Annual Report of the Information Commissioner 2016

Chapter 2: Issues Arising

Table of Contents

This Chapter highlights issues which arose during the year concerning the operation of the FOI Act. Some issues relate to particular public bodies, while others are commentaries on how the new Act gave rise to issues not previously addressed.

Issues reported on are:

I have also set out a brief summary of court activity during the year. Finally, I have included a brief commentary on my role as Appeal Commissioner under the European Communities (Re-use of Public Sector Information) (Amendment) Regulations 2015 (S.I. No. 525 of 2015).

Schedule 1 bodies

In my Annual Report for 2015, I addressed the issue of the interpretation that had been adopted by the Central Bank of Ireland (the Central Bank) of the scope of its exclusion from the remit of the Act. The Central Bank is a partially included agency under the FOI Act 2014.

The vast majority of relevant bodies are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in the categories set out in section 6 of the Act. However, Part 1(b) of Schedule 1 of the Act states that section 6 does not include a reference to the Central Bank insofar as it relates to certain records.

The issue relating to the Central Bank arose in the context of a request made by Mr. Colin Coyle of The Sunday Times for access to a copy of all minutes of the Central Bank Commission for a period spanning from 2014 to the date of the request in 2015. The Central Bank had taken the position that, as it was not a public body with respect to records containing information described in Schedule 1, Part 1(b)(i), the Act, including the internal and external review provisions, did not apply to all but one of the records requested, even where the records concerned also contained information that would otherwise be subject to the provisions of the Act.

In my decision, I noted that the position taken by the Central Bank was entirely at odds with the spirit and intent of the legislation and that adopting its position would lead to absurd consequences that could not have been intended by the Oireachtas in the passing of the Act. I also noted that my contrary view of the matter was supported by CPU Guidance Note 23 and the principles set out at section 11(3) of the Act. I found that I had the jurisdiction to review the Central Bank’s effective decision to refuse the applicant’s request for the records concerned on the basis that Schedule 1, Part 1 applies. I also found that a record falls within the scope of Schedule 1, Part 1(b)(i) only insofar as it contains the information specified as excluded from the scope of the Act and that the parts of the record that do not contain Schedule 1, Part 1(b)(i) information fall to be considered for release in accordance with the provisions of the FOI Act. I annulled the Central Bank’s effective decision and directed it to undertake a fresh decision-making process in respect of the records concerned.

I am pleased to report that the Central Bank accepted my decision, albeit on a “without prejudice basis”, and agreed to process the applicant’s request under the provisions of the FOI Act. Redacted versions of the relevant minutes were subsequently released to The Sunday Times and have been published on the Central Bank’s website.

During the year it was brought to my attention that the Central Bank was not alone in its interpretation of the scope of its inclusion or exclusion from the remit of the Act by virtue of its inclusion as a partially included agency in Schedule 1 and that other bodies had raised similar issues.

While I am satisfied that my understanding of my jurisdiction to review decisions of Schedule 1 bodies is correct and is supported by CPU Guidance Note 23, it would be a cause for concern for me if my Office was to continue to face similar jurisdictional challenges. It seems to me that a straightforward legislative amendment would put the matter beyond doubt. I intend to raise this matter with the Central Policy Unit during the year.

Section 6(7) Dispute resolution

As I have outlined above, the vast majority of relevant bodies are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in the categories set out in section 6 of the Act. Where a dispute arises between my Office and any entity as to whether it is a public body for the purposes of the Act, the dispute must be submitted to the Minister for Public Expenditure and Reform for a binding determination, in accordance with section 6(7) of the Act.

Early in 2016, the Central Policy Unit published a Dispute Resolution Policy and Procedure for processing such referrals to the Minister. The policy also provided for binding determinations where a dispute arises between an entity and a requester as to whether or not an entity is a public body.

During the year, my Office dealt with two cases where we found that the entity concerned was not a public body for the purposes of the FOI Act. The entities in question were the Property Arbitrator and the Dublin Returning Officer. In both cases, we informed the requesters of their right to seek a binding determination from the Minister in accordance with the published Dispute Resolution Policy.

However, following receipt of advice from the Office of the Attorney General, the Central Policy Unit notified my Office that the Minister was not in a position to make a binding determination on the matter as section 6(7) does not provide for such determinations in cases where the dispute is between the entity and a third party. It subsequently published an amended policy to properly reflect the provisions of section 6(7).

This leaves my Office in a position of having to make determinations on whether or not certain entities are public bodies for the purposes of the FOI Act, with no right of appeal except, perhaps, through the Courts. I intend to raise this matter again with the Central Policy Unit.

For the record, the Minister made determinations in two cases in 2016. He determined that the Bar Council (The General Council of the Bar of Ireland) and The Law Society of Ireland are not public bodies for the purposes of the Act.

First use of section 22(9)(a)(vii)

Section 22(9) of the FOI Act provides for certain circumstances where I may use my discretion to refuse to accept an application for review or to discontinue a review. The FOI Act 2014 extended those circumstances to include cases where I consider that accepting the application would cause a substantial and unreasonable interference with, or disruption of, work of my Office.

I exercised that power for the first time in 2016 in Case No. 150430 (Messrs Z v NAMA). The requesters sought nine categories of records, all concerning their relationship with NAMA. The withheld records comprised more than 3,400 pages of information. While the volume of withheld information was a key factor, other relevant factors included the nature of the information concerned, the number of exemptions claimed by NAMA, the need to establish the identity and status of the parties to the records and the likely need to notify and invite submissions from potentially affected third parties.

I concluded that the examination that would be required of such a number of records, having regard to the number of records involved and the nature of the information concerned, was such that processing the review would cause a substantial and unreasonable interference with, or disruption of, work of my Office. While the applicants were invited to refine the scope of the review, they did not do so. Therefore, I discontinued my review.

First consideration of use of powers under section 45(8)

The 2014 Act extended my powers, for the first time, to follow up on cases where public bodies fail to comply with my binding decisions. Under section 45(8), I may apply to the court for an order to oblige the public body to comply with my decision.

I came very close to seeking such an order in 2016. On 17 August 2016, I issued a decision in Case No. 160196, directing An Garda Síochána (AGS) to release certain information to a journalist in response to his FOI request (See Chapter 3 for more details on the case).

Under section 24, a party to a review may appeal to the High Court on a point of law arising from my decision. However, where no such appeal is made, my decisions are binding on the parties concerned. The circumstances of this case were such that AGS had four weeks within which to make such an appeal. By letter dated 15 September 2016, I was informed by AGS of its intention to appeal my decision. However, no such appeal was made.

A number of further exchanges of correspondence between my Office and AGS followed. However, it was only on the threat of court action, some 11 weeks after my decision, that my Office secured the release of the information at issue.

While I am obviously very pleased that I did not have to seek a court order to oblige compliance, I was disappointed that it took so long for the requester to receive the information in question. I fully accept that public bodies are entitled to carefully consider my decisions and to appeal decisions to the High Court where they consider it appropriate to do so. However, where an appeal is not made, I expect bodies to act upon my decisions without further delay.

Bodies challenging decisions on procedural grounds

On the subject of bodies challenging my decisions through the courts, I noted a matter of particular concern during the year that I hope will not become a regular feature of court appeals.

As I have mentioned above, under section 24 of the Act, a party to a review may appeal to the High Court on a point of law arising from my decision. In two such appeals that were made by public bodies during 2016, the public bodies did not confine themselves to identifying what I would regard as pure points of law on the application and interpretation of the FOI Act as their grounds for appeal. Instead, they also chose to challenge the procedural grounds on which the review was conducted.

While I fully accept that the bodies concerned were entitled to raise procedural concerns, I would question what they were hoping to achieve by doing so. In both cases, the public body raised concerns about the procedures my Office adopted in the course of the review, notwithstanding the fact that those procedures have been in operation since June 2014 and that the details of the procedures are publicly available on our website. It is also noteworthy that all bodies, including the two bodies concerned, received advance notification of our intention to adopt the procedures in question, as far back as April 2014.

It seems to me that were the Court to find that the procedures my Office adopts in conducting reviews are somehow unfair, the most likely outcome would be for the Court to direct my Office to examine the matter again. The substantive issue would most likely remain unresolved.

If any public body has a particular concern about my Office’s procedures for conducting reviews, I would sincerely hope that it would raise such concerns directly with my Office outside of the Court process. While I believe that our procedures are, indeed, fair, I would be more than happy to consider any related concerns with the public bodies.

Appeals to the Courts

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/Supreme Court.

Three appeals of decisions of my Office were made to the High Court in 2016. Two decisions were appealed by the applicant and one by the relevant public body. All appeals are listed for hearing or mention in 2017.

Two written High Court judgments were delivered in 2016, both of which are summarised below. An ex tempore judgment of the Court of Appeal is also summarised in this section.

F.P. v The Information Commissioner [2014 No. 114 MCA]

Background and issue

In December 2016, the High Court delivered its judgment in the case of F.P. v The Information Commissioner [2014 No. 114 MCA]. The question presented by the case was whether under section 28(5)(a) of the FOI Act 1997, the public interest in granting the applicant’s requests for access to records relating to himself and his former step-daughter outweighed the public interest in protecting the privacy rights of the individuals (apart from the applicant) to whom the information related. In my decision in Case 090261/62/63, which I reported on in my Annual Report for 2014, I concluded that the answer was no, notwithstanding evidence of malicious allegations of child sexual abuse having been made against the applicant. I found that, regardless of the evidence of malice, the records concerned deeply troubled family circumstances. Having regard to the judgment of the Supreme Court in the Rotunda Hospital case, the views of the applicant’s former step-daughter (who was then aged 20) and her mother, and the records that had already been released to the applicant, I determined that, on balance, the public interest in granting the applicant’s requests for access to the records at issue was not sufficiently strong to outweigh the public interest in upholding the privacy rights of the third parties concerned. The applicant’s appeal to the High Court was not allowed.

Conclusions of the Court

The Court was not satisfied that the issue of malice, as raised by the applicant, was central to, or determinative of, the issue of access to records. The Court found that I was correct in my view that, even if the allegations were made for what may be regarded as malicious purposes, the records at issue related to deeply troubled family circumstances. However, the Court also found that, as I had acknowledged, the context in which the allegations were made was relevant to the strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions in dealing with allegations of child sexual abuse.

The Court confirmed that the applicant’s purpose for seeking the records was not relevant and that his interests in accessing the records in order to determine whether he had a cause of action against any of the parties, or to advance such a claim, or to provide the basis for making a criminal complaint or to mount a judicial review against the public bodies, did not qualify as matters of public interest. The Court was satisfied that these interests were in reality matters of “private interest”. The Court was also satisfied that it would require a legislative change to permit the right of access to records as a matter of course to persons claiming to be falsely accused of child sexual abuse or any other crime.

The Court also confirmed that the appropriate forum for pursuing a cause of action arising from false allegations or for challenging the actions of public bodies is provided for by the courts, where extensive legal remedies and fair procedures for discovery and disclosure are available in civil and criminal proceedings. Thus, the Court observed that the question of whether the public bodies acted in accordance with fair procedures may be the subject of judicial review. The Court was not satisfied that the applicant could use the process of appeal under FOI “to mount something akin to a collateral attack on the investigations and determinations” made by the public bodies in relation to the allegations made against him. Likewise, the motivation for, or validity or truthfulness of, any allegation, is a matter to be pursued by other forms of remedy.

The Court was satisfied that I had carefully distinguished between the applicant’s assertion of private rights and the general public interest in openness and transparency in respect of information held by public bodies. The Court was also satisfied that I had given appropriate weight to the strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions in dealing with allegations of child sexual abuse. In the circumstances, and in light of the public interest served by the records that had been released to the applicant, it was open to me to consider that the important public interest concerning good governance was outweighed by the public interest in upholding the rights to privacy of the mother and child concerned.

Note: The applicant has since appealed the Court’s decision to the Court of Appeal.

Patrick McKillen and the Information Commissioner [2015 No. 4 MCA]

Background and issue

The applicant applied to my Office for a review of a decision of the Department of Finance to refuse access to certain records relating to him or to his personal or business loans.

My Office found that parts of some of the refused records should be withheld on the grounds that they contained commercially sensitive information relating to third parties (section 27) and the public interest did not justify release of the information. During the course of the review, it emerged that the applicant had sought and been granted an order for discovery in the Courts against parties, including the Department, and that the Department had provided the applicant with some of the records pursuant to the order for discovery. My Office found that access to those records must be refused, as to do otherwise would constitute contempt of court (section 22).

Conclusions of the Court

The judgment of Noonan J. was given on 19 January 2016 in favour of my Office. The Court upheld my Office’s findings with regard to section 27. It found that as the appellant had not argued before my Office that section 27(1)(b) did not apply, he could not, therefore, advance the argument before the Court.

The appellant argued that the public interest lay in exposing what he claimed was unfair dealing by the Department which could be harmful to the State’s interest. However, the Court found that any improper conduct, if there was such, was disclosed by the information released.

The judge also found that he was bound to follow the judgment of O’Neill J. in EH and EPH v. the Information Commissioner [2001] 2 I.R. 463 with regard to breach of the implied undertaking given in respect of discovered documents being a contempt of court. Disclosure of documents the subject of an order for discovery whenever made, is a contempt of court. Section 22(1)(b) is mandatory and in such circumstances, disclosure must be refused.

Note: The applicant has since appealed the Court’s decision to the Court of Appeal.

X and the Information Commissioner [2015 No. 439 MCA]

Background and issue

In this case, my Office had affirmed a decision of the Department of Defence to release certain records with the applicant’s name and address redacted (Case No. 130175 - Mr X and the Department of Defence). The applicant appealed that decision to the High Court. While the grounds of appeal were not entirely clear, it appeared that the applicant’s main concern was that the release of the redacted records would still result in the disclosure of his identity. At an early stage in the proceedings, it transpired that the Department had not provided my staff with a full set of records. Therefore, my Office did not oppose the appeal and informed the High Court that it was willing to have the matter remitted for a fresh review. On 13 July 2015 the High Court directed that the matter be remitted to my Office to be dealt with in accordance with the law. The applicant subsequently appealed the High Court’s decision to the Court of Appeal. The main remedy he sought was for the original FOI request to the Department of Defence to be struck out.

Conclusions of the Court

In October 2016, the President of the Court of Appeal delivered an oral judgment in the case. The Court of Appeal found that under FOI legislation, the original requester was entitled to have his FOI request processed. The Court noted that while Mr X’s desire to have the FOI request struck out was understandable, the FOI request nevertheless remained and there was a statutory mechanism in place to deal with it. In the circumstances, the Court of Appeal held that there was no basis for it to do anything other than affirm the High Court decision and allow a remittal to my Office.

Re-use of public sector information

European Communities (Re-use of Public Sector Information) Regulations 2005

Public sector bodies create, collect, and publish information in the course of their public functions. Directive 2003/98/EC on the re-use of public sector information establishes a minimum set of rules governing the re-use of existing documents held by public sector bodies. Directive 2013/37/EU amends and expands the scope of the earlier Directive. These Directives are transposed into Irish law by the European Communities (Re-use of Public Sector Information) Regulations 2005 (the PSI Regulations), as amended by the European Communities (Re-use of Public Sector Information) (Amendment) Regulations 2015.

Re-use, in relation to a document held by a public sector body, means the use by an individual or legal entity of the document for commercial or non-commercial purposes other than the initial purpose within the public task for which the document was produced. The regulations apply to physical and electronic documents.

Under the PSI Regulations, an individual or a legal entity may make a request in a legible form to a public sector body to release documents for re-use. Every request must indicate that it is being made for the purpose of the re-use of public sector information. The Regulations provide that, on receipt of a request in respect of a document held by it to which the PSI Regulations apply, a public sector body must allow the re-use of the document in accordance with the conditions and time limits provided for by the Regulations.

Where possible and appropriate, documents made available for re-use must be provided in open and machine-readable format. Machine-readable information is information which can be easily interpreted and processed by different software applications.

As Information Commissioner, I am the designated Appeal Commissioner for the purposes of the PSI Regulations. Under Regulation 10 of the PSI Regulations, decisions of public sector bodies can be appealed to my Office, including decisions on fees and conditions imposed on re-use.

In 2016, three appeals were made to my Office under the PSI Regulations.

Conor Ryan on behalf of RTÉ and the Standards in Public Office Commission - RPSI/16/01

In the first such appeal to my Office, a journalist appealed a decision of the Standards in Public Office Commission not to release for reuse a machine-readable version of the online Register of Lobbying. The Commission subsequently provided the journalist with access to a machine-readable version of the Register, and the appeal was withdrawn by the appellant.

Vizlegal Limited and the Patents Office - RPSI/16/02

In this appeal, I reviewed a decision of the Patents Office to refuse to allow re-use of its databases in open and machine-readable format. As a preliminary point, I found that the appellant was not entitled to re-use unpublished documents by making a request under Regulation 5(1)(a) in circumstances where a right of access to such documents had not been established.

I found that the Patents Office was justified in refusing to release the patents database and the design database in open and machine readable format, as this would involve a disproportionate effort, going beyond a simple operation. Accordingly, there was no obligation on the Patents Office to adapt or to provide extracts from the databases to meet the appellant’s request.

I found that the statutory fees for use of the computerised trade mark database did not conflict with the rules on charging for re-use under Regulation 6 of the PSI Regulations. In particular, I found that although the charges exceeded the marginal cost of reproduction, provision and dissemination of the database, the charges complied with Regulation 6(1A)(a) (ii), as the Patents Office was required to generate sufficient revenue to cover a substantial part of the costs relating to the collection, production, reproduction and dissemination of the database.

Accordingly, I affirmed the Patents Office’s decision to refuse the appellant’s request.

Conor Ryan on behalf of RTÉ and the Companies Registration Office - RPSI/16/03

In this appeal, I reviewed a decision of the CRO to refuse a request to re-use a database of disqualified and restricted persons in open and machine-readable format.

I found that the CRO was not justified in refusing the appellant’s request on the basis that the information was publicly accessible, as this reason did not address the question of whether the database could be re-used. Notwithstanding this, I found that refusal of the appellant’s request was otherwise justified on the basis that there was no obligation on the CRO to adapt the database or to provide extracts from the database in circumstances where this would involve a disproportionate effort, going beyond a simple operation.

Accordingly, I affirmed the CRO’s decision to refuse the appellant’s request.




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