Annual Report: FOI requests fall during pandemic but review applications to Information Commissioner remain high

Information Commissioner welcomes review of FOI Act

Freedom of Information requests to public bodies fell by 21% during 2020. However, applications to the Information Commissioner, Peter Tyndall, who reviews decisions by public bodies under the FOI Act, fell by just 5% last year, while his Office’s case throughput remained high.

Speaking today [Thursday 1 July] at the publication of his annual report for 2020, the Information Commissioner said that 31,591 FOI requests were made to public bodies last year, while his Office received 584 applications for review (down just 29 on the 2019 figure).

The Commissioner also welcomed the recent announcement by the Minister for Public Expenditure and Reform of a review of the Freedom of Information Act:

“After six years’ experience of operating the 2014 FOI Act, it is clear to me that there is considerable room for improvement. There are a number of issues that need to be addressed to improve the Act for everyone, including users and public bodies”.

The Commissioner said that:

the onus on public bodies to justify refusal of FOI requests had lost its value as a result of a 2020 judgment of the Supreme Court (the ‘Enet case’);
the Supreme Court judgment also made it more difficult to release otherwise exempt information in the public interest;
the 2014 Act provided for its extension to non-public bodies in receipt of significant public funding by way of ministerial order. However, no additional bodies have been brought within the scope of FOI by way of Ministerial Order;
there is a need for greater alignment between the FOI and Access to Information on the Environment regimes;
there is a need to revise the process for resolving disputes as to whether bodies are covered by the FOI Act.

Review applications to Information Commissioner

The Information Commissioner dealt with 414 reviews of decisions by public bodies in 2020. The figure was down just 4% on 2019 despite the challenges presented by the pandemic for both his Office and public bodies. His Office closed 57% of cases within four months and 97% of cases within 12 months.

Applications for review accepted by the Commissioner 2020: Top 6 Bodies:

HSE	65
Department of Justice	24
TUSLA – Child & Family Agency	21
Defence Forces	17
Revenue Commissioners	15
Department of Social Protection	14
Others	278

FOI requests to public bodies

There were 31,591 requests made to public bodies in 2020 - down 21% on 2019:

FOI requests received by sector
Government Departments & State Bodies	40.5%
HSE	27.7%
Hospitals, Mental Health and related services	14.7%
Local Authorities	13.7%
Third Level Education Institutions	2.9%
Other	0.5%

50% of all FOI requests were made by clients of public bodies while 23% were made by journalists.

Information Commissioner Decisions in 2020

The Information Commissioner’s annual report 2020 describes some of the key decisions made by his Office in 2020 including:

Records of Senior Officials’ Group on Covid-19 (Case OIC-95391)

The Department of the Taoiseach refused an FOI request for the agendas and minutes of meetings of the Senior Official's Group on Covid-19. The Department argued that the records contained information for members of the government for the purpose of the transaction of business at Cabinet (which is protected under the FOI Act). However, having examined the records, the Information Commissioner said they were concerned with the practical aspects of responding to the pandemic and directed their release. (See page 60 of the Commissioner’s annual report)

Archive of the ‘McAleese report’ on State involvement in Magdalene Laundries (Case OIC-53487)

In 2011, an Interdepartmental Committee was established to examine the State’s involvement in Magdalen laundries. When it finished its work, it deposited its records in the Department of the Taoiseach. The Department refused an FOI request for some of the records saying it did not ‘hold ‘or ‘control’ the records. The Information Commissioner decided that the records were held by the Department and directed it to respond to the FOI request. (See page 51 of the annual report)

Records held by a Government Minister in connection with his role as a TD (Case OIC-59124)

In another case, the Department of Transport, Tourism and Sport refused an FOI request for records relating to the reopening of Stepaside Garda Station, which was within the then Minister’s constituency. The FOI Act does not apply to the ‘private papers’ of a member of the Oireachtas, including a TD. The Department said that the reopening of Stepaside Garda Station was not part of its functions, and that if the Minister had any records, they would be regarded as his ‘private papers’. The requester argued that emails from a special adviser or a member of ministerial staff could not be considered the ‘private papers’ of a TD. However, the Information Commissioner upheld the Department’s decision as any records that might relate to the Minister’s interactions in relation to the station would relate to his role as a TD. (See page 57 of the annual report)

The Information Commissioner’s Annual Report for 2020 is available at www.oic.ie

Office of the Commissioner for Environmental Information

Peter Tyndall is also the Commissioner for Environmental Information. The role of the Commissioner is to decide on appeals by members of the public who are not happy with the outcome of their requests to public authorities for environmental information under the Access to Information on the Environment Regulations.

The Commissioner for Environmental Information received 46 appeals of decisions by public authorities under the Access to Information on the Environment regime. That figure is down from 64 in 2019, which was the highest number of appeals since the Office was established in 2007.

The Commissioner said he welcomed the recent decision of the Department of the Environment, Climate and Communications to carry out a full review of the Access to Information on the Environment Regulations. The Commissioner has made a submission to the Department under the themes of timeliness of review; effective investigation and enforcement; fair procedures; and legal clarity. The submission is available on the Commissioner’s website www.ocei.ie

The Commissioner for Environmental Information’s annual report for 2020 is available on the website www.ocei.ie

END

Note for Editors:

The Supreme Court decision mentioned in the release (or the ‘Enet case’) concerned the question of access to an agreement between the Department of Communications, Energy and Natural Resources and a private company, Enet. One of the issues was whether the Information Commissioner was correct in finding that, under section 22(12)(b) of the FOI Act, a public body’s refusal of a request was ‘presumed not to have been justified unless it satisfied the Commissioner that it was justified’. In its judgment, the Supreme Court found that the Commissioner’s interpretation was correct. However, it also found that the failure to meet the presumption was a starting point for a review, and the Commissioner himself must adjudicate the merits of the decision to refuse the request through an analysis of the records and the interests engaged which might suggest either disclosure of refusal. On the matter of the public interest balancing test, the Court found that the public interest used cannot be the general public interest in ‘disclosure and transparency in public undertakings’ and that there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.