knowledge 7 July 2022 |

Freedom of Information – Time for Change?

Background

In December 2021, the Department of Public Expenditure and Reform (the “Department”) undertook an initial consultation process on the appropriate scope of a review of the FOI Act.  A total of 1,171 submissions were made by various categories of stakeholders and the two common themes were identified in these responses:

1. structural reforms aimed at ensuring that the current regime is fundamentally fit for purpose and up to date; and

2. incremental reforms aimed at improving the operation of the FOI system as it is currently structured in light of certain issues that have arisen in practice.

As part of the next stage of its review, the Department has now launched a further public consultation process seeking views from stakeholders centred on the primary themes identified in the initial responses.

Structural reforms

Streamlining access regimes and related functions

The consultation document notes that the variety of access mechanisms that currently exist (e.g. FOI requests, data subject access requests and requests on information on the environment and open data) may lead to “forum shopping” which drains resources from public bodies. The lack of clarity on the interaction between data protection law and the freedom of information regime is also noted. 

The consultation document asks participants to consider how the right of access provided by the FOI regime aligns with other accountability mechanisms, whether it is desirable for FOI to be more closely aligned with other access mechanisms and whether the long-term goal should be to consolidate requests for information into a single mechanism.

Transparency by design

The consultation document asks the public to consider whether embedding transparency tasks in the work process and supporting digital infrastructure of public bodies would facilitate simple routine access to information and reduce the administrative burden of compliance.

Proactive publication

The consultation document considers the merits of increasing publication of material by public bodies and acknowledges that while the introduction of the FOI Publication Scheme has had some positive impacts, “overall the outcome cannot be seen as transformative”.

However, it is noted that in recent years there has been an increase in routine publication by public bodies, independently of the FOI framework. It is suggested that particular categories could be identified that should be priorities because of high explanatory value. The consultation document also questions what incentives might effectively promote publication.

Informal release

The consultation document notes that the formal and legalistic structure of the FOI may act as a barrier to greater openness while a more collaborative approach would benefit both parties and achieving maximum efficacy. Suggestions are sought on ways in which the process could be made more collaborative and less administratively onerous.

Managing an increased volume of “records”

The consultation document notes that the large volume of records generated daily was not envisaged when the request mechanism was originally designed. In light of this, the value of FOI requests may be subject to diminishing returns as much of the material released may not be of significant use in ensuring public bodies are accountable. The consultation document asks the public to consider whether the FOI regime should focus efforts on the most valuable information and whether categories of particularly high value material should be identified which require particular treatment.

Incremental reforms

Improving the request process

The consultation document acknowledges that the early stages of the FOI process may need reform to ensure only clear and focussed requests for records are accepted and similarly to resolve ambiguities with regards to extensions in the current legislation. The public are asked to consider in particular how to clarify the standard for a valid request and also whether a shorter or longer period should apply if both requester and body agree it is appropriate.

Fees and charges

The consultation document notes that fees are still applied in the case of the search and retrieval of large amounts of records and for seeking reviews of decisions.  However, it is noted that the application of search and retrieval fees is highly technical and difficult to implement. The consultation document acknowledges that a common justification for these fees is to avoid requests that are unclear and unfocused, however it questions whether charging a fee is the appropriate means of addressing this.

Designating FOI Bodies

The consultation document notes that the current criteria based approach to determining whether FOI applies to a body makes it “impossible” to compile a comprehensive list of such bodies. As a result, some bodies may have acted on the incorrect assumption that the FOI Act applies to them. Therefore, the public are asked to consider whether a return to a definitive list of FOI bodies would be appropriate or whether updates to the criteria in the current model are required.

Role of the Information Commissioner

The consultation document acknowledges the submissions that emphasise the need for sanctions and penalties in the FOI process. However it proceeds to explain that an enforcement-centred approach would require greater expenditure and staffing. Similarly, the paper addresses the widespread concern as to a lack of consistency in decisions and explains that requests are treated on a case by case basis and therefore decisions cannot be taken as determinative of a request for different records.

Abuse of FOI

The consultation document considers the concern voiced in the scoping process around the abuse of the FOI regime. It notes that while vexations requests represent a small fraction annually, they are “disproportionately burdensome” and impact on responses to other requesters. The consultation document notes that in Australia and Canada the relevant competent authorities can give public bodies permission to refuse requests from particular people where justified.

What’s next?

The consultation is open until 12 August 2022 and submissions can be made by way of the FOI Consultation Return available here. A report on the results of the consultation will be prepared by the Department with recommendations on the structural and incremental reforms required to the current FOI regime.

Also contributed by Ruth Hughes