The Office of the Information Commissioner’s recently published 2017 Annual Report provides a summary of recent developments and key FOI statistics for the year. Details of particular issues that arose, and a round-up of FOI decisions of interest, are also covered in the Report. This article explores each of these, in turn, below.
2017 saw the publication by the OIC of guidance notes on a number of sections of the FOI Act, specifically:
In the Report, the Commissioner states that he is aware that decision makers in FOI bodies find these notes useful, and indicates that further guidance notes on the following sections of the FOI Act will be published during 2018:
- Records that do not exist or cannot be found (section 15(1)(a))
- The types of records excluded from the scope of the Act (section 42)
- The public interest test
Number of requests
The total number of requests received by FOI bodies in 2017 was 33,979. This represented an increase of 11% on 2016, and a 67% increase since the introduction of the consolidated and updated FOI Act in 2014, which abolished up-front fees for making requests, and significantly did away with charges for search-and-retrieval. This increased activity in FOI has brought about an increase in the workload of the OIC.
2017 saw an increase in the number of deemed refusals of FOI requests. A deemed refusal occurs where an FOI body fails to give a decision on a request or application within the prescribed statutory timeframe. In 2017, 47% of FOI requests were deemed refused by public bodies at the original decision stage, and 44% of requests were deemed refused at the internal review stage. Interestingly, a record high of 29% of reviews were deemed refused at both stages, i.e. with no timely decision being made on the request or application at either stage. This shows that FOI bodies were less compliant with the Act in 2017 than in the year before. It also suggests a lack of adequate resourcing of the FOI function in those particular organisations. The Information Commissioner has called on FOI bodies to afford as much diligence to administering the FOI Act as they do to performing other statutory functions. This echoes the Code of Practice for Freedom of Information for Public Bodies produced by the Department of Public Expenditure and Reform. The Code states in sections 2 and 4 that FOI is to be treated as a “core function” and as part of the “core work” of FOI bodies, and is to be facilitated accordingly.
During 2017, the Information Commissioner made a number of key decisions on the basis of the public interest test, directing the release of information, including:
- Details held by Dublin City Council of hotels and B&Bs providing emergency accommodation to homeless people. See page 52 of the Annual Report. This decision is under appeal in the High Court, with a hearing expected in June 2018.
- Correspondence between the Department of Social Protection and the Data Protection Commissioner in relation to the Public Services Card. See page 55 of the Annual Report.
- Contractual information held by the Department of Justice and Equality relating to the operation of road safety cameras. See page 57 of the Annual Report.
The 2017 Annual Report provides an interesting review of FOI law and practice in 2017. It indicates an increased workload for the OIC and a decrease in compliance by public bodies, at least as regards the processing of FOI requests and applications.
On a positive note for FOI decision makers, the Report says that the OIC’s request for specific funding to develop and roll out its Outreach programme in 2018 was accepted by the Department of Public Expenditure and Reform. Accordingly, a plan of action for enhancing the OIC’s level of engagement with FOI bodies is now in development. This is to be rolled out later in 2018. This will be complemented by the further provision of resources and guidance on the OIC website, including the usual publication of decisions of interest and the soon-to-be-expanded set of guidance notes on provisions of the FOI Act.
Finally, FOI bodies should note – as is apparent from the Report - that the OIC will call out particular deficiencies in engagement with the legislation, and ‘name and shame’ particularly non-compliant bodies in the Annual Report.