Table of Contents
The Freedom of Information Act, 1997, as amended by the FOI (Amendment) Act, 2003 (FOI Act) gives people a right of access to records held by many public bodies including Government Departments, the Health Service Executive and Local Authorities. It also gives people the right to have personal information about them held by these 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 Access to Information on the Environment Regulations 2007 provides an additional means of access for people who want environmental information. The Regulations cover more organisations than the FOI Act. The Department of Environment, Heritage and Local Government has published a set of Guidance Notes which are available on the website of the Commissioner of Environmental Information at www.ocei.gov.ie.
It should be noted that these two functions are legally independent of one another, as indeed, are my respective roles of Information Commissioner and Commissioner for Environmental Information.
I am pleased to introduce my eighth Annual Report as Information Commissioner. My Report covers the period from 1 January 2010 to 31 December 2010.
We are all too familiar with the current economic difficulties facing the country and the pressures that it has brought to bear on the lives of so many. Against this backdrop, it is evident that FOI has an important role to play in ensuring that an informed public debate can be held on all issues of national importance. In my Report for 2009, I raised concern about the number of important public bodies, such as the National Treasury Management Agency (NTMA) and the National Asset Management Agency (NAMA), which do not come within the remit of the FOI Act and the increasing number of public bodies being removed from the remit of the Act. Much to my disappointment, no action has been taken in 2010 to extend the Act to these additional bodies and, indeed, inadvertently it has once more come to my attention that the core functions of yet another public body, the Medical Bureau of Road Safety, have been removed from my remit without notification or consultation and in very unacceptable circumstances (see chapter 2). In my view, it is more important than ever that all public bodies be encompassed by the FOI Act. In particular, I believe that members of the public, who ultimately shoulder the burden of this country’s debt as taxpayers, subject to the exceptions in the FOI Act, have a right to have all information at their disposal to analyse, in an informed manner, the decisions which have had, and will continue to have, such a profound effect on their lives. Therefore, I strongly advocate that all records held by bodies such as the NTMA, NAMA and the Central Bank of Ireland and not just records held by the Department of Finance concerning such important issues, be brought within the remit of the FOI Act.
As well as expressing my concern in the past over public bodies falling outside the remit of the FOI Act, I have also voiced my disapproval of the amendments made under the Freedom of Information (Amendment) Act, 2003, which had the effect of limiting the potential for public access to records relating to the thought process in and around Government actions. More recently, I have expressed my disagreement with the recommendation in the Report of the Independent Review Panel (also known as the “Wright Report”), entitled “Strengthening the Capacity of the Department of Finance”, which states:
“3.6.4. Under Ireland’s Freedom of Information law, policy advice tendered outside of Cabinet consideration is subject to public disclosure. A public airing of serious policy differences between a Minister for Finance and his advisors could have serious implications for financial markets. At a minimum, it would strain relationships between the Minister and his officials and this would be very damaging to the budgetary process”,
“3.6.6. (10) The Panel strongly supports the public release of substantially more economic analysis by the Department. However, policy advice to the Minister for Finance in the preparation of the Government’s Budget should not be subject to release under Freedom of Information for at least five years”.
As I outlined in an address which I gave on Executive Accountability and Parliamentary Democracy in the National University of Galway, on 26 March 2011:
“as presented in the Wright Report,these observations on the negative impact of FOI appear to reflect views from the Department of Finance. They reflect also, we are told, the views of Secretaries General of some other Government Departments”.
I made the point that it is difficult to accept that very senior civil servants, with years of experience of dealing with legislation, could misunderstand so fundamentally what is actually provided for in the FOI Act. I stated that I was “blue in the face from repeating, that FOI is not there to do harm and that the Act has more than enough exemptions to protect all of the important interests of the State”.
I would also point out that section 31 of the FOI Act protects specifically the financial and economic interests of the State, including records relating to: rates of exchange or the currency of the State, taxes, revenue, the regulation of banking and insurance, interest rates, foreign investment, property transactions. Section 31 is subject to a public interest balancing test which means that the exemption will not apply if the FOI decision maker finds that, on balance, the public interest is better served by releasing the record than by withholding it.
Furthermore section 20 of the FOI Act protects the deliberative process of a public body. This means that, in the budget context, records can be withheld until such time as the deliberative process is over and the budget has been decided. This exemption was strengthened in 2003 when a provision was added enabling a Secretary General to certify that a record “contains matter relating to the deliberative processes of a Department of State”. Where this kind of certificate is issued, the record must be refused and there is no possibility of release in the public interest.
In my aforementioned address, I conclude that “one can only wonder if the real concern of the Department of Finance is that, under the FOI Act, and except where a certificate under section 20 has been issued by the Secretary General, the ultimate decision on whether an exemption will apply is a decision outside of its control. Is it the case that the Department is unhappy with the prospect of an outside agency – my own Office as Information Commissioner, as it happens – making the decision on where the public interest lies? If this were the case, it does seem like an intention to evade accountability and, again if this were to be the case, it is the kind of unhelpful attitude that has no place in an Executive that takes accountability seriously”.
I welcome the commitments relating to freedom of information contained in the recent Programme for Government, Government for National Recovery 2011-2016, which states:
“We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions. We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered”,
“We will put in place a Whistleblowers Act to protect public servants that expose maladministration by Ministers or others, and restore Freedom of Information”.
I would urge that these commitments be implemented. These reforms would constitute important planks in the restoration of openness, transparency and confidence in public administration in Ireland.
In a time of ever-reducing resources in the public sector and evidence that the number of FOI requests is increasing, it is timely for public bodies to reflect on how they deal with FOI. In this regard, I call on public bodies to adopt a mindset of a presumption as provided in the FOI Act, that the information is to be released and of making more information publicly available, so as to save on ever decreasing resources of public bodies and at the same time engaging with FOI in the spirit in which it was introduced. In chapter 2, I draw attention to a number of instances in which the practices of public bodies were a cause of concern to me.
In Part II, I Report on my work as Environmental Commissioner during 2010. This role is legally separate from my role as Information Commissioner and, although there is no statutory requirement for me to do so, I have followed on from my practice of the last two years by Reporting on it with my Information Commissioner Annual Report.
Once again this year, it is interesting to reflect on some of the information which was brought into the public domain through FOI, which would otherwise have remained unknown. By way of illustration, I have spotlighted some of the FOI based headlines which appeared in published media Reports:
Irish Times, January 2010
Sunday Business Post, March 2010
Irish Independent, February 2010
Sunday Business Post, March 2010
Irish Times, May 2010
Sunday Business Post, July 2010
Irish Independent, August 2010
Some 15,249 requests were made to public bodies under the FOI Act in 2010. This reflects a continuation of the steady upward trend in FOI requests over the last few years. It represents an increase of 7% (959 cases) over the 2009 figure and a 20% (2,577 cases) increase over the 2008 figure. It is likely that the economic downturn has contributed to this increase.
The number of FOI requests on-hand by public bodies at end-December 2010 has risen by 15% over 2009, an increase from 2,140 cases to 2,466 cases. This backlog should be monitored and addressed by the public bodies concerned.
Sectoral breakdown of FOI requests to public bodies
In total, the Health Service Executive (HSE) received the largest number of FOI requests in 2010 with 5,404 (up 13% on 2009); 5,091 were made to government Departments and State bodies (up 8% on 2009); voluntary hospitals, mental health Services and related agencies received 2,737 (up 10% on 2009); other voluntary bodies 97; local authorities received 1,522 (down 8% on 2009); and third-level institutions received 398 (down 19% on 2009).
Top ten bodies who received most requests during 2010
|1||HSE West (2)||1,953||1,647||1,362|
|2||HSE South (1)||1,926||1,756||1,548|
|3||Dept. of Social Protection (6)||859||556||485|
|4||Dept. of Education and Skills (5)||796||569||457|
|5||HSE Dublin North East (4)||713||694||631|
|6||Dept. of Justice and Law Reform (3)||598||844||718|
|7||HSE Dublin Mid-Leinster (7)||573||427||453|
|8||Mercy Hospital Cork (8)||403||416||200|
|9||Dept. of Finance (9)||337||272||180|
|10||Mater Hospital (-)||327||238||219|
The table shows the top ten bodies subject to the most FOI requests during 2010 (the previous year’s position is shown in brackets), with comparators for these bodies for 2008 and 2009. The rise in overall requests received by the HSE is reflected in each of the individual HSE regions which feature in the top 10. A noticeable feature is a dramatic increase in the number of FOI requests received by the Department of Social Protection (a 54% increase in requests over 2009 and a 77% increase over 2008). I commented last year on the large increase in FOI requests received by the Department of Finance since 2007. With a further 24% increase this year, there has now been an increase of 426% from the 64 cases received by the Department of Finance in 2007. While I have no specific data on the reasons for these changes, I think it is reasonable to surmise that they are due to increased interest in accessing records relating to the financial crisis and the economic downturn. More detailed tables showing a breakdown of requests received in each sector are contained in chapter 4.
The proportion of requests from different types of requester is very similar to the previous year.
There has been an increase of 1,303 in requests for personal information which represents an increase of 14% on 2009, whereas there has been a small decrease in the number of non-personal and mixed cases. Overall in 2010, 70% of requests relate to access to personal information, 29% to non-personal information and 1% to mixed information.
Rates of appeal
In 2010, internal reviews against decisions of public bodies were sought in 595 cases. This represents 4% of the overall cases dealt with by public bodies. My Office accepted 220 cases for review in 2010, which amounts to 1.47% of the decisions made by public bodies.
The differences between sectors in the rates of release are largely similar to previous years, although there was an increase in release rates for the voluntary hospitals, mental health Services and related agencies to 76% (from 68% in 2009) and third- level institutions to 57% (from 46% in 2009). The HSE release rate remains at 71%, while the Civil Service remains the lowest sector at 41%. A detailed breakdown of the release rates in each sector is contained in chapter 4.
Where a requester is not satisfied with the decision of the public body on his/her FOI request, he/she may apply to my Office for a review of that decision. In most circumstances, this review will constitute the third analysis and decision in that case. The decision which follows my review is legally binding and can be appealed to the High Court, but only on a point of law.
It is interesting to note that the number of applications to my Office in 2010 has declined by 7% even though the overall number of FOI requests to public bodies increased by almost 7% in the same period.
It can be seen from the table above that every year a number applications to my Office are not accepted for review. This is mainly due to applications being invalid or withdrawn by the applicant at an early stage.
This year again, the vast majority of the 220 applications accepted by my Office concern applicants seeking access to records, having been refused access by the public body concerned. One application was made to my Office concerning fees imposed by a public body during 2010.
I would like to remind applicants of the provision in the FOI Act which allows them to apply to my Office for a review of a decision by a public body to impose a fee or on the level of fees sought by it. It could also be the case that the applicant could better define the scope of his/her request so as to reduce the level of fees. I do not know why so few applications for review concerning fees are made to my Office, but media coverage points up that it is an issue of concern to some applicants:
31 July 2010
“Defence forces demand over €8,000 for release of records”
16 September 2010
“HSE demands more than €72,000 for FOI request”
The table above illustrates that there was a significant increase, over 2009, in the percentage number of cases accepted by my Office in which the applicant sought non-personal information, even though the overall number of non-personal FOI requests to public bodies is down from 2009. It is interesting to note that while 70% of overall FOI requests concern access to personal information, only 20% of applications accepted by my Office in 2010 concern requests for personal information.
During 2010, I reviewed decisions of public bodies in 228 cases, compared with 239 in 2009 and 259 in 2008. The number of reviews of a more complex and time consuming nature has continued to increase year-on-year, particularly, the reviews concerning the release of records containing information of a non-personal nature. There were 192 cases on-hand in my Office at end-December 2010, compared to 200 at the end of 2009 and 193 at the end of 2008.
It is also worth noting that additional records were released in approximately 43% of the cases for which reviews were completed by my Office in 2010, compared with 30% in 2009. A detailed analysis of the cases which went to formal decision is available in chapter 3.
Age profile of cases closed by OIC
This table illustrates that 74% of cases which were closed in 2010, were closed within 1 year of being received in my Office. This represents a considerable improvement on the 50% closed within 1 year which was achieved in 2009 and is the result of specific initiatives aimed at improving case closure timescales. Also, the percentage number of cases closed within 4 months has risen to 33% from 30%. As regards older cases on-hand, it should be noted that all 30 cases, which are shown in the table below as being over three years old, relate to one individual applicant and date from 2006. The delay in completing these cases is connected to a case from that applicant, which my Office accepted on remittance from the High Court. I made a fresh decision on that case during 2010 which, as it was not appealed by the applicant, will allow my Office to progress the other 30 related cases remaining on hand. A total of 18 cases which were more than two years old were closed during 2010, leaving, aside from the cases involving the applicant referred to above, seven cases dating from 2008.
Age profile of cases on hand in OIC at end 2010
The above diagrams show a breakdown by public body of the cases which were accepted for review by my Office during 2010. Of the cases reviewed by my Office in 2010, 61 cases or 28% relate to the HSE, which is similar to 2009. There were increases, compared to 2009, in the number of applications to my Office concerning the Department of Justice and Law Reform, the Department of Agriculture, Fisheries and Food, the Department of Finance, and the Department of Education and Skills. The second diagram shows a breakdown of the 61 applications to my Office concerning the HSE. While overall the number of applications remains the same, there has been a modest increase in applications involving HSE Dublin North East, from 7 to 11 cases, over 2009.
A considerable number of cases referred to my Office for review are settled or withdrawn (54% in 2010). In 2010, settlements were achieved in 63 cases, or 28% of cases closed during the year, while in a further 61 cases, or 26%, the applicant withdrew his/her application.
The FOI Act provides that at any stage during a review, I may try to effect a settlement between the parties on the records to be released. In some cases, applicants may agree to narrow the focus of the review by agreeing to exclude records which will add little or no value to the information they seek. In others, it might be agreed that additional records outside the scope of the original request be released without the need for me to arrive at a formal decision in the case. I would encourage public bodies, in the course of dealing with FOI requests, to engage directly with applicants with a view to achieving settlements in those cases where a full granting of the request is unlikely.
22 November 2010
“Management consultant Ignatius Lynam has been paid more than €1,200 each day he has worked on the enquiry which is examining allegations against eight current FAS employees and six former staff members………. The records were released under freedom of information rules after the Office of the Information Commissioner ruled the content could be published in the public interest”.
03 December 2010
“More than €750,000 has been spent on security measures at the private homes and constituency offices of six politicians since 2006……………… The information was only released following the intervention of the Information Commissioner Emily O’Reilly, after the OPW refused the original FOI request and also rejected a subsequent internal appeal on security grounds.”
In most cases, withdrawals occur after lengthy communications between staff in my Office and the applicant. My experience of examining these cases shows that many applications are made to my Office because the public body has not provided sufficient detail on the reasons for its refusal to release the records. Once the decision and the provisions of the FOI Act are explained to the applicant, it is often the case that he/she accepts that the records should not be released and does not require a formal decision. In this regard, I would call on public bodies to ensure that adequate information is provided in the original and internal review decisions so as to allow an applicant to clearly see and understand the reasons for refusal.
The FOI Act imposes statutory time limits on public bodies for the various stages of an FOI request, specifically, a decision on a request should issue within four weeks and, in the event of an application for internal review, a decision following internal review should issue within three weeks. A breach of these time limits (whether by means of no decision or a late decision at internal review stage) means that the requester has the right to take it as a deemed refusal of access, and is entitled to apply to my Office for review of any such deemed refusal.
I consider deemed refusals to be particularly serious in that breaches of time limits directly affect the public’s right of access to records. I am concerned that the level of deemed refusals has continued to increase (from 17 in 2008, to 34 in 2009 and to 39 in 2010), particularly as public bodies are aware that I will highlight such breaches of the legislation in my Annual Report. The HSE was responsible for 56% of the breaches in 2010, while receiving 35% of FOI requests.
Deemed refusals 2010
The HSE North East and the HSE South had the highest incidences of deemed refusals with seven and six breaches respectively. It is also of concern that breaches occurred in respect of 21 public bodies in 2010, compared to 18 bodies in 2009. While no breaches of the legislation should occur, the reduction in HSE Mid-Leinster from seven to two is a step in the right direction.
In 2010, 622 enquiries were logged to my Office, consisting of 403 telephone calls, 175 e-mails, 38 letters and six personal callers. The majority of the enquiries were received from members of the public seeking advice and guidance on how to exercise their rights under the FOI Act. The main issues raised were: how to make an FOI request, whether a public body is within the remit of the FOI Act, advice on whether they could get access to the information which they were seeking through FOI, and advice on how to progress a review. While there has been a downward trend in enquiries since 2006, it is possible that this is due in no small par t to there being a greater awareness by the general public of FOI and their right to access information under FOI.
Up-front application fees for certain FOI requests, internal reviews and applications for review by my Office came into effect on 7 July 2003. Where a request for information other than the personal information of the requester is made, the fees payable are:
During 2010, my Office received 122 applications for review in which a fee was paid. The total amount received in application fees by my Office in 2010 was €15,800, of which €7,350 was refunded leaving a net amount received of €8,450.
The refunds totaling €7,350 were issued for the following reasons:
Once again, I must acknowledge the very high level of co-operation by public bodies in providing information in the form of submissions; records which are subject of review; statements of reasons for decisions etc. I value this level of co-operation.
There are specific provisions in the FOI Act concerning the production of records and information to my Office. These include:
In 2010, I served one notice under section 37 on a public body which had not co- operated with my Office following the normal issuing of correspondence. This notice was served on the HSE. However, while this Office should not have to rely on the issuing of such notices, it should be pointed out that this is not a sign of any systemic non-cooperation by the HSE, but rather it was one case in the 61 cases accepted for review by this Office in 2010.
There has always been a high level of co-operation by public bodies with reviews by my Office over the years. It is encouraging to see, in the table below, that the number of instances in which I have had to use my formal powers under section 37 has fallen over the last few years.
I did not find it necessary to issue any section 35 notices in 2010.
Statutory certificates issued by Ministers/Secretaries General
The FOI (Amendment) Act of 2003 introduced provisions whereby certain records could be removed from the scope of the FOI Act by means of certification by a Minister or by a Secretary General of a Department. The relevant provisions are contained in sections 19, 20 and 25 of the FOI Act which also provide that a Report specifying the number of such certificates issued must be forwarded to my Office.
Section 19 is a mandatory exemption which provides protection for records relating to the Government or Cabinet. The definition of Government was amended by the 2003 Act to include a committee of officials appointed by the Government to Report directly to it and certified as such by the written certification of the Secretary General to the Government.
I have been informed by the Secretary General to the Government that no section 19 certificates were issued by him in 2010.
Section 20 of the FOI Act is a discretionary exemption which may protect certain records relating to the deliberative process of a public body. In the case of a Department of State, the Secretary General may issue written certification to the effect that a particular record contains matter relating to the deliberative process of that Department. Where such a certificate is issued, the record specified cannot be released under the FOI Act. In effect, the exemption becomes mandatory. Any such certificate is revoked in due course by the issue of written certification by the Secretary General.
Having consulted with each Secretary General, my Office has been informed that no new section 20 certificates were issued during 2010.
I have also been informed that the certificate under section 20 issued by the Secretary General of the then Department of Justice, Equality and Law Reform on 11 August 2006 and referred to in previous Reports has not been revoked in line with the provisions of section 20(1A)(b). Therefore, it remains in force. A copy of the notification is attached at Appendix I.
Where a Minister of the Government is satisfied that a record is an exempt record either by virtue of section 23 (law enforcement and public safety) or section 24 (security, defence and international relations) and the record is of sufficient sensitivity or seriousness to justify doing so, that Minister, by issuing a certificate under section 25(1), may declare the record to be exempt from the application of the FOI Act. Each year, the Minister(s) in question must provide my Office with a Report on the number of certificates issued and the provisions of section 23 or section 24 of the FOI Act which applied to the exempt record(s). I must append a copy of any such Report to my Annual Report for the year in question.
Having consulted with each Secretary General, my Office has been informed that four new certificates were issued in 2010, three on 21 July 2010 by the then Minister for Foreign Affairs and a fourth on 13 March 2010 by the then Minister for Justice, Equality and Law Reform (“the Minister”). Two certificates were renewed by the Minister on 19 February and 13 March 2010, respectively, for a period of two years and a further three certificates, referred to in my 2009 Annual Report, remain in force. This means that a total of six section 25 certificates were in force concerning the Department of Justice and Law Reform at 31 December 2010. A copy of the notifications from the Secretaries General are attached at Appendix I to this Report. The certificates issued by the then Minister for Foreign Affairs will fall for review under section 25(7) of the FOI Act in 2011.
I was notified by letter dated 12 January 2011 that, pursuant to section 25(7) of the FOI Act, the then Taoiseach, the then Minister for Finance and the then Minister for Enterprise,Trade and Innovation, having reviewed the nine certificates that were in operation for the period ended November 2010, were satisfied that it was not necessary to request the revocation of any of the nine certificates in question. I attach a copy of the notification at Appendix II to this Report.
No High Court judgments were delivered in 2010 in respect of decisions of my Office.
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. Following the amendment of the FOI Act in 2003, the decision of the High Court can be appealed to the Supreme Court.
No relevant High Court judgments were delivered in 2010.
The Act provides for a review of section 32 of the FOI Act every five years. Such a review was due to be under taken in 2009 but has still not been carried out.
Section 32 of the FOI Act obliges a public body within the First Schedule to refuse access to a requested record if disclosure of the record is prohibited by a provision of any enactment in statute. The only circumstance in which that obligation of secrecy is lifted is where the provision in question is listed in the Third Schedule to the FOI Act (enactments excluded from application of section 32). It is a very important provision because it subordinates the access provisions of the FOI Act to all non-disclosure provisions in statute except for those provisions which are contained in the Third Schedule to the FOI Act.
Section 32 includes a provision where its application is reviewed at five year intervals. That review is initiated with Reports to the Joint Oireachtas Committee on Finance and the Public Service from individual Ministers on the various non-disclosure provisions of statutes within the scope of their Departments together with their reasoned views on whether any of the non-disclosure provisions should be amended, repealed or continued and whether they should be included in the Third Schedule. The Reports are laid before both Houses of the Oireachtas and copied to me as Information Commissioner. I provide to the Joint Committee, either on my own volition or if asked by it, my opinion and conclusions in relation to the matter.
The first such review was carried out in 1999 and the second such review took place in 2004. I commented in my previous Annual Report on the unsatisfactory nature of the 2004 review where the Committee voted on party political lines to support the relevant Minister in each case on which I disagreed with those Ministers’ recommendations to retain existing non-disclosure provisions.
The third such review should have been initiated in 2009, in order to meet the timescales provided for in section 32(6) of the FOI Act. I drew the attention of the Joint Committee to the matter through its then Chairman and to the then Minister for Finance. I am very disappointed to report that no progress was achieved during 2010 and, at the time of the dissolution of the Dáil, four of the fifteen Ministers of the then Government had not provided their initiating reports to the Joint Committee as they were required to do in 2009, in accordance with the terms of section 32(3) of the FOI Act.
Given the importance of FOI, I am disappointed that the Joint Committee authorised by both Houses of the Oireachtas to take charge of the review process has failed to do so. I believe that it is important to conduct a review of section 32 without further delay.
I appreciate that collation of statistics is a time consuming task for public bodies, and I acknowledge the continuing efforts made by them to produce accurate statistics for this Report. However, there continues to be a difficulty with obtaining the statistics on a timely basis from some of the public bodies concerned. This issue has been raised with the appropriate authorities.
I would like to thank my staff and colleagues in the Office for their support during 2010. In particular, I wish to thank the Director General, Pat Whelan and the Senior Investigators, Sean Garvey and Elizabeth Dolan for their contribution and also Ciarán O’Donohoe, Brenda Lynch, Phyllis Flynn, the staff of my Office and the staff of the Communications and IT Units for their help in compiling this Report.
The staffing complement of my Office remained unchanged in 2010.