Download PDFChapter 1: The year in review
Table of Contents
- Your right to information
- Introduction
- Appointment as new Commissioner
- Freedom of Information Bill 2013
- Notices issued to public bodies under Section 37
- Key FOI statistics for the year
- Office of the Information Commissioner (OIC) caseload
- Statutory Certificates issued by Ministers and Secretaries General
- Staffing matters
The Freedom of Information Act, 1997 as amended by the FOI (Amendment) Act, 2003 (the FOI Act) gives people a right of access to records held by Government Departments, the Health Service Executive, Local Authorities and many other public bodies. It also gives people the right to have personal information about them held by these public bodies corrected or updated and gives people the right to be given reasons for decisions taken by public bodies, where those decisions expressly affect them.
The European Communities (Access to Information on the Environment) Regulations 2007 to 2011 provide an additional means of access for people who want environmental information. The Regulations cover more organisations than the FOI Act. The Department of the Environment, Community and Local Government has published a set of Guidance Notes which are available on the website of the Commissioner for Environmental Information at www.ocei.gov.ie.
These two functions are legally independent of one another, as are my roles of Information Commissioner and Commissioner for Environmental Information.
I am pleased to present my first Annual Report as Information Commissioner, which covers the period from 1 January 2013 to 31 December 2013. In Part II of this Report, as in previous years, I report on my work as Commissioner for Environmental Information.
As I took up office only in December 2013, it must be acknowledged that this Report principally reflects the work undertaken by the Office under the able stewardship of my predecessor, Emily O’Reilly. The year was notable for Emily’s tremendous achievement in being elected by the European Parliament to the role of European Ombudsman.
I would like to pay tribute to Emily and to acknowledge her significant contribution to the work of the Office. Prior to her initial appointment as Ombudsman and Information Commissioner in June 2003, Emily was an accomplished journalist and author whose roles included many years as a political correspondent with prominent print and broadcasting media. As Information Commissioner, she was also appointed Ireland’s first Commissioner for Environmental Information in 2007. Later, Emily oversaw the merger of the Commission for Public Service Appointments with her Office.
Like her predecessor, the late Kevin Murphy, Emily was called upon to decide upon the release of records in thousands of individual cases over the years. Her decisions have provided guidance on matters which are frequently complex such as the law of confidence, privacy rights and issues relating to state security. In particular she made many important decisions on the release of records in the public interest.
In one of her earlier decisions, in 2004, Emily directed the release of nursing home inspection reports in the public interest. Such reports are now published as a matter of course. In 2011, she directed the release of the names of judges where representations had been made to the Minister for Justice and Equality by political representatives on their behalf as lawyers seeking judicial appointment.
Public bodies have often changed working practices following Emily’s decisions. Many public bodies now publish, as a matter of course, information which would previously have been unavailable, or would have required an FOI request to acquire it. It is clear to me that Emily played no small role in effecting such significant changes in attitudes to freedom of information in Ireland.
Emily’s strong reputation at home and abroad was reflected in her appointment as European Ombudsman last year. Just as in her roles as Information Commissioner and Ombudsman in Ireland, I know that Emily will bring to her new role those qualities of professionalism, thoroughness and tenacity which stood her well in the preceding years. I wish Emily every success in her new position as European Ombudsman.
I intend to build on her legacy and that of her predecessor and I welcome, in particular, the significant new areas of work to be undertaken by my Office arising from the proposed amendment of the FOI Act and its extension to a range of additional public bodies. While the expected additional demand is set to increase the pressure on the already stretched resources available to my Office, I look forward to the challenge of maximising the use of all available resources to meet that expected additional demand and to address the unacceptable delays which, unfortunately, face many who currently use the services of the Office. On this point, I welcome the recent decision of the Department of Public Expenditure and Reform to allocate additional staff resources to my Office in advance of the passing of the FOI Bill.
While I will discuss the FOI Amendment Bill in more detail later in this Chapter, I believe it appropriate to draw attention here to the important role which the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform has to play, in my view, in promoting FOI generally and in supporting those new bodies due to come within remit. I understand that the CPU has faced its own significant challenges in recent years in terms of reduced resources. However, I believe it to be a key player in ensuring the successful introduction of the new Bill and in helping all public bodies to fully embrace the principles of promoting greater openness, transparency and accountability which the FOI legislation is intended to achieve.
I welcome the Government commitment to the development of a code of practice for FOI aimed at ensuring that the obligations of public bodies under FOI are discharged to a high standard. I am aware that CPU has already undertaken significant steps in the development of the code and I look forward to its publication. However, the publication of the code of itself is not the end of the matter. It must be complemented by an adequately resourced, effective and readily available support service, particularly for those bodies coming within remit for the first time. While my Office fully intends to work with those bodies in preparation for meeting their new FOI obligations, I believe CPU has a critical role to play in offering ongoing support in the implementation of the new code of practice.
Finally, I look forward to working with all bodies subject to FOI, both current and those to whom a duty will be extended, to improve access to information for the people of Ireland. Minister Howlin has set out his agenda for Open Government and signalled Ireland’s commitment to it by joining the Open Government Partnership. I want to ensure that my Office plays its part fully in the further development of openness and transparency in our public life.
Peter Tyndall
Information Commissioner &
Commissioner for Environmental Information
Appointment as new Commissioner
Appointment of new Information Commissioner and
Commissioner for Environmental Information
It was a great honour to be appointed by President Michael D. Higgins at a ceremony at Áras an Uachtaráin on 2 December 2013. The Minister for Public Expenditure and Reform, Brendan Howlin TD, also attended and welcomed my formal appointment as Ombudsman, Information Commissioner and Commissioner for Environmental Information.
Information Commissioner and Commissioner for Environmental Information, Peter Tyndall pictured at his appointment at Áras an Uachtaráin with President Michael D. Higgins and Minister for Public Expenditure and Reform, Brendan Howlin.
Freedom of Information Bill 2013
In her Annual Report for 2010, Emily O’Reilly welcomed the commitments relating to freedom of information contained in the Programme for Government, Government for National Recovery 2011-2016, which stated:
“We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions. We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered.”
Although the length of time taken to pass the Bill has been disappointing, I am confident that the Bill will be enacted this year and that the additional public bodies will be, finally, subject to the FOI regime.
I would also like to take this opportunity to acknowledge the positive way in which the Government Reform Unit has engaged with my Office on the Bill and on the development of a code of practice for FOI. My Office took the opportunity to make extensive recommendations for change arising from its practical experience of the operation of the FOI legislation, the majority of which have been incorporated into the FOI Bill. My Office also contributed extensively to the review of the operation of the FOI Act which was undertaken by the Government Reform Unit. It was represented on both the internal and external review groups established to help undertake the review, with a view to developing the code of practice.
The purpose of the code of practice will be to ensure that the obligations of public bodies under FOI are discharged to a high standard. As I stated in my introduction, the code must, in my view, be complemented by an adequately resourced, effective and readily available support service, particularly for those bodies coming within remit for the first time, and I believe the Department’s Central Policy Unit (CPU) has a critical role to play in offering ongoing support in the implementation of the new code. Indeed, I understand that the code itself will recognise the importance of the leadership role which CPU must play in supporting the achievement of the objectives of FOI. I am hopeful that the CPU will be adequately resourced to allow it to fulfil that critical role.
Notices issued to public bodies under Section 37
In previous Annual Reports, matters concerning statutory notices were considered at a later stage in the Report. However, this year, I have decided to give more prominence to an issue related to compliance.
Under the headings ‘Compliance of public bodies’ and ‘Statutory notices’, last year’s Annual Report highlighted a number of instances where certain public bodies questioned their obligation under section 37 of the FOI Act. Section 37 requires a public body to furnish my Office with any information which is deemed relevant for the purposes of a review.
My Office may contact the relevant public body at any stage in a review and may request copies of records. If a body fails to provide the records by a given date, my Office generally initiates further contacts in an attempt to obtain the records sought. There have been occasions in the past when public bodies failed to provide records despite several requests. In some extreme cases months have passed by without any positive response from the public body concerned. The non-response by a public body inevitably gives rise to my Office issuing a letter, addressed to the head of the body concerned. This ‘Section 37 notice’ informs the head of the body that my Office has sought access to records and provides a chronology of letters and communications issued by my Office. The section 37 notice requires the Head to furnish my Office with a copy of the information requested without further delay.
In previous years, my predecessors have recorded no more than three section 37 notices issued to public bodies in any one year. However, I was somewhat surprised to note that in 2013, my Office issued eleven section 37 notices, albeit to just five public bodies. Even more surprising is that three of those bodies were each issued with two section 37 notices in connection with a single review. It is disappointing to record that two of those public bodies were also mentioned in the Annual Report 2012.
The bodies in receipt of section 37 notices included the National Maternity Hospital (five notices), the Irish Greyhound Board (two), Cork County Council (two), the Department of Finance (one), and University College Dublin (one).
The five section 37 notices issued to the National Maternity Hospital concerned four reviews. For three of those reviews it took between three and four months for the records to be submitted to my Office. In one review, my Office issued two separate notices to the Hospital in an effort to obtain records and subsequently, a response to certain questions related to the review. In the review in question, it took almost five months for my Office to receive all of the information required to allow the review to proceed.
Two section 37 notices issued to the Irish Greyhound Board in connection with a single review. For this review, it took six months before my Office received the required information. In the case of Cork County Council, two separate notices issued to the Council for two sets of records associated with a single review. It took a total of six months for the records to arrive in my Office, three months for each set. One section 37 notice issued to the Department of Finance and it took four months from the time the information was requested by my Office to the time it was received.
In each of these cases, I am mindful of the effect that delays have on the person who applies to my Office for a review. Consequently, the final example concerning a section 37 notice is, I believe, the most frustrating. In April 2013, my Office requested from University College Dublin (UCD) copies of the records typically associated with an FOI request made by a person to a public body. These “decision making records” are essential in helping my Office determine the validity of a request for review. Such records are usually received in my Office within five working days of the request being made to the body. My Office ultimately issued a section 37 notice to UCD and in late June 2013, two months after the application for review had been made, a reply was eventually received. The irony is that the reply by UCD confirmed that the review could not be accepted by my Office, as the requester had not actually made a valid FOI request to the College in the first instance. Such delays are, in my view, inexcusable.
I regard the failure of public bodies to respond in a timely fashion to requests for information by my Office as an unacceptable delay to the review process. The FOI Act provides that I shall, in so far as practicable, make a decision within four months of receipt of an application for review. The length of time taken to deal with each application depends on a number of factors such as the number of cases on hand, the complexity of the issues involved, and the volume of records at issue. It is unacceptable that delays by public bodies in responding to what are generally straightforward requests can often add considerably to case processing times.
However, I am pleased to be in a position to conclude this point on a more positive note. During 2013, staff of my Office met with officials from the Department of Finance, the Irish Greyhound Board and the National Maternity Hospital to discuss the delays which arose in the cases in question and other general issues concerning the processing of FOI requests by those bodies. Indeed, the Department of Finance had taken the initiative of requesting such a meeting with my Office. In all three cases, the bodies concerned outlined proactive measures which had been taken to ensure that potential delays will be highlighted and addressed at the earliest opportunity. I strongly welcome the efforts taken by the bodies to resolve the matter of delays.
Key FOI statistics for the year
Number of FOI requests to public bodies 2004-2013
Certain FOI statistics traditionally collated by a Government Department were not available for inclusion in the 2012 Annual Report of the Information Commissioner. However, the statistics were eventually completed and forwarded to my Office for publication in late 2013. Key FOI statistics for 2012 are available on the OIC website at www.oic.gov.ie. I wish to acknowledge the efforts made by the Department of Public Expenditure and Reform to ensure that statistics for 2013 have been made available to my Office.
The number of requests made to public bodies in 2013 was 18,985 and is similar to the total for 2012 (18,953).
The number of requests on hand by public bodies at end-December 2013 was 3,232. This represents a near 30% increase in the number of cases on hand in 2013, over the 2012 total of 2,493. I am concerned that this increase may reflect a downturn in performance in responding to requests caused by insufficient priority being given to them. I will continue to monitor performance carefully.
Sectoral breakdown of FOI requests to public bodies
The charts in this section of my Report can be viewed in association with the tables of statistics in Chapter 4 and tables associated with previous Annual Reports, available on the website at www.oic.gov.ie.
As in other years, the Health Service Executive was the recipient of the largest number of FOI requests. FOI requests made to the HSE have increased at a rate of roughly 2% per year over the last four years. In 2010, the HSE received 35% of the total number of requests made to all public bodies. In 2013, the figure, as can be seen above, was 41%.
It is worth mentioning the number of FOI requests made to the Department of Social Protection over the same period of time. In 2010, the number of FOI requests made to the Department accounted for 5.6% of all FOI requests made to public bodies in the year. For 2013, this figure has increased to 11.2%. It is also notable that the number of FOI requests made to the Department has increased by 150% (from 859 to 2,148) over that four year period.
This increase is reflected somewhat in the number of applications for review concerning the Department of Social Protection which were accepted by my Office between 2010 and 2013. The figures of my Office show that in 2010, reviews accepted by my Office concerning the Department accounted for 2.7% of all reviews accepted in that year; whereas in 2013 the figure increased to 4.2%.
While I have no specific evidence supporting the reasons for such an increase, I believe it reasonable to conclude that the increase is directly related to the increase in the number of persons in need of social welfare services as a result of the severe economic climate.
Top ten bodies who received most requests during 2013
*figures are an amendment to those originally published in this Report.
As seen in the table above, the HSE and hospitals account for seven of the top ten public bodies in receipt of FOI requests in 2013.
Type of requester to public bodies
The proportion of requests from different types of requester is similar to other years. However, in 2010, requests from journalists accounted for 14% of all requests made, while the figure for 2013 has fallen to 10%. The 2013 percentage figure is identical to that for 2011.
Type of request to public bodies
I note a reduction in the percentage rate of non-personal FOI requests made to public bodies. In 2012, the rate was 26.2%, whereas in 2013 the rate was 21%; the lowest in four years. The rates for 2010 and 2011 were 29% and 23.3%, respectively.
Again, while I am not in a position to comment authoritatively on any reason for the reduction, it is possible, in these straitened times, that the fees attaching to requests and reviews relating to records of a non-personal nature have a part to play. In this regard, I am pleased to note that a significant reduction in the levels of fees applying to requests for internal review and for review by my Office is proposed in the Freedom of Information Bill.
Release rates by public bodies
A detailed breakdown of release rates in each sector is contained in table 5, chapter 4. Release rates have remained fairly static over the past four years but I note that the percentage of requests where access to records was granted in full has increased from 60% in 2010 to 65% in 2013.
Civil Service Departments and Local Authority sectors are below average in granting access to records at 48% and 52% respectively but are above average in part-granting access. However, the 48% release rate for Civil Service Departments represents an increase on the 2012 rate of 42%. The Local Authority release rate remains unchanged.
The HSE, Voluntary Hospitals, Mental Health Services regulators and related Agencies are above average in granting access to records and below the average for refusing access. This may be due in part to the nature of the requests received, insofar as most requests made to the healthcare sectors are for access to records which are of a personal nature. Tables 8 and 9, chapter 4 (representing the healthcare sectors) show that requests for access to records of a personal nature represent 94% of the total received in 2013.
Office of the Information Commissioner (OIC) caseload
A requester who is not satisfied with a decision of the public body on an FOI request may apply to my Office for a review of that decision. The decision which follows my review is legally binding and can be appealed to the High Court only on a point of law.
Applications to OIC 2011-2013
The number of applications made to my Office in 2013 was similar to 2012. However, the number of applications accepted for review during the year has increased by 10%.
It is worth noting that the total number of applications accepted for review by my Office in a year has increased by almost 50% since 2011. This has created an additional burden on the Office’s resources.
The difference between the number of applications received and accepted by my Office is mainly due to a number of those applications being invalid, or withdrawn by the applicant at an early stage.
Subject matter of review applications accepted by OIC
As in previous years, the vast majority of applications accepted by my Office in 2013 concerned the refusal by public bodies to grant access to some, or all, of the records requested.
Applications accepted by OIC by type 2011 – 2013
Outcome of reviews by OIC in 2013
In 2013, my Office reviewed decisions of public bodies in 258 cases. This represents an increase of 29% over the 2012 figure of 200. At the end of December 2013, my Office had 205 cases on hand, an increase of just three cases on the number on hand at the end of 2012.
Settlements and withdrawals
The combined percentage of cases that were settled, withdrawn, or discontinued during the year is 42%. The figure for 2012 was 48%.
Applications that are settled, withdrawn or discontinued may follow discussions between the applicant, the public body and staff from my Office. Withdrawals often follow as a result of the intervention of my Office and a more detailed explanation of a decision being given to the applicant by the public body concerned. I would add that while the focus for the year is mainly on decisions made by my Office, a considerable amount of work is involved in achieving outcomes such as withdrawals or settlements: Staff of my Office will, in many cases, liaise with the public body and/or the requester, sometimes over a considerable period of time, in an effort to effect a mutually acceptable outcome.
Settlements usually arise as a result of the public body releasing additional information during the course of a review.
Age profile of cases closed by OIC
This table provides information on how long it took for a review to be completed by my Office. The percentage rate of case closure within the four-month period provided for in the FOI Act has increased to 26% in 2013 from 19% in 2012. I comment more on this in Chapter 2 of my Report.
Age profile of cases on hand in OIC at end 2013
At the end of 2013, there were 72 cases on hand which are more than 1 year old. However, following a review of my Office’s organisational structures and processes, a specific initiative has recently been introduced, aimed at prioritising the completion of older cases. Consequently, by the end of 2014, I anticipate a substantial reduction in the number of active cases that are more than one year old.
Breakdown by public body of applications for review accepted by OIC
The above diagram shows a breakdown by public body of cases which were accepted for review by my Office in 2013. Previous Reports noted a decrease in HSE cases accepted. That trend continued in 2013 with the HSE cases representing 21% of all cases accepted for review, compared to 29% in 2012 and 34% in 2011. ‘Other bodies’ account for 45% of all applications for review accepted in 2013 and is similar to previous years.
Breakdown of HSE cases accepted by OIC
Deemed refusals
The FOI Act imposes statutory time limits on public bodies for the various stages of an FOI request. Specifically, a decision on an original request should issue within four weeks and, in the event of an application for internal review, a decision following receipt of that application should issue within three weeks. A breach of these time limits, whether by means of no decision at the original request stage, or a late decision at internal review stage, results in the requester having the right to regard a decision as a ‘deemed refusal’ of access. Following a deemed refusal at internal review stage, a requester is entitled to apply for a review to my Office.
Deemed refusals (at both stages) 2009 – 2013
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Deemed refusals by body 2013
The above graph and chart show the number of deemed refusals which occurred at both stages of applicants’ FOI requests.
The Annual Report for 2012 referred to figures about deemed refusals by public bodies at the first (original request) and second (internal review) stages of the FOI request. For this year’s report, I believe it would be useful to provide a visual reference to the refusals by public bodies at those stages.
Deemed refusals at 1st stage
Of the 260 applications for review accepted by my Office in 2013, 29% were deemed refused by the public body at the first stage of the applicant’s FOI request. Where a deemed refusal occurs at this first stage, the requester is entitled to write to the public body concerned and request an internal review.
Deemed refusals at 2nd stage
The figure for deemed refusals at the second stage is almost 30%. It is worth noting that in a situation where a request for access to records of a non-personal nature is deemed refused at the second ‘internal review’ stage, the requester has a right to contact my Office for assistance. In addition, in this situation, the requester is not obliged to pay a fee to my Office.
General enquiries to OIC
The number of general enquiries made to my Office in 2013 was similar to 2012.
Fees received by OIC
During 2013, my Office received 113 applications for review where a fee was paid. The total amount received in application fees by my Office in 2013 was €13,975. A total of €7,400 was refunded to applicants for the following reasons:
- €5,100, because the applications in question were either rejected as invalid, withdrawn or settled;
- €2,050, because the public body had not issued an internal review decision within the time limit and was therefore of ‘deemed refusal’ status (section 41 of the FOI Act refers);
- €250 was refunded to applicants because of situations either where decisions were annulled, or a fee was not due.
Statutory Certificates issued by Ministers and Secretaries General
The FOI (Amendment) Act of 2003 introduced provisions whereby certain records could be removed from the scope of the FOI Act by means of certification by a Minister, or by a Secretary General of a Department. The relevant provisions are contained in sections 19, 20 and 25 of the FOI Act and also provide that a report specifying the number of such certificates issued must be forwarded to my Office.
Section 19
Section 19 is a mandatory exemption which provides protection for records relating to the Government or Cabinet. The definition of Government was amended by the 2003 Act to include a committee of officials appointed by the Government to report directly to it and certified as such by the written certification of the Secretary General to the Government. I have been informed by the Secretary General to the Government that no section 19 certificates were issued by him in 2013.
Section 20
Section 20 of the FOI Act is a discretionary exemption which may protect certain records relating to the deliberative process of a public body. In the case of a Department of State, the Secretary General may issue written certification to the effect that a particular record contains matter relating to the deliberative process of that Department. Where such a certificate is issued, the record specified cannot be released under the FOI Act. In effect, the exemption becomes mandatory. Any such certificate is revoked in due course by the issue of written certification by the Secretary General.
Having consulted with each Secretary General, my Office has been informed that no new section 20 certificates were issued during 2013.
A certificate under section 20 was issued by the Secretary General of the Department of Defence in March 2009 and was renewed in March 2011. I am informed by the Secretary General that the certificate is currently under review by the Department. A copy of the notification is attached at Appendix I.
Section 25
Where a Minister of the Government is satisfied that a record is an exempt record, either by virtue of section 23 (law enforcement and public safety), or section 24 (security, defence and international relations) and the record is of sufficient sensitivity or seriousness to justify doing so, that Minister, by issuing a certificate under section 25(1), may declare the record to be exempt from the application of the FOI Act.
Each year, the Minister(s) in question must provide my Office with a report on the number of certificates issued and the provisions of section 23 or section 24 of the FOI Act which applied to the exempt record(s). I must append a copy of any such report to my Annual Report for the year in question.
Having consulted with each Secretary General, my Office has been notified of the following certificates issued under Section 25 of the Freedom of Information Acts, 1997 and 2003.
Six section 25 certificates were in place concerning the Department of Justice and Equality at 31 December 2013, three of which were renewed by the Minister in 2013. A copy of the notification from the Secretary General is attached at Appendix I to this Report. Three certificates will fall for review under section 25(7) of the FOI Act in 2015.
Three new certificates were issued by the Minister for Foreign Affairs and Trade in 2013. These certificates will fall for review under section 25(7) of the FOI Act in 2015. A copy of the notification from the Secretary General is attached at Appendix I to this Report.
I was notified by letter dated 15 January 2014 that, pursuant to section 25(7) of the FOI Act, the Taoiseach, the Minister for Public Expenditure and Reform and the Minister for Jobs, Enterprise and Innovation, having reviewed the 12 certificates that were in operation for the period ended October 2013, were satisfied that it was not necessary to request the revocation of any of the 12 certificates in question. Of the twelve certificates reviewed, six were issued by the Minister for Foreign Affairs and Trade and six by the Minister for Justice and Equality. I attach a copy of the notification at Appendix |I to this Report.
2013 was a demanding but productive year for OIC and CEI staff. I have been very impressed by the commitment of staff to developing the service to be effective and efficient. I am also impressed by the professionalism and dedication to public service of my staff. I want to take this opportunity to thank them for their hard work during the year. My thanks also to Stephen Rafferty, Senior Investigator, and to Melanie Campbell and Edmund McDaid for their assistance in compiling this Report.
I want to offer a special thank you to the staff of all the Offices for their generous welcomes and warm wishes to me when I arrived in December. I also want to thank the Director General, Bernadette McNally, and the senior staff of the Management Advisory Committee, for their patience, advice and generosity of time in helping me to settle in. I look forward to working with the staff in the coming years.
