The FOI Act 2014 provides for a general right of access to records held by public bodies and also provides that records should be released unless they are found to be exempt. The Act gives people the right to have personal information about them held by 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 primary role of the Office of the Information Commissioner is to conduct independent reviews of decisions made by public bodies on FOI requests, where members of the public are dissatisfied with responses to those requests. As Information Commissioner, I have a further role in reviewing and publishing commentaries on the practical operation of the Act.
The FOI Act applies to all public bodies that conform to the definition of public body in Section 6(1) of the Act (unless they are specifically exempt or partially exempt under the provisions of Section 42 or Schedule 1 of the Act). Bodies such as Government Departments and Offices, local authorities, the Health Service Executive, voluntary hospitals, and universities are included. As new public bodies are established, they will automatically be subject to FOI unless they are specifically exempt by order made by the Minister.
The European Communities (Access to Information on the Environment) Regulations 2007 to 2014 provide an additional means of access for people who want environmental information. The right of access under the AIE Regulations applies to environmental information held by or for a public authority. The primary role of the Commissioner for Environmental Information is to review decisions taken by public authorities on requests for environmental information. Both access regimes are legally independent of each other, as are my roles of Information Commissioner and Commissioner for Environmental Information.
In addition to the functions outlined above, the European Communities (Re-use of Public Sector Information) (Amendment) Regulations 2015 (S.I. No. 525 of 2015) provide that the Information Commissioner is designated as the Appeal Commissioner. As such, my Office can now accept applications for review of decisions taken by public bodies in relation to requests made under the Regulations to re-use public sector information, including decisions on fees and conditions imposed on re-use of such information.
Among the key features of the FOI Act 2014 were the removal of the requirement to pay upfront fees for making FOI requests to public bodies and the significant reduction in the cost of applying to my Office for reviews. Those changes had an almost immediate impact on FOI usage levels, which have continued to rise steadily since.
I am pleased to report that during 2016, my Office rose to the significant challenge of managing the increased demands for its services while continuing to significantly improve case turnaround times.
My Office recorded a 32% increase for the year in the number of reviews accepted when compared with 2015. Importantly, it also achieved a 34% increase in the number of reviews completed. Our impressive completion rates are due, in part, to the revised work processes we introduced in July 2014. In 2013, the last full year before we changed our processes, my Office completed 258 reviews. The completion rate for 2016, at 433, represents a 67% increase in reviews completed when compared with 2013.
My Office also met its 2016 business plan target of completing 60% of all reviews within four months. The percentage of reviews completed within four months has grown steadily since 2013, when only 26% of reviews were completed within that timeframe. It is also noteworthy that 99% of all reviews completed in 2016 were completed within twelve months.
As Environmental Commissioner, I am pleased to report on a significant improvement in case completion rates, primarily achieved as a result of my Office having recruited additional staff members specifically for the purpose of processing appeals received under the AIE Regulations. During the year, my Office completed 30 cases, an increase of 50% on 2015. However, as with FOI, demand for the services of the Office of the Commissioner for Environmental Information has also continued to rise. The ability to keep abreast of the increased demand will give rise to particular challenges for 2017 and at the time of writing, I am seeking to increase the staff resources available to carry out this work.
2016 also saw tremendous steps forward in my Office achieving one of its primary strategic objectives, namely to develop and enhance our management and administrative frameworks to enable and underpin our objectives of improving the wider public service and delivering an excellent customer focussed service.
Work has commenced on replacing and enhancing our IT systems. New websites are being developed for both the OIC and OCEI. The new websites will contain an improved online facility for submitting reviews and appeals. In 2016, my Office launched a new intranet service, designed to deliver more efficient internal communications. Towards the end of 2016, work also commenced on the development of new document management systems and case management systems. I discuss these developments in more detail later in my Report.
The removal of the requirement to pay up-front fees for making FOI requests to public bodies and the corresponding increase in usage levels meant that 2016 was also a very challenging year for public bodies. Unfortunately, the increased demand for services does not appear to have been matched by a corresponding increase in the allocation of resources by public bodies to the processing of FOI requests.
In November 2016, in an address I gave at the World Conference of the International Ombudsman Institute, I suggested that FOI has transformed public life and delivered on many of its promises. However, I warned that we must not be complacent. I noted that public finances remain stretched and I expressed my concern that many public bodies are failing to ensure that the administration of FOI, as a statutory function, is afforded as much weight as any other statutory function.
I am disappointed to report that my Office has noted ongoing and, in some cases, increasing examples of some public bodies failing to meet the statutory requirements of the FOI Act. For example, later in my Report I comment on the number of occasions that public bodies have not responded to FOI requests within statutory timeframes and on the fact that my Office noted an all-time high of instances where the request was deemed to have been refused by the public body in the absence of a timely decision. I also report on several instances where my Office had to issue statutory notices to ensure compliance with the Act.
In my Report for 2015, I commented upon the extension of the FOI Act to a number of public bodies that had been previously excluded and I mentioned that I expected to see the first application for review regarding An Garda Síochána in 2016. However, I did not expect that I would, for the first time, have to consider using my new statutory power to apply to the court for an order to oblige compliance with my decision in a case involving An Garda Síochána. I am pleased to report that it did not eventually come to that and I report on the case in more detail in Chapter 2.
In 2016, as Appeal Commissioner, I received the first appeal under the European Communities (Re-use of Public Sector Information) (Amendment) Regulations 2015. While there is no statutory requirement that I report on my activities as Appeal Commissioner, I have set out a brief summary of the matter later in Chapter 2.
As will be clear from my comments above, I am very pleased with the significant outcomes my Office has achieved during 2016. I want to highlight and acknowledge the work of the staff of the Offices of the Information Commissioner and the Commissioner for Environmental Information. My staff approach their work with high levels of professionalism, dedication and determination, to ensure that our services to all our stakeholders are continually improved and delivered to the highest standards and I am very grateful for their efforts. I also want to acknowledge the excellent work of the staff engaged in providing critical support services for my Office.
Commissioner for Environmental Information
My Office published its three year Strategic Plan in March 2016. The Plan sets out our key objectives for the next three years and aims to build upon the many successes we have already achieved over the course of the previous strategic period.
The plan identifies the core values that help to shape the way in which we deliver our services and that underpin everything we do. It details a number of innovative process initiatives aimed at delivering upon our vision of “a public service that is fair, open, accountable and effective”.
Each year of the plan is supported by detailed annual business plans. For 2016, the business plan focussed in particular on extending and improving the impact of my Office on the wider public service, on continuously improving the level of services we provide, and in ensuring that our systems and processes allow us to deliver on those objectives. I have set out below some details of how my Office is delivering on those objectives. A copy of the plan can be found on our website at www.oic.ie.
In 2015 my Office commenced the publication of a series of guidance notes relating to the FOI Act. Progress on the guidance notes continued throughout 2016. By the end of the year we had published guidance notes on fourteen separate topics.
The guidance notes provide a commentary on the interpretation of various provisions of the FOI Act. They explain the approach my Office takes to the application of the provisions and provide examples from some of my decisions and those of my predecessors. They also include references to relevant court judgments.
In addition to the guidance notes on various exemptions in the FOI Act, notes have also been published on the provisions of the Act that afford people the right to have personal information amended (section 9) and the right to be given reasons for decisions taken by FOI bodies (section 10).
While notes of this nature can provide general guidance only, they should be of assistance to FOI bodies and to users of FOI. We intend to continue in our efforts to develop and publish guidance on all relevant aspects of the Act.
During 2016, we invited representatives from all Government Departments to an information session in order to draw attention to the potential benefits of the notes to their decision makers and to those charged with preparing submissions for my Office. We also used the session as an opportunity to seek feedback on the experiences of the bodies in their use of the notes. It was very encouraging to hear that the notes have been warmly welcomed and are being used as a valuable resource for decision makers.
During 2016 my Office also published a suite of sample questions for FOI bodies which may be relevant when I am reviewing a decision under the FOI Act. The document was primarily intended for use by my staff to determine the amount of detail they should seek from public bodies when requesting submissions on cases. However, as the public bodies may also find these questions useful, both in responding to requests from my Office and in their own decision-making, we decided to publish the full suite of sample questions.
Up to date ICT systems and infrastructure are critical to delivering on our objectives of providing an excellent customer focussed service and improving the wider public service. Implementation of our extensive ICT renewal and improvement plan saw significant progress on the replacement of outdated ICT infrastructure and the procurement of new systems to handle applications for review and our relationships with our customers and stakeholders.
Successful delivery of an extensive new ICT infrastructure in 2016 has provided the building blocks to progress our plans for a complete update of our key ICT systems. Procurement of a new customer relationship management (CRM) system and document management system (DMS) were a significant focus for 2016. The new DMS will handle non-case related documents and is expected to go-live in early 2017. Procurement of our new CRM system was finalised at the end of 2016. Summer 2017 will see the launch of this system. Significant work has been undertaken to ensure that we successfully harness these new technologies to deliver better customer service and knowledge management. Both of these new systems will facilitate the digitisation of services where appropriate and the automation of routine tasks that will support the delivery of a more effective and efficient service.
Work commenced in 2016 on a new OIC website that will facilitate the delivery of enhanced online services for both members of the public and other stakeholders in 2017. The current decisions search facility on our website is used extensively and has been identified as a significant resource for both FOI requesters and decision makers. An enhanced search facility will be a key feature of the new website. In addition, the website will include an online portal offering a fast and efficient facility to submit and manage applications for review online. It will also address the requirement identified by our customers for a quick and secure facility to transfer data and documents to us. We will continue to engage with our stakeholders to ensure that our online facilities meet their needs and to work towards a system that will be capable of streamlining interactions between all stakeholders in the FOI process.
The Irish Human Rights and Equality Commission Act 2014 introduces a positive duty on public bodies to have due regard to human rights and equality issues. My Office is committed to providing a service to all clients that respects their human rights and their right to equal treatment. This is equally applicable to how we interact with our own staff as it is essential in fostering a healthy work environment that promotes engagement, openness and dignity in the work place. Our approach is underlined by our core organisational values of independence, customer focus and fairness, which are evident in both the culture of our Office and our internal policies and practices. We have been proactive in providing training to our staff, which encourages them to bring a human rights perspective to their consideration of cases.
Where I consider that the reasons given by a public body in support of a decision to refuse to grant an FOI request are not adequate, I am empowered, under section 23, to direct the head of the body to issue a more comprehensive statement of its reasons for the decision. Under section 13, a decision to refuse a request must include:
Where my Office considers the details in an original and/or internal review decision to be inadequate, we may write to the head of the body concerned requiring a fuller statement of reasons for the decision to be issued both to the applicant and to my Office.
In 2016, we issued notices under section 23 to the heads of the following public bodies:
In all cases, we considered that the original and/or internal review decisions fell short of the requirements of the FOI Act and we sought a more detailed statement from the public body to be provided within three weeks. The requested statements issued within the required time-frame.
Under section 45, I can require a public body to provide me with any information in its possession or control that I deem to be relevant for the purposes of a review. During the year, my Office issued eight notices under section 45; three to the HSE, two to TUSLA - Child and Family Agency, and one each to the Adelaide and Meath Hospital, Wexford County Council and University College Dublin. I have provided more details on each case below.
On 30 May 2016, my Office asked the HSE to provide certain information relating to its claim for exemption of certain records and to the searches it had undertaken to locate all relevant records. The review could not proceed without the information sought. The HSE’s response was due by 6 June 2016. Despite a number of subsequent reminders, the HSE failed to provide the relevant information. On 16 September, my Office issued a notice under section 45 to the Director General of the HSE and a reply was received on 26 September 2016. It is difficult to understand how the HSE found it so difficult to provide information that it was subsequently able to provide reasonably quickly upon receipt of a section 45 notification.
My Office wrote to the HSE on 7 November 2016 and asked it to provide the applicant with an explanation of its position with regard to her request for her medical records as it had failed to issue an internal review decision on her request. As no reply was received, we issued a section 45 notice to the Director General on 29 November 2016, requiring the information to be provided within seven days. However, this deadline also passed without a reply and we were in the process of issuing a formal request for the Director General to attend before me when we eventually received a reply on 20 December 2016.
On 19 May 2016, my Office issued a notice under section 45 to the Director General, wherein we explained that a request for the records that were the subject of the review were outstanding since 28 April and that we were unable to proceed with the review until the records were received. The records were eventually forwarded to my Office on 21 June 2016.
TUSLA was requested to provide copies of the subject records for a review, on 14 April 2016. Despite a further telephone reminder the records were not forwarded to my Office. On 4 May 2016, we issued a section 45 notice to the Chief Executive of TUSLA and the records in question were delivered almost three weeks later.
My Office wrote to TUSLA on 13 June 2016 and requested copies of the relevant subject records within ten working days. On 27 June an incomplete set of records was received. On 15 July, my Office issued a section 45 notice to the Chief Executive, again requesting the relevant records. While TUSLA delivered a further set of records on 29 July, they were not the ones requested. As a result, on 8 August, we took the unusual step of issuing a second section 45 notice to the Chief Executive. We received the correct records on 11 August, two months after the original request.
For the sake of completeness, I should add that the number of records at issue was exceptionally large. Had my Office been made aware of that fact at an early stage, we may have been in a position to come to a more practical arrangement with TUSLA regarding the submission of the records.
On 29 April 2016, my Office sought copies of the relevant subject records from the Hospital’s FOI Unit, to be provided by 16 May 2016. A response was not received. On 1 June 2016, my Office issued a section 45 notice to the Chief Executive of the hospital and formally required the hospital to provide the records within seven days. Further correspondence between my Office and the Hospital followed arising from some confusion about the records sought. We received the records on 23 June 2016.
On 25 July 2016, my Office sought clarification from the Council as to the basis on which it had calculated estimated search and retrieval and photocopying fees for processing a request. However, a reply was not received within the time-frame specified or following reminders that the information was outstanding. In November 2016, my Office issued a section 45 notice to the Chief Executive of the Council, in which his attention was drawn to the fact that more than three months had passed since the initial request for clarification. The information sought was eventually submitted on 2 December 2016, more than four months after the initial request.
On 9 December 2016, my Office issued a section 45 notice to the President of UCD as a response to a request for clarification of certain matters relating to the review was outstanding since 24 October 2016.
I have included below some key details on FOI usage in 2016. A more detailed breakdown is provided in Chapter 4.
I wish to acknowledge the work undertaken by the lead agencies that collect statistics for inclusion in my Annual Report. Unfortunately, Dublin City University, as the lead agency for the Colleges of Education and the National College of Art and Design was unable to provide statistics on behalf of those bodies as it was apparently unaware of its responsibility for collating the information required as a lead agency. My Office will be liaising with the Central Policy Unit of the Department of Public Expenditure and Reform to ensure that this information is collated and returned for 2017.
It is noteworthy, nevertheless, that the number of FOI requests recorded for the bodies in question has historically been low (53 FOI requests were recorded for 2015).
As the graph above indicates, there has been a sharp and continuous increase in the number of requests received since 2014. The total number of requests received by public bodies in 2016 was 30,417, representing an increase of 8% on the number received in 2015 and an increase of 50% on the number received in 2014.
This is a clear indicator of the effect that the elimination of up-front fees in 2014 has had on usage levels.
The number of requests on hand within the public bodies has increased from 5,337 at the beginning of the year to 6,018 at the end of the year, an increase of 12%. While the bodies have processed a larger number of requests during 2016, they have not been able to keep up with the increased demand.
As I stated in my introduction, this suggests that the increased demand for services does not appear to have been matched by a corresponding increase in the allocation of resources by public bodies to the processing of FOI requests. This is a matter of ongoing concern for my Office and I would again urge the bodies to make every effort to ensure that the resources afforded to the processing of FOI requests are sufficient to deal with the demand levels.
Requests made in 2016 for non-personal records continued the upward trend of recent years. 22% of all requests received in 2014 were for non-personal records, while that percentage rose to 39% in 2016. This is most likely as a result of the elimination of up-front fees for making requests in late 2014.
The ratios for types of requester are similar to those reported on in 2015, with a slight increase in use by journalists from 20% to 22%.
2016 saw a slight increase in the percentage of requests refused over 2015, rising from 10% to 13%. More information on release rates can be viewed at table 5, Chapter 4.
In March 2016, the Central Policy Unit issued instructions to public bodies for the completion of FOI statistical returns. For the first time, the instructions included details on how to estimate the true cost of processing FOI requests, based on an analysis of a percentage of requests received. Public bodies were requested to submit returns.
However, the information provided to my Office suggests that many bodies did not provide the requested information. Furthermore, there are some inconsistencies in the manner in which some bodies have reported and/or calculated their estimates. My staff intend to seek clarification of the matter with the Central Policy Unit during the year.
An application for review can be made to my Office by a requester who is not satisfied with a decision of a public body on an FOI request. Decisions made by my Office following a review are legally binding and can be appealed to the High Court only on a point of law.
2016 was an extremely busy year for my Office. We recorded a 28% increase in applications for review received over 2015. The increase is even more dramatic when compared with the number recorded for 2014. The 577 applications received in 2016 represent a 62% increase on the number of applications received in 2014.
The number of applications accepted each year is invariably lower than the total number received. This is primarily due to the fact that some applications are deemed by my Office to be invalid or premature (i.e. the application for review has been made to my Office before the full FOI process has been concluded by the public body).
The number of applications which were accepted for review by my Office in 2016 increased by 32% over 2015. In 2016, 76% of all applications made to my Office were accepted for review, whereas the accepted figure for 2014 was 71%.
Of the 440 applications accepted by my Office in 2016, 92% were concerned with refusals by the bodies to grant access (in part, or in full) to some or all of the records sought.
An application recorded by ‘type’ indicates whether the applicant is seeking access to records which are of a personal or non-personal nature, or a mix of both. The percentage figure for access to non-personal records in 2016 is the highest since 2010.
My Office reviewed 433 decisions of public bodies in 2016. This is 34% higher than the number reviewed in 2015.
Settled and withdrawn applications often follow as a result of the intervention of my Office, where, for example, a more detailed explanation of a decision is given to the applicant by the public body, or additional records are released or part granted, and the review does not proceed to a formal decision.
The table above shows how long it took my Office to complete reviews. I am very pleased to report another successful year which records a further increase in the number of cases closed within four months. 60% of all reviews closed in 2016 were closed within that time period. This is especially impressive given the 32% increase in applications accepted during the year.
The age profile of open cases at the end of 2016 is quite similar to the position at the end of 2015. At the end of 2015 we had nine open cases over six months old, whereas that figure had fallen to seven by the end of 2016.
The FOI Act imposes statutory time limits on public bodies for processing an FOI request. Specifically, a decision on an original request should issue to the requester within four weeks and a decision on a request for an internal review should issue within three weeks.
Where no decision is issued, either at the original request (first stage), or internal review (second stage), or a decision is issued late, the requester has the right to regard that decision by the public body as a ‘deemed refusal’ of access. Following a deemed refusal at the internal review stage, a requester is entitled to apply to my Office for a review.
The charts below show how many requests were deemed refused in the year at each stage of the request, and where both stages were deemed refused. This year is quite simply the worst year on record in terms of the number of deemed refusals by public bodies recorded by my Office. This is further clear evidence that public bodies are not providing adequate resources for processing requests.
As can be seen from the charts, the worst offender for 2016 was TUSLA. My staff met with representatives of TUSLA during the year to discuss matters of concern, following which we wrote to TUSLA’s quality assurance manager in connection with its overall management and processing of requests. At the time of writing, we have had no substantive response from TUSLA on these matters. My staff will be following up with TUSLA to seek tangible improvements in its processing of requests.
In 2016, 105 (24%) of all applications accepted by my Office were recorded as deemed refused at both stages of the FOI request.
General enquiries concern various forms of communication, mostly from members of the public. The nature of those enquiries range from questions on the practicalities of the FOI Act to straightforward information about what to do next, or which public body might be able to assist.
During 2016, my Office received 272 applications for review where a fee was paid, an increase of 94 cases over 2015. The increase is due to the increase in requests for access to non-personal information. See table 17 in Chapter 4.
The total amount of fees received in 2016 was €12,150.
A total of €5,910 was refunded to applicants for the following reasons:
Where a Minister of the Government is satisfied that a record is an exempt record, either by virtue of section 32 (Law enforcement and public safety), or section 33 (Security, defence and international relations) and the record is of sufficient sensitivity or seriousness to justify his or her doing so, that Minister may declare the record to be exempt from the application of the FOI Act by issuing a certificate under section 34(1) of the Act.
Each year, Ministers must provide my Office with a report on the number of certificates issued and the provisions of section 32 or section 33 of the FOI Act that applied to the exempt record(s). I must append a copy of any such report to my Annual Report for the year in question.
Section 34(13) of the FOI Act provides that
“Subject to subsections (9) and (10), a certificate shall remain in force for a period of 2 years after the date on which it is signed by the Minister of the Government concerned and shall then expire, but a Minister of the Government may, at any time, issue a certificate under this section in respect of a record in relation to which a certificate had previously been issued …”
My Office has been notified of the following certificates renewed or issued under Section 34 in 2016.
A copy of each notification is attached at Appendix I to this Report.
I was notified by letter dated 9 December 2016 that pursuant to section 34(7) of the FOI Act, the Taoiseach, the Minister for Public Expenditure and Reform and the Minister for Jobs, Enterprise and Innovation carried out a review of the operation of subsection 34(1) of the Act.
The letter concluded that the Taoiseach, the Minister for Public Expenditure and Reform and the Minister for Jobs, Enterprise and Innovation are satisfied that it is not necessary to request revocation of any of the 13 certificates reviewed.
A copy of the notification is attached at Appendix II to this Report.
I want to acknowledge the support of my Senior Investigators, Elizabeth Dolan and Stephen Rafferty, during 2016. I want to thank them and all the staff of the Offices of the Information Commissioner and the Commissioner for Environmental Information for their tremendous efforts in dealing with the significant challenges arising from the increased demands for our services while continuing to significantly improve case turnaround times. My thanks also to Diarmuid Goulding and Edmund McDaid for their assistance in compiling this Report.
As reported in this and in previous Reports, the Office is continuing to develop and grow. Consequently, I am grateful for the support of the Information Communications Technology, Corporate Services, and Quality, Stakeholder Engagement and Communications Units, who provide essential shared services for the continuing developmental requirements of the Office.
Finally, I want to thank the Director General of the Office, Jacqui McCrum, for her commitment and support throughout the year. The Office has unquestionably benefitted from Jacqui’s extensive experience and energy during the first full year in her role.