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Reviewing the operation of the Freedom of Information Acts

The FOI Act 2014 states that the Information Commissioner shall keep the operation of the Freedom of Information Act under review to ensure that public bodies comply with the provisions of the legislation. He does this in a variety of ways.

Annual Reports

In his annual reports the Commissioner assesses the levels of appeals to his Office and the FOI bodies involved. This serves as one indicator as to how well FOI bodies are operating the FOI Act. In that report, he also compiles statistics which show the usage by requesters across all of the FOI bodies covered by the legislation. He also provides information on the outcomes - i.e. whether information was granted, part-granted or refused and comments on any emerging trends.

Special Investigations

The FOI Act also provides that the Commissioner may, at any time, carry out an investigation into how FOI bodies generally are complying with the provisions of the FOI Act; or with a particular provision of the FOI Act (for example, section 10, which provides a right to a statement of reasons in certain circumstances); or into their FOI practices and procedures. The Commissioner may also investigate a particular FOI body either in respect of its general compliance; its compliance in a particular area; or its FOI practices and procedures. These reports may be published.

Section 36 of the 1997 Act provided that within 3 years of the commencement of the Act on 21 April 1998, the Commissioner would carry out an investigation into public bodies generally. This report "The Freedom of Information Act - Compliance by Public Bodies" was published by the previous Commissioner Mr. Kevin Murphy in July 2001.

In June 2004, the then Information Commissioner, Ms Emily O'Reilly, carried out an investigation entitled "A Review of the Operation of the Freedom of Information (Amendment) Act 2003: An Investigation into the Effects of the Amendment Act and the Introduction of Fees on Access Requests by Members of the Public".

Commentaries

Section 39 of the FOI Act 1997 provided for the Commissioner to prepare and publish commentaries on the practical operation of the Act, including commentaries based on his own experience as holder of the Office of Information Commissioner. In March 2003, a previous Commissioner (Mr. Kevin Murphy) published a commentary on his examination of the workings of those sections of the FOI Act which it was proposed to amend in the Freedom of Information (Amendment) Bill 2003. He did this by focusing on the more significant decisions which he made since April 1998 in applying and operating those sections.

Investigative Powers

The FOI Act 2014 provides the Information Commissioner with significant powers to allow him to carry out his function of keeping the FOI Act under review. He may require any person who he considers has information relevant to a case or investigation to provide it to him. He may also require the person to attend before him to present the information. He can enter any premises occupied by a public body and require any person found on the premises to provide him with records (documents) which he may copy and retain for a reasonable period. Anyone who hinders the Commissioner in the performance of his review or investigative functions is guilty of an offence and may have a fine imposed, or be imprisoned for a term of not more than 6 months (see section 45 of the FOI Act 2014).