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Annual Report 2008 - Text
The Role of Settlements and Withdrawals in 2008
In Chapter 1 of this Report, the number of applications for review closed by way of settlement is recorded as 54 or 21% of case closures for 2008. I regard this as very significant. The FOI Act provides that, at any stage during a review, I may try to effect a settlement between the parties concerned. My Office works closely with public bodies and with requesters where an examination of the case shows that there is some scope for compromise, clarification or explanation that may result in a satisfactory conclusion to a review without the need for a formal, binding decision. Even where no additional records fall to be released, sometimes requesters are satisfied to withdraw their applications where they feel that an independent and thorough review of their rights under the FOI Act in relation to access to records has been carried out. In other cases, public bodies, having considered my officials' comments and views agree with recommendations that a particular exemption no longer applies. This enables some or all of the records to be released without waiting for a formal direction.
It is fair to say that a high proportion of the withdrawn cases (33% in 2008) are also effectively settlements where the requester accepts that my Office has taken the case as far as it can or perhaps has cleared up a misunderstanding as to the entitlement to records. Obviously, the statistics do not capture the many cases where requesters helpfully agree to narrow the focus of a review by allowing some records to be excluded so that the eventual formal decision may be confined to the core issues. We have found that the outcome of settlement discussions can depend upon the level of trust between the parties. Settlements are not necessarily a "quick fix" solution and sometimes involve a protracted mediation- type process. However, as early as possible in the review process, we try to identify cases with potential for a satisfactory outcome to be agreed between the parties. The following selection of cases from 2008 illustrate the type of scenarios which can lead to a settlement or a withdrawal:
- Several reviews involved requests made to hospitals for extensive records about microbiology, infection control, hygiene and related issues possibly connected to MRSA. Following an investigation and with the co-operation of the hospitals involved, my Office negotiated settlements whereby many of the thousands of records potentially falling within the scope of the request were released. Some records were exempt from release under the FOI Act and others were not held by the hospitals. In particular, it was accepted that certain additional material was probably held but that the hospitals would have been justified in withholding it where the volume and nature of the records and the compiling of the data would require retrieval and examination of such a number of records as to cause substantial and unreasonable interference with or disruption to the work of, in these cases, the Infection Control and Microbiology departments of the hospitals concerned (section 10(1)(c) of the FOI Act refers).
- A requester sought copies of records about a proposed marina development in Co. Donegal from the Department of Communications, Marine and Natural Resources. The Department accepted my Office's view that all but one of the records were not exempt from release as it had claimed; it released those records. The requester accepted that the record withheld qualified for legal professional privilege and was exempt under the FOI Act (section 22(1)(a) refers).
- A requester applied to my Office for a review of the HSE's refusal of her request for access to statements made by staff members in response to complaints she had made about them in the context of a workplace dispute. Following examination of the content of the statements and of the background to the dispute, my Office took the view that, subject to deletion of the personal information of other individuals in the records, the requester was entitled under the FOI Act to have access to the statements about her. The HSE re-considered its position and agreed to release the records. In the course of contacts with HSE decision makers, my Office discovered that a further record within the scope of the request was held; this record and the original withheld material (except for the personal information exempt under section 28) were released to the requester by the HSE. The requester accepted my Office's advice that the HSE was justified in withholding personal information of other individuals including staff members' home addresses and mobile phone numbers.
- A company believed it would be affected by a proposed release of certain records by the National Roads Authority (NRA). It applied to my Office for a review of the NRA's decision to release records relating to a proposed crossing of the River Shannon at Limerick. In a preliminary view letter, my Investigator set out the position in considerable detail, emphasising the burden of proof in such cases, which is on the party objecting to release of records. While the Investigator accepted that the records could arguably fall within one of the exemptions relating to commercially sensitive information, she explained to the applicant that release in the public interest would be her likely recommendation in the case. The applicant withdrew the application and the NRA released the records in question to the requester.
- A requester received copies of records from the HSE relating to various contacts he had had with the Community Welfare Service about supplementary welfare and other issues. He applied to my Office for a review on the basis that, in his opinion, the records released were incomplete and further material relating to his contacts with HSE staff should exist. The HSE's position was that it had given the requester all of the records it held up to the time that he made his FOI request. My Investigator examined the records and discussed with the HSE the circumstances of the case, including its practices as regards creating and searching for further notes or other records. It emerged that, in all likelihood, the type of records that the requester had expected would be held had not been created at all. In fact, it was not normal practice within that area of the HSE to create records of that kind in any case. When the position was explained to the requester by my Office, he accepted that the FOI Act entitled him to have access to records which actually existed and could be found after reasonable searches as opposed to those which he believed ought to exist (section 10(1)(a) of the FOI Act refers). The case was settled and closed on the basis that the requester found my Office's intervention and its explanation of the relevant procedures to have been useful even though it did not result in the release of additional records.
