The Information Commissioner, Emily O'Reilly, has published her Annual Report for 2012. The Report shows a 38% increase in the number of FOI review applications received by her Office in 2012. The Commissioner reviewed decisions of public bodies in 200 cases, the same as in 2011. Of the cases referred to her Office for review, 45% were either settled or withdrawn. No Supreme Court or High Court judgments were delivered in 2012 in respect of decisions of her Office.
The Report highlights the imminent extension of the FOI Act to a significant number of additional public bodies, under the proposed Freedom of Information (Amendment) Bill, which the Government is expected to publish before the Summer recess. The Government published a Draft Heads of Bill last July 2012. The Draft Bill proposes the automatic application of FOI legislation to all newly formed public bodies.
The Report notes that section 32 of the FOI Acts 1997 and 2003 provides for the mandatory refusal of access to certain records whose disclosure is prohibited by other enactments. The Commissioner called for the urgent review of the operation of any enactments that authorise or require the non-disclosure of records, to determine whether they should be amended or repealed or be added to the Third Schedule of the FOI Acts. The FOI Acts require the review of the operation of any such enactments every five years, however no review has been conducted since 2005. She stated that: "the non-applicability of the FOI Act is appearing as a standard component of many new Acts". It is estimated that there are approximately 230 enactments containing such non-disclosure provisions.
The Commissioner also expressed her disappointment that in this Report she was unable to comment on a significant number of public bodies that come within the remit of the FOI Acts. This was due to the fact that statistical FOI returns for 2012, for the majority of civil service bodies had not been forwarded to her Office for publication by the Department of Jobs, Enterprise and Innovation due to an administratively unsustainable workload.
Part II of the Commisioner's Report relates to her separate role as Commissioner for Environmental Information. It focuses on decisions made by her Office on appeal under the Access to Information on the Environment (AIE) Regulations 2007-2011. The AIE Regulations impose certain general duties on public authorities in order to facilitate access to environmental information. The Commissioner once again expressed disappointment at the relatively small number of AIE appeals made to her Office in 2012. Only thirteen appeals were received during 2012.
There were no new High Court appeals taken against decisions of the Commissioner for the Environment in 2012. However, earlier this year, the High Court delivered its judgment in an appeal brought by NAMA. The High Court upheld the Commissioner's decision that NAMA is a public authority within the meaning of the AIE Regulations. Her office's appeal to the Supreme Court against a judgment of Mr Justice O'Neill in An Taoiseach v Commisioner for Environmental Information  IEHC 241 is still pending.