"Guidance notes on the provision of assistance by public bodies to facilitate persons with a disability to exercise their rights under the Freedom of Information Act (FOI) Act, 1997", were produced last year, and they are reproduced again below.

As a contribution to ensuring that persons with a visual disability can be informed in relation to their FOI rights, we have arranged for transcription of some of the FOI explanatory material into Braille and audio tape format. The National Council for the Blind of Ireland (NCBI) has transcribed into those formats the basic leaflet introducing the FOI Act to members of the public. The more detailed CPU "Short Guide" to the Act has also been transcribed. The NCBI will hold master copies of these documents, and public bodies can get ready access to copies of this material from the NCBI on payment of a copying fee. The Office of the Information Commissioner has also made certain introductory documentation in relation to that Office available for transcription, and these are also available from the NCBI. Public bodies are encouraged to be aware that these resources are available, and to use them as appropriate when dealing with persons with a visual disability.

TABLE OF CONTENTS

Page No.

1. Outline of contents 2

2. Introduction 3

2.1 Terms of Reference 3

3. Designation of officers to provide a service

to requesters with a disability 4

4. Provision of services to requesters with a

disability 5 4.1 Provision of a referral service 6

5. Identity of requesters seeking personal

information 8 5.1 Establishing identity 8

5.2 Release of personal information 9

6. Consent of requesters to release of records

to third parties 11 6.1 Consent to release of records to third parties 11

6.1.1. Is consent informed? 11

6.1.2. Is consent valid? 12

6.1.3. Provision of records to third parties with consent 13

App. A Sources of disability awareness training

App.B List of service providers to persons with a disability

2. INTRODUCTION:

These Guidelines were prepared under Section 6(3) of the FOI Act, which provides that the Minister for Finance shall, following consultation with whatever other Minister(s) he or she considers appropriate, introduce guidelines on the provision of reasonable assistance to persons with a disability in exercising their rights under the Act, and that public bodies shall have regard to such Guidelines.

The wording of section 6(3) focuses the scope of the Guidelines solely on the rights of persons with a disability in accessing their rights of access to records held by public bodies. Wider issues affecting persons with a disability, such as physical access to buildings etc., are therefore not within the scope of the Guidelines.

2.1. Terms of Reference

The Guidelines were prepared by a subgroup of the FOI Interdepartmental Working Group on the basis of the following Terms of Reference agreed by the subgroup:

"To draft guidelines for public bodies so as to assist persons with a disability in exercising their access rights under the FOI Act. The guidelines will have regard to:
Ÿ Different ranges of disability;
Ÿ Issues of consent given by persons with a disability;
Ÿ Advocacy issues;
Ÿ Provision of practical official assistance to persons with a disability in exercising their access rights; and
Ÿ Any other issues identified as relevant by the Subgroup."

3. Designation of officers to provide a service to requesters with a disability.

The Head of each public body should ensure that an officer is designated to deal directly with requesters with a disability when such requesters are, due to their disability, unable to fully exercise their access rights under the Act. This function should be carried out as an integral part of the duties of the relevant officer and should be executed on the basis that professionalism of the service is applied equally to all requesters. Public bodies could achieve this through any of the following means:
Ÿ assigning the task to the existing FOI officer, if such a post exists;
Ÿ assigning the task to the officer in the body whose existing duties most closely relate to it, or
Ÿ putting other arrangements in place that suit the requirements of the requester and the responsibilities of the public body.

Heads of public bodies should make arrangements to ensure that the service is provided at all times, i.e. that any absences of the dedicated officer are covered through nomination of a deputy or otherwise as required to ensure continuity of the service.

In any event, heads of public bodies should ensure that all officers who perform this duty are provided with basic disability awareness training. Such training should ensure that officers are in a position to have due regard to the extent and categories of disability of requesters, and should have a particular emphasis on advocacy issues. Details on sources of such training are attached as appendix A.

Public bodies should also be aware of and have regard to existing Guidance under section 28(6) of the FOI Act which set out the circumstances when it is appropriate to release records relating to incapacitated persons to parents or guardians acting on their behalf.

4. Provision of services to requesters with a disability:

The task of the nominated officer is to ensure that requesters with a disability are provided with access rights consistent with the provisions of the FOI Act. In fulfilling their task, disability access officers should take a pragmatic approach to performing this task and apply common sense to situations which are covered by formal mechanisms of the FOI Act.

This level of service could be maximised by:
Ÿ accepting oral requests from requesters who are unable to read, print and/or write due to their disability. In receiving oral requests, the disability access officer should make a verbatim record of the request, to be read back to and agreed by the requester. This would make such requests consistent with section 7(1) of the Act which requires that FOI requests are in writing. As email requests which are by their nature unsigned are acceptable as valid requests, the technical issue as to whether the oral recorded request needs to be signed does not arise. If the request is for personal information, issues of identity and consent arise. These issues are dealt with in section 5 following;
Ÿ accepting email requests from requesters who are unable to write due to their disability. The main issues here would be of identity and security, as it has been established that receipt of email requests does not fall foul of the requirement that FOI requests be in writing. Public bodies should largely be guided by the wishes of the requester in this regard, as he or she would be better placed to advise on the security of a home email destination (including issues such as family access etc.) than the public body.
Ÿ enabling the requester to inspect or have records explained to him or her. There may be cases where a requester with a reading disability who has sought access to records does not want such access to be via a third party, but is prepared to have the content of the records explained to him or her by the public body. In such cases, the public body should ensure that, with due regard to disability awareness issues, the officer most familiar with the records provides the service;
Ÿ accepting requests from a third party on behalf of a requester with a disability. Subject to the issues of identity and consent mentioned above, there is no difficulty under FOI in public bodies releasing records to third parties, including those which are confidential, commercially sensitive or personal to the requester. Release of records via third parties should only be considered when the public body is satisfied that the requester does not wish to have direct access to the records or to have them explained to him or her by the public body;

4.1 Provision of a referral service

It may not always be possible to provide an appropriate standard of service directly to the requester, for example when records sought by a requester cannot be understood by him or her due to the particular nature of their disability. In this context, public bodies could consider providing appropriate technology (such as voice translation software and scanners) when updating or replacing existing Information Technology apparatus as circumstances and resources allow. Provision of such technology where relevant and appropriate should reduce the recourse by public bodies to Section 12 of the Act which provides that requesters should be provided with records in any form specified by the requester unless it is not efficient for the public body to do so.

However, there will be some cases where the issue of understanding records can not be dealt with by technology alone. In these exceptional cases, public bodies may wish to consider making contact with a number of voluntary and other services which can provide assistance to requesters with particular disabilities in such matters. Public bodies should not refuse access to a record under section 12 of the FOI Act in the case of a requester with a disability until all reasonable steps have been taken to assist the requester within the body, including consideration of technical solutions to the issue. Only then should public bodies consider referring the requester to the service most relevant to his or her case. It is a matter for each public body to consider whether and when such efforts would be appropriate, but should always bear in mind the importance of providing a level of service to persons with a disability at least equivalent to that provided to other requesters. A list of service providers, and an indication of the categories of disability each caters for, is attached as Appendix B. It is not expected that the cost of translation would be an issue in most cases, but where it is, charging for translating records into specified formats would be a matter for public bodies to decide on a case by case basis. The requester should be assisted in minimising charges. It may suit the public body to pay, for example, for a Braille version of a record that it is intended to make publicly available and a requester would not be required to pay in such a case. Moreover, public bodies can consider waiving fees in certain circumstances as set out in Section 47 of the Act, e.g. Section 47 (4)(b).

At a general level, the service provided by public bodies to persons with a disability could be considerably improved in the following ways:
Ÿ production of key documents, (i.e. publishable documents most frequently sought from public bodies), in video or audio format, with subtitling as appropriate. Use of existing reformatting technology should be considered, i.e. in-house technology that facilitates translation of material into different formats thereby removing the need to source such translation externally. This could reduce the reformatting costs of any records the public body decides to translate;
Ÿ production of key records in Braille or in an appropriate voice translation medium. Again, use of existing reformatting technology is suggested.

5. IDENTITY OF REQUESTERS SEEKING PERSONAL INFORMATION:

This section of the Guidelines relates to the treatment of requests for one's own personal records. In this regard, there should be no difference between the service provided to requesters with a disability and that provided to other requesters. The terms of the FOI Act [section 28(2)] oblige public bodies to satisfy themselves of the identity of requesters for personal information.

5.1. Establishing identity.

The FOI Act does not specify any particular form of identification which public bodies should consider as satisfactory for the purposes of positively identifying requesters for personal information. However, listed below are some forms of identification which may be of assistance to public bodies in identifying requesters for personal information:
Ÿ any form of photographic identification, such as a passport, driver's licence etc.;
Ÿ the person's signature, either on legal documentation such as an affidavit or in routine correspondence in cases where the body has had prior written dealings with the person. This could include State entitlement documentation such as allowance/benefit booklets when the public body is satisfied that the bearer is the person to whom the allowance is payable;
Ÿ the person's home or email address and telephone number, if the body is satisfied that such details are not available to other people, and
Ÿ any other form of identification acceptable to the public body.

In general, public bodies should have regard to forms of identification convenient for the requester provided they provide sufficient proof of identity.

5.2. Release of personal information

Once the identity of the requester has been established, the public body must then decide whether it would be appropriate to release the requested records. In doing this, the public body should consider the following:
Ÿ are the records appropriate for release? The FOI Act provides that requested records held by public bodies will be released unless they contain exempt material. Therefore, decision makers must consider whether requested records, including personal records, include information that may be exempt before making any decision to release them.
Ÿ does the nature of the disability require additional steps to be taken other than sending the records to the requester by post? If so, then the issues of maximising the service to requesters with a disability (as set out in section 4 above) should be considered, including email or phone conversation. If not, no additional action is required.
Ÿ would release of the records be harmful to the person in some way? i.e. as specified in Section 28(3) of the Act. When considering this issue, the public body should have the best interests of the person in mind at all times, and should approach it on the basis that the likelihood of such harm occurring is no more likely in most cases for requesters with a disability than it is for the majority of requesters. Before making any decision to withhold records from a requester for this reason, the public body should consult with as wide a range of sources as is reasonably possible, such as a family member, trusted friend, carer, health professional, legal representative etc.,.

Intermittent or temporary incapacity: In the case of a person who suffers intermittent incapacity, in most cases of an intellectual nature, but can normally manage his or her own affairs, it is unlikely that records would be released to a third party during such periods of incapacity unless the decision maker had strong grounds for assuming either:
a. that the person would consent to release if able to do so, or
b. if release was in his or her best interests e.g.- where the person's nominated third party have concerns about treatment and seek the person's medical records with a view to obtaining a second medical opinion

The Act [section 28(3)] provides a basis for such an approach in that medical records or records related to social work which in the opinion of a deciding officer may be potentially harmful to the requester if released directly to him or her can be released on the requester's behalf to a health professional nominated by him or her.
Ÿ is the person in a position to understand the records? If the public body have concerns of this nature, steps should be taken to ensure that released records are properly explained to the requester. This could be done by having an officer familiar with the records or a third party nominated by the requester take him or her through them to ensure that there is no potentially upsetting misunderstanding of their content.

6. CONSENT OF REQUESTERS TO RELEASE OF RECORDS TO THIRD PARTIES:

This section of the Guidelines relates to the issue of consent of persons with a disability to records being released to third parties. The terms of the FOI Act [section 28(2)] oblige public bodies to satisfy themselves of the consent of requesters to the release of information sought by them to a third party. This section should only be referred to where the requester, due to the nature of their disability, is not in a position to provide written or oral consent to release of records relating to him or her self to third parties. Guidance regarding issues of consent generally is also provided on the section 28(6) guidelines referred to previously.

6.1. Consent to release of records to third parties:

As with identification of requesters for personal information, the FOI Act does not specify any particular form of consent which public bodies should consider as satisfactory proof of consent to release (i) requested records to third parties on their behalf, or (ii) personal information relating to requesters with a disability to third parties. Public bodies should take a pragmatic approach in considering this issue and be sensitive to the reality that some aspects of particular requests will require dealing with the requester him or herself directly, while with other aspects of the same requests contact will be with the third party by themselves or along with the requester.

6.1.1. Is consent informed?

In examining these issues, public bodies should firstly satisfy themselves that the requester is in a position to provide informed consent. This would be an issue of judgment for the public body, but some of the factors which public bodies should consider on this issue are:
Ÿ previous dealings with the person. If the public body, through FOI or otherwise, has had prior dealings with the person, the nature of such dealings may provide grounds for the body to decide whether the person was in a position to provide informed consent;
Ÿ previous dealings with a nominated third party. If the body has had prior dealings with a nominated third party on behalf of the person (such as a family member, trusted friend, carer, health professional, legal representative etc.), the nature of such dealings may also provide grounds for the body to decide whether the person was in a position to provide informed consent; and
Ÿ the nature of records held on the person. In cases of requests for personal information, there may be material on the person's file which would assist the body in deciding if he or she was in a position to provide informed consent to release of such material to third parties;
Ÿ the nature of the disability. A critical factor is whether the disability is temporary or continuing. Requests from people with intermittent or temporary disability would be treated as outlined in 5.2 above, with decision makers having regard to the best interests of the person to whom the records relate. In cases where disability is continuing, it is more likely that release to third parties may be in the person's best interests where such third parties are caring for the person on an ongoing basis. However, this may not always be the case.

Decision makers must treat each request on its merits on a case by case basis.

6.1.2. Is consent valid?

Once a public body has established that the person is in a position to give informed consent, the next step is to decide if such consent is valid. Below are listed some forms of consent which public bodies might find useful for the purpose of establishing the validity of consent for all requesters:
Ÿ the person's signature, either on legal documentation such as an affidavit or in routine correspondence in cases where the body has had prior written dealings with the person;
Ÿ confirmation by telephone when the public body is satisfied that such consent is being given without duress;
Ÿ consent by email when the public body is satisfied that such consent is secure and being given without duress; and
Ÿ any other form of consent acceptable to the public body.

If public bodies have any concerns about the validity of consent given by people, they should take all reasonable steps to contact the person on the issue, either directly or via an intermediary nominated by him or her. If they are unable to contact the person, they should assume that the person does not consent as the FOI Act provides that one's personal information will not be revealed to third parties, unless the person to whom the records relate has consented or there are public interest grounds for releasing the records which override the right to privacy of the person.

6.1.3. Provision of records to third parties with consent.

Once consent has been established, the requested records should be released forthwith to the third party nominated by the requester.

APPENDIX A

This is not an exhaustive list and does not constitute a recommendation, public bodies are free to source disability awareness training elsewhere as required, subject to public procurement procedures.

Sources of disability awareness training:
Trainer(s) Contact point Email

Ben Murray ph. 01-4510260
087-6862306

Jacqui Browne ph. 057-2610447 jbrowne@iol.ie
fax:066-7136575

Barry Tumbleton, ph. 01-6268742;
The National Association for the Deaf ph. 01-8723800

The National Council for the Blind ph. 01-8307033
of Ireland

The Irish Wheelchair Association ph. 01-8338241

Ms. Margaret Blanchfield ph. 056 - 63681
79 Marble Crescent, Kilkenny.

Mr. Alan Bruce, 53 Rathdown Square, ph. 01 - 8380970
North Circular Road, Dublin 7.

Ms. Frances Finucane, 49 Lios na Gréine, ph. 021 – 322366
South Douglas Road, Cork.

Mr. Christopher Keeley, 3 Herberton ph. 01 – 4542857
Drive, Rialto, Dublin 12.

Ms. Anne Marie Kennedy, ph. 01 – 8787272
Irish Trade Union Trust,
Liberty Hall, Dublin 1.

Mr. Kevin Power, 46 Larksfield Gardens, ph. 01 – 4756989 kevinpower@ireland.com
Harolds Cross, Dublin 6W 087 - 6292323

Ms. Elaine Shields, 24 Crescent 2, ph. 042 – 9339604
Muirhevnamore, Dundalk, Co. Louth

APPENDIX B

This is not an exhaustive list and does not constitute

a recommendation, public bodies are free to refer

requesters to other sources as required, subject to

the usual procurement procedures.

List of service providers to persons with a disability:

Source(s) Service Contact point Email

Jackson Technology, Braille ph. 01-4518508

Supplier of Braille
Convertors/Printers,
24 Kiltipper Ave.,
Aylesbury, Dublin 24

National Council for the Blind Braille/ ph. 01-8307033
PV Doyle House, Conversion
Whitworth Road, Service
Dublin 9.

Irish Sign Link - interpreting Signing ph. 01-6080437
service, 25 Clyde Road , signlink@indigo.ie Ballsbridge, Dublin 4 Fax 01-6685029

Forum of People with General ph. 01-8786077
Disabilities

The National Disability General ph 01-6080400
Authority, Clyde Road,
Dublin 4

Comhairle Advice/Info ph 01-6059000
7th Floor
Hume House
Ballsbridge
Dublin 4

Appendix to the Code of General Dept of the Environment
Practice for the employment &Local Government
of people with disabilities 01-8882355
in the local authority sector