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The Effect of Up-front Fees on Usage of the Act

When fees were introduced in July 2003 it seemed to me that their scale would have a significant deterrent effect on users of the Act, particularly in relation to requests for non-personal information.

To establish current trends and usage of the Act I asked the Secretaries General of all Government Departments and the heads of 22 other public bodies (37 in all) (see Appendix 1) to provide me with selected data for each of the months from January, 2002 to March, 2004 inclusive. I chose the data and time-frame in order to analyse how the Act had been operated before and after it was amended in April 2003 and after fees were introduced in July 2003. The information supplied included monthly details of:

ò total requests submitted ò type of request (e.g. personal, non-personal) ò type of requester (e.g. journalist, Oireachtas member, business etc.) ò request outcomes (e.g. granted, part-granted, refused etc.) ò number of applications for internal review ò the number of waivers granted for application/appeal fees ò the number of exemption certificates issued.

This Chapter also includes information compiled within my own Office concerning total numbers of applications, fees charged, applications withdrawn etc. A description of the methodology together with the collated data are available on my Office website at www.oic.ie

Analysis and Findings

Public Bodies

Total Requests

While I expected to find a decline in usage of the Act I did not believe that it would be as immediate or as dramatic in scale as proved to be the case: between the first quarter of 2003 and the first quarter of 2004 the total number of requests fell by over 50%. In addition, I found that requests for non-personal information had fallen by 75% over the same period while requests for a mixture of personal and non-personal had fallen by 20%.

Even allowing for a surge in requester activity in the first quarter of 2003, I have found that the amendment of the Act and, perhaps more crucially, the introduction of fees, have had an impact on the operation of the Act far beyond what I believe could have been envisaged either by the authors of the High Level Group Report, the Government or members of the Oireachtas when passing the amendment Bill. The collated data relevant to this Chapter are set out in Appendix III.

Type of Request

Between 2002 and 2003 the total number of requests to the 37 public bodies surveyed rose by 3%. On the face of it, this would appear to follow the established trend (albeit at a much reduced level) of year-on-year increases in the number of FOI requests submitted to public bodies. Closer inspection, however, reveals that much of the increased activity took place in the first quarter of 2003 which witnessed a surge in requests for

1) personal information where requesters or their agents sought records concerning time

spent in industrial schools or in educational or healthcare institutions, submissions on

which were sought by the Residential Institutional Redress Board around that time, and

for

2) non-personal information, much of which, ironically, was prompted by the Report of

the High Level Group and the Government's proposed amendments of the legislation.

When these peaks are discounted, the level of requests for personal information in 2003/2004 appears to be running at 2002 levels while requests for non-personal information fell by two-thirds between the last quarter of 2002 and the last quarter of 2003. In this regard, so great has the reduction been that the total of non-personal requests for the first quarter of 2004 is over 50% less than the lowest quarterly level recorded in the 18 months prior to the introduction of fees.

This decline is even more pronounced within the Civil Service. Between January-March 2003 and the same period in 2004 the number of non-personal requests fell by 75% while between the last quarter of 2002 and the last quarter of 2003 it fell by 70%. Although there is some evidence that this decline has stabilised, total non-personal requests are running at 40% of the levels experienced in 2002.

Requester Type

In analysing this data I have looked at the categories used across all public bodies for statistical purposes: journalist, business, members of the Oireachtas, staff and others.

Journalist

In 2003, among the 37 public bodies surveyed, usage of the Act by members of the media rose by 9% over 2002. The surge in activity in the first quarter of 2003, however, accounted for almost 46% of all requests submitted by journalists in 2003. But between the first quarter of 2003 and the first quarter of 2004 the number of requests from journalists fell by 83% and still continues to decline, falling by a further 31% between the last quarter of 2003 and the first quarter of 2004.

The Civil Service figures are even more alarming: down by 84% between the first quarter of 2003 and the first quarter of 2004 and by a further 46% between the last quarter of 2003 and the first quarter of 2004. Put starkly, this means that journalists submitted only 83 requests to Civil Service Departments over the first three months of 2004 i.e. 28 requests per month or 2 requests per month to each Department. This compares with 92 requests a month during 2002.

I looked at those Departments responsible for guiding much of the policy and spending decisions both in terms of the Government and commercial activity within the State.

I found that the Department of Finance had seen a decline of 90% in journalist requests between the first quarter of 2003 and the first quarter of 2004 and a fall of almost 60% between the last quarter of 2003 and the first quarter of 2004. The net. effect of this is that between January and March 2004, the Department of Finance was subject to just three requests per month from journalists compared to a range of between 14 to 18 requests a month in the latter half of 2002.

The Department of the Taoiseach and the Department of Enterprise, Trade and Employment witnessed a similar decline over the period and are currently subject to just one request each per month from journalists.

Business

Business requests to all public bodies surveyed declined by 28% between 2002 and 2003 and fell by 53% between the first quarter of 2003 and the first quarter of 2004.

The Department of Enterprise, Trade and Employment, the body charged with the implementation and development of Government policies in the areas of enterprise, employment promotion, trade development, the regulation of businesses and the protection of workers, saw the number of business requests fall by 61% between 2002 and 2003. This translates as a decline from an average of 11 per quarter in 2002 to 4 per quarter in 2003. So significant has been this decline that I do not believe that it can be attributed in full to the activities of the Department's FOI Liaison Unit which tries to handle as many requests for information as possible outside of the Act. There is some sign of a pick-up in activity in 2004 but it is too early to be definitive in this regard.

The Department of Finance witnessed a fall of 83% in business requests between the last quarter of 2002 and the last quarter of 2003 and an overall year-on-year decline of 43%. The number of requests received from this category of requester by the Department of the Taoiseach is insignificant.

Members of the Oireachtas

Among the public bodies surveyed, the total number of requests submitted by members of the Oireachtas in 2003 was some 171% higher in 2003 than in 2002. Again, much of this increase occurred in the six months between January and June 2003. By contrast, the 2003 final quarter figure was 40% lower than the corresponding total in 2002.

Having said that, however, the impact on requests by members of the Oireachtas overall does not appear to have been of the same magnitude as that experienced in other categories. While a decline of 74% occurred between the first quarter of 2003 and 2004 (-79% in the Civil Service), the latest returns for the first quarter of 2004 show requests running at much the same level as that experienced in 2002. It is too early to say if this recovery is permanent or if it is influenced by seasonal or other factors.

Staff

The type of requests submitted under this category tend primarily to be personal requests relating to the personnel records of staff themselves. As such, the amendments to the Act and the introduction of fees did not impact on this category of requester. While there is a small decline in requests between 2002 and 2003 this may be accounted for by increased release outside of FOI of records relating to those requests. In any event, the quarterly figure for end-2003 and start-2004 is only marginally below the quarterly returns for 2002.

Others

This category encompasses requests made by those individuals and groups not covered by the other categories. While the majority of requests in this category relate to personal information many of the requests relate to decisions of public bodies which affect individuals or groups of individuals directly and indirectly. These requests can range from an individual seeking information on waste disposal proposals on adjacent land or requests from local action groups or support groups seeking information on issues that affect their local communities.

The number of "Others" requests fell by 44% between the first quarter of 2003 and the first quarter of 2004. This decline is ongoing as evidenced by a further fall of 5% (-2% in the Civil Service) between the last quarter of 2003 and the first quarter of 2004. The total number of requests for the second half of 2003 was approximately 20% less than for the same period in 2002. This is consistent with the 50% decline in non-personal requests noted earlier. I think it reasonable to assume that this decline is due primarily to a drop in non-personal requests.

In real terms, these figures indicate a fall of over 1,000 in requests between the first quarter of 2003 and the first quarter of 2004. Even if the first quarter of 2003 is discounted as unrepresentative, the difference between the last quarter of 2002 and the first quarter of 2004 means that if the current pattern continues nearly 1,700 fewer such requests will be submitted this year.

Request Outcomes

In analysing outcomes I looked at what happened to a request when dealt with by a public body i.e. whether it was granted in full, part-granted, refused, dealt with outside of FOI, withdrawn or transferred to another public body.

The pattern of outcomes changed over the course of 2003. A greater percentage of requests was granted in full, the percentage of requests part-granted increased slightly while the number of requests being refused declined. This was to be expected as requests involving non-personal information tend to be refused more often than requests involving personal information. As the percentage of non-personal requests declines one would expect a commensurate rise in the percentage of decisions granting full access.

However, among the bodies surveyed, an analysis of how the Civil Service and the wider public service performed in 2003 is illuminating. Although the Civil Service had a higher percentage of personal requests than the public service bodies (probably skewed by requests for information related to institutional care), the Civil Service granted full access in only 35% of all cases -personal and non-personal -(up from 28% in 2002) as opposed to 51% (no change on 2002) in the wider public service. I accept that different types of records can be at issue (e.g. Government records, departmental deliberative process etc.) which require different considerations to be taken into account. I also accept that not all requests relating to institutional care have yet been completed (see my Annual Report 2003). Nonetheless, while requests to the Civil Service which were granted in full did increase to 43% by the last quarter of 2003 the data does prompt the conclusion that the Civil Service applies the Act more rigorously than other public bodies.

One other item of note was the decline in requests being dealt with outside of FOI. In terms of Outcomes, it fell from 14% to 9% between the first quarter of 2003 and the first quarter of 2004. This decline seems to have begun in the second quarter of 2003 and has continued downwards ever since. This pattern is not quite as pronounced in the Civil Service as compared with other public service bodies which dealt with only 7% of cases outside of FOI in the first quarter of 2004.

Internal Review Applications

As indicated earlier, a charge of ⁄75 was introduced in July 2003 for non-personal internal review applications.

During 2002, the quarterly average of decisions which were appealed to internal review stage for all public bodies was 13.5% (15% for the second half of 2002). In the first quarter of 2004, the percentage of cases appealed to internal review stage was halved to 7%. Within the Civil Service the decline was more pronounced; falling from a 2002 average of almost 15% to 7% by the first quarter of 2004.

Exemption Certificates

Following the amendment of the Act, the possibility exists for certain public bodies to issue certificates under sections 19 and 20 of the Act in addition to section 25 as heretofore. Generally speaking, the issuing of such certificates in relation to a record allows public bodies to refuse access to that record following a request under the FOI Act.

Sections 19(4), 20(1A)(d) and 25(11) of the FOI Act provide that a report specifying the number of such certificates issued, if any, shall be forwarded to the Information Commissioner.

Section 19

Section 19 provides protection for records relating to the Government or Cabinet. Following the amendment of the Act, the definition of Government includes, in certain circumstances, a committee of officials certified by the Secretary General to the Government. Section 19(4) of the Act provides that the Secretary General to the Government shall furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her.

I have been informed by the Secretary General to the Government that no such certificates were issued by him in 2003.

Section 20

Section 20 of the Act exempts from release certain records relating to the deliberative processes of a public body. Section 20(1A)(a) allows for a refusal of a record where a Secretary General of a Department of State has issued a certificate in writing stating that a particular record contains "matter relating to the deliberative processes of a Department of State". Following consultations with each Secretary General I have been informed that no certificates were issued under section 20 in 2003.

Office of the Information Commissioner Total Review Applications Received

The total number of applications to my Office in 2003 (1119) was distorted by the number of appeals (464) received in relation to the institutional cases referred to earlier (see "Type of Request" at the beginning of this Chapter). Without discounting these, a fall of 56% occurred between the first quarter of 2003 and the first quarter of 2004. When looking at the last quarter of 2002 (where the surge was not pronounced), the total number of applications received between that period and the last quarter of 2003 fell by 44%.

When these totals are analysed by personal/non-personal/mixed a clearer picture emerges.

Personal

During 2002 the number of "personal" review applications to my Office ranged between 80 and 100 per quarter, rising towards the end of the year as the initial impact of the rise in institutional redress applications received began to be felt. The number of such applications received continued to rise throughout the first half of 2003. However, towards the end of 2003 and into 2004, the number of personal applications to my Office has declined rapidly to approximately two-thirds of the 2002 levels. An analysis of the data for the first quarter of 2002 and 2004 respectively explains this apparent anomaly of declining appeals to this Office in cases where fees do not apply. For the first quarter of 2002, 62 applications were received for personal records relating to education and health-related matters, many of which were concerned with institutional cases. In 2004 there were 38 such cases. As such, the decline in personal applications would appear to be linked primarily to the decline in this class of cases coming to my Office.

Non-personal

The pattern of review applications for non-personal information throughout 2002 and 2003 was more stable, albeit with a "blip" in early July with 61 applications submitted in the week before the fees took effect. The non-personal review application level is currently running at approximately half to one-third of 2002/early-2003 levels.

Mixed

The pattern of mixed applications appears to be unaffected. It is possible, however, that some applicants will alter their request to personal (i.e. by dropping the non-personal aspect) when informed of the requisite fee.

Post-Fee Experience

In looking at my own experience of the operation of the appeal fees, it is instructive to note that 50 "mixed" applications (i.e. a combination of personal and non-personal) were altered to personal only, presumably to avoid payment of the ⁄150 charge. In addition, 14 applications were deemed invalid because no accompanying payment was received. It is clear, therefore, that the introduction of fees has had an immediate impact on requesters' exercise of their overall rights of appeal.

To end-March, 2004 the amount received by my Office in application fees totalled ⁄15,125. My Office's costs to date in setting up the scheme are far in excess of this figure. As such, insofar as my Office is concerned, I find this hard to reconcile with one of the stated aims of the introduction of fees which was that these fees (would) contribute to addressing the administrative cost of the burden of FOI.