Freedom of Information Act Conference Exemptions Thursday 19th May, 2016 Mary Kirwan BL

OVERVIEW Requesting & Accessing Records Administrative Refusal –Section 15 Information Obtained in Confidence – Section 35 Time Limits- Section 12, Section 38, Section 9 & 10 Extension of Time- Section 14 Internal Review – Section21 Data Protection and Freedom of Information

REQUESTING AND ACCESSING RECORDS

REQUESTS Under the Freedom of Information Act 2014 each individual has the legal right: – To access information relating to themselves personally held by public bodies – To have information relating to themselves amended where incomplete, incorrect or misleading – To obtain reasons for decisions affecting themselves

WHAT CAN BE REQUESTED? A member of the public can request: – Any records relating to them personally regardless of when they were created – All other records created after a certain date -21 October 1998 for the HSE and local authorities -21 April 1998 for public bodies that were covered by the old FOI legislation -21 April 2008 for public bodies that were not covered by the old FOI legislation

PARENTS-GUARDIANS-NEXT OF KIN A parent or guardian may also request to access records in respect of a minor or a disabled person. Next of kin or a personal representative of a deceased person can also request records A member of the public has the right to request information regarding acts of public bodies affecting them

FORMAT OF RECORDS The previous Act dealt primarily with paper records Under the new Act a body must take reasonable steps to extract electronically held data These include: printouts maps plans microfilm audio-visual material disks Tapes

ACCESS UNDER NEW ACT The new Act provides a general right of access to records They should be released unless they are found to be exempt New Act attempts to: – achieve greater openness and transparency – strengthen accountability & improve decision making – allows discussion, comment and review by the public

ACCESSING RECORDS Access to records is handled in a similar way to the old Act A person who wishes to exercise their right of access to records under the Act must make a request in writing

They must: -Specify that the request is made under the Freedom Of Information Act Set out sufficient particulars to enable the record to be identified -Specify the preferred form of access -State whether the request is for personal or non- personal information -Supply proof of identity if requesting personal information

ADMINISTRATIVE EXEMPTION SECTION 15

REFUSAL ON ADMINISTRATIVE GROUNDS Section 15 A head may refuse to grant the request where— (a)the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, (b)the FOI request does not contain sufficient information to identify the records (c)in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned would cause a substantial and unreasonable interference with or disruption of work of the FOI body concerned

Section 15 (1) (c) Office of the Information Commissioner (OIC) Case Case The Health Insurance Authority provided details to the Commissioner of its size and staffing level, the extent of the records covered by the request, the nature and number of the files to be examined, the estimated time it would take to check each file and the staff required to do so. It also provided details of the tasks, staff and length of time that would be involved in the decision making. The Commissioner agreed that the request was of an excessively broad and voluminous nature. She stated that while the FOI Act imposes statutory obligations on public bodies, compliance with these obligations is not intended to be unreasonably burdensome

(d)the information is already in the public domain (e)publication of the record is required by law and is intended to be published not later than 12 weeks after the receipt of the request (f)the FOI body intends to publish the record and such publication is intended to be effected not later than 6 weeks after the receipt of the request (g)the request is, in the opinion of the head, frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the head, appear to have made the requests acting in concert

(h)a fee or deposit payable under section 27 in respect of the request concerned or in respect of a previous request by the same requester has not been paid, or (i)the request relates to records already released, either to the same or a previous requester where— – (i)the records are available to the requester concerned, or – (ii)it appears to the head concerned that that requester is acting in concert with a previous requester

Under part 2 of section 15 a head may refuse to grant a record that is (a)available for inspection by members of the public whether upon payment or free of charge, or (b)a copy of which is available for purchase or removal free of charge by members of the public Under part 4 a head shall not refuse to grant an FOI request due to the fact it does not contain sufficient information unless he or she has endeavoured to assisted the requester to amend the request for re-submission

Section 15 (4) OIC Case Case The Commissioner was satisfied that the Health Insurance Authority had offered assistance to the requester as envisaged by section 15(4). The Authority had asked the requester in writing to amend her request. It had set out in detail the difficulties presented by the broadly-worded nature of her request as originally formulated and asked the requester to be more specific.

INFORMATION OBTAINED IN CONFIDENCE SECTION 35

The Rotunda Case The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26; [2013] 1 I.R. 1; [2012] 1 I.L.R.M. 301 Pre 2014 Act A granddaughter sought information relating to her grandmothers age from the Rotunda hospital Her father had been adopted and they sought the age at which his mother had given birth to him There were two records containing this information-the Labour Ward Book and the Porter’s Lodge Book

The hospital refused the request citing a)personal information and b) information given in confidence The decision was appealed to the Information Commissioner who overturned the decision of the hospital The decision of the Information Commissioner was upheld on appeal to the High Court saying that the record did not have the necessary quality of confidentiality and that no privacy exists in deceased persons

However the Supreme Court allowed the appeal saying that the FOI Act did apply to the hospital records even after the person was deceased, that the information was personal information given in confidence and that the public interest did not justify its release

Section 35 Section 35 protects certain records containing information obtained in confidence It is a mandatory exemption It relates to third parties It is information given to an FOI body by a third party or information which relates to a third party

Section 35(1)(a) Section 35 (1)(a) is a mandatory exemption applying to records containing information given to an FOI body in confidence Certain conditions must be met for the exemption to apply Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request

PUBLIC INTEREST BALANCING TEST The balancing test applies when a decision maker has decided that access may be refused on the grounds that release will cause some harm or may reasonably be expected to cause harm They must then consider whether the public interest would, on balance, be better served by release

The "balancing" involves a presumption that a harm of some kind has already been identified and is weighing against release When a public interest test is applied to requests for information, details as to the examination of the public interest, how the test was applied and all relevant factors taken into account should be provided in the letter of response

Section 35(1)(a) Conditions All four conditions must exist for the exemption to apply: 1.That the information was given to an FOI body in confidence 2.That the information was given on the understanding that it would be treated as confidential 3.That disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons 4.That it is of importance to the body that such further similar information should continue to be given to the body

Section 35(1)(a) OIC Case Case The Department of Justice, Equality and Law Reform refused access to two Garda reports. However, the Commissioner found that the reports were not given in confidence and on the understanding that they would remain confidential.

Case The Commissioner accepted that where confidential material supplied under the Mutual Assistance Agreement between the US and Irish customs authorities and relating to an ongoing investigation is disclosed, this would be likely to prejudice the giving of further similar information to the Revenue Commissioners.

Section 35(1)(b) Section 35(1)(b) provides a mandatory exemption for records where disclosure of the information would constitute a breach of a duty of confidence The public interest test does not arise where this section applies

A record is exempt under section 35(1)(b) where disclosure of the information would constitute breach of a duty of confidence provided for by: 1.Agreement- e.g. confidentiality agreements,

2.Enactment e.g. Cases and the Commissioner accepted that release of records relating to 'taxpaying entities' would breach a duty of confidence to such persons provided for by an enactment. The enactment concerned was the Taxes Consolidation Act 1997 – section 851A

3. Otherwise by Law- This is a duty of confidence arising in equity Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J confirmed that requirements for a successful action based on a breach of an equitable duty of confidence

“1. The information must in fact be confidential or secret: it must... “have the necessary quality of confidence about it”; 2. It must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it; 3. It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”

Records Prepared by an FOI body Section 35 (2) Section 35(1) does not apply where a record is prepared by a member of staff of an FOI body or a service provider, unless disclosure would constitute a breach of a duty of confidence to another person

Neither Confirm nor Deny Section 35(4) This provision applies in certain circumstances in relation to records which are exempt under section 35(1) Where disclosing the existence or non- existence of a record would breach confidentiality

Definition of Record Section 35(5) A record includes information conveyed in confidence in person, by telephone, electronically or in writing This includes a written note taken of a phone message by a person authorised to receive such a message

It clarifies that information obtained orally in confidence over the phone or in person, and noted by a member of staff of a public body, may qualify for exemption

TIME LIMITS

SECTION 12 TIME LIMITS A section 12 request must be acknowledged within 2 weeks/ 10 working days of receipt of the request The acknowledgment should set out the rights of the requester in relation to a review i.e. time limits and procedure Notify the requester of the decision within 4 weeks/ 20 working days of receipt of request (see section 13)

Non reply to a request within 20 working days is deemed to be a refusal allowing the requester to proceed to an internal review Time to make a decision may be extended within 4 weeks/ 20 working days of receipt of the request by a maximum of a further 4 weeks/20 working days in limited circumstances ( section 14) Where access granted and a fee is outstanding, afford access within 1 week of receipt of fee

Section 38 Time Limits Section 38 Consultation ( information obtained in confidence, commercially sensitive information and personal information) Notify third party under section 38 within 2 weeks of receipt of request Can extend time to notify third party by 2 weeks in limited circumstances (see section 38(3)(a)) Third party has 3 weeks to make submissions from the receipt of notification The requester must be notified of the decision within 2 weeks of receipt of the submission

SECTION 9 &10 TIME LIMITS Applications under section 9 (amendment of records relating to personal information) or section 10 (right of person to information regarding acts of FOI bodies affecting the person) Acknowledge receipt within 2 weeks/10 working days The requester must be notified of a decision within 4 weeks/20 working days of receipt of application

SECTION 21 REVIEW Section 21 Internal Review An application for an internal review must be made within 4 weeks of the notification of a decision The applicant must be notified of the decision within 3 weeks of receipt of the review application

EXTENSION OF TIME

TIME EXTENSION-SECTION 14 Time may be extended: Where the head is of the opinion there is such a volume of records requested it would not be possible to comply with the time limits. The other circumstance is where there are a number of outstanding FOI requests relating to the same records which would make it impossible to comply with the time limits laid down under section 13. The requester must be notified of the extension, how long the extension will be for and of the reasons why it is being extended.

(h)a fee or deposit payable under section 27 in respect of the request concerned or in respect of a previous request by the same requester has not been paid, or (i)the request relates to records already released, either to the same or a previous requester where— – (i)the records are available to the requester concerned, or – (ii)it appears to the head concerned that that requester is acting in concert with a previous requester

DEFERRALS

Section 16 FOI requests may be deferred where: The information requested is solely for the Houses of the Oireachtas or a committee of the Houses and the information is intended to be laid before them within a reasonable period of time after receiving the request The information requested concerns the functions and negotiations of FOI bodies and giving access before a certain day would be contrary to public interest

The information is held by a department of state and is of such public importance that the minister intends to inform the Houses of the Oireachtas of its content no later than 5 weeks after the receipt of the request The information must be released the day after the specified day above

FOI v Data Protection Act

Data Protection & FOI Data Protection – Applies to all sectors – Protects Human Rights – The focus is privacy FOI – Applies only to public sector – Protects Citizens Rights – The focus is openness

Personal information is exempt from disclosure to third parties under the FOI Acts However this is subject to a number of exceptions Release of personal information is generally prohibited under Data Protection legislation FOI applies to individuals living or deceased DP only applies to individuals who are living

FOI The exceptions for release include: – where the information concerned relates to the requester concerned – where the public interest in disclosure outweighs the individual's right to privacy – where the person to whom the information relates has consented to the release

– release in certain circumstances to a parent/guardian of personal information relating to a minor or a person with a disability which renders him/her incapable of exercising his/her rights under the Act – release in certain circumstances of personal information relating to a deceased person and where disclosure would benefit the person to whom the information relates

DP Under the Data Protection Act an individual may request access to information constituting any personal data The only exception to release to a third party is if the individual has consented If there is joint personal data information can be supplied without identifying the other individual e.g. by omitting names or other identifying particulars

THANK YOU!! QUESTIONS