Trends and Decisions in FOI Law

1. FREEDOM OF
INFORMATION LAW
UPDATE:
TRENDS AND DECISIONS
Claire Hogan BL
19 May 2017

2. I. RECENT TRENDS

3. • Government Whatsapp Group on Brexit
• Names Redacted
• The group discusses plans of action and also
media reaction to the result.
• "WhatsApp has worked out great. Thanks for
your help.”

5. • The total number of requests received by public
bodies in 2015 was 27,989
• increase of 38% on the number received in 2014
• largest year-on-year increase in requests made to
public bodies since 1999

6. • 2 main reasons
1. FOI Act 2014 extended Freedom of Information
obligations to a range of new bodies
1. Removal of requirement to pay a standard up-
front fee of €15

7. The Stats contd.

8. The Stats contd.

9. The Stats contd.

10. • The Information Commissioner welcomes the
increase in the number of journalist requests,
stating:
• “In my view, the increase is a positive
development as journalists have a significant role
to play in ensuring that public bodies are held to
account.”

11. Implications for Public Bodies
• 1. Public bodies must be blind to the fact that they are
receiving more requests from journalists, and more
requests for non-personal information
• Motive is irrelevant
• Section 13(4) of the FOI Act 2014:
• Subject to this Act, in deciding whether to grant or refuse
to grant an FOI request—
• (a) any reason that the requester gives for the request, and
• (b) any belief or opinion of the head as to what are the
reasons of the requester for the request, shall be
disregarded.

12. • Mr Eamonn Murphy and the IDA (Case No.
070332, 7 October 2008)
• The Information Commissioner overturned a
decision of the IDA to refuse access
• IDA had based refusal on potential for the
contents of the report to be misconstrued and
used selectively, and that it was deliberate
attempt to damage reputation and standing of
the author

13. • 2. Real challenges for Resource Allocation
• “While I fully appreciate that the significant increase in
requests made has put a strain on undoubtedly limited
resources, I would encourage all bodies to ensure that
their FOI functions receive adequate resources to allow
for effective delivery of FOI services.”
Information Commissioner
• 40% of all applications received by the OIC had a
deemed refusal (section 19) at one stage;
• Just under 30% had a deemed refusal at both stages.

14. II. Recent Decisions

15. Administrative Refusals
 Administrative reasons to refuse request (section
15):
– Record does not exist or cannot be found after all reasonable effort
– Request is not compliant with Act (imprecise request)
– Request would impose unreasonable interference with work of the FOI
body (Voluminous request)
– Records/information already in public domain
– Publication is required by law (within 12 weeks)
– The FOI Body intends to publish the record (within 6 weeks)
– Request is frivolous or vexatious
– Fee has not been paid
– Records already released and available to requester

16. Lost or Non-Existent Records
• Ms W and National Maternity Hospital (Case No. 170045, 11
May 2017)
• Woman sought birth records, born in 1964
• Hospital explanation: pre 1968 records destroyed around
1994 – section 15(1)(a) relied on
• “…the FOI Act does not require absolute certainty as to the
existence or location of records because records may be lost or
simply cannot be found. This Office can find that a body's
decision was justified … even where records that an applicant
believes exist or ought to exist have not been found. The Act
does not provide a right of access to records that ought to
exist, nor does it require bodies to create records that do not
exist or cannot be found at the time of the request.”

17. Voluminous Requests
Right To Know and University College Cork (Case Number: 160479, 16
December 2016)
• The applicant sought access to details of all contributions received
by UCC either directly or indirectly from the Apple
company whether provided as cash or in-kind, including but not
limited to contributions to research projects in any department,
contributions towards buildings, sponsorship of professorships
and sponsorship of events, from 1 January 2011 to the date of the
request.
• Section 15(1)(c) relied upon: that conducting searches would
cause a substantial and unreasonable disruption of its work

18. • section 15(4) provides that a body cannot refuse
a request under section 15(1)(c) unless it has first
assisted, or offered to assist, the requester in
amending the request
• UCC made no effort to assist, or to offer to assist,
the applicant
• “Accordingly, I find that UCC was not justified in
its decision to refuse the request under section
15(1)(c).”

19. Frivolous or Vexatious Requests
• X and Department of Justice and Equality
(Case Number: 160368, 13 April 2017)
• records associated with the Independent
Review Mechanism (IRM).
• temporary, independent, process set up to
review and report to the Minister for Justice
on allegations of misconduct by members of
An Garda Síochána

20. • “The Commissioner takes the view that refusal of requests
under section 15(1)(g) should not be undertaken lightly. It
seems to me that the Department's position that section
15(1)(g) could be applied seems to import certain motives
into the applicant's request and goes on to speculate on
the use to which the information sought might be put. In
the circumstances of this case, I do not consider that the
request was made in bad faith or that it forms part of a
pattern of conduct that amounts to an abuse of process, or
an abuse of the right of access. Neither, at this stage, has
the formation of a pattern of manifestly unreasonable
requests been established. I am not satisfied that the
Department has justified refusal of the request under this
section.”

21. Substantive Refusals
Part 4 Exemptions
Meetings of the Government (s.28) Information obtained in confidence (s.35)
Deliberations of public bodies (s.29) Commercially sensitive information (s.36)
Functions and negotiations of public
bodies (s.30)
Personal information (s.37)
Parliamentary, court and certain other
matters (s.31)
Research and natural resources (s.39)
Law enforcement and safety (s.32) Financial and economic interests of the
State (s.40)
Security, defence and international
relations (s.33)
Disclosure is, or can be, prohibited by law,
whether domestic or EU (s.41)

22. Functions and Negotiations of Public
Bodies
• Mr B and Department of Arts, Heritage, Regional, Rural
and Gaeltacht Affairs (Case No: 160500, 160503,
160507, 8 May 2017)
• sought access to the names of the adjudicators
• Refusal: sections 30(1)(a) and 30(2).
• “prejudice the effectiveness of tests, examinations,
investigations, inquiries or audits conducted by or on
behalf of an FOI body or the procedures or methods
employed for the conduct thereof”

23. • Department argued that it was not in the public
interest to release the names of the adjudicators given:
• the anonymous nature of the adjudication system,
• competitive nature of the Tidy Towns Competition,
• the rewards and prestige attached to the competition,
• the national profile of the competition,
• the absolute need to preserve the integrity of the
competition, and
• the national public benefits that derive from the
competition.

24. • “However, the Department has failed to identify
any specific potential harm to the functions
covered by the exemption at section 30(1)(a). It
has also failed to explain how such harm might
arise and why it considers it reasonable to expect
such harm to arise. For example, it has not
explained how the release of the names of the
adjudicators might prejudice the effectiveness of
the assessments or inquiries they carried out, or
the methods they used for such assessments or
inquiries”

25. • section 22(12)(b): onus on the Department to
show that its decision to refuse access to the
names of the adjudicators was justified
• At the stage of an OIC appeal, there is a
presumption that refusal to grant access was not
justified?
Why? Consistent with the rights-based approach
under the Act

26. Personal Information
• Ms X and the Department of Foreign Affairs and Trade
(Case No. 160421, 10 February 2017)
• Employee of the FOI Body sought records relating to herself
• Records contained information in relation to allegations of
misconduct and investigations into these allegations
• Dept relied on Section 37(1) and 37(7): personal
information.
• Section 2 part (I) of the Act provides that the definition of
personal information does not include certain information
relating to an individual who holds or held a position as a
member of staff of an FOI body.

27. • “The exclusion at section 2 part (I) does not provide for the exclusion
of all information relating to staff of an FOI body. The Commissioner
takes the view that this exclusion is intended to ensure that section
37 will not be used to exempt the identity of a public servant in the
context of the particular position held or any records created by the
public servant while carrying out his or her functions. However, the
exclusion to the definition of personal information at (I) does not
deprive public servants of the right to privacy generally.”
• The misconduct could not be said to be something done for the
purpose of the performance of the employees functions
• Public interest override: Not applicable, privacy concerns too great,
strained interpersonal relationships and challenging work
environment

28. • Mr X and Cork County Council (Case No. 140157, 12 August 2015)
• Whether the Council was justified in refusing to confirm or deny the
existence of certain records sought by the applicant, which he
contended related to an investigation into the conduct of a named
Council employee (s.37(6))
• IC: To confirm that an employee had been under investigation for
alleged wrong-doing would be to disclose personal information of
that employee. It is also the case that to state that no such
investigation was conducted would also disclose personal
information of that employee.
• “Accordingly, I find in this case that to disclose the existence, or
non-existence, of records of the type sought by the requester
would be to disclose personal information.”

29. Section 38 Consultation Procedure
X Solicitors and EirGrid
(Case No. 170087, 3 March 2017)
• Info is confidential, commercially sensitive, or personal information
about third parties, but …minded to release in the public interest.
• Timelines breached
• (i) relevant 3rd party ought to have been notified within 2 weeks –
it was 3 weeks after receipt of request
• (ii) FOI body should have made a decision whether to grant request
within timeframe – breach of this
• Also EirGrid informed applicant re internal review within four
weeks.
• However, relevant person should apply directly to the Information
Commissioner for a review of the original decision, and must do so
within 2 weeks

30. • “Where an FOI body considers that certain records
coming within the scope of a request exist and that
section 38 does not apply, such records should be
separated from the records to which section 38
applies and they should be processed in the same
manner as all other requests for records where section
38 does not apply. If a decision is made to refuse access
to these records, requesters should be informed of their
right to apply for an internal review of that decision.”
• Beneficial to split
• “…the section 38 notification process is complex and
can place an onerous burden on decision makers in
FOI bodies.”

31. Blanket Exemptions
• Mr Conn Corrigan of The Phoenix and the Department of Justice and
Equality (Case No. 150105, 15 October 2015)
• letters/emails/communications/submissions etc sent to the Minister from
2014 - present from any interested party including, but not limited to, the
Bar Council in relation to the Legal Services Regulation Bill 2011
• Refusal of access to all records bar one under section 29(1) (deliberations)
• “Public bodies should not proceed on the basis that all records relating to
deliberations are automatically exempt under section 29 of the FOI Act,
without examining the content of each record and weighing up the public
interest”
• No regard to guidelines: public body "should set out a reasoned argument
as to why they apply and what precisely the effect of disclosure would be".
• ”mere assertions, which are not supported by evidence”

32. • THANK YOU. QUESTIONS?
CLAIRE HOGAN BL
• Law Library, Dublin 7
• clairehoganbl@gmail.com