Table of Contents
In 2014 a total of 340 cases were reviewed by my Office, of which 202 went to a formal decision (59% of all reviews completed). The remaining 138 cases were closed by way of discontinuance, settlement or withdrawal (see Table 16, Chapter 4).
The outcomes of the reviews that went to formal decision in the years 2011 to 2014 are highlighted and compared as percentages in the table below.
Percentage comparison of formal decisions 2011 - 2014
As is clear from the above table, the percentage number of decisions annulled by my Office in 2014 is significantly less than the number annulled in 2013. This is primarily due to a fall in the number of cases (compared with 2013) where my Office found it necessary to annul the decision of the public body for its failure to adhere to certain mandatory provisions of the FOI Act.
The following are a sample of formal decisions that my Office issued during 2014. The full text of each decision is available on my Office’s website at www.oic.gov.ie
At the end of 2014 I issued a decision relating to the direct provision of accommodation and ancillary services to asylum seekers by the Reception and Integration Agency (RIA) of the Department of Justice and Equality. Ms Martina Fitzgerald, an RTÉ journalist, sought access to records of inspection reports for eight named Asylum Centres and detailed information relating to the direct provision of support for those seeking asylum in Ireland for the period 2011 to 2012.
Ms Fitzgerald specifically requested access to the general information gathered for statistics published in the annual report. At a late stage in this review it came to light that the RIA maintained a database which contained some of the information covered by the request. It would appear that this database was used to produce the statistics for the annual report, yet it seems that it was not examined by the Department until my Office pursued the question of whether records existed from which the annual report data was collated. Ms Fitzgerald specifically asked for this type of information and, in my view, relevant records could have been retrieved from this database in the form of a report or otherwise and considered for release where the FOI Act provided for this.
Furthermore, it seems that no consideration was given by the Department to the provision of redacted records, where appropriate, as provided for in section 13 of the FOI Act. It is most unsatisfactory that the database records should have been brought to the attention of my Office at such a late stage when, clearly, they should have been considered in 2012.
My Office varied the decision of the Department in the case. While affirming the decision to refuse access to the personal information of individuals recorded on the database and in the records sought, it directed the release of the remaining withheld records subject to redaction of the personal information of individuals. My Office also annulled the decision to refuse part of the request under section 10(1)(c) on the ground that it was voluminous as the Department had not complied with the requirements of section 10(2) to assist or offer to assist Ms Fitzgerald to amend the request so that it would no longer fall to be refused under that section.
A woman applied to the HSE for copies of her uncle’s medical records relating to his care in St. John’s Hospital, Sligo. When she received the records, some pages were missing. The missing pages related to days on which the family had concerns about the care of their uncle. The HSE’s internal review decision of 26 July 2013 stated that, following a search conducted by the Director of Nursing at the Hospital, no clinical medical records for the dates outlined could be found.
At no stage during the course of the review was the HSE in a position to offer an acceptable explanation as to why the records were missing. It was clear that the records concerned had been created by Hospital staff and placed on the patient’s file but at some point the records went missing.
In cases where concerns arise in relation to a person’s care, the availability of contemporaneous medical notes may be critical to addressing any issues arising regarding the care and treatment of the patient, and the absence of such records was a matter of serious concern, not just in the context of FOI, but in a broader context. Having examined the file and the responses of the HSE to the initial search queries raised by my Office, it appeared to me that the question of possible wilful removal of records from a patient’s file arose. From the various accounts of what happened, it appears that the patient’s file was brought along to a meeting that staff had with the applicant on 14 January 2013 but that it was not opened at that time. The fact that certain pages were missing came to light when the FOI request was made.
My staff asked the HSE if any investigations or enquiries had been conducted or if the matter had been referred to An Garda Síochána. In response, the HSE stated that it was not able to establish any prima facia case to warrant a disciplinary investigation. It also said that involving the Gardaí would be a matter for local management and that they would not be called in the absence of evidence of a crime. Notwithstanding the HSE’s response, my Office formed the view that it was unlikely that the records were mislaid or misfiled.
Nevertheless, my role in cases where records sought cannot be found is limited to determining whether the public body has taken all reasonable steps to ascertain their whereabouts. This means that I must 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 also must assess the adequacy of the searches conducted by the public body in looking for relevant records.
According to the HSE responses, the records at issue were present at meetings between the applicant and Hospital staff on 17 December 2012 and 14 January 2013, though they were not used at either meeting. Based on the recollection of a staff member, the HSE stated that “following an FOI request [a HSE member of staff] checked the file and the portion of the nursing notes, now missing, was present. The file was on the Rehab Unit overnight and on the following morning three pages of the nursing notes had been removed”. The HSE stated that a comprehensive search of the filing room, Rehab Unit, Day Hospital and other Units, and Nursing administration offices, was conducted at the time but the missing notes were not located. The HSE also stated that Hospital Administration interviewed all relevant staff regarding the disappearance of these notes, i.e. nursing staff, clerical staff and the relevant Medical Officer. This process included interviewing certain staff members whose names were suggested by the applicant as being amongst those who witnessed the relevant notes prior to their disappearance. According to the HSE, five members of staff have tried to locate the missing records.
While it is a matter of serious concern that personal medical records held by the HSE can go missing in a case such as this, my Office has no powers to direct public bodies as to how to manage their records. Furthermore, while I am glad to note that, during the course of the review, the HSE informed my Office that as a result of this incident, changes had been made to records management arrangements in the Hospital, including more secure storage arrangements and restrictions on access to medical records, it is understandably very disappointing and upsetting for the applicant that she has not been able to obtain copies of the records. However, having regard to the details of the searches undertaken by the HSE in its efforts to locate the records, I had no option but to conclude that the HSE had taken all reasonable steps to locate the records and that it was therefore justified in deciding that the records could not be found.
This review concerned the refusal by the Courts Service to release details of expenses claimed by each judge of the Supreme Court, High Court, Circuit Court and District Court for the year 2012.
The Courts Service provided the applicant with an explanation of the types of expenses claimed by judges and with tables detailing expenses claimed by all judges for 2012 with the names of the judges withheld. The Courts Service argued that the disclosure of the details of the expenses claimed by each judge was personal information and was exempt from release under section 28 of the FOI Act. It also argued that the information was exempt from release under section 24 of the Act on the basis that release of the details could reasonably be expected to affect adversely the security of the State.
I accepted that, in a general way, details of expenses claimed by individual judges can be said to be information relating to the financial affairs of those judges and so comes within the definition of ‘personal information’ for the purposes of the Act. However, I noted that the information relates to the judges in their roles as public officials and to payments made to them in connection with their public duties. In one of the earliest cases decided by my Office (Case no. 99168), the then Commissioner found that expenses paid to the elected members of the Houses of the Oireachtas to defray expenses incurred by them in discharging their functions as public representatives, did not arise out of some private aspect of the claimants’ lives. I found that the same considerations applied in this case. As such, I found that the public interest in ensuring accountability for the use of public funds outweighed any right to privacy which judges might enjoy in relation to details of their expenses claims.
Section 24(1)(a) provides that a head may refuse access to a record if it could reasonably be expected to affect adversely the security of the State. It was argued that the disclosure of details of travel expenses paid to individual judges would allow for the identification of judges who are away from home frequently, that the availability of such information could pose a risk to judges and/or their families, and that a threat to the safety of a judge or his/her family might be used to compromise judicial independence, thereby affecting the security of the State, particularly in political cases and cases being heard in the Special Criminal Court.
Having considered the arguments made, I found that the harms identified were speculative in nature and that it was not reasonable to expect that the security of the State would be adversely affected arising from the disclosure of expenses paid to individual judges in 2012. I noted that granting the request would disclose nothing more than the overall amount of expense payments claimed by specific judges for expenses incurred in the course of the performance of their functions during 2012. It did not appear to me that regard was had to the fact that the information at issue was historic and that the level of detail did not extend beyond describing the general nature of the expense, i.e. in respect of travel, subsistence, or judicial attire and incidental expenses. I also noted that the identities of which judges are sitting in a number of the courts on any given day can usually be discerned from the Legal Diary published on the website of the Courts Service and that such information published in the Legal Diary, already publicly available, did not appear to be considered an undue security risk.
I found that the Courts Service had not justified its decision to refuse access to the details of the expenses claimed by each judge and I directed the release of the information sought.
In this case, a request was made to the Department of the Environment, Community and Local Government for copies of management letters that were issued to city, county and town managers in respect of statutory audits conducted by the Department’s Local Government Audit Service (LGAS) in respect of the financial years 2010, 2011 and 2012. The Department consulted all City and County Councils under section 29 of the FOI Act before a decision was made to release the records in the public interest. Cork City Council applied to my Office for a review of that decision.
The records at issue comprised letters prepared by the Department as part of their audit of the Council’s annual financial statements for the relevant years. The Council argued that the records sought were exempt from release under section 27 of the FOI Act. While that section provides for the protection of commercially sensitive information, there appears to be some uncertainty as to whether it might apply to protect the commercial interests of public bodies. As a general principle, I accept that section 27 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. As such, it is not clear to me that it is entirely appropriate for a public body, which is engaged in the provision of public services, to seek to claim exemption under section 27 to protect its financial interests. I take the view that such protection generally lies in the exemption provided for at section 31 of the FOI Act which is concerned with protecting the financial and economic interests of the State and public bodies.
Nevertheless, I was prepared to accept in the circumstances of this case that the FOI Act does not prohibit the Council from relying upon the provisions of section 27(1)(b) where it is claiming that the disclosure of the management letters at issue could reasonably be expected to result in it incurring a material financial loss.
The Council argued that the letters could highlight weaknesses which could give rise to material financial losses if released. However, it did not identify any specific information in the records whose release could reasonably be expected to give rise to the harm envisaged. My Office took the view that where audits identify weaknesses in internal control mechanisms, there is a public interest in knowing that such weaknesses have been identified and that public bodies are being held to account in terms of addressing those weaknesses.
The Council also argued that the principle of openness and transparency is well served by separate published reports by the LGAS and the Audit Committee wherein each and every concern they have can, and is, expressed and subsequently debated by elected members and, indeed, reported in the press. However, my Office found that this does not mean that further mechanisms for increasing such openness and transparency are not in the public interest. My Office found that any public interest in withholding the records at issue was clearly outweighed by the public interest in granting access and directed the release of the records.
This case involved the BAI’s investigation into the RTÉ “Prime Time Investigates - Mission to Prey” programme that was broadcast on 23 May 2011 and resulted in the defamation of an Irish priest who had previously served as a missionary in Kenya. The BAI’s Investigation Report was published in full in May 2012, but the issue before me was whether the BAI was justified in refusing access to the interview notes and written submissions made by or on behalf of RTÉ and the individual programme makers in relation to the investigation.
In my decision, I recognised that the principle of “journalistic privilege” is well established in Irish and European law, i.e. that journalistic source material is entitled to special protection in order to ensure the free flow of information to journalists and thus safeguard freedom of expression. In the circumstances, I accepted that broadcasting investigations generally require confidentiality in order to be effective and that the BIA’s decision was justified under section 21(1)(a) of the FOI Act, in light of the significant harm that would arise from disclosure of the records concerned.
Later in 2015, the FOI Act 2014 will apply to administrative records held by An Garda Síochána in relation to human resources, finance and procurement matters. It will not apply to records held concerning its operational functions. Nevertheless, situations occasionally arise where the question of access to records created by An Garda Síochána and held by public bodies subject to FOI is raised.
The record at issue in this case was the Garda report to the Department on the Phoenix Park concerts in July 2012 that had resulted in “serious incidents of public disorder”. The Department refused to grant access to the report under sections 23(1)(a)(iii) (law enforcement and public safety) and 26(1)(a) (information obtained in confidence) of the FOI Act. Both the Department and An Garda Síochána expressed concerns about records containing information about policing methodologies being made public. They maintained that disclosure of information contained in the report, “no matter how apparently innocuous”, could reduce the ability of An Garda Síochána to protect life and property.
However, the FOI Act does not exempt Garda reports to the Minister as a class. Neither An Garda Síochána nor the Department identified the policing procedures or methodologies that were considered to be at risk in this case. It was also not explained how any harm could reasonably be expected to arise in the event of the release of the report. Moreover, I found no basis for concluding that the release of the report would be likely to have any deterrent effect on the supply to the Minister or the Department of similar such information in the future. I concluded that the report should be released in full, subject to certain agreed redactions.
This was a remitted case dating from 2009 (and originally from 2000) involving requests made by the applicant for access to records relating to himself and his former step-daughter, Ms X, who was a 20-year old university student at the time of my decision. The records concerned alleged child sexual abuse, but there was evidence that the allegations had been made for malicious purposes. Regardless of the evidence of malice, however, the records concerned deeply troubled family circumstances.
In my decision, I clarified my approach to the public interest balancing test, having regard to the judgment of the Supreme Court in the Rotunda Hospital case. I noted that an objective rather than a subjective standard applies in relation to the public interest. In relation to the question of procedural fairness, I explained there is a strong public interest in revealing information that would shed light on whether the HSE and the Hospital carried out their functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. I emphasised, however, that the public interest test does not give me the authority to investigate complaints against public bodies or to act as an alternative dispute mechanism with respect to actions taken by public bodies. In light of the records that had already been released to the applicant, which satisfied the public interest in openness and accountability to some degree, I concluded that, on balance, the public interest in granting access to the remaining records at issue was not sufficiently strong to outweigh the public interest in upholding the privacy rights of the third parties concerned.
[Note: This decision has been appealed to the High Court by the applicant.]
In late 2008, the applicant made a 34-part request to the Department, for records concerning bus routes and services, State aid, audits, inspections, statutory interpretation, advice, communications, diesel rebate and prices, and other matters. He had submitted this request after the Department had asked him to narrow down an earlier, similar request. The Department then processed the modified request, and the applicant ultimately appealed its decision to this Office in March 2009. My decision issued on 13 November 2014.
It is very regrettable that it took five years to issue my decision in this case. Quite simply, up to now, my Office did not have the necessary staff resources to devote to the many broadranging and varied aspects of this application for review. In any case, such a delay has implications for the currency of records released. In this particular case, in the intervening years, certain functions of the Department, and its control of related records, transferred to the National Transport Authority (NTA). As the NTA could not be joined to my review, I took the view that I no longer had remit to consider any records relevant to the request that were now held by the NTA. While those records might ultimately have been found to be exempt, I nonetheless accept that the delay in processing this review was unacceptable. However, I am confident that my Office’s revised processes will ensure that such an unacceptable delay will not arise again.
While my review considered whether the Department had justified its decision not to fully grant the records it considered relevant to the various parts of the request (which refusals I largely upheld), I consider that the Department would have been entitled to refuse the applicant’s request at the outset, in its entirety, under section 10(1)(c) of the FOI Act. This is an administrative ground for refusal, which is applicable if granting the request would require the retrieval and examination of such number or kind of records as to cause a substantial and unreasonable interference with or disruption of the work of the public body concerned. The provision recognises the extent to which the retrieval and examination of records might impact on the work of public bodies, and it can be relied upon once the body has helped, or offered to help, a requester to amend their request so that it becomes more manageable from the body’s perspective (section 10(2) refers).
The request in this case sought 34 different categories of record, some of which are listed above. All except three elements of the request were very broadly and vaguely framed (such as seeking “documentation of any kind relating to” the particular subject matter). Some records dating from 1990 i.e. before the commencement of the FOI Act, were sought. I regularly encourage public bodies to engage with FOI requests proactively and the Department’s decision to deal with this FOI request was evidently in keeping with the spirit of the FOI Act. However, processing the request and internal review, and dealing with this Office’s review, clearly placed a burden on the Department of a kind that, in my view, was not intended by the Oireachtas when passing the FOI Act.
This case has its background in actions taken by Meath County Council on a planning enforcement matter. The applicant sought records concerning two Enforcement Notices that the Council had issued to him in 2004 and 2009, both of which concerned alleged breaches of planning permission granted to the applicant and his building company in 2002. In 2006 and 2010, the Courts found the Notices to be, respectively, invalid and procedurally flawed.
The Council claimed that the records it had considered, which it created further to the court cases, continued to attract litigation privilege. Records that would be exempt from production in proceedings in a court on the ground of legal professional privilege are exempt from release under section 22(1)(a) of the FOI Act.
In considering the Council’s claim of litigation privilege, I had regard to the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board  IEHC 135. In her judgment, Ms Justice Finlay Geoghegan made it clear that the onus is on the party asserting privilege to “establish ... as a matter of probability that litigation ... was apprehended or threatened from [a particular date]”. She also ruled that, unlike legal advice privilege, litigation privilege does not “automatically continue beyond the final determination of either that litigation or ... closely related litigation.”
My Office invited the Council to establish, on the balance of probabilities, that litigation regarding the alleged planning breaches was contemplated or pending, or that closely related litigation had either not concluded or was contemplated or pending. The Council’s response was that its “litigation file in respect of [the applicant] is still a current file” because the planning status of the applicant’s development “has to date not been judicially determined”. The Council argued that the possibility remained that the issue could come before the Courts at a later date and that litigation privilege may well continue beyond the determination of the Proceedings taken to date.
I found that the Council did not justify its assertion that litigation privilege may well continue in the circumstances of the case. That there is a possibility that an event will occur at some unspecified point in time does not mean, as is the standard required by the Courts, that it will happen on the balance of probabilities. Thus, I did not consider the Council had justified its contention that the Courts would accept that legal professional privilege applies to the records on the basis that they continued to attract any litigation privilege that may once have applied to them.
Aside from failing to make arguments that it was specifically invited to make, I was very disappointed with the Council’s failure to engage with this FOI request and with my review. It took four months for the Council to acknowledge that it had failed to deal with one completely unambiguous part of the request, yet it offered no explanation for either its failure to do so, or for why it took so long to respond to my Office’s repeated queries for such an explanation.
The Council also took three months to confirm that it had provided records to the applicant under Court discovery procedures, a factor that is relevant to considering whether release of such records under FOI would be a contempt of court, and to which section 22(1)(b) is relevant. It failed to identify the records so discovered. Furthermore, it essentially deprived the applicant of the opportunity to withdraw a related application, and get a refund of his application fee, by not alerting this Office to the fact that the record at issue in that case was also subject to review in the present case.
Having regard to the manner in which the Council dealt with both the applicant and my Office, I considered it appropriate to take the rare step of directing the Council to release to the applicant those records that I found not to be exempt within 10 working days of the expiration of the time for the bringing of an appeal to the High Court.
Medical Independent – 11/09/2014
Sunday Business Post – 07/09/2014
Metro Herald - 18/08/2014