOI Act restrict the right of access to records, so too does the FOI Act restrict the circumstances in which public bodies are, obliged to amend personal information or to provide a statement of reasons. I set out below my views on the limitations of sections 17 and 18.
Section 17
In many cases that come before my Office, the applicant seeks to challenge a public body’s refusal to amend a view or opinion with which the applicant disagrees. It is generally accepted that the right of amendment of personal information includes the right of amendment of views or opinions of another person about the individual concerned that are shown to be incomplete, incorrect, or misleading (Case 98158). However, it is also well settled that section 17 puts the onus on the applicant to prove that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading; the onus is not on the public body to demonstrate the completeness, correctness, or accuracy of the information.
Consequently, in the absence of sufficient evidence, I am not in a position to direct the amendment of a record simply because the person to whom that record relates strongly maintains that the information concerned is incomplete, incorrect, or misleading. It is also the case that section 17, in common with the other provisions of the FOI Act, does not authorise me, as Information Commissioner, to adjudicate on how public bodies carry out their functions generally. This means that, for example, section 17 does not permit me to substitute the applicant’s opinion on a matter (such as an employee reference or a job performance review) for that of the author of the record, the amendment of which has been requested. Moreover, in a recent review involving a university student, I found that I did not have the authority under section 17 to consider challenges to the academic assessment procedures of universities and other third level institutions notwithstanding evidence to suggest that the applicant’s recheck and appeal processes relating to his examination script had been handled in an unusual manner (see Cases 080002 and 080003).
Section 18
The relevant limitations on section 18 are two-fold: (1) an applicant’s eligibility for a statement in the first instance, and (2) the adequacy of the statement provided where eligibility has been established.
In order for a requester to be eligible for a statement of reasons, s/he must have a “material interest” in the matter in relation to which a statement of reasons was sought. Section 18(5) provides that, in order for a requester to have such a “material interest” in an issue, the decision in question must not apply to “a class of persons of significant size” of which the requester is a member as well as to him/her individually. Therefore, if a public body can demonstrate that its decision(s) for which reasons were requested applied to “a class of persons of significant size”, then the requester does not have a material interest in the matter and the public body is not obliged to provide a statement of reasons under section 18. I describe the relevance of this issue in particular circumstances in chapter 3 (see Cases 090131, 090132 and 080258).
Once a requester has established that they have a material interest in the matter, the adequacy of any statement of reasons provided to them then becomes relevant. In this regard, I have found that a public body is not required to provide a statement of reasons in relation to each and every action it may have taken in reaching its decision on an issue, rather it is required to provide a statement as to why it acted as it did in taking the decision that it did (see Case 031099). I have also found that section 18, while requiring public bodies to explain decisions, does not provide an avenue of appeal of such decisions such as a review of marks awarded or interview board conclusions.
I stress again that it is not within my remit as Information Commissioner to adjudicate on how public bodies carry out their functions generally. Section 17 provides no exception to this rule nor does my remit extend, under section 18, to examining the correctness or otherwise of any particular act for which reasons are sought.
Under the FOI Act a public body is obliged to engage with my Office in carrying out reviews. The FOI Act also provides that my decisions are legally binding, so, if there is no High Court appeal, the public body is legally obliged to implement my decision. The following examples of these and other issues are a cause of concern to me.
Failure to Implement Decision
A requester sought records on procurement of consulting services from Donegal County Council. The Council did not release the records after the 8 week High Court appeal period had passed. My Office contacted the Council which then released some of the records but it required further intervention by my Office to ensure the Council fully implemented my decision by releasing all records to the applicant. Applicants for review have a legitimate expectation that if I find in their favour, the relevant records will be released in accordance with the statutory requirements and I am concerned that this did not happen in this instance.
Records “inadvertently omitted”
The Sunday Times requested access, from Dublin City Council, to a “concession contract” and related records concerning the provision of outdoor advertising and public amenity services in Dublin by JC Decaux. At a very late stage, the Council forwarded additional records to my Office which were within the scope of the review. The records comprised correspondence between the Council and JC Decaux and there had been no previous indication from either party that these records were held. When asked for an explanation the Council said the documents were “inadvertently omitted” due to an oversight. This decision is discussed in more detail in Chapter 3.
Improper Decisions
A number of the exemption provisions in the FOI Act are subject to a public interest balancing test. This means that a decision to refuse access to a record is not justified unless the public body can demonstrate that the public interest would not be better served by granting than by refusing to grant access to the record concerned. My Office dealt with several cases in 2009 in which public bodies did not include any reference to the public interest test in its decision making process. As a sample please see Cases 080025, 080232, 080240 and 090202. These decisions cannot be regarded as having been properly taken in accordance with the FOI Act. This omission is a regular occurrence in decisions by public bodies and should not occur.
Identification of records
Following the narrowing of the scope of a request by an applicant, the Department of Enterprise, Trade and Employment agreed that the records the subject of this review would be sourced from its computer system. However, during the course of the review, it became clear that not all relevant information was captured on the system and some information in reports generated from that system were inaccurate. When this came to light the Department advised my Office that the computer system is an old one which is being replaced and that there were “limitations as to the ability of the system to manipulate and extract data specific to the request”. Given the inaccuracies identified, examination of the source files was required, my Office had to make six separate requests to the Department before all the relevant records were provided. The issue of the accuracy of the records was first noticed in October 2008, and it took protracted correspondence with the Department until May 2009 before the issue was resolved. This delayed my Office’s processing of the review by seven months, Case 080099.
Misleading Information
In a case which was ultimately settled, the University of Limerick provided what appeared to be, at best, misleading information to my Office during the course of the review. The applicant had sought access to copies of all documents relating to his request for a recheck of his Revenue Law examination script and the processing of his appeal of the recheck result.
The University initially made detailed submissions to this Office in which it purported to describe the manner in which examination recheck requests and appeals are normally handled under its administrative procedures. It identified four specified faculty members as being involved in the recheck and appeal of the applicant's Revenue Law examination script, and also stated: "All relevant personnel confirmed that no further records had been generated other than what was made available to the requester.......While [the applicant] notes that it is clear to him that documents must have been created by the Internal and External Examiners prior to 16 October 2007, this is simply not the case." Apparently for the avoidance of any doubt, the University added: "In this particular case, the University wishes to state for the record that a number of records requested by [the applicant] simply never existed due to the administrative processes in place, outlined clearly in this document, and confirmed by the Decision Maker in her consultations and discussions with relevant faculty and staff members in the department."
The applicant, however, also made detailed submissions which provided a very different account of the handling of his recheck request and appeal in relation to his examination script than that described by the University. Eventually, the University confirmed that a fifth faculty member, a senior lecturer referred to as Mr. Y, had in fact been involved in the recheck process in his capacity as the coordinator for the 4th year BA in Applied Taxation. The University's belated acknowledgement of Mr. Y's involvement led to the discovery of an annotated grading scheme that had been created (and at some point amended) by the Internal Examiner during the recheck process, notwithstanding the fact that the Internal Examiner was supposedly one of the faculty members who had previously confirmed that "no further records had been generated". Two other highly significant records were also later discovered: an email from the External Examiner to the Course Director dated 3 September 2007, which was virtually identical in content to the External Examiner's report on applicant's appeal dated 16 October 2007; and an email from a PricewaterhouseCoopers expert to the External Examiner, which was also dated 3 September 2007 and was also virtually identical in content to the report dated 16 October 2007.
It is difficult to reconcile the discovery of the annotated grading scheme and the emails dated 3 September 2007 with the statement in the University's initial submissions that further records "simply never existed due to the administrative processes in place, outlined clearly in this document, and confirmed by the Decision Maker in her consultations and discussions with relevant faculty and staff members in the department". It could reasonably be inferred from the nature of the discrepancies between the University's initial submissions and the later discoveries that the University initially provided what may be described as, at best, misleading information to this Office regarding the adequacy of its search for relevant records. I consider such conduct to be unusual for a public body and I have made my views on how this case was handled known to the University in decisions 080002 and 080003 on the amendment of marks awarded to the applicant. I generally trust public bodies to act in good faith in their dealings with my Office, and I am concerned that this trust was misplaced in this case.
A requester was refused access to his son’s records by the HSE as it found, having consulted with various third parties involved in the care of the child, that the granting of the request would not be in the best interests of his son and that the public interest in protecting the child’s privacy rights outweighed the public interest in the requester having access to the records.
The requesters son had reached eighteen years of age before this review was considered by my Office. Given these changes in circumstances, my staff considered it prudent to seek to establish whether the applicant’s son understood what was at issue and whether he wished to consent to the release of the records to his father at this time. Therefore, members of my staff met with the applicant’s son and explained to him the background to the application and the purpose of this review. Having examined the records at issue, he indicated, verbally and in writing, that he consented to his father being granted access to his personal information as it appeared in the records. I should say here that my Office generally does not contact or meet with affected persons in relation to consent issues arising out of requests for access to personal information; the procedures followed were deemed necessary due to the particular circumstances of this case and the HSE was made aware of them.
There is no provision in the FOI Act for me to disregard the consent obtained nor to consider whether release of these records were in the best interests of a third party who is an adult and who has consented to the granting of the applicant’s request. However, I consider that I am entitled to take steps necessary, where appropriate, to satisfy myself that the consent is informed and voluntary. I found that consent in writing dis-applies the exemption in section 28(1) of the Act by virtue of section 28(2)(b).
During 2009, the High Court delivered judgements in three appeals taken against decisions of my Office in 2009. A fourth appeal was rejected by the Courts as proper procedures were not followed. My decisions were upheld in two cases and the remaining case was remitted to my Office by the High Court and is currently under review. In the case involving records held by the Rotunda Hospital, the Hospital appealed to the Supreme Court and, at the time of writing, a hearing date is awaited.
The full text of the judgments is available on www.oic.gov.ie. What follows is a summary of the main points in these cases.
1. The Governors and the Guardians of the Hospital for the Relief of Poor Lying - In Women, Dublin and the Information Commissioner [2009] IEHC 315 Judgment of Mr Justice Patrick McCarthy, 2 July 2009
Background:
A woman sought access under FOI on behalf of her father, to a record of her grandmother’s age when she gave birth to him in 1922. The Hospital refused access to the records which it held - an extract from the Labour Ward Book and Porter’s Lodge Book and the woman applied to my Office for a review of that decision. My Office’s decision (Case Number. 050148) to annul the Hospital’s decision and to direct the release of the records was issued on 14 December 2007.
Issue:
The Hospital appealed my decision on a number of points of law. Although it had not made this point in the course of the review, it claimed that the FOI Act did not apply at all since the records came into existence prior to its commencement. It submitted that my Office had erroneously held that the prohibition on release to persons other than the applicant of personal information under section 28(1) of the FOI Act did not apply in the circumstances of this case. The Hospital contended that the age of the applicant’s grandmother was information given to it in confidence.
Court’s Finding:
Mr Justice McCarthy upheld the finding that the age of a person is personal information of a kind that is available to the public via the General Registration Office (GRO) and by virtue of section 28(2)(c) of the FOI Act, the provisions of section 28(1) do not apply to it. He found that the test as regards availability to the public of information of the same kind as in the records is an objective one and should be assessed by reference to whether the information is available in principle.
Although the Court held that the Hospital was entitled to argue a new issue of law not put before me in a review, it did not accept the Hospital’s contention that the FOI Act did not apply to the records as it found that they contained personal information relating to the applicant. It was satisfied on the balance of probabilities that the applicant’s father was the son of the woman whose age is contained in the Hospital’s records.
Mr Justice McCarthy found that, because the age is publicly available information, it cannot be concerned with private or secret maters and so, cannot have the necessary quality of confidence required for the operation of the confidentiality exemption in section 26 of the Act.
It was also held , as a probability, that the subject of the records was deceased and that the question of the next of kin’s rights to the information had been addressed in the decision.
The issue of the public interest was discussed by McCarthy J. in his decision and he made observations on this which, he said, may be of assistance to the parties in other similar cases which arise. He dismissed the Hospital’s appeal.
The Hospital has appealed to the Supreme Court against the findings and through the legal mechanism of a Notice to Vary I have also raised certain other questions for determination in that Appeal.
2. Michael Kruse and the Information Commissioner [2009] IEHC 286 Judgment of Mr Garrett Sheehan 24 June 2009
Background:
Mr Kruse, a medical student, sought access under FOI to records, including computer scripts, relating to multiple choice examinations which he sat in 2006. University College Dublin (UCD) refused access to the records. My Office’s decision (Case 070155) to affirm UCD’s decision was issued on 13 December 2007.
Issue:
Mr Kruse contended in his appeal that my Office had erred in finding that section 21(1) of the FOI Act applied to exempt the records on the basis that their release would prejudice the effectiveness of the examinations conducted by UCD. He further argued that there was no evidence to support the findings that the public interest in favour of refusing his request outweighed those in favour of release of the records.
Court’s Finding:
Mr Justice Sheehan found that my Office had sufficient evidence to conclude that UCD had identified a potential harm to its functions i.e. that release of the questions from a finite pool of questions which would be used again in further assessments would increase the risk of candidates gaining prior access to correct answers and thus undermine UCD’s ability to assess the knowledge of the candidates. He also found that my Office had sufficient evidence to enable it to be satisfied as to the reasonableness of UCD’s expectation of that harm occurring and that there was ample evidence to conclude that, on balance, the public interest favoured not releasing the records. The Court dismissed the appeal.
3. F.P. and the Information Commissioner [2009] IEHC 574 Judgment of Ms Justice Maureen H. Clark 13 July 2009
Background:
F.P. sought access under FOI to records pertaining to allegations of child sexual abuse made against him, in two requests made to the former Eastern Health Board (the Board) and a further request to Our Lady’s Hospital for Sick Children (the Hospital). Both bodies released some records to him and withheld the remainder, largely on the grounds that they contained information given in confidence (section 26), and personal information of third parties (section 28). My Office’s decision on Cases 000478 & 000549 (which concerned the requests made to the Board) issued on 17 November 2005, while that on Case Number 0000479 (which concerned the request to the Hospital) issued on 28 November 2005. Both affirmed the refusal of access to records relating to the applicant and the child the alleged subject of abuse. As it was not practicable to separate the information relating to the applicant from that of the child, the grounds for refusal relied on section 28 of the FOI Act - that release of the records would have disclosed the personal information of both the applicant and the child and that, on balance, the public interest in safeguarding the child’s privacy outweighed the public interest in granting the request.
Issue:
F.P.’s appeal contended that I had erred in law in the manner in which I directed myself as to the application of the public interest test set out in section 28 of the FOI Act, and, in particular, in finding that the report made to the Board was not (i) an allegation and further (ii) was not a false or malicious allegation.
Court’s Finding:
Ms Justice Harding Clark found that my decisions were erroneous on a point of law insofar as I found that a notice party to the appeal did not make any allegation and insofar as I found that there was an absence of evidence of malice in the making of that allegation, and that I thus misdirected myself as to the application of the public interest test as set out in section 28(5)(a) of the FOI Act. In order to better understand the complexity of the issues involved in the context of the review and of Ms Justice Harding Clark’s judgment, readers should refer to the decisions and judgment which are available on my website.
As this case was remitted by the High Court to my Office for fresh consideration and is still under review, it would not be appropriate for me to comment further on the issues in this case.