Information Commissioner publishes Annual Report for 2014

The Information Commissioner (IC), and Commissioner for Environmental Information (CEI), Peter Tyndall, has published his Annual Report for 2014. 

Part 1 - Information Commissioner
Part 1 of the Report relates to the IC's role under the Freedom of Information (FOI) Act 2014, which gives people the right of access to records held by Government departments, the Health Service Executive (HSE), Local Authorities and many other public bodies.  As usual, the Report contains some interesting statistics in relation to the sectors receiving the most FOI requests, release rates by public bodies, and outcomes of reviews by the IC.  It also highlights recent decisions made by his Office during 2014.

Key FOI developments include:

  • Significant improvements in productivity, including a 31% increase on the number of cases completed in 2013, and a 70% increase on case closures for 2012.
     
  • The new FOI Act 2014 passed into law in October 2014 and extends the remit of FOI law to all public bodies unless specifically exempt; the abolishment of the €15 application fee for making FOI requests and the reduction in the fee for submitting review applications to the IC.
     
  • A Code of Practice was published by the Central Policy Unit in December 2014 to assist all public bodies comply with FOI law.
     
  • The IC's Office is developing additional guidance notes, which should be publicly available on it's  website (www.oic.gov.ie) by the end of this year. These notes will set out how the IC's Office interprets and applies the various exemptions in the new Act.
     
  • The IC highlighted that any FOI request submitted to an FOI body prior to 14 October 2014 must be reviewed by his Office under the provisions of the old FOI Acts 1997 and 2003.
     
  • A revised work process has taken place in the IC's Office. In the past the IC's staff engaged in "prolonged discussions" with FOI bodies in relation to their reasons for refusing FOI requests.  Going forward however, FOI bodies should treat the opportunity to make a submission to the IC's Office, during the course of a review, as their "final chance" to justify their decision.
     
  • The IC used his powers under section 37(2) (the first IC to do so) to enter premises for the purposes of obtaining access to information that had been the subject of repeated requests from his Office

Key FOI Statistics include:

  • Section 37 Notices (Section 45 Notices under the FOI Act 2014) – Nine statutory notices were served on 6 public bodies by the IC, requiring the Head of those bodies to furnish information deemed relevant for the purposes of a review.

    The IC highlighted that formal statutory notices can be avoided simply by maintaining appropriate channels of informal communication with the IC's staff, and by responding to any requests for relevant information, with a telephone call or email.
     
  • Number of FOI requests – 20,244 FOI requests made to public bodies, a 7% increase over the figure for 2013 (18,985).
     
  • Types of requests – The majority of FOI requests were for personal information (15,548). It will be interesting to note what effect, if any, the changes in the fees structure will have on the number of requests made in 2015 for access to non-personal or mixed information.
     
  • Sectoral breakdown – In line with previous years, the HSE recorded the majority of requests received by a public body at 37%.  Government departments and State bodies received 32%; Voluntary Hospitals, Mental Health Services and related agencies 20%; local authorities 8%; third level institutions 2%; and other voluntary bodies 1%.
     
  • Top ten bodies – The HSE and hospitals accounted for eight of the top ten public bodies in receipt of FOI requests in 2014.  The other two public bodies were: the Department of Social Protection and the Department of Justice and Equality.
     
  • Type of requester to public bodies – Clients of public bodies (68%); journalists (12%); business (4%); Oireachtas members (0.6%); staff of public bodies (3%); and others (13%).
     
  • Release rates by public bodies - 62% of FOI requests were granted in full; 19% were part-granted; 10% were refused; 4% were withdrawn; 2% were transferred and 3% were handled outside FOI.
     
  • Outcome of reviews – The IC reviewed the decisions of public bodies in 340 cases. This was an increase of 31% over the 2013 figure of 258 cases.  The IC affirmed 45% of decisions of public bodies; annulled 5% and varied 9%. The combined percentage of cases that were settled, withdrawn or discontinued was 41%.
     
  • Appeals to the Courts – Four decisions made by the IC were appealed to the High Court during 2014.  Of these, an ex-tempore judgment (Case 120129 – Mr X v the HSE) was delivered in one case, while another case was remitted back to the IC's Office by agreement.  The two remaining High Court appeals are listed for progression in 2015.
     

Two appeals of High Court decisions were made to the Court of Appeal in 2014.

Three written High Court judgments were delivered in 2014 including:

(1) Minister for Health and the Information Commissioner [2014] IEHC 231 – The High Court found that records relating to the Inquiry known as the Drogheda Review were not "held by", or "under the control of", the Department for the purposes of the FOI Act, and upheld the Department's appeal. 
The IC has appealed this decision to the Court of Appeal, but has not yet taken a decision whether to proceed with the appeal.

(2) Westwood Club and the Information Commissioner [2014] IEHC 375 – The High Court made an order discharging the IC's decision and remitting the matter to his Office for further consideration.  The IC had found that records held by Bray Town Council as shareholder of a company were not "held by" the Council or under it's "control" for FOI purposes.

(3) Kelly v Information Commissioner [2014] IEHC 479 – The High Court held that it had no jurisdiction to entertain the appeal in this case, as the IC had discontinued the review on the grounds that it was frivolous or vexatious, and as such no appeal lay against the IC's decision. The applicant has appealed to the Court of Appeal against this decision.

  • No Supreme Court judgments were delivered in 2014.

Key FOI decisions include:

  • Fitzgerald, RTE and the Department of Justice and Equality - Case no. 130165
    The IC varied the decision of the Department of Justice relating to the refusal of records concerning the provision of accommodation and ancillary services to asylum seekers. The IC directed the release of certain records with personal information of individuals redacted, and annulled the decision to refuse under section 10(1) (c) on the ground that the request was voluminous, as the Department had not complied with the requirement in section 10(2) to offer assistance to the requester to amend the request.
     
  • Ms GK and the HSE - Case no.130242
    The IC concluded that the HSE had taken all reasonable steps to locate medical records relating to the care of the applicant's uncle in a Sligo Hospital and that it was justified in deciding that the records could not be found.
     
  • XX v the Courts Service - Case no.130140 
    The IC found that the Courts Service was not justified in refusing to release details of the expenses claimed by Judges in 2012. He directed release of the relevant records.
     
  • Cork City Council and the Department of the Environment, Community and Local Government (DECLG) - Case no. 140144
    The IC refused the Council's appeal against the decision of the DECLG to release copies of management letters issued to City, County and Town managers in respect of certain statutory audits.
     
  • Mr X and the Broadcasting Authority of Ireland (BAI) - Case no.120260
    The IC upheld the BAI's decision refusing access to interview notes and written submissions made by RTE in relation to the investigation into it's 'Prime Time Investigates - Mission to Prey' programme that resulted in the defamation of an Irish Priest who had served as a missionary in Kenya.
     
  • Mr X and the Department of Justice and Equality - Case no.120291 
    The IC directed the release of a Gardai Report to the Department (subject to agreed redactions) concerning the Phoenix Park concert in July 2912 that had resulted in serious public disorder.
     
  • Mr P and the HSE & Our Lady's Hospital for Sick Children - Case nos. 090261/62/63
    The IC refused to direct the release of further records to the applicant.  He found the public interest in granting access was not sufficiently strong to outweigh the public interest in upholding the privacy rights of the third parties concerned. This decision has been appealed to the High Court by the applicant.
     
  • Mr X and the Department of Transport, Tourism and Sport - Case no.090077
    The IC largely upheld the Department's decision.  However, he held the applicant's 34-part FOI request was clearly one to which section 10(1)(c) should have been applied at decision stage, in its entirety, once section 10(2) had been complied with, as the request placed a burden on the Department that was not intended by the Oireachtas when passing the Acts.
     
  • Mr X and Meath County Council - Case no.120210
    The IC directed the release of records relating to two enforcement notices served by the Council concerning alleged breaches of planning permission.  The Court had found the notices to be invalid and procedurally flawed. The IC rejected the Council's submissions that the records were protected by litigation privilege.

Part II - Commissioner for Environmental Information
Part II of the Annual Report for 2013 relates to Peter Tyndall's separate role as CEI, under the EC (Access to Information on the Environment) (AIE) Regulations 2007 to 2014.  The AIE Regulations provide an additional means of access for people who want environmental information.

AIE issues arising include:

  • The CEI welcomed the amendment of the AIE Regulations providing for a reduction in AIE appeal fees. S.I. No. 615/2014 reduced the standard appeal fee from €150 to €50 with immediate effect.
     
  • The CEI highlighted that increased resources for his office, including two new investigators with environmental law experience, will improve case turnaround time and reduce the backlog of cases.
     
  • There were no new High Court or Supreme Court judgments. Whilst the Supreme Court heard the appeal in NAMA v Commissioner for Environmental Information [2013] IEHC 86 concerning whether NAMA is a public authority for the purposes of the AIE Regulations, judgment is awaited.
     
  • In order to increase awareness of a requester's AIE rights, a clause was inserted into the FOI Act 2014 (section 12(7)(b)) which expressly refers to the AIE Regulations. It provides that an FOI body may advise a person making a request whether the records concerned may be accessed under the Regulations instead of the Act.
     
  • The CEI highlighted his engagement with the DECLG regarding potential amendment of the AIE Regulations to address concerns about the purported incorporation of FOI exemptions into the Regulations under Article 8(a) (iv).

Key AIE Statistics include:

  • Eighteen appeals were received by the CIE's office in 2014.
     
  • Fourteen appeals were closed during 2014, only one of which resulted in a formal decision by the CEI. 
     
  • Half of the appeals arose from requests to Government departments and local authorities.

Key AIE decisions include:

  • Mr Minch and the Department of Communications, Energy and Natural Resources - Case CEI/13/0006 
    The CEI upheld the Department's decision that a report about the cost implications for the State of deploying various types of next generation broadband infrastructure to areas underserved by the private sector did not constitute 'environmental information'.
     
  • Mr Healy, Friends of the Environment and DECLG - Case CEI/12/0007
    The CEI considered whether the DECLG was justified in refusing access to a report relating to funding requirements of Irish Water and future water charges.  The appeal was deemed to be withdrawn as the DECLG agreed to publish the report in full.
     
  • Mr Damien McCallig and Eirgrid - Case CEI/12/0009
    The CEI deemed the appeal to be withdrawn in circumstances where Eirgrid had agreed to release the information requested. He found that there remained no further issue to be determined.

For further information please contact Davinia Brennan at dbrennan@algoodbody.com

Date published: 12 May 2015