The Freedom of Information Act - Compliance by Public Bodies

Overview and Summary of Recommendations

Objective

The objective of this investigation was to examine the practices and procedures adopted by public bodies generally for the purposes of the FOI Act. The investigation was carried out in accordance with section 36(2) of the Act.

Methodology

The investigation was carried out during the period February to May 2001. I did not consider it either practicable or necessary to examine the practices of all public bodies. Instead, I chose 12 public bodies spread across the civil service, local authorities and health boards, concentrating for the most part on those bodies which have received the largest number of requests since the commencement of the Act. A list of the public bodies which were examined in the course of the investigation is set out in Appendix 1. I would like to thank the public bodies concerned for their co-operation during the course of the investigation.

The investigation involved the examination, in the case of each public body concerned, of a random sample of requests where the requester had applied for internal review; it excluded cases that were subsequently appealed to my Office. The sample was chosen by my Office, rather than the public body, and was drawn from requests made in the period January to July 2000. I also looked at a sample of records from each public body designed to check if there was any evidence of a change in record keeping practices following the introduction of the FOI Act. The FOI liaison officer in each public body concerned was interviewed about the organisation's procedures and asked to comment on issues arising out of the examination of the sample. The conclusions in this report are based largely on the sample and on these discussions. However, I have also drawn on my own experience of dealing with public bodies in the course of the reviews which have come before me over the last three years.

Despite the limited scope of this investigation, I have been able to draw some worthwhile conclusions which are relevant to some degree to all public bodies covered by the FOI Act. Since the investigation looked mainly at the larger public bodies some of my recommendations are drafted with them in mind. Most of the recommendations are also relevant to smaller bodies, although I recognise that they will have another concern - not dealt with in the report - viz how to develop and retain FOI expertise in the absence of a critical minimal level of FOI requests each year. I expect that the recommendations which I make in the report will be implemented by public bodies and that they will help to increase the effectiveness of the Act. I intend in future investigations to monitor the degree to which these recommendations have been implemented by individual public bodies.

General Conclusions

Practices and Procedures

In Chapters 1 to 4 of this report I examine the practices and procedures adopted by public bodies in dealing with requests made under the Act. In particular I look at the operation of internal review, the quality of response to FOI requests and applications for internal review and practices in relation to charging fees.
Considerable efforts were made prior to the introduction of the Act to ensure that public bodies had in place the systems and procedures necessary to process requests made under the Act and to ensure that staff were properly trained in applying its provisions. I have concluded that, by and large, the procedures adopted for the processing of requests have been satisfactory, based on the fact that most public bodies process most requests within the statutory deadline. There are a few exceptions which are described in detail in this report. The biggest deficiency in handling requests is a widespread failure, when refusing information, to give reasons which meet the requirements of the Act.

I have also identified a number of other areas where improvements are needed such as quality control and more effective internal reviews. My recommendations on these issues are couched in general terms. It is up to each public body to examine its own performance and decide how best to implement these recommendations in the light of its own circumstances.

Records Management

In Chapter 5, I examine the records management practices of public bodies. I have concluded that in many cases further work is required to bring records management up to the standard required to meet the business needs of public bodies including the need to search for and retrieve records efficiently for the purpose of dealing with requests made under the FOI Act.

The Use of Exemptions in the FOI Act

In Chapter 6, I look at the operation of three common exemptions - section 19 (Meetings of the Government), section 20 (Deliberations of public bodies) and section 26 (Information obtained in confidence). It is possible to make a prima facie case for exemption under these or other provisions in relation to many records but whether it is worth doing so, in some cases, is an entirely different matter. In my view the cause of greater openness is not served by trying to rely on an exemption to refuse information simply because the exemption is there or because, while the record sought is innocuous, it is feared that release will, from the public body's point of view, create an unfortunate precedent.

I have concluded that public bodies are resorting unnecessarily to these exemptions in some cases. I have addressed recommendations to public bodies and to the Central Policy Unit of the Department of Finance aimed at reducing the unnecessary use of these exemptions.

Administrative Access

While my investigation was directed mainly at the practices and procedures adopted for the purpose of handling requests, I also tried to gauge whether the needs of requesters were being met and their rights of access fully acknowledged. In Chapter 7, I look at matters such as the degree to which public bodies have encouraged the release of information administratively, i.e. without the need for a formal application under the Act.
I conclude that more information could be released administratively and some of my recommendations are designed to encourage this.

Achieving a more open Public Service

In Chapter 8, I examine the degree to which the FOI Act has achieved a more open public service. I conclude that the Act has brought about major gains in terms of greater openness and transparency. However, I point to the apparently high rate of refusal of requests and I recommend that public bodies gather further statistics to enable the most common reasons for refusals to be identified and, if possible, further action taken to increase the release of information.

The recommendations which follow are not, for the most part, directed at decision makers or internal review officers. Some require action by FOI officers. Others require action by senior management which, if taken, will reaffirm commitment to the principles underlying the Act. I also make a number of recommendations which require action by the Central Policy Unit of the Department of Finance.

Recommendations Addressed to Public Bodies

Organisational Issues

  • Each public body should ensure that the role allotted to its FOI unit meets the needs of the organisation and that the unit is sufficiently resourced. (Chapter 1)
  • Each public body should ensure that requests under the Act are dealt with at an appropriately senior level in the case of potentially controversial material. (Chapter 1)
  • Each public body should review the basis on which decision makers are designated to ensure that decision making is not so thinly spread as to militate against the emergence of expertise in relation to the Act. (Chapter 1)
  • Each public body should examine the effectiveness of internal review and consider whether, in the light of performance to date, its present arrangements for internal review achieve their purpose. This examination should also review whether internal review officers are properly equipped in terms of FOI expertise and support . (Chapter 2)
  • The Department of Education and Science and the Department of Health and Children should review the procedures adopted for dealing with requests under the Act and should take early action to address the deficiencies identified in this report. (Chapter 3)

Training

  • Each public body should decide on a minimum level of training for all decision makers and put a programme in place to ensure that this is achieved. (Chapter 1)

Quality Control

  • Each public body should review its quality control procedures in relation to the handling of requests, with a particular emphasis on the quality of reasons given for the refusal of access. (Chapter 1)

Use of Exemptions

  • Each public body should re-examine its use of the exemption in section 20 (deliberations of public bodies) to ensure that information is only withheld on clearly arguable grounds, not merely on the ground that the decision making process has not concluded or that release could cause embarrassment to the body or to the Government. Senior management should provide support to decision makers by clearly indicating the circumstances in which section 20 should not be invoked. (Chapter 6)

Fees

  • Each public body should review its practices in cases where a deposit has not been demanded but the ultimate cost of search and retrieval exceeds £40 (€50.80). (Chapter 4)

Records Management

  • Each public body should devise and publish a records management policy covering the creation, maintenance and destruction of records. The objective of the policy should be to ensure that the activities and decisions of public bodies are adequately recorded. (Chapter 5)
  • Each public body should devise detailed guidelines based on these policies and provide staff training in these guidelines. (Chapter 5)
  • Where they have not already done so, public bodies should re-evaluate their records management systems to ensure that they are adequate to meet their business needs, including the need to search for and retrieve records efficiently in order to deal with requests made under the FOI Act. (Chapter 5)
  • Each public body should allocate responsibility at senior management level for ensuring that development and improvement of records management is accorded the appropriate priority. (Chapter 5)

Managing Information / Promoting access to information

  • Each public body should develop and publish guidelines on the collection and use of information obtained from third parties, so as to reduce uncertainty about the status of that information, the use to which it may be put and the circumstances in which it may be disclosed under the FOI Act or otherwise. (Chapter 6)
  • Each public body should develop comprehensive guidelines on access to information outside of the FOI Act. (Chapter 7)
  • Each public body should identify classes of documents which are likely to be of general interest and adopt procedures to ensure that a proactive approach is taken to releasing them. (Chapter 7)
  • Each public body should arrange to gather statistics on the use of the different exemptions and on the granting of requests for personal and official information. The statistics should record the basis of refusals of requests including administrative grounds of refusal (i.e. non-existence of records and records created before the commencement of the Act). (Chapter 8)

Recommendations addressed to the Central Policy Unit of the Department of Finance

  • The Central Policy Unit should consider arranging further training for public bodies in relation to the level of explanation required when access is being refused. (Chapter 3)
  • The Central Policy Unit should reconsider the recommended de minimis fee with a view to increasing it to a level which would be applied uniformly by decision makers. The effect of this recommendation is to raise the threshold figure at which fees become chargeable. (Chapter 4)
  • The Central Policy Unit should provide guidelines to public bodies on the circumstances in which the discretionary exemption in section 19 (meetings of the Government) should be invoked and on how the consultation procedures provided for in section 19(4) should be undertaken. (Chapter 6)
  • The CPU should consider developing further guidelines regarding the provision of information from third parties in circumstances which are common to many public bodies e.g. tendering, recruitment/selection references, staff complaints. (Chapter 7)

Back to contents