‘Worst year’ for decision times on Freedom of Information requests

Last year was the “worst year on record” for public bodies failing to make a decision in time on freedom of information (FoI) requests.

Ombudsman, Information Commissioner, and Commissioner for Environmental Information of Ireland Peter Tyndall

In almost three out of 10 cases accepted by Information Commissioner Peter Tyndall, there was a failure by public bodies to meet response deadlines.

Public bodies, it emerged, failed to respond in a timely manner to FoI requests both at the initial stage and internal review stage.

“That is an unacceptably high level,” said Mr Tyndall when he launched his annual report for 2017 yesterday.

“I fully accept that public bodies must meet the increasing demand for their services and they often have to make difficult decisions in terms of prioritising the allocation of resources,” he said.

“However, the administration of the FoI Act is a statutory function which should be afforded as much weight as any other statutory function.”

Mr Tyndall said that during the financial crisis many public service organisations reduced or lost their specialist capacity to deal with FoI requests.

Since the increase in demand we have not seen a commensurate increase in the capacity of public bodies to deal with the requests they are receiving,” he said.

The Office of the Information Commissioner conducts independent reviews of decisions made by public bodies on FoI requests where the applicants are unhappy with the responses received.

Mercy University Hospital, the second largest general hospital in Cork, was one of five organisations issued with a directive by the Information Commissioner last year.

Similar directives were issued to the Department of Justice and Equality, the National Maternity Hospital (Dublin), Kildare County Council, and the Irish Prison Service.

Mr Tyndall’s office wrote to the Mercy Hospital on November 2, 2016, about its proposal to charge an applicant a retrieval fee for access to records, and a two-week deadline for responding had been set.

The chief executive of the hospital was issued with a notice on January 25, 2017, requiring the information to be provided within seven days. That deadline passed without a reply.

On February 6 last year, the hospital informed Mr Tyndall’s office that it had decided not to charge a fee.

The National Maternity Hospital was asked by an investigating officer on September 11, 2017, for information about searches made to locate the records sought by an applicant. A reply was eventually received on October 19, 2017, four weeks beyond the initial deadline.

Kildare County Council, meanwhile, issued a response more than six weeks after the initial deadline while the Irish Prison Service responded two months after the deadline. After failing to meet a further two-week deadline, the Department of Justice and Equality responded two days after a notice was issued.

Case Study I: Council appeals hotels decision

Dublin City Council has appealed against a decision made by Information Commissioner Peter Tyndall to identify hotels and B&Bs providing emergency accommodation to homeless people.

The council argued that the accommodation providers would withdraw their services if the information was released.

The case is one of a number highlighted in the commissioner’s 2017 annual report in which Mr Tyndall explains the reason for his decision.

He said he accepted there was a possibility that disclosure could have some effect on the supply of accommodation to the council.

Some of the hotels argued that they would lose business to competitors if it was known that they had accommodated homeless people on behalf of the council.

A number warned they would stop providing emergency accommodation if the information sought became public.

In his decision, Mr Tyndall concluded that, on balance, the public interest would be better served by the disclosure of the information and this was due in part because of the substantial public monies involved.

He said it had been reported that, in 2016 alone, €38.9m was spent by the council on such accomodation

Case Study II: FoI anomaly with GSOC records

Information Commissioner Peter Tyndall has found an anomaly within the Freedom of Information legislation where records held by the Garda Síochána Ombudsman Commission (GSOC) are not automatically excluded from it.

He made the discovery when his office considered the extent to which Garda records are subject to Freedom of Information Act 2014.

An applicant had sought a review of the decision of An Garda Síochána to refuse access to, among other things, an investigation file relating to the conduct of members of the force.

However, Mr Tyndal decided that the records were not “administrative records relating to human resources” within the meaning of the act.

The records resulted from a complaint made to GSOC that was referred to the gardaí for investigation.

Mr Tyndall said records held by the GSOC are excluded from the act so they could conduct their investigations in confidence.

However, while it did not affect his ultimate decision, he found that where those records are held by other public bodies, such as An Garda Síochána, they were not automatically excluded.

“That is one of the anomalies that exist within the legislation and would apply to other regulators and ombudsman’s offices also," he pointed out.


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