Office of the Information Commissioner

Chapter 2: Issues Arising

In this chapter, I outline some of the issues which arose in relation to the operation of the FOI Act during 2010. The particular issues I wish to highlight are as follows:

Public bodies not covered by the FOI Act

Many key bodies remain outside the scrutiny of the Act, such as An Garda Síochána, the National Treasury Management Agency (NTMA) and the National Assets Management Agency (NAMA). I have voiced my concerns on many occasions in the past about this, including in my Annual Report for 2009.

Despite making many calls over the last number of years, it is disappointing to note that since 2006, no additional public bodies have been brought within the scope of the FOI Act. Accordingly, the public bodies listed below, among others, remain outside FOI:

  • An Garda Síochána, the Garda Ombudsman Commission, the Office of the Refugee Applications Commissioner, the Office of the Refugee Appeals Tribunal, and the Judicial Appointments advisory Board,
  • The Central Bank of Ireland, Financial Services Authority of Ireland, NTMA, NAMA, the National Pension Reserve Fund Commission, the State Claims Agency, and
  • The 33 Vocational Education Committees, the State Examinations Commission, the Residential Institutions Redress Board and the Central Applications Office.

I have long made the point that public bodies should not be outside the scope of the FOI Act, but rather they could seek to rely on the relevant exemption provisions contained within the FOI Act to refuse access to certain records which they consider should not be released.

Removal of public bodies from the remit of the FOI Act

I have expressed my disappointment numerous times in the past, including in my Annual Report for 2009, at the removal of public bodies that had been under FOI from the scope of the Act, without my Office being informed of such removal. Much to my disappointment this practice has continued.

Public bodies or the functions of public bodies that had been under FOI and were removed from the scope of the FOI Act, include:

  • the enforcement functions of the Health and Safety Authority,
  • the road safety functions now carried out by the Road Safety Authority, and
  • the functions of the Land Registry and Registry of Deeds, now performed by the Property Registration Authority.

The Medical Bureau for Road Safety (MBRS) was specifically prescribed as a body coming within the remit of the FOI Act under regulations made in 2006. However, legislation was introduced by the then Minister for Transport and enacted by the Oireachtas on 20 July 2010, which restricted the application of the FOI Act to records relating to the general administration of the MBRS. Thus, records concerning the main functions of the MBRS are now exempt from the application of the FOI Act and such records can no longer be considered for release under the FOI Act. The change came shortly after the MBRS had argued, in the course of reviews conducted by my Office (see chapter 3), that its functions under the Road Traffic Acts should not be under the remit of FOI. I view this as a retrograde step in terms of openness and transparency.

Purpose of the FOI Act – create a culture of openness

The low level of applications for review to my Office would appear to signify that the general public is largely satisfied that public bodies are dealing with requests for access to records in an open and transparent manner. However, in this section, I have focused attention on two cases in which this approach was not followed.

The FOI Act has been in force in Ireland for over 12 years now, yet in some decisions, public bodies still do not seem to grasp the extent to which it confers on members of the public a statutory right of access to records held by those public bodies falling within its remit. The Courts, however, have acknowledged the profound change in public administration brought about by the FOI Act with respect to openness and accountability. For example, Mr. Justice McKechnie, in his judgment in Deely v. The Information Commissioner [2001] IEHC 91 (text of judgment available at www.oic.gov.ie), had this to say about the FOI Act:

[The Act’s] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State

The clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject only to necessary restrictions…..

This view of the extensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, in Barney Sheedy v. The Information Commissioner [2005] IESC 35 (text of judgment also available at www.oic.gov.ie), where Mr. Justice Fennelly commented:

The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the culture of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen”.

I think it is fair to acknowledge the historically low level of cases referred to my Office for review. However, I Report here on two cases where public bodies sought to withhold records in a manner which I would regard as not being in keeping with the “culture of openness” which the FOI Act seeks to promote.

Senator Marc MacSharry and HSE West – case no. 090192

In this case, the arguments of the Health Service Executive (HSE) and the Health Information and Quality Authority (HIQA) amounted in effect to a class-based claim for exemption in relation to interim reports involving discussions with public sector staff, regardless of the particular contents or the timing of release of such reports.

The request in this case, which was made to the HSE, related to an interim Report which derived from the quality review programme that was commenced by HIQA in 2008, in line with the National Cancer Control Programme. The focus of the interim Report at issue in this case was the readiness of the symptomatic breast disease Services at University College Hospital Galway (UCHG), one of eight designated specialist centres for cancer care in Ireland, in meeting the National Quality Assurance Standards for Symptomatic Breast Disease Standards. The quality review programme was due to be completed by December 2009, by which time all of the designated centres were expected to be fully operational and compliant with the standards. Notwithstanding the publication of HIQA’s final Report during the course of my Office’s review on the matter, the HSE and HIQA argued that a culture of non-cooperation or reduced cooperation among HSE employees could result from the release of the interim Report, which in turn would require HIQA to adopt a more confrontational, adversarial approach to the conduct of similar inspections and reviews in the future. However, neither the HSE nor HIQA identified the particular parts of the interim Report which could result in what HIQA contended was “a real and definite risk” of inhibiting cooperation in the future. In relation to the public interest, HIQA argued that, in light of the information made available in the final Report, full release of the interim Report would not add significantly to the public’s understanding of its acts or decisions; thus, little weight should be attached to the public interest in granting the request.

Some records are exempt from release under the FOI Act if they fall into a certain class or category (e.g. section 19 provides for the exemption of Government records). In these cases, all that is required for the record to be exempt is that it falls into a particular category. However, in other sections the onus is on the public body to show that their disclosure would be likely to result in a particular harm (such as sections 20 and 21 which were relied upon in this case) for the records to be exempt. The HSE was arguing in effect that interim Reports involving discussion with staff, as a class, should be exempt regardless of whether their release would give rise to any particular harm, the particular contents of the Report or the timing of its release. I found that the approach of seeking a class-based claim for exemption in relation to such interim Reports was untenable under section 21(1) of the FOI Act and that neither the HSE nor HIQA had met its burden of showing the claims for exemption applied in this case were justified.

In commenting on the public interest in the decision, I considered that there should be maximum openness and transparency with respect to how the designated specialist centres perform against national standards and that release of the interim Report in full would simply provide the details regarding the gaps that were found on the day of the validation visit in September 2008. I noted that the interim Report could be read in conjunction with the final Report to give a more complete picture of the development and improvement in symptomatic breast disease Services at UCHG under the National Cancer Control Programme. I also noted that its release under FOI would allow members of the public to ask informed questions regarding the progress that was made by UCHG during the quality review programme. I concluded that the public interest would be better served by granting than by refusing access to this information.

Ms. X and the Health Service Executive (HSE) – case no. 090154

In this case, I found that the applicant should have access to draft Reports of the investigations into her husband’s death which had been refused by the Health Service Executive.

This case involved a request for access to draft Reports of the investigations into the death of the applicant’s husband following a surgical procedure at Kerry General Hospital. In both the original and internal review decisions, the HSE seemed to make class-based exemption claims in relation to any draft Report, regardless of whether their release would give rise to any particular harm or irrespective of the nature of the information contained in such Reports. I saw no inconsistencies between the draft Reports on the one hand and the final Report on the other which could give rise to any risk of misunderstanding, nor, in my view, did the contents of the Reports support the view that any individual staff member was shown in a more unfavourable light in the draft Reports than what was revealed by a perusal of the final Report. I noted the amendments identified by the hospital appeared to be merely in the nature of stylistic or editorial changes that were made in incorporating the draft Reports into the final Report.

In my decision, I considered that any request for a draft investigative Report must be dealt with on its merits in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. I found that the HSE’s claims for exemption under section 21(1)(a) and (b) of the FOI Act were unfounded. I noted in the decision that medical practitioners were generally expected to conduct themselves in a professional and cooperative manner in relation to investigations. I also did not accept the claim by the HSE that the routine methods of investigation used could reasonably be expected to be prejudiced by the release of a draft Report following the conclusion of the investigation. In terms of the public interest, I considered that there was a strong public interest in ensuring that the applicant, as the deceased patient’s next of kin, was fully informed of the care and treatment he received prior to his death. I also considered that there was a strong public interest in ensuring that the applicant was fully informed of the processes as well as the outcome of the investigations into the circumstances of her husband’s death.

Scarce resources could be saved by adopting a culture of publication and release of records

In the current climate, with resource pressures on public bodies, I would urge them to adopt a mindset, when dealing with FOI requests, of making more information publicly available, so as to reduce the resources required by them in the processing of FOI requests.

Against the current economic background and the resulting reduction in public sector numbers, public bodies face unprecedented challenges in terms of demands on their resources and their ability to maintain a high quality service to the public. It is evident from the statistics in chapter 1 that spending cuts result in the public making greater use of FOI. I would encourage public bodies to develop practices of making more information publicly available through their websites, so as to reduce the resources required in processing FOI requests. I would also urge them to consciously adopt a mindset, when dealing with FOI requests, which presumes that the request will be granted, subject only to the necessary restrictions. This would avoid the need for the public body to expend increasingly scarce resources by engaging a second officer in an internal appeals process and considerable additional resources in dealing with cases which are subsequently referred to my Office for review.

While, overall I am satisfied that there is a high level of cooperation by public bodies with requests for access to records under FOI, there are still some practices which are a cause for concern and to which I draw attention below.

I highlight two cases, which were finalised by my Office during the year, in which there were unacceptable delays by the public bodies in the release of the records.

In both cases, the applicants eventually were granted access to a significant number of records. The cases highlight situations in which records could have been released in a more timely fashion with the resultant saving of both time and resources of the public body in question and my Office, and providing a better service to the customer in the process.

In one such case (case number 100062), the Sunday Times newspaper sought certain details, from the Department of Environment, Heritage and Local Government (the Department), on the pay and expenses of the lawyers working for the Mahon Tribunal (the Tribunal) and records relating to when the Tribunal might finish its work. Efforts were made by my staff to bring about a settlement between the par ties. Both the applicant and the Tribunal were willing to settle the case based on the proposals from my Office. However, the Department continued to dispute the release of par t of one of the records, despite the Tribunal’s confirmation that it had no objection to its release. While I fully accept a public body’s right to require a formal decision on any application affecting it, in my view the Department’s insistence on a formal decision in this case, where the Tribunal had no objection to release of the relevant record, was unnecessary and amounted to a wasteful use of the resources of my Office.

In a second case, the Sunday Times sought certain records from the Department of Finance (the Department) relating to the Government guarantee of Irish banks (see case number 090028 in chapter 3). The FOI request encompassed approximately 100 records amounting to in excess of 800 pages. The Department made several lengthy submissions outlining why it contended that each and every page of the records concerned should be withheld. Several exemptions were quoted in respect of most records, all of which had to be dealt with by my Office as par t of the review. Eventually a settlement was reached in which many records were released. The Department cited “unprecedented pressures” on its staff in the banking area since September 2008 in explaining delays in corresponding with my Office, yet committed a significant level of staff resources in preparing lengthy submissions arguing for exemption of records it subsequently accepted could be released without a binding decision by my Office. I believe that the release of some of these records at an earlier juncture could have saved a substantial amount of time and resources of both the Department and my Office.

Unacceptable practices of public bodies

The Health Service Executive (HSE) frustrated the operation of the FOI Act

The behaviour of the HSE was unacceptable and had the effect of frustrating the operation of the FOI Act.

In the Sunday Times and the HSE case, case no. 090191, records were sought concerning a financial settlement between the HSE and a private ambulance contractor. This request was poorly dealt with by the HSE. There were delays and confusion in the handling of the case and in the provision of a complete set of records. These problems have never been satisfactorily explained to me although my Office invited the HSE to provide reasons for what happened. In addition, my Office encountered misleading and incomplete responses to its efforts to clarify and examine the issues and the records under review. My Office had to issue a section 37 notice (see chapter 1) requiring the HSE to furnish the outstanding record showing the amount paid as a result of a High Court case in 2008. The HSE’s behaviour in relation to the request and the review had the effect of frustrating the operation of the FOI Act in relation to access to records and delaying my Office’s review and investigation into whether or not the refusal of records was justified.

In my decision, I found that the HSE had failed to meet its burden of proof, under section 34(12)(b), of showing that the exemptions upon which they sought to rely, sections 20, 21 and 27 of the FOI Act, were applicable. I found that the HSE also failed to consider the public interest as is required under the provisions of the FOI Act.

Edited version of record for FOI request purposes

Roscommon County Council (the Council) prepared an edited version of a Report for release under the FOI Act.

In ABC Ltd. and Roscommon County Council, case no. 080284, access was sought by the applicant to the Report on Tenders in respect of a regional water supply contract. In the course of the review, it came to my attention that a document entitled “Edited Version for Access to Information Purposes” had been prepared by the Council and that this was released, rather than the original redacted Report. In my decision, I pointed out that the practice of preparing a record separate to the original had the potential to prevent decision makers from considering each record on its merits by reference to the exemption provisions of the FOI Act and the necessary public interest balancing test. Arguably, the edited version has no status in that the request was clearly for the original records created. Any version of a record released in redacted form under FOI should enable an applicant to see that parts have been deleted and the decision under the FOI Act should indicate the reasons why such extracts qualified for exemption.

Poor handling of case by local authority but positive response by it to comment

Cork County Council (the Council) incorrectly adopted the approach that any record held by its legal section automatically attracted legal privilege and that any record attracting legal privilege was outside the scope of the FOI Act. In response to criticism from my Office in its decision, the Council organised extensive training for its staff in FOI.

In X and Cork County Council, case no. 090217, the applicant sought records held by the Council relating to the Waste Management Act. In its internal review decision, the Council informed the applicant that it had located an additional 85 relevant records which had not been disclosed in its original decision. During the course of the review by my Office, it came to light that the Council had incorrectly considered that any record held by its legal section automatically attracted legal privilege. It had also claimed that it understood that any records attracting legal professional privilege were automatically rendered outside the scope of the FOI Act and apparently it did not consider that it should notify the applicant of the existence of such records and that they were not being released to him. The Council subsequently examined the records and released the majority of them to the applicant.

I take heart from the very positive reaction of the Council to comment from me in this case, including the provision of extensive training in FOI for staff and the provision of information to decision makers to assist them in making high quality decisions under FOI.

Judgments delivered by the Courts in 2010

Supreme Court case

In last year’s Report, I referred to and provided a summary of the High Court judgment in the case of 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 McCar thy, 2 July 2009. I referred to the hospital having appealed to the Supreme Court against the findings and through the legal mechanism of a Notice to Var y, I have also raised certain other questions for determination in that appeal.

This case was heard by the Supreme Court on 14-15 June 2010 and judgment has been reserved in the case.

High Court Cases

There were no High Court judgments delivered in 2010 on cases taken against decisions of my Office.

OIC reviews in the news

As in previous years, decisions taken on FOI reviews by my Office have given rise to considerable media comment, a sample of which I set out below.

Irish Independent
15 March 2010
HSE blasts top crèche for use of harsh discipline
Shane Phelan
Investigative Correspondent

“………vehemently disputed some of the HSE’s findings, attempted to block the release of the report to the Irish Independent under the Freedom of Information Act. However, the Office of Information Commissioner Emily O’Reilly ruled the report should be released.”

Irish Medical Times
2 April 2010
Information Commissioner annuls HSE charges decision
Medico-legal

“Ed Madden, BL, on a recent Information Commissioner case in which a former patient of Cork University Hospital challenged a decision to charge him for copies of x-rays.”

Irish Times
30 August 2010
IMF queried bank’s sell-off strategy
Simon Carswell

“The International Monetary Fund queried as far back as April 2009 the value of Allied Irish Bank’s disposing of assets to generate capital, saying it assumed the market had priced this in. The IMF questioned the sales in meetings for its 2009 assessment of the Irish economy. The opinion is contained in records released under the Freedom of Information Act by the Department of Finance following an appeal by the Irish Times to the Information Commissioner against the withholding of certain files by the Department.”

Industrial Relations News
27 January 2011
Freedom of Information body backs AGSI request over ICTU
Colman Higgins

“The AGSI body is entitled to information about the refusal of the Department of Justice, Equality and Law Reform to allow it to affiliate to the ICTU, according to the Information Commissioner.”

Irish Medical News
10 January 2011
Transforming the HSE South
Priscilla Lynch

“The planned reconfiguration of acute services in the HSE South including: Cork University Hospital (CUH); Mallow General Hospital; Bantry General Hospital; Mercy University Hospital (MUH); South Infirmary Victoria University Hospital (SIVUH); and Kerry General Hospital (KGH), was initially shrouded in secrecy and the HSE was roundly criticised for hiding its plans on the region and attempting to begin rolling them out before publishing its vision. ………….. the report was finally released to IMN after a successful appeal to the Information Commissioner under the Freedom of Information Act (FOI).”