claire

Claire Hogan is a barrister with a mixed civil and public law practice. She trains public bodies on Freedom of Information and Data Protection Responsibilities on behalf of Public Affairs Ireland.

 

 

 

 

 

 

 

 

 

The Annual Report of the Office of the Information Commissioner, which reviews 2015 (and was launched in May 2016), sheds light on the workings of the Freedom of Information Act 2014 (“the FOI Act 2014”), and makes for interesting reading for public bodies.

 

A Dramatic Increase in Requests

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

The increase is largely attributable to two changes. First, the FOI Act 2014 extended Freedom of Information (“FOI”) obligations to a range of new bodies, a number of which are partially-included under FOI, such as the Central Bank, the National Treasury Management Agency (NTMA) and the National Asset Management Agency (NAMA). Second, the new Act also removed the requirement to pay a standard up-front fee of €15 that, under the old regime, was applicable to every request.

 

The Commissioner notes in his Report that a majority of Government Departments recorded large increases in the number of FOI requests made in 2015. Notable increases in requests received included:

  • Department of Transport, Tourism and Sport – 93 FOI requests recorded in 2014, rising to 243 in 2015 (an increase of 161%).
  • Department of Finance – 165 FOI requests recorded in 2014, rising to 413 in 2015 (an increase of 150%).
  • Department of Jobs, Enterprise and Innovation – 62 FOI requests recorded in 2014, rising to 144 in 2015 (an increase of 132%).
  • Department of the Environment, Community and Local Government – 180 FOI requests recorded in 2014, rising to 395 in 2015 (an increase of 119%).

FOI requests often reflect the political climate of the times we live in. Thus, it is unsurprising that Irish Water also recorded a large increase in FOI requests received: 561 in 2015, up from 88 in 2014. This is an increase of 538%.

As a result of the extension of the FOI regime to all public bodies, a number of new bodies reported receipt of FOI requests for the first time, including An Garda Síochána (183 requests), the Central Bank (101), NAMA (98) and the NTMA (50).

 

Below is a list of the ten bodies that received the most requests in 2015.

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Source: OIC Report for 2015, pp.20

 

Profile of Requesters

The category “Clients of Public Bodies” represented 56% of the overall pool of requesters, and therefore an overall majority. It is noteworthy that the category “Journalists” rose to 20%, a significant rise. Previously requests by journalists generally accounted for approximately 10% of all requests made. The Commissioner welcomes the increase, 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.”

There was a significant increase in the number of requests made for access to non-personal information in 2015. In 2014, requests for access to non-personal information accounted for 23% of all requests; that figure rose to 36% in 2015. Again, this increase is likely to be attributable to the elimination of up-front fees for a request. Previously, requesters may have been more likely to have “skin in the game”, in the sense that they had a vested interest in the outcome of the request. However, the monetary deterrent in making a request, although modest, has been removed.

 

 

 

Implications for Public Bodies

As a matter of principle, public bodies must be blind to the fact that they are receiving more requests from journalists, and more requests for non-personal information. There is no requirement to have a personal / particular interest in accessing the record concerned. In fact, reasons for the request and any belief or opinion of the decision-maker as to the reasons for the request must be disregarded, according to section 13(4) of the FOI Act 2014, which provides:

 

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.

 

The decision of the Information Commissioner in Mr Eamonn Murphy and the IDA

[i] is relevant. The Information Commissioner overturned a decision of the IDA to refuse access that was based on its belief that the requester would misconstrue the report and was seeking access in order to damage the reputation of the author.

As a matter of practice, the increase in requests poses challenges for public bodies. The number of requests “on hand” within public bodies at the year-end of 2015 rose to 5,337. This total represents an increase of 27% on the year-end figure for 2014. In his report, the Information Commissioner states:

“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.”

FOI is a core function of public bodies and cannot be afforded lesser weight than other statutory functions when balancing competing demands. It may well be the case that public bodies will need to channel more resources towards the delivery of FOI services, in light of these revealing statistics.

 

 

 

Notes

 [i] [2008] IEIC 070332 (7 October 2008)

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