Office of the Information Commissioner

Chapter 1: The year in review

Table of Contents

Your right to information

The Freedom of Information Acts, 1997 and 2003 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 European Communities (Access to Information on the Environment) Regulations 2007 to 2011 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, Community 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 as Information Commissioner and Commissioner for Environmental Information.

Introduction

I am pleased to introduce my ninth Annual Report as Information Commissioner. My Report covers the period from 1 January 2011 to 31 December 2011.

Last year, in my 2010 Report, 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. I indicated in that Report that I welcomed the commitment relating to freedom of information contained in the Programme for Government, Government for National Recovery 2011 – 2016 to restore the Freedom of Information Act to what it was before the 2003 amendments and to extend its remit to other public bodies. I am pleased to report, that the Department of Public Expenditure and Reform is currently working on the arrangements necessary to give effect to the commitments in the Programme for Government in relation to FOI. The amendment of the FOI Act in 2003 represented a step back from the commitment to openness, transparency and accountability which was the key factor in the enactment of the 1997 FOI Act. Many of the amendments made limited the potential for public access to records relating to Government actions. For example, the potential right of access to records of Government was pushed back to records which are ten years old as opposed to five years as envisaged in the original Act. Another example is that communications between Ministers relating to a matter before Government are now fully protected, whereas previously, these records were potentially releasable provided they did not reveal a statement made at a Government meeting.

I was also pleased to have been given the opportunity to provide suggestions for future amendments based on my experience of conducting reviews on requests relating to a wide range of public services. Foremost in mind when making my suggestions was the purpose of the Act as expressed in the Long Title:

"An Act to enable members of the public to obtain access, to the greatest extent possible......to information in the possession of public bodies...."

The suggestions I made are designed to increase the effectiveness of the FOI Act and further benefit the public's right of access to official information. I hope to see an Act fully restored to the original Act of 1997 and one that encompasses all public bodies including the many bodies I highlighted in recent years, such as NTMA, NAMA, the Garda Siochána etc.

In 2011, the long awaited judgment was delivered in what is known as the 'Rotunda case'. This case revolved around the refusal of the Rotunda Hospital to release a record showing the age of the applicant's mother when she gave birth to him in 1922 because it meant disclosing her personal information and because the mother had given the details of her age in confidence. The Rotunda appealed my decision that the record be released to the High Court. The High Court dismissed the appeal and the case was then further appealed on a point of law to the Supreme Court. On 19 July 2011, the Supreme Court, on the basis of a four to one majority, delivered its judgment and set aside my decision. It found that the age of the applicant's mother when she gave birth to him in 1922 was protected by the confidentiality provisions in the FOI Act.

In an address which I gave to the Medico-Legal Society of Ireland on 23 February 2012, I commented on the judgment:

"What the judgment means is that the principle of protecting the confidentiality of information given by a hospital patient takes precedence over the right of a person to information about the age of his or her own mother. And this principle, it would seem, applies even though the patient in question is dead and the information at issue is not terribly sensitive'.

In my address I further commented that there continues to be difficulty in accessing 'origins information' - personal information for people who grew up separated from their parents and families - and that there is acceptance that not having such 'origins' information may leave people more exposed than would otherwise be the case to psychological stress and relationship strain and I concluded that:

"For the future, all other FOI requests for such "origins information', where they involve records held by a hospital or doctor, are likely to be refused. And this, in fact, is likely to prove a significant impediment to the Government's commitment to implement a specific recommendation made by the Commission to Inquire into Child Abuse in its major report (the Ryan Report) from 2009.

The previous Government committed itself to implementing all of the recommendations in the Ryan Report; and I assume that the present Government is standing by that commitment. Recommendation 7.05 of the Ryan Report (Vol. IV, Ch. 7) has to do with the continuation in place of family tracing services "to assist individuals who were deprived of their family identities in the process of being placed in care' and recommends that the "right of access to personal documents and information must be recognised and afforded to ex-residents of institutions'. In seeking to implement this recommendation, the previous Government cited reliance on access to "origins' information under the FOI Act as an action being taken in support of the recommendation. As the Report of the Commission to Inquire into Child Abuse, 2009 - Implementation Plan puts it: "Personal records will continue to be provided to individuals on request, under the terms of the Freedom of Information Act (ongoing )'. In the light of the Rotunda judgments, it does seem probable that the FOI Act will no longer feature as an action in support of implementing Recommendation 7.05 of the Ryan Report'.

In this Report, I highlight a number of significant cases and issues that were dealt with by my Office in 2011. In Part II of this Report, although there is no statutory requirement on me to do so, as I have done in previous years, I report on my work as Commissioner for Environmental Information, which is legally separate to my role as Information Commissioner.

Again this year I highlight some of the information which was brought into the public domain through FOI which would otherwise have remained unknown. Some of the FOI based headlines which appeared in published media reports are dispersed throughout this report.

Key FOI statistics for the year

Number of FOI requests to public bodies 2002-2011

 Number of FOI requests to public bodies 2002-2011

Some 16,517 requests were made to public bodies under the FOI Act in 2011. This reflects a continuation of the steady upward trend in FOI requests over the last few years. It represents an increase of more than 8% (1,268 requests) over the 2010 figure and a 15% (2,227 cases) increase over the 2009 figure. It is likely that this increase was at least partially driven by the continuing economic downturn.

The number of FOI requests on-hand by public bodies at end December 2011 has dropped by 4% over 2010, a drop from 2,466 cases to 2,379. I welcome this decrease and encourage the public bodies concerned to continue to address this backlog.

Sectoral breakdown of FOI requests to public bodies

 Sectoral breakdown of FOI requests to public bodies

In total, the Health Service Executive received the largest number of FOI requests in 2011 with 6,141 (up 14% on 2010); third-level institutions received 436 (up 9% on 2010); 5,479 were made to government departments and state bodies (up 7% on 2010); voluntary hospitals, mental health services and related agencies received 2,891 (up 6% on 2010); other voluntary bodies 134; local authorities received 1,436 (down 6% on 2010).

Top ten bodies who received most requests during 2011

Rank

Public Body

2011

2010

2009

2008

1

HSE West (1)

2,204

1,953

1,647

1,362

2

HSE South (2)

2,153

1,926

1,756

1,548

3

Department of Education and Skills (4)

1,170

796

569

457

4

Department of Social Protection (3)

1,106

859

556

485

5

HSE Dublin North East (5)

871

713

694

631

6

HSE Dublin Mid-Leinster (7)

690

573

427

453

7

Department of Justice and Equality (6)

597

598

844

718

8

Mercy Hospital, Cork (8)

506

403

416

200

9

St James's Hospital (-)

404

295

265

280

10

Department of Finance (9)

258

337

272

180

The table shows the top ten bodies subject to the most FOI requests during 2011 (the previous year's position is shown in brackets), with comparators for these bodies for 2008, 2009 and 2010. The rise in overall requests received by the HSE is reflected in each of the individual HSE regions which feature in the top ten. I notice a dramatic increase in the number of FOI requests received by the Department of Education and Skills (47% increase over 2010 and over 100% increase on 2009). I commented last year on the increase in the number of FOI requests received by the Department of Social Protection and I note that the increase continued in 2011 (a 29% increase in requests over 2010 and nearly 100% increase over 2009). While I have no specific data on the reasons for these changes, I think it reasonable to surmise that they are due to increased interest in accessing records relating to the economic downturn and cutbacks in service. More detailed tables showing a breakdown of requests received in each sector are contained in chapter 4.

Type of requester to public bodies

 Type of requester to public bodies

The proportion of requests from different types of requester is very similar to the requests received in 2010.

Type of request to public bodies

 Type of request to public bodies

There has been an increase of 1,893 in requests for personal information which represents an increase of 17% on 2010, whereas the number of non-personal and mixed cases continues to decrease. Overall in 2011, 76% of requests relate to access to personal information, 23% to non-personal information and 1% to mixed information.

Rates of appeal

In 2011, internal reviews against decisions of public bodies were sought in 589 cases. This represents just over 3.5% of the overall cases dealt with by public bodies. My Office accepted 174 cases for review in 2011, which amounts to just over 1% of the decisions made by public bodies.

Release rates by public bodies

 Release rates by public bodies

The differences between sectors in the rates of release are largely similar to previous years, although there was a reduction in release rates for the local authorities to 50% (from 57% in 2010) and a reduction in release rates for third level institutions to 40% (from 57% in 2010). The HSE release rate is just below 71% while the civil service remains the lowest sector at 37%. A detailed breakdown of the release rates in each sector is contained in chapter 4.

Office of the Information Commissioner (OIC) caseload

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.

Applications to OIC 2009-2011

 Applications to OIC 2009-2011

The diagram above shows that the number of applications to my Office in 2011 has decreased by 19% even though the overall number of FOI requests to public bodies increased by nearly 8% in the same period.

It can also be seen that a number of 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.

Subject matter of review applications accepted by OIC

 Subject matter of review applications accepted by OIC

As can be seen from the chart above, the majority of applications accepted by my Office in 2011, concerned applicants seeking access to records, following refusal of access by the public bodies concerned.

Applications accepted by OIC by type 2009-2011

Applications accepted by OIC by type 2009-2011

The table above illustrates that there was a significant increase, over 2010, in the percentage number of cases accepted by my Office in which the applicant sought personal information, reflecting the increase in requests to public bodies for personal information. Again this year, I note that while 76% of overall FOI requests concern access to personal information, only 35% of applications accepted by my Office in 2011 concern requests for access to personal information.

Outcome of reviews by OIC in 2011

Outcome of reviews by OIC in 2011

In 2011, I reviewed decisions of public bodies in 200 cases, compared with 228 in 2010 and 239 in 2009. Again I have to report that the number of reviews of a more complex and time consuming nature has continued to increase year-on-year, particularly, the reviews concerning non-personal information. There were 166 cases on-hand in my Office at the end of December 2011, compared to 192 at the end of 2010 and 200 at the end of 2009.

I note that additional records were released in approximately 31% of cases completed by my Office in 2011, compared with 43% in 2010 and 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

 Age profile of cases closed by OIC

This table illustrates that my Office has maintained the 33% closure rate of cases within four months of receipt. It also indicates that 57% of cases closed last year were over 1 year old and it reflects specific initiatives aimed at closing older cases. Indeed, the number of cases on-hand which were more than three years old has been reduced from 30 at the end of 2010 to one at the end of 2011. My Office will continue to endeavour to close cases within four months while also concentrating on older cases.

Age profile of cases on hand in OIC at end 2011

 Age profile of cases on hand in OIC at end 2011

Breakdown by public body of applications for review accepted by OIC

 Breakdown by public body of applications for review accepted by OIC

Breakdown of HSE cases accepted by OIC

 Breakdown of HSE cases accepted by OIC

The above diagrams show a breakdown by public body of the cases which were accepted for review by my Office during 2011. Of the cases reviewed 58 cases or 34% relate to the HSE which is similar in number to the cases accepted in 2010. There were increases, on 2010, in the number of applications to my Office concerning Dublin City Council and RTÉ and a decrease in applications concerning the Department of Justice and Equality, the Department of Agriculture, Food and the Marine, the Department of Finance and the Department of Social Protection.

The second diagram shows a breakdown of the 58 applications to my Office concerning the HSE. There has been a significant increase in applications concerning HSE National from 6 in 2010 to 26 in 2011 and a decrease in applications from HSE South and HSE Dublin North East from 20 in 2010 to 10 in 2011 and from 11 in 2010 to 5 in 2011 respectively.

Settlements and withdrawals

A considerable number of cases referred to my Office for review are settled or withdrawn (59% in 2011). Settlements were achieved in 49 cases or 25% of cases closed during the year, while in a further 70, or 34%, the applicant withdrew his/her application.

Deemed refusals

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.

Deemed refusals 2007-2011

 Deemed refusals 2007-2011

The chart above shows that the level of deemed refusals has fallen from 39 in 2010 to 27 in 2011. I welcome this decrease and hope that the instances of deemed refusals continues to fall in the coming years. The HSE was responsible for nearly 50% of the breaches in 2011, while receiving 37% of the FOI requests.

Deemed refusals

 Deemed refusals

The HSE National and the Department of Justice and Equality had the highest incidences of deemed refusals with nine and seven breaches respectively. Breaches occurred in respect of eight public bodies in 2011 down from 21 in 2010. I welcome this general decrease but I am disappointed to note that the number of deemed refusals in respect of the HSE National has increased from five in 2010 to nine in 2011.

General enquires to OIC

 General enquires to OIC

In 2011, the number of enquiries made to my Office increased by 32% to 824, consisting of 633 telephone calls, 141 e-mails, 38 letters and 12 personal callers. These general enquiries do not relate to any particular review and typically involve requests for information about my Office or about the operation of the FOI Act, as well as matters outside my remit as Information Commissioner.

Fees received by OIC

Up-front application fees for certain FOI requests, internal reviews and applications for review by my Office came into effect on 7th July 2003. Where a request for information other than the personal information of the requester is made, the fees payable are:

  • €15 for an FOI request (reduced to €10 for medical card holders and their dependants);
  • €75 for a request for internal review of an FOI decision (reduced to €25 for medical card holders and their dependants);
  • €150 for an application for review of an FOI decision by my Office (reduced to €50 for medical card holders and their dependants); and
  • €50 for an application, by the third party to whom the records relate, for a review by my Office of an FOI decision to grant public interest access to records, following section 29 consultation procedures.

During 2011, my Office received 82 applications for review where a fee was paid. The total amount received in application fees by my Office in 2011 was €10,450. For various reasons €5,100 was refunded leaving a net amount received in 2011 of €5,350. Refunds were issued for the following reasons:

  • €4,450 because the applications in question were either rejected as invalid, withdrawn or settled;
  • €650 because the public body had not issued a decision or internal review decision within the time limits and was therefore of 'deemed refusal' status (section 41 of the FOI Act refers) which does not attract an application fee.

Statutory notices

This year, I again 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 decision 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:

  • Section 35 of the FOI Act which empowers me to direct the head of a public body where I consider that the reasons given in support of a decision are not adequate, to direct that a full statement of reasons for the decision be provided to the requester concerned and my Office, and
  • Section 37 of the FOI Act which empowers me to require the production of information and/or records, and to enter premises occupied by a public body for the purpose of acquiring any information which is required for the purpose of conducting a review.

In 2011, under section 37, I served one notice on a public body who had not co-operated with my Office following the normal issuing of correspondence. This notice was served on the Brothers of Charity Southern Services, Cork on 8 February 2011.

Brothers of Charity Southern Services, Cork.

My Office requested records from the Brothers of Charity Southern Services, Cork, twice by email and five times by letter post. The Brothers were also contacted by telephone on three different occasions and were requested to clarify its position. As no response was received, I issued a notification under section 37 of the FOI Act to the Chief Executive on 8 February 2011. My Officials contacted the Brothers again on 1 March 2011, when no response was received to the section 37 notice. The Chief Executive contacted my Office and apologised for not responding to the section 37 notice. She reported that the FOI Coordinator was on long term absence which resulted in non-response to FOI correspondence and said that a replacement Records Manager was being recruited. She accepted full responsibility for ensuring that systems are in place to deal with FOI matters.

According to the Chief Executive, an internal review decision had already issued to the applicant on 25 May 2010, but the applicant had not advised the public body that she had not received that decision. As there was no documentary evidence to either substantiate or refute either party's contention, there was no further role for my Office.

I welcomed both the apology for non-reply to the section 37 notice and the assurance by the Chief Executive that steps are being taken to prevent a recurrence.

Public bodies have always co-operated to a high level with reviews by my Office over the years. I welcome the drop in the number of instances, as shown in the table below, in which I have had to use my formal powers under section 37.

Section 37 notices

 Section 37 notices

I did not find it necessary to issue any section 35 notices in 2011.

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

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 2011.

Section 20

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 2011.

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.

I have been further informed that the certificate under section 20 issued by the Secretary General of the Department of Defence on 4 March 2009, was reviewed in March 2011 and remains in force for a further two years. A copy of the notification is attached at Appendix I.

Section 25

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 may declare the record to be exempt from the application of the FOI Act by issuing a certificate under section 25(1). 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) and 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 six new certificates were issued in 2011. Three new certificates were issued on 21 July 2011 by the Minister for Foreign Affairs and Trade. The remaining three new certificates were issued on 10, 22 and 25 June 2011 by the Minister for Justice and Equality ("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 new certificate was issued in 2010, as referred to in my 2010 Annual Report. This means that a total of six section 25 certificates were in force concerning the Department of Justice and Law Reform at 31 December 2011. A copy of the notification from the Secretary General is attached at Appendix I to this Report. The certificates issued above will fall for review under section 25(7) of the FOI Act in 2012.

I was notified by letter dated 6 March 2012 that, pursuant to section 25(7) of the FOI Act, the Taoiseach, the Minister for Public Expenditure and Reform and the Minister for Jobs, Enterprise, and Innovation, having reviewed the 12 certificates that were in operation for the period ended October 2011, were satisfied that the certificates should remain in force. I attach a copy of the notification at Appendix II to this Report.

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. Following the amendment of the FOI Act in 2003, the decision of the High Court can be appealed to the Supreme Court.

During 2011, the Supreme Court delivered a judgment on an appeal taken against a judgment of the High Court on a decision of my Office. The appeal against the judgment of the High Court was allowed and my decision was set aside as a result. An appeal to the High Court against a further decision of mine was settled between the parties and the High Court issued an order remitting the matter to me for determination in accordance with law. Summaries of these appeals can be found in Chapter 2 of this Report.

Staffing matters

I would like to thank my staff and colleagues in the Office for their support during 2011. In particular, I wish to thank the Director General, Pat Whelan and the Senior Investigators, Fintan Butler, Elizabeth Dolan, Sean Garvey and Stephen Rafferty for their contribution and also Alison McCulloch, Melanie Campbell, Edmund McDaid, the staff of my Office and the staff of the Communications and IT Units for their help in compiling this Report.

There were a number of staffing changes in the Office during 2011. Senior Investigator Elizabeth Dolan availed of the career break scheme. Seán Garvey, Senior Investigator, Anne Moran, Investigator, Phyllis Flynn, Higher Executive Officer and Iris Kilbey, Clerical Officer moved to the Office of the Ombudsman and Ciarán O'Donohoe, Investigator joined Corporate Services Unit. I welcome Stephen Rafferty, Senior Investigator, Anne Garland and Maurice Kiely, Investigators, Edmund McDaid, Higher Executive Office and Denise Freeman, Clerical Officer, who joined my Office during the year. I would also like to thank Fintan Butler, Senior Investigator, who joined my Office for part of 2011.