The Freedom of Information Act - Compliance by Public Bodies

Chapter 7 - Reducing the Burden of complying with FOI Requests

The Role of FOI in the Provision of Information

The processing of FOI requests can impose a formidable administrative burden on public bodies. Requests must be acknowledged within a statutory deadline, third parties notified in certain cases where release is proposed, detailed reasons for any refusal must be given, and a right of appeal offered. It is clear that the FOI Act was never envisaged as the sole or main avenue by which information is made available to the clients of a public body, the media or the general public. Indeed, section 6(8) of the Act declares that nothing in the Act is to be construed as prohibiting or restricting a public body from publishing or giving access to a record (including an exempt record) otherwise than under the Act unless this is prohibited by law.

Information about the rules, procedures, practices, guidelines and interpretations used by public bodies must be published in accordance with section 16 of the Act. However, this still leaves an enormous amount of information which is potentially accessible under the FOI Act. Common sense as well as administrative convenience suggests that the public service should strive towards providing as much of this information as possible outside of the FOI Act ( i.e. without the need for a formal FOI request) and that the practices of public bodies may have to change to accommodate this. As the then Minister of State Eithne Fitzgerald put it during the passage of the legislation through the Oireachtas ( see Seanad Debates Vol. 50, Col. 114 ):

" Freedom of information must go with the grain of how public bodies do their day-to-day job and giving information must be built into the way public officials work. If there is a tension between doing the day-to-day job and providing information, it will be difficult to practice freedom of information. It is important to devise systems that ensure that the provision of information goes with the grain of how public business is done. "

Developing a Policy on releasing Information outside FOI

Release outside of the FOI Act can benefit requesters through faster provision of the information; the public body gains through avoiding the need for formal processing. Prior to the implementation of the Act the FOI Central Policy Unit advocated an active approach to the release of information outside of the FOI Act. It recommended that public bodies develop instructions for staff clearly specifying the arrangements governing access to broad classes of non-contentious information outside of the Act (see CPU Notice Number 5, reproduced in Appendix 2).

During the course of the investigation I examined what steps public bodies had taken to reduce the need for formal FOI requests. In doing so I largely disregarded the fact that some public bodies had provided very significant amounts of information in their section 16 manuals since there is a legal obligation to publish this information. Instead, I looked for evidence that the public bodies concerned had developed coherent policies on the release of information outside of the Act or had adjusted their procedures to achieve a greater openness.

Administrative Access

Most public bodies were able to point to some area in which access was now granted to records outside of FOI as a matter of course. The Department of Finance publishes the papers of the Tax Strategy Group on its website as soon as possible after the Minister's budget day speech. The papers are edited but it is clear from a perusal of some of the documents that worthwhile, topical information which gives an insight into the Department's thinking is being released. The Department of Justice, Equality and Law Reform said that reasons for visa refusals are now given administratively and that this has reduced the volume of FOI requests in this area. The Department of Health and Children has undertaken to provide routine access to the minutes and reports of the Forum on Fluoridation. Most public bodies referred to the release of personnel files ( including records created before 21 April 1995, where there may not always be a legal right of access under the FOI Act). Others referred to the release of the results of internal promotion competitions and the release of information to unsuccessful tenderers.

Both the Southern and the former Eastern Health Board had developed detailed administrative access policies in relation to client records - with the latter's policy now adopted by its successor area health boards. The arrangements set out clear guidance as to when and to whom client information may be disclosed administratively and when requesters should be required to make a formal request under the FOI Act.

Other public bodies have not developed similar guidelines although such an approach is advocated in CPU Notice Number 5. In my view such guidelines could be very helpful to the emergence of a culture of openness. They would remove uncertainty about what records the public body releases routinely. They would also serve to reassure more junior officials that the public body was committed to a more open policy and that specified categories of releases made outside of the Act were authorised.

There are other steps which could be taken to increase access outside of the FOI Act. The first is to adopt a proactive policy on releasing deliberative process material or other documents which are likely to be of general interest. One genuine barrier to the release of such material is the need to edit records before release. Sometimes a record may be capable of release but for a relatively small amount of exempt material. The FOI Act deals with this by providing that records may be edited to remove exempt material and the decision on what to edit is made by the FOI decision maker. If records are to be released in a proactive manner then the question of editing will have to be dealt with in each case. It might be argued that it is unnecessary for public bodies to take on such a burden in the absence of a formal FOI request. In practice and, as the experience of the Department of Finance in relation to the release of the Tax Strategy Group papers seems to illustrate, this is unlikely to be a significant burden, particularly if the task is undertaken by the authors of the records or by people who are familiar with their contents. In my view the burden of editing such records in advance is more than compensated for by the early release of worthwhile information which is of general interest.

The uncertainty which can surround the status of information obtained by public bodies from third parties can also inhibit the emergence of a culture of openness. It would help matters if the CPU were to publish further guidelines regarding the release of information obtained from third parties in circumstances which are common to many public bodies e.g. tendering, recruitment/selection references, staff complaints.

Informal procedures

An issue which emerged in the course of the investigation was the degree to which some decision makers may feel bound to go through all the formal procedures of the Act even where this is not necessary from a practical point of view. Two contrasting examples will illustrate the point. Some public bodies stated that access requests for files not containing exempt records would sometimes be met simply by inviting the requester to inspect the relevant file and offering copies of any of the records which the requester wanted. In contrast, in one case noted in the course of the investigation, it took a five page letter to tell a requester that the public body did not accept that there was a right of access but that it was prepared to grant access administratively!

Promotion of Access

A striking feature to emerge during the investigation was the degree to which many public bodies, in practice, appeared to treat FOI as an operational matter which was concerned almost exclusively with the efficient processing of formal requests made under the Act. This may be understandable given the need to process requests efficiently and the desire to ensure that requesters' rights are not denied simply through administrative failures. However, it runs the risk of losing sight of the broader objective which is to increase openness, transparency and accountability. If the Act is to be fully effective then each public body needs to allocate responsibility, at senior management level, to promoting changes in procedures and attitudes which will result in more openness and a greater willingness to release information.

Recommendations

Each public body should develop comprehensive guidelines on access to information outside of the FOI Act.

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.

The Central Policy Unit 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.

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