Section 16 Manual

Appendix 5: Liaison arrangements with public bodies for the purposes of the Freedom of Information Acts, 1997 and 2003

Introduction

The purpose of this document is to set out, in a general way, the type of liaison arrangements which the Information Commissioner's Office will operate in its dealings with public bodies which are subject to the Freedom of Information Acts, 1997 and 2003. The Office may agree individual arrangements with individual bodies but these will always be within the context of the broad arrangements described below.

Role of the Information Commissioner

The Freedom of Information Acts, 1997 and 2003 (the FOI Acts) give the Information Commissioner (the Commissioner) the power to review decisions taken by public bodies under the Acts. The Commissioner is also obliged to keep the operation of the Act under review, both generally and in relation to individual public bodies. In this context, the Commissioner may investigate the practices and procedures of any particular public body. Furthermore, the Commissioner has a role in encouraging public bodies towards greater openness and towards the voluntary release of information outside the strict requirements of the FOI Acts. Where the Commissioner reviews a decision of a public body, taken under the Acts, she may affirm, vary or annul the original decision. The decision of the Commissioner is binding on all parties. Where appropriate, it will specify the period within which the Commissioner's decision should be implemented. The liaison officer will be expected to ensure that the decision is implemented within the period specified.

As time limits are a factor in all FOI decisions, including those of the Commissioner, it is very important that all contacts between the Commissioner and bodies subject to the FOI Acts, be conducted efficiently and speedily. For this reason it is essential that there be clear liaison arrangements set out to ensure efficient communication between the Commissioner and bodies subject to the FOI Acts.

Liaison Arrangements

The central feature of the liaison arrangement is the appointment, by each relevant public body, of a staff member to act as liaison officer in all dealings with the Commissioner's Office. The following observations apply to the appointment and role of the liaison officer:

Functions of Liaison Officer

The liaison officer's main functions in relation to the Office of the Information Commissioner are:

to act as the initial point of contact in all transactions / reviews / investigations / mediations / publication of information between the Commissioner's Office and the body;
to ensure that any written or oral enquiries from the Commissioner's Office are immediately directed to the appropriate person within the body for attention;
to ensure that all time limits applying to requests for information, from the Commissioner's Office, are met;
to ensure that all relevant files and documents are readily available for inspection when requested by the Commissioner's Office;
to ensure that the Commissioner's staff are provided with suitable facilities on their visits to the body;
to ensure that any actions required to implement decisions of the Commissioner are taken;
to ensure that, where relevant, the reports required under section 20(1A)(d) (certificates issued by Secretary General of Departments of State relating to the deliberative process), section 25(11), (specifying the certificates issued by a Minister), section 32(4) (in relation to the secrecy provisions in other enactments) or, where appropriate section 19(4) (relating to the Secretary General to the Government) are furnished to the Commissioner within the appropriate time scale.

Nomination of Liaison Officer

In nominating an officer for liaison duties regard should be had to the above functions, and also to the following aspects:-

the liaison officer appointed by the body should be at an appropriate senior level in order to meet the need for ready access to the head of the body;
the seniority of the nominee should be such as will facilitate the processing of requests for information quickly and effectively within the body. In this regard the FOI Unit should be sufficiently resourced
the seniority of the nominee should be such as will facilitate any endeavours by the Commissioner to effect a settlement between the parties, and
the requirement to be easily accessible to the staff of the Commissioner.

Reviews by the Commissioner

As provided for at section 37(6) of the Act, the Commissioner sets such procedures for the conduct of reviews (and of investigations) as she considers appropriate and these may be as informal as is consistent with the due performance of the functions of the Commissioner. The Commissioner will always seek to have regard to the needs of the particular body in determining procedures in any particular case.

When an application for a review has been received, and the Commissioner is satisfied that the case is one which, on the face of it, should be considered, the liaison officer of the body will be contacted. The liaison officer should inform the officials who took the initial and review decisions that an application for a review has been received.

The liaison officer should ensure that no actions are taken which would prejudice the review, e.g. release of information where a third party seeks a review of the decision to release that information, destruction or removal of any relevant records.

If the liaison officer indicates that the request has not been through the process of internal review, then written confirmation of this will be required along with a copy of the original request and the public body's initial decision.

It is the Commissioner's intention that, to the greatest extent possible, she will decide these review cases within the four month time-frame laid down by the Oireachtas. Achieving this objective will require a high level of co-operation from public bodies. There are three specific areas in which the speedy co-operation of public bodies is vital, i.e. (1) provision of documentation on the actual FOI request, (2) provision of the records the subject of the request and (3) provision of proper statements of reasons for decisions.

Documentation on requests

Before we can decide whether a review application may be accepted, it is necessary to see the four basic documents relating to the request, i.e. :

the letter of request,
the initial decision,
the application for internal review and
the internal review decision.

In cases which appear to involve section 29, the following must be provided :

the original FOI request
the notification letters to third parties
the replies to the notification letters
the letter(s) of decision issued to third parties
the letter of decision issued to the requester.

These documents should be faxed to this Office within a day or two of the request from this Office. Where the documents are not provided within seven days of our request, we will issue one reminder by telephone (or by fax). Where the documents have not been provided within seven days of the reminder, the Commissioner will issue a notification to the head of the public body under section 37 of the FOI Act, to the head of the public body, requiring the production of the documents.

Provision of records

In the majority of cases it will be necessary for this Office to inspect the records the subject of the FOI request. In practical terms, this requires the provision to this Office of the relevant records, whether in the original or by way of copies (depending on the case). In requesting records, this Office will allow a period of two weeks for actual provision.

Where this deadline is not met, we will issue one reminder, by telephone or by fax, and allow a further seven days. Where the records are not provided within this extended period, the Commissioner will issue a notification under section 37 of the FOI Act, to the head of the public body, requiring the provision of the records. The Commissioner is hopeful that it will not be necessary to issue notifications under section 37 except in a very small number of instances. However, where it is necessary to issue section 37 notifications the Commissioner publishes details of their issue in her Annual Report.

In providing these records, it is very important that they be properly scheduled and that it is clear which records or parts of records have been withheld and which released (e.g. by the use of a highlighter marker). In the case of those records withheld, the schedule provided should specify the particular provision of the FOI Act relied upon for each withheld record.

Statements of reasons for decisions

The FOI Act requires, where records are being refused, that there be a clear statement given of the reasons for the refusal. Section 35 of the FOI Act provides that, where the Commissioner considers a statement of reasons is inadequate, she "shall direct the head concerned to furnish ... a statement in writing ... containing any further information in relation to those matters that is in the power or control of the head". Such a statement must be provided within three weeks of its being sought.

The fact that many FOI decisions are given without an adequate statement of the reasons for the decision has a twofold effect. First, it makes it difficult for the requester to know whether he/she should seek a review and, second, it makes it difficult for this Office to understand the reasoning underlying the public body's decision (which the Commissioner is reviewing). Where it appears that an inadequate statement of reasons has been given, the Commissioner will seek a fuller statement of those reasons by way of a requirement under section 35. This additional information is to be provided to both the Commissioner and the requester. The Commissioner is hopeful that it will not be necessary to issue notifications under section 35 except in a very small number of instances, if at all. However, where it is necessary to issue section 35 notifications, the Commissioner publishes details of their issue in her Annual Report.

Submissions

Related to the issue of giving full reasons for a decision, is the issue of a public body providing a submission to the Commissioner in relation to its decision. We envisage that public bodies will be invited to make such a submission, should it wish to do so, at an early stage. This will normally be at the stage when the records, the subject of the request, are sought. A period of three weeks will normally be allowed for the making of such a submission. Where a submission has not been received within this time-frame, the Commissioner will feel free to proceed to a decision without further reference to the public body. In this context it is worth bearing in mind that where a request for records (made under section 7 of the FOI Act) has been refused, there is a presumption that the refusal is not justified unless the public body shows "to the satisfaction of the Commissioner" that it is justified.

Preliminary views

A further related issue is that of public bodies responding to preliminary views, as put forward by this Office, on a particular case. This generally happens where the preliminary view of the Commissioner's staff is that the decision of the public body should not be affirmed and the body is being afforded an opportunity to comment. Such letters outlining preliminary views will be required only in a minority of cases. Given the time-frame within which the Commissioner must decide reviews, it is vital that public bodies, where they wish to respond to such preliminary views, do so within the time limits specified, which will usually be two weeks. Where a public body fails to respond within the time-frame specified, the Commissioner will feel free to proceed to a decision without further reference to the public body.

The Commissioner recognises that the arrangements outlined above may create some difficulties for some public bodies. However, it is clear the Oireachtas intended that the Commissioner would decide review applications speedily - within four months - and these measures are essential to meeting the Oireachtas' target. The Commissioner accepts that, in a small number of cases, and for specific reasons, public bodies may not be able to respond within the time-frame outlined above. For this small number of cases the Commissioner is open, within reason, to extending the time-frame for response.

The Commissioner is anxious that the conduct of reviews will proceed on the basis of co-operation and mutual understanding in the interests of ensuring that the objectives of the FOI Act are met by all concerned. She is hopeful that it will not be necessary to issue notifications under section 37 except in a very small number of instances, if at all. However, where it is necessary to issue section 37 notifications, the Commissioner publishes details of their issue in her Annual Report.

Conclusion of review

Following the review, the Commissioner may affirm or vary the decision of the public body, or annul the decision and, possibly, make another decision.

A decision of the Commissioner, arising from a review application, does not have effect until the expiry of the time limits which apply for the making of a High Court appeal on a point of law viz. eight weeks. Where such an appeal is made, the Commissioner's decision does not have effect unless and until the appeal has been decided in the Commissioner's favour or withdrawn. In this regard however the Acts provide that an appeal of a High Court decision may be made to the Supreme Court.

Given the expense and resources involved in participating in High Court and Supreme Court cases, it is the policy of the Office to seek to recover costs in all cases where the Courts have found in the Commissioner's favour.

Section 29(5)

Where cases arise under section 29(5) of the Act and the head is unable to comply with the consultation requirements of subsection (2), the consent of the Commissioner is required before the head may proceed with a decision. The body's liaison officer should write to the Commissioner seeking her consent to the setting aside of the consultation requirement. In order to facilitate the Commissioner's decision, details of all attempts to contact the individual, otherwise required to be consulted, should be given.

Where possible, the Commissioner will make a decision (in relation to cases referred to in the preceding paragraph) within two weeks and inform the liaison officer if consent is being granted. Where the Commissioner does not consent, the liaison officer will be advised of the steps to be taken to comply with section 29(5) and should ensure that these steps are taken within the period specified in the Commissioner's reply. If further information is required in these cases, the Commissioner's Office will contact the liaison officer in the first instance.

Production of documents, witnesses etc.,

The Commissioner may, for the purposes of a review or investigation, require that any information or record relevant to her review or investigation should be furnished to her. Where appropriate, the Commissioner may require any person who, in her opinion is in possession of any such information or record to attend before her for the purpose of furnishing it to her. Bodies must comply with the Commissioner's requirements in this respect. Subject to the Commissioner's agreement, and at the request of the official concerned, the liaison officer may attend any interview between the Commissioner (or her staff) and a relevant official of the public body.

Liaison Officer to be informed by Commissioner's Office

As the liaison officer is the primary channel of communication between the Commissioner's Office and the public body, the Commissioner's Office will seek to ensure that the liaison officer is kept fully informed by, for example, routing queries through the liaison officer, by sending the liaison officer copies of all significant correspondence, and by informal contacts. The level of such contact will vary from body to body depending on the nature of the case and the structure of the public body.

The liaison officer will be advised when a review has been completed and will be notified of the decision. Depending on the nature of the decision, the liaison officer will be expected to communicate this decision within the body and to ensure that any actions required to implement it are undertaken. The liaison officer will also be informed if a review application is withdrawn.

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