Office of the Information Commissioner

Chapter 3: Decisions

Formal decisions

In 2011 a total of 200 cases were completed by my Office. This total is comprised of formal decisions, settlements, withdrawals, invalid and discontinued decisions. I will deal with the 22% of cases which went to formal decision in this chapter. The outcome of the reviews which went to formal decision in the years 2008, 2009, 2010 and 2011 is highlighted in the table below.

Percentage comparison of formal decisions 2008-2011

 Percentage comparison of formal decisions 2008-2011

This table shows that, the Office annulled fewer decisions of public bodies in 2011 than in the previous year (15% in 2010 and 7% in 2011). It can also be seen from the chart that a greater number of decisions were affirmed by the Office during 2011 (74%) than in 2010 (67%).

Below I focus on a small number of decisions issued during 2011 to highlight points of interest to public bodies and FOI users alike. The full text of these decisions is available on my Office website (www.oic.gov.ie).

Significant decisions

Mr X and the Department of Communications, Energy and Natural Resources – Case 080184

The applicant in this case sought access to the "database of coverage information that informs the map entitled 'Wireless and Broadband Coverage'". The request dated 25 April 2008 stated that the information "should be current to date" and should include the data informing the map of March 2008. Previous decisions from my Office have generally taken the view that such a request would encompass only those records that had been created by the date of the request. The application in this case, dated 25 April 2008 was received by the public body on 28 April 2008. According to the Department, it was likely that changes would have been made to the database between 25 April and the date of receipt of the request 28 April. In such circumstances, the database as it stood on the date of the request would no longer have existed by the date of receipt. This case has led to a revision of my Office's view as to what is the 'operative end date' in considering records of relevance to a request. Thus the appropriate date should actually be the date of receipt of a request.

The applicant's request included access to the 'map of March 2008', however, according to the Department no backups existed for the map at that time. It was the applicant's view that the map could be recreated by identifying and excluding or restoring all records subsequently added to or removed from the system. It could be argued that the Department should rebuild the database from scratch to how it stood on the relevant date. However, I am not persuaded that the FOI Act requires such steps to be taken. Previous decisions have set out my understanding that the FOI Act is concerned with records that exist, not with records that should exist. I do not consider that the FOI Act can be invoked to require that a public body attempt to bring a particular record back into existence by processing or manipulating information, whether on a database or as contained in other records in its possession. This is entirely different, however, from a scenario in which a public body can identify and extract an exact copy of a particular record, say from a backup tape.

I understand in this particular case, neither the Department nor the consultant company that was involved in producing the maps on behalf of the Department made backup copies or any other record of the details on the database on that particular date. Therefore, the Department submitted that it was not possible for it to re-create the database along the lines suggested by the applicant. Thus I found that the record the subject of this request no longer exists and that section 10(1)(a) of the FOI Act applied.

Ms X and Department of Health & Children – Case 090315

Ms X applied for a review of the decision of the Department of Health and Children (the Department) to refuse access, under the FOI Act, to interim reports of a Commission of Investigation (COI) on the basis that, by virtue of section 40(1) of the Commissions of Investigation Act 2004, the FOI Act does not apply to such records.

The records to which access was sought by Ms X were five interim reports of a COI as provided to the Minister for Health and Children (the Minister) together with correspondence relating to time frames, copies of submissions made, transcripts of evidence, copies of records relating to complaints and other background information. The Department decided to grant access to some records in full, to others in part and refused access to other records including interim reports of the COI. The basis for the decision to refuse access was that they were outside the scope of the FOI Act because of the application of section 40 of the Commissions of Investigation Act 2004 (the COI Act).

Section 40(1) of the COI Act provides that the FOI Act does not apply "to a record relating to an investigation by a commission unless –

(a) the record was created before the making of the order establishing the commission, or

(b) the record relates to the expenses of the commission or the appointment of persons under section 7 or 8 or other matters concerning the general administration of the commission."

It was established quickly that none of the records were created before the order establishing the COI was made; neither did the records relate to expenses or to the appointment of members or assistants to the COI. It was beyond doubt therefore that these were records "relating to an investigation by a commission". As such, the FOI Act would apply to these records only if it were the case that they (or some of them) related to "other matters concerning the general administration" of the COI.

Following on from preliminary views of my Office, Ms X indicated that she had difficulties with my Office's interpretation of the term "general administration". She held that, because "general administration" was not defined in either the FOI or COI Acts, the rules of Common Law should apply and that my Office should have sought a definition of the term from the Courts.

My Office accepted the contention that the "ethos" of the FOI Act is one of providing access to information "to the greatest extent possible" - as set out in the Long Title to the FOI Act and that section 34(12) provides that a decision to refuse to grant a request for access to records is presumed not to have been justified unless the head (of the Department in this case) shows to the satisfaction of the Commissioner that the decision was justified. However neither the "ethos" of FOI, nor the provision of section 34(12) of the FOI Act, are particularly relevant where the first decision to be made is whether, in fact, the records sought are of a kind to which the FOI Act applies in light of section 40(1) of the COI Act.

The term "general "administration" is, obviously, a non-specific term. The adjective "general", taken by itself, does not present a problem and is understood to mean, as in one definition, "not specialised or limited in range of subject, application, activity, etc." The term "administration", on the other hand, has a number of possible meanings including "the process or activity of running a business, organization, etc." In this sense, "administration" is understood as a set of processes which enable an organisation to function and achieve its core objectives. However, it also has specific meanings in the contexts of law (administration of an estate), business (a company in administration) and government (the administration as opposed to the legislature). "Administration" is not a term where, for purposes of legal construction, the ordinary meaning of the words provide a clear understanding of what the legislature intended.

Hogan and Morgan's Administrative Law in Ireland (Fourth Edition) comments (at P. 4) as follows:

"Administration is one of those awkward words which takes its meaning from the word to which it is opposed, i.e. in this Part, to "policy". Unfortunately for clarity, it can also be used in other senses as when it is opposed to legislation or when an administrative decision is contrasted with a quasi-judicial decision...."

To determine the meaning of "general administration" in the context of the COI Act, I considered it useful to identify the other term or process to which it is intended to be in opposition. Taking this approach, it is clear that the term "general administration" is intended to be understood as in opposition to the substantive investigative work of the particular commission. Taking the COI Act in its entirety, it is clear that the legislature intended that a high level of confidentiality would apply to the collection and assessment of evidence and to the thought processes of a COI generally. On this approach, the term "general administration" excludes anything which serves to disclose details of the collection and assessment of evidence or the thought processes of the COI more generally. On this approach also, any disclosure of how a COI does its work (in terms of evidence gathering, assessment and thought processes more generally) would occur in the final report which (subject to some limited grounds) must be published by the "specified Minister". Thus, in the context of this review, I considered that the term "general administration" includes matters of accommodation, provision of facilities, staffing, expenses, accounting and other practical aspects of how a COI conducts its business, but excludes anything which discloses details of the collection and assessment of evidence or the thought processes of a COI.

On this basis, and considering that it was not feasible to consider preparing redacted versions of a small number of documents from which information on the substantive work of the COI could be excluded, I found that the FOI Act did not apply to the records on the grounds that section 40(1) of the COI Act 2004 applied to them. Having found that the FOI Act did not apply to the records there was no basis for considering the relevance of any exemptions of the FOI Act. I issued my decision accordingly.

Mr A and the Health Service Executive (HSE) - Case 100151

The request in this case was received from solicitors, acting on behalf of their client who was seeking the medical records of his late wife. The HSE refused access to the records on the basis of section 28 of the FOI Act. Section 28(6)(b) of the Act provides that the Minister for Finance may make regulations for access by specific categories of requester to the records of deceased persons. The relevant regulations (S.I. No. 387 of 2009), were made by the Minister on 23 September 2009, replacing the previous regulations (S.I. No. 47 of 1999). The HSE refused access to the records.

Prior to her death, the deceased was referred to the mental health services and the records sought comprised of 16 pages created in the period from July 2008. At the time, the deceased gave her marital status as 'separated' and nominated a contact person other than her husband. The records recorded the patient's background, family situation and her accounts of experiences and perceptions. Portions of the records contained sensitive information which she gave to the doctor. The notes also included the doctor's impressions and medication details.

The 2009 Regulations introduced a public interest test and provided that regard should be had to all the circumstances and to any relevant guidelines published by the Minister. The Guidance Notes state that in relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour.

I found that having regard to the content of the records, to all the circumstances and to the relevant guidelines published by the Minister, the public interest would not on balance be better served by granting this request. I affirmed the decision of the HSE and my decision to refuse access to the records sought in this case has been appealed to the High Court. At the time of writing, a stay has been placed on the High Court proceedings pending the outcome of judicial review proceedings initiated by Mr A on the vires of the 2009 regulations.

Sunday Times and the Department of Justice and Equality - Case 100263

During 2011, I issued a decision concerning the representations made to the Minister for Justice and Equality by political representatives on behalf of lawyers seeking judicial appointment. The applicant, a Sunday Times journalist, sought access to records of all representations received by the Department in relation to judicial appointments up to July 2010.

The Department claimed that the records contained personal information and refused access on the basis of section 28(1) of the FOI Act. Following consultation by my Office with the applicant, it was agreed to narrow the request to all representations made on behalf of lawyers who were subsequently appointed to the judiciary which reduced the request to six records of political representations.

The Department claimed that it was not in the public interest to release the records and could be detrimental to the wider public interest. It said that "taken out of context, these records could be misrepresented and misused to undermine the judicial office and judicial functions of the individual judges concerned and the wider judicial body".

In my decision, I commented that the public interest is served where the process of judicial appointments is made as transparent as possible. It is not just the fact that judges are paid from public funds but more important perhaps is the fact that they are entrusted, on behalf of the people, with independent and far reaching powers. I found that the names (but not the home addresses) of the six judges concerned should be released in the public interest.