The Freedom of Information Act — Compliance by FOI Bodies

An investigation conducted by the Information Commissioner under section 44 of the Freedom of Information Act, 2014 into compliance by FOI bodies with the statutory timeframes for processing requests and the requirement to provide adequate reasons for refusing requests.

January 2020

Foreword

Investigation under section 44 of the Freedom of Information Act, 2014.

This is a report of an investigation I conducted in accordance with section 44 of the Freedom of Information Act 2014 (the FOI Act) into the practices and procedures adopted by FOI bodies for the purpose of compliance with the provisions of that Act.

The report focuses on the level of compliance by selected FOI bodies with the statutory timeframes for processing requests and with the requirement to provide adequate reasons for refusing requests. In recent years, I have expressed my concerns about the level of compliance with these requirements, particularly in respect of adherence to the statutory timeframes.(1)

In accordance with section 44(4) of the Act, I am furnishing a copy of this report to the Minister for Public Expenditure and Reform and to each public body concerned. A copy will also be appended to my next annual report, which, in accordance with normal practice, will be laid before each House of the Oireachtas.

Peter Tyndall
Information Commissioner
January 2020

(1) See inter alia, ‘Address by Information Commissioner Peter Tyndall, FOI 20 Conference, 13 April 2018, Alex Hotel, Dublin,’available: <https://www.oic.ie/publications/speeches/FOI%2020%20Conference/> (last accessed 9 September 2019), and Annual Reports of the Information Commissioner 2017, and 2018 (hereinafter ‘Annual Report 2018’), available: <https://www.oic.ie/publications/annual-reports/> (last accessed 9 September 2019). 

 

FOI bodies are obliged under the FOI Act to comply with specific timeframes for processing FOI requests. They must also provide adequate reasons for refusing FOI requests, in accordance with the requirements of the Act.  

This investigation considered the compliance of five FOI bodies with the relevant statutory timeframes and the obligation to provide adequate reasons for refusals. The key findings of the investigation are set out in the body of this report, alongside recommendations specific to each FOI body concerned, and of general application to all FOI bodies.   

This report is not intended to serve as a criticism of the selected bodies based on issues identified. Rather, the investigation was conducted with a view to identifying recommendations that address common issues arising and that  will facilitate improvements in compliance rates by FOI bodies generally. The recommendations represent elements of what I consider to be best practice in this area. It is a matter for each FOI body to examine its own performance in light of the recommendations and to determine how best it might implement those recommendations.

Summary of Key Recommendations

  • As I noted in my Annual Report for 2018, it is unacceptable for FOI bodies to allow resourcing issues to persist which lead to an incapacity to comply with statutory decision-making deadlines. Each body should evaluate and consider fully its needs in respect of its FOI functions, including with regard to retention and knowledge management. Resources should be commensurate with the body’s requirements in achieving statutory compliance, so that the rights provided for under the Act may be exercised in full. 
  • Senior Management should visibly endorse FOI and the importance placed by the body on compliance with the statutory obligations provided for under the FOI Act. 
  • A common approach to tracking and documenting details of the processing of FOI requests should be adopted across the body. Tracking should account for the various statutory deadlines.
  • Particular attention should be given in decision-making to the requirements of harm based exemptions and meaningful explanation of public interest test considerations. First instance and/or refresher training should be provided to all relevant staff in respect of areas of frequent difficulty. 
  • To reduce the burden of FOI processing, bodies should publish as much information as possible, particularly of the sort that is regularly requested from the body under FOI.

The objective of this investigation was to examine the level of compliance by selected FOI bodies with (i) the statutory timeframes for processing requests and (ii) the requirement to provide adequate reasons for refusing requests, and to make recommendations for improving compliance rates across all FOI bodies.

 

Statutory Timeframes for Processing Requests 

The Act contains a number of timeframes that must be met when processing requests, including the following:

  • Receipt of the request must be acknowledged within two weeks (section 12(2)), 
  • A decision must generally issue within four weeks of receipt of the request (section 13(1)), 
  • The timeframe for issuing a decision may be extended by up to four weeks in certain prescribed circumstances (e.g. due to the volume of records involved) (section 14(1)), 
  • Where the timeframe for issuing a decision is extended, notification of the extension must issue within four weeks of receipt of the request (section 14(3)), 
  • A decision following internal review must generally issue within three weeks of receipt of the application for internal review (section 21(4)),
  • Where search and retrieval and copying (SRC) charges arise, notification of the estimated charge and of the deposit required must issue within two weeks of receipt of the request (section 27(5)(c)), and
  • A range of timeframes apply in the case of requests to which section 38 applies and where consultation with affected third parties arises. (Section 38 sets out requirements for consulting with third parties in certain circumstances. See ‘FOI Central Policy Unit Notice No. 8: Requests involving third parties - A step by step guide’, Department of Public Expenditure and Reform (26 August 2015), available: (last accessed 9 September 2019))

Refusal of Requests

Under section 13(2) of the Act, where a decision is taken to refuse a request, whether wholly or in part, the decision must specify the reasons for the refusal and, unless a refusal to confirm or deny provision in an exemption is being invoked, 

  • any provision of the Act pursuant to which the request is refused,
  • findings on any material issues relevant to the decision, and 
  • particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

The same requirements apply in respect of decisions issued following internal review.

Where an FOI body fails to issue a timely decision on a request (first stage) or following internal review (second stage), a requester is entitled to treat the body’s failure as a deemed refusal of the request. Following a deemed refusal at the internal review stage, a requester is entitled to apply to my Office for a review of the deemed refusal. Each year, my annual report contains details of the number of applications for review accepted by my Office where the request was deemed refused at either stage or, indeed, at both stages of the process.  

In conducting this investigation, I did not consider it either practicable or necessary to examine the compliance rates of all public bodies. Instead I selected four public bodies from among those that came to my attention in 2018 in relation to deemed refusals,  namely the Defence Forces, Dún Laoghaire-Rathdown County Council, Tusla — The Child and Family Agency, and University College Dublin. In addition, I decided to include in this investigation the Office of the Revenue Commissioners, based on its comparably strong performance over the past number of years. I did so with a view to determining whether that Office’s practices and procedures might offer useful insights for other bodies seeking to improve compliance and efficiency. 

The investigation involved the examination of a sample of FOI decision-making files within each of the selected bodies and interviews with the respective FOI Liaison Officers. Each body provided the data necessary to identify appropriate cases where decisions to refuse requests, either in whole or in part, issued in 2018. Files were then randomly selected for inspection by my team. Cases where an application for review was submitted to my Office were excluded, as were cases where a refusal to confirm or deny provision of an exemption was invoked, as such decisions are not subject to the full requirements of section 13(2).  

In total, my team examined 102 case files, distributed across the bodies in proportion to their respective FOI activity, with a minimum of 10 and a maximum of 35 cases examined in each body. The proportionate number of files was requested from the bodies, along with an additional number of files to serve as “back up” (e.g. in case of certain files being incomplete). As is noted below, complete information for each file examined was not always available, even when replacement files were substituted.  

I would like to thank the FOI bodies concerned for their efficient cooperation in providing the data and hardcopy files required for examinations. In some instances, this involved significant co-ordination within a pressing timeline across large and regionally distributed offices and I appreciate the efforts involved.  

It is important to note at the outset that this investigation did not include a review of the substantive decisions taken on the related requests. As outlined above, the examination was confined to whether or not the bodies concerned had complied with the the statutory timeframes for processing the requests and with the requirement to provide adequate reasons for refusing the requests. 

Information was collated from the relevant files using checklists designed specifically for the purpose,4 while the interviews conducted served to provide more qualitative information for consideration. Areas discussed during the interviews included the role of the FOI Officer(s) within the body, how the body processes FOI requests and matters arising therein, and barriers and facilitators within the body to compliance with the requirements of the Act. 

It should be noted that some of the relevant issues arising in the sections that follow are based on the observations of the relevant officers with whom my team met in the course of conducting this investigation.  

Prior to the completion of my report, the selected FOI bodies were provided with an opportunity to review and offer comment on the draft contents of the report, insofar as it concerned them generally and specifically, and to the suite of draft recommendations. Where appropriate, the report was amended to ensure it accurately reflected and/or had regard to those views. 

The next five sections of the report contain a detailed description of the findings of my team in respect of each body, arising from the assessments conducted. Specific recommendations are provided to address matters particular to each body observed during the investigation. I have also noted, in respect of each body, certain positive aspects of practice and procedure that were observed, which may be useful to all FOI bodies seeking to enhance compliance with the FOI Act. As I have outlined above, a range of recommendations of wider general application then follows. These concern all five bodies investigated, alongside the specific recommendations provided, and should be considered also by all FOI bodies concerned to achieve full compliance with the requirements of the legislation.

Introduction

The Defence Forces received 382 requests in 2018. Of the 11 related applications for review my Office accepted during the year, six arose on foot of a deemed refusal following internal review. 

My team fully examined 15 FOI decision-making files in the Defence Forces.

Statutory Timeframes

It must be noted at the beginning that in a number of cases the date of receipt of the request was not available as the requests had been made by letter, the letters were not date-stamped, and the subsequent acknowledgements, where they existed, did not reference a date of receipt. The Defence Forces also engage in a practice of assigning a “registration date”  to new requests as opposed to a date of receipt, that date being the first date upon which the processing of the request commences. In other case, due to the unavailability of certain relevant dates, it was not possible to fully assess compliance with every statutory deadline at issue.

Acknowledgment of Request

In eight of the 15 cases examined, the date of receipt of the request was not documented or otherwise available. In the remaining seven cases, six requests were acknowledged within the requisite 10 days of receipt and one was not. In that case, the acknowledgement took 57 days to issue.

Section 14 Extensions

Under section 14(1) of the Act, the four week timeframe for issuing a decision may be extended by up to four additional weeks where

  1. the request relates to such number of records or
  2. the number of other FOI requests relating to the same records or information on which decisions have yet to issue, are such that compliance with the four week timeframe is not reasonably possible. Where a body wishes to extend the timeframe, it must notify the requester within four weeks of the receipt of the request.

Compliance with section 14 could be assessed fully in only three of the seven cases in which the extension provision was relied upon. In two of those three cases, the notification issued late. In at least two cases involving section 14, the reason given for the extension in the notification issued was invalid (“ongoing searches”).

Original Decisions

It was possible to determine the timeline for issue of the original decision in seven cases examined. In one of those cases, the original decision issued well after the statutory timeframe of four weeks (70 days from receipt of the request). However, given the “registration date” approach utilised by the Defence Forces as described above, coupled with the absence of certain relevant data, it is quite possible that further original decisions also issued late.

Internal Review Decisions

Only one of the cases examined involved an internal review decision, which issued within the required timeframe.

Related Issues

  • While decision-making staff across the Defence Forces appear to be aware of the relevant statutory timelines and decision requirements, the processing of FOI requests is not regarded as a priority task given their other day-to-day functions. Indeed, the FOI function does not appear to be sufficiently prioritised across the organisation. This inevitably increases the likelihood of delay.
  • The FOI Liaison Officer, who has sole responsibility for managing FOI requests, also has primary responsibilities to attend to as a soldier. As a result, there may be no one available to deal with FOI requests for large parts of any given week. This gives rise to significant challenges in ensuring compliance with the statutory timeframes.
  • Though it is no doubt borne of the nature of the command structure in the Defence Forces, the multi-layered decision-making process followed may contribute to delays in processing requests. The FOI Office registers new requests and sends them with an explanation to a General, a “Front Line Decision Maker” (FLDM). The FLDM sends the request to the relevant records manager who may then forward it to a relevant battalion, which has its own records manager. Once that person has responded accordingly, the matter is returned to the FLDM who, in turn, forwards a recommendation to the FOI Office. The FOI Office then appraises the recommendation for quality assurance.

Request Refusals

Reasons

Reasons for refusal were given in all decisions examined.

Provisions Underpinning Refusal

All decisions examined contained details of the provisions of the Act pursuant to which the request was refused.

Findings on any Relevant Material Issues

  • In five of the cases examined, the Defence Forces did not provide any findings on material issues relevant to the decision. Two of those cases involved refusals on the ground that the records sought did not exist or could not be found (section 15(1)(a) search cases). A description of the searches conducted would have sufficed in those cases.
  • In seven cases the Defence Forces failed to explain why it considered the relevant exemptions to apply. However, I would note that in five of those cases it was evident that section 37 (concerning the protection of third party personal information) was deemed to apply on the ground that the records were deemed to contain such information. Nevertheless, explanations in all seven cases would have been appropriate.
  • In eight cases the Defence Forces failed to explain what it considered to be the possible consequences of release, as required in the context of the exemptions claimed. For example, in one, the Defence Forces relied upon section 36 (commercial sensitivity) but rather than explain why it deemed the records sought to be commercially sensitive or what the consequences of release might be, it merely said that the records were commercially sensitive.
  • Furthermore, in a number of cases it was also unclear whether all FLDMs (i.e. those whose unit is considered to hold records) had replied to initial contacts from the FOI Office. It may be that no records were held in some of the units, or it may be that records covered by the request were not considered for release. I note that the FOI Office has stated its future intention to record details of all follow up enquiries it makes and replies, including those confirming that no records are held.
  • In one case the request was refused under section 15(1)(c). That provision essentially allows an FOI body to refuse to grant a request where the request is considered to be voluminous. However, the Defence Forces did not provide an explanation of its reasons for deeming the request to be voluminous.

Public Interest Considerations

  • In nine cases the Defence Forces should have provided details of matters relating to the public interest that were considered for the purposes of the decision. It did not do so in any of these cases, including following internal review in the sole case involving an internal review.
  • The Defence Forces also failed to explain in any of those eight cases why it decided that, on balance, the public interest favoured refusal of the request.

Additional

Schedules

Schedules were provided in all cases examined and where relevant, they contained a description of the records at issue.

Interaction of FOI and Military Legislation

In one case, no reasons were given for refusing the request under 35(1)(a) (information given in confidence) on the understanding that the Defence Forces Act 1954 and associated Regulations provided that no reasons should be given to candidates as to why they are unsuccessful in relevant recruitment processes.

However, subsequent to that decision, my Office considered a number of cases where unsuccessful candidates for recruitment to the Defence Forces sought statements of reasons as to why they were unsuccessful. As a result, the Defence Forces now informs applicants who apply for such statements of reasons as to which of the relevant competencies, such as security clearance, have not been met.

Related Issues

It seems that there is a reasonable level of awareness among decision-making personnel of the relevant requirements in relation to decisions to refuse requests. However, there does not appear to be any refresher training for FLDMs.

General FOI awareness briefings are held for staff each year. It was noted that such briefings are usually followed by a marked increase in FOI requests received from members of the Defence Forces itself. This places significant additional demands on the already-stretched FOI Office. • It was suggested that some decision makers may encounter difficulties in applying particular exemptions and it was acknowledged that requesters may more readily accept decisions issued (and therefore potentially appeal less frequently) if additional information and more meaningful explanations were provided. • It was noted that there have been no recent training interventions for the FOI Liaison Officer (the most recent was in 2014). It was noted that the Manager within the FOI Office completed a certificate in FOI. However, this role is rotated on an 18 month basis routinely and as such, knowledge management issues may be likely to arise.

Positive Practices and Procedures

  • The FOI Liaison Officer engages directly with requesters in the early stages of the process where appropriate, e.g. to seek clarifications about the scope of the request.
  • A degree of contingency is built into decision-making deadlines with a view to issuing timely decisions.
  • Review rights are routinely provided with original decisions.
  • Schedules are provided in all cases with a description of the records.
  • During 2019 the FOI Office was to receive additional support by way of assignment of another member of staff to assist the FOI Liaison Officer, a welcome development. Nevertheless, I note that this individual will have primary responsibilities as a soldier, which will likely limit their ability to deal with FOI matters in a timely fashion.

Specific Recommendations

  • The FOI function within the Defence Forces is urgently in need of additional resources if statutory compliance is to improve to a meaningful degree. In my view, consideration should be given to civilian recruitment, to allow FOI to be a core function in the role profile of the staff concerned.
  • The Defence Forces should consider how it might streamline the FOI processing structure currently employed. For example, it may not be necessary for every request to be handled at such a senior level within the Defence Forces.
  • Statutory deadlines cannot be calculated from the “registration date” as has been the practice in the Defence Forces to-date. The date of receipt of a request, from which other deadlines are calculated, must be noted and tracked from the date it arrives within the Defence Forces.
  • Consideration should also be given to alternative, regularised access arrangements to commonly requested personal records.
  • First instance and, where relevant, refresher training should be delivered to all relevant staff in relation to exemptions which pose frequent difficulty in application.

Introduction

DLR received 197 requests in 2018. Of the five applications for review that my Office accepted during the year, three arose on foot of a deemed refusal following internal review. Indeed, in two of those cases, the Council failed to issue a timely decision at either stage of the process.

The files examined during the investigation did not highlight significant issues in terms of timeliness of decision-making. Nevertheless, a number of issues were identified and are discussed below. Further, my team identified a number of issues concerning the quality of decisions being issued by DLR, particularly in the explanations being provided for reliance on harm based exemptions, as well as the application of public interest tests.

My team fully examined 10 FOI decision-making files in DLR.

Statutory Timeframes

Acknowledgment of Request

DLR acknowledged all but one request on time (no acknowledgement date was available in the relevant case).

Section 14 Extensions

One case involved an extension under section 14. In that case, DLR issued the relevant notification on time.

Original Decisions

In the cases examined, DLR issued its original decisions on time.

Internal Review Decisions

In the two cases examined involving internal review, DLR issued its internal review decisions on time.

Search, Retrieval and Copying Fees

One case examined involved the application of SRC fees. In the case in question, DLR complied with the relevant timelines. At this point it is worth noting the interlinked requirements of the SRC fees regime, which may impact the decision-making timelines applicable:

  • Where the estimated SRC charge in a case is likely to reach the “appropriate minimum amount” provided for under Section 27(3)(d) of the Act (currently €101)(S.I. No. 531/2014 - Freedom of Information Act 2014 (Fees) (No. 2) Regulations 2014 refers.), a deposit of not less than 20% of that charge should be charged to and paid by the requester, in accordance with section 27(5).
  • Section 27(5) provides that in order to charge SRC fees, the body must:
    • Notify the requester within 10 working days of receipt of the request of a deposit payable of at least 20% of the estimated cost in question, and
    • The notice should indicate an estimate of the search and retrieval time that will be involved in relation to the request, and
    • The body should also inform the requester that the notice suspends the running of the time limit for the final decision on the FOI request and that the time limit will commence running again when the deposit is received (search and retrieval work should not be commenced until the deposit is paid)
  • Where the body is considering refusing to process a request on the basis that the estimated SRC exceeds an overall ceiling limit of €700 (the appropriate maximum amount payable is €500), (S.I. No. 531/2014 - Freedom of Information Act 2014 (Fees) (No. 2) Regulations 2014 refers.) section 27(12) requires that the body must first give the requester an opportunity to refine the request so that it comes within the overall ceiling limit. With the notification detailing that opportunity, the body should also seek a deposit under section 27(5) on the assumption that the request will be refined so that the SRC is below the overall ceiling limit.
  • An FOI body must, if requested to do so, assist the requester in refining his/her request in order for the SRC charges to be reduced or eliminated. In cases where this process results in the SRC charges being eliminated, the date of receipt of the amended request should be regarded as the date on which the request was received, in accordance with Section 27(11)(c).

Related Issues

  • As noted above, the results of the file examinations in terms of timeliness were positive. However, while DLR has recently restructured FOI resourcing in an effort to increase its resilience in the function, certain issues were nevertheless observed which gave rise to concerns regarding potential delays and reductions in compliance with the statutory deadlines.
  • First, DLR appears to find the task of managing the scope of requests challenging in some cases. Frustration was expressed regarding requesters who are reluctant to engage with DLR regarding their requests. Here I would draw DLR’s attention to the requirement at section 12(1)(b) of the Act that a request must contain sufficient particulars in relation to the information concerned to enable the record sought to be identified by the taking of reasonable steps. Section 15(1)(b) provides for the refusal of a request on the grounds of non-compliance with section 12(1)(b) (although the body must first, under section 15(4), have assisted or offered to assist the requester to amend the request so it would no longer fall to be refused under section 15(1)(b)).
  • DLR also highlighted that the estimations involved in applying SRC provisions in voluminous cases can be challenging in practice. Templates and internal procedural guidance regarding SRC would likely help to mitigate risks associated with a lack of knowledge and consistency in this area of FOI. Relevant guidance documentation is available both from the Central Policy Unit of the Department of Public Expenditure and Reform (CPU) and from my Office.
  • Further, DLR outlined concern regarding a potential scenario whereby records requiring section 38 third party consultations might involve hundreds of such potentially affected persons and therefore delay the process. It is worth noting that section 38(3)(a)(ii) provides for the extension, by up to two weeks, of the period within which third parties must be notified of a request where the number of persons to be notified is such that compliance with the general two week timeframe is not reasonably possible. Section 15(1)(c), which provides for the refusal of voluminous requests, may also be of relevance.

Request Refusals

Reasons

Reasons for refusal were given in all but one case, where this was done in part.

Provisions Underpinning Refusal

Sections being relied upon were cited in all decisions examined.

Findings on any Relevant Material Issues

  • In four cases DLR did not provide any findings on material issues relevant to the decision. In one case this was not done at the first or second stage. In another DLR provided partial such details. Another, I note, involved the application of section 15(1)(i) and can therefore reasonably be discounted.
  • In four cases DLR failed to explain why it considered the relevant exemptions to apply. In one instance, this was the case at both the first and second stage.
  • In four cases DLR failed to explain what it considered to be the possible consequences of release, as required in the context of the exemptions claimed. In one instance, this was the case at both the first and second stage.

Public Interest Considerations

  •  In four cases DLR should have provided details of matters relating to the public interest that were considered for the purposes of the decision. However it did not do so in any of the cases (in one instance, it failed to do so at the first and second stage).
  • DLR also failed to explain in any of those four cases why it decided that, on balance, the public interest favoured refusal of the request.

Additional

Schedules

DLR did not provide a full schedule in any case examined (however, it should be noted that five of these cases involved decisions under section 15(1)(a) and records would not therefore have been identified).

In two cases, partial schedules were prepared, which included only a partial description of the relevant records.

Search details

In four cases, DLR cited section 15(1)(a) as a basis for in refusing the requests. However, it did not provide search details in any of those cases.

Related Issues

  • DLR acknowledged that there are ongoing issues surrounding legacy knowledge management in the FOI function, as well as a regular turnover in the staff assigned to this area. This situation only increases the likelihood of non-compliance in my view.
  • There also appears to be, to a degree, a lack of clear understanding in DLR of the requirements of harm based exemptions and public interest test considerations.
  • DLR noted that there can be inconsistency in the application of exemptions, depending on the DLR area involved in a request. Indeed, my team were informed that some DLR decision makers were, until recently, unaware of public interest balancing tests and the elements of the application of harm based exemptions. While, according to DLR, recent training interventions have gone some way to addressing such lack of understanding in fundamental aspects of the legislation, it seems to me that further such interventions and monitoring would bolster such improvements.
  • According to DLR, it may also require repetitive prompting from the FOI Unit in order to obtain responses from decision makers.
  • DLR also informed my team that while it avails of the services of the Local Government Management Agency for advice regarding processing requests, it does not routinely avail of the guidance material provided by the CPU. As the FOI policy maker, the CPU has published many advisory documents concerning the processing of FOI requests, including the application of exemptions. Regard should be had to any such advice issued by the CPU. (Section 48(3) of the FOI Act refers.)

Positive Practices and Procedures

  • DLR has provided a number of FOI training interventions across the organisation. In part, these have been targeted at the areas of DLR with the most FOI activity. Such measures heighten the awareness and skills of staff and can, in turn, improve compliance with the relevant statutory obligations.
  • DLR engages in “sectoral networking” in connection with the Local Government Management Agency in order to access and share advice among similarly positioned FOI bodies. Such measures can focus responses, improve accuracy and efficiency in processing requests, and increase consistency in decision-making across relevant bodies.
  • DLR has tailored its ICT systems in order to specifically prompt and track steps in FOI processing. Such measures improve the ability of FOI bodies to meet their statutory obligations in this area.
  • DLR has adopted a plain English approach in FOI processing in order to increase accessibility for customers with specific needs and improve the comprehension of its decisions.
  • For Data Protection purposes, DLR created an inventory of all data it holds and the locations in which different types of data are held. DLR uses this inventory to identify relevant records and their locations for the purposes of its FOI functions, in order to save time in processing FOI requests.

Specific Recommendations

  • Refresher briefings should be provided to relevant staff concerning third party consultation procedures (section 38 refers), as well as regarding the handling of unclear requests (sections 12(1)(b), 15(4), and 15(1)(b) refer) and voluminous cases (sections 15(1)(c), 15(4), and 27 (SRC) refer).
  • High staff turnover in FOI functions may lead to knowledge management issues in the area. Steps should be taken to mitigate this risk within DLR over the medium and long term, such as compiling internal guidance and induction materials.

Introduction

As noted earlier, Revenue was included in this investigation based on its comparatively strong performance over the past number of years. Revenue received 328 requests in 2018. Of the three applications for a review of Revenue decisions my Office received in 2018, none arose on foot of a deemed refusal of the request as a result of an internal review decision not issuing on time. As is discussed below, Revenue appears to have adequately resourced its FOI function. The FOI Unit deals with requests efficiently and strives to keep decision makers on track in issuing decisions on time. Of course, as in any organisation, there is scope for tweaking aspects of practice and procedure which may further strengthen efficiencies and compliance. These matters are discussed below also.

My team fully examined 32 FOI decision-making files in Revenue.

Statutory Timeframes

Acknowledgment of Request

In three of the 32 cases examined, the original request was not acknowledged within 10 working days of receipt.

Section 14 Extensions

In all four cases examined involving section 14 extensions, the requester was informed on time.

Original Decisions

  • In all cases examined, the original decision issued on time.
  • However, it should be noted that in one case, there was a significant lag in time between the date the request was dated/purportedly made (28/9/17) and the acknowledgement of the request by the FOI Office on 8/1/18, wherein the FOI Office said the request had been received on 22/12/17. When queried, it appeared this was the date the request was received in the FOI Office as opposed to the relevant Tax Office, where it had originally been received (that date was unavailable). Revenue explained that this was due to a delay on the part of the Tax Office in forwarding the request to the FOI Office in accordance with internal Revenue policy.

Internal Review Decisions

In the one case involving an internal review, Revenue issued its internal review decision on time.

Related Issues

During the investigation, a number of concerns arose regarding risks to compliance with the statutory timelines.

  • It was noted that third party consultation can at times be “last minute” depending on the circumstances.
  • Revenue acknowledged that compliance with the SRC fees regime can be difficult given the tight timelines involved and that perhaps fees should be charged more often. According to Revenue, the FOI Unit recognises this challenge and is taking steps to apply an effective fees regime.
  • A significant amount of the Unit’s time can be consumed with supporting decision makers, particularly in the more complex cases, and ultimately ensuring that decision makers comply with timelines. It was also noted that expert advice is often provided by the FOI Unit to assist decision makers understand the detailed and nuanced specifics of particular exemptions.
  • According to Revenue, its realignment presented opportunities and challenges for the staff dealing with FOI, and processes were revised to deal with the new Divisional Structure. Following realignment, 48 staff were assigned to FOI decision-making across Revenue and the FOI Unit arranged training courses to ensure these staff understood their FOI responsibilities.
  • Revenue also noted that where requests are sent in the first instance to a local tax office this may lead, in a very small number of cases, to delays in those offices forwarding the request to the FOI Unit.

Request Refusals

Reasons

 In every case examined, reasons for the decision were provided.

Provisions Underpinning Refusal

Every decision examined cited the sections being relied upon.

Findings on any Relevant Material Issues

In four cases Revenue did not explicitly provide findings on material issues relevant to the decision. However, three of those cases were search cases and another involved refusal on the ground that the record(s) contained third party personal information. Therefore, further such explanation may not have been required

In one case Revenue failed to explain why it considered the relevant exemptions to apply. However, as the refusal in that case was on the ground that the record contained third party personal information, in my view, this may have been readily understood by the requester.

In six cases Revenue failed to explain what it considered to be the possible consequences of release, as required in the context of the exemptions claimed. However, I consider that in three of these cases the consequences would have been reasonably obvious as exemption was claimed under section 37(1) involving third party personal information and privacy rights of those individuals. For all of the remaining 15 cases, Revenue provided findings on material issues relevant to the decision, as required.

Public Interest Considerations

In one case Revenue should have provided details of matters relating to the public interest that were considered for the purposes of the decision but failed to do so. Revenue complied with this requirement in all 17 other relevant cases.

In the same case, and one other, Revenue also failed to explain why it decided that, on balance, the public interest favoured refusal of the request.

Additional

Schedules

Schedules were provided in all cases where it was appropriate to do so and these contained descriptions of the records. In the eight cases without schedules no records had been identified and considered for release (sections 15(1)(a) and 15(1)(g) applied).

Search details

Notably, in eight of 11 cases in which it relied on section 15(1)(a), Revenue failed to provide any search details in its decision letters to the requesters concerned and for only one of these cases were certain details regarding searches conducted evidenced somewhere on the file. (I would note that in one case without meaningful search details, Revenue did state in the decision the area(s) to which the request had been circulated.)

Related Issues

  • Revenue stated that at times difficulties arise in respect of the application of some harm based exemptions. It stated that decision makers may lack a detailed understanding in some instances of the nuances of exemptions such as those at sections 29, 30, 35 and 37 (other exemptions mentioned in passing as posing challenges included sections 15(1)(a), (c), (g), 31, 33, and 36).
  • With respect to search cases, it was noted that the FOI Unit often has to follow up with decision makers for further details as to why records have not been found.
  • Some delay may be encountered in the processing of requests by individuals recently assigned FOI related responsibilities, due to the recent nature of their acquisition of FOI knowledge, and occasional difficulties arising in the sourcing of relevant information from across Divisions.
  • There is relatively high turnover in FOI decision-making responsibilities across Divisions. However, Revenue noted that it has put in place quality assurance measures through its FOI Unit and new decision-makers are receiving training to provide consistency and quality in decisions issuing.

Positive Practices and Procedures

  • Given the rationale for the inclusion of Revenue in this investigation, it is worth noting a number of examples of positive practice here.
  • Weekly reports are provided to the Chairman and Assistant Secretaries General regarding FOI progress. Such agenda setting measures, leading from the top, positively impact the perception of FOI at the cultural level within organisations.
  • Revenue appears to adopt a pro-FOI position with a view to releasing as much as is possible.10
  • The FOI Unit maintains a database containing all requests, previous requests, exemptions used, and the Divisions requests were sent to. This can assist in deciding where the request should be sent.
  • The FOI Unit is stringent with decision makers in terms of their returning decisions a week in advance of the statutory deadline.
  • The FOI Unit notes in its standardised emails to Revenue decision makers that Revenue requires SRC to be considered in all cases where more than five hours is likely to be spent on search and retrieval. These communications also note that specific criteria apply to SRC fees and instruct decision makers to contact the FOI Office if they consider fees might apply.
  • Revenue has undertaken to upskill staff to assist with FOI tasks where resources have been identified as being stretched thin.
  • Revenue routinely makes use of guidance issued by the CPU and my Office.
  • Revenue utilises a shared internal FOI mailbox, which is accessible to all relevant staff. This mitigates against staff absences, etc. When an email is opened and someone begins dealing with it, the message is assigned a colour. This coding allows other staff to know that the matter is being dealt with and who has taken responsibility for it. The FOI Unit’s staff can easily see from the colour coordination if anything remains outstanding at the end of a day.
  • 10 According to Revenue, this approach extends to requests made regarding ongoing audits, where requesters are attempting to ascertain relevant information during the audit process. In such cases Revenue will, as appropriate, utilise relevant exemptions. However, once the relevant tax appeal process has concluded, such records may be released.
  • The FOI Unit regularly reminds decision makers that FOI timelines are strict and that I highlight deemed refusals in my Annual Reports.
  • Revenue builds some contingency into its FOI processing. Such steps may be essential if an FOI body is to be fully compliant with the statutory obligations.

Specific Recommendations

  • A future training intervention for decision-making staff should address the fees regime in particular, with particular attention directed to the timelines involved.
  • A template for the estimation of SRC fees would also be beneficial for personnel handling requests involving SRC fees.
  • Consideration should be given to means of emphasising, on a cross-organisational level, the importance Senior Management places on of FOI, e.g. by way of a communication to all staff, recalling the importance of Revenue’s compliance with its statutory obligations under the FOI Act.
  • High staff turnover in FOI functions may lead to knowledge management issues in the area. Steps should be taken to mitigate this risk within Revenue over the medium and long term, such as compiling internal guidance and induction materials. 

 

 

Introduction

TUSLA received 992 requests in 2018. Of the 26 applications for review my Office accepted during the year, 77% arose on foot of a deemed refusal following internal review.

It is worth noting at the outset that part of the services examined during this investigation have been the subject of a Memorandum of Understanding (MOU) which was agreed between TUSLA and the Health Service Executive (HSE) on the establishment of TUSLA in 2014. This MOU sets out the detail of agreed services and types of services that TUSLA and the HSE commit to providing.

TUSLA expressed its gratitude to the HSE for providing FOI supports during the early years of its establishment. Since then, however, according to TUSLA, the level of service provided by the HSE under the MOU has been significantly reduced, in particular with respect to FOI. Tusla acknowledged that this reduction occurred at a time when the HSE was also facing challenges in retaining staff and expertise in FOI units, while at the same time responding to increased levels of FOI request activity and operating within a significantly restricted and challenging fiscal environment.

However, TUSLA has stated that reduced support in this area has resulted in TUSLA having only a very limited capacity to meet its statutory FOI obligations. According to TUSLA, it must now become self-sufficient in the delivery of its FOI solutions.

I am grateful for the cooperation of TUSLA in conducting this investigation. I appreciate the daily pressures it faces and I understand the efforts required in processing FOI requests across the body. TUSLA’s observed openness to constructive feedback and its expressed willingness to improve in areas of acknowledged non-compliance is most welcome.

TUSLA experiences a very significant amount of FOI related activity each year. Given the nature of its work, a large quantity of requests processed by TUSLA concern personal information. As will be seen, under-resourcing across FOI functions in TUSLA is of major concern, as it is a key contributor to TUSLA’s inability to fully comply with its statutory obligations in providing timely and meaningful decisions to its requesters.

With regard to the findings below, it must be noted that complete timeline information was not available for every file examined. Therefore, a full assessment of all timeline requirements was not possible. Any such absences have been noted below and the findings reflect those cases where the relevant data was accessible.

My team fully examined 35 FOI decision-making files in TUSLA.

Statutory Timeframes

Non-compliance with the deadline for issuing original decisions is a key issue for TUSLA. There were some particularly worrying examples observed during the examination of files. Issues also arose concerning the timelines for acknowledgement of requests as well as the application of extensions under section 14.

Acknowledgment of Request

  • Of the 23 cases where the timeline information was fully available (date of request, date of receipt, date acknowledged), two were acknowledged outside of the 10 day window (39 and 72 days from receipt of the request, respectively).
  • In two cases, TUSLA “deemed” the request received at a certain date, however, there was evidence on file that the request was in circulation within TUSLA prior to this “deemed” date of receipt. For example in one case TUSLA acknowledged receipt of the request on 14/3/18, seemingly having deemed it received on 13/3/18. However, there was correspondence on file between TUSLA and the applicant on 18/1/18 regarding the request and clarifications sought (this was not a refining and resubmission exercise). In my view this earlier date in January would therefore be the closest to what could be considered a date of receipt based on the information available.
  • As mentioned, in one of the above cases it took 72 days to acknowledge the request, which is particularly disappointing (there was no date available on which TUSLA deemed this request received). There was, however, correspondence on file where, as of 9/4/18, TUSLA communicated with the applicant regarding the request and seeking their proof of identification.

Section 14 Extensions

Four cases examined involved section 14 extensions. In three of these cases, the notification issued late.

Original Decisions

All relevant data was available for 34 of the 35 cases assessed.

  • In 21 of these cases, the decision did not issue on time (i.e. 62% of these cases / 60% of all cases examined)
  • Some pertinent examples include cases where it took 336 days from receipt of the request until the original decision issued; 308 days; 249 days; 180 days; 133 days; 129 days; and 925 days, respectively.
  • In the case where it took 925 days to issue the decision, TUSLA made extensions on five separate occasions. After the 5th extension, TUSLA contacted the requester asking them to confirm if they still wished to proceed with the request. Although extension was relied upon, section 14 was never cited and the reason provided to the requester was the number of requests received by TUSLA, not the volume of records, etc.
  • In the case where it took 336 days, the acknowledgement letter said TUSLA unable to comply with deadlines due to volume of requests. However, no further explanation was evident.
  • In the case which took 249 days, the following explanation was available on file. The request was sent by email on 13th June and the FOI Unit, in acknowledgement, said it was received “in this office” on 18th July. In the acknowledgement letter, reference was made to a backlog of FOI requests and the fact that TUSLA would be unable to comply with the deadlines in the Act, stating that requests would be dealt with in the order received and would be processed as soon as possible.

Internal Review Decisions

Two cases examined featured internal reviews. In one such case, the notification issued on time. In the other, the requester withdrew before the drafted second stage decision issued.

Related Issues

  • TUSLA stated that the organisation’s FOI role is not adequately supported and resourced and that, as a result, it is a struggle to keep FOI cases moving as they should. According to the FOI Unit, additional individuals are required, who are self-sufficient, experienced, and capable of managing requests and issuing decisions.
  • It was also noted that large numbers of records in cases can lead to decision makers finding it difficult to remain consistent in their approaches. Given the nature of many TUSLA records, significant quantities of redactions may be involved in a case which can be time consuming to deal with, alongside the provisions of section 18 of the Act which provides for the release of records with exempt information redacted.
  • Furthermore, TUSLA noted that while some of its areas have directly recruited individuals to deal with FOI and/or Data Protection matters, in general staff have competing priorities which can negatively impact on the proper resourcing of FOI functions – for example, there may not be enough social workers in primary roles in the first instance.
  • Only some areas of TUSLA have procedures in place for tracking requests. TUSLA’s FOI liaison officer does not monitor timelines and quality of such decisions across the country, chiefly because TUSLA does not have a nationwide tracking system for FOI. It was noted that the liaison officer may often become aware of such requests only when she is advised of a review submitted to my Office or if a request for advice from an area is received in the FOI Unit.

Request Refusals

While I am pleased to find that TUSLA generally provided reasons for decisions and cited the relevant sections of the Act being relied upon in the case of refusals, a number of issues arose surrounding the meaningful extent of the explanations given and compliance with the requirements of the various exemptions being cited.

Reasons

By and large reasons were given in all cases for relevant refusals. However, in four cases this was done in part only.

Provisions Underpinning Refusal

Sections relied upon were cited in all decisions examined.

Findings on any Relevant Material Issues

  • In the majority of cases TUSLA provided details of material issues relevant to the decision taken. However, in two cases TUSLA did not provide any such details. In a further five cases TUSLA did so partially.
  • In four cases TUSLA failed to detail why it considered the relevant exemptions to apply.
  • It should be noted there were a number of other cases where such details were required and TUSLA did not provide such details in its decision letters. However, in those cases, it would have been readily evident why the exemption claimed applied (e.g. s37(1) being relied upon, the sensitivity relating to the release of third party personal information and the privacy rights of such individuals).
  • In six cases TUSLA failed to explain what it considered to be the possible consequences of release, as required in the context of the exemptions claimed.

Public Interest Considerations

There were 10 cases where TUSLA should have provided details of matters relating to the public interest that were considered for the purposes of the decision but did not, either in full or in part, and failed to explain why it decided that, on balance, the public interest favoured refusal of the request.

Additional

Search details

TUSLA relied upon section 15(1)(a) in four of the cases examined. However, it did not provide search details in its decisions in any of these cases. It was also noted that two of these cases did not have any evidence of details pertaining to searches undertaken noted on file.

Schedules

A schedule was not provided in five cases where it was appropriate to do so (two at the second stage). In eight cases the schedules provided did not contain a description of the records concerned.

Related Issues

TUSLA stressed that there is an identified, ongoing need for experienced, trained individuals to deal with FOI across its various areas and that the current situation may negatively impact upon the quality of decisions being issued. There is a lack of dedicated staff in place to deal with FOI matters across TUSLA.

TUSLA acknowledged there may be inconsistency in the quality of decision-making across its various areas. While there have been a number of collaborative workshops delivered across the country with the CPU and my Office, ongoing training could help improve consistency (although it was said that the current scope to deliver such training beyond Dublin is limited).

According to TUSLA certain exemptions pose difficulties for decision makers in their application, notably those concerning deliberative processes and functions/negotiations. TUSLA noted that while the Guidance Notes published by my Office are very clear as to the requirements of given exemptions, it can nonetheless be hard to describe all the relevant outcomes in a given case and to meet all of the requirements (e.g. harm based exemptions).

Other difficulties in applying certain exemptions that were noted included situations where records are already in the possession of the requester, and overlap between the Data Protection and FOI regimes as they concern personal information.

Positive Practices and Procedures

  • As an organisation, TUSLA offices have a wide geographical spread. It has implemented introductory training for decision-making staff and, in an effort to address geographical limitations, has conducted a series of workshops across the country for relevant staff. TUSLA has been proactive by including both my Office and the CPU in these sessions, in order to provide a more rounded perspective on the FOI process, covering key issues likely to arise in its work.
  • TUSLA’s FOI Office takes a proactive approach in engaging with requesters by contacting them personally, e.g. by telephone, to clarify and refine requests. In a complex area where a requester may not be at all familiar with the internal operations of an organisation, such an approach can be an excellent means of providing clarity and is likely to increase overall efficiency in processing the relevant request to the satisfaction of all concerned.
  • TUSLA has expressed its intention to publish greater quantities of information online and to enhance its website. Placing as much information as possible in the public domain can assist in stemming the pressures of FOI on public bodies.
  • During 2019 TUSLA began implementing revised FOI procedures, which it hopes will aid consistency in decision-making and deliver a level of quality assurance across the organisation. TUSLA also hopes that the introduction of a network of “privacy officers” in the organisation will contribute to a reduction in the pressures of FOI compliance on frontline staff.
  • In 2020, TUSLA will implement “eFOI.” eFOI is a platform that enables FOI processes and deadlines to be centrally administered and tracked, on an organisation-wide basis. (See General Recommendations) According to the Office of the Government Chief Information Officer (OGCIO), the eFOI system has been fully deployed in seven departments across the Civil Service. TUSLA’s introduction of eFOI is a particularly welcome development.

Specific Recommendations

  • While I appreciate that resourcing is a general matter of concern across TUSLA, there is an urgent need to address the under-resourcing of the organisation’s FOI functions specifically. Staff responsible for FOI tasks appear to be overwhelmed. It seems to me that TUSLA will not be in a position to make significant improvements in its compliance until it adequately addresses this problem.
  • As a matter of urgency, TUSLA should adopt a common, organisation-wide approach to logging and tracking requests throughout the decision-making process.
  • TUSLA must ensure that all relevant staff are aware that the date of receipt of a request is that on which the request arrives within the organisation and not any later date, e.g. the date a request is “registered” as having been received by the decision maker.
  • Specific training interventions should continue to be provided for relevant staff regarding, in particular, the application of exemptions at sections 15 (administrative grounds for refusal), 37(1) (third party personal information), and 38 (third party consultation).

Introduction

UCD received 133 requests in 2018. Three of the four applications for review my Office accepted during the year arose on foot of a deemed refusal following internal review.

As will be seen, while UCD generally appears to acknowledge requests received on time, it has not managed to issue original decisions on time in a significant proportion of cases. With regard to the quality of decisions issued, of particular concern is UCD’s explanation of reliance on exemptions involving public interest considerations. On a more positive note it seems there is quite a high level of FOI awareness across the body, and the importance of FOI is recognised and promoted at Senior Management level within the University.

My team fully examined 10 FOI decision-making files in UCD.

Statutory Timeframes

Acknowledgment of Request

In the cases examined, UCD acknowledged all but one request within 10 working days of receipt, as required.

Section 14 Extensions

Two cases examined involved extensions under section 14. UCD issued the relevant notification on time in both cases.

Original Decisions

UCD’s original decisions were late in 40% of the cases examined (39 days from receipt of the request; 24 days; 22 days; and 21 days, respectively).

Internal Review Decisions

In the one case examined involving internal review, UCD’s internal review decision was issued late.

Related Issues

  • Under-resourcing of the FOI Office has been an issue of late. However, a new, full time assistant joined UCD in mid-2019.
  • Senior Management in UCD appears to be supportive of the FOI function (monthly FOI reports are submitted to the Senior Management team). However, according to the FOI Office, only 25% of UCD’s business units (directly managed by members of the Senior Management Team) are able to handle the majority of FOI decision-making without significant input from the FOI Office.
  • Furthermore, while the FOI Office of UCD monitors the various stages of FOI processing in a methodical manner, the systems involved do not automatically account for various statutory deadlines; rather they are monitored by one individual.

Request Refusals

Reasons

Reasons for refusal were mentioned in all decisions examined.

Provisions Underpinning Refusal

Sections of the Act relied upon were cited in all decisions examined.

Findings on any Relevant Material Issues

  • In all but one decision examined, UCD provided findings on material issues relevant to the decision (the one outstanding was a search case, under section 15(1)(a)).
  • In one case UCD failed to explain why it considered the relevant exemptions to apply.
  • In two cases, UCD failed to explain what it considered to be the possible consequences of release, as required in the context of the exemptions claimed.

Public Interest Considerations

In six cases UCD should have provided details of matters relating to the public interest that were considered for the purpose of the decision. However, it failed to do so in three of those cases.

In five cases UCD also failed, in full or in part, to explain why it decided that, on balance, the public interest favoured refusal of the request.

Additional

Search details

UCD relied on section 15(1)(a) in five of the cases examined. However it did not provide the requester with search details in any of the five decisions at issue.

Schedules

UCD provided a schedule in only one of six cases where it was appropriate to do so. (The remaining four cases involved decisions under section 15(1)(a) where no records were identified.)

Related Issues

  • UCD said that while it accepts the reasonableness of the statutory requirements at issue, it finds it difficult at times to achieve the level of detail expected under section 13(2) and to understand the level required in practice.
  • While the FOI Office makes extensive use of the guidance provided by this Office and the CPU in its decision-making, it noted that there is a need across University units for greater understanding of what is expected under various exemptions in an FOI context as opposed to a more general understanding of the meaning of their terms (for example, “commercial sensitivity” within the meaning of section 36 rather than merely in the everyday sense of the term).
  • UCD acknowledged that fuller engagement with requesters would likely assist it in improving its success in relation to the various criteria at issue.
  • It was noted that FOI training interventions for key staff has not taken place in some time.

Positive Practices and Procedures

  • The Senior Management team emphasises the importance of FOI.
  • The FOI Office utilises a “traffic light” reporting mechanism in its updated reports to the Senior Management team.
  • The FOI Office routinely includes review rights in acknowledgement letters, extension letters and decision letters.
  • The FOI Office routinely states in acknowledgement letters that SRC charges may apply and says that it will contact the requester to discuss options if this is the case.

The FOI Office frequently has recourse to the advice of colleagues within a sectoral “Universities FOI Officers Network”, with regard to discussion of common issues arising in the processing of requests

Specific Recommendations

  • UCD should begin tracking its compliance with the various statutory deadlines at issue.
  • Rather than providing answers to questions posed in a request (an FOI request should seek records, not information), UCD should identify relevant records and make a decision as to release or exemption of the record’s contents under the terms of the Act (in such cases UCD could, for example, identify records containing answers to the questions posed, if it is satisfied the request is valid).
  • Ensure all relevant staff across UCD receive appropriate FOI training, including newly appointed Heads of School (and similar). Particular attention appears to be required regarding the SRC fees regime, and the nuances of harm-based exemptions and public interest tests.

In addition to the specific recommendations set out above, I have outlined below a number of recommendations each body should implement in an effort to improve compliance with the statutory obligations at issue.

As mentioned, in compiling these recommendations, I have also drawn upon positive examples of effective practice and procedure observed by my team within the bodies investigated.

Beyond those bodies investigated in this instance, I would encourage all FOI bodies to consider the findings and recommendations in this report. These recommendations may be applicable to the practices and procedures of any given FOI body in fulfilling its statutory functions. The measures outlined reflect elements of what I consider to be best practice and this report will serve as a useful reference point as to what is required of FOI bodies as means of enhancing compliance. Every FOI body should seek to adopt such measures, as appropriate, within its own operations.

It would benefit all FOI bodies to undertake quality audit exercises similar to that conducted by my team in this investigation. This could be completed, for example, by assessing a sample of cases on a comparative, quarterly basis or spanning the previous year’s work.

Official Guidance

As a general comment, I would first remind the bodies concerned that all relevant staff should inform themselves of the guidance published by my Office and the CPU regarding, among other things, the requirements of the statutory deadlines and exemptions provided for under the FOI Act. In the performance of their functions under the Act, FOI bodies are obliged, under section 48(3), to have regard to the CPU’s code of practice and any guidelines issued by the CPU in the area. The CPU has published a checklist addressing the statutory timelines involved in processing requests, which provides a helpful overview ( “CPU Notice 11 – Checklist”, available: <https://foi.gov.ie/download/cpu-notice-11-checklist/> (last accessed 9 September 2019)).

Statutory Timeframes

Greater attention to record keeping and monitoring of the various statutory timelines at issue is essential to the achievement of full compliance.

  • Resource needs in respect of the FOI function should be evaluated and given full consideration when planning human resources. Resources should be commensurate with the body’s requirements in achieving statutory compliance, so that the rights provided for under the Act may be exercised in full.
  • A generic, all-access FOI mailbox should be used by FOI units, to ensure more efficient FOI processing, particularly in terms of avoiding delays due to staff absences. The mailbox should be checked daily.
  • Strong consideration should be given to implementing an FOI tracking system across the body. In small bodies, the introduction of a tracking spreadsheet common to all units may suffice. As noted above, “eFOI” is a platform that enables central administration and tracking of FOI processes and deadlines, on an organisation-wide basis. The system has in-built functions to prompt and encourage efficient decision-making. It is also capable of generating reports on data sets relating to the various items tracked (e.g. date decision made vs. statutory deadline for the issue of a decision). According to the OGCIO, eFOI is currently available to all FOI bodies for use, subject to a) the body being on Government Networks (which the vast majority are) and b) the body having signed up to contribute financially to a Build to Share programme. In my view, all FOI bodies should actively consider adopting eFOI or a similar system. A standard approach to FOI tracking in FOI bodies, and common awareness of the features and capabilities of the system, would also be of assistance to my Office in conducting reviews and investigations.
  • All staff should receive appropriate training to enable them to recognise an FOI request and to ensure awareness of the body’s protocols for forwarding requests to relevant sections.
  • Where any doubt arises concerning the particulars or scope of a request, the relevant officer should engage directly with the requester at the earliest possible opportunity to seek clarification.
  • Steps must be taken to ensure that the date a request is received – from which subsequent statutory deadlines are calculated – is documented and maintained on file. A request must be registered as having been received on the date it arrived in the body, regardless of which area of the body first encounters it.
  • The risk of delay should be factored into decision-making processes. A suitable guideline could be that draft decisions must be completed one week in advance of the relevant statutory deadline, in order to mitigate against delays arising from case complexities, unplanned absences and so on.
  • Section 14(1) extensions must only be applied for the reasons set out in the subsection.
  • All relevant acknowledgement letters should include the relevant rights of review and/or appeal, and, where appropriate, flag potential issues such as the need for clarifications, extension, and/or SRC charges that might apply.

Request Refusals

The interpretation and application of certain exemptions can prove difficult for decision makers in practice. Such difficulties can affect the adequacy of the reasons provided for decisions on FOI requests. Bodies must meaningfully address such issues, if compliance with the requirements of section 13(2) is to be achieved.

Internal guidance

  • As a general point, guidance, procedures and/or templates for decisions should be provided to decision-making staff, where possible, tailored to common issues arising in the body concerned.
  • FOI Officers should direct decision makers to relevant guidance alongside requests. For example, intranet links to such documentation could be provided in initial correspondence to decision makers.
  • When decision makers require clarification about the application of exemptions, they should have regard to relevant guidance and liaise with their colleagues in the body’s FOI office.
  • Further, for quality assurance purposes, FOI Officers should ordinarily be consulted by decision makers regarding the contents of their decisions.

Application of particular provisions

  • It will not be sufficient to merely state the subject of particular exemptions being relied upon in a decision. For example, in the case of a harm based exemption, the body would need to explain how the particular harm might arise, having regard to the specific contents of the relevant records.
  • Where the exemption claimed involves public interest considerations, details of the specific public interest factors considered should be provided along with an explanation of why, on balance, the body considers the public interest favours refusal of access.
  • Where a body is relying upon section 15(1)(c) to refuse a voluminous request, it must first ensure it has complied with section 15(4) and has assisted, or offered to assist, the requester to amend the request for re-submission so that it would no longer fall to be refused under section 15(1)(c), and it must also provide a documented and defensible estimate of the work potentially involved in processing the request with the relevant decision refusing on the above basis.
  • In all decisions relying upon section 15(1)(a), details of the searches undertaken should be gathered, noted on the decision-making file, and provided to the requester in the relevant decision. The requester will then be better able to assess whether they consider the body to have conducted adequate searches.
  • Where possible, search details available ought to be provided in all decision letters, as appropriate, as this may reduce the likelihood of search becoming an issue later in the process, or on appeal, i.e. such details serve to increase the understanding of the requester of the decision concerned.
  • When training is being provided to staff with FOI related responsibilities, attention should be given, in particular, to harm based exemptions; public interest balancing tests; SRC fees and section 38 third party consultation.

Schedules

Schedules should be provided with all decisions in cases where records have been identified. The schedule should list the records, with a description of their contents and itemise any records or parts thereof being refused, citing the relevant exemptions applicable to those records or parts.

Culture and Senior Management

The value of Senior Management support concerning the importance of FOI cannot be underestimated.

  • Senior Management should make all staff aware of the importance they afford to the FOI process.
  • Progress in FOI processing and other FOI related issues should be standing agenda items at Senior Management team meetings, to emphasise the place of FOI within the organisation. Monthly updates could be provided to the meetings based on a “traffic light” system, such as that employed by UCD. (see appendix 2) As above, this could be done by conducting a quality audit in respect of a random selection of decision-making files.
  • Consideration should also be given to including in bodies’ risk registers potential results of non-compliance and the potential of appeals being made to my Office and to the High Court.

Knowledge Management

  • Appropriate knowledge management processes should be implemented to ensure databases and materials such as internal guidance notes are maintained and available to future staff assigned to FOI related roles. Such measures should, to some extent, mitigate against losses in FOI experience and expertise when changes occur in the staffing of FOI functions.
  • Training needs across the body’s FOI functions should be regularly reviewed.
  • When staff are assigned an FOI related role, they should receive comprehensive and timely training interventions, as well as refresher training.
  • Consideration should be given to engaging with similarly placed / sectoral bodies to collaborate in networking groups with a view to sharing FOI experience and knowledge.

ICT and Data Management

  • All bodies should critically examine their records management processes with a view to routinely placing as much information as possible in the public domain. Publishing information as a matter of course, particularly information of the sort regularly requested under FOI can also reduce the burden placed on bodies by FOI processing.
  • Inventories which many FOI bodies will have prepared for Data Protection purposes should be accessible to staff in FOI functions with a view to increasing the efficiency of their processing of FOI requests, e.g. by more readily identifying multiple areas in which relevant records may be located.
  • When introducing revised or new ICT systems, bodies should meaningfully consider incorporating elements to enhance effective FOI processing. Features similar to those provided by eFOI, for example, would be useful.

I would again like to thank each of the bodies concerned for their open cooperation with this investigation. The bodies have considered the findings and recommendations set out in this report. My team has discussed any observations or concerns arising and these have been considered in finalising this report.

I am glad to say that each body has committed to adopting measures to improve performance regarding compliance with the statutory requirements that have been the focus of this investigation. With support from my team, each body is to prepare an action plan for improvement, in light of the findings and recommendations of this investigation.

I intend to monitor progress in respect of the implementation of these plans over the course of the coming year.

Peter Tyndall, Information Commissioner January 2020

Appendix 1

Sample Checklist

PRE DECISION

1

Date of request

 

2

Date request received / deemed received (if noted)

 

3

Time request received (e.g. if evening / borderline)

 

4

Date request acknowledged

 

5

Was decision deadline extended under section 14?

Yes

No

6

Date notification made of extension

 

7

Date of new decision deadline re s14 extn.

 

8

Reason for extension under section 14

Yes / No

Detail reason(s):

9

Was clarification sought re request?

Yes

No

N/A

10

Date clarification sought

 

11

Date clarification received

 

 

DECISION

12

Date of original decision

 

13

Schedule provided?

Yes   /   No

14

Does schedule contain description of the records therein?

Yes   /   No

15

Are reasons given for refusal?

Yes

No

15.1

Section(s) cited

 

15.1(a)

Section 38 involved?

Yes

No

15.1(b)

Section 38 (extended) involved?

Yes

No

15.2

Are findings given on material issues relevant to the decision?

Yes

No

15.2(a)

Is it noted why records are sensitive?

Yes

No

N/A

15.2(b)

Is it noted what the consequences of release might be?

Yes

No

N/A

15.2(c)

Was scope a relevant material finding of fact for the decision (e.g. outside scope)?

Yes

No

15.3

Is it detailed whether particulars of any matter relating to the public interest taken into consideration for the purposes of the decision?

Yes

No

N/A

15.3(a)

Were public interest factors for and against mentioned?

Yes

No

NA

15.3(b)

Is any weighing of those factors mentioned?

Yes

No

N/A

16

Are searches noted on file? (NB in a 15(1)(a) case this would be a material issue)

Yes   /   No

17

Searches noted in decision (relevant for e.g. s15(1)(a))?

Yes   /   No

           

 

Where section 38 consultation

18

Date(s) any third parties notified, further to section 38, of their right to make a submission

NOTE: If multiples, please detail the relevant info. on attached notepaper if necessary.

 

19

Deadline(s) specified to third party/parties for submission(s)

NOTE: Attach detail in note if necessary.

 

20

Was an extension applied (under section 38(3)(a))?

Yes

No

20.1

Was requester informed of extension (further to s38(3)(b))?

Yes

No

20.1(a)

Significant no. of records involved?

Yes

No

20.1(b)

Significant no. of third parties involved?

Yes

No

 

 

Where SRC fees charged

21

Date of deposit notification

 

22

(Where relevant) Date of notification that body intended to refuse request as SRC above ceiling limit

 

23

Offer of assistance given?

Yes

No

24

Was an amended request received?

Yes

No

24.1

Date amended request received

 

24.2

Did amended request eliminate need for deposit?

Yes

No

24.2(a)

If yes, date relevant amendment made (may not differ from above).

 

25

Date of receipt of deposit

 

 

Where section 15(1)(c) relied upon

26

Offer of assistance in narrowing request given? (don’t have to cite 15(4))

Yes

No

27

Date of offer of assistance

 

28

Amended request received?

Yes

No

29

Date of receipt of relevant amended request

 

 

Internal Review

30

Date of receipt of internal review request

 

31

Date of internal review decision

 

32

Schedule provided?

Yes

No

33

Does schedule contain description of the records included therein?

Yes

No

34

Are reasons given for refusal?

Yes

No

34.1

Section(s) cited

 

 

34.2

Are findings given on material issues relevant to the decision?

Yes

No

34.2(a)

Is it noted why records sensitive?

Yes   /   No   /   N/A

34.2(b)

Was it noted what the consequences of release might be?

Yes   /   No   /   N/A

34.2(c)

Was scope a relevant material finding of fact for the decision (e.g. outside scope)?

Yes

No

34.3

Is it detailed whether particulars of any matter relating to the public interest taken into consideration for the purposes of the decision?

Yes   /   No   /   N/A

34.3(a)

Were public interest factors for and against mentioned?

Yes   /   No   /   N/A

34.3(b)

Is any weighing of those factors mentioned?

Yes   /   No   /   N/A

NOTES e.g. Anomalies, clarifications needed, observations (e.g. if you happen to notice appeal rights / review procedures not noted in acknowledgements / decisions), problems recurring; Subject matter for future outreach. (Attach additional note paper if necessary)

Appendix 2

UCD Sample FOI Report to Management

(see PDF download)