Date Released: 04.05.2011
Information Commissioner, Emily O'Reilly, launches her Annual Report for 2010
- Welcomes Government commitment to reform the Freedom of Information Act (FOI) and expand her remit to more public bodies
- Notes the steady upward trend in the number of FOI requests received by public bodies has continued through 2010. In total, 15,249 requests were received which represents a 7% increase over 2009 and 20% over the 2008 figure.
- Strongly criticises the practice of removing public bodies that have been subject to FOI from the scope of the FOI Acts without been told or consulted
The Information Commissioner, today (Wed 4 May 2011) published her Annual Report for 2010, the thirteenth Report since the founding of the Office in 1998. At the launch of her Report the Information Commissioner strongly welcomed the commitment of the Government in its new Programme to "restore the Freedom of Information Act" and to "extend its remit to other public bodies including the administrative side of An Garda Síochána, subject to security exceptions".
The Information Commissioner has over recent years expressed clear views on what is required in order to optimise the benefits of FOI in terms of transparency, accountability and good government more generally. Commenting she said
“I am pleased to say that my views appear to be broadly consistent with the reform proposals of the Government insofar as I have been calling for the FOI Act to include all public bodies and for the restrictions on the operation of the Act introduced in 2003 to be removed and the punitive fees regime to be overhauled”.
As regards bringing additional public bodies within the FOI Act, the Commissioner noted the Government's intention to amend the Act so as to include within its scope "all statutory bodies, and all bodies significantly funded from the public purse". She urged that this be expedited by way of Ministerial Regulation and that the other more complex reforms requiring an amending Act, should not delay the expansion of her remit to the new bodies.
While it is important that all public bodies be covered by the FOI Act, the Commissioner feels that if additional bodies are to be included on a phased basis then priority should be given to certain public bodies. These priority bodies, in the Commissioner's view, should include An Garda Síochána, the Office of the Refugee Applications Commissioner, the Office of the Refugee Appeals Tribunal, the Judicial Appointments Advisory Board, the Central Bank and Financial Services Authority of Ireland, NTMA (including the State Claims Agency), NAMA, the Vocational Education Committees, the State Examinations Commission, the Residential Institutions Redress Board and the Central Applications Office.
“Exclusion of significant financial bodies such as the Central Bank, Nama and the NTMA denies the general public of its right as taxpayers, who shoulder the burden of the country´s debt, to try to get to the truth as to what happened” she stated.
She noted that the changes, which the Government is committed to and which will be brought about by including key areas of public life such as policing, immigration and banking regulation and key institutions such as the Central Bank , NTMA and NAMA within her remit, is likely to result in an increased workload for the Office. While there is likely to be a need for some additional investigative staff she suggested that such staff may be available from a re-deployment pool across the public service, so minimising the cost to the Exchequer.
The Information Commissioner pointedly expressed her disagreement with the recommendation in the Report of the Independent Review Panel (also known as the “Wright Report”) entitled “Strengthening the Capacity of the Department of Finance”, which states:
“3.3.3 (10) The Panel strongly supports the public release of substantially more economic analysis by the Department. However, policy advice to the Minister for Finance in the preparation of the Government’s Budget should not be subject to release under Freedom of Information for at least five years”.
She said that Section 31 of the FOI Act protects the financial and economic interests of the State. Section 31 is subject to a public interest balancing test which means that an exemption will continue to apply unless the FOI decision maker finds that, on balance, the public interest is better served by releasing the record than by withholding it.
She added that Section 20 of the FOI Act protects the deliberative process of a public body. This means that, in the budget context, records can be withheld until such time as the deliberative process is over and the budget has been decided. This exemption was strengthened in 2003 when a provision was added enabling a Secretary General to certify that a record “contains matter relating to the deliberative processes of a Department of State”. Where this kind of certificate is issued, the record must be refused and there is no possibility of release in the public interest.
As regards her role as Commissioner for Environmental information, Ms O’Reilly also proposed that it would be more efficient and user friendly if this role and her FOI role and the two separate access regimes for FOI and AIE were merged (as has happened elsewhere).
The Commissioner announced that the overall number of FOI requests to public bodies in 2010, totalling 15,249, had increased significantly, up 7% on the 2009 figure of 14,290 and an increase of 42% over 2007 a low of10,704.
There has been an increase of 1,303 or 13% on the 2009 figure in requests for personal information while the number of requests for non-personal information has fallen slightly. Unsurprisingly, the number of requests received by the Department of Social Protection has increased dramatically (a 55% increase over 2009 and 77% increase over 2008).
Once again this year, there has been a significant increase in the number of requests received by the Department of Finance, up 24% from the 2009 figure (Chapter 1).
The number of decisions made by public bodies which were appealed to the Information Commissioner during 2010, totalled 301, which represents a decrease of 23 cases, or 7% on 2009. Of these, 220 cases were accepted for review (page 20}.
The Commissioner highlighted the role of the FOI Act in bringing information into the public domain that would otherwise remain unknown. Her impression is that more thoughtful usage of the FOI Act has resulted in the Act being used as a tool to help ensure proper accountability across the public sector.
The usage of FOI by journalists (14% of all FOI requests in 2010 remaining high as in 2009) suggests that it is a valuable tool in helping to promote transparency and accountability within the public service. An example of this is the extensive media reports throughout the year of expenses paid by public bodies, particularly for Oireachtas members and for travel by officials or board members of State bodies. She welcomed the more widespread practice for the release of expenses records by public bodies at the first stage of request without requesters having to come to her Office for review.
The Commissioner again expressed her concerns (Chapter 2) regarding public bodies or functions of public bodies being removed from the scope of the FOI Act without her or her Office being told or consulted. Public bodies or the functions of public bodies that had been under FOI and were removed from the scope of the FOI Act, include the enforcement functions of the Health and Safety Authority, the road safety functions now carried out by the Road Safety Authority and the functions of the Land Registry and the Registry of Deeds now performed by the Property Registration Authority. Commenting she said “such removals and the way they were done without any notice or consultation with me or my Office, I consider to be totally unacceptable”.
Speaking about the role of settlements and withdrawals in achieving a satisfactory outcome for FOI requesters, the Commissioner gave examples of solutions which emerged through mediation/negotiation facilitated by her Office without the necessity to issue a formal decision on reviews (chapter 1).
Commissioner for Environmental Information
Part II of the Commissioner's Annual Report for 2010 relates to her separate role as Commissioner for Environmental Information. It focuses on decisions made by her Office on appeals under the Access to Information on the Environment (AIE) Regulations 2007, which is a separate statutory code from that which operates under FOI.
Chapter 1 outlines the AIE regime and the activities of the Office of the Commissioner for Environmental Information during 2010, including appeals received and decisions issued. The Commissioner points to the relatively low level of activity in this area and the lack of awareness generally about the right of access to environmental information under the AIE Regulation and Directive EC/2003/4.
In Chapter 2, the Commissioner reports on her decisions issued in 2009.
- As already outlined, 15,249 requests were made to public bodies under the FOI Act in 2010. This is an increase of 7% on the 2009 figure (14,290) and 20% on the 2008 figure (12,672).
- In 2010, 79% of requests dealt with by all public bodies were either granted in full (60%) or part-granted (19%).
- The figures for 2010 indicate that the pattern from previous years of lower release rates for the Civil Service (41%) is continuing when compared with release rates in the HSE (71%) and local authorities (57%).There are questions to answer here.
- The majority of FOI requests are made by ordinary members of the public or representative organisations (75%), while journalists (14%), businesses (6%), staff of public bodies (4%) and members of the Oireachtas (1%) make up the other categories of requester. I should say that the percentages are largely unchanged from last year.
- There were 10,688 requests for personal information in 2010; this represents an increase of 14% on 2009. There was a slight decrease in the number of requests for non-personal information.
- The number of requests to the Department of Social Protection has notably risen by 54% from last year and to the Department of Finance by 24% from last year (or a 426% increase from the 2007 figure).
- During the year, I received 301 applications for review and reviewed 228 decisions of public bodies compared with 235 for 2009.
- The proportion of cases in which applicants sought a review by my Office and were accepted for review, as a percentage of the total number of requests received by public bodies, dropped to 1.47% from 1.7% in 2009.