Committee Reports > List of Committees > Joint > 2003 > Committee on Finance and the Public Service > Final Report - Hearings relating to the High Level Review Group on the Freedom of Information Act 1997

Appendix II

Amendments to Improve the Operation the FOI Act

Long Title

•In order to remove any confusion as to whether the right of access is confined to natural persons, it is suggested that the reference to “members of the public” (in line 1) should be changed to “persons”.

Section 2 (Interpretation)

•It is felt that a definition of “person”, in line with the Interpretation Act, 1937 should be incorporated into this section of the Act but without the reference to “contrary intention”.

The definition might read;

“Person. The word “person” shall, unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual;”

•It is suggested that an amendment is necessary in order to deal with the confusion arising from the comments of Finnegan J. in the Rogers judgement when he held that the creation of copies of records by the DPP for inclusion in the Book of Evidence was the creation of a record by the DPP. There are wider implications of this, for example, the making of a copy of a pre-commencement record after the commencement date could be regarded as amounting to the creation of a post commencement record. It is not believed that this was what the Oireachtas intended and accordingly it is proposed that the definition of “record” should provide that a copy of a record is not, for the purposes of the FOI Act, to be construed as separate and distinct from the original record (except where the copy has had material added e.g. in the from of an annotation). Alternatively, it may be considered more appropriate to deal with this issue under section 6(5) by deeming that any copy taken of a pre-commencement record does not amount to a post-commencement record and/or perhaps under section 22(1) by providing that any copies taken of existing records, for the purposes of legal proceedings/advice, are to be considered as records in their own right.

•Section 29 deals with instances where an existing exemption is overruled by the relevant public interest test within that exemption; section 28(5) has two separate provisions and only one of them, at (a), has to do with the public interest. Accordingly, an amendment is suggested whereby the definition of a “request to which section 29 applies” should read “section 28(5)(a)” rather than “section 28(5)”.

Section 3

•If it cannot be achieved through regulation, it is suggested that section 3 should be altered with the insertion of the following key requirements;

(a) an obligation on the Minister for Finance to collect, collate and publish (within two months of the end of each calender) relevant statistics in relation to FOI usage in the relevant year, and

(b) an obligation on public bodies to provide the Minister with such statistics, and in such manner (including timescale) as the Minister determines, in relation to FOI usage in the relevant year.

Section 4(5)

•It appears that this provision is not being observed and is a burden on public bodies. As the provision has no obvious value and could be used to highlight non-compliance on the part of public bodies, it is suggested that it should be removed from the Act.

Section 12(2)(b)(ii)

•A strict interpretation of this provision suggests that virtually every written communication (apart from copyright owned by the State, the Government or the public body concerned), is subject to copyright and therefore, in principle, all kinds of very ordinary records might not be capable of being made available by way of copy. It is suggested that this section should be amended to limit the reference to infringement of copyright to one where infringement would, in the opinion of the head, be likely to result in financial loss to, or other significant impairment of the rights of, the copyright holder. This proposed amendment would presumably require consultation with the Department of Enterprise, Trade and Employment.

Section 15

•It is suggested that a provision might be inserted to the effect that the requirement to publish a section 15 manual is satisfied where the manual is published electronically (e.g. on the public body’s website or by provision of a CD) provided that a request for a print-out of the manual, in whole or in part, is met.

•Section 15(4) is now redundant and was never a practical proposition and therefore it is proposed that this provision should be removed from the Act.

•Section 15(7) is somewhat confusing in that it provides for a section 15 manual being available “for removal free of charge…” whilst also stating that in certain circumstances it may be available “for purchase”. It is suggested that the manual should be available free of charge in all circumstances.

Section 16

•Similar to section 15 above, it is suggested that a provision might be inserted to the effect that the requirement to publish a section 16 manual is satisfied where the manual is published electronically (e.g. on the public body’s website) provided that a request for a print-out of the manual, in whole or in part, is met. Furthermore, where the manual is published electronically, with no full paper version published, public bodies should be required to publish electronically with a print-out, if requested, a document which describes the range of material in the manual and offers to provide paper copies of the contents (or those parts of interest) to any person.

Section 17

•It is suggested that consideration might be given to extending the scope of this section to include the amendment of records relating to personal information whose release is provided for outside of the Act, as per section 46(2). It is considered somewhat incongruous that, by virtue of section 46(2), a requester cannot succeed in having a record amended which contains incomplete, incorrect or misleading personal information which is available to be inspected by members of the public. Where a record is only available to members of staff of the public body, s/he can seek to amend it although far greater damage could be caused to the requester in the case where the record is available for inspection by members of the public. Consideration might also be given to extending this principle to section 18.

Section 18

•It is recommended that this section should clarify that the right of access to information regarding acts of public bodies applies only in respect of “acts” taken since the commencement of the FOI Act although the head may decide to extent this right of access in certain circumstances. Furthermore, it is also suggested that applications under this provision must be made within twelve months of the applicant becoming aware of the “act” that affects him/her unless there are particular circumstances that, in the opinion of the head, justify an extension of this period.

Section 17 and 18

•Neither of these sections provides for a parent, guardian or the next of kin to be entitled to act on behalf of a minor, intellectually disabled person or a deceased person in the same way as section 28(6) provides for regulations to be made enabling parents/guardians to gain access to records. It is suggested that an amendment might be considered to provide for a similar approach to sections 17 and 18 as already exists in respect of access to records.

Section 22(1)(b)

•Having regard to the decision of O’Neill J. in the recent case of EH and the Information Commissioner, it is suggested that this section should be amended to reflect the fact that release of records is not prohibited in cases where records have been the subject of an order of discovery and where there has not been an express undertaking to the court in relation to those records nor has the court made a specific order in relation to them.

Section 23(1)(c)

•It is suggested that the term “or make more likely” should be added to this provision after the word “facilitate”.

Section 26

•In order to deal with, amongst other things, instances in which public bodies have used confidentiality clauses in contracts or settlements and where this might have been done to avoid release under the FOI Act, it is suggested that the public interest test in section 26(3) should be extended to paragraphs (a) and (b) of section 26(1).

Section 29

•Section 29 deals with instances where an existing exemption is overruled by the relevant public interest test within that exemption. However, as section 28(5) has two separate provisions and only one of them, at (a), has to do with the public interest, it is recommended that all references to section 28(5) should be amended to read section 28(5)(a). This proposed change mirrors the amendment proposed at section 2 re. Interpretation.

•Section 29 provides that a public body must notify third parties of an FOI request where it considers that the request is one to which section 26 (3), 27(3) or 28(5) applies but falls to be granted in the public interest. The situation is complex where only some of the records coming within the scope of the request are subject to the notification process and it is suggested that the situation be clarified in the amending legislation. It is the view of this Office that a review by the Commissioner of a decision under section 34(1)(f) related only to those records, or parts of records, to which section 26(3), or 27(3) applies, or to which 28(5) applies, and which apart from section 29 would fall to be granted. The decision on any other records or parts of records in the same request is not a decision on a request to which section 29 applies and an appeal of the decision on those records or parts of records should, therefore, be by way of internal review. One possible implication of an alternative interpretation, which says that a decision/request cannot be split in such a manner, is that the Commissioner could review the decision on records which were not the subject of an appeal by any party. It would seem that the most practical resolution would be that the Act should be amended to confirm that the splitting of a decision, as outlined above, is appropriate.

•The FOI Act does not envisage that a formal section 29 notification process can take place at internal review. While this Office accepts that a decision on a request to which section 29 applies may be made on internal review in certain circumstances (page 33 of this Office’s Section 16 manual refers), it is the view of this Office that the Act should be amended to specifically provide for a formal section 29 process at internal review and to allow for an appeal by a third party against a decision to release records affecting their interests where appropriate.

•The following two options might also be considered in an effort to bring greater clarity to this section:

1.Consideration might be given to amending Section 29 to bring it into line with other provisions of the Act whereby it would provide for an internal review in all cases where the requester or third party (parties) is unhappy with the original decision of the public body. Only after internal review would the decision be appealed to this Office. This proposed change would have the effect of removing much of the confusion surrounding this section particularly in cases where the application has to be split.

2.Alternatively, consideration might be given to providing that a direct appeal to this Office (i.e. without internal review) would only be permitted in cases where the original decision is to release the record(s) in question. If the original decision is to withhold, then the internal review procedure should apply.

Section 32

•Further to the amendment proposed at section 12(2)(b)(ii) above, it is suggested that the current copyright legislation should be consulted in regard to whether its provisions contain anything that amounts to a prohibition on disclosure. It is our understanding that copyright law does not provide for a prohibition on disclosure but does limit (in the absence of the consent of the copyright holder) the manner in which disclosure may be made. However, if there is a prohibition on disclosure within the copyright law, perhaps it may be possible to use the Third Schedule to mitigate the extent of that prohibition in the FOI context.

•Notwithstanding the fact that the Minister for Finance has previously made amending regulations in this area, it is suggested that an additional provision should be added to section 32(3) providing a right to make regulations allowing legislation to be added to the Third Schedule of the Act. This right should not extend to permitting the removal of legislation but in allowing the addition of same, it would facilitate the inclusion of, for example, the Food Safety legislation on to the Schedule.

Section 33(4) and (5)

•These provisions impose a bar on the Commissioner holding any other office which attracts emoluments (Rule 4 of the Second Schedule). There is an equivalent provision in relation to the Ombudsman at Section 2(6) of the Ombudsman Act. Where the same person holds the two offices, the effect of section 33(4) and (5) seems to be that neither of these restrictions applies. In effect, a person who simultaneously holds the Ombudsman and Information Commissioner offices seems not to be barred from holding an additional (third) Office for which emoluments are payable, whilst a person who holds only one of the two offices is barred from holding even a second office for which emoluments are payable.

Section 34(3)

•Section 34(3)(b) provides that the Commissioner shall make a decision on a review, as far as practicable, not later than three months after receipt of the application. In light of the experience of this Office, it is suggested that consideration might be given to extending this period for completion of a review to four months.

Section 34(5)

•This provision currently requires that withdrawal of a review application must be done in writing. However, many applicants are slow to write to this Office confirming a withdrawal of their application. It is therefore suggested that this provision should be amended to allow a withdrawal to be done orally with the Commissioner confirming this in writing to the applicant and also informing the public body that this has happened.

Section 34(9)

•In light of the experience of this Office, it is proposed that the following additional grounds for the Commissioner to discontinue a review should be added to this provision;

- where the applicant fails to provide the Commissioner with sufficient information or otherwise fails to co-operate with the Commissioner in the conduct of a review, and

- where, in the course of the review, access to the records in question has been granted by the public body and where the Commissioner is satisfied that there is no longer any issue requiring adjudication by his Office.

Section 37(7)

•It is proposed that the maximum fine for failing or refusing to comply with a requiremen or for hindering or obstructing the Commissioner should be increased to EURO 10,000 and/or six months imprisonment.

Section 42(4)

•This section provides that the time limit for appealing a decision of the Commissioner to the High Court is four weeks. There is however an anomaly whereby, in certain circumstances, a requester who is being granted partial access to records will not receive those records until after the time for a High Court appeal has expired; in such circumstances, the requester will not know whether he or she is satisfied with the Commissioner’s decision until after the time for the making of an appeal has expired. This situation may arise where a third party, other than the requester, has an interest in the release of the records and, because of the operation of section 44, there is a stay on the implementation of the Commissioner’s decision. This stay is to protect the rights of the third party. However, an unintended consequence is that the requester cannot be given the records until after the appeal period has expired. This Office has had one instance of a High Court appeal made “on the blind” in such circumstances. Accordingly, an amendment to section 42(2) is suggested whereby the time for an appeal in such cases might be extended by two weeks following the actual release of the records.

Section 43(3)

•An amendment to this section is suggested in order to provide that the Commissioner is governed by a provision similar to section 8(5) which provides that a public body may withhold in a decision material which, were it to be included in a record would be exempt material whereas section 43(3) deals only with material actually contained in an exempt record. The relevance of this is that section 8(5) might form the basis for an approach under which, in a case involving a risk to personal safety, the full grounds for a decision to refuse, e.g. fear that the requester may become violent, might not have to be given. At present, it appears the section 8(5) option may not be available to the Commissioner.

Section 46

•This section lists the restrictions of the Act but it is suggested that an amendment is necessary, either in this section or perhaps within section 34(1), in order to clarify that the review jurisdiction of the Commissioner extends to deciding whether a public body has correctly invoked section 46. If the Commissioner does not have such jurisdiction, then requesters will have no free, independent review mechanism in cases of this kind and the public bodies concerned will not be subject to any scrutiny as to how they behave in this area.

Suggested New Provisions

•The question of some kind of a personal safety clause is something that this Office has been considering and was the subject of a separate paper sent to the Department of Finance recently. A key issue in relation to such a personal safety clause is whether, in appropriate cases, it will be permissible to withhold from the requester the full reasons for the decision to refuse his request.

•Another area we are considering is that of the interaction of data protection law with FOI. This is an issue that could have a critical bearing on the conduct of reviews by this Office. In summary, it appears that an application under the Data Protection Act (DPA) could result in data held by the OIC being accessible to the data subject in circumstances where the same data might not be releasable under the FOI Act. This opens the prospect of the FOI Act being undermined particularly as the restriction provided by section 43(3) of the FOI Act only allows the Commissioner to act in “the performance of his or her functions under this (FOI) Act…” and not in relation to the DPA. The extent of the problem is magnified by virtue of the fact that it is assumed that the 1995 EU Directive is now applicable (even in the absence of national legislation) and that access rights under the Directive include a right of access to paper files containing personal data. Sensitive paper records given to the OIC for purposes of a FOI appeal cannot, as things stand, be guaranteed exemption from release under the EU Directive on data protection. Unfortunately, this Office does not have the option of seeking a regulation under section 5(2) and 5(3)(b) of the DPA to extend the restriction on release of the records provided by section 43(3) of the FOI Act into the area of the DPA. It appears that this problem can only be dealt with by way of primary legislation either in the context of the DP (Amendment) Bill or, possibly, in the context of an amendment to the FOI Act. The Information Commissioner has already suggested a form of words to address this issue to the Department of Justice, Equality and Law Reform for inclusion in the Data Protection (Amendment) Bill. At the time of writing, it is not yet clear if his suggested wording will be included in the Amendment Bill. In this context, the possibility of an amendment to the FOI Act will need to be kept under review.

Office of the Information Commissioner

3 February 2003

Report by the High Level Review Group on the FOI Act

Presentation to

Joint Committee on Finance and the Public Service

by

Maeve McDonagh, Senior Lecturer in Law, Dean of the Faculty of Law,

University College Cork

Thursday March 13, 2003

Introduction

Given the limited time available, this presentation addresses the more significant recommendations of the High Level Review Group. These concern:

-Meetings of the Government

-Deliberative Process

-International Relations

-Fees

-Coverage

As a preliminary point, it is noted that the Review Group highlighted some of the benefits of FOI including:

-the role it plays in promoting openness, transparency and accountability in Government

-the contribution it makes to good public administrative practice

These benefits are recognised worldwide. FOI legislation is viewed as a hallmark of a mature democracy and is rapidly spreading to all corners of the globe. The Irish Act has been praised as an example of best practice by parliamentarians and commentators across a range of jurisdictions.

Meetings of the Government

The rationale for withholding cabinet records is to support cabinet confidentiality and thereby to underpin the collective responsibility of its members. The Legal and Constitutional Committee of the Legislative Council of the State of Victoria in a 1989 Report, having reviewed various judicial and administrative authorities on cabinet confidentiality argued that only those documents which, if disclosed, would serve to undermine Cabinet unity should be protected under FOI. In particular, it stated that:

“… the simple fact that documents canvassed issues before Cabinet was therefore insufficient to provide a rationale for their non-disclosure.”

The changes to the cabinet records exemption fly in the face of this approach. In particular, the suggestion that the definition of Government be extended to include Working Groups set up “to develop further or resolve some particularly complex issue on the Cabinet agenda or under consideration at a Cabinet meeting” extends the scope of the cabinet records exemption much too far, bearing in mind, in particular, that such Groups may be made up of officials and/or special advisors and may not contain a single Minister.

It is worth noting that the original cabinet record exemption is based on the corresponding provisions of Australian FOI legislation. Australian FOI legislation has been in operation for over 20 years and in that time it has not been deemed necessary to introduce changes of this nature. The report refers with approval to Canadian law on access to cabinet records but the scope of their cabinet records exemption was acknowledged as being too broad by international standards in the Canadian Government Review of the Act published in 2002.

The records of Working Groups are very likely, in any case, to be exempt under the deliberative processes exemption (s.20).

The Deliberative process

The public interest test currently contained in the deliberative process exemption essentially involves a presumption in favour of disclosure. This formulation was chosen to reflect the importance of public access to government records. The Oireachtas debates reveal that the exemption was not intended to permit the withholding of documents because they might mislead but only where “damage to the public interest is certain to arise from their disclosure”.

The Queensland FOI Act is similar to ours in that the public interest test contained in the deliberative processes exemption differs from that in the other exemption provisions. The issue of changing the test in the manner recommended by the Review Group was canvassed in the Report of the Legal, Constitutional and Administrative Review Committee of the Parliament of Queensland in 2001. The Report concluded that it would be preferable to retain the provision as it currently stands, with the public interest test being retained as a separate and additional test necessary to establish that material is exempt.

The Review Group was clearly satisfied with the formulation of the deliberative processes exemption in all other respects. In particular, it did not recommend the introduction of a system allowing the Secretary General of a Government Department to certify that deliberative processes are ongoing so as to require refusal of access to records concerning the process. The introduction of such a provision would be problematic for two reasons:

-Where it applies only in respect of records of relating to the deliberative processes of a Department of State, it establishes a two-tier system of FOI with special additional protection being available in respect of the deliberative processes of a Department of State which is not available in respect of records concerning the deliberations of other bodies such as Health Boards, local authorities and government agencies such as the Revenue Commissioners and the Defence Forces.

-Where it allows a Secretary General to issue such a certificate in respect of records relating to the deliberative processes of any Department of State, it would allow the Secretary of one Department to certify that deliberations in another Department were ongoing.

Such a provision would not have any overseas counterparts.

In addition, failure to allow for appeal against the issuing of such a certificate would be unprecedented. The FOI Act currently allows for the bringing of an appeal to the High Court on a point of law in respect of the issuing of a Ministerial Certificate, a mechanism which is only available in respect of records relating to law enforcement and to defence, security and international relations.

International Relations

The international relations exemption as currently formulated contains a list of the categories of information to which the exemption might apply - but inclusion in this list does not mean that the record will be found to be exempt. In addition it is necessary to meet the requirements of the harm test which are that disclosure could reasonably be expected to adversely affect international relations of the State. While the Review Group advocated the introduction of enhanced protection of records relating to international relations, it is significant that it did not advocate removing the requirement to establish adverse effect in order for records to be withheld.

The effect of the removal of the harm test is to absolutely exempt communications between a Minister and a diplomatic mission of the State, regardless of whether or not their disclosure would be harmful in any way. It would mean that access to a communication of this kind on an innocuous topic such as the weather would have to be refused. This would not be in keeping with the spirit of the FOI Act which is that information should only be withheld for good reason.

Fees

The introduction of an upfront fee is justified in by the Review Group on two grounds

1.that present arrangements have not worked in practice with fees being charged in only a very small proportion of cases and

2.that international practice favours the use of upfront fees:

With regard to the first point, the FOI Act provides for the charging of fees and it is the responsibility of the public bodies concerned to enforce the current fee arrangements, including the power to requests the payment of a deposit. The fact that fees are only charged in a small proportion of cases is due to a failure on the part of public bodies to use the powers they have, rather than to the lack of an enforceable charging regime in the Act.

With regard to the point concerning international practice, there is no application fee in the UK, New Zealand or the US. In the case of Canada and Australia, both of which do provide for the charging of application fees, the amounts charged in respect of the other elements of the charging regime e.g. search and retrieval is a fraction of what can be charged under the Irish Act.

It is significant that the Review Group did not recommend the introduction of a fee for the bringing of appeal against refusals to grant access to records. This is in line with the conclusion of the Canadian Review Body that the introduction of such fees would not be recommended on the grounds that it would deter legitimate complainants.

Coverage

The Report recommends that early progress should be made in extending coverage of the Act. This recommendation is endorsed and the extension of the Act to the Gardai is strongly urged on the basis of the obvious need for greater accountability of that body and also on the basis of international practice.