Regulatory Trends: What is new in Freedom of Information?
The Annual Report of the Information Commissioner for 2018 sets out the work of the Office of the Information Commissioner (“OIC”) over the course of the 2018 calendar year, examining the Freedom of Information requests received by public bodies and the trends emerging from the treatment of these requests by public bodies and the OIC.
Key statistics on requests
The Report noted that since 2015 and the extension of FOI to a number of new public bodies, there has been a 32% increase in the total requests made to public bodies, with 36,896 requests received in 2018 alone.
- Requests were made across a number of sectors, with 40% of requests being made to government departments and State bodies and 29% of requests being made to the HSE.
- The HSE received the highest number of requests of any public body at a total of 10,706 requests in 2018, followed by the Department of Employment Affairs and Social Protection at 2,510 requests and TUSLA with 992 requests.
- Over half of FOI requests originate from clients of FOI bodies and, surprisingly, only a fifth of FOI requests originate from journalists.
Category of requester to public bodies
- As a welcome improvement, 64% of all reviews were completed by the OIC within the statutory four month time frame. However, the average number of days taken for an appeal to be closed was 279 days in 2018.
- Interestingly, the Report noted that the number of accepted applications for review was lower than the overall number of applications received. It appears some applications to the OIC are made prematurely before the applicant has exhausted the internal review procedure with the FOI body.
Regulatory trends – deemed refusals
Where an FOI body has not responded to an original request within four weeks, or if there has not been an internal review of the decision within three weeks, this is a “deemed refusal” of the request. Since deemed refusals represent 28% of all applications accepted by the OIC, the OIC criticised FOI bodies who are unable to process these requests on time (despite the fact that the number of these applications has decreased from the previous year). FOI bodies generally refer to the high volume of FOI requests they face, however the OIC emphasises that “it is unacceptable for such bodies to simply allow such resourcing issues to persist”.
The OIC intends to carry out an investigation to review the practices and procedures adopted by a selection of FOI bodies, and their adherence with the relevant deadlines in processing requests, with the intention to publish a report with the findings of this investigation later in the year.
Frivolous and vexatious requests
In Grange v Information Commissioner & anor, the High Court affirmed the Commissioner’s approach to examining whether a request was frivolous or vexatious. It was found to be appropriate to have regard to the manner in which a requester has engaged with an FOI body to date on a particular matter in considering whether a request was frivolous or vexatious. The Court was also satisfied that the Commissioner properly came to the view that as the request was to further the applicant’s personal grievance it could properly be classified as vexatious.
Private email accounts
Two interesting related cases dealt with requests made in relation to non-official/private email and social media accounts of former Taoiseach Enda Kenny, and the former Minister for Justice and Equality Frances Fitzgerald. In both cases the Commissioner found that where the accounts had been used for “official functions and activities” of the respective Departments, they could not be considered as private and there was an obligation to enquire whether any documents covered by the FOI requests were contained in these accounts (Cases 170175 and 170315).
Pixelating CCTV footage
Where an FOI body refused to release CCTV footage on the basis that it would be releasing third party data to the applicant, the Commissioner held that although an FOI body might be able to redact a record, they are not automatically required to, in particular where there is a lack of resources to do so. In this case the Department of Employment Affairs and Social Protection had received an estimate of the cost of pixelating the footage and had indicated their willingness to release the information provided the applicant paid these costs (Case 170497).
For further detail, the Report may be viewed here. If you have any questions in relation to FOI please feel free to contact Colin Rooney, Ciara Anderson or Caoimhe Stafford.