The Information Commissioner (IC) and Commissioner for Environmental Information (CEI), Peter Tyndall, has published his Annual Report for 2013.
Part 1 of the Report relates to the IC's role under the Freedom of Information (FOI) Acts 1997 and 2003 (the Acts), 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. 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 2013. Key
FOI statistics include:
- Section 37 Notices - Eleven section 37 notices were served on five public bodies by the IC, requiring the Head of those bodies to furnish information deemed relevant for the purposes of a review. The IC regards the failure of public bodies to respond in a timely fashion to requests for information from his Office as "an unacceptable delay to the review process". The Acts provide that the IC shall, insofar as practicable, make a decision within four months of receipt of an application for review.
- Number of FOI requests - 18,985 FOI requests made to public bodies, which is similar to the total for 2012 (18,953).
- Type of requests – The majority of FOI requests were for personal information. Only 21% of FOI requests were for non-personal information.
- Sectoral breakdown - The HSE was the recipient of the largest number of FOI requests at 41%. Voluntary Hospitals, Mental Health Services and related agencies received 19%; Government departments and State bodies 30%; local authorities 7%; third level institutions 2%, and other voluntary bodies 1%.
- Top ten bodies - The HSE and hospitals accounted for seven of the top ten public bodies in receipt of FOI requests. The other three public bodies were: the Department of Social Protection; the Department of Justice and Equality, and the Department of Education and Skills.
- Type of requester to public bodies - Clients of public bodies (73%); journalists (10%); business (4%); Oireachtas members (0.3%); staff of public bodies (3%); others (10%).
- Release rates by public bodies - 65% of FOI requests were granted in full, 18% were part-granted, 9% were refused, 7% were withdrawn and 1% transferred.
- Outcome of reviews - The IC reviewed the decisions of public bodies in 258 cases. This was an increase of 29% over the 2012 figure, of 200 cases. The IC affirmed 40% of decisions of public bodies; annulled 11% and varied 7%. The combined percentage of cases that were settled, withdrawn or discontinued was 42%.
- Appeals to the Courts – Five decisions made by the IC were appealed to the High Court on a point of law during 2013. Of these, one has been withdrawn, and the remaining cases are due for hearing in 2014.
Only one High Court judgment was given in respect of a decision of the IC, in LK v the Information Commissioner and the Health Service Executive  IEHC 373 (24 July 2013). In that case the High Court upheld the refusal of access to a social worker's report, on the grounds that disclosure would constitute a "contempt of court", as the report had derived from childcare proceedings, held in camera. No Supreme Court judgments were delivered in 2013.
Key FOI decisions include:
- The IC found that records relating to the Inquiry known as the Drogheda Review were "held by" the Department of Health for FOI purposes. The Commissioner's decision was appealed to the High Court by the Department, and the case was heard in January 2014. Judgment is awaited.
- The IC found that records "held by" Bray Town Council, as shareholder of a company, relating to the breakdown of the company's 2008 and 2009 income and expenditure, were held by Council staff in their capacity as officers of the company. Accordingly the IC found the records were not "held by" the Council for FOI purposes. This decision was appealed to the High Court by the applicant, and the case is awaiting hearing.
- The IC found that Garda records are not exempt from release as a class on the ground of confidentiality regardless of content.
- The IC found that the Department of Finance was justified in refusing to disclose letters sent by the President of the European Central Bank to the then Minister for Finance in 2010.
- The IC found that the Department of the Taoiseach had to disclose records relating to Cabinet meetings that took place more than 10 years before receipt of the FOI request.
- The IC upheld a refusal of access to certain records relating to the export of aviation parts, by the Department of Jobs, Enterprise and Innovation. The records contained confidential communications relating to international relations, and a duty of confidence was also owed to the affected third parties in the circumstances of the case.
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- 2011. The AIE Regulations provide an additional means of access for people who want environmental information.
AIE issues arising include:
- Limits of remit - The CEI noted that confusion exists in relation to his role under the AIE Regulations. His sole statutory function under the AIE Regulations is to decide on appeals that have been made to him against a decision of a public authority. The CEI does not have any specific statutory role in relation to bad practice by public authorities or jurisdiction to investigate cases which have not been formally appealed. In addition, he does not have any enforcement powers to ensure public authorities comply with their obligations under Article 5 of the AIE Regulations, such as maintaining registers or lists of environmental information held and designating an information officer for such purposes.
- Threshold jurisdictional questions – The CEI noted that confusion also exists in relation to the scope of the AIE regime. A request must explicitly state whether it is made under the AIE Regulations or under the FOI Act. Despite the duty to offer assistance to requesters, there is no automatic default mechanism for a request rejected under the AIE Regulations, to be dealt with under the Acts, or vice-versa. In addition, the question of whether a request is for "environmental information", or whether the body to whom the request has been made, is a "public authority", within the meaning of the Regulations, must be definitively resolved as a threshold jurisdictional matter, in order to ensure the Commissioner has jurisdiction to deal with the appeal.
- The need for improved administrative practices – The CEI highlighted that the active dissemination of the environmental information held by a public authority through publication on its website could obviate the need for a formal access request in the first instance.
- High Court and Supreme Court judgments – On 7 April 2014, the Supreme Court heard legal submissions in NAMA's appeal against the decision by the High Court that it is a public authority for the purposes of the AIE Regulations. The case is due to be resumed at a later date.
- Bord na Móna has withdrawn its appeal to the High Court against the CEI's decision that it is a public authority within the meaning of the AIE Regulations, following delivery by the CJEU in Case C-279/12, Fish Legal and Shirley v Information Commissioner.
- The CEI has withdrawn its appeal to the Supreme Court against the High Court's decision in An Taoiseach v Commissioner for Environmental Information  IEHC 241 (Case CEI/07/0005), having been advised that it was unlikely to succeed. The High Court set aside the CEI's decision requiring the Department of An Taoiseach to release a cabinet record relating to emissions into the environment. The court held that the disclosure of constitutionally protected cabinet discussions would undermine the discharge of collective responsibility by the government, and that the CEI had no jurisdiction to decide questions concerning the application and enforcement of EC law rights. [The CEI had found that the purported restriction on the operation of article 10(1) of the AIE Regulations, contained in article 10(2), did not apply as the latter is not in accordance with Article 4(2) of Directive 2003/4/EC].
Key AIE statistics include:
- Nineteen appeals received by the CEI's Office in 2013.
- Sixteen appeals were closed during 2013, five of which resulted in formal decisions by the OCEI.
- Less than a third of the appeals arose from requests to government departments and local authorities.
Key AIE decisions include:
- The CEI found that it was not permissible under the AIE Directive for a public authority to impose search and retrieval fees for work involved in processing an AIE request.
- The CEI held that a public authority was justified in refusing an applicant's request for a list of AIE requests on the ground that the information concerned was not "environmental information" within the meaning of the AIE Regulations. The OCEI noted however, that the applicant was entitled to make a request for the records sought under the FOI Acts.
- The CEI found that a public authority was justified in refusing the applicant's request in relation to public consultation on climate policy and legislation, under Article 9(2)(a) and (b) of the AIE Regulations (i.e. the request was manifestly unreasonable and formulated in too general a manner).
- The CEI held that Dublin City Council must disclose an Asset Purchase Agreement providing for the transfer of the Council's waste collection service to a private operator. However he found that the Council was justified in refusing disclosure of related records, including a list of prospective bidders for the purchase, and other records relating to the negotiations over the commercial terms of the agreement, on the basis that the link between that information and any effect on the environment was too remote to bring them within the ambit of "environmental information". The CEI noted that whether the link between the information concerned and the effect on the environment is sufficient to bring the information within the ambit of the definition is a matter of judgment, depending on the circumstances of the case. He stated that, "if in doubt, it is appropriate to have regard to the purpose of AIE as reflected in Recital (1) of the Directive 2003/4/EC, emphasising that AIE is about environmental decision-making, not the general administrative activities of public authorities".