Foilsiú
The Freedom of Information Act — Compliance by FOI Bodies
Ó Oifig an Choimisinéara Faisnéise
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
An investigation conducted by the Information Commissioner under section 44 of the Freedom of Information Act, 2014 into compliance by FOI bodies with the statutory timeframes for processing requests and the requirement to provide adequate reasons for refusing requests.
Investigation under section 44 of the Freedom of Information Act, 2014.
This is a report of an investigation I conducted in accordance with section 44 of the Freedom of Information Act 2014 (the FOI Act) into the practices and procedures adopted by FOI bodies for the purpose of compliance with the provisions of that Act.
The report focuses on the level of compliance by selected FOI bodies with the statutory timeframes for processing requests and with the requirement to provide adequate reasons for refusing requests. In recent years, I have expressed my concerns about the level of compliance with these requirements, particularly in respect of adherence to the statutory timeframes.(1)
In accordance with section 44(4) of the Act, I am furnishing a copy of this report to the Minister for Public Expenditure and Reform and to each public body concerned. A copy will also be appended to my next annual report, which, in accordance with normal practice, will be laid before each House of the Oireachtas.
Peter Tyndall, Information Commissioner, January 2020
##Executive Summary
FOI bodies are obliged under the FOI Act to comply with specific timeframes for processing FOI requests. They must also provide adequate reasons for refusing FOI requests, in accordance with the requirements of the Act.
This investigation considered the compliance of five FOI bodies with the relevant statutory timeframes and the obligation to provide adequate reasons for refusals. The key findings of the investigation are set out in the body of this report, alongside recommendations specific to each FOI body concerned, and of general application to all FOI bodies.
This report is not intended to serve as a criticism of the selected bodies based on issues identified. Rather, the investigation was conducted with a view to identifying recommendations that address common issues arising and that will facilitate improvements in compliance rates by FOI bodies generally. The recommendations represent elements of what I consider to be best practice in this area. It is a matter for each FOI body to examine its own performance in light of the recommendations and to determine how best it might implement those recommendations.
The objective of this investigation was to examine the level of compliance by selected FOI bodies with (i) the statutory timeframes for processing requests and (ii) the requirement to provide adequate reasons for refusing requests, and to make recommendations for improving compliance rates across all FOI bodies.
The Act contains a number of timeframes that must be met when processing requests, including the following:
Under section 13(2) of the Act, where a decision is taken to refuse a request, whether wholly or in part, the decision must specify the reasons for the refusal and, unless a refusal to confirm or deny provision in an exemption is being invoked,
The same requirements apply in respect of decisions issued following internal review.
Where an FOI body fails to issue a timely decision on a request (first stage) or following internal review (second stage), a requester is entitled to treat the body’s failure as a deemed refusal of the request. Following a deemed refusal at the internal review stage, a requester is entitled to apply to my Office for a review of the deemed refusal. Each year, my annual report contains details of the number of applications for review accepted by my Office where the request was deemed refused at either stage or, indeed, at both stages of the process.
In conducting this investigation, I did not consider it either practicable or necessary to examine the compliance rates of all public bodies. Instead I selected four public bodies from among those that came to my attention in 2018 in relation to deemed refusals, namely the Defence Forces, Dún Laoghaire-Rathdown County Council, Tusla — The Child and Family Agency, and University College Dublin. In addition, I decided to include in this investigation the Office of the Revenue Commissioners, based on its comparably strong performance over the past number of years. I did so with a view to determining whether that Office’s practices and procedures might offer useful insights for other bodies seeking to improve compliance and efficiency.
The investigation involved the examination of a sample of FOI decision-making files within each of the selected bodies and interviews with the respective FOI Liaison Officers. Each body provided the data necessary to identify appropriate cases where decisions to refuse requests, either in whole or in part, issued in 2018. Files were then randomly selected for inspection by my team. Cases where an application for review was submitted to my Office were excluded, as were cases where a refusal to confirm or deny provision of an exemption was invoked, as such decisions are not subject to the full requirements of section 13(2).
In total, my team examined 102 case files, distributed across the bodies in proportion to their respective FOI activity, with a minimum of 10 and a maximum of 35 cases examined in each body. The proportionate number of files was requested from the bodies, along with an additional number of files to serve as “back up” (e.g. in case of certain files being incomplete). As is noted below, complete information for each file examined was not always available, even when replacement files were substituted.
I would like to thank the FOI bodies concerned for their efficient cooperation in providing the data and hardcopy files required for examinations. In some instances, this involved significant co-ordination within a pressing timeline across large and regionally distributed offices and I appreciate the efforts involved.
It is important to note at the outset that this investigation did not include a review of the substantive decisions taken on the related requests. As outlined above, the examination was confined to whether or not the bodies concerned had complied with the the statutory timeframes for processing the requests and with the requirement to provide adequate reasons for refusing the requests.
Information was collated from the relevant files using checklists designed specifically for the purpose,4 while the interviews conducted served to provide more qualitative information for consideration. Areas discussed during the interviews included the role of the FOI Officer(s) within the body, how the body processes FOI requests and matters arising therein, and barriers and facilitators within the body to compliance with the requirements of the Act.
It should be noted that some of the relevant issues arising in the sections that follow are based on the observations of the relevant officers with whom my team met in the course of conducting this investigation.
Prior to the completion of my report, the selected FOI bodies were provided with an opportunity to review and offer comment on the draft contents of the report, insofar as it concerned them generally and specifically, and to the suite of draft recommendations. Where appropriate, the report was amended to ensure it accurately reflected and/or had regard to those views.
The next five sections of the report contain a detailed description of the findings of my team in respect of each body, arising from the assessments conducted. Specific recommendations are provided to address matters particular to each body observed during the investigation. I have also noted, in respect of each body, certain positive aspects of practice and procedure that were observed, which may be useful to all FOI bodies seeking to enhance compliance with the FOI Act. As I have outlined above, a range of recommendations of wider general application then follows. These concern all five bodies investigated, alongside the specific recommendations provided, and should be considered also by all FOI bodies concerned to achieve full compliance with the requirements of the legislation.
The Defence Forces received 382 requests in 2018. Of the 11 related applications for review my Office accepted during the year, six arose on foot of a deemed refusal following internal review.
My team fully examined 15 FOI decision-making files in the Defence Forces.
It must be noted at the beginning that in a number of cases the date of receipt of the request was not available as the requests had been made by letter, the letters were not date-stamped, and the subsequent acknowledgements, where they existed, did not reference a date of receipt. The Defence Forces also engage in a practice of assigning a “registration date” to new requests as opposed to a date of receipt, that date being the first date upon which the processing of the request commences. In other case, due to the unavailability of certain relevant dates, it was not possible to fully assess compliance with every statutory deadline at issue.
In eight of the 15 cases examined, the date of receipt of the request was not documented or otherwise available. In the remaining seven cases, six requests were acknowledged within the requisite 10 days of receipt and one was not. In that case, the acknowledgement took 57 days to issue.
Under section 14(1) of the Act, the four week timeframe for issuing a decision may be extended by up to four additional weeks where
Compliance with section 14 could be assessed fully in only three of the seven cases in which the extension provision was relied upon. In two of those three cases, the notification issued late. In at least two cases involving section 14, the reason given for the extension in the notification issued was invalid (“ongoing searches”).
It was possible to determine the timeline for issue of the original decision in seven cases examined. In one of those cases, the original decision issued well after the statutory timeframe of four weeks (70 days from receipt of the request). However, given the “registration date” approach utilised by the Defence Forces as described above, coupled with the absence of certain relevant data, it is quite possible that further original decisions also issued late.
Only one of the cases examined involved an internal review decision, which issued within the required timeframe.
While decision-making staff across the Defence Forces appear to be aware of the relevant statutory timelines and decision requirements, the processing of FOI requests is not regarded as a priority task given their other day-to-day functions. Indeed, the FOI function does not appear to be sufficiently prioritised across the organisation. This inevitably increases the likelihood of delay.
The FOI Liaison Officer, who has sole responsibility for managing FOI requests, also has primary responsibilities to attend to as a soldier. As a result, there may be no one available to deal with FOI requests for large parts of any given week. This gives rise to significant challenges in ensuring compliance with the statutory timeframes.
Though it is no doubt borne of the nature of the command structure in the Defence Forces, the multi-layered decision-making process followed may contribute to delays in processing requests. The FOI Office registers new requests and sends them with an explanation to a General, a “Front Line Decision Maker” (FLDM). The FLDM sends the request to the relevant records manager who may then forward it to a relevant battalion, which has its own records manager. Once that person has responded accordingly, the matter is returned to the FLDM who, in turn, forwards a recommendation to the FOI Office. The FOI Office then appraises the recommendation for quality assurance.
Reasons
Reasons for refusal were given in all decisions examined.
Provisions Underpinning Refusal
All decisions examined contained details of the provisions of the Act pursuant to which the request was refused.
Findings on any Relevant Material Issues
In five of the cases examined, the Defence Forces did not provide any findings on material issues relevant to the decision. Two of those cases involved refusals on the ground that the records sought did not exist or could not be found (section 15(1)(a) search cases). A description of the searches conducted would have sufficed in those cases.
In seven cases the Defence Forces failed to explain why it considered the relevant exemptions to apply. However, I would note that in five of those cases it was evident that section 37 (concerning the protection of third party personal information) was deemed to apply on the ground that the records were deemed to contain such information. Nevertheless, explanations in all seven cases would have been appropriate.
In eight cases the Defence Forces failed to explain what it considered to be the possible consequences of release, as required in the context of the exemptions claimed. For example, in one, the Defence Forces relied upon section 36 (commercial sensitivity) but rather than explain why it deemed the records sought to be commercially sensitive or what the consequences of release might be, it merely said that the records were commercially sensitive.
Furthermore, in a number of cases it was also unclear whether all FLDMs (i.e. those whose unit is considered to hold records) had replied to initial contacts from the FOI Office. It may be that no records were held in some of the units, or it may be that records covered by the request were not considered for release. I note that the FOI Office has stated its future intention to record details of all follow up enquiries it makes and replies, including those confirming that no records are held.
In one case the request was refused under section 15(1)(c). That provision essentially allows an FOI body to refuse to grant a request where the request is considered to be voluminous. However, the Defence Forces did not provide an explanation of its reasons for deeming the request to be voluminous.
Public Interest Considerations
In nine cases the Defence Forces should have provided details of matters relating to the public interest that were considered for the purposes of the decision. It did not do so in any of these cases, including following internal review in the sole case involving an internal review.
The Defence Forces also failed to explain in any of those eight cases why it decided that, on balance, the public interest favoured refusal of the request.
**Additional
Schedules
Schedules were provided in all cases examined and where relevant, they contained a description of the records at issue.
Interaction of FOI and Military Legislation
In one case, no reasons were given for refusing the request under 35(1)(a) (information given in confidence) on the understanding that the Defence Forces Act 1954 and associated Regulations provided that no reasons should be given to candidates as to why they are unsuccessful in relevant recruitment processes.
However, subsequent to that decision, my Office considered a number of cases where unsuccessful candidates for recruitment to the Defence Forces sought statements of reasons as to why they were unsuccessful. As a result, the Defence Forces now informs applicants who apply for such statements of reasons as to which of the relevant competencies, such as security clearance, have not been met.
It seems that there is a reasonable level of awareness among decision-making personnel of the relevant requirements in relation to decisions to refuse requests. However, there does not appear to be any refresher training for FLDMs.
General FOI awareness briefings are held for staff each year. It was noted that such briefings are usually followed by a marked increase in FOI requests received from members of the Defence Forces itself. This places significant additional demands on the already-stretched FOI Office. • It was suggested that some decision makers may encounter difficulties in applying particular exemptions and it was acknowledged that requesters may more readily accept decisions issued (and therefore potentially appeal less frequently) if additional information and more meaningful explanations were provided. • It was noted that there have been no recent training interventions for the FOI Liaison Officer (the most recent was in 2014). It was noted that the Manager within the FOI Office completed a certificate in FOI. However, this role is rotated on an 18 month basis routinely and as such, knowledge management issues may be likely to arise.
First instance and, where relevant, refresher training should be delivered to all relevant staff in relation to exemptions which pose frequent difficulty in application.
DLR received 197 requests in 2018. Of the five applications for review that my Office accepted during the year, three arose on foot of a deemed refusal following internal review. Indeed, in two of those cases, the Council failed to issue a timely decision at either stage of the process.
The files examined during the investigation did not highlight significant issues in terms of timeliness of decision-making. Nevertheless, a number of issues were identified and are discussed below. Further, my team identified a number of issues concerning the quality of decisions being issued by DLR, particularly in the explanations being provided for reliance on harm based exemptions, as well as the application of public interest tests.
My team fully examined 10 FOI decision-making files in DLR.
DLR acknowledged all but one request on time (no acknowledgement date was available in the relevant case).
One case involved an extension under section 14. In that case, DLR issued the relevant notification on time.
In the cases examined, DLR issued its original decisions on time.
In the two cases examined involving internal review, DLR issued its internal review decisions on time.
One case examined involved the application of SRC fees. In the case in question, DLR complied with the relevant timelines. At this point it is worth noting the interlinked requirements of the SRC fees regime, which may impact the decision-making timelines applicable:
Section 27(5) provides that in order to charge SRC fees, the body must:
Reasons
Reasons for refusal were given in all but one case, where this was done in part.
Provisions Underpinning Refusal
Sections being relied upon were cited in all decisions examined.
Findings on any Relevant Material Issues
Public Interest Considerations
In four cases DLR should have provided details of matters relating to the public interest that were considered for the purposes of the decision. However it did not do so in any of the cases (in one instance, it failed to do so at the first and second stage).
DLR also failed to explain in any of those four cases why it decided that, on balance, the public interest favoured refusal of the request.
Additional
Schedules
DLR did not provide a full schedule in any case examined (however, it should be noted that five of these cases involved decisions under section 15(1)(a) and records would not therefore have been identified).
In two cases, partial schedules were prepared, which included only a partial description of the relevant records.
Search details
In four cases, DLR cited section 15(1)(a) as a basis for in refusing the requests. However, it did not provide search details in any of those cases.
Refresher briefings should be provided to relevant staff concerning third party consultation procedures (section 38 refers), as well as regarding the handling of unclear requests (sections 12(1)(b), 15(4), and 15(1)(b) refer) and voluminous cases (sections 15(1)(c), 15(4), and 27 (SRC) refer).
High staff turnover in FOI functions may lead to knowledge management issues in the area. Steps should be taken to mitigate this risk within DLR over the medium and long term, such as compiling internal guidance and induction materials.
As noted earlier, Revenue was included in this investigation based on its comparatively strong performance over the past number of years. Revenue received 328 requests in 2018. Of the three applications for a review of Revenue decisions my Office received in 2018, none arose on foot of a deemed refusal of the request as a result of an internal review decision not issuing on time. As is discussed below, Revenue appears to have adequately resourced its FOI function. The FOI Unit deals with requests efficiently and strives to keep decision makers on track in issuing decisions on time. Of course, as in any organisation, there is scope for tweaking aspects of practice and procedure which may further strengthen efficiencies and compliance. These matters are discussed below also.
My team fully examined 32 FOI decision-making files in Revenue.
In three of the 32 cases examined, the original request was not acknowledged within 10 working days of receipt.
In all four cases examined involving section 14 extensions, the requester was informed on time.
In all cases examined, the original decision issued on time.
However, it should be noted that in one case, there was a significant lag in time between the date the request was dated/purportedly made (28/9/17) and the acknowledgement of the request by the FOI Office on 8/1/18, wherein the FOI Office said the request had been received on 22/12/17. When queried, it appeared this was the date the request was received in the FOI Office as opposed to the relevant Tax Office, where it had originally been received (that date was unavailable). Revenue explained that this was due to a delay on the part of the Tax Office in forwarding the request to the FOI Office in accordance with internal Revenue policy.
Internal Review Decisions
In the one case involving an internal review, Revenue issued its internal review decision on time.
During the investigation, a number of concerns arose regarding risks to compliance with the statutory timelines.
It was noted that third party consultation can at times be “last minute” depending on the circumstances.
Revenue acknowledged that compliance with the SRC fees regime can be difficult given the tight timelines involved and that perhaps fees should be charged more often. According to Revenue, the FOI Unit recognises this challenge and is taking steps to apply an effective fees regime.
A significant amount of the Unit’s time can be consumed with supporting decision makers, particularly in the more complex cases, and ultimately ensuring that decision makers comply with timelines. It was also noted that expert advice is often provided by the FOI Unit to assist decision makers understand the detailed and nuanced specifics of particular exemptions.
According to Revenue, its realignment presented opportunities and challenges for the staff dealing with FOI, and processes were revised to deal with the new Divisional Structure. Following realignment, 48 staff were assigned to FOI decision-making across Revenue and the FOI Unit arranged training courses to ensure these staff understood their FOI responsibilities.
Revenue also noted that where requests are sent in the first instance to a local tax office this may lead, in a very small number of cases, to delays in those offices forwarding the request to the FOI Unit.
In every case examined, reasons for the decision were provided.
Every decision examined cited the sections being relied upon.
In one case Revenue should have provided details of matters relating to the public interest that were considered for the purposes of the decision but failed to do so. Revenue complied with this requirement in all 17 other relevant cases.
In the same case, and one other, Revenue also failed to explain why it decided that, on balance, the public interest favoured refusal of the request.
Schedules
Schedules were provided in all cases where it was appropriate to do so and these contained descriptions of the records. In the eight cases without schedules no records had been identified and considered for release (sections 15(1)(a) and 15(1)(g) applied).
Search details
Notably, in eight of 11 cases in which it relied on section 15(1)(a), Revenue failed to provide any search details in its decision letters to the requesters concerned and for only one of these cases were certain details regarding searches conducted evidenced somewhere on the file. (I would note that in one case without meaningful search details, Revenue did state in the decision the area(s) to which the request had been circulated.)
Revenue stated that at times difficulties arise in respect of the application of some harm based exemptions. It stated that decision makers may lack a detailed understanding in some instances of the nuances of exemptions such as those at sections 29, 30, 35 and 37 (other exemptions mentioned in passing as posing challenges included sections 15(1)(a), (c), (g), 31, 33, and 36).
With respect to search cases, it was noted that the FOI Unit often has to follow up with decision makers for further details as to why records have not been found.
Some delay may be encountered in the processing of requests by individuals recently assigned FOI related responsibilities, due to the recent nature of their acquisition of FOI knowledge, and occasional difficulties arising in the sourcing of relevant information from across Divisions.
There is relatively high turnover in FOI decision-making responsibilities across Divisions. However, Revenue noted that it has put in place quality assurance measures through its FOI Unit and new decision-makers are receiving training to provide consistency and quality in decisions issuing.
Given the rationale for the inclusion of Revenue in this investigation, it is worth noting a number of examples of positive practice here.
TUSLA received 992 requests in 2018. Of the 26 applications for review my Office accepted during the year, 77% arose on foot of a deemed refusal following internal review.
It is worth noting at the outset that part of the services examined during this investigation have been the subject of a Memorandum of Understanding (MOU) which was agreed between TUSLA and the Health Service Executive (HSE) on the establishment of TUSLA in 2014. This MOU sets out the detail of agreed services and types of services that TUSLA and the HSE commit to providing.
TUSLA expressed its gratitude to the HSE for providing FOI supports during the early years of its establishment. Since then, however, according to TUSLA, the level of service provided by the HSE under the MOU has been significantly reduced, in particular with respect to FOI. Tusla acknowledged that this reduction occurred at a time when the HSE was also facing challenges in retaining staff and expertise in FOI units, while at the same time responding to increased levels of FOI request activity and operating within a significantly restricted and challenging fiscal environment.
However, TUSLA has stated that reduced support in this area has resulted in TUSLA having only a very limited capacity to meet its statutory FOI obligations. According to TUSLA, it must now become self-sufficient in the delivery of its FOI solutions.
I am grateful for the cooperation of TUSLA in conducting this investigation. I appreciate the daily pressures it faces and I understand the efforts required in processing FOI requests across the body. TUSLA’s observed openness to constructive feedback and its expressed willingness to improve in areas of acknowledged non-compliance is most welcome.
TUSLA experiences a very significant amount of FOI related activity each year. Given the nature of its work, a large quantity of requests processed by TUSLA concern personal information. As will be seen, under-resourcing across FOI functions in TUSLA is of major concern, as it is a key contributor to TUSLA’s inability to fully comply with its statutory obligations in providing timely and meaningful decisions to its requesters.
With regard to the findings below, it must be noted that complete timeline information was not available for every file examined. Therefore, a full assessment of all timeline requirements was not possible. Any such absences have been noted below and the findings reflect those cases where the relevant data was accessible.
My team fully examined 35 FOI decision-making files in TUSLA.
Non-compliance with the deadline for issuing original decisions is a key issue for TUSLA. There were some particularly worrying examples observed during the examination of files. Issues also arose concerning the timelines for acknowledgement of requests as well as the application of extensions under section 14.
Four cases examined involved section 14 extensions. In three of these cases, the notification issued late.
All relevant data was available for 34 of the 35 cases assessed.
Two cases examined featured internal reviews. In one such case, the notification issued on time. In the other, the requester withdrew before the drafted second stage decision issued.
While I am pleased to find that TUSLA generally provided reasons for decisions and cited the relevant sections of the Act being relied upon in the case of refusals, a number of issues arose surrounding the meaningful extent of the explanations given and compliance with the requirements of the various exemptions being cited.
By and large reasons were given in all cases for relevant refusals. However, in four cases this was done in part only.
Sections relied upon were cited in all decisions examined.
There were 10 cases where TUSLA should have provided details of matters relating to the public interest that were considered for the purposes of the decision but did not, either in full or in part, and failed to explain why it decided that, on balance, the public interest favoured refusal of the request.
Search details
TUSLA relied upon section 15(1)(a) in four of the cases examined. However, it did not provide search details in its decisions in any of these cases. It was also noted that two of these cases did not have any evidence of details pertaining to searches undertaken noted on file.
Schedules
A schedule was not provided in five cases where it was appropriate to do so (two at the second stage). In eight cases the schedules provided did not contain a description of the records concerned.
TUSLA stressed that there is an identified, ongoing need for experienced, trained individuals to deal with FOI across its various areas and that the current situation may negatively impact upon the quality of decisions being issued. There is a lack of dedicated staff in place to deal with FOI matters across TUSLA.
TUSLA acknowledged there may be inconsistency in the quality of decision-making across its various areas. While there have been a number of collaborative workshops delivered across the country with the CPU and my Office, ongoing training could help improve consistency (although it was said that the current scope to deliver such training beyond Dublin is limited).
According to TUSLA certain exemptions pose difficulties for decision makers in their application, notably those concerning deliberative processes and functions/negotiations. TUSLA noted that while the Guidance Notes published by my Office are very clear as to the requirements of given exemptions, it can nonetheless be hard to describe all the relevant outcomes in a given case and to meet all of the requirements (e.g. harm based exemptions).
Other difficulties in applying certain exemptions that were noted included situations where records are already in the possession of the requester, and overlap between the Data Protection and FOI regimes as they concern personal information.
UCD received 133 requests in 2018. Three of the four applications for review my Office accepted during the year arose on foot of a deemed refusal following internal review.
As will be seen, while UCD generally appears to acknowledge requests received on time, it has not managed to issue original decisions on time in a significant proportion of cases. With regard to the quality of decisions issued, of particular concern is UCD’s explanation of reliance on exemptions involving public interest considerations. On a more positive note it seems there is quite a high level of FOI awareness across the body, and the importance of FOI is recognised and promoted at Senior Management level within the University.
My team fully examined 10 FOI decision-making files in UCD.
In the cases examined, UCD acknowledged all but one request within 10 working days of receipt, as required.
Two cases examined involved extensions under section 14. UCD issued the relevant notification on time in both cases.
UCD’s original decisions were late in 40% of the cases examined (39 days from receipt of the request; 24 days; 22 days; and 21 days, respectively).
In the one case examined involving internal review, UCD’s internal review decision was issued late.
Reasons
Reasons for refusal were mentioned in all decisions examined.
Provisions Underpinning Refusal
Sections of the Act relied upon were cited in all decisions examined.
In six cases UCD should have provided details of matters relating to the public interest that were considered for the purpose of the decision. However, it failed to do so in three of those cases.
In five cases UCD also failed, in full or in part, to explain why it decided that, on balance, the public interest favoured refusal of the request.
Search details
UCD relied on section 15(1)(a) in five of the cases examined. However it did not provide the requester with search details in any of the five decisions at issue.
Schedules
UCD provided a schedule in only one of six cases where it was appropriate to do so. (The remaining four cases involved decisions under section 15(1)(a) where no records were identified.)
Rather than providing answers to questions posed in a request (an FOI request should seek records, not information), UCD should identify relevant records and make a decision as to release or exemption of the record’s contents under the terms of the Act (in such cases UCD could, for example, identify records containing answers to the questions posed, if it is satisfied the request is valid).
In addition to the specific recommendations set out above, I have outlined below a number of recommendations each body should implement in an effort to improve compliance with the statutory obligations at issue.
As mentioned, in compiling these recommendations, I have also drawn upon positive examples of effective practice and procedure observed by my team within the bodies investigated.
Beyond those bodies investigated in this instance, I would encourage all FOI bodies to consider the findings and recommendations in this report. These recommendations may be applicable to the practices and procedures of any given FOI body in fulfilling its statutory functions. The measures outlined reflect elements of what I consider to be best practice and this report will serve as a useful reference point as to what is required of FOI bodies as means of enhancing compliance. Every FOI body should seek to adopt such measures, as appropriate, within its own operations.
It would benefit all FOI bodies to undertake quality audit exercises similar to that conducted by my team in this investigation. This could be completed, for example, by assessing a sample of cases on a comparative, quarterly basis or spanning the previous year’s work.
As a general comment, I would first remind the bodies concerned that all relevant staff should inform themselves of the guidance published by my Office and the CPU regarding, among other things, the requirements of the statutory deadlines and exemptions provided for under the FOI Act. In the performance of their functions under the Act, FOI bodies are obliged, under section 48(3), to have regard to the CPU’s code of practice and any guidelines issued by the CPU in the area. The CPU has published a checklist addressing the statutory timelines involved in processing requests, which provides a helpful overview.
Greater attention to record keeping and monitoring of the various statutory timelines at issue is essential to the achievement of full compliance.
Strong consideration should be given to implementing an FOI tracking system across the body. In small bodies, the introduction of a tracking spreadsheet common to all units may suffice. As noted above, “eFOI” is a platform that enables central administration and tracking of FOI processes and deadlines, on an organisation-wide basis. The system has in-built functions to prompt and encourage efficient decision-making. It is also capable of generating reports on data sets relating to the various items tracked (e.g. date decision made vs. statutory deadline for the issue of a decision). According to the OGCIO, eFOI is currently available to all FOI bodies for use, subject to a) the body being on Government Networks (which the vast majority are) and b) the body having signed up to contribute financially to a Build to Share programme. In my view, all FOI bodies should actively consider adopting eFOI or a similar system. * A standard approach to FOI tracking in FOI bodies, and common awareness of the features and capabilities of the system, would also be of assistance to my Office in conducting reviews and investigations.
The interpretation and application of certain exemptions can prove difficult for decision makers in practice. Such difficulties can affect the adequacy of the reasons provided for decisions on FOI requests. Bodies must meaningfully address such issues, if compliance with the requirements of section 13(2) is to be achieved.
Schedules should be provided with all decisions in cases where records have been identified. The schedule should list the records, with a description of their contents and itemise any records or parts thereof being refused, citing the relevant exemptions applicable to those records or parts.
The value of Senior Management support concerning the importance of FOI cannot be underestimated.
I would again like to thank each of the bodies concerned for their open cooperation with this investigation. The bodies have considered the findings and recommendations set out in this report. My team has discussed any observations or concerns arising and these have been considered in finalising this report.
I am glad to say that each body has committed to adopting measures to improve performance regarding compliance with the statutory requirements that have been the focus of this investigation. With support from my team, each body is to prepare an action plan for improvement, in light of the findings and recommendations of this investigation.
I intend to monitor progress in respect of the implementation of these plans over the course of the coming year.
Peter Tyndall, Information Commissioner January 2020