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Information Commissioner calls for incoming government to 'improve' Freedom of Information Act

Peter Tyndall was commenting as he published his officer’s annual report for 2019.

Image: Shutterstock/Africa Studio

THE INFORMATION COMMISSIONER has called on the incoming government to review the Freedom of Information Act, saying there is “considerable room for improvement” to the legislation.

Publishing his officer’s annual report for 2019, Peter Tyndall called for the Act to be extended to all bodies in receipt of significant public funding.

Under the Act, which was last updated in 2014,members of the public have the right to access information held by a wide array of public bodies.

Any member of the public can use the Act to access records created by a public body, government departments and officials, or local authorities in the course of their duties, as well as information held by these bodies which relate to them personally.

Individuals can also use the Act to have information about themselves edited by a public body if it is incorrect, incomplete, or misleading.

According to the report, 39,904 requests were made to public bodies last year – the highest ever number and an increase of 8% on 2018.

The number of requests made has increased by 42% in the five years since the Act was updated in 2014, when it was extended to a range of new bodies and the initial cost of submitting a request was removed.

The majority of requests, 23,158 (58% of the total), were made for personal reasons, with 16,723 (41%) made for non-personal reasons and 473 (1%) for mixed reasons.

More than half of requests (51%) were made by clients of public bodies, with journalists (23%) the next highest cohort. The remainder were made by Oireachtas members, staff of public bodies and ‘other’ groups or individuals.

The highest number of requests were made to the HSE, followed by the Department of Employment Affairs and Social Protection, St James’s Hospital, and Tusla.

But Tyndall, who independently reviews FOI decisions made by public bodies, said that despite suggesting a formal review of the Act in 2017, no such review has taken place.

“I remain of the view that there are certain aspects of the Act that would benefit from amendment,” he writes in this year’s report.

“It seems to me that the formation of a new Government in 2020 presents an opportunity for commencing a review.”

He recommended the introduction of an administrative tribunal to consider appeals against his decisions, which would be more cost effective and less resource-intensive than court challenges.

He also called for the Act to be extended to all bodies in receipt of significant public funding and a revision of the process for resolving disputes as to whether certain bodies are covered by the Act.

Court decision

In his report, Tyndall also referenced a decision by the Court of Appeal about whether public bodies had an obligation to justify why they refuse FOI requests.

In that case, journalist Gavin Sheridan had sought the release of information relating to a contract issued by the Minister for Communications Energy and Natural Resources for managing fibre optic networks across Ireland.

Sheridan’s request for information had been rejected by the Minister, and he subsequently made a successful appeal to the Information Commissioner.

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But the court later ruled that the Commissioner had approached Sheridan’s appeal incorrectly by presuming the records should have been disclosed.

The case was appealed to the Supreme Court earlier this year, when counsel for the Commissioner argued that public bodies could no longer have to explain their reasons for refusing records under the Act.

In his report, Tyndall said the ruling has impacted both his office’s work and the application of the Act by public bodies.

“The decision has the potential to have a profound effect on the way my office processes reviews and, indeed, on the way the FOI regime operates in Ireland,” he said.

“With respect to the court’s decision I felt compelled to appeal the judgement to the Supreme Court and we await the decision of the court.”

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