Commentary of the Information Commissioner on the Freedom of Information Act 1997

Amendments to Improve the Operation the FOI Act

Long Title

  • In order to remove any confusion as to whether the right of access is confined to natural persons, it is suggested that the reference to "members of the public" (in line 1) should be changed to "persons".

Section 2 (Interpretation)

  • It is felt that a definition of "person", in line with the Interpretation Act, 1937 should be incorporated into this section of the Act but without the reference to "contrary intention". The definition might read;

"Person. The word "person" shall, unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual;"
  • It is suggested that an amendment is necessary in order to deal with the confusion arising from the comments of Finnegan J. in the Rogers judgement when he held that the creation of copies of records by the DPP for inclusion in the Book of Evidence was the creation of a record by the DPP. There are wider implications of this, for example, the making of a copy of a pre-commencement record after the commencement date could be regarded as amounting to the creation of a post commencement record. It is not believed that this was what the Oireachtas intended and accordingly it is proposed that the definition of "record" should provide that a copy of a record is not, for the purposes of the FOI Act, to be construed as separate and distinct from the original record (except where the copy has had material added e.g. in the form of an annotation). Alternatively, it may be considered more appropriate to deal with this issue under section 6(5) by deeming that any copy taken of a pre-commencement record does not amount to a post-commencement record and/or perhaps under section 22(1) by providing that any copies taken of existing records, for the purposes of legal proceedings/advice, are to be considered as records in their own right.
  • Section 29 deals with instances where an existing exemption is overruled by the relevant public interest test within that exemption; section 28(5) has two separate provisions and only one of them, at (a), has to do with the public interest. Accordingly, an amendment is suggested whereby the definition of a "request to which section 29 applies" should read "section 28(5)(a)" rather than "section 28(5)".

Section 3

  • If it cannot be achieved through regulation, it is suggested that section 3 should be altered with the insertion of the following key requirements;

(a) an obligation on the Minister for Finance to collect, collate and publish (within two months of the end of each calendar) relevant statistics in relation to FOI usage in the relevant year, and
(b) an obligation on public bodies to provide the Minister with such statistics, and in such manner (including timescale) as the Minister determines, in relation to FOI usage in the relevant year.

Section 4(5)

  • It appears that this provision is not being observed and is a burden on public bodies. As the provision has no obvious value and could be used to highlight non-compliance on the part of public bodies, it is suggested that it should be removed from the Act.

Section 12(2)(b)(ii)

  • A strict interpretation of this provision suggests that virtually every written communication (apart from copyright owned by the State, the Government or the public body concerned), is subject to copyright and therefore, in principle, all kinds of very ordinary records might not be capable of being made available by way of copy. It is suggested that this section should be amended to limit the reference to infringement of copyright to one where infringement would, in the opinion of the head, be likely to result in financial loss to, or other significant impairment of the rights of, the copyright holder. This proposed amendment would presumably require consultation with the Department of Enterprise, Trade and Employment.

Section 15

  • It is suggested that a provision might be inserted to the effect that the requirement to publish a section 15 manual is satisfied where the manual is published electronically (e.g. on the public body's website or by provision of a CD) provided that a request for a print-out of the manual, in whole or in part, is met.
  • Section 15(4) is now redundant and was never a practical proposition and therefore it is proposed that this provision should be removed from the Act.
  • Section 15(7) is somewhat confusing in that it provides for a section 15 manual being available "for removal free of charge ..." whilst also stating that in certain circumstances it may be available "for purchase". It is suggested that the manual should be available free of charge in all circumstances.

Section 16

  • Similar to section 15 above, it is suggested that a provision might be inserted to the effect that the requirement to publish a section 16 manual is satisfied where the manual is published electronically (e.g. on the public body's website) provided that a request for a print-out of the manual, in whole or in part, is met. Furthermore, where the manual is published electronically, with no full paper version published, public bodies should be required to publish electronically with a print-out, if requested, a document which describes the range of material in the manual and offers to provide paper copies of the contents (or those parts of interest) to any person.

Section 17

  • It is suggested that consideration might be given to extending the scope of this section to include the amendment of records relating to personal information whose release is provided for outside of the Act, as per section 46(2). It is considered somewhat incongruous that, by virtue of section 46(2), a requester cannot succeed in having a record amended which contains incomplete, incorrect or misleading personal information which is available to be inspected by members of the public. Where a record is only available to members of staff of the public body, s/he can seek to amend it although far greater damage could be caused to the requester in the case where the record is available for inspection by members of the public. Consideration might also be given to extending this principle to section 18.

Section 18

  • It is recommended that this section should clarify that the right of access to information regarding acts of public bodies applies only in respect of "acts" taken since the commencement of the FOI Act although the head may decide to extent this right of access in certain circumstances. Furthermore, it is also suggested that applications under this provision must be made within twelve months of the applicant becoming aware of the "act" that affects him/her unless there are particular circumstances that, in the opinion of the head, justify an extension of this period.

Sections 17 and 18

  • Neither of these sections provides for a parent, guardian or the next of kin to be entitled to act on behalf of a minor, intellectually disabled person or a deceased person in the same way as section 28(6) provides for regulations to be made enabling parents/guardians to gain access to records. It is suggested that an amendment might be considered to provide for a similar approach to sections 17 and 18 as already exists in respect of access to records.

Section 22(1)(b)

  • Having regard to the decision of O'Neill J. in the recent case of EH and the Information Commissioner, it is suggested that this section should be amended to reflect the fact that release of records is not prohibited in cases where records have been the subject of an order of discovery and where there has not been an express undertaking to the court in relation to those records nor has the court made a specific order in relation to them.

Section 23(1)(c)

  • It is suggested that the term "or make more likely" should be added to this provision after the word "facilitate".

Section 26

  • In order to deal with, amongst other things, instances in which public bodies have used confidentiality clauses in contracts or settlements and where this might have been done to avoid release under the FOI Act, it is suggested that the public interest test in section 26(3) should be extended to paragraphs (a) and (b) of section 26(1).

Section 29

  • Section 29 deals with instances where an existing exemption is overruled by the relevant public interest test within that exemption. However, as section 28(5) has two separate provisions and only one of them, at (a), has to do with the public interest, it is recommended that all references to section 28(5) should be amended to read section 28(5)(a). This proposed change mirrors the amendment proposed at section 2 re. Interpretation.
  • Section 29 provides that a public body must notify third parties of an FOI request where it considers that the request is one to which section 26 (3), 27(3) or 28(5) applies but falls to be granted in the public interest. The situation is complex where only some of the records coming within the scope of the request are subject to the notification process and it is suggested that the situation be clarified in the amending legislation.

It is the view of this Office that a review by the Commissioner of a decision under section 34(1)(f) relates only to those records, or parts of records, to which section 26(3), or 27(3) applies, or to which 28(5) applies, and which apart from section 29 would fall to be granted. The decision on any other records or parts of records in the same request is not a decision on a request to which section 29 applies and an appeal of the decision on those records or parts of records should, therefore, be by way of internal review.

One possible implication of an alternative interpretation, which says that a decision/request cannot be split in such a manner, is that the Commissioner could review the decision on records which were not the subject of an appeal by any party. It would seem that the most practical resolution would be that the Act should be amended to confirm that the splitting of a decision, as outlined above, is appropriate.

  • The FOI Act does not envisage that a formal section 29 notification process can take place at internal review. While this Office accepts that a decision on a request to which section 29 applies may be made on internal review in certain circumstance (page 33 of this Office's Section 16 manual refers), it is the view of this Office that the Act should be amended to specifically provide for a formal section 29 process at internal review and to allow for an appeal by a third party against a decision to release records affecting their interests where appropriate.
  • The following two options might also be considered in an effort to bring greater clarity to this section:
  1. Consideration might be given to amending Section 29 to bring it into line with other provisions of the Act whereby it would provide for an internal review in all cases where the requester or third party (parties) is unhappy with the original decision of the public body. Only after internal review would the decision be appealed to this Office. This proposed change would have the effect of removing much of the confusion surrounding this section particularly in cases where the application has to be split.
  2. Alternatively, consideration might be given to providing that a direct appeal to this Office (i.e. without internal review) would only be permitted in cases where the original decision is to release the record(s) in question. If the original decision is to withhold, then the internal review procedure should apply.

Section 32

  • Further to the amendment proposed at section 12(2)(b)(ii) above, it is suggested that the current copyright legislation should be consulted in regard to whether its provisions contain anything that amounts to a prohibition on disclosure. It is our understanding that copyright law does not provide for a prohibition on disclosure but does limit (in the absence of the consent of the copyright holder) the manner in which disclosure may be made. However, if there is a prohibition on disclosure within the copyright law, perhaps it may be possible to use the Third Schedule to mitigate the extent of that prohibition in the FOI context.
  • Notwithstanding the fact that the Minister for Finance has previously made amending regulations in this area, it is suggested that an additional provision should be added to section 32(3) providing a right to make regulations allowing legislation to be added to the Third Schedule of the Act. This right should not extend to permitting the removal of legislation but in allowing the addition of same, it would facilitate the inclusion of, for example, the Food Safety legislation on to the Schedule.

Section 33(4) and (5)

  • These provisions impose a bar on the Commissioner holding any other office which attracts emoluments (Rule 4 of the Second Schedule). There is an equivalent provision in relation to the Ombudsman at Section 2(6) of the Ombudsman Act. Where the same person holds the two offices, the effect of section 33(4) and (5) seems to be that neither of these restrictions applies. In effect, a person who simultaneously holds the Ombudsman and Information Commissioner offices seems not to be barred from holding an additional (third) Office for which emoluments are payable, whilst a person who holds only one of the two offices is barred from holding even a second office for which emoluments are payable.

Section 34(3)

  • Section 34(3)(b) provides that the Commissioner shall make a decision on a review, as far as practicable, not later than three months after receipt of the application. In light of the experience of this Office, it is suggested that consideration might be given to extending this period for completion of a review to four months.

Section 34(5)

  • This provision currently requires that withdrawal of a review application must be done in writing. However, many applicants are slow to write to this Office confirming a withdrawal of their application. It is therefore suggested that this provision should be amended to allow a withdrawal to be done orally with the Commissioner confirming this in writing to the applicant and also informing the public body that this has happened.

Section 34(9)

  • In light of the experience of this Office, it is proposed that the following additional grounds for the Commissioner to discontinue a review should be added to this provision;

- where the applicant fails to provide the Commissioner with sufficient information or otherwise fails to co-operate with the Commissioner in the conduct of a review, and
- where, in the course of the review, access to the records in question has been granted by the public body and where the Commissioner is satisfied that there is no longer any issue requiring adjudication by his Office.

Section 37(7)

  • It is proposed that the maximum fine for failing or refusing to comply with a requirement or for hindering or obstructing the Commissioner should be increased to EURO 10,000 and/or six months imprisonment.

Section 42(4)

  • This section provides that the time limit for appealing a decision of the Commissioner to the High Court is four weeks. There is however an anomaly whereby, in certain circumstances, a requester who is being granted partial access to records will not receive those records until after the time for a High Court appeal has expired; in such circumstances, the requester will not know whether he or she is satisfied with the Commissioner's decision until after the time for the making of an appeal has expired. This situation may arise where a third party, other than the requester, has an interest in the release of the records and, because of the operation of section 44, there is a stay on the implementation of the Commissioner's decision. This stay is to protect the rights of the third party. However, an unintended consequence is that the requester cannot be given the records until after the appeal period has expired. This Office has had one instance of a High Court appeal made "on the blind" in such circumstances. Accordingly, an amendment to section 42(2) is suggested whereby the time for an appeal in such cases might be extended by two weeks following the actual release of the records.

Section 43(3)

  • An amendment to this section is suggested in order to provide that the Commissioner is governed by a provision similar to section 8(5) which provides that a public body may withhold in a decision material which, were it to be included in a record would be exempt material whereas section 43(3) deals only with material actually contained in an exempt record. The relevance of this is that section 8(5) might form the basis for an approach under which, in a case involving a risk to personal safety, the full grounds for a decision to refuse, e.g. fear that the requester may become violent, might not have to be given. At present, it appears the section 8(5) option may not be available to the Commissioner.

Section 46

  • This section lists the restrictions of the Act but it is suggested that an amendment is necessary, either in this section or perhaps within section 34(1), in order to clarify that the review jurisdiction of the Commissioner extends to deciding whether a public body has correctly invoked section 46. If the Commissioner does not have such jurisdiction, then requesters will have no free, independent review mechanism in cases of this kind and the public bodies concerned will not be subject to any scrutiny as to how they behave in this area.

Suggested New Provisions

  • The question of some kind of a personal safety clause is something that this Office has been considering and was the subject of a separate paper sent to the Department of Finance recently. A key issue in relation to such a personal safety clause is whether, in appropriate cases, it will be permissible to withhold from the requester the full reasons for the decision to refuse his request.
  • Another area we are considering is that of the interaction of data protection law with FOI. This is an issue that could have a critical bearing on the conduct of reviews by this Office. In summary, it appears that an application under the Data Protection Act (DPA) could result in data held by the OIC being accessible to the data subject in circumstances where the same data might not be releasable under the FOI Act. This opens the prospect of the FOI Act being undermined particularly as the restriction provided by section 43(3) of the FOI Act only allows the Commissioner to act in "the performance of his or her functions under this (FOI) Act..." and not in relation to the DPA. The extent of the problem is magnified by virtue of the fact that it is assumed that the 1995 EU Directive is now applicable (even in the absence of national legislation) and that access rights under the Directive include a right of access to paper files containing personal data. Sensitive paper records given to the OIC for purposes of a FOI appeal cannot, as things stand, be guaranteed exemption from release under the EU Directive on data protection. Unfortunately, this Office does not have the option of seeking a regulation under section 5(2) and 5(3)(b) of the DPA to extend the restriction on release of records provided by section 43(3) of the FOI Act into the area of the DPA. It appears that this problem can only be dealt with by way of primary legislation either in the context of the DP (Amendment) Bill or, possibly, in the context of an amendment to the FOI Act. The Information Commissioner has already suggested a form of words to address this issue to the Department of Justice, Equality and Law Reform for inclusion in the Data Protection (Amendment) Bill. At the time of writing, it is not yet clear if his suggested wording will be included in the Amendment Bill. In this context, the possibility of an amendment to the FOI Act will need to be kept under review.

Office of the Information Commissioner
3 February 2003

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