Terms of Reference
"To consider matters concerning implementation of the Freedom of Information Act contained in the Special Investigation Report of the Information Commissioner for 2003 and the Annual Report of the Information Commissioner 2003 and to report to the IDWG by 31 October, 2004".

Membership
FOI Central Policy Unit (Chair) Gerry Quinlan
Caitriona O Brien

Civil Service Users Network Pat Mc Court (D/ ET&E)
Mary McCarthy (D/Ag&Food)

Public Service Users Network Sinead Byrne (Health Boards)
Joe Phelan (Local Authority Network)

Comhairle, representing the Citizens Advisory Group was unable to participate.

Methodology
The group considered each of the recommendations made by the Commissioner in Chapter 5 of the review from a public sector perspective. The group met on two occasions, 21st July and 7th September, 2004. The group found the review undertaken by the Information Commissioner to be positive from the perspective of public bodies. The group particularly welcomed the remarks of the Information Commissioner in relation to the performance of FOI Liaison Officers and of FOI practitioners in public bodies. Because of the small number of specific points made which warrant a response/clarification, the group managed to complete its work quite quickly and this report is relatively brief, focussing on each of the recommendations made by the Information Commissioner in chapter 5 of her review and on certain recommendations contained in her Annual Report. It should be noted that many of these recommendations were directed at persons or bodies other than those in the public service, while others relate to matters of policy already dealt with by the Minister for Finance.

Findings

Recommendation 1 – Decline in Usage of the Act "I urge any requester dissuaded from making requests by the Amendments to the Act to think again and to pursue their access rights in this regard" Recommendation 2 "I would encourage requesters to continue to exercise their access rights under the Act"

While the Group understood that the Information Commissioner was emphasising the continuing value of FOI, the group was strongly of the view that it was not within its terms of reference to comment on the effects of the FOI Amendment Act. It is also not the role of public bodies administering the Act to either dissuade or encourage the submission of FOI requests. A considerable amount of information is available to members of the public on the FOI Act, as amended. The FOI website www.foi.gov.ie has been updated to include details of the 2003 Amendment Act, as has the website of the Office of the Information Commissioner (OIC). Full page advertisements carried in the Dublin and regional telephone directories and in the Independent Directory contain comprehensive information on FOI for prospective requesters. Section 15 and 16 Manuals contain further detailed information on the structures, FOI procedures, records held and precedents used by public bodies. FOI Units in public bodies are also available to provide detailed information and advice on all aspects of FOI. Ultimately, it is a matter for members of the public to decide whether or not to avail of their rights under the Act.


Recommendation 3 – Application Fees

"I recommend that the Central Policy Unit of Finance provide detailed information to the public on the operation of the fees regulations"

The revised FOI information leaflet "Your Right to Know" published recently by the FOI Central Policy Unit (CPU) includes information on the fees payable by requesters. This information is also available on the FOI website, and on the websites and/or printed information of public bodies generally. The group noted that, in providing information on the fees payable under FOI, the leaflet strikes the right balance between the level of information supplied and the need for it to be easily understood. The group was satisfied that the information currently available to the public in relation to fees is relevant to the majority of prospective requesters. It felt that to enter into any greater level of detail (in relation to individual/third party appeals etc.) in general FOI information publications would only serve to confuse. In the infrequent cases where very detailed information is required, this is readily available from all public bodies and from the CPU. The new FOI leaflet referred to above includes a specific section on how to obtain more detailed information on FOI. The group also agreed that revised CPU Notice 11, which is currently available to public bodies and on the FOI website should be made available to Comhairle for their use in advising members of the public. Detailed information on all charges under FOI, including the treatment of multiple applications, is contained in CPU Notice 11 which is available to FOI personnel in all public bodies. It was agreed that making this document available to Comhairle, together with its availability on the FOI website would make a significant contribution to increasing awareness of this issue and of information in relation to fees generally. Recommendation 4 – Application Fees "I recommend that the Central Policy Unit of the Department of Finance ensure that public bodies follow a consistent approach to the charging of fees for requests and internal reviews which have been withdrawn"

The Group noted that the application and interpretation of the fees regulation is an issue regularly discussed at the IDWG and at the various FOI Networks. The CPU circulated very clear guidelines in relation to the charging of fees in July 2003 and this information is well disseminated amongst FOI practitioners. This issue is also covered in FOI training courses and by other general presentations on FOI made by the CPU.

The group felt that the question of settlements involving the partial release being considered as withdrawals and thus qualifying for a refund of fees, was a separate policy issue outside the remit of the group.


Recommendation 5 – Search and Retrieval Fees

"I recommend that all public bodies be mindful of those obligations under the Act when presented with requests that would attract significant search and retrieval fees"

The group felt that public bodies are very conscious of their obligations in this regard. The experience of FOI Units throughout the public service since the inception of the FOI legislation is that there is a high level of contact/consultation with applicants in relation to a potentially costly search and retrieval exercise, to narrow down and make requests more specific in the interests of efficiency and of reducing the costs involved. The group agreed that there have been occasions on which large/significant costs have arisen, but that this was usually after contact/consultation with applicants to make them aware of the fees payable and where an opportunity was given to make a request less costly. It was also emphasised that applicants have the right of internal appeal followed if necessary, by an appeal to the OIC in relation to the level of fees and charges. It was also noted that no fee is payable in respect of appeals in relation to charges and all applicants receive written advice to this effect. Recommendation 6 – Journalists "I recommend that journalists and their employers should explore further their strategies in this regard" (to optimise the operation of the Act from their perspective)

This recommendation was noted.

Recommendation 7 – Refund of Fees where decisions overturned

"I recommend that the Department of Finance reconsider its policy of non-refund of fees in these circumstances"

The group considered this matter to be a policy issue. There is no provision in the FOI legislation for the refund of fees in these circumstances. The group did however agree that a number of difficulties could arise in introducing such a provision, particularly as many decisions on FOI requests that are overturned are overturned on a partial basis only. The group noted that it is open to a requester to withdraw an internal review application or an application for review made to the Information Commissioner at any time prior to a formal decision being made. This entitles a requester to a full refund of the review fee. The policy of issuing of a preliminary decision by the Information Commissioner generally gives a good indication as to the final outcome. Some 30% of applications made to the Information Commissioner are withdrawn. Of those that do proceed to a formal decision, some 83% are in favour of the public body. Recommendation 8 – Outside FOI "I recommend that all public bodies review their policies to ensure that as many requests as possible are dealt with outside of FOI"

The group noted that clear guidelines exist on the release of information outside of FOI – CPU Notice 5 – Release of Information Outside of the FOI Act. The group felt that the overall experience in recent years had shown that public bodies are increasingly making an effort to publish or generally make available records that are routinely requested under FOI.

The group felt that it was important to emphasise that it was not always appropriate to deal with requests outside of FOI. The FOI Act affords certain protections and rights, including rights of appeal in the case of requesters. Dealing with requests within the Acts also applies time deadlines and enhances openness generally.




Recommendation 9 – Decision-making Process

"I recommend that all public bodies review and improve, where necessary, their decision-making processes to each of the headings in Chapter Four of this Report"

Chapter Four of the review deals in detail with its findings in relation to the behaviour of public bodies and their employees. The group examined each of the headings in turn and commented as follows: Analysis and Findings The group welcomed the remarks in relation to the behaviour of public bodies and their employees, viz. that there had been no change in their approach to the operation of the Act since its amendment nor was there any evidence that either the Act or search and retrieval fees, request/appeal fees were being operated in a manner which would discourage users of the Act from pursuing their right of access to information. Reply/Non-reply and timeliness of Reply The group noted the very good standard reply rate of 99-100% over the entire review period. Outcomes The group noted a marginal rise in the percentage of decisions where access to records was either granted in full or in part since the amendment of the Act/introduction of fees. The group also noted the apparent reduction in the number of requests handled outside of FOI. This is due in part to the amount of requests received without an accompanying fee (and therefore not recorded as FOI requests). In some instances, requesters are seeking information which is already in the public domain or to which other exemptions apply, and which are dealt with entirely outside of FOI. The group considered the question of whether this issue could be addressed through the collection of statistics. It acknowledged the difficulty in attempting to broaden the existing statistics collection to include what is not a clearly defined data set but felt that some effort might be made in this area. Quality of Decision-Making Process The group noted the positive findings in relation to the three key indicators used: · Was the relevant section of the Act quoted? · Was the exemption explained? · Was the exemption applied to the records at issue? The statement that more needs to be done in terms of explaining exemptions and applying them to records has been addressed. The CPU, in cooperation with the FOI networks has introduced a new training initiative designed to focus more closely on sector-specific issues, including the interpretation and application of exemptions. Specialised training courses for Health Boards and Local Authorities have already commenced (in April 2003). Internal Reviews The group noted the comments of the Information Commissioner in relation to the performance indicators for decision-making at internal review stage. The quality of internal review decisions also forms part of the new FOI training initiative. The sector specific focus of current courses will enhance the expertise of internal reviewers. The group emphasised the importance of appropriate training for internal reviewers and recommended that all public bodies ensure that personnel involved in internal reviews receive such training. Exemptions Claimed The group noted that the most common exemptions used were Sections 10 (administrative grounds for refusing requests), 19 (government records), 20 (deliberations), 21 (functions and negotiations) and 28 (personal information). It was agreed that the surge in requests which occurred in late 2002/early 2003 was almost certainly a direct result of increased media coverage of FOI in the period leading up to the amendment of the Act in April 2003. The group questioned the usefulness/relevance of the figures quoted as they represent an average of very disparate bodies. Search and Retrieval The group noted that the occurrence of search and retrieval charges represents a small proportion of the overall number of non-personal requests. The suggestion that requests have been refined or withdrawn following the application of large fees is dealt with under Recommendation 5 – Search and Retrieval Fees. In relation to the point made by the Information Commissioner that "some public bodies are beginning to charge systematically for search and retrieval where previously this was not always the case" - the group noted that in such cases public bodies are simply implementing the FOI Act as the charging of fees for search and retrieval is mandatory. Reduction of Application Fees The group noted the data supplied. Interviews with Liaison Officers The group noted the data in relation to resources and quality checking. It noted that the data relating to the rate of withdrawal of requests directly attributable to a demand for search and retrieval fees is primarily anecdotal. In relation to quality checking, the group felt strongly that there was no evidence of bad decision making but agreed that there may be instances where individual decision letters could be improved. Requester Types Affected The group noted the statement under this heading. Records Management The group noted, and welcomed, the remarks relating to the level of interest and dedication shown by the staff of the FOI Units included in the review. The group noted that 10 out of 17 public bodies had a form of records management policy in place. The group also noted the intention of the OIC to follow-up directly with the public body which does not have a quality checking procedure in place. The groups finding in relation to records management are contained in the response to Recommendation 10 – Records Management below. Cases Appealed to the Office of the Information Commissioner The group noted the positive statement that none of the cases examined had been appealed to the OIC and that there is no systematic attempt by public bodies to filter out particular types of request or requester. Conclusion The group noted that the detailed findings of the OIC contained in Chapter Four were overwhelmingly positive, showing public bodies and their employees to be implementing the FOI Acts to a high standard. Recommendation 10 – Records Management "I recommend that the Minister for Finance use his powers under section 15(5) of the FOI Act to put in place measures to ensure that records management policies and systems operate at an optimal level to meet the requirements of the Act"

While noting that the introduction of regulations was a matter for the Minister for Finance, the group agreed that having policies and procedures in place to govern and manage the creation, maintenance, retention, retrieval and destruction of records is an important component of an efficient FOI system and is of considerable assistance in terms of ensuring compliance with the requirements of the Act.

However the Group was strongly of the view that the FOI Act should not be regarded as the sole or prime determinant for the management and maintenance of records. Records management must be driven by the wider business needs of public bodies. Given the diverse range of bodies now covered by FOI, some members of the group queried the appropriateness of a single regulation to govern the management and maintenance of records. The possibility of granting authority on a statutory basis for each Minister to provide for the management and maintenance of records of bodies under their aegis was raised in this context but no agreement was reached within the group.

Pending any wider initiative in the area of records management, the group agreed that public bodies should be reminded of the recommendations contained in Chapter 6 of the Outline Action Plan on FOI Compliance published by the FOI Inter-Departmental Working Group in 2002. The Group also welcomed the fact that Guidelines for Government Departments relating to the maintenance and management of electronic records are being developed by the National Archives and are expected to become available in 2005. The Group noted that the National Archives is planning to develop a policy document in relation to the management and retention of paper records common to all Departments. The Group also noted that the Centre for Management , Organisation and Development (CMOD) of the Department of Finance was in the process of developing Records Management Guidelines as part of a range of initiatives to assist in the decentralisation programme. In relation to timescale, the Group noted that CMOD propose to circulate a final document to Government Departments via Decentralisation Liaison Officers shortly.

Copies of the Health Boards Policy on Records Retention and the Local Authorities National Records Retention Policy were submitted for the information of the group. Copies are not attached but are available on request from the South Eastern Health Board at byrnesin@sehb.ie and from the Local Government Management Services Board at www.lgmsb.ie.


Further Reviews of the Act

The various recommendations made under this heading did not come within the terms of reference of the Group. Office of the Information Commissioner – Annual Report 2003

The group also considered the remarks of the Information Commissioner in her Annual Report in relation to the Collation of Statistics. The CPU (Chair) advised that a Statistics Review Group had been established and the report submitted to the IDWG in relation to practices and procedures which have been put in place to deal with the issues raised. Revised templates have been devised and information is now collected quarterly which should allow bodies more time to collect information and to supply more accurate data.



September 2004