Chapter 2: Issues Arising

In this chapter I highlight issues which arose during the year concerning the operation of the FOI Act. Some of the issues are operational and relate to my Office, while others are matters which would need to be resolved at Government level, or by the Department of Public Expenditure and Reform.

The issues discussed are:

• Office workload
• Section 32 non-disclosure provisions
• Guidance Notes on access to records of deceased persons
• Garda reports
• Appeals to the Courts

Office workload

Last year, my Office commenced a process of reform, involving a complete review of organisational structures and processes, with the intention of improving case turnaround times and increasing case throughput. As an interim measure, a “triage” process was introduced to effect a more speedy resolution of cases where possible. Some improvement has already been made, with 26% of cases closed within a four-month period in 2013, compared to 19% in 2012. More importantly, the case closure rate of 258 cases for 2013 represents a 29% increase on the 200 cases closed in 2012. There was also a focus on closing the older cases on hand.

Unfortunately, however, demand has also increased with a rise in the number of cases accepted for review in 2013. As a consequence, the number of cases on hand at the end of 2013 remained effectively unchanged. In the coming year, I expect the workload of the Office to increase significantly with the passing of the FOI Bill and the many additional public bodies being brought within the FOI regime.

This growing workload highlights the need for continued reform of my Office and I am happy to report that considerable progress continues to be made on the organisational review. Benchmarking visits to our counterparts in England and in Scotland last year allowed us to examine other processes and systems for efficient decision making. We then completed a full examination of the two stages of our process; (i) from date of receipt of application up to the time when the case is ready for assigning, and (ii) from date of assignment to completion.

I have recently approved a range of amendments to the Office’s review processes. The amendments include improvements to internal processes and new measures to improve engagement between this Office and public bodies. A process of informing public bodies of the proposed changes which will affect them will commence in the near future.

The new processes will include:

• A more rigorous approach to requesting information from public bodies. The general approach taken in England and Wales is that a review by the Commissioner represents the public body’s “last chance to get it right”. A similar approach is also used in Scotland and based on getting it “right first time”. My Office will be adopting a similar approach.
• Guidance documents for OIC staff and public bodies alike will be a necessary accompaniment to the revised processes, and work to produce these and make them freely available is underway at present.

I am confident that when implemented, the changes will allow for a more streamlined review process which should impact positively on case turnaround times. Furthermore, I was pleased that the Department of Public Expenditure and Reform agreed to the allocation of additional staff to my Office. I was a little disappointed with the length of time it has taken to recruit the additional staff, but they are now beginning to take up their posts. The new staff will be of considerable assistance in enabling my Office to provide a more efficient and effective service for those who need it.

Section 32 non-disclosure provisions

Section 32 of the FOI Act provides for the mandatory refusal of access to certain records whose disclosure is prohibited, or whose non-disclosure is authorised, by other enactments. The section subordinates the access provisions of the FOI Act to all non-disclosure provisions in statutes except for those which are cited in the Third Schedule to the FOI Act. The Act provides for the review by the Joint Committee on Finance, Public Expenditure and Reform, every five years, of the operation of any enactments that authorise or require the non-disclosure of records, to determine whether they should be amended or repealed, or be added to the Third Schedule.

In her 2012 Annual Report, the former Commissioner, Emily O’Reilly, reported that the last such review was conducted in 2005 and a further review was, at that stage, several years overdue. In June 2013, she subsequently presented the Third Report of the Information Commissioner to the Joint Committee on Finance, Public Expenditure and Reform.

In her address to the Joint Committee, Ms O’Reilly said:

“I reported, in my Annual Report for 2012, that many new non-disclosure provisions have been introduced since the FOI Act became law in 1997. Indeed, Departments are reporting approximately 230 enactments containing non-disclosure provisions of which approximately 50% became law since 1 January 1998. I noted in my report that this means as many non-disclosure provisions have been introduced since 1997 as were introduced in the preceding 75 years. In my view, this highlights the importance of ensuring that reviews under section 32 are conducted in a timely fashion as required by the FOI Act.”

Given the importance of the section 32 provision, I share the former Commissioner’s view that reviews under section 32 should be conducted in a timely fashion in accordance with the statutory timeframe set out in the FOI Act. While I fully appreciate that her report raised many important issues for the Joint Committee and that thorough consideration of those issues is necessary, I am disappointed to note that the Joint Committee’s report of its deliberations remains outstanding. The FOI Bill presented an excellent opportunity for including any amendments to the Third Schedule as recommended by the Joint Committee. It now appears that any such recommendations will not be published in time to be included in the Bill.

Notwithstanding the delay, it is important that full and detailed consideration is given to the issues raised in the former Commissioner’s report. I fully appreciate her disappointment with the outcome of the previous review, where the Committee supported ministerial decisions in each of the 36 cases where she had recommended change, without offering explanation for their decisions. I am hopeful, in the interests of transparency and accountability, that the next report will take account of these concerns.

Guidance Notes on access to records of deceased persons

During 2013, my Office was called upon to review a decision of the HSE to refuse access to the medical records of the applicant’s late husband (Case no. 100260 – Ms. C and the Health Service Executive). The request was refused under section 26 (information given in confidence) and section 28 (personal information).

Section 28(1) of the FOI Act provides for the mandatory refusal of a request where access would involve the disclosure of personal information (including personal information relating to a deceased individual). However, section 28(6)(b) provides that the Minister for Finance may make regulations for the grant of an FOI request in certain circumstances including where “the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.” Regulations for this purpose were made by the Minister on 23 September 2009 - FOI Act, 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009).

Article 4(1)(b) of the regulations provides, subject to the other provisions of the FOI Act, for the granting of a request for access to records of an individual who is dead to the following classes of requester:

“(i) a personal representative of the individual acting in due course of administration of his or her estate or any person acting with the consent of a personal representative so acting,

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, and

(iii) the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request.”

In the context of article 4(1)(b)(iii) above, the Minister for Finance has published “Guidance Notes on Access to records by parents/guardians / Access to records relating to deceased persons prepared under section 28(6) of the Freedom of Information Act, 1997”.

The guidance notes in question set out to offer guidance as to the types of requester covered by all three categories of requester as set out in article 4(1)(b) and the steps to be taken by a decision maker when considering such requests. However, my Office found that the Guidance Notes published by the Minister have no standing in relation to article 4(1)(b)(i); they fall to be considered only when dealing with the class of requester specified in article 4(1)(b)(iii). It considered that the only test for qualification as a member of a class specified under article 4(1)(b)(i) is that the requester be a personal representative of the individual acting in due course of administration of his or her estate or a person acting with the consent of a personal representative so acting.

As the guidance notes in question were drawn up and published by the Minister pursuant to S.I. No. 387 of 2009, there is no corresponding requirement in the Regulations that public bodies must have regard to those guidelines when dealing with the classes of requester covered by article 4(1)(b)(i) and 4(1)(b)(ii). My Office has brought this matter to the attention of the Central Policy Unit for further consideration.

In the case in question, my Office went on to consider the HSE’s claim for exemption at section 26 of the FOI Act, relating to information obtained in confidence. Section 26(1)(a) provides for mandatory refusal of access to records where the records containing information given to any public body in confidence and on the understanding that it would be treated by it as confidential and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same or other persons and it is important to the body that such further information should continue to be given to the body.

However, section 26(2) provides that section 26(1) is not applicable to a record which is prepared by, among others, a member of the staff of a public body in the course of the performance of his or her functions, unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body, or a person who is providing or provided a service for a public body under a contract for services.

The records at issue in this case were prepared by staff members of the HSE in the performance of their functions from information provided by the applicant’s late husband. Therefore, my Office considered whether release of the records to his personal representative in accordance with Article 4(1)(b)(i) of the section 28(6) Regulations would constitute a breach of a duty of confidence owed by the HSE to the deceased. As section 28(6)(b) of the FOI Act provides for the release of the personal information of deceased persons in certain circumstances, my Office found that, in effect, it provides for what, on the face of it, is a limited breach of privacy and of confidentiality. Section 28(6)(b) and the section 28(6) Regulations provide for a process under which the personal and confidential information of a deceased person will be released to certain specified classes of person and to such classes only.

My Office took the view that to invoke section 26, in relation to personal information which is otherwise releasable by virtue of section 28(6)(b), is at odds with the intent of the FOI Act. Given the express provision in article 4(1)(b)(i) of the Regulations for the granting of access to records of a deceased individual to the personal representative of that individual, my Office considered it untenable to find that such disclosure would be unauthorised or that an authorised disclosure to a specified individual (the personal representative of the deceased) in accordance with a statutory provision could be to the detriment of the deceased. It considered that if it was the case that all clinical records were to be exempt from disclosure on the basis that their release would constitute a breach of confidence, the provisions of article 4 and of section 28(6) would be made redundant. Accordingly, my Office found that release of the records would not give rise to a breach of a duty of confidence and that section 26(1)(a) did not apply. The decision of the HSE to refuse access to the records sought was annulled.

Garda reports

While An Garda Síochána is due to be brought within the FOI regime when the FOI Bill is passed, I am informed that the Act will apply only in relation to its administrative records. Nevertheless, there are many situations where public bodies legitimately hold records created by An Garda Síochána which relate to operational matters and to which the FOI Act provides a right of access unless they are otherwise exempt. I fully accept that there will be occasions where communications between An Garda Síochána and the Department of Justice and Equality should not be released on foot of an FOI request. However, it is not the case that such records will always be exempt from release.

In one such case (Case no. 130176 – Mr CB and the Department of Justice and Equality) my Office found that the Department was not justified in deciding to refuse access to a record held by the Department on the applicant’s immigration file which had been created by An Garda Síochána (a summary of the decision can be found in chapter 3 of this Report). The Department had refused access to the record under section 26(1)(a) of the FOI Act on the ground that it had been provided to the Department in confidence.

Upon conclusion of the review, I wrote to the Secretary General of the Department to express my disappointment at the Department’s ongoing repeated attempts to exempt Garda records as a class without having proper regard to the tests in section 26(1)(a). This is a matter that had been dealt with by my Office on many occasions in past decisions. In my letter, I drew attention to my Office’s approach to the application of Section 26(1)(a) and I urged the Department to revisit its approach in future similar cases. I also offered to meet with the Secretary General if it would be considered useful.

I am pleased to report that the Department has responded positively to my letter. The Department has explained that prior to receipt of my letter, it had commenced a forward-looking review of the entire area of FOI, data management, record keeping and related matters, which is ongoing. It indicated that it is happy to meet with my Office to consider how the difficulties I outlined may be best addressed. I have asked my staff to follow up with the Department on the matter. I am heartened by this positive initiative by the Department to conduct the review in question and I look forward to developing an even closer working relationship with the Department in the years ahead.

Appeals to the Courts

A party to a review, or any other person who is affected by a decision of my Office, may appeal to the High Court on a point of law. Following the amendment of the FOI Act in 2003, a decision of the High Court can be appealed to the Supreme Court.

Five appeals of decisions made by my Office were made to the High Court in 2013, four by the applicant and one by the relevant public body. Of these, one was withdrawn by an applicant during the year and the remaining cases were due for hearing in 2014.

On the face of it, five High Court appeals in one year might not appear significant. However, for a relatively small Office, the amount of resources required, both financial and non-financial, to manage such appeals is significant. Each appeal involves a considerable amount of preparatory work by the staff of my Office, not to mention attendance at Court by those involved, and meetings with legal teams. The resources afforded to such cases obviously result in reductions in the limited resources available to conduct reviews. I am concerned about the significant impact that appeals to the Courts have on the core work of the Office and I intend to explore whether alternative, less costly appeal mechanisms may have a role to play in reducing the impact on the Office’s resources in the future, whilst at the same time respecting the rights of citizens and agencies within remit to appeal my decisions.

No Supreme Court judgments were delivered in 2013.

One High Court judgment was delivered in 2013 in respect of a decision of my Office. The full text of the judgment is available on www.oic.gov.ie. What follows is a summary of the main points in the case.

LK and the Information Commissioner and the Health Service Executive [2013] IEHC 373. Judgment of Ms Justice Iseult O’Malley, 24 July 2013

Background

A mother applied to my Office for a review of a decision of the Health Service Executive to refuse a request for access to a copy of a social worker’s report concerning childcare proceedings and her child. My Office upheld the decision of the HSE to refuse access to the record in question. The woman appealed my decision to the High Court.

Issue

The HSE refused access to the report under section 22(1)(b) of the FOI Act, on the ground that the report related to court proceedings which were held ‘in camera’. Section 22(1)(b) of the FOI Act provides for the mandatory refusal of a request where the record concerned is such that the public body knows or ought reasonably to have known that its disclosure would constitute contempt of Court. The HSE explained that the report, prepared for the Court, arose out of the HSE’s investigation under Section 20 of the Child Care Act 1991, that Court proceedings under the Guardianship of Infants Act 1964 and Child Care Act 1991 are held in camera and thus, the in camera rule applies. The HSE also explained that the District Court had previously made an order that the applicant should not be given a copy of the report.

The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings under the Child Care Act 1991. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. My Office found that the record was captured by the in camera rule and that the record was exempt from release under section 22(1)(b) of the FOI Act. The applicant appealed that decision to the High Court.

Conclusion of the Court

The Court held that my Office was bound by section 22(1)(b) to refuse disclosure if it considered that disclosure would constitute contempt of Court. It held that my Office has no authority to disregard either the statutory provisions relating to the in camera nature of the child care proceedings or the Court order made in the case.

As O’Malley J. explained,

“It is no part of his powers to decide that the order was wrong, or that the appellant’s right to a copy of the report under s.27 of the Child Care Act should prevail over such an order. Neither the status of the appellant as a party to the District Court proceedings nor the purpose for which she wishes to use the report are relevant to his powers in this respect.”

Having regard to the in camera nature of the District Court proceedings and to the express order of the District Judge in relation to the report, the Court found that my Office had no option but to refuse disclosure.

The decision of my Office (Case no 120002, Ms X and the Health Service Executive) can be viewed at www.oic.ie/decisions.