The Freedom of Information Act - Compliance by Public Bodies

Chapter 2 - The Effectiveness of Internal Review

The Internal Review Process

A requester who is dissatisfied with a public body's decision on a request made under the Act is normally entitled to seek "internal review" i.e. to have the decision reconsidered by a more senior official of the public body. There are some exceptions to this as, for example, when the initial decision maker is the head of the public body or where the request is for certain information concerning third parties. In such cases the application for review must be made "externally" i.e. to the Information Commissioner rather than to a more senior official of the public body. However, the vast bulk of decisions on access requests are subject to internal review and, in practice, about 7% of initial decisions proceed to internal review (based on figures supplied by all public bodies for 2000).

Internal review is an important feature of the Act. If it operates properly it can provide benefits to both the public body and the requester. It gives the public body the opportunity to:

  • identify general aspects of initial decision making which may need improvement;
  • review and refine the initial decision and thereby avoid or reduce the need to commit extra time and resources to dealing with a review by my Office and;
  • avoid the unfavourable publicity which may be generated if information is subsequently released as a result of a review by the Information Commissioner, perhaps creating the impression that the information was "forced out" of an unwilling public body.

The benefit for the requester is a clearer understanding of the basis of refusal or speedier access to the information than is likely to be achieved on external review.

In the course of the investigation I looked at two aspects of the internal review procedures in public bodies. The first was the extent to which the review was independent of the original decision. By its very nature an internal review cannot be fully independent. However, what the Act requires is an objective review by some person not involved with the original decision. I looked for evidence of such reviews during the investigation. The second aspect which I examined was the effectiveness of the internal reviews. This cannot be assessed solely by reference to the question of whether further information was released on foot of the internal review, simply because many initial decisions are fully justified. In assessing the effectiveness of the internal reviews I had regard to whether additional records were released, or whether a more satisfactory explanation was given as to why the material sought was exempt or whether the requester's concerns were met in some other way.

Extent to which Internal Review was Independent

The public bodies examined during the investigation have adopted a variety of arrangements for the conduct of internal reviews. In the case of the Department of Finance the review is conducted by persons drawn from a board consisting of four Assistant Secretaries and four Principal Officers. When a request for an internal review is received, the FOI Unit selects one Assistant Secretary and one Principal Officer from the board to carry out the review ensuring that the selected officials have not been involved in the initial decision making process. The Principal Officer conducts the preparatory work and drafts a decision with a final decision being made and signed by the Assistant Secretary.

In some public bodies the internal review officer is chosen from a different section of the organisation and the FOI unit ensures that he/she has played no role in the initial decision. Bodies such as Dublin Corporation and the Eastern Regional Health Authority normally appoint internal reviewers from different work areas to that of the decision maker. In a number of other public bodies - such as the Department of Justice, Equality and Law Reform, the Department of Education and Science and the Department of Health and Children, the internal review officer is normally the decision maker's immediate superior. In the Department of Social, Community and Family Affairs reviews are generally carried out by a more senior official in the same division as the decision maker. The review may be carried out by the decision maker's immediate superior but the Department says that this only occurs where that person has not been involved in the initial decision.

It might seem tempting to conclude that more independent and better quality decision making will result from assigning reviews to persons outside the section of the public body which made the initial decision. However, the experience of the Office of the Revenue Commissioners would suggest otherwise. From the commencement of FOI the Revenue had tried to achieve cross division review. In the course of a review of its FOI procedures during 2000, it was noted that most decisions on requests for access to records of the Office of the Chief Inspector of Taxes were confirmed on internal review. The procedures review concluded that the reason for this was that internal reviewers from outside that Office were not familiar with the material (some of a technical nature) contained in the records and, therefore, they tended to err on the side of caution by affirming the initial decision. As a result of the review the Revenue appointed a panel of nine internal review officers in the Office of the Chief Inspector of Taxes. It maintains that this has resulted in better decision making and the release of further records.

The degree to which internal review can be said to be independent varies across public bodies. The review board model used by the Department of Finance meets the spirit as well as the letter of the Act. At the other end of the scale, review by the initial decision maker's immediate superior - as in the Department of Justice, Equality and Law Reform, the Department of Health and Children and the Department of Education and Science - is a practice which should be avoided because it is less likely to result in a fresh look at the initial decision. This is particularly so where the request was allocated originally to the initial decision maker on the basis that he or she was familiar with the records or with the issues involved. If, as is likely, the internal reviewer has a similar degree of familiarity or involvement then there is less prospect that he or she will be able to stand back and take an objective view.

Effectiveness of Internal Review

Based on the results of the sample of cases which I examined in the course of the investigation, I have concluded that internal review is not fully effective in many public bodies. There were a number of exceptions. In the cases of the Department of Finance, Department of Enterprise, Trade and Employment and Wexford County Council I was satisfied that the result of most internal reviews was that either further records were released or the explanations given were more satisfactory than those given by the initial decision maker. In the case of the Department of Finance it was noteworthy that the resources which that Department was willing to devote to internal review were greater than the norm. For example, considerable support was given to the internal review board by the FOI officer who analysed the initial decision and sometimes highlighted particular issues involved in the request to the board. The FOI unit ensures that all relevant records are on the FOI file prior to it being seen by the internal review board and is available to advise the board on technical aspects of the Act. Also, as indicated earlier, internal review is conducted at a more senior level than in the other public bodies examined.

Another exception was the Department of Social, Community and Family Affairs where it was clear that, for example, in search cases the internal reviewer had made additional efforts to locate records. It was also clear that further efforts were made to explain refusals of information. For example, in relation to requests for non-personal records the FOI Unit is involved in "vetting" the internal review letter before it is issued.

Some of the internal review decisions which I examined in the course of the investigation bore all the hall marks of rubber stamping - there was no evidence of independent consideration of the issues and little or no attempt to improve the explanations given to the requester. It would be all too easy to lay the blame for this at the door of the officials concerned. However, it seems to me that the root cause of this type of behaviour may be traced to lack of expertise among some internal reviewers and a lack of expert support. In these circumstances, the easiest option for an internal review officer is simply to affirm the initial decision in full.

Rubber stamping is by no means so widespread as to undermine the effectiveness of internal review completely. At the same time enough instances were identified in the course of the investigation to suggest a need for all public bodies to monitor their own performances in relation to internal review, as the Revenue has done, and to take appropriate action to remedy deficiencies.

Even in public bodies where there was no evidence of rubber stamping, a significant number of the internal review decisions examined in the course of the investigation (almost 40%) did not meet the full requirements of the Act in terms of quality of response, a matter which I discuss in detail in Chapter 3. While not wishing to overstate the problems in this area, I am concerned that, on a second attempt and even with the input of a more senior official, some public bodies are failing to accord requesters their full statutory rights by either releasing the information requested or providing clear and comprehensive explanations for not doing so.

Recommendations

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.

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