Office of the Information Commissioner

Chapter 2: Issues Arising

The purpose of this chapter is to highlight issues relating to the operation of the FOI Act which arose over the last year. Some of the issues are operational and relate to particular public bodies, while others are matters which fall to be resolved at Government level or by the Department of Finance. I also include in this chapter details of judgments/orders delivered by the Courts in 2011.

The issues discussed are:

Government plans for FOI

Another year has passed and once again I must report that no additional public bodies have been brought within the scope of the FOI Act. However, as stated in my previous Annual Report, I welcome the commitment shown by the current Government in the Programme for Government, Government for National Recovery 2011 – 2016, which promised legislation to restore the Freedom of Information Act to what it was before the 2003 amendments and also to extend its remit to other public bodies. I am also pleased that my Office was afforded an opportunity by the Department of Public Expenditure & Reform to provide a list of suggestions aimed at improving the operation of the Act and I am hopeful that the suggestions provided will be reflected in the amended Act. I understand that the legislation is in the drafting stage and I would urge that the changes be implemented as soon as possible.

Regulations under section 28(6) of the FOI Act

In my annual report for 2009, I welcomed the introduction of the Freedom of Information Act, 1997 (section 28(6)) Regulations, 2009, S.I. No 387 of 2009 which were introduced on 23 September 2009 replacing the previous Regulations (S.I. No. 47 of 1999).

As a result of these revised Regulations 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. In addition to prescribing the classes of requesters to whom the records of deceased persons will be made available, the 2009 Regulations also require the application of a public interest test. The Guidance Notes which were published by the Minister for Finance pursuant to S.I. No. 387 of 2009 may serve as a useful tool for decision makers when dealing with the difficult question of what factors should be considered in determining where the balance of the public interest lies in any such FOI request.

I recently had the opportunity to review the first application to my Office having regard to the new Regulations and the relevant Guidance Notes. That decision is summarised in Chapter 3 of this Report.

Poor case handling by public bodies

Failure to recognise Internal Review request and poor scheduling of records - Case 090041

In this case, my authorised official wrote to the Commissioners of Public Works to outline his concerns about how the case was processed. Firstly, the Office of Public Works (OPW) did not consider the applicant's letter of 31 December 2008 to represent an application for internal review of the OPW's decision on his request.

My official noted that the letter of 31 December 2008 clearly referred to the applicant's earlier FOI request, included the relevant fee, and clearly disputed the adequacy of the OPW's searches for particular records of relevance to the request, as well as the application of legal professional privilege to certain of the withheld records. While I understand that the OPW's position is that the letter did not formally request an internal review, nonetheless the FOI Act places an onus on public bodies to assist requesters. As stated by my official, at the very least, one would have expected the OPW to have clarified with the requester whether or not the letter had been intended as a request for an internal review under the FOI Act.

On a separate matter, while my authorised official noted that the OPW, particularly the staff of Historic Properties, had spent much time in dealing with this case and were very willing to engage with my Office, a number of records initially considered by the OPW not to be relevant to the request were, having been requested and examined by this Office, found to be relevant. It was unclear to my official if this arose from the poor scheduling of the records, from a misunderstanding of the request, or for some other reason.

In his letter to the Commissioners, my official suggested that all staff dealing with FOI matters should be made aware of the importance of proper scheduling of records. In this case, proper schedules would have listed all records on the file, not just those considered by the OPW to be relevant to the request. In turn, the schedule should have listed all such records deemed not to be relevant to the request, as well as the OPW's decision to release or withhold the remainder. Copies of all records on these files should then have been provided to my Office for a review of whether or not the OPW's exclusion of particular records on the grounds of relevance was appropriate. Such an approach would have saved a lot of time in this case, for both our Offices. It was also suggested to the Commissioners that some refresher training in the requirements of the FOI Act could be necessary for all relevant staff.

The Commissioners have since acknowledged that a complete schedule of records should have been provided in this case and have confirmed that appropriate FOI training measures are now in place.

Section 29

Section 29 of the FOI Act sets out the procedures to be followed where the public body considers that although a record is exempt from disclosure because it contains information given in confidence (section 26), commercially sensitive information (section 27) or personal information relating to a third party (section 28), on balance, the record falls to be released in the public interest.

Where section 29 applies, the body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The time limits provided for such consultation are:

  • The person(s) to whom information in the records relates must be notified, within two weeks, that an FOI request has been made and that the request falls to be granted in the public interest.
  • The two week notification period may be extended by a further two weeks [section 29(2A)] if the body considers that the number of records or the number of third parties to be notified is such that it is not reasonably possible to comply with the two week notification period. The requester must be notified of the extension before the expiration of the first two week period.
  • The person to whom information in the records relates must make a submission to the public body in relation to the FOI request within three weeks of receipt of the notification referred to above.

During 2011, the consultation with the person to whom the information related was not carried out within the prescribed time limits in a number of applications to my Office for review to which section 29 applied. In one such case (case 110162), Cork City Council (the Council) applied for a review of the decision of Fáilte Ireland to grant access to documentation affecting the interests of the Council. The original request was received by Fáilte Ireland on 2 June 2011 with the Council being notified on 24 June 2011. The ten day period provided by section 29(2) expired on 17 June 2011. Fáilte Ireland confirmed that it did not notify the original requester of any extension of time before 17 June 2011. The requester was notified on 27 July 2011 of an extension of time due to the considerable number of records involved, but this was outside the period provided under section 29(2A)(b). Furthermore, the Council did not provide its submission to Fáilte Ireland within the 3 week period specified in section 29(2).

It is clear from the above that the section 29 requirements were not applied correctly in this case. Therefore, following careful consideration, I decided to annul Fáilte Ireland's decision. As a consequence of my decision, Fáilte Ireland had to deal afresh with the original request, and apply the section 29 requirements correctly.

Splitting FOI requests

I am aware from reviews coming before me that there are instances where for administrative reasons it may be necessary to assign elements of an FOI request to more than one functional area of a public body for the purposes of issuing a decision to the requester. This is particularly the case with FOI requests to the HSE where FOI Liaison Officers may cover a number of functional areas. In such cases, it is important that the FOI Liaison Officer retains control of the FOI request for purposes of coordinating replies and ensuring that time limits are adhered to etc. It is undesirable that a number of decisions on an FOI request would issue in a haphazard fashion without any attempt to synchronise the process and make the decision/s as seamless as possible for the requester. While I accept that this may not be a widespread or even a frequent problem, I have seen it and I am concerned, given that less than 2% of all FOI requests reach my Office, that it may be an issue.

As a corollary, I should also say that the Central Policy Unit, Department of Public Expenditure and Reform, in its Notice No. 11, has instructed that, even where a request is split for administrative reasons the maximum up-front fee that may be charged is €15 and similarly for internal review where the maximum fee is €75. Again, I have seen one instance where each of five individual 'decisions' on one FOI request included notification that internal review would attract a fee of €75.

I would urge FOI Liaison Officers to pay due regard to CPU Notices generally and to manage FOI requests as seamlessly as possible from the perspective of the citizen.

Settled cases

I place considerable emphasis, as part of my reviews, on resolving cases without the need for a binding decision. During the year a high percentage of reviews (60%) accepted in my Office were settled or withdrawn. There are many and multiple reasons why reviews are ultimately settled. The experience of my Office in respect of settlements reached suggests that there is significant scope for public bodies to take a more active approach in consulting with requesters to determine if their requirements may be met by narrowing the differences between the two parties and reaching agreement on an acceptable settlement.

I would also draw the attention of public bodies to CPU Notice No. 5 which provides guidance on the release of information outside of the FOI Act (available on the Unit's website at www.foi.gov.ie). As the Notice suggests, administrative arrangements for the release of information outside of the FOI Act can work to the benefit of both the public body and the requesters as such release enhances the confidence of clients in the body.

In a case involving the Department of Public Expenditure and Reform, my Office achieved a settlement without the need for a binding decision. Mr. Mark Tighe of The Sunday Times made a request to the Department (then the Department of Finance), for access to records relating to the PMDS evaluation programme. The requester specified that he sought access to:

  1. All reports on the operation and effectiveness of the PMDS programme to date;
  2. All submissions received on the same from 2007 to date;
  3. A breakdown of the 2009 compliance rates.

The Department refused the request under section 20 (deliberations of public bodies) and section 21 (functions and negotiations of public bodies) of the FOI Act. The requester applied to this Office for a review of the Department's decision in a letter dated 5 May 2011.

At an early stage in the review, it became apparent that, where the numbers were small, the statistical returns from public bodies on PMDS ratings awarded to the different grades in the respective bodies could lead to particular officers being identified and that such identification would be personal to the officers concerned. Accordingly, the requester agreed to exclude the statistical returns of particular public bodies with specific breakdowns by grade from the scope of his request. Records containing composite figures of ratings awarded by grade for the civil service generally, as opposed to particular public bodies, remained within scope, however.

The records remaining within scope included a draft strategy document on the proposed development of PMDS which referred to feedback given by Secretaries General and Heads of Offices. On the face of it, this document and certain related records were exempt under section 20 of the FOI Act, provided that the deliberative processes concerned were still on-going. The remaining records at issue did not appear to be exempt on either of the grounds invoked by the Department. My Investigator therefore contacted the Department about the matter with a view to a possible settlement.

In response, the Department agreed to the release of the majority of the records covered by the request. The Department made the following submission pertinent to the three records over which it continued to claim exemption: "The records comprise both the overall strategy of this Department to reform PMDS and a range of detailed proposals on how the issues involved can be tackled. The reform of PMDS, an ongoing process being undertaken on a phased basis, involves negotiation with the staff unions at the PMDS Subcommittee of General Council". However, among the records subject to release with the Department's agreement was a compilation of the results received from Departments and Offices showing compliance with PMDS for the year 2009. Moreover, the Department advised that the results in respect of 2010 were also available and, although outside the scope of the request, it proposed to release a compliance table for 2010 as well in the event of a settlement. My Investigator then contacted the applicant by telephone, and he agreed to the settlement proposal in the circumstances.

Court judgments

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.

The full text of the judgment of the Supreme Court is available on my website www.oic.gov.ie and the following is a summary of the main points in that judgment, along with a summary of the main points in the case which was remitted.

1. The Governors and Guardians Rotunda Hospital v. Information Commissioner [2011] IESC 26:

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 two records held - an extract from the Labour Ward Book and a record from the Porter's Lodge Book – and the woman applied to my Office for a review of that decision. My Office's decision (Case 050148) to annul the decision of the Hospital and to direct the release of the records was issued on 14 December 2007.
Issue: The Hospital appealed my decision to the High Court on a number of points of law. Although it had not done so 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 enactment. 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 at the time of her father's birth was information given to it in confidence.
High Court: The High Court 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. The High Court also found that because the age is publicly available information, it cannot be concerned with private or secret matters and so, cannot have the necessary quality of confidence required for the operation of the confidentiality exemption in section 26 of the FOI Act. The High Court dismissed the Hospital's appeal. The Judgment of the High Court was appealed to the Supreme Court by the Hospital.
Supreme Court:

The Supreme Court delivered its majority judgment on 19 July 2011 where it upheld the appeal of the Hospital by a majority of four to one. The main elements of the judgment are summarised below.

The Supreme Court held that information may constitute personal information if it falls within any of the classes listed under the definition of personal information at section 2 subparagraphs (i) to (xii) of the FOI Act, and that it is not necessary for the information to also satisfy either of the over-arching requirements at sub-paragraphs (a) and (b).

The Supreme Court also found that the protection afforded to information obtained in confidence at section 26(1)(a) stems from the circumstances in which the information is given and not from the nature of the information itself. The protection applies to information given in confidence but does not require that information to be concerned with private or secret matters. The Supreme Court found that the age of the applicant's grandmother in 1922, when she gave birth to her father, was given to the Hospital in confidence and in circumstances satisfying the terms of subsection 26(1)(a). The Supreme Court upheld the Hospital's appeal.

2. Ms X and Information Commissioner and the Health Service Executive (2010 221 MCA)

Background: Following a decision of the HSE to grant access to reports relating to inspection of a nursing home, the person to whom information in the reports related (Ms X) sought a review of the decision to my Office. Before issuing its decision to grant access, the HSE had engaged the consultation procedures provided for in section 29 of the FOI Act. The decision of my Office following review (Case 090314) affirmed the decision of the HSE to grant the requested access. That decision issued from my Office on 11 June 2010.
High Court: Ms X appealed the decision of my Office to the High Court on a point of law and sought an Order refusing access to the reports in their entirety. The grounds for the appeal included an assertion that, in including a reference in the decision to material published on the websites of the HSE and HIQA, my Office had considered material which was obtained subsequent to the conclusion of the submissions of Ms X to my Office. The grounds also included an assertion that my Office erred in law in not providing Ms X with an opportunity to address the exemption of the FOI Act which had been dis-applied by a determination to grant access in the public interest. My Office accepted the validity in law of the assertions of Ms X and, by Order dated 31 May 2011, the High Court remitted the matter to my Office for determination in accordance with law.