Tuesday, 9 July 2019

Ceisteanna (5)

Micheál Martin


5. Deputy Micheál Martin asked the Taoiseach the number of freedom of information requests his Department has received in the past two years; and the number granted, stalled and refused, respectively. [25602/19]

Amharc ar fhreagra

Freagraí ó Béal (5 píosaí cainte) (Ceist ar Taoiseach)

From 1 January 2017 to the end of May this year, the Department received 1,069 freedom of information requests. Of these, 230 were fully granted, 502 were partially granted, 89 were refused and no records were held in relation to 182 requests. A total of 62 requests were either transferred, withdrawn or handled outside the freedom of information process, while four requests are ongoing.

There has been a significant increase in the number of freedom of information requests received in the Department since the new Act came into operation in 2014. In 2013, the Department received 92 requests, while this figure rose to 290 in 2015 and to 490 in 2018. This represented an increase of 533% in the five years since 2013 and the upward trend is continuing this year.

Regarding records part granted or refused, material is redacted for a variety of reasons, as provided for under the Act. Examples of grounds commonly used by freedom of information decision makers in the Department for withholding material include where Government records are less than five years old, where the material, if released, could have an adverse impact on international relations or the economic interests of the State, where commercially sensitive information is involved and where it is necessary to withhold personal information, such as personal email addresses or mobile numbers.

The majority of requests submitted to the Department are non-personal requests from the media. All requests received in the Department are processed by designated officials in accordance with the Freedom of Information Acts. If a requester is not satisfied with a freedom of information decision he or she can seek an internal review, followed by appeal to the information commissioner. The freedom of information statutory framework keeps the decision-making process at arm's length from the political head of the Department. Despite what is often reported, I have never personally refused the release of any document under freedom of information. I have no role in the decision-making process for requests received in the Department nor do I see copies of decision letters issuing.

There are two members of staff working in the Department’s freedom of information unit, both of whom perform other duties. Staff from throughout the Department are also involved in processing requests in addition to their routine duties, for example searching and retrieving records and making decisions on requests received. At times, complicated and detailed freedom of information requests are received, which involve significant time and resource implications for the staff involved.

Section 8 of the Freedom of Information Act 2014 requires each freedom of information body to prepare and publish a publication scheme. The Department's scheme is published on gov.ie and sets out a range of information about the type of records it holds.

While the day-to-day operation of the freedom of information legislation is a reserved Civil Service function, there are many dimensions to it that directly concern the political head of each Department and each is responsible to the Dáil when it comes to the overall approach. Equally, while the Freedom of Information Acts sets a legal minimum on what must be released, the political head of a Department is, with very limited exceptions, fully entitled to instruct officials to be less restrictive.

The Taoiseach will be aware of a curious story which has appeared in recent days concerning a freedom of information request made to his Department regarding communications between him and his political appointees and media owners. Apparently the person who submitted the request has been contacted by the Department to suggest that gathering this information is a huge undertaking and to ask that the request be limited.

This suggests that either there is a wish to not release something or that there is a volume of correspondence with media owners far beyond anything seen in the past. In this age of searchable emails and a requirement that all documents be maintained on a departmental server, how is it credible to suggest that it would take more than a short time to comply with such a request? Can the Taoiseach provide clarity on this issue? Is he satisfied that all members of his staff are maintaining records as required by the Act? Have the Taoiseach and his officials stopped the habit that we saw in 2017 of using personal email accounts for official communications?

Over the past year there have been two landmark cases concerning the freedom of information legislation that fundamentally impact on its principles and will, potentially, have far-reaching consequences. I refer to the cases involving University College Cork, UCC, and Enet. These cases are undermining what should be the starting point for freedom of information and that is a presumption in favour of disclosure. That is at the heart of the Act and constitutes the spirit and the word of the legislation. Does the Taoiseach believe these two judgments should be appealed to the Supreme Court? Does he support legislation to deal with the dilemmas and the damage arising from these cases, if necessary, in order that we can get back to a situation where the presumption in favour of disclosure is protected within the legislative framework?

I also want to refer to the case in April where the High Court overturned a decision by the Information Commissioner ordering UCC to release records under the Freedom of Information Act. This ruling against the Information Commissioner and in favour of the organisation making the appeal, namely, UCC, has, potentially, wider implications for the application of the Act beyond the reasons of commercial sensitivity which were quoted regarding interest rates connected with a loan. The ruling does not seem to honour the universal principle of freedom of information laws around the world which is, as the Irish Council for Civil Liberties, ICCL, and other bodies have pointed out, presumption in favour of disclosure. Removing the presumption of disclosure from public bodies threatens access to information in Ireland on a wider scale. Does the Taoiseach have an opinion on the outcome of that case and how does his Government intend to respond to protect the integrity of the Freedom of Information Acts? Since the general data protection regulation, GDPR, legislation came in, many public bodies are finding it difficult to deal with any information at all because the name of a party may be involved. The Government also needs to address this issue because it is becoming a routine reason for turning down the release of information. That is a new development concerning the public's right to access information.

I am not familiar with the specifics of the freedom of information request to which Deputy Micheál Martin referred. I imagine there has been little contact with media owners and probably a lot with individual journalists and editors. I will, however, check on that because it is not something that I am familiar with or that I have been briefed about. Regarding personal emails, the Department has a policy on the use of personal emails. I am complying with it and I expect everyone in the Department to be complying with it. There is no absolute prohibition on the use of personal emails. That is not practical. Occasionally, the email system is down but, more often, people email other people on their personal email when they really should not be doing that. They should be using their work email. It is the practice, however, that where something is a matter of public record then a public record must be created. That is usually done by forwarding or copying the email to an official to ensure that the public record is created.

I am not fully briefed on the case law to which the Deputies have referred. I understand that one of those cases may already be on appeal. I got a note on it, which I read last week. This is complicated legislation that does not fall directly under my remit and I am not sure that I fully understand the implications of the legislation. My colleague, the Minister for Public Expenditure and Reform, Deputy Donohoe, is responsible for the Freedom of Information Acts. I am told that he is well aware of the recent court judgments and he has informed me that the central policy unit for freedom of information at his Department is closely monitoring the situation to determine the impact these judgments will have on the system in reality and in practice. I also understand that the Minister is satisfied that the updated and consolidated freedom of information system introduced under the 2014 Act is operating well. He does not see a basis on the currently available evidence to consider amending legislation at this time. He assures me, however, that appropriate action will be taken, if necessary, in order to ensure its effective functioning now and in the future.