The Office of the Information Commissioner has published its latest annual report. Our Public, Regulatory & Investigations team examines the key findings and looks at what we can expect in the future in Freedom of Information law.

The Office of the Information Commissioner (OIC) published its annual report for 2022 in June 2023. The report highlights some interesting trends and OIC decisions in Freedom of Information (FOI) law and practice over the last year. The report also notes proposed OIC recommendations for the amendment of FOI law. We examine the key trends identified. We also assess the decisions of the OIC in 2022 regarding the public interest test when withholding records relating to the deliberative processes of FOI bodies (section 29 of the FOI Act).

FOI trends

According to the OIC’s report, there were a total of 35,000 FOI requests to public bodies under the FOI Act in 2022. While this represents a 26% increase in FOI requests since 2015, it is a slight decrease from 2021.

Also, the main users of the FOI access regime in 2022 continue to be clients of public bodies, which represent 56.7% of all requests made. Journalists accounted for 18.1% of all requests made.

Application of the public interest test under section 29 of the FOI Act – a higher threshold?

In Case OIC 119698, the OIC annulled the decision of Trinity College Dublin (TCD) to refuse access to records relating to the closure of Science Gallery Dublin. TCD relied on the exemption in section 29 of the FOI Act. This permits the refusal of access to records relating to the deliberative processes of FOI bodies, where disclosure would be contrary to public interest.

The OIC accepted that the relevant records related to the deliberative processes of TCD. However, it was not satisfied that disclosure would be contrary to the public interest. TCD claimed that the public interest lay in ensuring the efficient management of its functions and finances, and the timely conclusion of the deliberative process. However, despite listing several potential harms, crucially, it had not explained how these harms might arise from the release of the specific records in question. The OIC also noted that a considerable amount of information in the records was already in the public domain and pointed to a newspaper article which contained finance, staffing and operational details of the Science Gallery. TCD argued that it was unaware of how this information had come into the public domain, arguing a breach of confidentiality. However, the fact of the publication of this information meant that the OIC could not see how the release of the records would be contrary to the public interest.

In Case OIC 124286, the OIC considered whether the Department of Justice could refuse access to the note of a meeting between the Minister for Justice and the Inspector of Prisons. The meeting was about a report of an investigation carried out under the Prisons Act 2007, which had been sent by the Inspector to the Minister.

The Department relied on section 29 of the FOI Act to refuse access. It argued that the inspection report contained details and allegations that had not been fully investigated. On this basis, the Department decided that disclosure of the inspection report would undermine the Minister’s function of deciding what parts of the report should be omitted before publication.

The OIC found that the inspection report did not contain adequate details or allegations which would render its disclosure contrary to the public interest.

These two decisions demonstrate that, in the OIC’s view, to rely on the FOI exemption under section 29, FOI bodies must display a real and tangible connection between the disclosure of the relevant record(s) and detriment or harm to the public interest. This differs from the public interest tests found in other exemption provisions where the test is whether the public interest would, on balance be better served by granting than by refusing to grant the request.

Another interesting case highlighted in the OIC’s annual report is Case OIC 120078. Here, the OIC found that St Vincent’s University Hospital (‘SVUH’) was not justified in refusing access to the Religious Sisters of Charity Service Philosophy and Ethical Code.

SVUH refused access to the code under section 30(1)(b) of the FOI Act on the basis that its release would reasonably be expected to have significant adverse effects on the performance of SVUH’s management functions. The hospital also refused access under Section 36(1) FOI Act on the basis that the information was commercially sensitive.

SVUH maintained that the code was outdated and misleading, and no longer represented its ethos or aims, and that its release could hinder management, employment, and staff morale. They further argued that the public might misinterpret the code and believe it was current.

The OIC found that the potential for misinterpretation or misleading the public was not sufficient to refuse access. This would infer that the public is incapable of drawing reasonable and objective conclusions. Also, SVUH could explain the context of the information and its updated current position.

The future of FOI law

The OIC’s report also notes that 2022 saw further steps being taken towards the reform of the FOI Act. The OIC has welcomed a public consultation on this matter and has contributed to it through the submission of detailed recommendations. These include recommendations:

• To develop comprehensive guidelines for FOI bodies on the provision of access to information outside of the FOI Act
• To introduce a statutory requirement for record management policies and record retention schedules

The Commissioner has expressed his intentions to continue his work on the amendment of the FOI Act alongside the Department. The draft review report will provide further insight into the proposed amendments and OIC recommendations.

Comment

The most notable decisions of interest to FOI bodies were cases concerning the refusal of access to internal correspondence and documents. OIC decisions over the past year have expressly affirmed that refusals under section 29 of the FOI Act must be sufficiently contrary to the public interest. This is a higher standard than the balance of public interest required for other exemptions under the FOI Act.

It is anticipated that further clarity will be provided on proposed FOI amendments in 2023. We await to see if the OIC’s recommendations will be accepted by the Department.

For more information, please contact a member of our Public, Regulatory & Investigations team.

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