Unless the application for review constitutes an appeal concerning personal information, a decision under section 17 or 18 or a decision in relation to the charging of fees or deposits, the following fees must be paid by the applicant before a review can proceed:

Application for Internal Review:
€75 (reduced to €25 if the applicant is covered by a medical card)
Application for Review by Information Commissioner:
€150 (reduced to €50 if the applicant is covered by a medical card or is a third party appellant whose information a public body proposes to release on public interest grounds or on the grounds that release of personal information would benefit the requester).

Further details on FOI charges are provided in chapter 7.

INTERNAL REVIEW (Section 14)

6.1 Section 14 provides for internal review of initial decisions made by a public body. Internal review must normally be undertaken before an appeal may be made to the Information Commissioner.

For public bodies, internal review provides an opportunity to consider new arguments put forward by the applicant. It also gives bodies an opportunity to monitor the quality of their primary decisions and to identify and correct problems or inconsistencies with their decision making process. The Act requires that internal review be completed within 15 working days.

6.2 What Decisions are Subject to Internal Review?

The following decisions may be addressed by internal review:

• decision to refuse all or part of a request.
• decision to defer access to records prepared solely for the Oireachtas
• decision to grant access in a form other than that requested
• decisions to delete certain exempt material from a record
• decisions refusing the correction of personal information which the requester believes is incomplete, incorrect or misleading
• decisions relating to the rights of a person to obtain reasons for decisions on acts of the public body affecting that person
• decisions relating to the charging of a fee or deposit.
  

6.3 Decisions which Bypass Internal Review

The following are decisions which are referred directly to the Information Commissioner without going through the process of internal review:

• section 29 matters i.e. where the public body is required to consult with a third party.
• any initial decision made by a head of a public body
• deferral of access under section 11(1)(b) and (c)
• extension of time limit for deciding on a request (section 9)
  

6.4 Delegation (section 4)

The delegation of functions relating to initial decisions is essential for the conduct of effective internal review procedures. Delegation provisions are set out at section 4 of the Act.

6.5 Procedures on Internal Review

 the review must:

• be undertaken at a higher level than that at which the original decision was taken
• be completed within 15 working days from receipt of the request for a review
• uphold, annul or vary the original decision.
  

Following review, the public body is required to:

  issue details in writing, etc. of its decision to the requester. The notice must include details of:

• date of decision
• if decision is to grant request – form or manner of access and any fees payable
• if access is refused, reasons for refusal unless public body is entitled to refuse to confirm or deny existence of material (sections 19(5), 22(2), 23(3), 24(4), 26(4), 27(4), (28(5A))
• relevant material issues
• if access is deferred, reasons for deferral
• details of rights of appeal to Information Commissioner, High Court and Supreme Court.

An application for internal review must be made within 20 working days of the initial decision, but head of public body has discretion to extend this period. If no decision is made within 15 working days, non-reply is deemed to be a refusal and the applicant may proceed with an appeal to the Information Commissioner.


REVIEW BY INFORMATION COMMISSIONER

6.6 Section 33 of the Act establishes the Office of Information Commissioner. The Office reflects key features of the independent appeals system under FOI in terms of:

• independence
• powers to seek documents and compel witnesses
• a mandate to operate informally
• decisions binding, subject to review by the High Court and Supreme Court
• specific time limits
• a mandate to review operation of the Act (including the operation of particular provisions) and compliance by public bodies
• reporting directly to the Houses of the Oireachtas

The Information Commissioner is bound by the Act to start from the position that a decision to refuse a request for information was unjustified. The onus is therefore on a public body to document and explain fully the basis for a decision to refuse a request by reference to the provisions of the Act. If a decision to refuse a request is appealed to the Information Commissioner, the public body will be invited to make a submission. The importance of cogent, well argued submissions, clearly identifying the basis for exemptions and harm
and/or public interest considerations, where relevant, cannot be overemphasised.

6.7 What Decisions can the Commissioner Review?

The Commissioner may review the following:

• decisions made on internal review under section 14
• initial decisions on requests made personally by a head of a public body
• decisions on charges
• decisions to extend the time for consideration of requests under section 9
• decisions to defer the provision of access to a record falling within section 20(2) or a matter of such public interest that the Minister first wishes to inform the Houses of the Oireachtas
• decisions to which the consultation procedures outlined in section 29 apply
• decisions to refuse a request for a record on the grounds that section 46 (restriction of Act) applies

The Commissioner may not review under section 34:

• initial decisions taken by a member of staff acting under a delegation (internal review must first be completed)
• a decision to refuse a request for a record that is the subject of a certificate of a Secretary General under section 20(1A).
• matters subject to a ministerial certificate under section 25 (review is instead undertaken by the Taoiseach and other Ministers)
• FOI decisions in respect of a record relating to the Office of the Information Commissioner, or where the Ombudsman is also the incumbent of that office, the Office of Ombudsman (section 42 provides a direct right of appeal to the courts in this case).

6.8 Binding Powers

Decisions of the Information Commissioner are binding on the parties concerned (section 34(14)), subject to appeal to the High Court on a point of law under section 42. A decision of the High Court may be subsequently appealed to the Supreme Court.

6.9 Powers of the Commissioner (Section 37)

The Act confers on the Commissioner sufficient powers to enable effective discharge of his/her mandate both in relation to reviews and investigations. These include powers:

• to require the provision of information on the basis that it is relevant to a review or investigation
• to require the attendance of witnesses
• to remove records and retain them for a reasonable period
• to enter any premises occupied by a public body

Failure to comply with such requirements or the hindering of the Commissioner is an offence.

6.10 Informal Mandate

Section 37(6) promotes, where practicable, an informal approach to reviews by the Commissioner, rather than a highly structured and quasi-judicial approach.

6.11 Investigations, Commentaries and Reports by the Commissioner

Section 36 requires the Commissioner to keep the operation of the FOI Act under review and permits him/her to investigate and report on the practices and procedures adopted by public bodies generally, or by a particular public body, in complying with the Act generally or with particular provisions.

Under this section, the Commissioner was required to undertake a general review of the operation of the Act within 3 years of its commencement. The Commissioner's report "The Freedom of Information Act - Compliance by Public Bodies" was published in 2001 and is available along with other publications of the Commissioner on the OIC website at www.oic.ie. A follow-up "Action Plan" for public bodies prepared on foot of this report by the FOI Inter-Departmental Working Group in 2002 is available at www.foi.gov.ie

Under section 36, the Information Commissioner may also investigate the practices and procedures adopted by public bodies, or by a particular body, for the purpose of enabling persons to exercise the rights conferred by the FOI Act.

Under section 39 of the Act, the Commissioner may publish commentaries on the practical application and operation of the provisions, or of particular provisions, of the FOI Act, including commentaries based on the experience of holders of the office of Commissioner in relation to reviews by his/her office under section 34.

Under section 40 of the Act, the Commissioner is required to prepare an annual report on his or her activities, to which must be appended a copy of any report furnished to the Commissioner under section 25(11) by a Minister is relation to the number of ministerial certificates issued under section 25. The Commissioner may also decide in the public interest to publish a report in relation to any investigation or review carried out or other function performed under the Act or a particular matter arising in the course of the performance of his/her functions.

6.12 Promote Information Giving

In line with the role of the Commissioner in promoting and encouraging the release of official information generally, section 38 requires the incumbent to foster and encourage the publication of additional information by public bodies over and above that specified in section 15 and 16 of the FOI Act.

6.13 How to contact the Information Commissioner

The Office of Information Commissioner may be contacted at the following address:

Office of the Information Commissioner
18 Lower Leeson Street
Dublin 2

Telephone: 01- 6395689
Lo-Call: 1890 223030

Contact details for each member of staff in the Commissioner's Office are contained on the OIC website at Office of the Information Commissioner