‘Room for improvement’ in Freedom of Information legislation – Commissioner

There is "considerable room for improvement" in the Freedom of Information legislation, Information Commissioner Peter Tyndall has warned.

Speaking on the publication of his office's 2020 annual report on Thursday, he said a Supreme Court judgment last year – the so-called Enet case – had made it more difficult to direct public bodies to release records in the public interest than it had been heretofore.

And he said while the 2014 Freedom of Information (FOI) Act provided for its extension to non-public bodies in receipt of significant public funding by way of ministerial order, no additional bodies had been brought within its scope.

The report shows the number of FOI requests to public bodies fell by a fifth last year compared with 2019, though applications to the commissioner’s office to review decisions by those bodies fell by just five per cent.

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In all 31,591 FOI requests were made in 2020 – 40.5 per cent to Government departments and State bodies; 27.7 per cent to the HSE; 14.7 per cent to hospitals and mental health services; 13.7 per cent to local authorities; and, 2.9 per cent to third-level institutions.

Half of all FOI requests were from clients of the bodies, with 23 per cent coming from journalists, according to the report.

These resulted in 584 applications to the commissioner for reviews of the decisions made, down from 613 applications in 2019.

In all 414 applications reviews were accepted by Mr Tyndall's office – the highest proportion relating to the HSE (65), followed by the Department of Justice (24), Tusla (21), Defence Forces (17), Revenue Commissioners (15), Department of Social Protects (14), and others accounted for 278.

Welcoming a forthcoming review of the Act Mr Tyndall said: “After six years’ experience of operating [it], it is clear to me that there is considerable room for improvement. There are a number of issues that need to be addressed to improve the Act for everyone, including users and public bodies”.

Among the key decisions he made last year was that the Department of the Taoiseach release the agenda and minutes of meetings of the senior officials group on Covid-19.

While the department had argued the records contained information for Government which would be used at Cabinet meetings – which are protected under the FOI Act – the commissioner examined the records and judged they concerned the practical aspects of responding to the pandemic.

In another decision Mr Tyndall annulled a refusal to release records and directed the Department of the Taoiseach to look at the FOI request “afresh”.

The department had refused a request for some records from the archive of the McAleese committee on the State’s involvement in Magdalene laundries, on the grounds that although the archive was being stored in its premises it did not “hold” or “control” it.

Mr Tyndall judged that though the department did not own the archive, the archive was held by the State and did come within the scope of the Act.