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									OFFICE OF THE INFORMATION COMMISSIONER
ANNUAL REPORT 2004

CONTENTS
CHAPTER 1 CHAPTER 2 • • • • • • • • • • • • • • • • • • • • • INTRODUCTION THE YEAR IN REVIEW

Collation of Statistics Level of Requests to Public Bodies Type of Request Type of Requester Release rates Applications to my Office for Review Fees Received Reviews of Decisions Time Taken to Complete Reviews Outcome of reviews Formal Decisions Settlements General Queries dealt with by my Office Statutory Notices Certificates issued by Public Bodies under the FOI Act Promoting Public Awareness and Good Practice Industrial and Reformatory Schools and Children in the Care of the State Website Review Appeals to the High Court Records management Staffing

CHAPTER 3 ISSUES ARISING • Introduction • Problematic Reviews • Records Management • Records of General Practitioners • Access to Medical Records • High Court Judgements • The Oireachtas & Enactments relating to Non-Disclosure of Records CHAPTER 4 LETTER DECISIONS • Index of Topics Covered • Inspection Reports • Personal Information/Deceased Person’s Records • Public Interest • Frivolous & Vexatious • Government Records • Control of Records CHAPTER 5 REVIEW OF THE OPERATION OF THE FREEDOM OF INFORMATION [AMENDMENT] ACT, 2003 • Review • Where to Now? • Report of IDWG Working Group CHAPTER 6 APPENDIX STAFF INDEX STATISTICS REPORT OF MINISTERIAL CERTIFICATES ISSUED UNDER SECTION 25

FOREWORD
I hereby submit my second Annual Report to the Dáil and Seanad pursuant to the provisions of section 40(1)(c) of the Freedom of Information Acts 1997 and 2003. This is the seventh Annual Report submitted in relation to the work of the Office of the Information Commissioner since it was established in 1998.

Emily O’Reilly Information Commissioner May 2005

CHAPTER 1
INTRODUCTION
This is my second Annual Report as Information Commissioner, which covers the period 1 January 2004 to 31 December 2004: my first full year in office. My appointment in 2003 came at a time when a major public debate was underway on the amendments which had just been made to the 1997 FOI Act, and on the introduction of up-front request and appeal fees. I undertook at that stage to report on the effect of those changes and in June 2004, my investigation Review of the Operation of the Freedom of Information (Amendment) Act 2003 was published. Briefly, the Report found that between the beginning of 2003 and 2004: usage of the Act fell by 50%, non-personal requests fell by 75%, media usage declined by 83%, business requests fell by 60%, personal requests, requests by Oireachtas members and the staff of public bodies were largely unaffected, by and large, public bodies are operating the Act in a fair and balanced manner, and the impact of the introduction of request and appeal fees has been far more significant on usage levels than the amendments to the Act. Discounting the surge of FOI activity at the start of 2003, I found that, between the end of 2002, and the beginning of 2004 overall usage of the Act had fallen by 32 per cent. I have included a synopsis of the Report in Chapter Five. Arising from the publication of the Report, I appeared before the Joint Committee on Finance and the Public Service in July 2004 to discuss the findings of my report and I thank the Committee for the opportunity to do so. In my report, and in my address to the Committee, I stressed my concern about the high cost of appeals to my Office and the impact this has on the overall effectiveness of the legislation. To date, it does not appear that any change in this regard is envisaged by the Government. The pattern of usage identified in the Report has now become established, as evidenced from the full year 2004 figures in this Annual Report. But while I acknowledge the perception in many quarters that the current FOI legislation is considerably weaker in terms of allowing access to records than its parent Act, many records - of significant public interest - continue to be released and the Act continues to be a vehicle for accountability. The recently published Travers report on the practice of charging for long term nursing home care, highlighted once again the need for transparency and accountability within the public administration system. It is therefore important to remind ourselves that the stated intention of those who introduced the original FOI legislation was to open up that system to greater public scrutiny, and in so doing, to improve it. The public is rarely best served by secrecy. I list, briefly, below, a number of decisions I made last year which to my mind demonstrate the continuing value of FOI as a means of protecting the public interest. Some of these, and others, are discussed in greater detail in later chapters. A great many other records, both personal and non-personal, have, of course, been released at initial request stage, and following internal review.

In 2004, I overturned a decision by the Department of Education and Science (Case No. 031109) to refuse access to records relating to the decision to close St. Catherine's College of Education for Home Economics in Dublin and to re-locate it to Sligo. Among other reasons, I judged that there was a significant public interest in knowing how a public body arrives at a decision, which, in the case of the College, had significant impact on

students, employees and their families. The financial implications of the decision were also of public interest. I overturned a decision by the Eastern Health Board (Case No. 000103) not to release a report on a serious outbreak of salmonella poisoning among customers of a fast food restaurant. I directed the release of details of an out-of-court settlement between a senior hospital consultant and the North Eastern Health Board (Case No. 000528). The status, under FOI, of confidentiality agreements entered into by public bodies was critical to the decision. I ordered the disclosure of records relating to the agreement reached in 1998 by the Department of Arts, Sport and Tourism with the PGA European Tour about the holding of the 2006 Ryder Cup match in Ireland. (See my Office's website www.oic.ie - Case No. 030218). I directed that the South Eastern Board release records, including, nursing home inspection records relating to a nursing home under its jurisdiction. The Board and the Home had claimed "commercial sensitivity" as grounds for the Board's decision not to release the records, as well as the protection of privacy rights of residents of the Home and members of staff. The above demonstrates, that the FOI Act still allows light to be shone into the business of government and the administrative practices of public bodies, a light which illuminates public understanding of the issues and allows for proper, informed debate. The role of FOI in this respect remains just as important as ever. People expect and deserve to be treated fairly and equitably in their dealings with the public service. They also want the truth about matters that impinge both directly and indirectly on their lives. At a recent international discussion on FOI in the newly emerging democracies of Central and Eastern Europe, I was struck by the importance afforded to such legislation by both officials and activists in those countries. They view FOI as both a cornerstone and a hallmark of their new democracies, alongside ethics legislation and the introduction of the Ombudsman system. Some countries have introduced extremely liberal legislation, at the same time, ironically, as many countries in "Old Europe" are restricting theirs for various domestic or international reasons. One East European Information Commissioner commented that "New" Europe used to take the lead from the more established democracies in the West, but that a form of reverse flow was now in operation. It remains to be seen how FOI develops in those countries. Typically, FOI experiences a honeymoon period, followed by retrenchment. But even when it is restricted, it does so in a culture which has been fundamentally altered by the introduction of FOI in the first place. The Irish public now expect and demand greater openness from those who govern them, whether through or outside of the legislation that controls their right to access and many public bodies continue to strive to live up to this demand, often through their speedy and effective cooperation with my Office. In the main, my staff have developed excellent productive working relationships with the wider public service. Nonetheless, from time to time, in carrying out my reviews I have been forced to take action to obtain a proper explanation as to why records are being withheld and, on occasion, to obtain access to the records themselves. I have outlined in Chapter Three some examples of where this action has been necessary. I want to make it clear that, when required, I will not hesitate to invoke the extensive range of powers that the FOI Act provides me. I am fortunate in that I am supported by a team of colleagues whose diligence and dedication enable me to carry out my functions and fulfil my statutory obligations. I would like particularly to thank my Director General, Pat Whelan, Senior Investigators, Fintan Butler and Liam Kelly, and Des O'Neill and Frank Forde for their work in the compilation of this Annual Report.

CHAPTER 2
THE YEAR IN REVIEW
USAGE OF THE FREEDOM OF INFORMATION ACT
COLLATION OF STATISTICS - REPORT OF THE SUBGROUP ON FOI STATISTICS Over the past number of years my predecessor and I have drawn attention to ongoing difficulties in obtaining and compiling statistics for use in our Annual Reports. In last year's Report I outlined in some detail the range of problems arising: late-delivery, incorrect calculation/compilation, and differing methods of collation. I pointed out that, as a result, the statistics available regarding FOI usage and practice were not always reliable. In that Report, however, I noted that the Central Policy Unit (CPU) of the Department of Finance was in the process of reviewing the processes and procedures involved in the compilation of these statistics. This review began in October 2003 when the Freedom of Information Interdepartmental Working Group set up a Statistics Sub-group to review the type, format and periodicity of statistics since the Act came into force. Mindful of the implications of the FOI Amendment Act 2003, its main focus was to devise a format for the compilation of relevant, useful statistics. The Group recognised that the tables prepared by the various bodies responsible for the compilation of these statistics were not standardised in detail and that some variation existed between the bodies in terms of interpretation of the type of request and category of requester. In their review, the Group noted that while the system in general seemed to work, a number of issues needed to be addressed (many of which echoed the concerns expressed by this Office over the years). These were: some public bodies do not return the relevant statistics in the required format on a regular basis, often the information is incorrect (totals do not add up, inconsistency in interpretation of category), confusion existed in relation to reporting of statistics to CPU and Information Commissioner, high turnover of staff means loss of expertise and a declining awareness of the requirements for the production and reporting of statistics. The Group made a number of recommendations to deal with these shortcomings. These included: standard reporting templates will be used by all public bodies consistent with those supplied to the Information Commissioner, FOI co-ordinators collating statistics will ensure that accurate statistics are received on a monthly basis from constituent public bodies, when public bodies come within the remit of the Act, the CPU will ensure that they are aware of their responsibilities in this regard, parent Departments should ensure that there are adequate arrangements and mechanisms in place in their constituent public bodies to furnish the required statistics. This revised arrangement applied to requests received since 1 January 2004. I am encouraged to report that this initiative would appear to have had a positive effect: the experience of my Office in processing the statistics this year is that there seems to have been an improvement in formatting, reporting time and in the quality of material provided. However, some not insignificant problems still exist in some sectors, particularly in relation to the reliability of calculations. I intend to provide feedback to the CPU in this regard to assist the Group in ensuring its recommendations are met in full. I shall monitor the situation in 2005 and intend to review the matter in my next Annual Report. LEVEL OF REQUESTS TO PUBLIC BODIES During 2004 some 12,597 requests were made to public bodies under the Freedom of Information Act. This represents a decrease of 5,846 requests (-32%) on 2003 and a decline of 4,599 (-27%) on 2002. The overall fall between 2003 and 2004 is in line with the pattern of decline identified in my Investigation Report and can be attributed primarily to the imposition of requests and appeal fees.

The table on the following page shows the ten public bodies subject to the most requests during 2004 (last year's position shown in brackets): 2002 Department of Education and Science (1) Southern Health Board (3) Department of Social and Family Affairs (6) North-Western Health Board (10) Western Health Board (5) Department of Health and Children (2) Department of Justice, Equality and Law Reform (4) South-Eastern Health Board (9) North-Eastern Health Board (8) Mid-Western Health Board (7) 1938 569 670 351 565 997 660 297 416 291 2003 2736 782 593 405 608 834 636 440 476 506 2004 1840 732 559 541 456 446 444 401 343 326

While the Department of Education and Science continues to experience the largest number of requests, the total number received has declined significantly, down 33 per cent on 2003. As I mentioned in last year's Report, a large number of FOI requests to the Department over the past number of years came from former residents of Industrial and Reformatory Schools who were seeking access to information about their stay in such institutions. I understand that the number of such requests declined dramatically throughout late-2003 and early-2004. I believe that this factor, and not the introduction of fees, lies behind the sharp fall in requests to the Department during 2004. I am strengthened in this belief by the fact that personal requests to the Department fell by 682 while non-personal requests (i.e. those directly affected by the introduction of fees) fell by 215. Nonetheless, the effect of the introduction of fees on the Department's request profile is clear: personal requests as a percentage of the overall total rose from 87 per cent to 92 per cent while non-personal requests fell from 13 per cent to 8 per cent. I believe that similar reasons account for a large portion of the decline in requests to the Department of Health and Children (down by 46% on 2003), albeit in the Department's case the requests referred to time spent in orphanages or other long-term care institutions. In common with the Department of Education and Science, this Department also witnessed an increase in the proportion of personal requests over non-personal requests during 2004. This pattern of decline was repeated across the health boards; with percentage declines ranging from between 6 per cent in the Southern Health Board to 36 per cent in the Mid-Western Health Board. Again, most of the health boards saw personal requests increase their percentage share of requests at the expense of non-personal requests. The one exception to this pattern is the North Western Health Board which witnessed an increase of some 136 requests between 2003 and 2004. The majority of these (125) were in respect of requests for personal records. However, again going against the general trend, requests for non-personal records also recorded an increase, rising by 60 per cent from 23 in 2003 to 37 in 2004. I understand that much of this increase can be accounted for by staff requests concerning an internal promotion competition and a spike in requests in relation to one of the hospitals under its aegis. In my Investigation Report, I highlighted what I saw as an unhealthy fall in the number of FOI requests submitted to key Departments of State. The table below illustrates how this decline has continued since the publication of that Report:

2002 Department of Taoiseach Department of Finance Department of Enterprise, Trade and Employment

2003 141 326 205

2004 142 305 153

(03-04) 45 78 62 -68% -75% -59%

TYPE OF REQUEST

Type of Request
10 0 90 80 70 60 50 40 30 20 10 0

73

Pe rsonal
52 45 55 44 59 52 46 51 46 52 46 39 25

Non Personal Mixed

3

1

2

3

2

2

2

19 98

19 99

20 00

20 01

20 02

20 03

20 04

As the above graph illustrates, the proportion of requests for personal information began to outnumber nonpersonal requests in 2002. I believe that this was caused initially by the number of requests submitted in relation to the institution-related cases mentioned earlier. However, this surge in requests had begun to retreat in late2003 leaving me to conclude that the introduction of up-front fees is the reason behind the dramatic shift that occurred in 2004, where personal requests now account for three times the number of non-personal requests. TYPE OF REQUESTER In common with previous years, the majority of FOI requests are made by members of the public or representative organisations (74%). Requests from businesses and staff of public bodies accounted for 8 per cent and 7 per cent respectively each, while the percentage of requests from members of the Oireachtas was broadly unchanged at 1 per cent. Of most significance is the decline in requests from journalists, which has fallen from 12 per cent and 13 per cent respectively in 2002 and 2003 down to 7 per cent in 2004. I commented in some detail on the possible reasons behind this decline as well as its implications for a properly functioning democracy in my Investigation Report. RELEASE RATES During 2004, 48 per cent of requests dealt with by all public bodies were granted in full and a further 25 per cent were part-granted. This means that, allowing for the 1.5 per cent of requests transferred and 9.5 per cent withdrawn or handled outside of FOI, 16 per cent of requests were refused in 2004 as against 17 per cent in 2003 and 19 per cent in 2002. Some of this decline can be accounted for by the shifting proportions of request types as requests for personal records tend to be released more readily than non-personal requests. As the percentage of personal request increases, one would expect this to be reflected in enhanced granted and part-granted rates. As Government Departments and Civil Service bodies receive a lower proportion of requests for personal information than other public bodies, this factor also accounts for the differences between them in release rates. Table 5, Chapter Six shows that third-level institutions (69%), health boards (65%), voluntary hospitals/mental health agencies/voluntary bodies (63.5%) and local authorities (59%) are far more inclined to grant full release than their counterparts in the Civil Service and other bodies (see Table 11) which grant full release in only 30 per cent and 31 per cent of cases respectively. It is interesting to note, however, that similar to last year, local authorities granted full-release in 59 per cent of cases despite the fact that requests for personal information accounted for only 28 per cent of requests received. The full release rate for the Civil Service has declined from 37 per cent in 2003 to 30 per cent in 2004 with the

balance apparently shifting to partial release (up from 26% in 2003 to 34.5% in 2004). Again within the Civil Service, the numbers of cases withdrawn/dealt with outside FOI has declined from 16 per cent in 2003 to 11 per cent in 2004. This reflects my findings in my Investigation Report. One possible explanation for this decline was offered by the Subgroup of the Interdepartmental Working Group on FOI (see Chapter Five). It felt that the apparent reduction in the number of requests handled outside of FOI could be explained by the amount of requests received without an accompanying fee (and therefore not recorded as FOI requests) APPLICATIONS TO MY OFFICE FOR REVIEW Where a requester is not satisfied with the decision of the public body on his/her Freedom of Information request he/she may apply to my Office for a review of that decision. In most circumstances, this review will constitute the third analysis and decision in that case. The decision which follows my review is legally binding and can be appealed to the High Court but only on a point of law. The number of applications for review made to my Office totalled 434. This represented a decrease of 61 per cent on 2003 and a fall of 37 per cent on 2002. Two factors account for this dramatic decline: the fall-off in requests relating to institutional cases mentioned earlier has had a dramatic effect on the number of applications to my Office in respect of personal information (see Table 17 which illustrates the number and type of application accepted over the past three years). However, it does not account for all of it as the "personal" applications to the OIC are at their lowest level since 1998. It is possible that some of this decline occurred due to confusion amongst requesters as to whether an application fee was payable to my Office for a review of a decision relating to personal information. It may also be possible that more personal requests are being released in full that in the past. I have no data as yet to support either of these hypotheses and I shall investigate the matter further during 2005. The impact of the introduction of request and appeal fees is evident in the decline in "non-personal" applications accepted (again see Table 18). The proportion of cases being appealed to my Office as a percentage of the total number of requests received by public bodies is 3.4 per cent. This is in keeping with the more recent experience of the operation of the Act (discounting the spike in cases appealed in relation to institutional cases in 2003 which brought the figure to 6 per cent). My Office accepted 333 applications during 2004, of which 293 were received during 2004. The remaining 40 cases accepted during the year were among the 56 applications under consideration for admissibility at the end of 2003. At the end of 2004, a decision on admissibility for review had still to be made on 21 applications received towards the end of the year. FEES RECEIVED On 7 July, 2003 a fee for appeals to my Office in respect of "non-personal" information came into effect. These fees are as follows: Regular Fee for Medical Fee Card Holder and Dependants Appeal by Requester Appeal by Third Party in 'section 29 ' cases €150 €50

€50

€50

During 2004, my Office received 151 applications where a fee was paid. The total amount received in fees by my Office in 2004 was €18,425. Of this, my Office refunded €4,125 for the following reasons: €2,600 was refunded in respect of applications that were withdrawn or rejected as invalid, €500 was refunded in respect of cases there the application was for the personal information of a minor or a deceased person (section 28(6)), €200 was refunded in cases where the public body had not issued an internal

review within the time allowed, €825 was refunded in respect of overpayments. During the year many applicants were unaware that a fee was payable in relation to an application that involved a request for access to "non-personal" records. In 127 cases my Office wrote to the applicant informing them that a fee was applicable. In 15 cases the applicant withdrew the 'non-personal' element of their application and indicated that they were seeking access to record(s) which "contain only personal information relating" to them. Therefore, in these cases the application for review was accepted without a payment. REVIEWS OF DECISIONS During the year I reviewed 628 decisions of public bodies. In terms of reviews processed by my Office, this represented a decrease of 14 per cent on the case completion rate for 2003. This decrease is accounted for by a number of reasons such as the re-routing of resources to carry out my Investigation Report and the unavailability of key Investigative staff for personal reasons. At the start of the year, my Office had a total of 796 reviews on hand and a further 333 were accepted during 2004. The total number of reviews on hands at the end of 2004 was 501. TIME TAKEN TO COMPLETE REVIEWS My Office completed 628 reviews in 2004. Of these 628 reviews, two were cases received in 1999, 17 were cases received in 2000, 98 were cases received in 2001, 25 were cases received in 2002 and 367 were received in 2003. The remaining 121 reviews completed involved cases received in 2004. The FOI Act provides that reviews by my Office should be completed as soon as may be and, in so far as practicable, not later than four months after receipt of the application. A total of 293 reviews were received and accepted in 2004 with 121 of these completed during the year. Seventy two or 60 per cent of these reviews were completed within the deadline provided for in the FOI Act. OUTCOME OF REVIEWS Not all of the reviews completed resulted in the issuing of formal decisions: some were discontinued, some were withdrawn and a settlement was effected in others. FORMAL DECISIONS During 2004, I issued 405 formal decisions which accounts for 64 per cent of all cases reviewed. In 375 (93%) of these cases, I affirmed the decision of the public body and I varied the decision in the remainder. This compares with 270 (83%) decisions affirmed in 2003 and 166 (76%) in 2002. The fact that this figure has increased by 10 per cent for this year and by almost 20 per cent over two years may be attributable to the high number of appeals involving Industrial and Reformatory Schools. A significant proportion of these appeals involve decisions by public bodies that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. Following investigation of these cases by my Office the decision of the public body has been affirmed in the vast majority of cases. SETTLEMENTS The FOI Act provides that at any stage during a review, I may try to effect a settlement between the parties on the records to be released. In some cases, requesters may agree to narrow the focus of the review by agreeing to exclude records which will add little or no value to the information they seek. In others, it might be agreed that additional records outside the scope of the original request be released without the need for me to arrive at a formal decision in the case. As always, I would encourage public bodies, in the course of dealing with requests, to engage directly with requesters with a view to achieving settlements in those cases where a full granting of the request is unlikely. During 2004, 32 cases were settled. This represents 5 per cent of all reviews completed during the year compared with 21 per cent in 2003 and 25 per cent in 2002. Some, but not all of this may be explained in the number of institutional cases dealt with during 2004 which were not amenable to settlement. GENERAL QUERIES DEALT WITH BY MY OFFICE

There were 17 personal callers, 259 written enquiries and 1,024 enquiries by telephone to my Office in 2004 which were dealt with under the category of general query. Most of these involve requests for information about my Office or about the operation of the Act as well as matters outside my remit as Information Commissioner. STATUTORY NOTICES The majority of public bodies co-operate fully with my Office in relation to the provision of records and statements of reasons. I very much appreciate this high level of co-operation. There are specific provisions in the Act in relation to the furnishing of records and information to the Information Commissioner. Amongst other things, section 37 of the Act enables me to require the production of information and/or records and to enter premises occupied by a public body. Similarly, section 35 of the Act enables me to obtain a comprehensive statement of reasons for decisions taken under the Act by public bodies. In 2004 a total of six notices issued under section 37 and one under section 35. This compares to four and two, respectively, in 2003, and twelve and three, respectively, in 2002. Section 35 and Section 37 Notices Issued to Public Bodies in 2004 Public Body Cork City Council Naas Town Council National Maternity Hospital Department of Justice, Equality & Law Reform Department of the Marine & Natural Resources Department of Social & Family Affairs University of Limerick Total: 2004 Total: 2003 Total: 2002 Section 37 1 1 1 1 1 1 0 6 4 12 Section 35 0 0 0 0 0 0 1 1 2 3

CERTIFICATES ISSUED BY PUBLIC BODIES UNDER THE FOI ACT Following the amendment of the FOI Act, the possibility exists for certain public bodies to now issue certificates under three different sections of the Act. Generally speaking, the issuing of such certificates in relation to a record allows public bodies to refuse access to that record following a request under the FOI Act. The provisions of sections 19, 20 and 25 of the FOI Act provide that a report specifying the number of such certificates issued, if any, shall be forwarded to the Information Commissioner. SECTION 19 Section 19 provides protection for records relating to the Government or cabinet. Following the amendment of the FOI Act in 2003, the definition of Government includes, in certain circumstances, a committee of officials certified by the Secretary General to the Government. Section 19(4) of the Act provides that the Secretary General to the Government shall furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her. I have been informed by the Secretary General to the Government that no such certificates have been issued by him in 2004. SECTION 20 Section 20 of the Act exempts from release certain records relating to the deliberative processes of a public body. Section 20 allows a Secretary General of a Department of State to issue a certificate in writing stating that a particular record contains "matter relating to the deliberative processes of a Department of State". Following consultations with each Secretary General, I have been informed that no certificates have been issued under section 20 in 2004.

SECTION 25 A Minister of the Government, where he or she is satisfied that a record is exempt either by virtue of section 23 (relating to law enforcement or public safety) or section 24 (relating to security, defence and international relations) and, where the Minister is satisfied that the record is of sufficient sensitivity or seriousness to justify doing so, may, by issuing a certificate under section 25(1), declare such a record to be exempt from the application of the FOI Act. Any Minister who issues such a certificate must furnish me with a yearly report detailing the number of certificates issued by him or her in the year and the provisions of section 23 or 24 of the FOI Act which applied to the exempt record(s). In turn, I am obliged under section 40(1)(b) of the FOI Act to append a copy of any such report to my Annual Report of the year in which the certificate(s) issued. While no new certificates were issued by any Minister in 2004, I have been notified that the Minister for Justice, Equality and Law Reform renewed 2 certificates on 20 February 2004 and 24 March 2004, respectively, for a further two years. I attach a copy of the notification in Appendix. PROMOTING PUBLIC AWARENESS AND GOOD PRACTICE During 2004, my staff and I met with various groups to discuss the concept of FOI and the approach of my Office to carrying out reviews. My Office continued to contribute to training courses for FOI decision makers across the public service run by the Centre for Management and Organisation Development in the Department of Finance. I received visits from Mr. Kevin Dunion, Scottish Information Commissioner, Mr. Warren Jones, Assistant Cabinet Secretary (Policy), Government of Bermuda, Ms. Marie Anderson, United Kingdom Assistant Information Commissioner with responsibility for Northern Ireland, and, Ms. Natasa Pirc Musar, Commissioner for Access to Public Information, Republic of Slovenia. My staff met with participants from developing countries who attended an IPA course on FOI for senior Government officials, members of the Scottish Constitution and Parliamentary Secretariat, and, also participated in the FOI Conference at Trinity College, Dublin. I delivered presentations at an FOI Conference in Belfast, hosted by the Northern Ireland Information Commissioner, the 10th Cleraun Media Conference in Ennis, the launch of the 3rd edition of the Cork On-line Law Review, and, the launch of MORI Ireland's Trust in Public Institutions Survey Report. INDUSTRIAL AND REFORMATORY SCHOOLS AND CHILDREN IN THE CARE OF THE STATE In last year's Report, I explained that the Department of Health and Children had awarded a contract for the completion of the first step of its AIRR ("Access to Institutional and Related Records") Project, whereby a database - the Names Index - would be created, containing the names of all persons referred to in the Department's holdings of child care records. At the start of 2004, my Office had over 150 review applications on hands concerning former residents of industrial school and other institutions, the completion of which was delayed until such time as the AIRR project commenced. Once the volume of such applications being made to my Office became evident, my staff has liaised with the Department on an ongoing basis to monitor its progress with the AIRR project, as well as to assess the adequacy of the searches the Department conducts for relevant records. At the time of writing my report, due to the Department's progress with the creation of the Names Index, the backlog of AIRR-type applications on hands in my Office has now been cleared. Furthermore, I am pleased to note that the Department expects the Names Index to be completed in early 2006. I would encourage the Department to maintain its progress with this project, given the importance of the Names Index, and the AIRR project in general, to persons who have spent their formative years in the care of the State. Furthermore, even though the number of such applications being made to this Office has fallen off considerably in the last year, my staff intends to monitor the Department's progress with the Names Index, and the AIRR Project, on a regular basis. WEBSITE REVIEW I am conscious that an organisation's website is no longer just an information resource but is, increasingly, a portal to, and an integral part of an organisation's business. This reality is reflected in my Office's Business Plans, in national and international initiatives currently underway, and in the expectations of the clients of public bodies. In this context, I initiated a review of the Office of the Information Commissioner (OIC) Website by an internal working group during 2004. The group also reviewed the websites of the Ombudsman's Office and that of the

Standards in Public Office Commission Secretariat. All subscribers to the OIC Website up-dates, who include interested citizens, information workers, members of the legal profession and journalists, as well as FOI practitioners, were consulted and a high response rate was achieved. Submissions were also received from the FOI Inter-Departmental Working Group and the Public Service Users Network. In general "expert users" were very satisfied with the site's Decisions Index but some usability issues for non-expert users were identified. The review group recommended that improvements be made to the website in the areas of usability, accessibility for all users including those with disabilities, search facility, and information architecture. The group also identified a requirement for improved functionality in the provision of the Irish language in the context of the Official Languages Act 2003. The recommendations of the group were accepted in full and a request for tenders for the re-development and re-design of the site was published on www.etenders.ie on 11 February 2005. It is intended that the re-development will be carried out in consultation with users and potential users of the OIC website. Accessibility is a priority area for the new website which I hope will be in place by the end of 2005. APPEALS TO THE HIGH COURT A party to a review, or any other person who is affected by my decision, may appeal to the High Court on a point of law. Following the amendment of the FOI Act in 2003 the decision of the High Court is no longer final and can be appealed to the Supreme Court. In 2004, six appeals were initiated in the High Court. By early 2005, one of these appeals had been withdrawn and the remaining five are awaiting hearing. The High Court issued judgments in five pending cases in 2004; of these, four have been appealed (one by my Office) to the Supreme Court. One of these appeals was subsequently withdrawn. As of 31 December 2004, there were three appeals of decisions awaiting hearing by the Supreme Court, two awaiting judgment by the High Court and a further five awaiting hearing by the High Court. RECORDS MANAGEMENT Like all organisations, my Office relies on records to conduct its business. Records are essential for the effective and productive functioning of the Office. My Office's records document decisions taken and activities carried out while serving as a benchmark by which future activities and decisions can be measured. Good records management is inextricably entwined with increased transparency, accountability and good corporate governance. I referred in my previous Annual Report to a review, which commenced in 2003, of the arrangements within my Office for the retention and filing of all electronic and hard copy records. Significant progress has since been made in this regard. Early in 2004, an Investigator from my Office was appointed Records Manager on a parttime basis and an overhaul of a number of the existing databases was undertaken. A Records Management Handbook was published in November 2004. Prior to its publication, staff from my Office had met with the Office of the Data Protection Commissioner and the National Archives securing their agreement to proceed on the basis outlined in the Handbook. The Handbook contains detailed guidelines for all of my Office's staff on how documents and other forms of records must be processed, maintained and destroyed. The Records Management Handbook can be viewed on www.oic.ie.

STAFFING At the end of 2004 my Office had maintained its full complement of twelve Investigators. During the year, however, one of the first Investigators to join the the Office, Roisín Connolly transferred to the Office of the Ombudsman and I wish her every success in her new role. In addition, two new Investigators joined the team: Marie O'Brien and Maria Dunne.

CHAPTER 3
ISSUES ARISING
INTRODUCTION
Over the past year a number of issues arose in relation to the operation of the FOI Act encompassing the processing of requests by public bodies, the way reviews are dealt with by my Office as well as external factors which may impact on the operation of the FOI Act. The issues discussed in this Chapter are as follows: Problematic Reviews Records Management Access to Records High Court Judgments Enactments Relating to Non-disclosure of Records PROBLEMATIC REVIEWS My primary function under the Act is to conduct reviews of FOI decisions made by public bodies. My decisions are based on a combination of investigative work and consideration of the cases made by the parties to the review. My Office has developed a set of procedures for the conduct of reviews which are considered to be appropriate to most cases (see "Section 16 Manual" which is available on request or on www.oic.ie). While these procedures are fair and comply with the requirements of constitutional/natural justice they are also informal in approach. While requesters and public bodies are, of course, entitled to have legal advisors conduct their case for them, it is has been my experience that the involvement of a third party may cause delays and sometimes involves the parties in what may be unnecessary expense. Notwithstanding my preferred approach of informality in carrying out reviews, the FOI Act provides me with an extensive range of powers in order to conduct a review or investigation effectively. Under section 37, I can enter the premises of a public body (without a warrant) and require that any relevant information or records be made available to me. I may also examine and take copies of any record held by a public body relating to my review or investigation. In addition, the Act also provides that a person who fails to comply with my review or hinders or obstructs me during a review or investigation shall be guilty of an offence and shall be liable to a fine or imprisonment or both. I am pleased to say that the vast majority of public bodies co-operate fully and speedily with my reviews. In the normal course, my Office is understandably reluctant to invoke its strong statutory powers because to do so might impinge on the very good working relations which we enjoy in our dealings with the vast majority of public bodies. However, in a small number of cases, there have been difficulties in eliciting information or records which I need in order to fulfil my functions under the FOI Act. Over the past year I have issued six notifications under section 37 to the head of the public body requiring the production of information and/or records. Similarly, under section 35 of the Act, on one occasion where I considered a statement of reasons to be inadequate, I directed the head concerned to furnish a statement in writing containing any further information in relation to the matters under review. It has not been my practice to comment on such cases in any great detail in the past. However, such was the approach adopted by the public bodies concerned I have chosen to comment in quite some detail on two particular cases. National Maternity Hospital Holles St - Case No. 030830 Case No. 030830, on which I have recently issued a decision, involved records relating to the Post Mortem Inquiry (the Dunne Inquiry) and held by the National Maternity Hospital. The records included the submissions of the Hospital to the Inquiry, its correspondence with the Inquiry and with third parties. Medical records of deceased patients or correspondence with their next of kin were not included within the review's scope. In drawing attention to this case, I am concerned to highlight not the findings of the review but (a) the behaviour of the Hospital in relation to the provision to my Office of the records, the subject of the review and (b) the approach adopted by the Hospital as to how I should conduct the review.

On both counts, I regard the attitude of the Hospital as falling well short of the standard of reasonableness one is entitled to expect from a publicly funded body engaging in a process with a statutory office such as that of the Information Commissioner. I would go so far as to say that the behaviour of the Hospital in this case amounted to obstruction of my Office in the performance of its functions. This obstruction manifested itself in the following ways: in an unwarranted delay in the provision to my Office of the records at issue in the review; in an attempt to set pre-conditions before the Hospital would agree to co-operate with my review; in the adoption of an adversarial and confrontational approach in its dealings with my Office in relation to the review. I am also concerned that, in conducting its business with my Office in this manner, the Hospital is likely to have incurred substantial and mostly unnecessary legal costs which ultimately must be at the expense of the taxpayer. In order to explain how the experiences of my Office with this public body differed significantly from the norm in such matters, it is necessary to set out the sequence of events in some detail. On 31 July 2003 my Office asked the Hospital to provide copies of the records, the subject of the review, within the normal two week timeframe, that is, by 15 August 2003. It is important to remember, and the Hospital well knew, that the records were being sought to enable my Office to proceed with the review; it is never the case that disputed records are actually provided by my Office to the FOI requester. On 14 August 2003 we received a letter from the Hospital arguing in support of its FOI decision to refuse the records; but it made no reference to providing my Office with these records, nor were the records provided. On 18 August 2003 my Office rang the Hospital to remind it of the need to send us the records; and on the same day we wrote again to the Hospital, reminding it of this requirement and setting a new deadline of 26 August 2003 for the provision of the records. On 26 August 2003 we received a telephone call from the Hospital's solicitors. The content of this contact was subsequently disputed by the solicitors, but we understood the Hospital's solicitors to say that the Hospital was refusing to provide the records. On that same day, my Office spoke by telephone to the Secretary Manager of the Hospital who appeared unaware that its solicitors had refused to provide the records. Later that same day, the Hospital's solicitors faxed my Office to say it needed more time to consider our requirement to be provided with the records and that it proposed to get Counsel's opinion. While somewhat surprised that a public body should need to get Counsel's advice on the routine issue of providing my Office with the records, the subject of my review, we nevertheless extended the deadline to 9 September 2003. This was the third deadline set by my Office. On 9 September 2003 we received a lengthy fax message from the Hospital's solicitors which, inter alia, argued the records were privileged. The records were not provided though the Hospital's solicitors spoke of seeking a compromise solution under which my Office would get access to some of the records but on a restricted basis. This was not acceptable to my Office. Over the next 14 days there followed a series of communications by fax and telephone between my Office and the Hospital's solicitors; copies of the key communications from my Office were sent to the Master and to the Secretary Manager of the Hospital. Neither the Master nor the Secretary Manager replied to, or acknowledged, these communications. As the Hospital had not provided the records despite the setting of three separate deadlines, and as my review could not proceed in the absence of these records, I regarded the position of the Hospital, as represented by its solicitors, as amounting to obstruction. In these circumstances I decided to invoke what is, perhaps, the strongest of the powers which the Oireachtas has conferred on my Office, that is, the right to enter premises occupied by a public body and to examine and take copies of records held by that public body. On 12 September 2003 we informed the Hospital and its solicitors that staff of my Office would call to the Hospital on 23 September 2003 at 10.00 am in order to review the records in question and, where necessary, remove copies of them. We told the Hospital that this visit could take place in either of two ways: either on the basis of agreement with the Hospital as to its co-operation or, alternatively, by way of the exercise of my powers under section 37(2) of the FOI Act which provide for a right of entry to premises occupied by a public body, as described above. Since its establishment in April 1998, my Office has not had to rely on this right of entry to a premises. The fact that I was prepared to invoke that power in relation to the National Maternity Hospital indicates the seriousness with which I viewed the Hospital's failure to co-operate in the conduct of the review. In the days immediately prior to the deadline of 23 September 2003, there was a further exchange of correspondence with the Hospital's solicitors which, unfortunately, proved futile in terms of resolving the issue of access by my Office to the records sought. In the morning of 22 September 2003 my Office faxed a message to the Hospital's solicitors requesting that it inform us, by 3.00 PM on that day, whether our visit to the Hospital on

the following day was to be by agreement or in reliance on my statutory powers of entry. At 2.47 PM on that same day, the Hospital solicitors faxed my Office to say that it felt it had "little alternative but to submit to your demands. This should not be construed as any admission in this regard." The Hospital undertook to provide copies of the records later that day - which it did - but it was made clear this was being done under what the solicitors represented as some form of duress. In the course of its communications with my Office regarding provision of the records in question, the Hospital's solicitors repeatedly sought assurances that my review would be conducted in a particular manner, that certain other parties would be consulted in the course of the review and that my Office would answer certain questions in advance of the review proceeding. My Office made it clear that the immediate issue was the provision of the records, without which the review could not proceed; as regards the conduct of the review, we made it clear that the procedures for the conduct of a review are a matter for the Commissioner but that the Hospital could be assured these procedures would respect the requirements of fair procedure. Overall, I could not avoid the conclusion that the raising by the Hospital and its solicitors of these procedural matters, and its apparent attempt to set pre-conditions for its co-operation with the review, were designed to obstruct and delay that review. In this case it appears the Hospital passed on to its solicitors the task of dealing with my Office's requirements in relation to the review. I can understand that this might be necessary in terms of preparing legal submissions on the substantive issues to be considered in the review. I find it difficult to accept that a public body should involve its solicitors in the quite routine matter of making records available to enable the review get underway. Indeed, even when minor routine queries arose in the course of the review, in relation to matters such as the numbering of certain records, these matters were dealt with by the solicitors rather than by the Hospital's FOI Officer as is usual. The practice of my Office is that reviews are conducted on an inquisitorial rather than on an adversarial basis. Unfortunately, the Hospital and its solicitors seemed not to appreciate this fact and adopted what I believe was an adversarial approach not only in relation to the original requester but, surprisingly, in relation to the adjudicating authority (my Office). For the future, I believe the Hospital would do well to reflect on the nature of the instructions it gives its solicitors. It would do well, also, to reflect on whether it is justified in incurring what must be substantial legal costs in engaging solicitors to represent it in a way which hinders rather than helps the overall FOI review process.

Naas Town Council - Case No. 030520 In Case No. 030520 the records sought were those relating to an agreement between Naas Town Council and a development company on a proposal to transfer certain lands to public ownership arising from the Development Plan process. In its internal review decision the Council released one record and claimed that it held no additional records. In this case, my Office had to go to some lengths in order to obtain from the Council the information necessary to conduct the review and to enable me to come to a conclusion as to whether the Council's decision was justified. The adequacy of the search for any additional records was the central issue in the review. In particular, my Office pointed out to the Council that records relevant to the matter might be held by the Council's legal advisers and that these should be provided for consideration. It transpired that the Council had not checked with its solicitors as to whether relevant records were held. In this regard, Section 2(5) of the Act makes it clear that a reference to records held by a public body includes a reference to records under its control. It was explained to the Council that, whether or not the records fell to be released under the FOI Act or, indeed, whether all of them were properly within the scope of the request, was a matter for my Office and that the information requested was necessary to enable the review to be conducted. In the event, the Council's solicitors did hold relevant records and these were eventually released. In the same case, my Office had to go beyond what we would normally expect to have to do in our efforts to secure information necessary to carry out the review. An inordinate amount of time had to be spent in pursuing what were perceived as possible "gaps" in the records held and statutory notices were served on the Town Clerk and on the Council's solicitors before we were satisfied that all of the records had been provided. The Council had assured my staff at all times of its utmost co-operation and said that it had gone to "extreme

lengths" to comply with my Office's requests for information. Nonetheless, it is clear from the sequence of correspondence that specific questions, central to an assessment of the adequacy of the search for records, were not responded to as promptly and as thoroughly as I would expect. This situation is all the more disappointing when one considers that, in our initial notification to the Council of our acceptance of the review application, we drew the Council's attention to the Guidelines on Adequacy of Search published by my Office; we also put the Council on notice that copies of all relevant correspondence, including that held by the Council's legal advisers, would be required. Furthermore, at all stages during the review, the Investigator concerned explained to the Council in great detail the precise information required and the reasons why it was being sought. The Council agreed to the release of many of the records which it held and which it accepted were within the scope of the review. It said that it accepted that there were deficiencies in its record management system in relation to this matter and it stated that steps are being taken to implement an improved system. RECORDS MANAGEMENT Since assuming office I have consistently stressed the contribution efficient records management systems make in terms of achieving the overall objectives of the FOI Act. While some bodies have taken steps to improve their record management systems, I have found that there are some inconsistencies among the various public bodies and there are still shortcomings in relation to record management practice. Records of General Practitioners Where a general medical practitioner (GP) treats medical card patients, the medical records of such patients are covered by the FOI Act. This is because GPs treat these patients under a contract for services with the relevant health board, now the Health Service Executive (HSE). Section 6(9) of the FOI Act provides that the records of a person providing a service to a public body under a contract for services, to the extent that the records relate to that service, are deemed to be held by the public body. Thus, the GP records of a medical card holder are deemed to be held by the HSE and may be sought, from the HSE, under the FOI Act. In our Annual Report for 2001, we identified a number of shortcomings in relation to the management of GP records. We had identified these shortcomings in the course of dealing with reviews sought by medical card patients who were unhappy with the extent of records provided to them. In the 2001 Report we drew attention to the fact that neither the Department of Health and Children, nor the health boards, appeared to have sought to lay down any specific arrangements with GPs in relation to keeping medical records for medical card patients. The relationship between the GPs and the HSE is governed by a standard contract which, while referring to clinical records, fails to set any specific requirements. We noted in the 2001 Report that there is no specific requirement regarding the nature of the records to be maintained (other than that GPs should keep "adequate clinical records"); no requirement as to the period for which records should be retained; and no requirement as to the treatment of the records of deceased patients. While the standard contract does refer to arrangements in a situation in which a GP contractor dies, resigns or retires from the GMS scheme, these arrangements are not very specific and, in any event, they appear to lack a proper implementation mechanism. While I am sure that many GPs do keep adequate records and do have proper record management practices, this arises from the professionalism and initiative of the individual GP rather than from any agreed, contractual arrangement which is applied consistently by all medical card doctors. It is still our experience, based on dealing with reviews involving GP records, that the absence of specific standards and arrangements, which are contractually binding, is a source of frustration and upset to many medical card holders and their families. I am sure that GPs also would welcome clarity as to what is expected of them in this area. Now that the regional health boards have been replaced with the HSE, the time may now be right to address the issue of GP record keeping (including transfer arrangements between GPs) in a comprehensive fashion. Any such arrangements should form part of the standard contract under which GPs treat medical card patients. ACCESS TO MEDICAL RECORDS My predecessor drew attention on a number of occasions to difficulties incurred by members of the public in accessing their medical records from hospitals. I share this concern and I am very conscious of the importance of patients being able to access their medical records in a quick and efficient manner. The following cases illustrate some of the difficulties encountered by requesters in this regard.

St. James's Hospital - Case No. 010215 Case Number 010215, involving a request for access to medical records held by St James's Hospital, illustrates the confusion and delay caused by the manner in which the request was handled. The Hospital dealt with elements of the request outside of the FOI Act. However, the requester, in correspondence, had made it clear that she was applying under the FOI Act. After lengthy correspondence over many months, the Hospital notified the requester that her records could not be found and eventually my Office accepted her application for review. I reminded the Hospital that where routine or administrative access to records is available requesters may wish still to avail of their statutory rights under the FOI Acts. In this case, the requester was able to provide dates of admission, patient number and other relevant information to help identify her file or chart. Unfortunately, despite further searches carried out by the Hospital at the request of my Office, together with explanations about the Hospital's system of record management, the patient's file did not come to light. The Hospital informed me that in the period since the disappearance of the records at issue had come to its attention, it recognised that improvements were required to its systems for managing and retrieving patient records. According to the Hospital, improved systems have since been put in place and are now operating satisfactorily. Adelaide and Meath Hospital (Tallaght) - Case No. 040177 Case 040177 raised questions about the adequacy of search procedures and record management by public bodies. The requester in this case was informed by the Hospital that her deceased mother's medical records could not be found. In response to my Office's questions, the Hospital listed what appeared to be comprehensive search steps carried out on the old Meath Hospital records, where this patient's records should have been located. The records were missing without any logical explanation. Despite an initial reluctance, the Hospital agreed to contact the retired consultant who had treated the patient, to see if he had any information about the records. The consultant did not know where the records might be but he recalled the particular case and agreed to meet the requester to discuss her late mother's illness and subsequent death. The requester availed of this offer and was grateful for the consultant's assistance but still did not have the medical records she had requested. On foot of this case, the Hospital convened a meeting of relevant personnel in relation to its records management and search procedures. In the course of this discussion, it emerged that the Intensive Care Unit records from the Meath Hospital had been stored separately from the general records and charts. The staff carrying out the original searches had not been aware of this. A search was conducted of these files and the records of the requester's deceased mother were found. This case illustrates why my Office persists in asking questions and suggesting further steps in 'search cases' which may sometimes seem excessive to the public body but may ultimately yield positive results. HIGH COURT JUDGMENTS A party to a review, or any other person who is affected by my decision, may appeal to the High Court on a point of law. During 2003 the High Court delivered judgments in five appeals of my decisions. I outline the main issues involved in four of these judgments below. In general, responding to appeals of my decisions to the High Court involves a considerable expenditure of resources by my Office. The costs incurred, both in terms of legal costs and staff time, are very considerable. In some instances reviews have had to be suspended pending the outcome of an appeal which involves the same point of law. Given the expense and resources involved in participating in High Court cases, it is the policy of my Office to seek to recover costs in all cases where such costs have been awarded in my favour. Adelaide & Meath Hospital (Tallaght) - Case No. 000128 This case concerns access by parents/guardians to personal information of minors in accordance with section 28(6) of the FOI Act, 1997 and article 3(1) of the FOI Act, 1997 (Section 28(6)) Regulations, 1999. The background is that in 2000 the applicant submitted an FOI request to the hospital seeking access to his daughter's medical records. The Hospital failed to make a decision on the request, or on the internal review

application, within the statutory period and the applicant appealed the matter to the Information Commissioner on the basis that the Hospital's failure to make a decision within the statutory period could, in accordance with section 41 of the FOI Act, be deemed to be a refusal of his request. An authorised officer acting on behalf of the Information Commissioner issued a decision on the appeal on 12 August 2002. The decision stated: "In any situation where there is disagreement between parents/guardians regarding the release of records relating to a minor, the Commissioner has taken the view that release should only be directed where there is tangible evidence that such release would actually serve the bests interests of the minor." In this case the applicant shares joint custody and guardianship of the child with the child's aunt and the child resides permanently with the aunt, the applicant having supervised access to the child. The decision noted that the child's aunt was firmly opposed to the release of the records and the Commissioner's authorised officer found that, on balance, the applicant had not presented evidence that release would actually serve the child's bests interests. The authorised officer found that the applicant had not satisfied the test provided for in article 3(1) of the Regulations, namely that access by the applicant to the records would be in the child's best interests, and affirmed the Hospital's decision to refuse access to the records at issue. The applicant appealed the Commissioner's decision to the High Court on the grounds that the Commissioner had erred in law in failing to direct release of the information sought and had misapplied or misconstrued the provisions of section 28(6) of the FOI Act, 1997. In his judgment on 14 January 2004, Mr. Justice Quirke found in favour of the applicant; he found that in reaching his decision in this case the then Commissioner had: "misconstrued the provisions of section 28(6) of the Act of 1997 and Regulation 3(1) of the 1999 Regulations by failing to recognise that the decisions of the parents of minors are presumed to be in the best interests of that minor in the absence of evidence to the contrary. " The judgment also stated that: "the appellant should not have been required to discharge an onus of the type identified by the respondent and the test applied by the respondent was incorrect in the circumstances." Justice Quirke ordered that the matter be remitted to the Commissioner with a direction that the Commissioner direct the Hospital to release the records. The Information Commissioner has appealed the High Court's decision and the Supreme Court appeal is expected to be heard in 2005. Radio Telefís Éireann - Case No. 020336 In this case the requester sought, from Radio Telefis Éireann (RTÉ), data collected on the amount of radio and television broadcast time allocated to each political party on a daily basis during the General Election campaign of 2002. The FOI Act applies to certain specified functions of RTÉ as set out in the Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (S.I. No 115 of 2000). In those regulations, Schedule 2 sets out the functions which fall within the remit of the Act; Schedule 3 sets out the functions which do not fall within the Act's remit. The regulations further provide that the functions specified in Schedule 2 are deemed not to include any of the matters specified in Schedule 3. In short, the functions covered by the FOI Act are management, administration, finance, commercial, communications and the making of contracts for services. Schedule 3 is concerned with programming functions. In brief, my predecessor found that the requested records, which were records of raw data, were covered by the provisions of the FOI Act. He found that the records at issue were created and held by RTÉ in the context of its performing its management function of ensuring impartiality in broadcasting of news and current affairs (Section 3 of the 1976 Broadcasting Act refers). He interpreted the exclusions at Schedule 3 narrowly, drawing a distinction between the excluded "process of making editorial decisions ...", which he said would include records of discussions at editorial meetings, and records of decisions taken, and the data or information on which such a process relied. Having found that the records came within the scope of the FOI Act, the then Commissioner gave consideration to whether or not they would be exempt from release under any of its provisions. He did not find that any of the exemptions applied and decided that the records should be released. RTÉ appealed the decision

to the High Court. Mr Justice Aindrias Ó Caoimh delivered his High Court Judgment on 11th June 2004. The effect of his judgment was to find that the exclusions to those functions of RTÉ which are covered by the FOI Act must be interpreted widely. He stated that he was satisfied that the functions for which RTÉ is covered by the FOI Act "must by reason of the deeming provision be construed somewhat narrowly ... ". He said that "the use of words such as the process of making editorial decisions clearly suggest a wide connotation ... not restricted to the editorial decision itself but to the broader context of the process of making such decisions". Mr Justice O Caoimh concluded that the former Commissioner erred in law in his construction of the regulations when applied to the facts of the case. RTÉ's appeal was allowed and the decision of the Commissioner was set aside. Department of Education & Science - Case No. 000238 In Case No 000238 the High Court affirmed in full my decision to grant access to a report of an inspection of a primary school carried out by Inspectors in the Department of Education and Science. The decision had been appealed to the High Court by the Principal of one of the schools involved. The background to the case was that the Irish Times had sought access to reports of inspections of certain Primary Schools carried out by the Department of Education and Science. The Department refused the request on the ground that access to the information was prohibited by section 53 of the Education Act, 1998. Section 53 of that Act provides that access may be refused to any information which would enable the compilation of information in relation to the academic achievement of students enrolled in the school, i.e. so-called school league tables. The Department also refused access on the grounds that the staff of the schools had provided information in confidence to the Inspectors during the course of their inspections, that disclosure could prejudice the effectiveness of future inspections and also that its functions relating to its management of schools could be adversely affected. Having regard to the contents of the reports, I did not accept that access to them could result in the harms envisaged by the Department. In my decision, I commented that while the reports gave an overall impression of the schools, they clearly did not contain any references to the academic achievements of students in the schools. I went on to find that the comments in the reports were of such a general nature that no meaningful comparison could be drawn between the schools. I did not accept that the information in the reports could be described as information given in confidence to the Inspectors as the reports were the Inspectors' own opinions and observations formed during the course of visits to the schools. (The High Court decision was appealed to the Supreme Court and the judgement is awaited at the time of writing) Department of Communications, Marine & Natural Resources - Case No. 030036 In the appeal of my decision in case number 030036 an important legal principle was confirmed by the High Court. A third party appellant, objecting to the release of a Departmental report into the effect that party's business was having on a local coastal amenity, also objected to the presence of the Information Commissioner as a notice party at the High Court hearing. In his judgement of 13 January, 2004 (No. 73 of 2003 MCA), Mr. Justice Murphy held that the Information Commissioner was entitled to be a party to the proceedings and was a necessary party. The appellant initiated an appeal to the Supreme Court but subsequently withdrew both this appeal and the earlier substantive appeal to the High Court and made a payment towards the Commissioner's costs. THE OIREACHTAS AND ENACTMENTS RELATING TO NON-DISCLOSURE OF RECORDS The FOI Act provides, in section 32, that access shall be refused to any record whose disclosure is prohibited, or whose non-disclosure is authorised in certain circumstances, by statute (including statutory instrument). In circumstances where such a statute is listed in the Third Schedule to the FOI Act, the disclosure of records is assessed solely by reference to the other provisions of the FOI Act. Section 32 goes on to provide that a Joint Committee of both Houses of the Oireachtas, in this case, the Joint Committee on Finance and the Public Service, shall review the operation of all secrecy provisions in all statutes

to ascertain if any of the actual provisions themselves should be amended or repealed or included in the Third Schedule to the FOI Act. As part of this review all Ministers must report to the Joint Committee all secrecy provisions contained in the enactments falling within their respective areas of authority. In doing so, each Minister must state his or her view on whether these secrecy provisions should be amended, repealed or allowed to continue in force and, additionally, whether a reference to any of those provisions should be included in the Third Schedule to the FOI Act. Each Minister must lay a copy of his or her report before each House of the Oireachtas and also forward it to the Information Commissioner. Such reports fall due every five years since April 1999 (the date of the first report) and, as such, one fell due May 2004. In so far as the 1999 report was concerned, my predecessor appeared before the Joint Committee in November 1999 when he gave his opinion and conclusions relating to the reports of Ministers provided. In July 2000, the Director General of my Office attended a meeting of a sub-committee of the Joint Committee established to review the matter further. Under the FOI Act, the Joint Committee is obliged to prepare, and furnish to each House, a report in writing of the operational review. This report is to include, if it considers it to be appropriate, its recommendations in relation firstly to the amendment, repeal or continuance in force of any of the secrecy provisions reported to it and, secondly, its recommendations in relation to the inclusion of a reference to any of these provisions in the Third Schedule to the FOI Act. It is my understanding that the Joint Committee did not present such a report to each House of the Oireachtas in respect of the 1999 review. During 2004 I received copies of the reports of a number of Ministers in satisfaction of their obligation under section 32(3) of the FOI Act. A number of reports were outstanding at the end of the year. Those copies which were received are being examined with a view to reporting to the Joint Committee as early as possible in 2005. I consider section 32 to be a vitally important provision of the FOI Act. It is the provision which maintains coherence throughout the FOI Act, ensuring that the widest and most informed perspective is taken on all provisions of all enactments which prohibit the disclosure, or authorise the non-disclosure, of certain records by holding these records up to scrutiny against the central purpose of the FOI Act which is "to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies ....".

CHAPTER 4
LETTER DECISIONS
INDEX OF TOPICS COVERED
Inspection Reports Case 020533 Case 000103 Deceased Person's Records Case 031001 Public Interest Case 000528 Case 031109 Frivolous and/or Vexatious Case 040004/040005 Government Records Case 030622 Control of Records Case 010147 This Chapter, drawing on material contained in a small number of decisions during 2004, is intended to highlight points of interest to public bodies and FOI users alike. The full text of these and other decisions of interest, with the parties' identifying details removed where necessary, is available at www.oic.ie. INSPECTION REPORTS Throughout 2004 there was much discussion in relation to the care of elderly people in this country. In decision 020533, issued in February, I suggested that Nursing Home Inspection Reports be made routinely available to the general public as a matter of course (in line with the practice adopted by both the Food Safety Authority of Ireland and the Social Services Inspectorate). In the past, Health Boards have felt constrained in their release of such information. I am happy to report that, to my knowledge, at least one Health Board is now taking steps to make such inspection reports available to the public on a routine basis. I hope that either the Health Service Executive or individual Health Service Executive Areas will take similar action in light of my comments in case number 000103 which relates to food outlets. South Eastern Health Board - Case No. 020533 The requester sought access to records relating to all communications and findings by the South Eastern Health Board in the matter raised by the requester on foot of two sworn Affidavits which detailed incidents alleged to have occurred in the nursing home in which the requester's late mother was then resident. The request included virtually all records held by the Board which deal with the Home as well as nursing home inspection reports and associated correspondence relating to the Home. The Board failed to give a decision within the prescribed time limit. This amounted to a deemed refusal of the request. Similarly, no decision was made by the Board at internal review stage. Following contact with this Office, the Board wrote to the requester saying it was giving access to certain records/portions of records but was not willing to provide access to the remaining records or portions of records. Both the Board and the Home claimed that some records should not be released on the grounds of commercial sensitivity. In any event, even where it is found that this exemption applies, a further provision provides for the release of information which is commercially sensitive where such release is in the public interest. In my view, there is a significant public interest in the public knowing how health boards carry out nursing home inspections in individual cases and that the regulatory functions assigned to the boards achieve the purpose of the relevant legislation. Accordingly, I found that the commercial sensitivity exemption did not apply in relation to any of the

records at issue in this review. Personal information about third parties is exempt from release under the FOI Act. However, the Act does provide for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates. In my decision, I stated that there is a very significant public interest in members of the public having information relating to the welfare, quality of care and the level of security and dignity provided for older, more vulnerable members of society resident in institutions. I also said that there is a strong public interest in increasing the openness and transparency of the process of investigation of complaints by public bodies, particularly where the complaints concern the provision of care for elderly or vulnerable people. In considering these factors, which favour release of the records in question, and bearing in mind the uncertainty as to the manner in which the Board dealt with the complaints made by the requester, I found there were substantial, public interest arguments supporting release of the records. In considering the public interest arguments favouring disclosure of the personal information of third parties, I found no case at all that the public interest requires a breaching of the privacy rights of residents of the Home or of members of staff of the Home. However, in the case of the proprietors of the Home, and where one of them also acted as the person in charge, I found that personal matters of the proprietors inevitably bear significantly on the manner in which the Home was operated. These personal matters, in turn, were items which the Board had to consider in the course of its statutory inspections and assessments of the Home. Inevitably, the manner of operation of the Home would have had a major impact on the health, safety, and sense of security and well-being of the elderly, frail and (in some cases) vulnerable residents of the Home. I took the view that certain of the records disclosing personal information of the proprietors are central to an understanding of how the Board conducted its statutory business in regulating and inspecting the Home. The same view applies in regard to understanding how the Board dealt with the complaints made by the requester. I found that release of these records is necessary to provide a proper picture of how the Board conducted its business and that providing this proper picture serves, both in the circumstances of this case and more generally, a very significant public interest. Accordingly, I found that the exemption provided under the Act did not apply to these records in so far as these records disclose personal information of the proprietors of the Home. I annulled the decision of the Board in this particular case and directed that the Board grant the requester access to the records in question. Eastern Health Board - Case No. 000103 The requester sought access to the report of the former Eastern Health Board (the Board) of its investigation into an outbreak of salmonella poisoning amongst customers of a fast food restaurant. The Board refused access to the report on the grounds that the investigation was conducted pursuant to Statutory Instrument (S.I.) No. 86 of 1998, and that Article 20 of S.I. No. 85 of 1998 prohibits the disclosure of information gained by virtue of inspections carried out under S.I. No. 86 of 1998. Section 32(1)(a) of the FOI Act provides that a request for a record shall be refused if "disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule)". The Third Schedule of the FOI Act specifies certain provisions of various enactments which prohibit the release of information, but which are excluded from the application of section 32 of the FOI Act. S.I. No. 85 of 1998 is not contained in the Third Schedule to the FOI Act, and therefore, according to the Board, section 32 of the FOI Act applies to records relating to the inspection of the premises concerned. In the course of the review, the Board agreed to release part of the report and, thus, my review was confined to whether the refusal to release the remainder of the report was in accordance with the FOI Act. I took account of various pieces of legislation in relation to food hygiene and the control of foodstuffs, including European Council Directives 89/397/EEC of 14 June 1989 on the official control of foodstuffs; Council Directive 93/99/EEC of 29 October 1993 on the subject of additional measures concerning the official control of foodstuffs; European Communities (Official Control of Foodstuffs) Regulations, 1998 (Statutory Instrument [S.I.] No. 85 of 1998), as amended by European Communities (Official Control of Foodstuffs) (Amendment) Regulations, 1999 (S.I. No. 210 of 1999); and the European Community (Hygiene of Foodstuffs) Regulations, 1998 (S.I. No. 86 of 1998).

I examined the wording of the European Directives to which S.I. No. 85 of 1998 purports to give effect. I found that the records on the Board's file relating to matters other than the inspection itself are not covered by the nondisclosure provision of Article 20 of S.I. No. 85 of 1998. I concluded that the wording of Article 12 of Council Directive 89/397/EEC, taken together with the wording of the Directive's preamble (that legitimate rights of an enterprise, such as manufacturing secrecy and the right of appeal, must be preserved) infers that the Directive's objective in this particular regard is to ensure: that inspectors do not reveal trade or manufacturing secrets to which they gain access in the course of performing the various operations that comprise control, that inspectors do not reveal information that would prejudice the right to appeal of the affected parties. It is my view that a correct interpretation of Article 20 of S.I. No. 85 of 1998 must take account, not only of the actual wording of that Article, but also of the content of the overall Statutory Instrument, the enactment by the Oireachtas of the FSAI Act, 1998 as well, crucially, as the content of the EU Directive which the Statutory Instrument purports to transpose into Irish law. I noted that, in construing domestic legislation which implements European law, a "court is required to adopt a teleological approach to interpreting the former so as to achieve and implement the true scheme and purpose of the latter: Coastal Line Container Terminal Ltd v SIPTU [2000 HC] 1 IR 549 at 559, and ELR 1 at 11." (Murdoch's Irish Legal Companion, 2003) and I was satisfied that the "true scheme and purpose" of Council Directive 89/397/EEC, insofar as non-disclosure of information is concerned, involves a prohibition on disclosure which is considerably narrower than that suggested by a literal reading of the words of Article 20 of S.I. No. 85 of 1998. In the light of this, I found that the correct approach to the interpretation of Article 20 of S.I. No. 85 of 1998 is that it has effect only to the extent that it actually implements the provisions of the Directive. I found that the Directive does not prohibit the disclosure of information concerning an inspection other than information which would reveal a manufacturing or commercial secret, or information which would prejudice the legitimate right to appeal of an enterprise. I found that the remainder of the report was not prohibited from release by S.I. No. 85 of 1998 nor by Council Directives 89/397/EEC and 93/99/EEC and, therefore, that section 32(1)(a) of the FOI Act could not be relied upon by the Board in refusing to release the remaining portions of the final report. PERSONAL INFORMATION/DECEASED PERSON'S RECORDS The FOI Act provides that personal information (including that relating to a deceased individual) shall not be disclosed to a third party. However, the protection provided by the Act is not absolute and a number of other provisions provide, in certain circumstances, for the release of personal information to a third party. One of these provides for the release of the records of a deceased person where the requester "is a member of a class specified" in regulations made by the Minister for Finance. These regulations were given effect by Statutory Instrument No. 47 of 1999. There are a number of factors which a public body should consider in each case when deciding if release of the records is appropriate in the circumstances. They provide, among other things, that the decision maker must balance the protection for the personal information of the deceased against the right of the requester to access the records. They also provide that the nature of the records should be considered, i.e. if the records are inherently private and of a very sensitive nature then they are not likely to be released unless there are compelling reasons for doing so. Another consideration would be whether the wishes of the deceased, in relation to release of his/her personal records, are known. Where the deceased has let it be known that he/she would not consent to the release of personal records there would have to be compelling reasons for overturning the deceased's expressed wishes. The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased are to be considered. Guidance Notes issued by the Minister for Finance in this respect say: "Particular account should be taken of the relationship (if any) of the requester to the deceased. For example, if the requester is a spouse, issues such as whether the parties were living together, or had been separated or engaged in legal proceedings, and whether the relationship was amicable or acrimonious would be relevant". Each case must be judged on its own merits and the following case indicates some of the difficulties that can be encountered in this category of request.

National Maternity Hospital Holles St. - Case No. 031001 The requester in this case was attempting to gather information about her deceased father (born 1906) and his family. The father spent much of his childhood in an institution and little was known about his background. The requester applied to the National Maternity Hospital, Holles Street, where her father was born, for information on whether he had siblings and regarding the age of his mother when he was born. The Hospital refused the request on the grounds of privacy and confidentiality. At no stage did the Hospital advert to the specific provisions in the FOI Act governing the release of records relating to deceased persons (section 28(6)) nor did it deal with the public interest provisions which must always be considered where these exemptions are invoked as the basis for refusing an FOI request. Before dealing with the exemptions claimed by the Hospital, I pointed out to the Hospital that it had failed to deal adequately with this aspect of the decision saying that I regarded this as a significant omission and a serious defect in the decision making process in this particular case. Given that requests for personal information are likely to constitute a major proportion of the overall number of FOI requests received by the Hospital, one would expect that the Hospital would by now be fully conversant with these fundamental provisions in the FOI Act. Having regard to SI No. 47 of 1999, made by the Minister for Finance under section 28(6) of the FOI Act, I considered whether the requester had a right of access under the third category of requester specified in the regulations i.e. was she such a person to whom it was considered "appropriate" to release the records. I referred to the Guidance Notes issued by the Minister and their suggestions as to factors that a public body should consider in deciding whether release of such records is appropriate in the circumstances. For example, a balance must be struck between protecting the rights to privacy of the deceased and the right of the requester to gain access to the records. The nature of the records should be considered, as well as the wishes of the deceased, if known, in relation to the release of his or her records. I did not agree with the Hospital's contentions. I identified a number of circumstances which I believed were reasonable to take into account in this particular case. Having regard to these circumstances, I found that the requester should be regarded as a next of kin to whom it was appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" to release the medical records of her late father. I also commented that there may be cases where, due to circumstances prevailing, a requester who is a close next of kin may not be regarded as a person to whom it was appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" to release the medical records of a deceased person. PUBLIC INTEREST Many exemptions in the FOI Act contain an overriding public interest test. This requires consideration to be given to whether the public interest is best served by the disclosure of a particular record and that this outweighs the potential harm or injury arising from such disclosure. In considering public interest factors it is usual to list the public interest arguments for and against the release of the records, apply a weighting to each, home in on the most important and make a judgement as to where the balance of the public interest lies. Where the expenditure of public money is involved, I am of the view that the public interest in openness and transparency in the expenditure of public money is a very significant public interest favouring release of information. While the existing system of audit and scrutiny in the public service provides certain safeguards, this cannot be an argument against further such safeguards, including public disclosure of the details of public spending. The withholding of information can contribute to a climate of secrecy or allegations of bias, corruption or mismanagement. The public interest also requires that a public body acts fairly and is subject to public scrutiny. It is fair to say that in recent years few issues of domestic public policy have attracted such attention and concern, and been the subject of such extensive public debate, as has the delivery of public health services. Within the public health service, the issue of hospital services has been of paramount interest. I believe it is in the public interest that members of the public understand and appreciate the difficulties facing health care managers - who, after all, are public servants attempting to serve the public interest - particularly where they attempt to balance the competing aims of ensuring best clinical practice with that of achieving the most efficient return on public expenditure on health. The advent of FOI has brought about changes in the manner in which public bodies conduct their business and

the agreements which they make. Given the importance of openness and accountability in the public service and given the fact that the FOI Act, 1997 has now been in force for over seven years, I am satisfied that public bodies ought to be aware of the implications of the provisions of the Act. The enactment of the Freedom of Information Act allowed for the release, in the public interest, of information that might be otherwise exempt and the following cases illustrate illustrate the weight that attaches to openness and transparency. Mr. John Burns and the North Eastern Health Board - Case No. 000528 This decision has some useful comments on the issue of whether the FOI Act restricts the capacity of public bodies to enter into confidentiality agreements and on the related issue of whether section 26 should apply where the only interests to be protected are those of the public body. In October 2000, the Board agreed an out-of-court settlement with a senior hospital consultant who had taken legal proceedings following his having been placed on administrative leave by the Board, his employer. The background to the dispute involved issues of clinical independence including whether the Board could restrict the duration of hospital stay of the consultant's patients. The dispute attracted considerable media and other attention and the High Court had already given judgment on an application by the consultant for an interlocutory injunction to restrain the Board from proceeding with its decision to place him on administrative leave. The settlement terms agreed between the parties included a confidentiality clause. The FOI request was for access to the details of the "legal and financial settlement reached" between the Board and the consultant. The Board refused the request on the grounds that the settlement reached was confidential as provided for in the agreement; that release of the records would have a significant adverse effect on the Board's performance of its management functions; that release of the records would disclose positions taken for the purposes of negotiations; and that release of the settlement terms would be to release personal information about the consultant. At internal review, the Board affirmed the initial decision for the reasons given in that decision; it also relied on some additional exemptions: that the records were protected by legal professional privilege and that disclosure of the records "could reasonably be expected to prejudice or impair the administration of any law". In the course of my review, the Board sought also to rely on exemptions under the Act relating to commercial sensitivity or the prejudicing of negotiations. The key fact permeating my decision is that release of the records sought would be at odds with the confidentiality terms included in the settlement between the Board and the consultant. I made it clear that the decision to grant the request depended on the facts and circumstances arising in this particular case; it does not amount to a general conclusion that public bodies cannot expect to have confidentiality clauses upheld where records are sought under the FOI Act. The decision makes it clear that there will be circumstances in which a public body will be justified in accepting a duty of confidence and can expect that this duty will be protected in the event of an FOI request. At the same time, I take the view that the FOI Act does place some constraint on the extent to which public bodies can enter into confidentiality agreements. I did not accept the requester's contention that, in this case, the confidentiality clause had been entered into by the Board with a view to circumventing the FOI Act. However, the decision makes clear that, had I found this to have been the case, "this would represent a very significant issue in the consideration of whether the information should be released in the public interest". Three of the exemptions invoked by the Board - avoiding prejudice to public bodies in the conduct of their affairs, protecting commercially sensitive information and protecting personal information - include a public interest test on the basis of which the exemption (if it is found to apply) may be set aside. I found that only the protection of personal information applied. However, for the sake of completeness, I considered the public interest arguments in all three instances. The main public interest argument advanced by the Board, in support of the refusal of the request, was the protection of the reputation of the consultant who continues in private practice. Further public interest arguments from the Board included (1) avoiding undue or unfair prejudice to public bodies in the conduct of their affairs and (2) protecting the legitimate commercial interests of private entities. In the particular circumstances of this case, where it appeared from the conduct of the consultant in question that he had no objection to the granting of the request, and where details of the dispute were already in the public domain, I concluded that there was no very strong public interest requirement to protect the reputation or privacy rights of the consultant. On the other hand, I identified a very strong public interest in transparency and accountability in the spending of public money; I did

not accept that the existence of specific mechanisms rendered additional such mechanisms unnecessary. ("The existing system of audit and scrutiny provides certain safeguards but this is not an argument against further such safeguards, including public disclosure of the details of public spending.") Furthermore, I had regard in my decision to some specific matters relating to this case; these included the fact that the terms of the settlement had not been disclosed to the Department of Health and Children, nor to the Chairman or members of the Board, nor had they come to the attention of the external auditor. While stating expressly that these matters did not constitute grounds for criticism of the Board, I decided that these matters further supported an existing very strong public interest argument in favour of granting the request. My decision was that the public interest served by granting the request outweighed the public interest served by a refusal of the request. In relation to the confidentiality agreement, I found that, in the specific circumstances of this case, release of the details of the settlement terms by the Board would not constitute a breach of a duty of confidence owed by the Board to the consultant. This finding was grounded on an inference drawn by me from the behaviour of the consultant in the course of the review. With one limited exception, the consultant opted not to engage with me for the purposes of the conduct of my statutory review. When the consultant failed to respond to my written invitations to make a submission, I wrote to him to say that, in the event of his being opposed to release of the records, I would expect him to notify me of that fact; furthermore, I stated that, in the event of his failing to reply, I would feel free to conclude that he did not oppose the release of the records to the requester. As the consultant did not reply to this letter, I concluded that the consultant was not opposed to the release of the records and that release by the Board, under the FOI Act, would not constitute a breach of a duty of confidence owed by the Board to the consultant. In my decision I also addressed the issue of whether the confidentiality agreement exemption is intended to operate as a protection for the interests of a public body. My conclusion on this issue is summarised as follows: "Having regard to the FOI Act in its entirety, I take the view that the protection contained in section 26 is not intended to protect solely the interests of a public body; rather, that protection is directed at entities other than public bodies and it will operate to protect the interests of a public body only where those interests co-incide with other interests which require to be protected. All of the essential interests of public bodies are already adequately protected by sections 19 - 24 and sections 30 and 31." In relation to the other exemptions claimed by the Board, I found that none of these applied. In the circumstances, I annulled the decision of the Board and directed instead that all of the records identified as within the scope of the request should be released to the requester. Department of Education & Science - Case No. 031109 The requester sought access to records relating to the decision to close St. Catherine's College of Education for Home Economics. The Department refused access to the records on the grounds that they were exempt under sections 21(1)(b) and 21(1)(c) of the FOI Act. At no stage did the Department deal with the public interest provisions in section 21 which must always be considered where section 21(1) is invoked as the basis for refusing an FOI request. In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The Department did not specify the potential harm nor was it clear to me that the Department did exercise what might reasonably be described as "functions relating to management" in relation to the College. In relation to the claimed exemption under section 21(1)(c) I found that the records in question related solely to the closure of the College and did not disclose negotiations in respect of that decision. In the circumstances I found that neither the exemptions in sections 21(1)(b) nor 21(1)(c) apply in this case. While it was not necessary for me to consider the public interest considerations as required in section 21(2), for the sake of completeness, I did consider the public interest provisions. There is a significant public interest in members of the public knowing how a public body ensures that its decisions are predicated on ensuring value for money; in members of the public knowing how a public body performs its functions particularly in a context where a decision has consequences for existing employees and their families and, in ensuring openness, transparency and accountability in relation to the expenditure of public money. I found that the records sought concerned a

decision to close a third level college and it is a decision which has very significant implications for existing staff and for potential future students; and is a decision, also, which seems likely to have significant financial implications into the future for the Exchequer. In these circumstances, I believed the public interest arguments in favour of openness and accountability were particularly strong and, had it been necessary to apply the public interest test, the public interest in granting the request would have prevailed. I annulled the decision of the Department and directed that the Department grant the requester access to the records in question. FRIVOLOUS & VEXATIOUS Section 34(9)(a)(i) allows me to discontinue a review on the ground that the application to my Office is frivolous or vexatious. While I have discontinued reviews in the past on vexatious grounds (030406 on www.oic.ie), I decided in Cases No. 040004 & 040005 to exercise my discretion to discontinue my review on the ground that the application was 'frivolous'. Mr X and an Institute of Technology - Case No.s 040004 and 040005 Mr X had applied to my Office for a review of the decision of the Institute to refuse to amend a number of comments made by a member of staff in an e mail and memorandum. The e mail and memorandum were created by the staff member in response to Mr X's complaints about the Institute. In his application, Mr X requested that five separate comments be amended. Among the amendments sought was a change in the description of Mr X's letter of complaint from "report" containing a "...series of accusations" to "submissions containing complaints" and the use of the phrase "ass-protecting" attributed to Mr X where Mr X claimed he had said "CYAing". I discontinued my review on the grounds that the application was frivolous in respect of four of the amendments requested. (I affirmed the Institute's decision in respect of the remaining amendment). In coming to my decision I had regard to the Oxford English Dictionary definition of the word 'frivolous', the nature of the amendment requested and the effect the amendment might have on the meaning of the record. I commented that in this case the amendments sought would either not change the substance or meaning of the content at all or, at most, would achieve an infinitesimal shift on how the information was presented. My decision in this case is currently on appeal to the High Court.

GOVERNMENT RECORDS Fergus O'Dowd T.D. and The Department of Environment, Heritage and Local Government Case No. 030622 This case involved a request by a member of the Oireachtas for access to records relating to drafts of the National Spatial Strategy (NSS). The Department refused the request under section 19 (records of the Government). During the course of the review, the requester agreed to exclude from the scope of his request the draft versions of the NSS, because section 19 clearly applied. He also narrowed his request to the non-factual information in the remaining records at issue. The records at issue included Government Memoranda and other submissions, records that contributed to drafts which were submitted to the Government, records of the Government, briefing material, notes of a discussion at a Government meeting, records relating to the InterDepartmental Steering Committee (IDSC), and records of communication between members of the Government. I accepted that, while not all of the Memoranda for Government were actually submitted to the Government, all of the documents were at least proposed to be submitted to the Government and were created for that purpose. I therefore found the Memoranda for Government to be exempt under section 19(1)(a) and that an appendix that was created as an attachment to a Memorandum for Government was also exempt under section 19(1)(a). However, I observed that another appendix that was circulated with a Memorandum for Government was almost identical to a record that had previously been prepared for the purpose of a presentation to the Minister. I therefore was not satisfied that this appendix was created for the purpose of submission to the Government and found that it was not exempt. As the definitions at section 19(6) specify that a "'record' includes a preliminary or other draft of the whole or part of the material contained in a record", I accepted that section 19(1)(a) also applied to draft Memoranda for Government and drafts of material contained in a Memorandum for Government. In addition, I accepted that a submission to the Government seeking to have consideration of certain documents placed on the agenda for a meeting of the Government was likewise exempt under section 19(1)(a). The Department sought to withhold records comprising comments from various sources on the basis that they also qualified as drafts of material contained in a record submitted to the Government. In accordance with the decision in Case Number 99450 (see www.oic.ie), I accepted that submissions from Ministers and/or Departments made in response to the Department's invitation for observations on a draft Memorandum for Government and a draft of the NSS were exempt under section 19(1)(a). However, other documents were prepared outside the Cabinet process referred to in Case Number 99450. One such document was a submission from an Inter-Agency Planning Managers Group to the Department of Enterprise, Trade and Employment. Another such document was a separate submission from a member of the Inter-Agency Group, IDA Ireland. The file showed that both the draft Memorandum and the draft of the NSS had been circulated to a representative of the Inter-Agency Group for observations. I noted that a submission from the Department of Enterprise, Trade and Employment incorporating the views of the Inter-Agency Group or the IDA could be exempt under section 19(1)(a). However, I did not accept that the Cabinet Handbook provides for the direct solicitation of observations or views on matters being submitted to the Government from parties other than Ministers or Departments except in limited circumstances not present in this case. I also noted that the relevant final Memorandum included no reference to consultation with any parties other than Ministers and Departments and I concluded that the submissions from the Inter-Agency Group and the IDA, as well as the other documents prepared outside the Cabinet process, did not qualify for exemption. The titles of two other records suggested that they were also related to Memoranda for Government. However, the contents of the records showed them to be merely lists of recipients of copies of the Memoranda for Government referred to and I was not satisfied that these records were exempt. Records of the Government were found to be exempt under section 19(1)(b). In addition, I found that section 19(1)(c) applied to records containing information for use by the Minister primarily for briefing purposes in relation to Cabinet meetings and a meeting of a Cabinet Sub-Committee. However, I was not satisfied that section 19 applied to general briefing papers, i.e. where no evidence had been presented to show that the records contained information for use by the Minister primarily for the purpose of the transaction of Government business at a meeting of the Government. I was also not satisfied that section 19 applied to a draft of an "easy guide" to the NSS that was intended for publication as part of the communications strategy.

I found to be exempt under section 19(2) a record consisting of notes of a discussion held at a meeting of the Government, which included statements made by individual members of the Government. The Department claimed that records relating to the IDSC were exempt on the basis that the IDSC met the definition of "Government" under section 19(6)(b). I rejected this claim. While it was apparent that the IDSC was established with Government approval to direct the preparation of the NSS, I found no evidence that the IDSC was certified in accordance with section 19(6)(b)(iii), which requires the Secretary General to the Government to issue the necessary certificate at the time of the appointment of the committee. Lastly, the Department invoked section 19(1)(aa) with respect to a record consisting of communications between members of the Government relating to the preparation of the NSS. Section 19(1)(aa) provides, in pertinent part, a mandatory exemption for records consisting of a communication between two or more members of Government relating to a matter that is under consideration by the Government or is proposed to be submitted to the Government. Section 19(1)(aa) only refers to matters under consideration currently or prospectively; unlike section 19(1)(a), it does not include a matter that has been submitted to or under consideration by the Government. As the NSS had been published and the Department had presented no evidence to show that the matter referred to in the record remained under consideration by the Government or was proposed to be submitted again to the Government, I was not satisfied that section 19(1)(aa) applied. I varied the decision of the Department. CONTROL OF RECORDS Department of Enterprise, Trade & Employment - Case No. 010147 In Case No. 010147, the applicant sought from the Department of Enterprise, Trade and Employment a copy of the internal documentation which was compiled and presented by Waterford City Enterprise Board to its evaluation committee concerning his application for grant assistance in respect of his small business. The Department refused access on the ground that the records sought were created and held by the Board and were not held by the Department. The issue arising was whether records in the possession of the Board could be regarded as being "under the control" of the Department. If they were, then the records would be deemed to be "held" by the Department - as provided for under section 2(5)(a) of the FOI Act - and would thus be potentially accessible under section 6 of the Act. In the decision, I noted that City and County Enterprise Boards, which are companies limited by guarantee, operate under their Memorandum and Articles of Association and a contract, or operating agreement, between the Department and the Boards. I noted that the operating agreement between the Waterford City Enterprise Board and the Department provides for a right of access to all of the records of the Board by the Minister for Enterprise, Trade and Employment and for the Board to furnish the Minister with copies of any relevant documentation requested. I noted that the Board's Articles of Association contained a similar disclosure provision. The Department argued, inter alia, that the fact that the Minister may have access to, and power to obtain copies of, certain documents does not mean that the documents are under his control. I did not accept the Department's argument having regard to the circumstances of the particular case. The Department also argued that a finding that the records held by the Board are under its control would, in effect, extend the FOI Act to the records of City and County Enterprise Boards, bodies which, of themselves, are capable of being prescribed as public bodies for the purposes of the FOI Act. In my decision I found that the wording of section 2(5)(a) was clear and unambiguous, viz. that a reference to records held by a public body includes a reference to records under the control of the body. I found that the Board's records were under the control of the Department. I directed that, subject to any exemptions that the Department may claim and such exemptions being the subject of review by me, access should be granted to all records in the possession of the Waterford City Enterprise Board coming within the scope of the applicant's FOI request. This case was appealed to the High Court by the Department. At the time of compiling this report, the High Court had not yet heard the appeal. In addition, I understand that the Minister for Finance will be asked to designate County Enterprise Boards as public bodies for the purposes of the FOI Act at some stage during 2005.

CHAPTER 5
REVIEW OF THE OPERATION OF THE FREEDOM OF INFORMATION [AMENDMENT] ACT, 2003 REVIEW OF THE OPERATION OF THE FREEDOM OF INFORMATION [AMENDMENT] ACT, 2003.
Following my appointment as Information Commissioner, I undertook to produce a report detailing the effects of the amendments and of the fees. This Report, undertaken within the provisions of section 36 of the FOI Act, was published on 17 June 2004 in conjunction with my Annual Report for 2003. The headline findings of the Report have been well publicised in the meantime: overall usage of the Act has fallen by over 50% while requests for non-personal information have declined by 75%. The decline in the nonpersonal category is particularly marked in relation to journalists. Between the first quarter of 2003 and the first quarter of 2004, the number of requests by journalists fell by 83% and still continues to decline. I should however point out, that the first three months of 2003 witnessed an increase in requests probably in anticipation of restrictive amendments. Nonetheless, so great was the reduction that the total of non-personal requests for the first quarter of 2004 was over 50% less than the lowest quarterly level recorded in the 18 months prior to the introduction of fees. In terms of scrutiny of the actions of Government and public bodies for the last quarter reviewed (Jan-March 2004) journalists submitted only 28 requests per month to Civil Service Departments i.e. 2 requests per month to each Department, compared with 92 requests per month during 2002. The Department of Finance, for example, saw a decline of 90% in journalist requests between the first quarter of 2003 and the first quarter of 2004, and a fall of 60% between the last quarter of 2003 and the first quarter of 2004. In other words, in the first three months of this year the Department. received three requests per month compared with 14 to 18 requests per month in the latter half of 2002. However the change in behaviour is not confined to the media: business requests have also sharply declined as have requests from ordinary citizens and community groups. There were 1,000 fewer requests from this latter category between the first quarter of 2003 and the first quarter of 2004. While I have indicated the complete picture for 2004 in terms of my own Office in Chapter Two, it was clear from the Investigation Report that a significant decline in appeals relating to non-personal information was underway (50%). I regard this as a very serious matter not just for the requesters who have almost certainly been deterred by the high cost of appealing to my office, but also for my role in relation to monitoring the working of the Act. I do not believe that the Oireachtas could have anticipated so great a decline in usage of the Act when amending the Act and approving the scale of fees to be charged. I believe that so great has the decline in usage been that a review of the scale and structure of the charges, particularly in relation to my Office should be undertaken. I should point out that Ireland is very much in the minority in charging fees for internal review and for an appeal to the Information Commissioner. In eight comparable jurisdictions looked at as part of the investigation, Ireland proved to be the only country which charges for internal review and is one of just two jurisdictions that charges for an appeal to the Information Commissioner. The other jurisdiction, Ontario, charges just €15.60 for a nonpersonal appeal compared with €150 here. In the context of a future review, I said in the Report that consideration should be given to the waiving of fees in respect of certain types of requests by Oireachtas members and by the media.

In calling for such a review I was aware that legislative change is a matter for the Oireachtas. However, my hope was and is that this report would prompt a full and informed debate both within the Oireachtas and amongst the public in general, to clarify what we would like the function of FOI to be, both for now and into the future. WHERE TO NOW? This debate has already begun. On 7 July 2004 the Taoiseach indicated that he believed that some of the current approaches to charges deserved further scrutiny. On the same date, I was given the opportunity to speak about the Report to the Joint Oireachtais Committee on Finance and the Public Service. In terms of its longer-term impact, the media has viewed the Report as a significant contribution to the national debate on the topic and have called for a review of the Act and the level of fees. REPORT OF IDWG WORKING GROUP The Subgroup of the FOI Inter-Departmental Working Group, established to consider my recommendations, published its Report last September. In general, the Subgroup found my Review to be positive from the perspective of public bodies. In framing its response to my recommendations the Subgroup noted that many of them were directed at persons or bodies other than those in the public service while others relate to policy matters to do with the Minister for Finance. The Report is available at www.foi.gov.ie. I have outlined below what I see as the key responses within its ambit of responsibility: APPLICATION FEES The Subgroup 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 FOI information publications might only serve to confuse. However, the Subgroup noted that detailed information on all charges under FOI, including the treatment of multiple applications, is contained in CPU Notice 11. The Subgroup agreed to make this document available to Comhairle in the belief that it could make a significant contribution to increasing awareness of this issue and of information in relation to fees generally. Insofar as consistency of charging was concerned, the Subgroup 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 feels that this information is well disseminated amongst FOI practitioners. REFUND OF FEES WHERE DECISIONS OVERTURNED The Subgroup noted there is no provision in the FOI legislation for the refund of fees in these circumstances. It felt, however, 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. In addition, the Subgroup 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.

HANDLING REQUESTS OUTSIDE FOI The Subgroup noted that CPU Notice 5 sets out clear guidelines on the release of information outside of FOI. 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 Subgroup felt that the apparent reduction in the number of requests handled outside of FOI could be explained by the amount of requests received without an accompanying fee (and therefore not recorded as FOI requests). The Subgroup felt that it might be possible to reflect this activity statistically. DECISION-MAKING PROCESS The Subgroup welcomed the remarks in relation to the behaviour of public bodies and their employees which stated that that there had been no change in their approach to the operation of the Act both since its amendment and the introduction of fees. The Subgroup indicated that my finding that more needs to be done in terms of explaining exemptions and applying them to records is being addressed. The CPU, in co-operation 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. Some new courses have been operational since April 2003. 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 Subgroup 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. RECORDS MANAGEMENT The Subgroup noted that 10 out of the 17 public bodies reviewed as part of the qualitative phase of my Investigation had a form of records management policy in place. It also noted my intention to contact directly the only public body which does not have a quality checking procedure in place. 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. 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 time-scale, the Group noted that CMOD propose to circulate a final document to Government Departments via Decentralisation Liaison Officers shortly. I see the IDWG Report as a welcome development and believe that when the various initiatives work through the system they will have a positive effect on the FOI experience both for requesters and staff of public bodies charged with its implementation.

The full report and methodology used is available at www.oic.ie.

CHAPTER 6
STATISTICS
INDEX TO TABLES
SECTION I - PUBLIC BODIES Table 1 OVERVIEW OF FOI REQUESTS DEALT WITH BY PUBLIC BODIES - 2004 Table 2 FOI REQUESTS DEALT WITH BY PUBLIC BODIES AND SUBSEQUENTLY APPEALED - 2004 Table 3 FOI REQUESTS RECEIVED, ANALYSED BY REQUESTER TYPE - 2004 Table 4 OVERVIEW OF REQUESTS DEALT WITH BY PUBLIC BODIES - 2004 Table 5 ANALYSIS OF REQUESTS DEALT WITH BY PUBLIC SERVICE SECTOR - 2004 Table 6 FOI REQUESTS RECEIVED BY CIVIL SERVICE DEPARTMENTS - 2004 Table 7 FOI REQUESTS RECEIVED BY LOCAL AUTHORITIES - 2004 Table 8 FOI REQUESTS RECEIVED BY HEALTH BOARDS - 2004 Table 9 FOI REQUESTS RECEIVED BY VOLUNTARY HOSPITALS, MENTAL HEALTH SERVICES OTHER RELATED AGENCIES - 2004 Table 10 FOI REQUESTS RECEIVED BY THIRD LEVEL EDUCATION BODIES - 2004 Table 11 FOI REQUESTS RECEIVED BY OTHER BODIES - 2004 Table 12 FEES DEALT WITH BY PUBLIC BODIES - 2004

AND

(Note: Figures for the above tables supplied by the Civil Service User’s Network, the National FOI Liaison Group for Health Boards, the Local Authorities FOI Liaison Group, the Department of Health and Children, the National Federation of Voluntary Bodies and the Liaison Group for the Higher Education Sector and collated by the Office of the Information Commissioner.)

SECTION II - OFFICE OF THE INFORMATION COMMISSIONER Table 13 ANALYSIS OF REVIEW APPLICATIONS RECEIVED - 2004 Table 14 ANALYSIS OF REVIEW CASES - 2004 Table 15 APPLICATIONS FOR REVIEW ACCEPTED BY THE INFORMATION COMMISSIONER, ANALYSED BY PUBLIC BODY - 2004 Table 16 OUTCOME OF COMPLETED REVIEWS - THREE YEAR COMPARISON Table 17 SUBJECT MATTER OF REVIEW APPLICATIONS ACCEPTED - THREE YEAR COMPARISON Table 18 APPLICATIONS ACCEPTED BY TYPE - THREE YEAR COMPARISON Table 19 PHONE/GENERAL ENQUIRIES

STATISTICS 2004 – SECTION 1
TABLE 1: OVERVIEW OF FOI REQUESTS DEALT WITH BY PUBLIC BODIES 2004
Requests on hand - 01/01/2004 Requests received in 2004 Personal Non-personal Mixed Total Total requests on hand during year Requests dealt with Requests on hand - 31/12/2004 6224* 9137 3191 269 12597 18821 13313 5508

* Certain bodies adjusted their figures for live cases on hand at end of 2003.

2. FOI REQUESTS DEALT WITH BY PUBLIC BODIES AND SUBSEQUENTLY APPEALED - 2004
Number FOI requests dealt with by public bodies Internal reviews received by public bodies Applications accepted by the Commissioner 13313 783 333 Percentage 100% 6% 2.5%

3. FOI REQUESTS RECEIVED - ANALYSED BY REQUESTER TYPE - 2004
Requesters Journalists Business Oireachtas Members Staff of Public Body Clients Others Total received - 2004 Number 870 964 110 927 5769 3957 12597 Percentage 7% 8% 1% 7% 46% 31% 100%

4. OVERVIEW OF REQUESTS DEALT WITH BY PUBLIC BODIES - 2004
Number 6388 3278 2189 193 1265 13313 Percentage 48% 25% 16% 1.5% 9.5% 100%

Requests granted Requests part-granted Requests refused Requests transferred to appropriate body Requests withdrawn or handled outside FOI Total dealt with - 2004

5. ANALYSIS OF REQUESTS DEALT WITH BY PUBLIC SERVICE SECTOR – 2004
Percentage granted Percentage part-granted Percentage refused Percentage transferred Percentage withdrawn or handled outside of FOI 11% 9% 4% 14.5% Total

Civil Service Departments Local Authorities Health Boards Voluntary Hospitals, Mental Health Services and related agencies Third Level Institutions Other Bodies

30% 59% 65% 63.5%

34.5% 17% 17% 11%

23.5% 14% 11% 10%

1% 1% 3% 1%

100% 100% 100% 100%

69% 31%

14% 39%

11% 11%

0% 1%

6% 18%

100% 100%

6. FOI REQUESTS RECEIVED BY CIVIL SERVICE DEPARTMENTS – 2004
Public Body Department of Education and Science Department of Social and Family Affairs Department of Health and Children Department of Justice, Equality and Law Reform Department of Agriculture and Food Defence Forces Department of Communications, Marine and Natural Resources Department of the Environment and Local Government Office of the Revenue Commissioners Department of Finance Department of Arts, Sport and Tourism Department of Enterprise, Trade and Employment Department of Defence Department of Foreign Affairs Department of the Taoiseach Department of Transport Department of Community, Rural and Gaeltacht Affairs Office of Public Works Civil Service Commission Local Appointments Commission Office of the Houses of the Oireachtas Office of the Information Commissioner Office of the Director of Public Prosecutions Office of the Attorney General Central Statistics Office Office of the Appeals Commissioner for the Tax Acts Office of the Chief State Solicitor Office of the Director of Consumer Affairs Office of the Ombudsman Ordinance Survey Ireland Office of the Commissioner of Valuation and Boundary Survey of Ireland Office of the Comptroller and Auditor General Office of the Director of Corporate Enforcement Office of the Registrar of Friendly Societies Total Received - 2004 Personal 1696 537 301 348 200 191 14 12 64 11 1 13 16 14 2 2 1 1 5 9 5 5 6 2 2 0 1 0 2 1 0 Non-personal 140 22 145 96 65 7 102 100 47 67 69 49 28 31 43 41 38 38 4 1 7 4 2 4 3 4 2 3 0 1 1 Mixed 4 0 0 0 6 4 0 0 0 0 0 0 5 0 0 0 1 1 8 6 0 2 0 0 0 0 0 0 0 0 0 Total 1840 559 446 444 271 202 116 112 111 78 70 62 49 45 45 43 40 40 17 16 12 11 8 6 5 4 3 3 2 2 1

0 0 0 3462

1 0 0 1165

0 0 0 37

1 0 0 4664

7. FOI REQUESTS RECEIVED BY LOCAL AUTHORITIES* - 2004
Local Authority Dublin City Council Cork County Council Galway County Council Dún Laoghaire - Rathdown Meath Mayo Clare Galway City Council Fingal County Council Kerry Donegal South Dublin County Council Wicklow Wexford Limerick City Council Cork City Council Sligo Kilkenny Louth Waterford County Council Westmeath Limerick County Council Laois Kildare Roscommon Tipperary SR Offaly Leitrim Monaghan Tipperary NR Waterford City Council Carlow Longford Cavan Total Regional Authorities Regional Assemblies Personal 94 17 24 22 19 8 8 27 8 1 12 7 12 7 18 22 9 10 10 9 9 1 13 6 8 12 6 7 2 1 6 1 0 3 419 2 0 Non-personal 68 106 51 46 50 57 55 34 50 49 43 35 27 28 18 14 26 24 22 25 19 29 16 21 17 11 13 11 13 8 6 9 9 5 1015 8 2 Mixed 3 0 1 4 0 1 2 0 1 9 0 1 1 4 1 0 0 0 2 0 6 2 0 0 2 0 0 0 0 6 0 0 1 0 47 0 0 Total 165 123 76 72 69 66 65 61 59 59 55 43 40 39 37 36 35 34 34 34 34 32 29 27 27 23 19 18 15 15 12 10 10 8 1481 10 2

* Figures include, where appropriate, FOI requests received by Town Councils

8. FOI REQUESTS RECEIVED BY HEALTH BOARDS - 2004
Health Board Southern North Western Western South Eastern North Eastern Mid Western Northern Area Midland South Western East Coast Area Eastern Health Shared Services Eastern Regional Health Authority Corporate Total Received - 2004 Personal 698 500 428 376 294 294 194 196 119 67 5 1 3172 Non-personal 33 37 28 25 49 32 39 24 31 25 3 6 332 Mixed 1 4 0 0 0 0 0 0 0 10 0 0 15 Total 732 541 456 401 343 326 233 220 150 102 8 7 3519

9. FOI REQUESTS RECEIVED BY VOLUNTARY HOSPITALS, MENTAL HEALTH SERVICES AND OTHER RELATED AGENCIES - 2004
Public Body Mater Misericordiae Hospital Mercy Hospital, Cork St James Hospital Tallaght Hospital (Adelaide and Meath Hospital, Incorporating the National Children’s Hospital) Beaumont Hospital Rotunda Hospital South Infirmary - Victoria Hospital Ltd, Cork St Vincents University Hospital Our Lady’s Hospital for Sick Children, Crumlin Coombe Women’s Hospital Royal Victoria Eye and Ear Hospital The Children’s Hospital, Temple Street National Maternity Hospital, Holles Street Cappagh National Orthopaedic Hospital, Dublin St John’s Hospital, Limerick Brothers of Charity, Cork Daughters of Charity Services Hospitaller Order of St John of God St Mary’s Hospital, Baldoyle Enable Ireland Brothers of Charity, Galway COPE Foundation St Vincent’s Hospital, Fairview St Lukes Hospital, Rathgar National Rehabilitation Hospital Dublin Dental Hospital Board St Michael’s Hospital, Dun Laoghaire Brothers of Charity, Limerick Central Remedial Clinic Sunbeam House Services Food Safety Authority of Ireland Brothers of Charity, Waterford Others (31 bodies with less than 3 requests each) Total Received - 2004 Personal 164 158 123 123 Non-personal 14 1 16 16 Mixed 0 0 0 0 Total 178 159 139 139

110 128 112 98 80 39 51 47 36 37 32 31 28 23 15 11 15 11 10 5 4 7 6 5 4 4 1 3 14 1535

24 2 1 10 7 13 0 2 3 0 1 0 0 0 0 4 0 0 0 4 3 0 0 0 0 0 2 0 1 124

0 2 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 4

134 132 113 108 87 52 51 49 39 37 33 32 28 23 15 15 15 11 10 9 8 7 6 5 4 4 3 3 15 1663

10. FOI REQUESTS RECEIVED BY THIRD LEVEL EDUCATION BODIES - 2004
Third Level Education Body University of Limerick Dublin Institute of Technology University College Dublin University College Cork Waterford Institute of Technology Dublin University (Trinity College) National University of Ireland, Maynooth National University of Ireland, Galway Sligo Institute of Technology Dublin City University Galway-Mayo Institute of Technology Athlone Institute of Technology Limerick Institute of Technology St Patricks College, Drumcondra Tipperary Institute Cork Institute of Technology Higher Education Authority Institute of Technology, Tralee Letterkenny Institute of Technology Institute of Technology, Blanchardstown Institute of Technology, Carlow Colaiste Mhuire, Marino Mary Immaculate College, Limerick Dun Laoghaire Institute of Art, Design and Technology Institute of Technology, Tallaght Dundalk Institute of Technology Others (6 bodies with less than 3 requests each) Total Personal 53 45 26 22 21 17 26 13 25 11 14 5 11 10 7 6 0 1 1 2 2 4 1 1 0 1 0 325 Non-personal 13 7 17 19 16 15 5 16 4 11 3 11 4 3 5 2 7 3 4 2 3 0 3 2 3 2 4 184 Mixed 1 0 1 1 0 1 0 0 0 0 0 0 0 1 0 0 0 2 0 1 0 0 0 0 0 0 0 8 Total 67 52 44 42 37 33 31 29 29 22 17 16 15 14 12 8 7 6 5 5 5 4 4 3 3 3 4 517

11. FOI REQUESTS RECEIVED BY OTHER BODIES - ANALYSED BY PUBLIC BODY - 2004
Public Body Health and Safety Authority Social Welfare Appeals Office RTE The Courts Service FAS Teagasc Land Registry and Registry of Deeds Broadcasting Commission of Ireland Chief Medical Officer for the Civil Service Commission for Communications Regulation Údaras Na Gaeltachta Comhairle na nOspidéal National Roads Authority Arts Council Blood Transfusion Service Board The Railway Procurement Agency An Bord Pleanála Irish Sports Council Fáilte Ireland Enterprise Ireland Environmental Protection Agency Irish Medicines Board Local Government Computer Services Board Probation and Welfare Service Equality Authority Board of National Library of Ireland Horse Racing Ireland Area Development Management Limited The Central Fisheries Board Commission for Electricity Regulation IDA Ireland Shannon Free Airport Development Ltd Competion Authority Campus & Stadium Ireland Development Ltd Legal Aid Board Others (70 bodies with less than 3 requests each ) Total Received - 2004 Personal 7 49 18 25 15 21 24 0 23 5 0 0 0 0 4 0 3 0 2 1 1 0 1 6 1 1 1 0 1 0 1 0 0 0 3 9 222 Non-personal 80 0 21 6 14 3 2 23 0 17 14 16 15 14 7 11 7 10 7 8 8 9 3 0 5 5 4 5 4 5 4 5 4 3 0 22 361 Mixed 146 0 0 0 1 3 0 0 0 0 3 0 0 0 0 0 0 0 0 0 0 0 4 0 0 0 0 0 0 0 0 0 0 0 0 1 158 Total 233 49 39 31 30 27 26 23 23 22 17 16 15 14 11 11 10 10 9 9 9 9 8 6 6 6 5 5 5 5 5 5 4 3 3 32 741

12. FEES DEALT WITH BY PUBLIC BODIES – 2004
Original Request € 15725 14300 4060 1140 2575 7725 45525 Internal Review € 5425 3675 350 75 600 1700 11825 Search & Retrieval € 12303.91 1540.68 891 2711.94 484.10 5800.98 23732.61

Civil Service Departments Local Authorities Health Boards Voluntary Hospitals Mental Health Services and related agencies Third Level Institutions Other Bodies Total

Refunds € 1379.83 585 0 15 200 1501.12 3680.95

TABLE 13 - ANALYSIS OF REVIEW APPLICATIONS RECEIVED – 2004
Applications for Review on hand - 1/1/2004 Applications for Review received in 2004 Total applications for review on hands in 2004 Invalid applications Applications withdrawn Applications rejected Applications accepted for review in 2004 Total applications for review considered in 2004 Applications for Review on hand - 31/12/2004

56 434 490 81 42 13 333 469 21

TABLE 14 - ANALYSIS OF REVIEW CASES – 2004
Reviews on hand - 1/1/2004 Applications accepted for review in 2004 Total reviews on hand in 2004 Reviews completed Reviews on hand - 31/12/2004 796 333 1129 628 501

TABLE 15 – APPLICATIONS FOR REVIEW ACCEPTED BY THE INFORMATION COMMISSIONER – ANALYSED BY PUBLIC BODY– 2004
Body Number of Reviews accepted in 2004 44 33 21 20 17 12 12 9 8 8 7 6 6 6 6 4 4 4 4 4 4 4 4 3 3 3 3 3 2 2 2 2 2 2 2 2 2 2 2 2 2 2 1 1 1 1 1 1 1 1

Department of Education and Science Department of Justice, Equality and Law Reform Department of Health & Children Southern Health Board Department of Agriculture and Food Dublin Institute of Technology South Eastern Health Board Department of the Environment, Heritage and Local Government Mid-Western Health Board North Eastern Health Board Dublin City Council Department of Social and Family Affairs East Coast Area Health Board Midland Health Board Office of the Revenue Commissioners Cork County Council Defence Forces Department of Communications, Marine & Natural Resources Department of Transport North Western Health Board Northern Area Health Board Rotunda Hospital University College Dublin Cork City Council Department of Finance Galway City Council Health and Safety Authority South Western Area Health Board Area Development Management Limited Beaumont Hospital Broadcasting Commission of Ireland Commission for Communications Regulation Commission for Energy Regulation Fingal County Council Galway-Mayo Institute of Technology Irish Medicines Board Legal Aid Board Mater Misericordiae Hospital Limited Office of the Director of Public Prosecutions Údarás na Gaeltachta University of Limerick Wicklow County Council Adelaide and Meath Hospital Incorporating The National Children's Hospital An Bord Pleanála Athlone Institute of Technology Ballinasloe Town Council Brothers of Charity Services Coombe Women's Hospital Cork Institute of Technology Department of Arts, Sport and Tourism

Department of Community, Rural and Gaeltacht Affairs Department of Defence Department of Foreign Affairs Dublin City University Dundalk Institute of Technology Enterprise Ireland Environmental Protection Agency Failte Ireland FÁS Galway County Council Industrial Development Agency Institute of Technology Sligo Institute of Technology Tralee Kerry County Council Kilkenny City Council Labour Relations Commission Laois County Council Limerick City Council Louth County Council Mayo County Council Meath County Council National Museum of Ireland Office of Public Works Office of the Civil Service & Local Appointments Commissioners Office of the Houses of the Oireachtas Roscommon County Council RTÉ Shannon Development Social Welfare Appeals Office St James Hospital St Vincent's Hospital The Irish Blood Transfusion Service Board Western Health Board Wexford Borough Council Wexford County Council Total

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 333

TABLE 16 – OUTCOME OF COMPLETED REVIEWS – THREE YEAR COMPARISON
2002 Decision affirmed Decision varied Discontinued Settlement reached Withdrawn Reviews completed 166 60 20 131 157 534 % 31.09% 11.24% 3.75% 24.53% 29.40% 100.00% 2003 270 54 34 154 216 728 % 37.09% 7.42% 4.67% 21.15% 29.67% 100.00% 2004 376 30 13 32 177 628 % 59.87% 4.78% 2.07% 5.10% 28.18% 100.00%

TABLE 17 - SUBJECT MATTER OF REVIEW APPLICATIONS ACCEPTED – THREE YEAR COMPARISON
2002 Refusal of access Objections by third parties to release of information about them or supplied by them Amendment of records under section 17 Statement of reasons under section 18 Decision to charge a fee Applications Accepted 508 28 % 86.8% 4.8% 2003 846 27 % 92% 3% 2004 258 29 % 77.48% 8.71%

24 22 3 585

4.1% 3.8% 0.5% 100%

23 18 8 922

2% 2% 1% 100%

20 25 1 333

6.01% 7.51% 0.30% 100.00%

TABLE 18 - APPLICATIONS ACCEPTED BY TYPE - THREE YEAR COMPARISON
2002 Personal Non Personal Mixed Total 313 217 55 585 % 53.5% 37.1% 9.4% 100.00% 2003 649 206 67 922 % 70% 22% 7% 100.00% 2004 160 123 50 333 % 48.05% 36.94% 15.02% 100.00%

TABLE 19 - PHONE / GENERAL ENQUIRIES
Year 1999 2000 2001 2002 2003 2004 Total No 130 799 1136 1047 1090 1306 5508

STAFF
DIRECTOR GENERAL Pat Whelan SENIOR INVESTIGATORS Fintan Butler Liam Kelly INVESTIGATORS Ciara Burns Melanie Campbell Liz Dolan Cathal Duffy Maria Dunne Anne Moran David Nutley Marie O’Brien Des O’Neill Stephen Rafferty Colin Stokes Aimeé Tallon

SUPPORT UNIT Roseanne Brown Mary Byrne Chris Cogan Frank Forde Evelyn Hernon Elizabeth Martin Stephanie O’Connell David Stone

INDEX
INDEX OF PUBLIC BODIES FEATURED IN CASES REFERRED TO IN THIS ANNUAL REPORT • • • • • • • • • • • • • Adelaide & Meath Hospital (Tallaght) Department of Communications, Marine & Natural Resources Department of Education & Science Department of Enterprise, Trade & Employment Department of Environment, Heritage & Local Government Eastern Health Board Institute of Technology Naas Town Council National Maternity Hospital Holles Street North Eastern Health Board Radio Telefís Éireann St. James’s Hospital South Eastern Health Board 20, 21 22 22, 29 31 30 26 30 19 17, 27 28 21 20 25

(See also Contents, page 2)


								
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