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1. Background

The Freedom of Information Act has been in operation for 18 months. In his first Annual Report, Mr. Kevin Murphy, the Information Commissioner, while indicating that there is no room for complacency, commented as follows:

"The percentage of requests which go to internal review is relatively low. This suggests that the Act is working reasonably well in the sense that many civil and public servants are clearly prepared to release information on request or explain fully the reasons why information is not being released." Annual Report of the Information Commissioner, 1998 -page 6. He further commented that "the relatively low percentage of cases referred to my Office, at this early stage in the life of the legislation, provides some evidence that requesters' needs are being met." Annual Report of the Information Commissioner, 1998 -page 7.


Clearly, the unprecedented preparations and investment of human and financial resources expended to ensure FOI would be delivered efficiently to customers has paid dividends. Public bodies are satisfied that, in overall terms, the Act is working effectively for the average requester. After 18 months of operation of the Act over 7,000 requests have been made to central Government bodies and over 3,000 to Health Boards and Local Authorities. The Act has been extended to a greater range of bodies during 1999 and an ambitious programme of further extension has been put in place for 2000/2001. It is therefore opportune to examine administrative and procedural arrangements in light of the not insignificant experience to date, highlight weaknesses and abuses and fine tune as necessary to ensure a sustainable environment in which a culture of freedom of information can flourish in the future.

This report reflects the input of the Civil Service Users' Network which has worked on the following basis :

"Within the framework and remit of the FOI Civil Service Users' Network, to consider improvements in administrative and procedural arrangements governing FOI, including, if necessary, possible legislative changes, taking into account the views of departments as set out in the first annual review of such arrangements."

The report suggests a significant number of technical and procedural improvements which will benefit both requesters and public bodies by allowing smoother processing of requests. It also highlights some weaknesses and abuses and discusses options which would curb abuse and make the Act more robust in the longer term.


2. Technical/Procedural Issues Designed to Make the Act Work More Effectively

2.1 Making Requests in Electronic Format

The Group considers that requesters ought to be able to make requests electronically and that signatures ought only be required in accordance with section 28(2) where it may assist the head in establishing the identity of a requester either seeking personal information or consenting to release of personal information relating to them.

2.2 Third Party Consultations at Internal Review

The Act correctly provides significant protection for third parties who provide public bodies with information in confidence, commercially sensitive information or personal information. An initial decision maker must consult (s 29) with third parties where s/he concludes that such information should be released in the public interest.

In contrast to this requirement, an officer reviewing the same case on appeal is not empowered to consult (s 29) with third parties where s/he concludes that third party information should be released in the public interest. Third party consultation should be provided for at this internal review stage in cases where consultation did not take place at initial decision stage. This should result in fewer cases going forward on appeal to the Information Commissioner . The time periods and procedures should be in accordance with section 29.

2.3 Time-Frame for initiating Third Party Consultation

As outlined above the Act allows for consultation with third parties where sensitive information affecting them is the subject of a request. However the experience to date is that the administrative time-frame for initiating these consultations is currently very tight. It means that the person dealing with the request must within the first two weeks of receiving same:
· Acknowledge receipt of request
· Usually discuss with requester to ensure focus is understood.
· Estimate search and retrieval time and any possible fees
· Locate all the records involved
· Examine all the records, paragraph by paragraph, for any information received in confidence, commercially sensitive information and/or personal information
· Consider the public interest arguments relevant to the release of the documents and reach a decision as to whether the sensitive material falls to be released in the public interest
· Where provisionally deciding to release in the public interest:
- take all reasonable steps to locate all third parties
- issue formal consultation letter to each of the third parties



At times, despite best efforts, it is proving very difficult for public bodies to meet this two week deadline. Where this failure occurs the option of consultation does not arise and the public body must generally refuse access to the records in question. This means that the requester is ultimately being penalised through access to records being denied. A longer initiation period is called for but within the overall time frame for reaching a decision.

2.4 Clarify that fee may be Charged at Internal Review Stage

A decision maker may refuse access to records and an appeal officer decide to release the records concerned. The power of the appeals officer to levy the appropriate fee on release should be put beyond any legal doubt.

2.5 Appeal by Requester Following Section 29 Consultations and ultimate refusal of Records

In normal circumstances, where access to records is refused a requester may appeal to the public body within one month of the decision. However, where the body engaged in section 29 third party consultations, and subsequently refused access, the requester must appeal directly to the Information Commissioner and do so within 2 weeks. This is both inappropriate and confusing for the requester. All appeals by a requester should be initially to the public body and the time period allowed should be 4 weeks in all cases.

2.6 Appeal by Third Party To Information Commissioner following S29 Consultations

Where a public body, following formal consultations and consideration of submissions made, informs a third party that it proposes to release records at issue in the public interest, that third party has only two weeks to appeal the decision to the Information Commissioner. Uniquely, the Commissioner is not given discretion to accept a late appeal in such instance. Once a third party makes an appeal, the appeal is treated like any other and will take four months to a year to be dealt with. In these circumstances, the two week period appears particularly harsh. There is a case for extending this appeal period to four weeks consistent with standard appeal periods or, at the very least, allowing discretion to the Commissioner to accept late appeals where the circumstances justify such action.

2.7 Informing Non-Submission-Making Third Parties of post S29 Decision

There is inconsistency between section 29 and section 34 of the Act whereby a third party who opts not to make a submission under S29 consultation procedures is entitled to a review of the ultimate decision under Section 34 but is not required to be informed of the decision under Section 29(3). If rights under Section 34 are to be upheld, Section 29 needs to be amended to make explicit the right of non-submission-making third parties to notification of decision.


2.8 Obligation on Information Commissioner to Consult Third Parties

There is a level of inconsistency between the obligations placed on public bodies to consult third parties in accordance with section 29 and the provisions of section 34(8) which simply refers to persons notified as the Commissioner may determine. To be consistent, the Act should oblige the Commissioner to engage in mandatory third party consultations at appeal stage in the same manner as a public body is required to engage in consultation if considering releasing S29 records in the public interest. There should also be an onus on the Information Commissioner to inform all parties to a review and all parties affected by a decision of the Commissioner so that they have an opportunity to exercise their right of appeal to the High Court if they so choose.


2.9 Closure of request where deposit not paid

Section 10(1)(f) implies that a request may be refused where a deposit payable under section 47 has not been paid. The Group is of the view that refusal in such circumstances is not appropriate and that the request should be deemed to be withdrawn where the requester has not responded within the following month.

2.10 allowing time for discussions as provided for under section 10(2) so as to Avoid refusal of requests

Section 10(2) provides for assistance by public bodies to a requester before refusing a request on grounds that records cannot be identified or the request is voluminous to the extent that it would unreasonably interfere with or disrupt other work of the body. The Act should clearly indicate a time period for such consultations and that the handling period for the request commences from agreement of a revised request which no longer falls to be refused by virtue of sections 10(1) (b) or (c).

2.11 Time Frame for Handling Requests

Section 8 of the Act provides that a request will be decided upon within 4 weeks of receipt. It is felt that this should be changed to 20 working days in order to allow for weekends, holiday periods, etc.

2.12 Extension of time for Handling Requests

The Act only allows for extension of time to handle a request if the number of records is such or the number of requests for the same records or information render compliance with the normal period not reasonably possible. Two further criteria should be added. The time period should be open to extension under section 9 where




Þ a large number of third parties must be consulted under S29.

Þ where the number of requests on hand from the same requester render compliance with the normal period not reasonably possible.

As suggested earlier, the Act should permit extension of the 2 week period provided to initiate formal consultations.


2.13 Clarification of Section 6(9)

Under this subsection, records of service providers under contract to public bodies come within the scope of FOI. However, there are a number of shortcomings with the provision both in terms of powers, focus and time limits. In terms of powers there is need to confer explicit power on public bodies to secure relevant records, in terms of focus there is need to confirm that the provision applies to contractors providing services to the public, and in terms of time limits it is necessary to allow time for the records of such contractors to be obtained by public bodies.

There is a need therefore to improve the wording of the section to address the foregoing. It would be desirable to also provide that the Minister may make regulations to further secure the application of this subsection (including perhaps enabling direct FOI requests to providers of some such services where appropriate, with internal appeal to the public body involved).

2.14 Definition of "Factual Information"

In the interests of clarity the term factual information as used throughout the Act should be defined in Section 2.

2.15 Clarification of section 46

Provision should be made for the head of a public body to make an appropriate declaration to the Information Commissioner that an exclusion under section 46 applies, where such exclusion is apparent from the very nature of the request itself. The provision should also confirm that personal information, which is already available for inspection or purchase outside FOI, comes within the scope of section 46(2).

2.16 Clarification and Broadening of the term "a request under this
Act"

In the interests of improving the application of the Act, provision should be made for the making, by the Minister, of regulations for this purpose.




2.17 Subsequent release of material already released under FOI

Where records are released under FOI and a request for the same information is subsequently received outside of the Act, it is felt that any subsequent release should be deemed to be released in accordance with the Act. This will ensure that public bodies are not required to engage in technical FOI procedures on a repeated basis. It is also important where issues of immunity from legal proceedings outlined in Section 45 of the Act might not apply to subsequent release outside FOI.


3. Provisions to Curb Unreasonable behaviour by a number of requesters Which have had extreme adverse implications for public bodies and the taxpayer .


3.1 Nature of Problem

Reasonable expectations of usage of FOI, when introduced, focused around individuals obtaining access to records relating to them held by public bodies, journalists seeking access to records in furtherance of their duty to inform the public, researchers and individuals accessing records relating to matters of general or specific interest. The Act, quite correctly, incorporated extensive provisions to ensure public bodies would assist requesters and facilitate access to records "to the greatest extent possible consistent with the public interest and the right to privacy". These provisions recognise the weaker position of many requesters because of limited knowledge of structures, systems, schemes operated and records held by public bodies. It is clear that these provisions have worked extremely well and access by the average requester to information can be achieved easily and at very low cost.

The group has formed the view that neither those who campaigned for FOI or the majority of requesters who make reasonable use of the Act, or indeed the Oireachtas, would have expected or intended that any single requester would, through extreme usage of the Act, cost the tax payer well in excess of £100,000 in an eight month period following its introduction. A single individual has made 194 (of 466) requests to a single public body, been responsible for 86 (of 101) internal appeals to that body and 31 (of 35) appeals to the Information Commissioner relating to that body. This individual has made a total of 239 requests to Government departments since the Act came into force. Neither would they have seen FOI as a mechanism to be used by interest groups when campaigning against existing or proposed legislation. In a single month (November, 1999) one government department has received circa 150 FOI requests (formatted and worded identically) for records relevant to a decision to include a certain item in Regulations. As this has been the experience, it is appropriate to examine the provisions in the Act which are designed to curb abuse and consider options to enhance such provisions while ensuring continuing access by the vast majority of requesters who use the Act in a reasonable way.

Abuse of FOI legislation is not an Irish phenomenon and even the strongest proponents of FOI will accept that reasonable safeguards against abuse are required. In the words of Mr. Tom Wright, the Ontario Information and Privacy Commissioner in a landmark decision ORDER M-618 ( Appeals M-9400511, M-9400628, M-9400645, M-9400647 and M-9400728)
London Police Services Board
relating to abuse of FOI procedures in Ontario:

[Any requester] may, in principle, have an unlimited right of access to government information, subject only to the exemptions set out in the Act. However, in my opinion, he does not have an unlimited right of access to the processes available to secure those rights."

This part of the report examines options to deal with abuse of the Act and improvements to existing administrative protections.


3.2 Limiting the Number of Requests from any One Requester

It is worth noting that the Ontario Commissioner imposed a bar on requests for 60 days and the following restrictions on a requester found to have misused the Act by submitting large volumes of requests:

"For a period of one year following the expiry of the sixty (60) day period, I am imposing
a five (5) transaction limit on the number of Riley requests and/or appeals that institutions
under the municipal or provincial Acts are collectively required to process at any one point
in time. In addition, I am limiting to one (1) the number of Riley requests and/or appeals
that any individual institution is required to process at any one time, to a maximum of four
(4) requests and/or appeals in the year."

With this in mind, limiting the number of requests from any one requester is clearly an option to ensure fair access by all requesters to the procedures put in place to deliver FOI and to ensure that these procedures are not totally usurped by a small number of requesters.

3.3 Charging Regime Under FOI

The current charging regime under the Act is complex and confusing. Requesters are frequently unclear as to the basis for charges and media interests complain as to lack of transparency or consistency in charging. For their part, public bodies have encountered difficulties in appropriately applying the charging provisions. It is essential to provide for a simpler, clearer charging regime with three objectives, namely:

· low cost access for the majority of users;
· transparency as to the basis for charges;
· ease of administration by public bodies.

On the basis of adhering to the broad approach established in the Act, a charge in respect of search, retrieval and copying should continue to apply. The Group is fully aware that the greatest proportion of cost in processing a request relates to time spent considering records and that some other jurisdictions charge for such time. However, on balance, the Group considered that this time should not be charged to the requester.

The Group favours a basic application fee This would also make the Act compatible with the regime under the Data Protection Act whereby an application fee has been in place for many years. with each request set low enough so as not to deter an average requester but high enough to deter the kind of misuse experienced to date. The Act should be explicit that fees will not apply to a social service client seeking access to records relating to their case or claim. Search and retrieval charges
should not apply to requests for personal information. Existing waivers of fees relating to issues of national importance and means of requesters should remain. The Group also feels that a set amount of free search and retrieval time (i.e. the first hour) should be allowed against the application fee so that, in the majority of cases, no additional fees will be incurred by the requester.

Where business information is sought under FOI for forward sale (other than by journalists to newspapers) the group believe that consideration should be given to charging the full cost of providing the information sought. Otherwise the taxpayer is effectively paying the labour input costs of private commercial businesses.

The Group feels that the fixed photocopying charge of 3p per copy should be revised via regulation to cater for special circumstances e.g. instances where copies of architectural or engineering drawings are to be released on foot of a request, which can give rise to substantial copying costs for the public body in question. The OPW currently has a request for access to approximately 280 drawings for which they can charge the requester 3p per copy. Compliance will cost OPW approximately £6,000 in copying charges paid to an outside company employed to make such copies.






4. Administrative Protections which have been found to be weak

Section 10 of the Act sets out the administrative protections available to public bodies aimed at curbing abuse. A number of weaknesses have been identified and are addressed below.

4.1 Misuse of the Act

At present the Act does not include "misuse of the Act" as an administrative protection. A body must attempt to show a request is either frivolous or vexatious in accordance with Section 10(1)(e). Where a single requester makes hundreds of requests in a short period, each individual request may appear quite rational but the overall activity is clearly a misuse of the Act.

It is considered that "misuse of the Act" should be included in section 10 (1) as a reason for refusal of requests. It would be important to give clear guidance for a narrow interpretation of this phrase so as to protect access rights by ordinary users be they members of the public, media or Oireachtas members.

4.2 Excessively Large and Disruptive Requests

Section 10(1)(c) - the threshold for application of this section might be more clearly focused so as to clarify for public bodies and the Commissioner the protection for public bodies against unduly large requests, or a pattern of manifestly unreasonable sequence of linked requests with similar effect. It should also be confirmed that the unreasonable disruption or interference may arise in respect of a particular area within a public body.

4.3 Non Payment of Outstanding Fees

Fees charged by public bodies represent a very small fraction of the total cost to the public body of processing an average FOI request and this will continue to be the case. For example, one requester having made almost 200 requests to a single body paid less than £40 in fees even though the cost of processing same exceeded £100,000. A number of requesters have regularly put bodies to the expense of processing requests and failed to pay the final fee arising. Section 10(1)(f) permits refusal of requests due to non-payment of a fee . It should be made explicit that this provision contemplates non- payment of a fee relating to a previous request which is not the subject of an appeal. It might also be appropriate to apply this provision to connected persons.


4.4 Records that do not exist : Records that cannot be found

The Act is vulnerable to abuse by individuals requesting records which they know do not exist. In such circumstances, the public body concerned is forced to conduct extensive futile searches for which the requester cannot at present be charged. Provision should be made that, in appropriate cases of this nature, search charges can apply.

There must also be protection for requesters. Where there is evidence that a record exists but cannot be found due to inadequate records management, the public body may be required to search extensively without cost to the requester.

Where there is no evidence that the record exists the following will occur. If search charges exceeding £40 are likely, estimates of search, discussions with the requester and possible requests for deposit will come into play as currently provided for in the Act. In this way, protections will be in place for both the public body and the requester.