OFFICE OF THE INFORMATION COMMISSIONER by dnm98994

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									OFFICE OF THE INFORMATION COMMISSIONER
ANNUAL REPORT 2004
CONTENTS
CHAPTER 1       INTRODUCTION


CHAPTER 2       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       STATISTICS
APPENDIX        REPORT OF MINISTERIAL CERTIFICATES ISSUED UNDER SECTION 25
STAFF
INDEX
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 co-
operation 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             2003                2004
Department of Education and Science (1)                      1938             2736                1840
Southern Health Board (3)                                     569              782                 732
Department of Social and Family Affairs (6)                   670              593                 559
North-Western Health Board (10)                               351              405                 541
Western Health Board (5)                                      565              608                 456
Department of Health and Children (2)                         997              834                 446
Department of Justice, Equality and Law Reform (4)            660              636                 444
South-Eastern Health Board (9)                                297              440                 401
North-Eastern Health Board (8)                                416              476                 343
Mid-Western Health Board (7)                                  291              506                 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                                     2003                   2004                 (03-04)
Department of Taoiseach                  141                    142                  45           -68%
Department of Finance                    326                    305                  78           -75%
Department of Enterprise,
Trade and Employment                     205                    153                  62           -59%



TYPE OF REQUEST


                       Type of Reque st
 100
  90
  80                                                      73
  70                                                                    Personal
                                                  59
  60    52       55      52              52
                                 51                                   Non Personal
  50    45       44      46      46      46
                                                  39
  40                                                                     Mixed
  30                                                      25
  20
  10     3               2       3        2       2       2
                 1
   0
        1998    1999    2000    2001     2002    2003    2004



As the above graph illustrates, the proportion of requests for personal information began to outnumber non-
personal 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 late-
2003 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      €150               €50

Appeal by Third Party
in 'section 29 ' cases    €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                   Section 37   Section 35
Cork City Council                    1        0
Naas Town Council                    1        0
National Maternity Hospital          1        0
Department of Justice,
Equality & Law Reform                1        0
Department of the Marine
& Natural Resources                  1        0
Department of Social &
Family Affairs                       1        0
University of Limerick               0        1
Total: 2004                          6        1
Total: 2003                          4        2
Total: 2002                          12       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 part-
time 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 non-
disclosure 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 Inter-
Departmental 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 non-
personal 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 non-
personal 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                                                      AND
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

(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                                                            6224*
 Requests received in 2004
                Personal                                          9137
             Non-personal                                         3191
                 Mixed                                             269
 Total                                                                                    12597
 Total requests on hand during year                                                       18821
 Requests dealt with                                                                      13313
 Requests on hand - 31/12/2004                                                             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                    Percentage
 FOI requests dealt with by public
 bodies                                                 13313                      100%
 Internal reviews received by public
 bodies                                                  783                        6%
 Applications accepted by the
 Commissioner                                            333                       2.5%


3. FOI REQUESTS RECEIVED - ANALYSED BY REQUESTER TYPE - 2004

               Requesters                              Number                    Percentage
 Journalists                                              870                        7%
 Business                                                 964                        8%
 Oireachtas Members                                       110                        1%
 Staff of Public Body                                     927                        7%
 Clients                                                 5769                       46%
 Others                                                  3957                       31%
 Total received - 2004                                  12597                      100%



4. OVERVIEW OF REQUESTS DEALT WITH BY PUBLIC BODIES - 2004

                                                       Number                    Percentage
 Requests granted                                       6388                        48%
 Requests part-granted                                  3278                        25%
 Requests refused                                       2189                        16%
 Requests transferred to appropriate
 body                                                    193                       1.5%
 Requests withdrawn or handled
 outside FOI                                            1265                       9.5%
 Total dealt with - 2004                                13313                      100%
5. ANALYSIS OF REQUESTS DEALT WITH BY PUBLIC SERVICE SECTOR – 2004

                       Percentage   Percentage     Percentage   Percentage      Percentage      Total
                        granted     part-granted    refused     transferred    withdrawn or
                                                                              handled outside
                                                                                  of FOI
Civil Service             30%          34.5%         23.5%          1%             11%          100%
Departments
Local Authorities         59%          17%            14%           1%             9%           100%
Health Boards             65%          17%            11%           3%             4%           100%
Voluntary Hospitals,     63.5%         11%            10%           1%            14.5%         100%
Mental Health
Services and
related agencies
Third Level               69%          14%            11%           0%              6%          100%
Institutions
Other Bodies              31%          39%            11%           1%             18%          100%
6. FOI REQUESTS RECEIVED BY CIVIL SERVICE DEPARTMENTS – 2004

              Public Body                Personal   Non-personal   Mixed   Total
Department of Education and Science        1696         140          4     1840
Department of Social and Family            537           22          0      559
Affairs
Department of Health and Children          301          145          0     446
Department of Justice, Equality and        348           96          0     444
Law Reform
Department of Agriculture and Food         200           65          6     271
Defence Forces                             191           7           4     202
Department of Communications,              14           102          0     116
Marine and Natural Resources
Department of the Environment and          12           100          0     112
Local Government
Office of the Revenue Commissioners        64           47           0     111
Department of Finance                      11           67           0      78
Department of Arts, Sport and Tourism      1            69           0      70
Department of Enterprise, Trade and        13           49           0      62
Employment
Department of Defence                      16           28           5      49
Department of Foreign Affairs              14           31           0      45
Department of the Taoiseach                2            43           0      45
Department of Transport                    2            41           0      43
Department of Community, Rural and         1            38           1      40
Gaeltacht Affairs
Office of Public Works                      1           38           1      40
Civil Service Commission                    5           4            8      17
Local Appointments Commission               9           1            6      16
Office of the Houses of the Oireachtas      5           7            0      12
Office of the Information                   5           4            2      11
Commissioner
Office of the Director of Public            6            2           0      8
Prosecutions
Office of the Attorney General              2            4           0      6
Central Statistics Office                   2            3           0      5
Office of the Appeals Commissioner          0            4           0      4
for the Tax Acts
Office of the Chief State Solicitor         1            2           0      3
Office of the Director of Consumer          0            3           0      3
Affairs
Office of the Ombudsman                     2            0           0      2
Ordinance Survey Ireland                    1            1           0      2
Office of the Commissioner of               0            1           0      1
Valuation and Boundary Survey of
Ireland
Office of the Comptroller and Auditor       0            1           0      1
General
Office of the Director of Corporate         0            0           0      0
Enforcement
Office of the Registrar of Friendly         0            0           0      0
Societies
Total Received - 2004                     3462         1165         37     4664
7. FOI REQUESTS RECEIVED BY LOCAL AUTHORITIES* - 2004

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

* Figures include, where appropriate, FOI requests received by Town Councils
8. FOI REQUESTS RECEIVED BY HEALTH BOARDS - 2004

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

             Public Body                   Personal   Non-personal   Mixed   Total
Mater Misericordiae Hospital                 164           14          0      178
Mercy Hospital, Cork                         158           1           0      159
St James Hospital                            123           16          0      139
Tallaght Hospital (Adelaide and Meath        123           16          0      139
Hospital, Incorporating the National
Children’s Hospital)
Beaumont Hospital                            110          24          0      134
Rotunda Hospital                             128          2           2      132
South Infirmary - Victoria Hospital Ltd,     112          1           0      113
Cork
St Vincents University Hospital              98           10          0      108
Our Lady’s Hospital for Sick Children,       80           7           0      87
Crumlin
Coombe Women’s Hospital                      39           13          0       52
Royal Victoria Eye and Ear Hospital          51           0           0       51
The Children’s Hospital, Temple              47           2           0       49
Street
National Maternity Hospital, Holles          36            3          0       39
Street
Cappagh National Orthopaedic                 37            0          0       37
Hospital, Dublin
St John’s Hospital, Limerick                 32            1          0       33
Brothers of Charity, Cork                    31            0          1       32
Daughters of Charity Services                28            0          0       28
Hospitaller Order of St John of God          23            0          0       23
St Mary’s Hospital, Baldoyle                 15            0          0       15
Enable Ireland                               11            4          0       15
Brothers of Charity, Galway                  15            0          0       15
COPE Foundation                              11            0          0       11
St Vincent’s Hospital, Fairview              10            0          0       10
St Lukes Hospital, Rathgar                   5             4          0       9
National Rehabilitation Hospital             4             3          1       8
Dublin Dental Hospital Board                 7             0          0       7
St Michael’s Hospital, Dun Laoghaire         6             0          0       6
Brothers of Charity, Limerick                5             0          0       5
Central Remedial Clinic                      4             0          0       4
Sunbeam House Services                       4             0          0       4
Food Safety Authority of Ireland             1             2          0       3
Brothers of Charity, Waterford               3             0          0       3
Others (31 bodies with less than 3           14            1          0       15
requests each)
Total Received - 2004                       1535          124         4      1663
10. FOI REQUESTS RECEIVED BY THIRD LEVEL EDUCATION BODIES - 2004

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

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

                                    Original   Internal   Search &
                                    Request    Review     Retrieval   Refunds
                                       €           €          €          €
Civil Service Departments            15725       5425     12303.91    1379.83
Local Authorities                    14300       3675      1540.68      585
Health Boards                         4060        350        891         0
Voluntary Hospitals Mental Health     1140         75      2711.94       15
Services and related agencies
Third Level Institutions              2575       600        484.10      200
Other Bodies                          7725      1700       5800.98    1501.12
Total                                45525     11825      23732.61    3680.95
TABLE 13 - ANALYSIS OF REVIEW APPLICATIONS RECEIVED – 2004

Applications for Review on hand - 1/1/2004          56
Applications for Review received in 2004           434

Total applications for review on hands in 2004     490

Invalid applications                                81
Applications withdrawn                              42
Applications rejected                               13
Applications accepted for review in 2004           333

Total applications for review considered in 2004   469

Applications for Review on hand - 31/12/2004        21



TABLE 14 - ANALYSIS OF REVIEW CASES – 2004

Reviews on hand - 1/1/2004                          796
Applications accepted for review in 2004            333

Total reviews on hand in 2004                      1129
Reviews completed                                   628
Reviews on hand - 31/12/2004                        501
TABLE 15 – APPLICATIONS FOR REVIEW ACCEPTED BY THE INFORMATION
COMMISSIONER – ANALYSED BY PUBLIC BODY– 2004

                                  Body                               Number of Reviews
                                                                      accepted in 2004

 Department of Education and Science                                        44
 Department of Justice, Equality and Law Reform                             33
 Department of Health & Children                                            21
 Southern Health Board                                                      20
 Department of Agriculture and Food                                         17
 Dublin Institute of Technology                                             12
 South Eastern Health Board                                                 12
 Department of the Environment, Heritage and Local Government                9
 Mid-Western Health Board                                                    8
 North Eastern Health Board                                                  8
 Dublin City Council                                                         7
 Department of Social and Family Affairs                                     6
 East Coast Area Health Board                                                6
 Midland Health Board                                                        6
 Office of the Revenue Commissioners                                         6
 Cork County Council                                                         4
 Defence Forces                                                              4
 Department of Communications, Marine & Natural Resources                    4
 Department of Transport                                                     4
 North Western Health Board                                                  4
 Northern Area Health Board                                                  4
 Rotunda Hospital                                                            4
 University College Dublin                                                   4
 Cork City Council                                                           3
 Department of Finance                                                       3
 Galway City Council                                                         3
 Health and Safety Authority                                                 3
 South Western Area Health Board                                             3
 Area Development Management Limited                                         2
 Beaumont Hospital                                                           2
 Broadcasting Commission of Ireland                                          2
 Commission for Communications Regulation                                    2
 Commission for Energy Regulation                                            2
 Fingal County Council                                                       2
 Galway-Mayo Institute of Technology                                         2
 Irish Medicines Board                                                       2
 Legal Aid Board                                                             2
 Mater Misericordiae Hospital Limited                                        2
 Office of the Director of Public Prosecutions                               2
 Údarás na Gaeltachta                                                        2
 University of Limerick                                                      2
 Wicklow County Council                                                      2
 Adelaide and Meath Hospital Incorporating The National Children's           1
 Hospital
 An Bord Pleanála                                                            1
 Athlone Institute of Technology                                             1
 Ballinasloe Town Council                                                    1
 Brothers of Charity Services                                                1
 Coombe Women's Hospital                                                     1
 Cork Institute of Technology                                                1
 Department of Arts, Sport and Tourism                                       1
Department of Community, Rural and Gaeltacht Affairs              1
Department of Defence                                             1
Department of Foreign Affairs                                     1
Dublin City University                                            1
Dundalk Institute of Technology                                   1
Enterprise Ireland                                                1
Environmental Protection Agency                                   1
Failte Ireland                                                    1
FÁS                                                               1
Galway County Council                                             1
Industrial Development Agency                                     1
Institute of Technology Sligo                                     1
Institute of Technology Tralee                                    1
Kerry County Council                                              1
Kilkenny City Council                                             1
Labour Relations Commission                                       1
Laois County Council                                              1
Limerick City Council                                             1
Louth County Council                                              1
Mayo County Council                                               1
Meath County Council                                              1
National Museum of Ireland                                        1
Office of Public Works                                            1
Office of the Civil Service & Local Appointments Commissioners    1
Office of the Houses of the Oireachtas                            1
Roscommon County Council                                          1
RTÉ                                                               1
Shannon Development                                               1
Social Welfare Appeals Office                                     1
St James Hospital                                                 1
St Vincent's Hospital                                             1
The Irish Blood Transfusion Service Board                         1
Western Health Board                                              1
Wexford Borough Council                                           1
Wexford County Council                                            1

Total                                                            333
TABLE 16 – OUTCOME OF COMPLETED REVIEWS – THREE YEAR
COMPARISON

                           2002     %       2003     %       2004      %

Decision affirmed          166    31.09%    270    37.09%    376    59.87%
Decision varied             60    11.24%    54      7.42%     30     4.78%
Discontinued                20    3.75%     34      4.67%     13     2.07%
Settlement reached         131    24.53%    154    21.15%     32     5.10%
Withdrawn                  157    29.40%    216    29.67%    177    28.18%

Reviews completed          534    100.00%   728    100.00%   628    100.00%



TABLE 17 - SUBJECT MATTER OF REVIEW APPLICATIONS ACCEPTED –
THREE YEAR COMPARISON

                           2002     %       2003     %       2004     %

Refusal of access          508    86.8%     846     92%      258    77.48%
Objections by third         28     4.8%      27      3%      29      8.71%
parties to release of
information about them
or supplied by them
Amendment of records        24     4.1%      23     2%        20    6.01%
under section 17
Statement of reasons        22     3.8%      18     2%        25    7.51%
under section 18
Decision to charge a fee    3      0.5%      8      1%        1     0.30%

Applications Accepted      585    100%      922    100%      333    100.00%
TABLE 18 - APPLICATIONS ACCEPTED BY TYPE - THREE YEAR
COMPARISON

                  2002       %         2003     %       2004     %

Personal           313      53.5%      649     70%      160    48.05%
Non Personal       217      37.1%      206     22%      123    36.94%
Mixed               55       9.4%       67      7%      50     15.02%

Total              585     100.00%     922    100.00%   333    100.00%

TABLE 19 - PHONE / GENERAL ENQUIRIES

         Year      No
         1999      130
         2000      799
         2001     1136
         2002     1047
         2003     1090
         2004     1306

        Total     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)                        20, 21
 •   Department of Communications, Marine & Natural Resources        22
 •   Department of Education & Science                           22, 29
 •   Department of Enterprise, Trade & Employment                    31
 •   Department of Environment, Heritage & Local Government          30
 •   Eastern Health Board                                            26
 •   Institute of Technology                                         30
 •   Naas Town Council                                               19
 •   National Maternity Hospital Holles Street                   17, 27
 •   North Eastern Health Board                                      28
 •   Radio Telefís Éireann                                           21
 •   St. James’s Hospital                                            20
 •   South Eastern Health Board                                      25

(See also Contents, page 2)

								
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