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The Freedom of Information Act - Compliance by Public Bodies
Chapter 1 - Procedures for Handling Requests
The Freedom of Information Act (FOI Act) imposes certain obligations on a public body receiving a request made under the Act. Among these are:
- acknowledgement of receipt of the request within 14 days,
- provision of reasonable assistance to individuals seeking records under the Act,
- the making of a decision on access to all records sought within 28 days,
- provision of a detailed statement of reasons in the case of refusals, and
- review of the initial decision within 21 days by a more senior member of staff, if requested.
Although the Act requires requests to be addressed to the head of the public body it also provides that the head may delegate functions under the Act to a member of staff. As a result the task of deciding whether access to a particular record is granted or not, falls to individual members of staff commonly referred to as 'decision makers', while the more senior members of staff reviewing initial decisions are commonly known as 'internal review officers'. In most cases these staff work in the areas responsible for the particular records requested and they deal with requests received under the FOI Act in addition to their usual day to day duties.
In this chapter I examine the procedures adopted by public bodies in processing requests. I look at the following matters in particular:
- the role of the FOI Officer and the FOI Unit,
- the rank of the decision makers and internal review officers,
- the degree of centralisation of the decision making process,
- the provision of training and support to decision makers and internal review officers, and
- quality control.
The Role of the FOI Officer and the FOI Unit
All of the public bodies examined in this investigation have broadly similar procedures for handling requests received under the FOI Act. Each body has a nominated FOI liaison officer who heads an FOI unit and is the main point of contact for members of the public wishing to make requests under the FOI Act. The liaison officer/unit ensures that requests are directed to the appropriate decision maker within the body. The liaison officer/unit also ensures that requests for an internal review of the initial decision are directed to the appropriate official for reply.
Notwithstanding this apparently standard approach, the role of the FOI unit differs significantly, in practice, as between public bodies. In some cases the unit is only responsible for logging and monitoring FOI requests. In others it provides advice to decision makers and internal review officers, liaises with my Office, trains staff in FOI related matters, ensures that deadlines specified in the Act are met and provides quality control by checking whether replies issued by decision makers are consistent with the requirements of the Act. In a few public bodies requests may also be dealt with by the FOI unit, although only in the Department of Enterprise, Trade and Employment is this done to any significant degree. Such an expanded role for the FOI Unit, provided that unit is properly resourced and operates effectively, can enhance compliance with the Act, particularly in larger public bodies. It is clear that some FOI Units are already experiencing significant difficulties in dealing with the requirements of my Office which arise in the course of reviews. I recognise that any enhanced role for FOI units may require additional resources for such units.
It was noted that even in those public bodies where the FOI unit had a relatively wide brief, its main concern in most cases was with the processing of requests under the Act. However, in some public bodies the unit appeared to work closely with other line functions which are concerned with the provision of information such as the Press Office or Information Unit. While recognising that these different units sometimes may have different objectives, links of this kind can be useful in ensuring that use of the formal mechanisms of the Act do not become the first port of call for persons seeking information and that other, less formal, channels are used and developed.
Rank of the Decision Makers and Internal Review Officers
In the course of the investigation, I looked at the level at which the decision making and internal review function under the Act is carried out. This varies from situations such as that in the Department of Social, Community and Family Affairs and the Department of Education and Science; where some Executive Officers can be decision makers, to the Department of Finance where all Principal Officers1 are designated as decision makers. The Eastern Regional Health Authority has appointed decision makers at Grade VII level while in the Southern Health Board, Senior Executive Officers perform the decision making duty. In relation to the two local authorities examined the decision making grades are Administrative Officer for Dublin Corporation and County Secretary for Wexford County Council. In the Department of Social, Community and Family Affairs, Executive Officers tend to deal only with requests relating to personal information whereas Higher Executive Officers and higher grades deal with requests for policy-type information. This approach seems to work well for that Department because nearly 90% of its requests are for personal information and release of such information is often straightforward.
There is little evidence that having requests dealt with at a more senior level results in significantly better decision making or the release of more information. The contrasting approaches of the Department of Social, Community and Family Affairs and the Department of Finance, both of which appear to work quite well, suggest that public bodies themselves are best placed to decide the level at which the work of dealing with requests should be carried out. Nevertheless, it is unlikely that relatively junior officials will decide to release, say, policy making records if there is a risk of political embarrassment or a risk of offending a more senior official. Public bodies have a responsibility to ensure that FOI decisions are made at an appropriate level. In the case of potentially controversial material related to policy making, this would normally mean at least Assistant Principal level or equivalent.
Note: The order of seniority of the civil service grades mentioned in this report is: Assistant Secretary, Principal Officer, Assistant Principal, Higher Executive Officer and Executive Officer.
FOI Units and the Decision Making Process
None of the public bodies examined had centralised its FOI decision making totally within the FOI unit, although the Department of Enterprise, Trade and Employment said that its FOI unit handled an estimated 40% of the Department's total requests. The degree to which decision making is centralised varies considerably among the remaining public bodies examined. In some cases all staff at particular grades are designated as decision makers; in others decision making is confined to a relatively small number of people.
The investigation suggests that it may be more effective to have a small number of 'designated' decision makers rather than designating all of a particular grade as decision makers, as is the case in some public bodies. This approach offers the opportunity for individual officers to gain practical experience and to develop real expertise. Also, it is easier for the FOI unit to concentrate its efforts on informing and developing expertise among a smaller group. Of course, a public body has to ensure that it has a sufficient number of decision makers to handle its requests. Nevertheless, it is suggested that public bodies may need to examine their practices in this area to ensure that expertise is not spread too thinly by designating too many decision makers.
Training and Supporting Decision Makers
If proper decisions are to be made under the Act and the rights of requesters are not to be infringed then it is essential that decision makers and internal review officers have the necessary expertise. The Act is complex and often requires the balancing of competing interests. It contains twelve detailed exemption and exclusion sections which, unfortunately, from the perspective of the poorly trained decision maker, can be seen simply as twelve opportunities to refuse access.
In the course of the investigation I looked at the level of training and support provided to decision makers and internal review officers. A structured one-day decision maker's course is available to all officials in the public service. These courses are provided by the Department of Finance's Centre for Management and Organisation Development (CMOD) and in-house by FOI units in some public bodies. Without wishing to minimise the importance of in-house training, it is best seen as a complement to, and not a substitute for, the training developed by CMOD or under the auspices of the Central Policy Unit. Such training can help to highlight best practice for decision makers and can help to maintain a focus on releasing information as opposed to applying the exemptions in the Act. It can also help to ensure consistency of practice among public bodies.
It was indicated to me that the percentage of decision makers and internal review officers who had received training, either from CMOD or in-house, ranged from 100% in bodies such as the Department of Finance, Department of Social, Community and Family Affairs and Southern Health Board to around 30% in the Department of Justice, Equality and Law Reform and the Department of Health and Children. Needless to say the fact that so many decision makers and internal review officers have not had basic training is a cause for concern and needs to be addressed by the public bodies concerned.
The training provided by CMOD and in-house trainers is supplemented on a regular basis by most public bodies. Copies of my published decisions, copies of legal advice received from the Office of the Attorney General and clarification on the use of certain exemptions arising from meetings of the Inter-Departmental Working Group on FOI, the Civil Service Users Network, the Public Service Users Network and other networks are circulated to relevant officials in public bodies. I note that, in public bodies such as the Department of Enterprise, Trade and Employment and the Department of Social, Community and Family Affairs, seminars on FOI issues are organised for the Departments' decision makers and internal review officers on a frequent basis. It is important that appropriate provision be made by public bodies to ensure that decision makers and internal review officers are kept fully up to date on FOI developments.
Quality Control
The provision of a quality service to applicants under the Act requires that the administrative procedures in the Act (mainly those relating to acknowledgement and transfers of requests, the provision of reasonable assistance and consultation) be observed ; that decisions are made on a timely basis ; that exemptions are invoked only where it is proper to do so and that where information is refused, the reasons for the refusal are explained in the level of detail required by the Act.
In the course of the investigation I looked for evidence that public bodies had put in place effective quality control procedures. In particular, I examined the part played by the FOI unit in achieving a quality service. I found that only a few public bodies had proper quality control procedures. In some cases the role of the FOI unit appeared to be too narrow, concentrating at most on trying to ensure that the basic administrative procedures referred to above were met. In other cases the FOI unit had a wider quality control brief but was unable to discharge it effectively. In some cases decision letters were not seen by the FOI unit before they issued or were seen so close to the deadline as to make any worthwhile scrutiny impossible. Other FOI units appear to lack the necessary 'clout', resulting in their advice to decision makers being ignored. There were some notable exceptions. In Wexford County Council draft decisions are passed to the FOI unit at latest three weeks after receipt of the request. I found that the unit had the necessary authority to ensure that its recommendations are taken seriously. Quality control was also emphasised in the Department of Enterprise, Trade and Employment. The FOI unit in that Department is able, via the case tracking system, to monitor the progress of requests on an ongoing basis and to see replies to requests as they are drafted. There is active intervention to ensure that deadlines are met and to ensure that, where information is refused, proper reasons are given.
Recommendations
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.
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.
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.
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.
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.
