FOI wrangle over release of school fire safety records goes to High Court

A wrangle between the Department of Education and the Information Commissioner over school fire safety records has gone to the High Court after the Department appealed a direction to release the reports under Freedom of Information (FOI) legislation.

The case is among a number of FOI decisions reviewed by Information Commissioner, Peter Tyndall, last year.

The case involving the Department of Education centres on a request for fire safety assessments carried out at a large number of schools where structural defects were detected.

The Department said it had commenced legal proceedings against a named construction firm and argued that the documents were in draft form, commercially sensitive, being deliberated on, and sub judice and that it was not appropriate to make them publicly available.

The Information Commissioner, however, dismissed the Department’s arguments and directed it to release the school fire safety records in the public interest.

The Department has appealed that direction to the High Court, which has yet to determine if the records should be released.

Separately the Commissioner has called for a review of the Freedom of Information Act to include the establishment of an appeals tribunal to reduce the burden on courts and to broaden the Act to include all bodies in receipt of “significant public funding”.

“After five years’ experience of operating the 2014 FOI Act it is clear to me that there is considerable room for improvement. I have made a number of recommendations aimed at improving the Act for everyone, including users and public bodies,” Mr Tyndall said.

His annual report also highlights lengthy delays in the Central Policy Unit of the Department of Public Expenditure, which can determine if bodies are included under the Act.

The Commissioner said the inclusion of the Office of the Secretary General to the President under the Act had been re-opened but that no decision has been made in two years.

“While I understand that the advice of the Office of the Attorney General was sought, it is difficult to understand how it can take so long for a determination to issue,” he said, adding he has no option but to wait for a decision.

“This is yet further evidence, in my view, of the need to revise this provision, and of the need to conduct a review of the overall operation of the Act,” Mr Tyndall stated.

The Information Commissioner received 65 requests to review FOI decisions last year — the highest number of review requests in 10 years.

Almost 40,000 FOI requests were made to all public bodies last year, representing an increase of 179% over the last 10 years, the annual report shows. The HSE received the most FOI requests in 2019, accounting for more than 11,500 requests or 30% of all requests to public bodies. Most of the requests to the HSE were for personal information.

The Commissioner also expressed frustration over the number of frivolous and vexatious requests and applications received by his office: “It is a source of immense frustration for all those charged with operating the FOI regime that such individuals appear to have no regard for the significant administrative burden that this creates.”