Thank you for the invitation to speak to you here this evening in Cork.

The 21st of April 2018 will see the 20th anniversary of the introduction of Freedom of Information legislation in Ireland.  This event provides a very timely opportunity to reflect on Freedom of Information in Ireland and to consider recent developments in the law. I very much welcome the chance to give you an update on the state of play in the world of FOI.

I am conscious of the fact that records released (or indeed withheld or redacted) as a result of FOI requests from journalists and others feature every day in media reports. While my Office is involved in reviewing only a small percentage of decisions on the 34,000 FOI requests made annually, we sometimes have to grapple with complex issues in the Act itself and in some of the broader areas of the law including confidence, privacy, commercial sensitivity, international relations and legal professional privilege. Importantly, when dealing with exemptions where the public interest balancing test applies, part of our task is to weigh the competing harms and interests in deciding whether a request should be granted. 

Lawyers of course engage with us on behalf of requesters, objectors to release of records and public bodies. I think that generally we succeed in keeping the process from becoming unduly adversarial. In recent years we have made great strides in improving turnaround times and streamlining our procedures so that over 65% of our cases are closed within four months.

Before I discuss FOI, I would like to set in context my various roles as Ombudsman and Information Commissioner as well as Commissioner for Environmental Information. I took on the role of Ombudsman and Information Commissioner in December 2013. Prior to my appointment, I was Public Services Ombudsman for Wales from 2007. 

The post of Ombudsman was established under the Ombudsman Act 1980, while the post of Information Commissioner came into being under the FOI Act 1997. As Ombudsman, I make recommendations on complaints made to me about alleged maladministration. As Information Commissioner, I review decisions made by FOI bodies under the FOI Act 2014. I also keep the operation of the Act under review and I may, at any time, carry out an investigation into the practices and procedures of FOI bodies. I am independent in the performance of my functions.

In some jurisdictions, such as Norway, the remit of the Ombudsman includes access to information functions. In the UK, the Information Commissioner also performs the functions of Data Protection Commissioner. The Irish model is a slightly unusual one but the decision to make the Ombudsman the Information Commissioner was taken for a number of reasons. The Office of the Ombudsman had been in existence since 1984 and had established itself in the eyes of the public as effective, independent and impartial. The Government therefore felt that the dual role of Ombudsman/ Information Commissioner would give legitimacy to the new FOI legislation and to the Commissioner’s role. In addition, the sharing of services and the housing of both Offices under the same roof would be financially prudent.

I am confident that both Offices play an important role in raising standards of public administration. The Office of the Information Commissioner - the OIC - does so by helping to make public bodies accountable and transparent in how they perform their functions, including their expenditure of public funds and management of resources.  

Moving on to the Office which has more of a European Law dimension than the others, the Office of the Commissioner for Environmental Information (OCEI) was established under  the European Communities (Access to Information on the Environment) (AIE) Regulations. The AIE Regulations transpose Directive 2003/4/EC on public access to environmental .The AIE Directive implements the first pillar - access to information - of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention).

The OCEI is an independent statutory appeals mechanism and is legally separate from the OIC although assisted by staff of that Office. I made 35 formal decisions on access to Environmental Information appeals in 2017 and am involved in several High Court and Court of Appeal challenges in this area to which I will return later in this talk.

One further, more recent responsibility that I have arises from the European Communities (Re-use of Public Sector Information) Regulations 2005 as amended by 2015 Regulations.

Under the PSI Regulations, a person can make a request to a public sector body to release documents for re-use. The Regulations provide that 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.

Under the Regulations, decisions of public bodies can be appealed to my Office. We have dealt with only three such appeals since the 2015 Regulations came into force.


The FOI Act 1997
When FOI legislation was first introduced In Ireland in 1998 more than 20 countries had similar laws. Today, more than 100 countries across the world have FOI laws, including the vast majority of the EU Member States.

The introduction of the FOI Act in Ireland represented a major change in culture and approach for public bodies regarding the information held by them. Prior to FOI, the Official Secrets Act provided for minimal access to information. The FOI Act introduced a right of access by members of the public to records held by public bodies, the right to have information held about them corrected or updated where necessary and the right to be given reasons for decisions taken by public bodies which affect them. 

The radical nature of the FOI Act was recognised in the Courts at an early stage. In Deely v. The Information Commissioner [2001] IEHC 91 Mr. Justice McKechnie described FOI as “on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy.” He went on to say that the “purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public.” 


FOI Amendment Act 2003  
By 2003, it was clear that the then Government was feeling less comfortable with the concept of improved “accountability and transparency” and a Freedom of Information (Amendment) Act was introduced in 2003. The Amendment Act restricted the potential right of access to Government (or Cabinet) records to those records created more than 10 years before receipt of the request as opposed to five years  as provided for in the 1997 Act. It seems that the primary impetus for amendment arose from the fact that some Cabinet records would have become potentially available under the FOI Act from 21 April 2003. There were also concerns about the number of requests which fell to be dealt with and what was perceived as misuse of the Act by some users making frivolous or vexatious requests. The Amendment Act also introduced fees for making requests and for availing of appeal and review mechanisms. The introduction of fees gave rise to a significant, almost immediate, reduction in usage of the Act, particularly by journalists. Within one year, usage of the Act had fallen by 50%, with usage by the media falling by 83%.


FOI Act 2014
In 2011, the newly appointed coalition Government made a commitment in its Programme for Government to restoring the FOI Act to what it was before it was amended in 2003, and to extending its remit to all public bodies. In 2014, a new FOI Act was introduced. While the Act did not fully restore FOI legislation to its pre-2003 state, it reversed many of the more significant curtailments. Among other things, it reduced the time period within which Government records cannot generally be considered for release from 10 years to five years. It abolished the application fee for making non-personal requests for information and reduced the fee for seeking a review by my Office from €150 to €50.

The Act was also extended to all public bodies, although in some important cases, such as the Garda Síochána, the Central Bank and NAMA, the extent of its application is quite limited. The introduction of the FOI Act 2014 had an almost immediate impact on FOI usage levels which have continued to rise steadily since. The figures are striking:  between 2014 and 2017, the number of requests made to FOI bodies has increased by 50%, My Office recorded a 62% increase in the number of applications for review received during the same period. I also note that the proportion of requests made by journalists increased from 12% in 2014 to 20% in 2017.

Even a cursory glance at the Act would lead any observer to conclude that it is a complex piece of legislation. The number and range of specific exemptions- both mandatory and discretionary-  as well as bodies partially or fully excluded, is larger than appears to be the case in many other jurisdictions. Since the 2014 Act, the question of which entities fall within the definition of “FOI body” or “public body” can cause difficulty.  For instance, the Minister for Public Expenditure and Reform has had such entities as the Property Arbitrator, the Office of the Secretary General to the President referred to him under section 6(7) of the Act for determination as to whether they are FOI bodies. You might be interested to discover that he determined that the Bar Council and the Law Society are not public bodies for FOI purposes!

The impact of FOI may be illustrated through a number of significant decisions made by the OIC which have contributed to better governance:

  • The OIC directed the release of the total expenses paid to each member of the Oireachtas.  The Houses of the Oireachtas Commission now release such expense details as a matter of course. In a more recent case, I directed the release of expenses paid to judges. I found that the public interest in ensuring accountability in the expenditure of public funds outweighed any right to privacy which judges might enjoy in relation to details of their expenses claims.
  •  Following decisions directing release of records on successful tenderers in procurement processes for supply of goods and services,   public tendering is now conducted on the assumption that the identity of the successful tenderer, as well as the results of the tender evaluation and some elements of its pricing structure and other criteria relevant to the ultimate cost to the taxpayer will be disclosed after the event.
  • After OIC decisions on access to records on civil service recruitment, it is now standard practice that candidates are informed of the selection criteria (including marking schemes and any short-listing criteria) and of their own individual marks.
  • The OIC directed the release in the public interest of nursing home and crèche inspection reports prepared by HIQA and the HSE.  Such reports are now published as a matter of course.
  • The OIC directed the release of the names of judges where representations had been made to the Minister for Justice by political representatives on their behalf as lawyers seeking judicial appointment.
  • In a 2017 case, the Department of Social Protection refused to release its correspondence with the Office of the Data Protection Commissioner relating to the Public Services Card on the ground that it related to an ongoing deliberative process and that release would be contrary to the public interest. It argued that the views expressed by the DPC would misinform the public about the PSC and erode public confidence in the PSC project and/or the Office of the DPC. 

The introduction of the PSC has not been without controversy and I took the view that release of the records would further the public interest in openness and transparency, and also enable public debate about the issues raised by the ODPC. I found that the Department had not adequately demonstrated that the release of the records at issue would be contrary to the public interest. I directed their release.

In selecting a few recent cases from the Courts to outline to you, my intention is to focus on some of the key questions that have led to the Courts engaging with the FOI Act on quite a regular basis.

In recent years, some of the most important developments in FOI have occurred in cases dealing with the personal information Generally speaking, access to a record must be refused if it would involve the disclosure of personal information relating to individuals other than the requester. Where a request would otherwise be refused under section 37(1), it may still be granted where the public interest that it be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. OIC’s  approach to the definition of personal information has changed since the decisions of the Supreme Court in what is commonly called the Rotunda case.

In the Rotunda case (The Governors and Guardians of the Hospital for the Relief of Poor Lying - In Women v. The Information Commissioner [2011] IESC 26) a woman sought access under FOI on behalf of her father to a record of her grandmother's age when she gave birth to him in 1922. Her father, who had been fostered, was trying to trace his origins. The Hospital refused access to entries in the Labour Ward Book and the Porter's Lodge Book.  The OIC directed the release of the records.

Following an appeal by the Hospital against the High Court’s upholding of the Commissioner’s decision, the Supreme Court held that the Commissioner had erred in interpreting the definition of personal information. It further found the protection afforded to information obtained in confidence  in the FOI Act stems from the circumstances in which the information is given and not from the nature of the information itself. The Court found that the age of the applicant's grandmother in 1922, when she gave birth to her father, was given to the Hospital in confidence.

Probably one of the most interesting aspects of the decision are the obiter comments of both Judge Fennelly  and Judge Macken on the public interest test.  Judge Fennelly  noted that the request was made by a private individual for a private purpose and that it was not made in the public interest.  He noted that whether people generally should be granted access to information on their origins (which the Commissioner had found as being a public interest factor in favour of the release of the records) was a matter of policy which it would have been possible to include in the legislation.  As it had not been so included, it was not open to the Commissioner to adopt a general policy in the public interest. Judge Macken stated that, in order override the application of any exemption provisions, any “public interest” would require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law.

It is fair to say that the decision of the Supreme Court has changed  the approach taken by the OIC in reviewing records which contain personal or confidential information and also the application of the public interest test.

 

The F.P. case

The impact of the Rotunda case involving personal information is evident in the more recent F.P. case (F.P. v The Information Commissioner [2014 No. 114 MCA]).  The High Court delivered its judgment in this case in December 2016.

The case arose from the applicant’s requests for access to records relating to himself and his former step-daughter. I concluded that the records did not fall to be released, notwithstanding allegations that malicious complaints of child sexual abuse had been made against the applicant. I found that, regardless of any evidence of malice, the records concerned deeply troubled family circumstances. Having regard to the judgment of the Supreme Court in the Rotunda case, the views of the individual who was an infant at the time of the allegations but aged 20 at the time of my decision, her mother’s views  and the fact that some records 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 was not sufficiently strong to outweigh the public interest in upholding the privacy rights of the third parties concerned. The applicant appealed this decision to the High Court.

The High Court was not satisfied that the issue of malice was central to the issue of access to records. 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 did not qualify as matters of public interest. The Court was satisfied that these interests were in reality matters of “private interest”. The Court also confirmed that the appropriate forum for pursuing a cause of action arising from false allegations is provided for by the courts where discovery and disclosure are available in civil and criminal proceedings.

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. The applicant has since appealed to the Court of Appeal.



There have also been some important recent cases which dealt with commercially sensitive/confidential information.


The McKillen case
The High Court delivered its judgment in the Mc Killen case in January 2016. (Patrick McKillen and the Information Commissioner [2015 No. 4 MCA]). The High Court upheld OIC’s finding  that parts of some withheld records in the Department of Finance concerning Mr McKillen  contained commercially sensitive information relating to third parties  and that 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 him with some of the records pursuant to that order. . My Office found that access to those records must be refused, as to do otherwise would constitute contempt of court.

One of the grounds argued by the appellant was that the public interest lay in exposing what he claimed was unfairness in the Department’s dealing with him. The Court found that any improper conduct, if there was such, was disclosed by the information already released. The Court  also found that it was 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.


The Enet case
In a  judgment in the Enet case in  April 2017 (The Minister for Communications, Energy and Natural Resources v the Information Commissioner [2015 No. 394 MCA]) the High Court considered my decision to direct the grant  of access to a  concession agreement concerning broadband services between the Department for Communications and Enet. I concluded that section 35(2) of the Act dis-applied the confidentiality provisions in circumstances where the record had been prepared by a public body. I accepted that the agreement contained commercially sensitive information, but concluded that, on balance, the public interest would be better served by releasing the agreement. In making this finding, I took into account that Enet was the successful bidder in a tender process for the use of a State-owned asset which generates revenue. One of the issues was my application of section 22(12)(b) of the FOI Act which places the burden of proof on the public body to justify its refusal of an FOI request.

It is noteworthy that it was the Minister and not Enet that took the appeal. The Court found that I had not erred in my application of the Act. It found that the public interest balancing exercise was one uniquely within my remit and that  my decision could not be said to be irrational or contrary to reason and common sense or erroneous. The Minister has since appealed the High Court's judgment to the Court of Appeal.


The Grange case
Only a couple of weeks ago the High Court delivered its judgment in the Grange case. (Michael Grange v the Information Commissioner [2016 No. 380 MCA]) arising from my Office’s finding that an FOI request made relating to an ongoing grievance with a Government Department was vexatious.

The Court upheld my decision. It found that an abuse of the FOI process to prosecute a personal grievance can legitimately be classified as vexatious. The Court found that when considering whether a request is  vexatious, the Commissioner is entitled to look at the motive of the requester and the wider context - he was not confined to considering only the FOI request.

The Court also found that taking into account, among other things, the discretion available to the Commissioner in connection with the review procedures he employs, the non-furnishing of third party submissions to the requester did not breach any constitutional right of the appellant, nor did it breach fair procedure.

 

Environmental Information

In the field of Environmental Information, the cases taken to the Superior Courts have generally involved the definitions of the terms “public authority” and, even more fundamentally,  “environmental Information “ . Indeed, much of my work in this area involves jurisdictional and threshold issues as opposed to considering whether the exceptions to release properly apply. For those interested in developments in this area, I would point them to the Supreme Court judgment in NAMA v the Commissioner for Environmental Information, [2015]IESC 51; to a recent decision of the Court of Appeal in Minch v the Commissioner for Environmental Information {2017] IECA 223 and to the High Court’s  decision in Redmond v the Commissioner for Environmental Information which has just been appealed to the Court of Appeal.


All of the decisions in the cases I have mentioned may be found on the website of my Office www.oic.ie. The equivalent for the Environmental decision is www.ocei.ie. My Office has also published Guidance Notes in relation to various provisions of the FOI Act. These Guidance Notes give a short commentary on my interpretation and application of the Act and include summaries of relevant decisions. Guidance Notes on personal, confidential and commercially sensitive information among other provisions are available and I am glad to say that feedback from users of these has been extremely positive.

I see major challenges ahead across all of the areas of access to information. In particular, the various regimes will have to be equipped to deal with “Big Data” as our dependence on paper records diminishes and there are areas in which the law on right to access to information versus the protection of personal data are likely to come into conflict.


Thank you.