Chapter 2: Issues Arising

This Chapter highlights issues which arose during the year concerning the operation of the FOI Act.

The issues discussed are:

Office workload

As I outlined in Chapter 1, the implementation of revised structures and work process following an organisational review and the recruitment of a number of additional staff members during 2014 has resulted in significant increases in productivity for the year.

While the revised structures and processes and the recruitment of staff were necessary measures to help my Office deal with the significant backlog of work on hand at the start of the year, it was also very important that my Office could position itself to readily manage the anticipated increase in work arising from the introduction of new FOI legislation. As it transpires, the anticipated increase in demand is not now likely until the second half of 2015. Nevertheless, the tremendous work carried out in 2014 in addressing the backlog of work on hand has enabled us to prepare the groundwork for the expected increased demands on our services in the months ahead.

I have set challenging objectives for my staff this year to ensure that we build upon the strong performance achieved during 2014. Amongst other objectives, I am keen to ensure that the time taken to conduct reviews continues to fall and moves ever nearer to the statutory requirement that reviews are completed, in so far as practicable, within four months. Certainly, by the end of 2015, I am hopeful that my Office will have no cases older than eight months on hand. Achievement of this objective would represent a significant improvement on recent years.

S32 non-disclosure provisions

It is now almost two years since Emily O’Reilly presented the Third Report of the Information Commissioner to the Joint Committee on Finance, Public Expenditure and Reform under section 32 of the FOI Act.

Section 32 provides for the mandatory refusal of access to records whose disclosure is prohibited, or whose non-disclosure is authorised, by other enactments. The section subordinates the access provisions of the FOI Act to all non-disclosure provisions in statutes except for those cited in the Third Schedule. The Act provides for the review by the Joint Committee of the operation of any enactments that authorise or require the non-disclosure of records, to determine whether they should be amended or repealed, or be added to the Third Schedule.

In my 2013 Annual Report, I expressed my disappointment that the Joint Committee’s report of its deliberations remained outstanding. I suggested that the then FOI Bill presented an excellent opportunity for including any amendments to the Third Schedule as recommended by the Joint Committee. One year later, the report of the Joint Committee’s deliberations remains outstanding.

It is noteworthy that the Houses of the Oireachtas saw fit to ensure that the requirement to review non-disclosure provisions would remain in place in the FOI Act 2014. Under section 41, all Government Ministers must furnish to the Joint Committee a report on the enactments within their respective areas of governance that contain provisions prohibiting the disclosure or authorising the non-disclosure of certain records. Under section 41(6), the first such report must be furnished within 30 days after the fifth anniversary of the day on which the last report, under section 32 of the Act of 1997, was furnished and subsequent reports must be furnished every five years thereafter.

Under the Act of 1997, the Ministers were due to submit their first reports to the Joint Committee by 21 April 1999 and to submit subsequent reports every five years thereafter. Had the provisions of the Act been strictly adhered to, the Ministers would have submitted their fourth reports by 21 May 2014 for consideration by the Joint Committee. As things stand, the third reports remain to be considered.

It seems to me that delay in consideration of the third round of reports brings with it an opportunity to bring the process back on track for future reporting requirements and in line with the provisions of the Act of 2014. Rather than require Ministers to submit the fourth round of reports that were due in 2014, it may be preferable for the Joint Committee to report on its deliberations of the reports currently before it and to require the Ministers to submit their next reports by 21 May 2019 and every five years thereafter. I intend to pursue this matter with the Department of Public Expenditure and Reform.

Missing records

Section 10(1)(a) of the FOI Act allows a public body to refuse a request where the records sought cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In December 2014, I upheld a decision of the HSE to refuse access to certain medical records under section 10(1)(a) in circumstances where records that were known to exist were missing. The request was for medical records held by St. John’s Community Hospital, Sligo. I upheld the HSE’s decision reluctantly, given that no acceptable explanation for the absence of the relevant records had been given. The full decision can be viewed on my Office’s website at www.oic.gov.ie (Case No 130242 - Ms GK and the Health Service Executive). More specific details of the case are set out in Chapter 3.

When reviewing the decision of a public body to refuse a request under section 10(1)(a), I have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in such search cases generally consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.

In the particular case in question, while I formed the view that it was unlikely that the records sought were mislaid or misfiled and while it appeared to me that the situation concerned one of possible wilful removal of records from a patient’s file, I was satisfied that extensive searches were carried out by the HSE for the records and that further searches are unlikely to result in them being found. Therefore, I had no option but to conclude that the decision of the HSE was justified on the basis of Section 10(1)(a) of the FOI Act.

Nevertheless, given my serious concerns on the matter, I decided to bring the case to the attention of the Director General of the HSE following the conclusion of the review. Subsequently, in early February 2015, I received a reply from the HSE’s Area Manager for Sligo/Leitrim/West Cavan. The Area Manager stated that every effort was made to trace the patient records and that a policy to deal with patient files within the relevant HSE area is being rolled out. He also acknowledged shortcomings in the processing of the FOI request and he assured me that procedures have been put in place to ensure that this does not happen again.

I appreciate the proactive response of the HSE to my concerns. I also wish to acknowledge that the circumstances of this case highlight issues within a specific area of the HSE and not a systemic nationwide issue within the HSE generally. However, the issues pertinent to this case can offer valuable lessons to any public body about record management practices and their obligations in responding to FOI requests. It is also noteworthy that the Act of 2014 now provides, at Section 52, that a person who destroys a record with intention to deceive shall be guilty of an offence and be liable on summary conviction to a fine.

Voluminous FOI requests

Section 10 of the FOI Act allows a public body to refuse access to records on certain administrative grounds. Section 10(1)(c) provides that a request may be refused if granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of the public body concerned.

However, section 10(2) requires that such “voluminous” requests shall not be refused under section 10(1)(c) unless the public body has assisted, or offered to assist, the requester in amending the request so that it no longer falls within the parameters of 10(1)(c). Thus, a public body cannot rely on section 10(1)(c) where it has not assisted or offered to assist the requester as required by section 10(2).

I am aware of a growing number of applications made to my Office where public bodies have refused FOI requests under section 10(1)(c) without having first assisted or offered to assist the requester in amending the request so that it no longer falls within the parameters of 10(1)(c). The requirement to assist as set out in section 10(2) is mandatory. Accordingly, where such cases come before my Office, I generally annul the public body’s decision to refuse the request. The effect of such an annulment is that the public body is required to make a new, first instance, decision in respect of the original request, and to offer assistance to the requester in accordance with the provisions of section 10(2), should this be deemed necessary.

While section 10(1)(c) is in place to prevent substantial and unreasonable disruption to the work of the public body, there is an onus on public bodies to ensure that the provision is correctly applied. It has been my experience that requesters are quite often prepared to amend their requests to make them more manageable, to the benefit of all concerned. Of course, if the requester refuses to amend the request, the public body is fully entitled, at that stage, to make a determination as to whether or not the request should be refused under section 10(1)(c). Correct application of the provision will prevent the necessity for annulments by my Office and for requests to be dealt with afresh.

Frivolous or vexatious requests

While I have outlined some of the more significant decisions of my Office for 2014 in Chapter 3, I want to draw particular attention to an issue that arose in a small number of applications for review made to my Office. On a number of occasions during 2014, I have had cause to consider whether certain requests are frivolous or vexatious or form part of a pattern of manifestly unreasonable requests.

This issue may arise for consideration in one of two ways. Firstly, a public body may refuse a request under section 10(1)(e) of the Act if it considers that the request is frivolous or vexatious, or forms part of a pattern of unreasonable requests from the same requester or other requesters acting in concert. Such decisions are subject to review by my Office. Secondly, section 34(9)(a)(i) of the Act provides that I may refuse to accept an application for review or discontinue a review if I form the opinion that the application for review is frivolous or vexatious.

I consider a request or an application to be “frivolous or vexatious” within the meaning of the FOI Act where it either is made in bad faith, or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. In my view, the refusal of requests on the grounds that they are frivolous or vexatious is not something that should be undertaken lightly. The FOI Act demands that FOI bodies meet very high standards in dealing with requests. However, I am also of the view that the legislation assumes reasonable behaviour on the part of requesters.

In recent years, all public bodies, my Office included, have faced significant challenges in meeting increased demands with fewer resources. Notwithstanding those increased demands, I have been keen to stress that FOI is a core function of public bodies and is not something that can be afforded lesser weight than other statutory functions when balancing competing demands. On the other hand, I am keen to ensure that requesters do not abuse the important rights afforded to them under the FOI Act. I am also concerned to ensure that the scarce resources of my Office are not abused.

During the year, I discontinued two reviews from the same applicant as I formed the opinion that the applications for review were vexatious. I found that the purpose of the applicant’s requests to the public body was directed at an objective unrelated to the access process and that they were submitted to the body for what I considered to be nothing other than nuisance value.

It is worth noting that in 2013 the former Commissioner also discontinued seven separate review applications made by the same applicant to the same public body, on the ground that those applications were frivolous or vexatious. The details of those cases are set out in more detail in the following section concerning appeals to the superior courts.

In exercising my discretion to discontinue the two reviews in 2014, I considered that both related to a long-standing grievance the applicant had with the public body concerned and that they formed part of the same pattern of conduct amounting to an abuse of process as that identified by the former Commissioner.

I will continue to ensure that my Office’s limited resources are put to the best use possible and I will continue to expect reasonable behaviour on the part of requesters.

Appeals to the Courts

For the first time since the inception of my Office, an applicant for review applied to the High Court for an Order directing my Office to complete the review in his case. The review had been suspended pending the outcome of a related High Court appeal concerning the same applicant, details of which are described in more detail below (Westwood Club and the Information Commissioner). At the time of writing, the matter stood adjourned by the Court to allow my Office to consider the application for review.

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. A decision of the High Court can be appealed to the Court of Appeal. Four appeals of decisions of my Office were made to the High Court in 2014, three by the applicant and one by the public body. Ex-tempore judgment was delivered in one of the four cases (see below) while the case that had been brought by the public body was remitted back to my Office by agreement. The two remaining High Court appeals are listed for progression in 2015.

Two appeals of decisions of the High Court were made to the Court of Appeal in 2014, one by the applicant and one by my Office. At the time of writing, my Office had not made a final determination on whether to proceed with its appeal. The remaining case is listed for hearing later in 2015.

No Supreme Court judgments were delivered in 2014.

As I mentioned above, an ex-tempore judgment was issued in one case in 2014. In the case in question, (Case 120129 – Mr X and the Health Service Executive) the applicant appealed my Office’s decision to uphold a decision of the HSE to refuse access to certain records held on a file relating to an assessment of the applicant’s son.

Counsel for my Office argued that the applicant had not identified in his appeal a point of law as required by the FOI Act. It was brought to the Court’s attention that the applicant had been informed of this issue through the exchange of affidavits.

Mr. Justice Eager delivered judgment after a brief period of consideration. He found that no point of law had been identified by the applicant and that the appeal was not in keeping with Order 130 of the Rules of the Superior Courts which requires that a ground of appeal and point of law be stated. He therefore dismissed the appeal.

Three written High Court judgments were delivered in 2014. The full texts of the judgments are available on www.oic.gov.ie. What follows is a brief summary of the main points in the cases.

Minister for Health and the Information Commissioner [2013] 265 MCA. Judgment of Mr. Justice O’Neill, 9 May 2014

Background

The applicant applied to my Office for a review of the decision of the Department of Health to refuse his request for a copy of a transcript of a meeting he had with Mr Justice Thomas Smyth in connection with an inquiry conducted by Mr Justice Smyth into certain matters relating to Our Lady of Lourdes Hospital Drogheda, commonly referred to as the “Drogheda Review”. The Department refused the request on the ground that it did not hold the records in question for the purposes of the FOI Act.

Issue

The Department argued that the transcripts were the property of Mr Justice Smyth and were lodged with it for safekeeping only. My Office found that the records were both held by, and under the control of, the Department under section 2(5)(a) of the FOI Act. My Office annulled the Department’s decision and directed it to process the FOI request. The Department appealed my decision to the High Court

Conclusion of the Court

The Court found that mere lawful possession of a document was not sufficient to make the document amenable to disclosure under the FOI Act on the basis that it was “held” by the public body within the meaning of section 6(1) of the FOI Act.

On the matter of whether the records were under the control of the Department, the Court found that because of his independent status as reviewer and because the documents at issue were brought into existence by Mr. Justice Smyth for the purposes of the review, the only party who could assert any proprietorial interest or any other form of legal control over the documents was Mr. Justice Smyth.

The Court found that the records were not held by, or under the control of, the Department for the purposes of the FOI Act and it upheld the Department’s appeal.

While my Office has submitted an appeal of the High Court’s decision to the Court of Appeal, no decision had been taken at the time of writing as to whether the appeal will proceed.

Westwood Club and the Information Commissioner [2013] 176 MCA. Judgment of Mr. Justice Cross, 15 July 2014

Background

The applicant applied to my Office for a review of a decision of Bray Town Council to refuse access to records held by the Council concerning Bray Swimming Pool and Sports Leisure Centre Limited (the company).

Issue

During the course of the review, the Council accepted that it held certain records as shareholder of the company but it argued that such records were commercially sensitive and exempt from release under section 27(1)(b) of the Act. It also argued that any other relevant records that were held by the company were not under its control and were not subject to the Act. Section 2(5)(a) of the Act provides that a reference to records held by a public body includes a reference to records under the control of the body.

My Office affirmed the decision of the Council to refuse access the records at issue on the basis that certain records held by it were commercially sensitive. My decision also affirmed that other records as held by the company were not under the Council’s control such that they could be deemed to be held by the Council under section 2(5)(a) of the FOI Act. The applicant appealed that decision to the High Court.

Conclusion of the Court

The Court found that my Office erred in relation to the burden of proof in a preliminary views letter to the applicant in so far as it purported to place the onus on the applicant of demonstrating that the records held by the Council should be released. Cross J. found that my Office’s decision was fatally undermined by the failure to repudiate the statement in the preliminary view concerning the burden of proof and by the incorporation of the reasoning in the preliminary view in the decision without such a repudiation.

On the matter of the records held by the company, the Court found that my Office failed to adequately consider all relevant matters in relation to the issue of control. The Court found that my Office had not considered that the Council had provided a loan in excess of €10million to the company and that my Office did not take into account the fact that the company was in the possession of the property under a lease that was not commercially viable.

By Order dated 23 October 2014, my decision was discharged and the matter was remitted to my Office for further consideration. The Court further ordered that the decision was to be made within ten weeks of the date of the Order by a decision maker other than those involved in the making of the initial decision. A new decision was made by me in December 2014 and is available to view on my Office’s website (Case 140287 – Mr X and Bray Town Council).

Patrick Kelly and the Information Commissioner [2013] 325 MCA. Judgment of Ms. Justice Iseult O’Malley, 7 October 2014

Background

The applicant submitted seven separate applications to my Office for review of decisions taken by University College Dublin (UCD) in relation to requests he made under the FOI Act. All seven requests related in some way to a long-standing grievance the applicant had with UCD. The former Commissioner found that the applicant’s use of the FOI Act constituted part of his strategy for furthering and/or prolonging that grievance and also constituted a pattern of conduct which suggested an abuse of the FOI process. She exercised her discretion to discontinue all seven applications under section 34(9)(a)(i) of the FOI Act, on the basis that the applications were vexatious. The applicant submitted an appeal to the High Court.

Issue

The applicant argued, amongst other things, that the former Commissioner did not correctly interpret the phrase “frivolous or vexatious” in arriving at her decision. He also argued that his right to fair procedures was breached, insofar as submissions made by UCD to my Office were not made available to him for comment, prior to the decision to discontinue his applications for review.

The applicant further argued that the Senior Investigator who filed the affidavit in relation to the Court proceedings in November 2013 did not have delegated authority to do so as the post of Information Commissioner was vacant at the time.

Counsel for my Office argued that the decision to discontinue the reviews was not a decision taken following the reviews, and as such no appeal lies against a decision by the Information Commissioner to discontinue a review.

Conclusion of the Court

The Court found that the statutory appeal process is intended to relate to points of law arising from substantive decisions of the Commissioner following a review and not to a decision of the Commissioner as to whether to carry out a review or to discontinue one that has commenced. The Court held that it had no jurisdiction to entertain the appeal.

Nevertheless, in the event that it might be mistaken, the Court went on to consider the test applied by the former Commissioner for determining whether an application is frivolous or vexatious. O’Malley J. found that the former Commissioner did not err either in the legal test to be applied or in its application to the facts.

O’Malley J. stated that in determining whether an application to the Information Commissioner should be described as vexatious, the Commissioner was entitled by statute to use her discretion. She found that there was no obligation on the Commissioner to prove the applicant’s state of mind and that inferences may be drawn on a common sense basis from a pattern of conduct.

On the matter of delegated authority, the Court held that it is not the law that the staff of public service bodies lose their legal right to continue to do their jobs and to make the decisions that they were previously authorised to make every time there is an interregnum in the position of head of such agency. The Court dismissed the applicant’s appeal. The applicant has since appealed the Court’s decision to the Court of Appeal.

Irish Examiner – 07/11/2014

Irish Examiner - 04/10/2014



Irish Times – 20/10/2014

The Herald - 04/10/2014



Irish Times – 17/10/2014

Connacht Sentinel – 16/09/2014