The Freedom of Information Act - Compliance by Public Bodies

Chapter 3 - Quality of Response

The Act sets out in some detail the public body's obligations when dealing with an FOI request. These include the requirement to make a decision within the statutory time limit, the requirement to advise the requester of any further appeal rights and the requirement to give a detailed statement of reasons where access is refused or deferred. Although the investigation highlighted some instances - described below - in which the first two requirements were not met this does not seem to be a widespread problem. On the other hand I found that failures to give an adequate statement of reasons are common. In view of this I would like to summarise what the requirement is and explain why I think that public bodies need to undertake a detailed review of their practices in this area.

The Act obliges a public body which is refusing a request, whether wholly or partly, to give the requester a statement of the reasons for the refusal and, other than in cases where those provisions of the Act which permit a refusal to confirm or deny the existence of a record are being invoked, to specify:

any provision of the Act pursuant to which the request is refused,
the findings on any material issues relevant to the decision, and
particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

In order to comply with the terms of the Act it is not sufficient for a public body to simply paraphrase the words of the particular exemption. I note that the Central Policy Unit of the Department of Finance has advised public bodies that a statement of reasons should show a connection, supported by a chain of reasoning, between the decision and the decision maker's findings on material issues. It has also strongly recommended that, other than in cases involving no more than a few records, decision makers should prepare a schedule listing the records sequentially by number and containing the following information :

the date of the record,
the title of the document or the name of its author or addressee,
a brief but sufficient description of the record or its contents to show a prima facie claim for exemption,
the exemption claimed, and
where the claim relates to parts of a record, a clear indication of the parts involved.

It also recommends that a version of the schedule from which sensitive information has been removed should be attached to the statement of reasons issued to the requester.

I have endorsed the advice of the Central Policy Unit on a number of occasions. Even in the absence of specific statutory requirements, good administrative practice requires that users of public services should have the right to be given reasons for actions or decisions which affect them. In my view it would be very difficult to give meaningful reasons for a decision to refuse access to information without giving the level of detail prescribed by the Act.

As regards the scheduling of records, a common objection made by some public bodies is that it is time consuming and a waste of resources. Based on what I have observed in the course of this investigation and when dealing with reviews, I have little sympathy with these objections. Where a large number of records is involved it is practically impossible to meet the requirements of the Act without providing a schedule to the requester. Failure to produce a schedule also results in additional work at the internal and/or external review stages.

Failure to provide a proper schedule also suggests that the decision maker may not be taking the rights of the requester seriously. After all, the Act is intended to provide access to information held by public bodies to the greatest extent possible consistent with the public interest and the right to privacy. Release should be the norm; refusal the exception. In this context, it is hardly too much to expect a public body which is refusing access to go to the trouble of properly documenting that refusal.

Breach of Time Limits and Failure to Reply

The Act prescribes strict time limits for dealing with requests and applications for internal review. It safeguards the rights of requesters by providing that if a public body fails to make an initial decision on a request within four weeks, the request is deemed to have been refused, and the requester is entitled to apply for an internal review. Similarly, if an internal review decision is not made within three weeks, the requester is entitled to seek a review of the initial decision (or deemed decision) from the Information Commissioner.

All public bodies have procedures in place which are designed to meet the requirement to provide decisions within the statutory time limit. In the case of most of the public bodies examined no breaches of the statutory deadlines were found. In these cases the FOI unit appeared to take an active role in following up the processing of requests and ensuring that replies issued on time. In the remaining public bodies occasional breaches occurred. Occasional breaches may be unavoidable in larger public bodies which deal with a large volume of requests or where an unexpected peak occurs in the number of requests received. However, I would be concerned if this failure to meet time limits becomes more common because it could erode the commitment to timely decision making which, on the evidence of this investigation, is present in most public bodies.

Failures which went beyond the occasional breach were noted in the case of three public bodies - the Department of Education and Science, the Department of Health and Children and, to a lesser extent, the Department of Justice, Equality and Law Reform. Of these, the most serious problem is in the Department of Education and Science.

The Department of Education and Science

The Department said that its problems in meeting the statutory deadlines derive from the fact that it is facing a large demand for personal records from former residents of industrial and reformatory schools relating to their time in these schools. It said that, to date, it has received about 1400 requests for access to records held in relation to industrial and reformatory schools. It has answered over 900 of these requests but over 400 are still outstanding.

The Department has informed requesters that it is wholly committed to the full release of these records in accordance with the FOI Act. However, it has indicated that there are practical difficulties with these cases which make it impossible to meet the timescales set out in the Act. All the records are stored by the Department in paper form. Given the passage of time, many of them are in a poor condition, which makes their retrieval and examination for FOI purposes extremely difficult.

The Department said that, in all, it holds over 230,000 separate documents relating to the 59 institutions under the Industrial and Reformatory School System. Of these 230,000 documents, over 130,000 are contained in the Department's administration files relating to the institutions concerned. Some of these records contain occasional references to former residents e.g. in medical inspections.

The Department has records of over 41,000 former residents of such institutions, of which the Department holds specific personal files for about 13,000. Of the 230,000 documents held by the Department, 100,000 documents relate to these individual personal files. Search and retrieval of these records on a manual basis has proven to be very time consuming.

In response to the search and retrieval issue, and to a number of High Court actions against the Department which would involve the release of these records, the Department moved in August 1999 to scan all the records on to a computer database. Each scanned record was individually processed using relevant index data which facilitates retrieval using specific search criteria e.g. name, institution, period of residence, etc. This project is expected to be completed in September 2001 from which time requests should be capable of being processed more easily. In the interim, the Department is continuing to process all FOI requests received on a manual search and retrieval basis.

The Department said that the FOI Act was not suited to the provision of what proves to be very limited personal information in these cases. It indicated its preference that such information be released in a caring, supportive and compassionate way. It said that it is exploring with Barnardos the possibility that it would provide a wider service involving a family tracing service, mediation and support for persons who were raised in industrial and reformatory schools. It envisages that personal records would be made available to such people through Barnardos.

It will be clear from what I have said elsewhere in this report that I do not believe that it is either necessary or desirable that people should always be forced to use the formal request mechanisms of the Act to obtain information. This is all the more so where the public body concerned has no real objection to release. Therefore, I broadly welcome the Department's general proposal for making this information available to the requesters concerned. I would add one caveat. No matter how well intentioned the Department's proposals involving Barnardos may be they must not involve any diminution of a requester's statutory rights. Until the proposal is implemented the Department has a responsibility to continue to deal with requests made under the Act. Indeed, even when the Barnardos proposal is implemented the Department must still permit any requester who so wishes to exercise his/her right under the FOI Act.

It would be wrong to give the impression that the Department is experiencing problems only in relation to industrial schools cases. In relation to other requests, not connected with industrial schools, I noted that long delays occurred in the FOI unit forwarding requests to the appropriate decision maker or internal review officer. In some cases 2 - 3 weeks passed before the request was assigned. This led to inevitable delays in replies issuing and deadlines were not met by significant margins in about half the cases examined. In two cases no initial decision issued. These both involved requests to sections that were heavily involved in High Court actions and this certainly contributed to the lack of response. However, other public bodies have faced similar problems of competing demands on a section's resources but have managed to cope either by reassigning the request or agreeing a deferral or a narrowing of the scope of the request with the requester. The Department accepts that it has had difficulties in this area in the past but has stated that it is committed to eliminating these problems so as to ensure the maximum overall efficiency in responding to FOI requests made to it. ¡I note that the Department has attempted to address some of these problems by assigning extra staff to the FOI unit.

The Department's problems are also evident in its dealings with my own Office. The general level of response, even to simple requests for information is very poor and compares unfavourably with the response of other public bodies.

The Department of Health and Children

Of the ten cases randomly selected from the Department I found three where no decision letter issued at all. Under the Act this is deemed to be a refusal by the Department and in each case a request for an internal review was made by the requester. In one of these cases the subsequent internal review decision took four months to issue instead of the twenty one days required by the Act. In another case an appeal received by the Department on 6 March 2000 had yet to have a decision issued on it a year later. My own Office has also experienced difficulties in obtaining responses from the Department although the scale of the problem is less than in the case of the Department of Education and Science.

Among the public bodies examined, with the exception of the Department of Health and Children and the Department of Education and Science, the investigation found no evidence of systematic failure to deal with requests resulting in the triggering of these automatic appeal provisions. In the case of the Department of Health and Children, failure to take the initial decision within the deadline appears to happen often enough to give rise to serious cause for concern. When taken together with the other failures identified in relation to that Department, it underlines the need for an immediate review of its FOI procedures.

I raised these problems with the Department. In response it said that the results of the sample were not indicative of the Department's performance in relation to FOI generally. I should point out that the sample for the Department was chosen in exactly the same way as for other public bodies - most of whom did not exhibit the deficiencies identified in the case of the Department.

The Department acknowledged that it has problems in meeting the statutory deadlines but it said that the failure to do so is neither deliberate nor systematic. It said that a review of its procedures is already underway and that it is considering particular initiatives to support the Act on an ongoing basis.

The Department of Justice, Equality and Law Reform

Failure to meet deadlines in this Department was less serious than in the Department of Education and Science and the Department of Health and Children. The investigation discovered a small but fairly consistent delay in dealing with applications for internal review with most taking four weeks or more as opposed to the 21 days permitted by the Act.

Failure to advise Requesters of Appeal Rights

The obligation to advise requesters of their appeal rights appears to be generally observed. The one possible exception is the Department of Health and Children whose practice in this area makes it impossible to be certain that requesters are advised of their rights of appeal.

When a request is acknowledged by the Department a one-page leaflet is attached which describes the requester's rights of appeal under the Act. Unlike other public bodies examined, the Department does not include this information in its decision letters although sections 8 and 14 require that the decision letters include details of the rights of review. Instead, the Department's practice is that decision makers and internal reviewers enclose a copy of the same leaflet when issuing their respective decision letters. In a number of cases it was not clear whether this leaflet was enclosed with the internal review decision. The letters concerned made no reference to it and no copy of the leaflet was on the file. I consider that there is a real possibility that an official issuing a decision letter may accidentally omit to include the leaflet resulting in the requester not being reminded of his/her right to appeal both to the Department after the initial decision and to my Office following the internal review decision. I recommend that the Department adopt the practice of the other public bodies examined and outline the requester's appeal rights in its decision letters.

Statements of Reasons

My general conclusion is that, where information is refused, statements of reasons which fail to meet the requirements of the Act are reasonably common. The sample would suggest that such failures occur in about 50% of cases. Without a proper statement of reasons a requester cannot make an informed decision as to whether to seek a further review. There is clear evidence from the reviews which come before me that unnecessary reviews are being generated as a result of the failure to give proper statements of reasons.

Failures of one kind or another occurred in all the public bodies examined. However, the seriousness of these failures varied considerably as between public bodies. For example, in the case of the Department of Social, Community and Family Affairs, some refusals were badly explained but were probably justified. In Dublin Corporation there were a number of refusals where no explanation of the exemption used was given or how it applied to the records being refused. In the case of the Department of Finance any deficiencies found related only to initial decisions with internal review letters giving clear reasons and a proper explanation of the public interest considerations in releasing or withholding the information in question.

Some public bodies had specific problems. In the case of the Department of Justice, Equality and Law Reform, where adequate explanations had not been given in a number of the cases examined, two particular problems were noted. The first was a tendency to rely on an exemption but to give no indication as to why it was appropriate in the particular case. The second was failure to provide a schedule of the records at issue. The failure to provide a schedule meant that in some cases the requester had no indication of how many records were being refused and often was given little real information about the nature of the records held by the Department.

Prior to this investigation and as a consequence of inadequate decision letters issuing from the Department, staff from my Office had met the Department, at the latter's request, with a view to addressing these issues. The Department maintains that since then there has been a significant improvement in the decision letters now issuing due to greater input by the FOI Officer and it has provided examples of improved decision making letters to support this contention. I will continue to monitor the progress being made by the Department in this matter.

Similar problems were noted in the case of the Revenue - inadequate reasons and no schedules in some cases. A further problem arose from the fact that some requests cover records held in more than one branch of the Revenue. The Revenue's approach in these cases used to be to appoint a separate decision maker in each branch to decide on access to the records held in that branch. These separate decisions were then sent to the requester by the FOI unit. Originally, the FOI unit forwarded these separate decisions to the requester with a covering letter - a practice which some requesters clearly found confusing. It should be noted that these comments are based on the sample examined in the course of the investigation which was drawn from the period January - July 2000.

Following a review of its procedures in May 2000, the Revenue has adapted significantly its approach to explaining decisions. Schedules are provided and requesters are told what records are not being released. Explanations which go beyond a simple paraphrase of an exemption are provided. Its current approach to decision making favours one division taking responsibility, where practicable. In such cases only one decision is made which covers all records. Where this is not practicable a single decision letter issues from the FOI unit which incorporates the decisions of the separate decision makers. The Revenue has given me recent examples of its revised style of decision letter and I am satisfied that these meet the requirements of the Act. Time did not allow me to establish whether the Revenue's changes of practice have been carried through in all cases. However, I think that it is worth recording that there has been a significant fall in the number of applications for review to my Office against Revenue decisions (1999 : 56, 2000 : 31 and 2001(5 months) : 5) and this may be attributable in part to its new approach to explaining its decisions. The Revenue has said that its arrangements are subject to ongoing review to determine best practice.

Recommendations

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.

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.

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