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

Houses of the Oireachtas

Tithe an Oireachtas

Joint Committee on Finance and the Public Service

An Comhchoiste um Airgeadas agus an tSeirbhís Phoiblí

Final Report:

Final Report On:

Hearings relating to the High Level Review Group on the Freedom of Information Act, 1997, Report to the Government and Related Matters.

Tuarascáil Deiridh:

Tuarascáil deiridh ar:

Eisteachtaí a bhaineann leis an nGrúpa Athbreithnithe Ardleibhéil ar an Acht um Shaoráil Faisnéise, 1997, Tuarascáil don Rialtas agus Nithe Gaolmhara.

March 2003

Márta 2003

Table of Contents:

Explanatory Note:

The Joint Committee on Finance and the Public Service at its meeting of 19 March, 2003 agreed that a report on its hearings on Freedom of Information and Related Matters be laid before the Houses of the Oireachtas, as a matter of urgency. This was done on 19 March, 2003. Due to the immediacy of the matter, it was not possible at that time to include with the Report the transcripts of its hearings of 13 and 19 March and submissions/correspondence received to date. The Committee therefore agreed to have these items included in a further Report to be laid as soon as possible, thereafter.

This final Report contains the original Report but is expanded by the inclusion of the transcripts, submissions and correspondence referred to above.

Seán Fleming, T.D.,

Chairman of the Joint Committee on Finance and the Public Service.

25 March 2003.

Report

In the light of the hearings held by the Joint Committee on Finance and the Public Service to date on the Report by the High Level Review Group to the Government on the Freedom of Information Act, 1997 and related matters, the Joint Committee strongly recommends, as a matter of urgency, that sufficient time be allowed for further limited hearings to be held, as important areas have been identified in the legislation which the Joint Committee agrees will need further significant amendment.

Seán Fleming, T.D.,

Chairman of the Joint Committee on Finance and the Public Service.

19 March 2003

Note:

This appendix contains copies of correspondence submitted to the Joint Oireachtas Committee on Finance and the Public Service regarding the Freedom of Information issue.

It also contains copies of only those submissions made to the Committee which were not read out during the proceedings of the meetings held on 13 and 19 March, 2003 - any other submissions which were read out at the meetings are contained in the transcripts of those meetings in Appendices 2 and 3.

Appendix 3

High Level Review Group

on the Freedom of Information Act 1997

Report to the Government

Table of Contents

Summary of Recommendations

1.Deletion of the discretion under Section 19 (1) of the Act by replacing “may” with “shall”

2.Amend Section 19 (1) (c) (“solely”) to ensure that it applies to records which were created with the purpose of being used at a Cabinet meeting even if they are incidentally applied to other purposes

3.Provide for exemption of records of an expert or working group (of officials) set up to assist Cabinet deliberations on any matter which has been submitted to Cabinet for consideration and which is mandated to report directly to Cabinet on the matter; provide that a certificate must be given by the Secretary General to the Government at the time of establishment of the group

4.Provide that communications between Ministers be exempt where: they relate to a matter already on the Cabinet agenda or on which a submission to Cabinet is imminent or they relate to a matter which has been delegated by Cabinet for resolution between Ministers

5.Extend the period of protection for Cabinet records to 10 years

6.Clarify definition of factual information in Section 19

7.Consideration of re-balancing public interest test in Section 20 to require that records be released where the public interest would be better served by disclosure than by refusal of a request

8.Initiate a system for more formal consultation between Departments on material to be released

9.Inclusion of relevant recommendations, from CSUN review of operation of Act, in legislative amendments

10.Introduction of an up front fee for FOI requests with appropriate waivers and consideration of a fee for reviews and the basis of which fees are calculated

11.Early progress in significant programme of extensions of operation of the Act

12.Inclusion of additional measures identified by the Department of Finance in the legislative amendments to be brought forward

13.Consideration of alternative/additional measures to be brought forward which would provide an enhanced degree of protection (including the possibility of exemption) to communications in the conduct of international relations

14.Continued development of FOI networks

15.Completion of review of operation of National Archives Act vis-à-vis the Freedom of Information Act

1. Introduction

1.1 Terms of Reference

The High Level Review Group was established by the Government on 25 June, 2002 to consider in the light of experience gained in the four years since the Freedom of Information Act 1997 came into effect:

•issues in relation to how exemptions provided for in the Act have been applied:

•the extent to which the public interest has been served in practice by the operation and provisions of the Act; and

•the appropriate balance between promoting transparency in the decision-making process and preserving the effectiveness of that process.

1.2 Membership

The Group was chaired by the Secretary General to the Government and comprised the Secretaries General of the Departments of Enterprise, Trade & Employment, Foreign Affairs, Transport and the Secretary General (PSMD) of the Department of Finance.

1.3 Approach

The Group focused its discussions on key aspects of the operation of the Act, particularly Section 19 (Meetings of the Government) and Section 20 (Deliberations of public bodies). It was supported in this task by the Central Policy Unit of the Department of Finance and members also drew upon their own experiences and experiences of others of which they were aware, including that of their respective Ministers.

The Group noted in its discussions the recent report, ‘Outline Action Plan on FOI Compliance’ by a Sub-Group of the FOI Inter-Departmental Working Group, prepared in response to the July, 2001 report from the Information Commissioner on compliance by public bodies with the provisions of the FOI Act. The Group also noted the review completed by the Civil Service Users Network (CSUN) in 1999 on the operation of the Act.

The Group is satisfied that the introduction of FOI legislation in this country has played an important role in promoting openness, transparency and accountability in Government. Internationally, freedom of information is recognised as an important contributor to good public administrative practice.

2. Records of the Government (Cabinet)

2.1 Unique Nature of Cabinet Records

Records relating to meetings of the Government (Cabinet) are uniquely provided for in the Freedom of Information Act, 1997, in recognition of the importance of preserving a space within which Cabinet can function effectively. Strong protection for such material is a feature of FOI in jurisdictions which operate a system of Government centered upon Cabinet. In the Irish system Cabinet records are afforded what virtually amounts to a class exemption for a five-year period.

Section 19 is one of the very few class exemptions in the Act, i.e. one where the nature of the document determines whether access can be withheld, rather than the exemption depending upon establishing that release would pose a particular threat to the public interest. Its primary purpose is to provide protection for matters prepared for Cabinet, associated briefing material and records relating to Cabinet meetings.

The need to ensure a confidential context for discussion at the Cabinet is recognised with specific constitutional protections. The protection of records of Cabinet, so that Ministers can express views freely in documents submitted to Cabinet in the knowledge that they will be treated as confidential for a reasonable period of time, is also fundamental to the exercise of collective responsibility and to the effective functioning of Government.

Ultimately, it is in the public interest that the institution of Cabinet works well and effectively.

2.2 Specific issues in Section 19

The Discretionary “may”

Section 19 provides that the Head of a Department may refuse a request for access to Cabinet records. The use of the discretionary may has resulted in uncertainty on the part of key decision makers as to the circumstances in which access to Cabinet records might be granted and has prompted calls by the Information Commissioner, in his report on compliance by public bodies with the provisions of the FOI Act, for greater flexibility in its application to allow access to Cabinet records in certain circumstances.

The Group understands that, in framing the legislation, there was a desire to distinguish between discussions at Cabinet (the confidentiality of which is constitutionally protected) and Cabinet records, which are afforded a relatively lesser degree of protection. The exemption in Section 19(1), as the Information Commissioner has observed, has been applied largely in a mandatory fashion.

The Group is satisfied that the overarching policy of Section 19 is that Cabinet records should be exempt from access for a reasonable period of time and that this is necessary if the Cabinet process and the exercise of collective responsibility are not to be constrained to the detriment of effective decision making based upon the free and frank expression of views.

In these circumstances the Group believes that the legislation should give clear expression to the policy intent by removing the option of a discretion being exercised. The implications of this for the consultative arrangements provided for under Section 19(4) will need to be examined when a revised provision is being drafted. In making the recommendation the Group is conscious of the fact that there is nothing to prevent Cabinet itself from granting access in exceptional circumstances to Cabinet records - the main consequence of the recommendation is that a decision about any such release would be made solely by and on the initiative of Cabinet.

Records prepared for Cabinet

Difficulties have arisen from time to time in defining what constitutes a genuine record prepared for the purpose of the transaction of business by Cabinet. Section 19(1)(c) refers to a record containing information for use “…solely for the purpose of the transaction of any business of the Government at a meeting of the Government”. The use of the word “solely” has tended to be overly restrictive and to cause unnecessary doubts about the eligibility for exemption of genuine Cabinet records, which incidentally might be applied to other purposes.

Communications between Ministers

Ministers communicate with each other about many issues, but there are particular occasions when inter-Ministerial communication is an extension of, and direct support for, the exercise of collective responsibility. This arises from the different roles of Ministers, on the one hand as administrators of Departments assigned to them and on the other as members of the Cabinet. The distinct role of a Minister as a member of Cabinet is explicitly recognized in the Ministers and Secretaries (Amendment) Act 1939, which has provision for the appointment of Ministers without portfolio.

As members of Cabinet, Ministers, with varying degrees of frequency, need to communicate with each other about matters that have a direct bearing upon the exercise of collective responsibility. This may involve, for example, communicating about matters that have been submitted, or are intended for submission, to Cabinet, not purely to express a particular Departmental position on a policy proposal, but rather with the intent of achieving a consensus with colleagues or otherwise facilitating the conduct by Cabinet of its business in relation to such a matter. [This is separate from the normal practice of Ministerial observations being incorporated in Memoranda going to Cabinet and which should continue to be the norm in the presentation of issues for decision by Cabinet].

The need for space for the exchange of views between Ministers is recognised, for example, in the Canadian FOI model. In Canada, communications between Ministers on matters relating to the making of Government decisions or the formulation of Government policy are excluded from the scope of their Act. In the UK, there is recognition of the role of inter-Ministerial communications in the exercise of collective responsibility.

The Group believe that this type of communication between Ministers in their capacity as members of Cabinet is an important part of the Cabinet decision making process and that it is in the public interest that it be given special recognition within the exemptions provided under Section 19 of the FOI Act.

Working Groups directly supporting Cabinet

On occasion, the Government considers it necessary to set up specialist working groups of officials to develop further or resolve some particularly complex issue on the Cabinet agenda or under consideration at a Cabinet meeting. This type of working group operates in direct support of the Cabinet process and is intended primarily to assist Cabinet finalise its deliberations.

It is recommended that Section 19 be amended appropriately to provide for the exemption of records created by a working group set up by Cabinet to further an item under consideration at a Cabinet meeting. It is also recommended, in order to ensure that the provision is used only sparingly and in the appropriate context, that consideration be given to a certificate from the Secretary General to the Cabinet being required before any such Working Group qualifies for an exemption.

The Group is conscious of the need to ensure that these additional grounds for exemption are tightly drafted so that their use is limited to records which genuinely fall within the categorisation of “Cabinet records” envisaged by the Group. In making their recommendations, the Group have paid particular attention to this aspect.

2.3 Period of Protection of Cabinet Records

When the legislation was drafted the period of protection provided for Cabinet records was selected to reflect the natural life-span of a Dáil. However, bearing in mind the purpose for which protection of Cabinet records is given in the first instance - to encourage the free expression of views by members of Cabinet in memoranda submitted to Cabinet - it is becoming clear that a five year period of protection is not sufficient for that purpose.

Disclosure of the arguments and views contained in Cabinet papers, other than on an historical basis, is likely to lead to Ministers opting to convey those views during discussion at Cabinet (where they would enjoy absolute protection) in preference to incorporating them in memoranda. This would seriously affect the functioning of Cabinet as the process of including Ministerial views in Government memoranda allows for the reconciliation of differences and the shaping of consensus prior to an issue coming to Cabinet. The importance of this type of pre-submission engagement is recognized in par 3.15 of the Cabinet Handbook which places a special responsibility on Ministers and Secretaries General to establish the maximum degree of agreement prior to submission of a memorandum to Cabinet.

As experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short period of time.

While the different structure of FOI regimes in other jurisdictions makes comparisons difficult, the relevant period is generally longer than five years where there is a specific reliance upon timebound protection. Comparable periods in jurisdictions such as Canada and Australia range from 10-20 years. In some cases internationally this period is considerably longer and as high as 30 years.

International experience tends to support the view that appropriate protection for the exercise of collective responsibility requires a protective time frame beyond the lifetime of a single Government. While any time limit could be seen as somewhat arbitrary, the Group considers that the existing five year period provided for in section 19(3)(b) is too short and recommends that this period be extended from five to ten years.

2.4 Factual Information

The Group noted that during the period of the operation of the Act, some ambiguity has arisen in relation to what constitutes factual information as defined in Section 19(3) (a). In one instance, a view was put forward that the observations of Ministers on the policy proposals in a memorandum for Government were factual, i.e. as a matter of fact they reflected the views of the Ministers concerned.

Clearly, the intention is that there should be access to factual information which underlies a particular proposal but that this would generally be of a statistical or the like nature.

The Group believes that it would be helpful to clarify the definition of factual information as information of a statistical or econometric/empirical nature that has been used to provide an informed background to a Government decision. This is similar to the approach adopted in the UK.

3. The Deliberative Process

Section 20 of the Act is intended to protect the deliberative process to avoid inhibiting the ongoing activity of formulating, considering, weighing up, advising and deciding on issues. At the same time, the Section seeks to uphold accountability by facilitating access to reasons for decisions to promote transparency in decision-making. It does so by requiring consideration of the public interest and by requiring clear justification for refusing access to records subsequent to a significant decision being made.

The Group has become aware of concerns that the prospect of relatively early release of such records may inhibit officials from freely expressing views on particular issues, particularly views which depart radically from the “conventional line”. If so, a consequence would be to deprive a Minister of the full range of views which may have been more freely articulated prior to the coming into operation of the Act. It would also diminish the deliberative process which should be encouraging of fresh thinking and the free and frank expression of opinions. It may also lead to Departmental records being less rounded in their treatment of issues.

The Group considered whether there should be a period of time, as is the case for Cabinet records, during which the opinions and views of officials should be exempt from release. They are conscious of the particular circumstances of elected representatives, who must answer to the electorate at regular intervals. Officials are not accountable in the same manner and, on balance, the Group feel that the present arrangements which allow for access to records once the deliberative process is finished, should continue.

However, the Group believe that it would be beneficial if the public interest test required in Section 20 were re-balanced to ensure that records are not released until a deliberative process is definitively completed. Rather than requiring that records be released unless release could be shown to be contrary to the public interest, the requirement should be that the question of release should be subject to the test that “on balance records would be released where the public interest would be better served by disclosure than by refusal of a request.” This will bring the public interest test into line with that used elsewhere in the Act.

4. Other Measures

4.1 Consultation

The Group notes that under current legislative arrangements, there is no requirement for Government Departments to consult or even inform other Departments if they propose to release material which originated in or relates to the activities of that Department. While consultation/informing takes place in a good many instances, the Group believe that this should be put on a more formal footing. While they do not see the need for legislative underpinning of the requirement, they believe that there is a need for an administrative initiative to address the matter to ensure more timely consultation with relevant Departments.

4.2 Reports

The Group is aware of other recommendations for amendment of the Freedom of Information Act. Some arise from the work of the Civil Service Users Network (CSUN), who reported in 1999. Many of those are technical aimed at improving the operation of the legislation for public bodies and FOI requesters alike and at curbing misuse of the legislation. They include. for example, proposals to express time limits in working days, the extension of the period available for third party consultations and the introduction of a modest upfront fee to deter vexatious requests.

The report, ‘Outline Action Plan on FOI Compliance’ which was prepared in response to the July, 2001 report by the Information Commissioner on compliance by public bodies with the provisions of the FOI Act. It was adopted by the relevant FOI networks at end-September. The Outline Action Plan sets out a range of measures to address compliance issues.

4.3 Fees

The Group agrees with the CSUN recommendation for the introduction of an upfront fee. There are strong operational arguments for such a measure, not least because the present arrangements have not worked in practice with fees being charged only in a very small proportion of cases. International practice favours the use of upfront fees and in some cases very substantial fees for reviews of initial decisions.

The Group considers that an upfront fee is ultimately the only workable arrangement in which fees can be levied. The Group acknowledges that the introduction of a fee may not be viewed as an attractive measure, however, it would go to recognising that there is an administrative cost associated with FOI which in some cases can be significant and which is currently borne by taxpayers generally. A fee regime involving an upfront cost may also minimise so-called “trawling” requests which have little or no public benefit. In the context of wider Exchequer corrective measures, the rationalisation of the fee regime will also contribute to addressing the cost of the administrative burden of FOI. The appropriate scale of upfront fees and fees for reviews and the basis on which fees are calculated should be considered in this context. The Group, therefore, recommends that the legislative proposals should contain a measure to introduce an up front fee for FOI requests with appropriate waivers. The Group noted, for example, that a £20 fee accompanies planning appeals.

4.4 Coverage

The benefits of FOI to the public stem from the range of bodies included within the ambit of the Act. In 2001, the Government decided that FOI should be extended by end-2005 to all remaining bodies appropriate for inclusion. In the context of the development of the Act, it will be important that early progress is made in a significant programme of extensions.

It is also recommended that partial exclusions of public bodies’ functions from FOI should only be permitted in the most exceptional cases.

4.5 Additional Measures

Additionally, the Central Policy Unit of the Department of Finance is considering a number of other measures which would improve the operation of the legislation. These are based on the experience to date, particularly having regard to the development of case law and advices received from the Attorney General. They are likely to include proposals to provide for a final right of appeal to the Supreme Court, a broadening of the circumstances in which the existence or otherwise of records does not have to be disclosed by the decision-maker and clarification that the photocopying of a record does not result in the creation of a record for the purposes of the Act.

The Group believes that the time is now opportune to bring forward a package of legislative proposals, drawing upon these sources and its own recommendations, to update the legislation and to make it more relevant to present day needs based upon experience of the operation of FOI to date.

4.6 International Relations

The protection of sensitive information relating to international relations is a common feature of FOI legislation in other jurisdictions. Within the conduct of international relations there clearly is a need for confidentiality. The process must rely on integrity and trust as regards the exchange of sensitive information between States and International Organisations. The Group accepts the difficulties inherent in balancing this need for confidentiality and trust with the aims of the Freedom of Information Act. However, the Group is of the view that the balance of public interest is best served by a high degree of assurance that sensitive information transmitted in the conduct of international relations is protected.

The attention of the Group has been drawn to difficulties which have arisen over the implementation of Section 24 of the Act insofar as the conduct of international relations is concerned. In drafting the Freedom of Information Act, there was an understanding that international relations would be provided with a high degree of protection. The interpretation of the Act may, however, have resulted in uncertainty over what can “reasonably be expected to affect adversely” the international relations of the State.

The Group recommends that, in order to avoid a situation where Ireland’s ability to function effectively at international level may be restricted, consideration should be given to effective options (including the possibility of exemptions) that would provide enhanced protection from the release of records relating to the conduct of international relations.

4.7 Training & Networks

Training has been recognised as a key factor in implementing FOI in an effective and consistent way. The Group notes that the CPU and the Department of Finance’s Centre for Management and Organisation Development (CMOD) have a range of measures in train to enhance the capacities of public bodies in implementing FOI. These measures include increases in the overall supply of FOI training. New strands of training are being developed such as refresher training and case study based training. New training formats are being developed including an e-learning initiative. Training capacity has been expanded in the wider public service through the involvement of the Institute of Public Administration among others. The CPU continues to provide Advanced Level training to all public bodies.

The central policy function has continued to develop. With the process of progressive extension of the Act, by end-2002 there will be some 360 bodies within the ambit of FOI, with this increasing further in the period to 2005. The CPU undertakes this general policy role for the ongoing development of FOI. Aside from fulfilling the administrative elements of the Minister for Finance’s statutory functions, the CPU provides advice and other supports to Departments and other public bodies to assist them to meet their obligations under the Act. International experience supports the critical role of such central support. In Australia, particular criticism has been levelled in relation to the dilution of this central support which observers have linked to increasing inconsistencies in FOI decision making

A further successful feature of FOI implementation, which the Group would like to see continuing to develop are the various FOI networks. From the outset, the networks have provided an important framework in which common approaches can be developed and experience shared across public bodies.

4.8 Record Keeping & National Archives

Records management is an important supporting feature of FOI which is dependent on the efficient identification and retrieval of records. The National Archives Advisory Council in their 2000 report, recently published, have drawn attention to this link.

It is generally recognised that FOI has contributed in a positive way to records management. There is strong evidence that records are now being created in situations where in the past either no records or incomplete records were maintained. Other areas such as interview and recruitment processes have been transformed in a very positive way by the need for transparency.

There is a need for clearer alignment between National Archives legislation which regulates the release of records on a historical basis and Freedom of Information legislation. The Group noted in this respect, that the Government in February, 2001 asked that the Department of Arts, Heritage, Gaeltacht and the Islands, as it was then, should review the National Archives Act, 1986 to ensure that there are no incompatibilities with the Freedom of Information Act. 1997. The Group recommend that this review be expedited.

Government Secretariat

Rúnaíocht an Rialtais

11 March 2003

Ms. Sandra Hogan

Clerk to the Joint Oireachtas Committee on Finance and the Public Service

Leinster House

Dublin 2

Dear Ms. Hogan

I wish to acknowledge your letter of 6 March, 2003 and confirm that I will attend the Joint Committee on Finance and the Public Service at 10.30 a.m. on Thursday, 13 March. I can also confirm that my colleagues Mr. Paul Haran, Mr Eddie Sullivan and Ms. Julie O’Neill will be in a position to attend. Mr. Dermot Gallagher has asked me to convey apologies as he will be away in the United States on official business with the Minister for Foreign Affairs but, as a courtesy to the Committee, has arranged for another official of his Department, Ms. Marie Cross, to attend.

For the purpose of clarification in advance of Thursday’s meeting, the members of the Committee may wish to note that the Group was set up by the Government to assist them in their consideration of a number of important aspects of the Freedom of Information Act 1997. Our recommendations were prepared as advice to the Government and as a contribution to their deliberations on this matter.

The members of the Committee will be aware that, as civil servants, we are constrained from questioning or expressing an opinion on the merits of any policy of the Government or a Minister of the Government or the Attorney General, or on the merits of the objectives of such a policy. This is of particular significance in that a Bill is currently before the Seanad which reflects the Government’s position on issues of concern to the Committee.

Accordingly, while we hope we can assist the Joint Committee by clarifying the basis on which we arrived at our recommendations, we are precluded from commenting on any action which the Government may have taken on foot of those recommendations or generally on the merits of any provision of the Bill now before the Seanad.

I have attached, as requested by the Committee, the documentation which informed our considerations. I have also enclosed minutes from our first two meetings. The final meeting was concerned with finalising the Report. We were supported in our task by a joint secretariat provided by the Central Policy Unit in the Department of Finance and the Government Secretariat within my own Department. There was ongoing liaison between the joint Secretariat in the preparation of our Report.

Yours sincerely

Dermot McCarthy

Secretary General to the Government

12, Maywood Crescent,

Rath Éanna,

Baile Átha Cliath 5.

Telephone # 01-831 3402

Email: @hotmail.com

11 Marta 2003

Mr. Seán Fleming, TD,

Cathaoirleach,

Joint Committee on Finance and the Public Sector,

Teach Laighean

Baile Átha Cliath 2.

Freedom of Information

A Chathaoirligh, a chara,

Ainneoin neart Gaeilge a bheith agam, tá brón orm ach níl scribhínn na Gaeilge agam.

Prior to my retirement in 1998, I was Head of Internal Audit in the Department of the Marine and Natural Resources. On a voluntary basis, I now use FOI to help people having difficulties with the Public Sector.

The following are two contrasting examples of Life before and after FOI was introduced:

In the early 1990s civil servants knowingly introduced an illegal 5% Administration Fee (Hello Money) for Forestry Grants. They hid behind the Official Secrets Act and mislead complainants, including Public Representatives. Eventually, I broke ranks and went to the Minister who ordered that the £5 million taken illegally be refunded to grantees.

In 1999 the Drugs Payments Scheme (DPS) was introduced without a legal basis. Last year the C&AG reported that beneficiaries had been short-changed to the tune of 18 Million Euro and that the Department of Health did not intend to refund the money. I put in an FOI and got full disclosure. It was patently obvious that the Department did not have a leg to stand on. I informed the Minister of this and also copied my papers to the PAC, which used them when questioning the Secretary General. The Minister has decided to refund the money.

Currently, FOI not only is good for citizens but it protects the Government of-the-day, as civil servants cannot hide behind the Official Secrets Act. Citizens can now get behind the scene and feed information back to under-resourced Members of the Houses of the Oireachtas.

We’ll all be losers unless proper consideration is given before the Act is amended.

affecting them and be part of the practical response.”

The restrictions appear to represent an adversarial rather than partnership approach to citizens from the Government. That this Bill has arisen without consultation with citizens’ groups has resulted in it being lob-sided in favour of administrative convenience with no balancing component of democratic accountability or support for “active citizenship.” It is significant that the Bill’s 27 sections are overwhelmingly focused on restricting citizens’ access to information and making the process more time consuming. It is difficult to find measures designed to build on the achievements of the 1997 Freedom of Information Act and actively increase transparency. The implication is that enquiries from citizens who volunteer their time for campaigns represent some form of burdensome nuisance - not a resource to be valued. This undermines the white Paper’s statement that “the Government is committed to encouraging individual volunteering,” its acknowledgement of the role of the Community and Voluntary sector in “inputting to policy-making” and its stated position that the State and the Community and Voluntary Sector “each recognise their mutual right to constructively critique each other’s actions and policies.”

It may be that when publishing this Bill, the Government underestimated the effect it will have in critically undermining their stated policy of Supporting Voluntary Activity. If that is the case, it underlines the need to consult with citizens’ groups before publishing legislation such as this. The Wheel therefore asks that the Government withdraw this Bill until it has conducted a thorough and transparent consultation with all interested parties, including Community and Voluntary organisations.

Without this consultation, it is unlikely that the Government will understand the scale of the difficulties this Bill will cause citizens groups throughout Ireland. As it stands, this Bill would represent a very profound negative step in the development of the relationship between the Government and the Community and Voluntary sector. This would be bad for the Government and bad for citizens.

The white Paper on Supporting Voluntary Activity outlined a very positive framework within which the state and Community and Voluntary groups could work together in partnership for the benefit of our society. Working with these citizens’ organisations harnesses the knowledge and experiences of their members, reaches out to the most disadvantaged, reduces resistance to Government policies and helps to build public trust in the political process. These are significant prizes that would be seriously compromised were this Bill to be passed in its current form. The Wheel asks the Government and Opposition parties to work to withdraw this Bill.

Copy of the Bill: http://www.finance.gov.ie/publications/legi/foiamd.pdf

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14 March, 2002.

Ms. Sandra Hogan,

Clerk to the Committee,

Joint Committee on

Finance and the Public Service,

Leinster House,

Dublin 2.

Dear Ms. Hogan,

I enclose, as discussed, 15 copies of the correspondence between this Office and the Department of Finance in relation to the issue of consultation which was requested during the meeting of the Committee yesterday.

I also enclose three copies of the Press Release which issued last Tuesday.

Yours sincerely,

Liam Kelly

Senior Investigator

Ronan,

Material as promised

Liam

Suggested Amendments to the FOI Act 1997

Extending of Review Period from Three Months to Four Months (section 34(3))

1.Section 34(3)(b) provides that the Commissioner shall make a decision on a review, as soon as may be and so 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 be given to extending this period for completion of a review to four months.

2.In the years following the enactment of the legislation, significant delays in deciding reviews (of more than 18 months) became the norm. Early in 2002, mindful of the need to operate within the time frame specified in the Act the Commissioner decided all review applications received from 1 April, 2002 would be dealt with on a current basis and would not be added to the existing waiting list of cases which, where possible, would be dealt with in tandem with the current cases.

3.To ensure that every effort was made to achieve this objective the Commissioner notified all public bodies of the need to keep within specified time-frames in relation to the supply of documentation on the FOI request, records the subject of the request and any submissions or statements of reasons that the public bodies might wish to make concerning the request. In essence, it was the Commissioner’s intention that, at worst, all relevant material would be received from the public body within 8 weeks of receiving the appeal.

4.Experience to date, however, would indicate that the three month deadline envisaged by the Act is unachievable in many cases and, as users’ expectations are informed by the time-frame set out in the Act, unnecessary disaffection with its operation may result.

5.Since 1 April, 2002 a total of 271 applications for review which, under the Act, would have been due to be completed before end-December were accepted in the Office of the Information Commissioner. Of these, 164(62%) were completed within the three-month time-frame. It should be noted that many of these would have closed in a comparatively short time due to settlements or withdrawals of appeals or objections to release. Of the balance, 40 were completed within four months and the remainder are either still under consideration or have been closed in the interim.

6.In notifying the public bodies of the review deadlines at 3. above, the Commissioner advised that strict adherence was required by all parties if the wishes of the Oireachtas were to be met in this regard. By the same token, it was recognised that any deviation from any or all of these deadlines would have an immediate effect on the overall time-frame for completion of the review: these could be caused by annual/sick leave in the case of the person dealing with the review in the public body, insufficient resources devoted to FOI in the public body, late delivery of records/submissions due to conflicting priorities, the complexity of the case, the amount of records or number of affected parties to the review, unavailability of the requester, late submission from the requester and so on.

7.As such, the expectations of requesters that their appeals will be dealt with within three months is often unrealistic and could lead to unnecessary disenchantment with regard to the operation of the Act.

8.Were the time-frame extended to four months it would be reasonable to expect that almost four out of five reviews would be closed within the period. It is envisaged under this proposal that the current “internal” deadlines and arrangements with public bodies would remain in place and that reviews would continue to be completed in as short a time as possible.

Mr. Pat Whelan

Director General

Office of the Information Commissioner

18 Lower Leeson Street

Dublin 2.

Dear Pat,

I refer to your letter of 3 February 2003 regarding the proposal to amend the Freedom of Information Act 1997. I wish to thank you for the paper on ‘Refusing FOI requests to ensure personal safety’, which is being considered by the Department.

In the content of this Department’s work on reviewing the FOI legislation we would be pleased to receive and consider any further suggestions from your Office in relation to the amendment of the FOI Act. In this connection, I understand that Mr. Liam Kelly of your Office has already been in touch with the FOI Central Policy Unit of this Department. I would ask you to forward any suggested amendments directly to Niamh Campbell in the Central Policy Unit as a matter of urgency.

Yours sincerely,

Eddie Sullivan

Secretary General PSMD

5 February, 2003

Ms. Niamh Campbell,

Freedom of Information

Central Policy Unit,

Department of Finance,

73-79 Lower Mount Street,

Dublin 2.

Dear Ms. Campbell,

Further to your telephone conversation yesterday with my colleague, Liam Kelly, I enclose suggested draft amendments to the FOI Act which I hope you can take on board in the context of the proposed Amendment Bill. As you will see the majority of the suggestions are primarily technical in nature and I look forward to discussing them further in the near future. I understand that Liam is liaising with you about a date for a meeting sometime next week.

I would like to congratulate you on your recent appointment and wish you every success in the position.

Yours sincerely,

Pat Whelan,

Director-General

Suggested Amendments to the FOI Act, 1997

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 records 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 form 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 calendar) 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.

Sections 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) relates 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 circumstance (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 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 requirement 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, and amendment to section 42(2) is suggested whereby the time for an appeal in such cases might be extended to 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 (copy enclosed). 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 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.

OF/01C/004/003

3 February 2003

Mr. Eddie Sullivan,

Secretary General for Public Service Management,

Department of Finance,

Upper Merrion Street,

Dublin 2

Dear Mr. Sullivan,

Freedom of Information Act, 1997 Amendment) Bill

I note from the recently published Government Legislative Programme that the Minister for Finance proposes, during the current Dáil session, to publish a Bill to amend the Freedom of Information Act, 1997. I note that this Bill is intended to “give effect to the recommendations of the High Level Group on the operation of the current FOI legislation and to provide for related matters which have arisen since the enactment of the original legislation”.

As you know, the Information Commissioner was not part of the High Level Group and has not been consulted in relation to possible amendments to the FOI Act. The Commissioner wishes to know whether your Department now intends to consult with him in relation to the proposed Amendment Bill and, if so, what form such consultation will take. As it happens, the Commissioner has a series of suggestions relating to the amendment of the FOI Act. These suggestions, which are mostly technical in nature, arise from the Commissioner’s work over the past five years in deciding FOI reviews, in conducting investigations and from his contacts with public bodies in the course of promoting good FOI practice.

One specific issue which has arisen, and where concerns have been expressed, is whether the FOI Act has adequate mechanisms to refuse a request for records where the release of those records might result in harm or injury to the life or property of an individual. This is an issue which the Commissioner acknowledged in his Annual Report for 2001 and undertook to consider further. I enclose for your information, and because it may be relevant in the context of amending the FOI Act, a paper which sets out the Commissioner’s further consideration of this issue. I expect the Commissioner will publish this paper on his website in the near future.

I look forward to hearing from you.

Yours sincerely,

Pat Whelan

Director General

Copy Sent

REFUSING FOI REQUESTS TO ENSURE “PERSONAL SAFETY”

Background

Some concern has been expressed as to whether the Freedom of Information (FOI) Act has adequate mechanisms to refuse a request for records where the release of those records might result in harm or injury to the life or property of an individual. The Commissioner adverted to this issue in his Annual Report for 2001 (at Page 24). The Commissioner is very clear in his view that records should not be released under FOI where to do so would create an unacceptable risk to the welfare, life or property of any individual.

The Commissioner has never taken the view that the Irish FOI Act does not allow for refusal of a request on such grounds; what he has said is that the Irish FOI Act does not have an explicit “personal safety” clause [apart from the protection at section 8(2)(b) for staff dealing with FOI requests]. He considers that, in the absence of such a clause, there is a need to examine the various options which the Act, in its present form, presents. This note is intended as a contribution to that examination.

To date, issues of personal safety have arisen in only a very small number of cases which have come before the Commissioner for review.

“Risk” Scenarios

The perceived risk may relate to the requester, to staff of the public body concerned or to third parties (usually family, friends or neighbours of the requester). In some cases, the risk may be one of damage to property of an individual or organisation.

In the case of medical, psychiatric or social work records there is an explicit provision [at section 28(3)] to protect the requester where release of the records “might be prejudicial” to his or her health or well-being. However, there can be instances where release of such records might endanger the health or well-being of some other party - this might be a friend or family member who has given information to a psychiatrist about the requester or it might be a health professional or social worker who has expressed a particular opinion about the requester (e.g. a social worker who believes that children are not safe with the requester).

In the case of housing records of local authorities, and particularly in the context of investigating anti-social behaviour, there might be a risk to officials involved in the investigation or to family, friends or neighbours who have given information (or complained) to local authority staff or to the Gardaí. In the case of records relating to the investigation of social welfare fraud or tax evasion there might also, occasionally, be a perceived risk that release of records would put identifiable officials or informants at risk.

Whatever the particular case, it is very important that the concern for the health or welfare of the “at risk” individual (including concern of a risk of damage to the property of any individual or organisation) be well-founded. The Commissioner takes the view that it is not enough to assert that such a risk exists. Rather, such an assertion must be supported by tangible evidence. Examples of such evidence would include: a history of violence or abusive/intimidatory behaviour on the part of the requester; threats of violence or of damage to property; the expressed opinion of a professional (typically a psychiatrist, a clinical psychologist or a social worker) that access to the records is likely to result in violence or other unacceptable behaviour on the part of the requester. In some cases the opinion of a person who knows the requester well, and who has played some kind of “helping” role in relation to the requester, may be acceptable evidence even where that person has no relevant professional qualifications.

FOI Act Provisions of Relevance

Section 28(3) and (4)

Primarily, these provisions apply where the release of medical/psychiatric/social work records to the requester might be prejudicial to the health, well-being or emotional condition of the requester. By extension, these provisions might also be found applicable where there is a fear that release of such records will prompt violence or other inappropriate behaviour by the requester and directed against a third party. In this latter instance, it may be reasonable to conclude that any such unacceptable behaviour by the requester, while primarily impacting on the third party, impacts negatively on the requester also.

Where section 28(3) is invoked, the public body is required under section 28(4) to offer the records in question to a health professional “specified” by the requester. Section 28(3) provides that access to the records by the requester is refused. It would seem to follow that the “specified” professional, to whom access is given, is to give information contained in the records (or, indeed, the records themselves) to the requester in a manner which will not be prejudicial to the requester.

Whereas the Act is not specific as to the action to be taken by the health professional who receives such records, the Commissioner believes that such health professionals are professionally bound (as in all dealings with patients or clients) to act in the best interests of that patient or client. The health professional will be required to exercise all due care to ensure that whatever information is conveyed, and in whatever manner, does not have the effect of prejudicing the health and well-being of that patient or client. Due care, in this context, includes an assessment of whether release of The Commissioner is quite satisfied that in sending records to a health professional under section 28(4), the public body concerned is quite entitled, if not obliged, to give that health professional full details of the reasons why the records were not released to the requester. Where section 28(3) has been invoked in a situation of perceived threat to third parties, the public body should provide details of any history of violence or threats of violence on the part of the requester as well as any professional assessments available which suggest the requester may react inappropriately in the event of acquiring certain information.

The Commissioner recognises that, ultimately, it is a matter for the health professional to decide the extent to which records or information should be made available to the requester. However, any failure to exercise due care by that health professional could expose the professional to a charge of professional negligence. It might be useful in this context were the Central Policy Unit of the Department of Finance to consult with the professional bodies concerned with a view to raising awareness of the issues arising. Indeed, were some form of guidance to be issued by the professional bodies for their members, this would be very desirable.

Section 23(1)

Section 28(3) is an option only where the records sought fall into the category of medical/psychiatric/social work records. The issue arises as to whether in relation to other types of records - or even in relation to medical/psychiatric/social work records - section 23(1)(c) might be applicable. This provision applies where access to the record sought “could …reasonably be expected to… facilitate the commission of an offence”.

In the very small number of cases in which the Commissioner has had to consider the application of section 23(1)(c), he has tended to the view that “facilitate” should be interpreted in the sense of “make easier”. The argument has been made that “facilitate” might also be deemed to encompass the notion of “making it more likely” that (in this context) an offence will be committed. For example, giving a psychiatric patient his records might (in a small minority of cases) incite a violent response; providing the records does not make the act of violence any easier but it may make it more likely. The Commissioner accepts that in individual cases the circumstances may be such that the granting of records may be so patently likely to provoke a violent reaction that one could, in all reasonableness, conclude that the granting of the records would “facilitate” the commission of an offence. However, as already outlined above, such a conclusion should only be reached on the basis of tangible evidence.

In a recent case involving a perceived threat to the personal safety of third parties (the context was one of alleged anti-social behaviour within a local authority housing estate), the Commissioner relied, amongst other provisions in the particular case, on section 23(1)(a)(ii) and (iii) and on section 23(1)(b). Taking all of these provisions together, the logic was that the release of records or part-records which identified people who had complained about the behaviour of the requester, or which identified officials who had investigated and dealt with the requester, might reasonably be expected to prejudice or impair “compliance” with the law, i.e. identifying these third parties made it more likely that the requester would attack or intimidate these people or their property. Furthermore, if release of records was seen as making it more likely that an offence would be committed, then this might reasonably be expected to prejudice or impair lawful methods “for ensuring the safety or security of persons and property”.

A drawback in invoking the section 23(1) option for this type of case is that it draws the attention of the requester to the view that he or she is perceived as potentially violent. This is because section 8(2)(d)(i) requires that reasons with information which would be exempt rather it deals with “information contained in an exempt record”. Further consideration, of the manner in which the Commissioner might invoke section 43(3) is needed)

Section 12

Section 12 deals with the manner in which access is to be given once a request has been granted. In the normal course, access is granted in the form or manner specified by the requester. The option to provide a “transcript of the information concerned” rather than a copy of the actual record, may be of help where concealing the identity of the author (e.g. by preventing identification via hand-writing style) is desirable in the interests of ensuring the safety of the author. Such an approach might be justified on the basis of section 12(2)(b)(iii). Whether the term “transcript of the information concerned” allows for any editing of the content of the record - provided always that the information is conveyed - may be worth some consideration.

Conclusion

It is clear the FOI Act, while not having a specific exemption to ensure the personal safety of third parties or their property, does have a number of provisions which might be invoked to achieve the same purpose. Ultimately, a specific “personal safety” exemption might be useful; but even with such a provision, it remains the case that informing the requester that such a provision (or one of the section 23 options outlined above) is being invoked creates difficulties. This is because the requester will be put on notice that some people are in fear of him/her. Finding a solution to this dilemma will require considerable further thought.

Office of the Information Commissioner

3 February 2003

Joint Committee on Finance and the Public Service

Room CR 2

Leister House

Dublin 2

19^th March 2003

Re: Amendments to the Freedom of Information Act

Dear Members of the Committee,

The Adopted Peoples Association (APA) is the representative organisation for Irish people who have been adopted. We represent over 40,000 people who have been legally adopted since the introduction of the Adoption Act, 1952, an unknown number of people subject to illegal, de facto adoptions, and over 2,000 Irish-born people who were adopted abroad, primarily to the United States. We provide various services to adopted people and natural parents, including the Irish Adoption Contact Register, and are in receipt of funding from the Department of Health & Children.

The APA would like to add its voice to those who reject any form of tampering with the freedom of Information Act. We have used it extensively and it has given us many insights into Government’s thinking on proposed legislation as well as practice and procedure in implementing change.

In particular, we reject any amendments that will make it harder, or indeed impossible, for a person to access personal records using FoI.

We believe that for any democracy to work well, concerned citizens need to be armed with accurate information that they may fully take part in the democratic process. It is not sufficient to give lip service to the ideals of democracy but systems must be put in place to empower people. Forward-thinking pieces of legislation such as the FoI Act go some way to achieving this ideal.

Rather than curtailing the Act, we believe that its provisions should be broadened. The APA would be happy to meet with your Committee to make a more detailed presentation on this issue.

Yours sincerely,

Anton Sweeney

Chairperson

The Application and Operation

of Certain Provisions

of the

Freedom of Information Act, 1997

Commentary of the Information Commissioner

in accordance with the provisions

of section 39 of the

Freedom of Information Act, 1997

March, 2003

Contents

Background

On 28 February, 2003, the Freedom of Information (Amendment) Bill 2003 (“the Bill”) was published. The Bill envisages a number of changes to the Freedom of Information Act, 1997 (“the FOI Act”). Some of these changes could be described as technical in nature, in effect, tidying up the practical administration of the Act as it stands. Others have a broader approach; amending the scope of the Act in some areas and introducing measures designed to provide an enhanced degree of exemption from release for certain records.

I am conscious that many commentators would like me to state my views on the proposed legislation. I do not intend to do so; it would be entirely inappropriate for me to engage in public debate on the merits or demerits of the Bill. The Constitution provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas and it is the role of the Information Commissioner, in relation to the FOI Act, to implement the legislation passed by the Oireachtas in an independent and impartial manner.

Given the importance of the proposed changes to the Act, however, and having regard to my statutory reporting relationship with the Houses of the Oireachtas, I have decided to publish a commentary under section 39 of the Act. Section 39 provides that

“The Commissioner may prepare and publish commentaries on the practical application and operation of the provisions, or any particular provisions, of this Act, including commentaries based on the experience of holders of the office of Commissioner in relation to reviews, and decisions following reviews, of such holders under section 34.”

In the commentary (which is set out in full in Appendix I) I report on my examination of the workings of those sections of the FOI Act which it is now proposed to amend in the Bill. I have focused on the more significant decisions which I have made since April 1998 in applying and operating those sections. I go on to comment on how those decisions would be affected if the new amended provisions had been operating at the time of my decisions. I appreciate that, as a result, the commentary is rather technical and is designed as a working aid for those analysing the Bill rather than for the general reader. However, I have attempted in the Synopsis which follows, to highlight the salient issues. I have also included in Appendix II, my suggested amendments to improve the operation of the FOI Act which I forwarded to the Department of Finance on 5 February, 2003 after I became aware that a Bill to amend the Act was due to be published during the current Dáil session.

The various exemptions in the FOI Act are designed to protect the public interest and the privacy of individuals. There are two broad categories of exemptions:

•class exemptions where all records in that class or category are exempt e.g. records to which legal professional privilege attaches and

•harm based exemptions where records which might damage a particular public interest are exempt e.g. records which reveal the negotiating positions of public bodies.

Many but not all exemptions may contain what is often referred to as a public interest override i.e. even though a record is exempt under the FOI Act a public body or the Information Commissioner may decide, on balance, that the overall public interest justifies its release. Some exemptions may provide that a public body may refuse to disclose the very existence of a particular record where to do so might disclose exempt information.

Some classes of records may also be excluded from the scope of the FOI Act e.g. records created by the Attorney General, records relating to the President and the private papers of TDs and Senators.

There is also provision in the case of two exemptions - section 23 (Law Enforcement and Public Safety) and section 24 (Security Defence and International Relations) - for a Ministerial certificate which is a final and conclusive refusal and is not appealable to the Information Commissioner. There is however an appeal to the High Court against the issue of a certificate on a point of law in section 42.

General Overview

In the course of preparing this commentary, I became aware of two particular amendments involving section 19 (Meetings of Government) and section 20 (Deliberations of Public Bodies) which, in my view, could create serious legal and other problems in the future and which have the potential to result in costly litigation possibly involving my Office. My concern is not with the merits or demerits of the amendments but with the wider implications of the way in which the amendments are structured.

Section 19

The proposed amendment (in section 12 of the Bill) to section 19 is designed to exempt records of a “committee of officials” set up to assist the Government directly in relation to a particular matter. This is effected by substituting for the definition of “Government” currently contained in section 19(6) a much more far-reaching and constitutionally unrecognisable definition, which is, perhaps, unnecessary to achieve the objective it appears to have been designed to achieve (as explained in the Explanatory Memorandum to the Bill).

The Interpretation Act 1937 provides that, unless the contrary intention appears, the expression “the Government” means the Government mentioned in Article 28 of the Constitution. The definition of “Government” currently contained in section 19(6) of the FOI Act is such that the expression “Government” as used in section 19 will, at a minimum, mean a committee consisting at least of some members of the Government or of some members of the Government, together with one of more Ministers of State and/or the Attorney General.

By contrast, the proposed extension of that definition would admit of the interpretation of the expression “Government” as used anywhere in section 19 as meaning a committee of officials, not one of whom is a member of the Government and, indeed, some or none of whom may be civil servants of the Government or the State.

In relation to the far-reaching nature of the proposed definition it is to be noted that, in addition to Ministers of State and the Attorney General, it is now proposed that a committee of officials is to be comprehended as included within the definition of “Government”. The proposed definition of “officials”, in turn, goes so far as to include persons holding a position in the Civil Service of the Government or the Civil Service of the State, special advisers and, in the event of regulations so prescribing in the future, yet further persons who are members of other classes of person. Special Advisers, by definition, occupy or occupied excluded positions (within the meaning of the Civil Service Commissioners Act, 1956), having been selected for appointment to those positions by office holders personally otherwise than by means of competitive procedures or who are employed under contracts for services by office holders, and whose functions or principle functions are or were to provide advice or other assistance to or for office holders.

In addition, apart, altogether, from the constitutional unrecognisability of the definition as so extended, the proposed inclusion of a “committee of officials” within the definition of “Government” is likely to lead to difficulties of interpretation as the proposed amendment does not go so far as to indicate sufficiently clearly, if at all, when the expression “Government” in section 19, would admit of the possibility that a committee of officials is being referred to and when it would not. In other words, the formula chosen to achieve the proposed amendment’s goal, appears not to be capable of sufficiently clear or precise application.

In light of this, one could foresee significant levels of, and room for, dispute and argument over those provisions if they were to remain in their current form. Accordingly, one could foresee significant levels of internal review and review applications, cases stated and appeals on a point of law as being likely to be generated by these provisions. For example, the term “Memorandum for Government” is generally understood as one to be submitted to Government by a Minister or by the Attorney General in accordance with the detailed rules laid down in the Cabinet Handbook. Under the amended section 19 a memorandum prepared for a committee of officials appointed under the section would be a memorandum for the Government under the terms of the FOI Act.

The High Level Review Group considered that certain records created by specialist working groups set up by the Government would genuinely fall within the categorisation of “Cabinet records”. It seems that such records if submitted to the Government by a Minister on the Attorney General would be already covered by section 20 (1) (a) of the FOI Act.

Accordingly, it would appear that defining “Government” in such a way as to include a “committee of officials” may be an overly loose, unclear and inefficacious way of achieving what the Explanatory Memorandum sets out as the goal of the proposed amendment.

Section 20

The proposed amendment (in section 13 (1A) of the Bill) to section 20 of the FOI Act provides that the head shall refuse a request where a Secretary General has issued a certificate stating that the record contains matter relating to the deliberate processes of a Department. There would be no appeal to the Information Commissioner or to the High Court against such a decision by a Secretary General.

Given the definition of “head of a public body” in section 2 of the FOI Act it appears that the following would be the position:

(1) A Minister could not release a record under the FOI Act if the Secretary General of his/her Department or indeed the Secretary General of another Department issued a certificate in writing stating that the record contained matter relating to the deliberative processes of a Department.

(2) The same position would apply in the case of the Attorney General, the Comptroller and Auditor General, the Ombudsman, the Information Commissioner, the Civil Service and Local Appointments Commissioners, the Ceann Comhairle and the chief executives of the numerous public bodies covered by the FOI Act including County Managers.

Accordingly, for example, the Minister for Finance would require to refuse to grant a request for access to a record which was certified by the Secretary General of the Department of Justice, Equality & Law Reform to relate to the deliberative processes of the Department of Agriculture & Food.

Having regard to the functions of Secretaries General of Departments in general, and to the provisions of the Public Service Management Act, 1997 in particular, it would seem inappropriate that a Minister, as head of a Department, would require to comply with a final certificate issued by the Secretary General of his Department. In addition, it would seem inappropriate, having regard to the same considerations, that a Secretary General of one Department could issue a certificate in respect of the deliberative processes of another Department.

It might be noted in this regard that a Secretary General of a Department even in his / her statutory role as an Accounting Officer is still subject to Ministerial direction with certain safeguards.

There would be an urgent need to establish in what ways the issue of a certificate in respect of a Department’s deliberative processes could impinge on the rights of independent Office Holders such as the Comptroller and Auditor General or the Ombudsman who might be in communication with a Department. Section 6 (8) of the FOI provides that nothing in the FOI Act prohibits or restricts a public body from giving access to a record (including an exempt record) otherwise than under the FOI Act unless it is prohibited by law. Where disputes arise between public bodies those bodies may choose to release records outside FOI resulting ultimately in unstructured and confusing situations. This would seem to be at variance with the co-ordination and centralisation of the release of records which seems to be the object of the amendment.

One could also foresee disputes over, and possible challenges to, particular instances of certification and of failures to revoke, or delays in revoking, same by Secretaries General.

Finally, it would seem inappropriate that a certificate issued by a Secretary General under the proposed section 20 (1A)(a) be final when, amongst other considerations, in contrast, a certificate issued by a Minister under section 25 of the 1997 FOI Act is appellable under section 42 to the High Court on a point of law. Moreover, it would seem inappropriate, in circumstances where such a Minister may declare a record to be exempt in such a Certificate by virtue of section 23 [Law Enforcement and Public Safety] or 24 [Security, Defence and International Relations] only if he/she is satisfied that the record concerned is of sufficient sensitivity or seriousness to justify his/her doing so, that a Secretary General of a Department of State may certify a record of whatever nature to relate to the deliberative processes of any Department of State, whatever their nature.

Other Significant Changes

(I) Section 24 of the FOI Act is a harm based exemption which protects records whose release could reasonably be expected to affect adversely the security, defence or international relations of the State or matters relating to Northern Ireland. Section 24(2) contains examples of the types or classes of records which may be covered by the exemption providing their disclosure could reasonably be expected to give rise to one or more of the harms identified. e.g. communications between a Minister of the Government and a diplomatic mission or consular post of the State, communications between the Government or a person acting on behalf of the Government and another government or a person acting on behalf of another government etc. The Bill will result in the various categories of records identified in section 24(2) being protected as a class, regardless of their content and it will no longer be necessary to identify a particular harm which might arise from their disclosure. The Explanatory Memorandum does not refer to the fact that the FOI Act already allows for a Ministerial certificate to be issued in the case of sensitive records.

(2) The Bill will also result in the extension of the circumstances where a public body may refuse to disclose the existence of a particular record where to do so might disclose exempt information. The “neither confirm nor deny” response is currently provided for in four circumstances. The Bill will result in its extension to circumstances where the disclosure of a record would disclose information which is exempt on the grounds that the record contains

•information obtained by a public body in confidence (section 26),

•commercially sensitive information (section 27), or

•personal information relating to a party other than the requester (section 28).

(3) The Bill also provides for the protection of a number of additional classes of records, including;

•communications between Ministers dealing with matters under consideration by the Government,

•extension of the period from 5 to 10 years after which records relating to a decision of the Government would be potentially releasable subject to consideration of the various exemptions or the issue of a Ministerial Certificate in the case of sensitive records relating to law enforcement, security, defence, international relations (including Northern Ireland matters)

•records relating to the work of a tribunal or inquiry including preparatory work related to their establishment.

(4) Finally a number of additional categories, currently accessible under the FOI Act, will be excluded, including

•records relating to costings by public bodies of proposals of political parties and

•parliamentary briefing records including records created for the purpose of briefing for parliamentary questions.

Synopsis of the Commentary made under section 39 of the FOI Act

I attempt in this section to provide a brief synopsis of how I applied in particular cases the provisions of the FOI Act that are now to be amended. Technical amendments are dealt with either in Appendix I or in Appendix II.

Appendix 1 following, goes into much greater detail, sets out the rationale for my decisions and comments on how the Bill might affect the future operation of the FOI Act in these areas.

Section 2 (Interpretation)

Proposed Changes

Section 2 of the Bill includes a proposal to amend the definition of “record”, in section 2 of the FOI Act, to clarify that a photocopy or other reproduction of a record is deemed to have the same date of creation as the original record.

Experience To Date

In a High Court judgement arising from one of my decisions, in which I held that replication of a record was not the same as the creation of a new record, the Court remarked that originality is not an essential ingredient in a record and that a person who makes a copy of a record is the creator of that record. This had two implications: the first is that, where a record was created prior to the commencement of the FOI Act and a copy of it is made after commencement, then there is a right of access (Subject only to any exemption which might apply) to the copy, although not to the original. The second implication is that section 46 of the FOI Act might not exclude copies of records, created by the Attorney General’s Office or the OPP’s Office but copied and held by other public bodies, from the operation of the FOI Act.

Comment

The proposed amendment would seem to deal with the first issue identified above.

Section 6(5)(b)

Proposed Amendment

Insofar as a request is for personal information the Bill provides for the word “contain” to be substituted for the words “relate to” where records are concerned. Thus, pre-commencement records may be accessed under this provision of the FOI Act only if they “contain” personal information about the person seeking access to them.

Experience to Date

In one of my decisions I found that all of the records in question could not be said to contain personal information about each requester. However, section 6(5)(b) does not require this. I decided that it is sufficient that the record relate to personal information about the requester for that section to apply.

In a High Court judgment arising from one of my decisions the Court found that in determining whether a record relates to personal information about the requester, one must see whether there is a sufficiently substantial link between the requester’s personal information and the record in question. Where the record does not name or has no express reference to the requester a substantial link will be established if the record relates to something in which the requester has a substantial personal interest, as distinct from something in which he has an interest as a member of the general community or of a large scale class of the same.

Comment

It is clear that records which “relate to” personal information as currently provided encompasses a broader category of records than records which “contain” personal information.

Section 8(4)

Section 8(4) of the FOI Act provides that the motive of the requester may not be taken into account in a decision by a public body.

Proposed Amendment

The proposed amendment provides the insertion of the words “Subject to the provisions of this Act” before section 8(4).

Experience to Date

In one of my decisions I noted that what can be of little concern to one requester can be of vital concern to another. I found that section 8(4) is incompatible with an approach that would permit public bodies to refuse requests on the grounds that they seemed to be of little value or had no reasonable purpose. This may have some impact on an amendment of section 10.

Comment

I am not clear on the possible effects of this amendment.

Section 10

Parts of section 10 provide for the refusal of a request on the grounds that it is frivolous or vexatious.

Proposed Amendment

One of the amendments proposed under this section expands the grounds for refusal by including situations where the request “forms part of a pattern of manifestly unreasonable requests from the same requester, or from different requesters who, in the opinion of the head, appear to have made the request acting in concert”,

Experience to Date

In one of my decisions I set out grounds that might be relevant to a public body arguing that a request was vexatious: a pattern of behaviour, abuse of the process, bad faith. To date, public bodies have not refused access on these grounds to any great extent. I have one such case under review currently.

Comment

I consider the term “frivolous and vexatious” already encompasses the behaviour specified in the amendment.

Section 19

Section 19 contains provisions for refusal of records in particular circumstances to do with meetings of the Government.

Proposed Amendments

Amongst other things section 12 of the Bill provides for the following amendments:

1.mandatory exemption of all Government records covered by substituting the words “shall refuse” for the words “may refuse” in subsection (1)

2.protection for communications between Ministers dealing with matters under consideration by the Government

3.substituting the word “primarily” for the word “solely” to allow for advice created for the primary purpose of Government business to be protected

4.extension of the period during which records are covered under section 19(1) from 5 years to 10 years

5.extending the protection available under 19(1) to records of “a committee of officials”, including working groups, where the committee is certified by the Secretary General to the Government as having been established for direct support of Government deliberations and will report directly to the Government. The amendment also includes a definition of the term “officials” which is generally intended to include civil servants and special advisers although it may be extended even more widely.

Experience to Date

I have highlighted my comments in italics.

1.Mandatory Exemption

In its Report to Government, the High Level Group stated that it was “satisfied that the overarching policy of section 19 is that Cabinet records should be exempt from access for a reasonable time and that this is necessary if the Cabinet process and the exercise of collective responsibility are not to be constrained to the detriment of effective decision making based upon the free and frank expression of views (and that) in these circumstances … the legislation should give clear expression to the policy intent by removing the option of a discretion being exercised”.

I note that in proposing this change, the High Level Review Group, referring to my Compliance Report “The Freedom of Information Act - Compliance by Public Bodies” stated that “the Information Commissioner has observed (that the exemption) has been applied largely in a mandatory fashion (and) …that (this) has prompted calls by the Information Commissioner…for greater flexibility in its application to allow access to Cabinet records in certain circumstances”.

It is clear that my view of the intention of the FOI Act as originally framed differs from that of the High Level Group.

2.Communication between Ministers

While I am aware of cases where such records have been released, I have not issued a decision in this area.

3.Substituting “primarily” for “solely”

In previous decisions I have found that

•an agenda for a meeting of Cabinet is exempt under the FOI Act as it contained information for use solely for the transaction of Government business at a meeting of the Government,

•a record containing provisional dates for Cabinet Meetings did not meet this criteria nor was it a record of Government,

•memoranda and (depending on the circumstance of their creation) draft memoranda for Government are exempt under section 19,

•Departmental observations on draft memoranda for Government are exempt under this section,

•Aides Memoire for Ministers for use at Cabinet meetings are exempt under this section

•Records such as departmental briefing notes prepared for the relevant Minister, notes prepared for the Secretary or Assistant Secretary to the Government prepared solely for the purposes of a meeting of Government are exempt under this section

Some records which were released by reference to the word “solely” might not be released by reference to the word “primarily”

4.Extending the period of protection for records covered by section 19(1) to 10 years

As the existing 5 year term has not been completed no review has arisen. It should be noted, however, that any proposed release under the five year rule is subject to all the other exemptions, including the possibility of a Ministerial Certificate.

5.Extending the protection available under 19(1).

I have made a number of decisions which would have some relevance:

•Documents considered at Cabinet but whose use could not be confined to the transacting of the business of the Government at a meeting of the Government were not exempt under this section

•Nor was a document prepared for a sub-group of a Cross-Departmental Team which had been submitted as an appendix to a report given to a Cabinet sub-committee but which had not been created for that purpose.

Some records which were released would not be released in future if created by a “committee of officials” of the kind envisaged.

Section 20

I have already made some general comments on this section in the General Overview. Section 20 provides for the refusal of access to documents where the records relate to the deliberative process of the public body and granting the request would be contrary to the public interest.

Proposed Amendments

Amongst others, Section 13 of the Bill provides for the following amendments:

1. Extending the protection available for matter relating to the deliberative processes to those of “a public body” as opposed to “the public body concerned”.

2. Enabling a public body to refuse a request for a record if a Secretary General of a Department of State has certified that the record contains matter relating to the deliberative processes of a Department of State. Such a certificate must be revoked by a Secretary General once the deliberative processes concerned have ended. While such a certificate is in force, a requester would not be entitled to apply for an internal review or for a review by the Information Commissioner of the decision to refuse a request.

3. The inclusion of a public interest balancing test which would require that a request be granted in cases where the public interest would, on balance, be better served by granting than by refusing the request and the removal of the current requirement, at section 20(1)(b), that the granting of a request would have to be contrary to the public interest before it could be refused.

Experience to Date

Where it has arisen, the question of the “public body concerned” has normally been dealt with during the process of my reviews.

I have made relevant decisions as follows:

•I have exempted records where the deliberative process is ongoing and its release is contrary to the public interest (e.g. pilot whole school evaluations)

•I have found that records did not form part of the deliberative process of the public body (e.g. administrative advice for the Clerk of the Seanad in relation to a possible visit by the President of the European Commission)

•I have found that records did relate to the deliberative process but their content was such that release would not be contrary to the public interest (e.g. the type of transport to be used by Taoiseach on an official visit overseas, Report of the Pensions Board to the relevant Minister concerning a Pensions Ombudsman).

Comment

The effect of the proposed amendment would mean that a record declared as relating to the deliberative process of a public body could only be released if its release was in the public interest. While still subject to the public interest override, it appears that an individual Secretary General (most likely but not necessarily in a central Department) could prevent the release under the FOI Act of certain documents held in other Departments and public bodies.

Section 21

Sections 21 (1) (a) and 21 (1) (b) provide protections to records where access to the record concerned could prejudice the functions and negotiations of public bodies.

Proposed Amendments

The sub-sections are to be amended by providing a revised wording for paragraphs (a) and (b) to the effect that the Principal Act will extend the protection available to any public body, not just the public body the subject of the request.

Experience to Date

Some concerns have been expressed that records held by a particular public body could be releasable if those records had not been created by that body. I have recognised in some of my decisions that more than one Department comprises “the Official Side” for the purposes of pay negotiations.

Comment

The amendment seems designed to centralise or co-ordinate the approach to release where more than one public body is involved.

Section 22

Section 22 of the FOI Act provides protection to parliamentary, court and other matters.

Proposed Amendment

Section 15 of the Bill inserts a new subsection in section 22 of the FOI Act and will provide a new exemption for records relating to tribunals and other bodies appointed to inquire into specified matters. As it Stands, section 46(1)(a)(ii) of the FOI Act currently excludes from the operation of the FOI Act certain records held by a tribunal to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied, … and relating to, or to proceedings in, … such a tribunal other than (I) a record that relates to proceedings in … such a tribunal held in public but was not created by the … tribunal and whose disclosure to the general public is not prohibited by … the tribunal, or (II) a record relating to the general administration of … such a tribunal or any offices of such a tribunal.

Section 15 of the Bill provides a new mandatory exemption for records held by a public body relating to the work of a tribunal or inquiry (as defined) including preparatory work related to their establishment.

Experience to Date

One case which came before me concerned the administrative records of a Tribunal concernin primarily fixed assets (e.g. office equipment) which the public body claimed were excluded from the provisions of the FOI Act pursuant to section 46(1)(a)(ii). It was argued, inter alia, that the records were records of a Tribunal, the originals of which were in the possession of a public body solely for a particular purpose. As the request was withdrawn, it was not necessary for me to make a formal decision in this case.

Comment

No comment.

Section 23

Section 23 of the FOI Act contains provisions for refusal of access on grounds of law enforcement and public safety.

Proposed Amendment

Section 16 of the Bill proposes an amendment in section 23 of the FOI Act to provide additional grounds for exemption where release of a record could reasonably be expected to “endanger the life or safety of any person”.

Experience to Date

To date, issues of personal safety have arisen in only a very small number of cases which have come before me for review. However, where this issue does arise, it is a very serious matter as it would be quite unacceptable that the FOI Act should have the effect of putting anyone’s personal safety at risk. The perceived risk may relate to the requester, to staff of the public body concerned or to third parties (usually family, friends or neighbours of the requester). In some cases, the risk may be one of damage to property of an individual or organisation. The FOI Act, at present, does not have an explicit exemption designed to protect personal safety or to protect property.

On 3 February 2003 I published a discussion document on this issue (available on my Office website) which considered a number of typical risk scenarios as well as a number of possible options already provided for in section 23 and in section 28(3). The discussion document concludes: “It is clear the FOI Act, while not having a specific exemption to ensure the personal safety of third parties or their property, does have a number of provisions which might be invoked to achieve the same purpose. Ultimately, a specific “personal safety” exemption might be useful; but even with such a provision, it remains the case that informing the requester that such a provision (or one of the section 23 options outlined above) is being invoked creates difficulties. This is because the requester will be put on notice that some people are in fear of him/her. Finding a solution to this dilemma will require considerable further thought.”

Comment

The amendment still leaves open the possibility of a violent reaction to the use of the exemption.

Section 24 (as qualified by section 25)

Section 24 provides for the exemption of records that could reasonably be expected to affect adversely the security of the State, the defence of the State, the international relations of the State, or matters relating to Northern Ireland.

Proposed Amendments

Section 24(2) currently provides specific examples of the types of records which may be covered by the exemption in 24(1). It is not sufficient, however, for the public body to show merely that the record is a type which comes within the scope of section 24(2). It must also satisfy me that the disclosure of the record could reasonably be expected to affect adversely one or more of the functions identified in section 24(1).

Section 17 of the Bill provides for the amendment of subsections (1) and (2) to provide a mandatory class exemption for the records specified in subsection (2) and eliminates the need for the identification of a specific harm which might arise from their disclosure.

Experience to Date

I have made relevant decisions as follows:

•I have found that access to certain records containing information communicated in confidence from, to or within international organisations of states should be refused

•I have found material whose release could reasonably be expected to adversely affect the international relations of the State should be refused (e.g. internal descriptive discussions of European developments, note of a sensitive telephone conversation between a Department official and the Finnish Security Director, report of confidential conversation etc.)

•I have found that routine communications between an Irish embassy and the Department of Foreign Affairs containing information already in the public domain could not reasonably be expected to affect the international relations of the State

•I have found that there will be occasions where a “security clearance” record can reasonably be expected to adversely affect the security of the State

•I have found that particular “security clearance” records should be released as their contents - which I carefully assessed - could not reasonably be expected to adversely affect the security of the State

•I have found that a list of file titles and their reference numbers could reasonably be expected to adversely affect matters relating to Northern Ireland.

Comment

Under the Bill as proposed it will not be possible to examine these types of records as to whether their content could reasonably be expected to have the adverse effects described in the Act. It is noteworthy that section 25 already provides for a Ministerial Certificate in the case of sensitive material and that there is no public interest test.

Section 26

This section of the Act is concerned with information obtained in confidence.

Proposed Amendments

A similar amendment to those in sections 20 and 21 is proposed in terms of substituting “a public body” for “the public body”.

Comment

My comments are similar to those in sections 20 and 21.

Sections 26, 27 and 28

The provisions of sections 26, 27 and 28 refer to information received in confidence, commercially sensitive information and personal information respectively.

Proposed Amendments

The Bill provides for an amendment to these sections whereby a head will be allowed to refuse to confirm or deny the existence of a records where the record is covered by an exemption under these sections.

Experience to date

The FOI Manual produced by the Central Policy Unit of the Department of Finance explains that the use of the ‘neither confirm nor deny’ provisions will be justified only in rare situations and that such a provision is necessary because, in some instances, merely confirming the existence of information will directly or implicitly disclose sensitive information. I have had no cases under these sections where the issue arose.

Comment

I recognise that there may be circumstances where records contain material of such a sensitive nature that I should be in a position to uphold a decision a public body under one of the ‘neither confirm nor deny’ provisions but such a decision must be supported by reasonable argument. I am not aware of the reasons for including such a provision in these sections.

Section 46(1)(d)

Section 46(1) of the Act identifies particular classes of records to which the Act does not apply.

Proposed Amendments

Section 46(1) is to be amended by inserting new paragraphs before paragraph (e), the purpose of wh is to 1) exclude from the Act a record relating to the costing by a public body of a proposal of a polit party and 2) to restrict the Principal Act from applying to parliamentary briefing records including re created for the purpose of briefing for parliamentary questions (whether oral or written).

Experience to Date

I have not issued a decision in relation to the subject of the first proposed amendment. I did, however receive an appeal on 3 December, 2002 on a related case seeking the costings provided by the Department of Finance to various political parties in the run-up to the last election. The review is on and a decision should issue shortly.

Comment

It is clear that the amendment proposed would exempt such cases in future.

With regard to the second proposed amendment my experience of the operation of the Act over the course of my reviews has been that this material has generally been released as a matter of course. In the case of Mr. ABD and the Department of Marine and Natural Resources, however, I was made aware that the Department, as part of its original decision, released to Mr. ABD a copy of a parliamentary question from Mr. Enda Kenny TD along with the reply by Minister Michael Woods and supporting information. As I had no need to review records already released I did not have sight of the “supporting information” mentioned above. As such, I am not in a position to say definitively if the information in this case constituted the type of record envisaged in the proposed amendment. If it did, the proposed amendment would mean that the Act would no longer apply to them.

Comment

This would have the effect of pulling back on information which is accessible at present although of course the briefing records could be covered by other exemptions.

Section 47

Section 47 currently provides for the charging of fees by public bodies in respect of the grant of a request under the Act.

Proposed Amendment

Section 26 of the Bill allows for the charging of a fee (as prescribed by the Minister for Finance) in respect of a request for access to non-personal records and for the charging of fees in respect of applications for internal review and in respect of an application for review to my Office.

Experience to date

The experience of my Office to date is that relatively few applications for review relate to a decision of a public body to charge a fee. Whereas 10 such applications were accepted for review by my Office in 1999, only 5 such applications were accepted in 2000 and only 1 in 2001. Where applications are received in such cases they can sometimes be resolved be agreement between the parties. Where a decision has been necessary, my decisions have, in the majority of cases, affirmed the public body’s decision to charge the fee. It is also apparent to me from the many cases which come before me on review, that frequently public bodies do not charge fees or deposits as provided for in section 47.

Comment

It is unclear what the effect of the new paragraph 6(A)(d) will be - will an application fee and a search/retrieval fee and copying fee be chargeable? Also, will the fees be chargeable at each stage of the process on a cumulative basis?