Last year marked the 20th anniversary of the introduction of freedom of information legislation in Ireland. In its recently published Annual Report for 2018 (the “Report”), the Office of the Information Commissioner (“OIC”) notes that the number of requests received by public bodies under the Freedom of Information Act 2014 (“FOI Act”) has increased by almost a third in the past three years. However, the Report also highlights a number of issues concerning the operation of the FOI Act, and in particular comments on the “unacceptable” failure of public bodies to issue decisions to FOI requests within the specified time period. Public bodies and those making requests will be interested in the outcome of the OIC’s current investigation into compliance with the relevant deadlines for responding to requests under the FOI Act.

Key issues and developments described in the Report include:

The Numbers

The Report sets out the following key facts and figures for 2018:

  • 36,896 FOI requests were made to public bodies last year, which represents an 8.5% increase on 2017 and 32% increase since 2015;
  • 443 decisions of public bodies were reviewed by the OIC, 62% of which were brought to a close by way of binding decision (the remaining reviews were closed by way of discontinuance, settlement or withdrawal);
  • in 38% of cases brought to a close by way of binding decisions, the OIC affirmed the decision of the FOI body;
  • 64% of reviews completed in 2018 were closed by the OIC within four months;
  • 113 cases were still on hand at the end of 2018. 90% of all reviews on hand were less than six months old;
  • the HSE received the highest number of FOI requests with 10,706 requests made in 2018; and
  • 48% of FOI requests dealt with by public bodies were granted.

OIC Activity

The Report lists the following key projects of the OIC in 2018:

  • the development of a comprehensive outreach programme to enhance the level and nature of the OIC’s engagements with public bodies and FOI decision makers, through investigations under section 44 of the FOI Act and the introduction of a self-audit toolkit;
  • preparation for the introduction of the General Data Protection Regulation (GDPR), including the publication of a Privacy Notice on the OIC website, the revision of the OIC’s record retention policy and a significant records destruction exercise;
  • the progression of the final key element of the OIC’s ICT renewal and improvement plan which will enhance the online portal facility for applicants on the OIC website;
  • the establishment of a staff working group on the OIC’s duty as a public body to have regard to human rights and equality issues; and
  • the development of the OIC’s annual quality assurance processes.

Deemed Refusals

Where a public body fails to issue a timely decision either on the original request (first stage) or on an internal review (second stage), the 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 the OIC for a review. In 2018, deemed refusals represented 28% of all applications for review received by the OIC.

The Report notes that in a number of cases, the relevant FOI body argued that it was unable to make a decision within the required period due to the high volume of FOI requests on hand. The OIC has indicated that it is unacceptable for bodies to allow such resourcing issues to persist.

The OIC has decided to conduct an investigation under section 44 of the FOI Act into compliance with the relevant deadlines within a select number of bodies. The OIC will issue a report on its findings later this year.

Appeals to the High Court

The Report notes that six appeals of decisions of the OIC were made on a point of law to the High Court in 2018. One decision was appealed by the applicant, three decisions were appealed by the relevant public body and two decisions were appealed by affected third parties.

Of the six appeals, the High Court delivered a written judgment in one case only. In Grange v Information Commissioner, the High Court upheld the OIC’s decision that the Department of Foreign Affairs and Trade was entitled to refuse a request for access to certain records relating to a grant scheme paid to members of a roster of election observers managed by Irish Aid on the ground that it was frivolous or vexatious. The Report notes that the applicant appealed the decision of the High Court to the Court of Appeal in May 2018. The case is listed for hearing in 2020.

Decisions and Key Cases

The OIC closed 276 cases by way of a binding decision in 2018. Some decisions of interest include:

  • Cases 170175 and 170315 involved requests for records in the private e-mail accounts of former Taoiseach, Enda Kenny, and former Minister for Justice and Equality, Frances Fitzgerald. The OIC found that as the e-mail accounts were used in relation to official business, and insofar as they were used in that way, they could not be deemed private. The respective Departments were directed to contact Enda Kenny and Frances Fitzgerald to determine if they held records coming within the scope of the requests.
  • In case 170497 the OIC held that the Department of Employment Affairs and Social Protection did not have to provide a redacted copy of CCTV footage in which the applicant was captured as it did not have the necessary facilities required to carry out such redaction. In reaching this decision, the OIC noted that the FOI Act recognises that there is a limit to the resources, both financial and non-financial, which a public body can expend in processing FOI requests.
  • In case 170395 the OIC upheld the Health Service Executive’s (“HSE”) decision to refuse the applicant’s request for records relating to approvals for reimbursement of novel drugs. The HSE argued that such disclosure could reasonably be expected to have a serious, adverse effect on the financial interests of the State. The HSE stated that pharmaceutical companies would not engage in price negotiations with the HSE unless their pricing proposals and related information, and the general content of the negotiations, are kept confidential. While this is not a transparent system, the OIC decided that the public interest did not weigh in favour of granting access to the records.

Office of the Commissioner for Environmental Information (“OCEI”)

The OCEI reviewed more cases (54) in 2018 than in any other year since it was established in 2007. Of the 54 cases reviewed, 40 cases were closed by decision, four cases were held to be invalid and ten cases were withdrawn or deemed to have been withdrawn.

A significant portion of the OCEI’s decisions last year concerned the application of the definitions of “environmental information” and “public authority” under article 3 of the AIE Regulations, and/or considered whether the disclosure of information would adversely affect the rights of third parties.

The Report notes a sharp rise in the number of the OCEI’s decisions under the AIE Regulations which were appealed to the High Court (12.5% of the decisions made). The OCEI has indicated that this increase in litigation is likely to have a negative impact on the ability of the OCEI to close cases in 2019.

In contrast to the performance of public bodies under the FOI Act, the OCEI welcomed a decrease in 2018 in the number of cases where a public authority failed to make a decision, or issued a late decision on an environmental request.

Finally, the OCEI provided observations to the Department of Communications, Climate Action and Environment on its draft version of the proposed revised guidance on the AIE Regulations in early 2018. The Department is expected to publish the revised guidance in 2019.