When is a record held under the Freedom of Information Act?

This post is cross posted from my information rights blog.

When is a record held for the purposes of the Freedom of Information Acts 1998 and 2003? That was the question the High Court had to answer in a recent decision of O’Neill J in The Minster for Health -v- The Information Commissioner [2014] IEHC 231.

In his interpretation of which records are held for the purposes of the FOIA O’Neill J adopted a novel definition:

41. In my opinion, for a document to be “held” within the meaning of s. 6(1) of the 1997 Act, it must be either lawfully created by the public body in question or lawfully provided to that public body or lawfully obtained by the public body, in connection with the functions or business of that public body and the document must not be subject to any prior legal prohibition affecting it’s disclosure.

The issue arose in the context of a non-statutory inquiry into practices and procedures at Our Lady of Lourdes Hospital, Drogheda during the period from 1964 to 1995 to protect patients from sexual abuse and to deal with allegations of sexual abuse against Mr Michael Shine. Non-statutory inquiries such as this are often used as a way to scope more formal statutory inquiries under, for example, the Commissions of Investigation Act 2004.

This decision is important since it reveals flaws, at least in this instance, in the way non-statutory inquiries are constituted and a lack of certainty in relation to who controls the documents generated by them. From an information rights point of view the Court adopted a surprisingly restrictive interpretation of the meaning of the word “held” for the purposes of the FOIA arguably placing a large category of records permanently outside the scope of FOI.

The inquiry, known as the Drogheda Review, was conducted by retired High Court judge Thomas C Smyth who was appointed by the Minister for Health on 18 December 2009. In the course of the inquiry Mr Smyth commissioned transcripts of interviews he conducted with a number of individuals. Upon completion of his work Mr Smyth returned several boxes of documents to the Department of Health, including six sealed boxes of documents containing the transcripts of interviews conducted during the inquiry.

These boxes were accompanied by written instructions from Mr Smyth that they should not be opened or disclosed except under a court order on the basis that the information was provided in confidence to the inquiry, Mr Smyth being satisfied that many of the individuals would not have participated in the absence of such an assurance.

In May 2012 one of the individuals who was interviewed by Mr Smyth made a request under FOIA for access to the transcript of his interview.

His request was refused on the basis that the document in question was not under the control of the Department which merely held them on behalf of Mr Smyth for safe keeping. The matter was referred to the Information Commissioner who disagreed and found that the Department held the document and ordered it to deal with the individual’s request.

Under section 6(1) FOIA the public has a right of access to any record held by a public body. Bearing in mind that public bodies may not possess all relevant records, section 2(5) explicitly states that documents controlled by a public body are held and further according to section 6(9) where a person performs a contract for service for a public body records relevant to the contract are deemed to be held by the public body with a contractual obligation implied into the contract obliging the contractor to provide the records to the public body if requested.

While the Information Commissioner argued that mere possession was sufficient to trigger the act – O Neill J adopted a rather different and somewhat novel approach to the issue which depended on the nature of Mr Smyth’s role as independent reviewer and the legal basis for his appointment.

O Neill J emphasised that Mr Smyth was entirely independent in his conduct of the inquiry and despite being paid a fee and performing tasks assigned to him he could not be said to be performing a contract for services since if he was then the FOIA would apply to the inquiry documents, a situation wholly inconsistent with his independence:

49. It is easy to say what the relationship between Mr. Justice Smyth and the Department was not, and in that respect, I am quite satisfied that whilst in a general sense, it could be said that Mr. Justice Smyth was providing a service in consideration of the payment of an agreed fee, the provision of this service cannot be considered as falling within the terms of s. 6(9) because the application of s. 6(9) in the circumstances would be wholly inconsistent with the independent nature of the function discharged by Mr. Justice Smyth.

Despite this statement the Court did not reach a conclusion on the legal basis for Mr Smyth’s appointment. Although it was conceded he was neither an employee nor an agent of the Minister nor was he acting as an office-holder he could still not be considered a contractor under a contract for services.

The decision and its rationale represent a radical departure from what has, up to now, been a liberal definition of which records are held for the purposes of FOI consistent with a general presumption in favour of access to records.

Surprisingly although much was made of analogies with Irish and English approaches to access to documents through discovery, UK  information law jurisprudence was not canvassed in the judgment. This is all the more surprising given a similar set of facts arose in the case of Digby-Cameron -v- Information Commissioner (EA/2008/10) which was decided by the Information Tribunal and concerned a request by a father to access the transcript of a Coroner’s hearing into the death of his son.

The main UK case is British Union for the Abolition of Vivisection -v- The University of Newcastle [2011] UKUT 185 (ACC) where the Upper Tribunal endorsed a common sense approach to the definition of “held” proposed by the First Tier Tribunal at paragraph 23:

 ‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.”

Under UK law where a record is in the possession of a public body to any extent for its purposes it is subject to the FOIA even if it is holding it for someone else. Records will only fall outside FOI where they are held solely for someone else and for no purpose connected with a public body. The UK Information Commissioner has published some useful guidance and analysis.

It now seems that the Irish Courts have diverged from the United Kingdom’s “common sense” and “non technical” approach to the definition of “held” under FOI and at least in the case of non-statutory inquiries have adopted a restrictive inverted approach to the definition which may need to be resolved at some future date by the Supreme Court.

Did the government promise to abolish upfront fees for FOI? Yes it did!

Did the government promise to abolish upfront fees for FOI?

This is an important question but one that seems to have generated confusion. For example:


If the government did promise to abolish upfront fees then its proposed amendment to the Freedom of Information Bill which seeks to maintain upfront fees and to increase fees for initial requests constitutes a complete about turn by the government and a clear breach of its promise to the public when it was elected in 2011.

It is worth recalling that before 2003 upfront fees were not charged for initial FOI requests, internal appeals or for appeals to the Information Commissioner. In 2003, however, the FF/PD administration introduced upfront fees by inserting Section 47(6A) into the Freedom of Information Act. At the time this was considered to represent a significant undermining of the effectiveness of the Freedom of Information regime in Ireland. The Information Commissioner herself pointed out that the introduction of upfront fees led to a significant drop in requests and appeals, particularly from journalists.

So what did the government actually promise in relation to FOI upfront fees?

The programme for government states the following (page 19 emphasis added):

We will radically overhaul the way Irish politics and Government work. The failures of the political system over the past decade were a key contributor to the financial crisis and the system
must now learn those lessons urgently.

Government is too centralised and unaccountable. We believe that there must also be a real shift in power from the State to the citizen.

We will legislate on the issue of cabinet confidentiality.

We will legislate to restore the Freedom of Information Act to what it was before it was underined by the outgoing Government, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions.

We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered.

So the government promised to restore the FOI Act to what it was before the 2003 amendment. This could not be clearer. It is impossible to read this other than a promise and a commitment by the Irish government to  undo the amendments made in 2003 including the amendment whichh inserted Section 47(6A) and introduced upfront fees for the first time.

It doesn’t matter that we are constrained economically – we were similarly constrained in 2011 when the program for government was published. Similarly it doesn’t matter that the upfront fee is only a small fraction of the costs of FOI administration or that it violates the newly discovered principle of one issue – one fee. The government made an unqualified promise to the people and it should stick to it.


First protective costs order under Aarhus Convention granted by High Court

Hedigan J granted a protective costs order to an applicant wishing to use Section 160 of the Planning and Development Act to prevent alleged unauthorised development at a waste facility close to her home.

Protective costs orders originate from Article 9 of the Aarhus Convention which provides that litigation in certain environmental matters should not be prohibitively expensive. This provision was implemented in Ireland through Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which protects an applicant from having costs awarded against them should they be unsuccessful.

This is the first time in Ireland that such an application has been successful and importantly the Court clarified the information that should be provided to ground a motion for a protective costs order.

The Court referred specifically to Article 9 of the Aarhus Convention as well as the recent ECJ judgment in Edwards -v- Environment Agency (Case C-260/11) which clarified the meaning of prohibitively expensive under European law.

This judgment is significant not just in terms of planning law but also for access to environmental information law since persons appealing to the High Court against decisions of the Commissioner for Environmental Information may also apply for protective costs orders.

Hunter -v- Nurendale Limited t/a Panda Waste

The Information Commissioner's 2012 annual report

The Information Commissioner published her annual report for 2012 yesterday. It’s worth a read to see some of the highs and lows of the Freedom of Information and Access to Information on the Environment regimes in Ireland in 2012.

One note in relation to AIE caught our eye. The Commissioner in her role as Commissioner for Environmental Information noted that:

My Office’s appeal to the Supreme Court against the judgment of Mr. Justice O’Neill in An Taoiseach v. Commissioner for Environmental Information (Case CEI/07/0005) is still pending.

This is an interesting case for a number of reasons including the issue that it raised as well as the length of time that it is taking to reach a final binding decision.

The appeal was lodged on March 2007 with the Commissioner; it being only the second appeal to be dealt with by the Commissioner (there have been more than 80 in total since 2007). The Commissioner found in favour of the requester, but that decision was appealed to the High Court where it was overturned. The Commissioner subsequently appealed to the Supreme Court where the matter is still pending more than six years after the request for information was first made.

As regular readers may be aware article 9(4) of the Aarhus Convention guarantees a judicial review process that is fair, equitable, timely and not prohibitively expensive. As we argued in NAMA -v- Commissioner for Environmental Information it is hard to see how the State and the EU have vindicated Irish citizen’s rights under Aarhus when final court decisions are taking in excess of six years to be delivered.

The second point relates to the Irish transposition of Directive 2003/4/EC on public access to environmental information. Under Aarhus and the Directive information relating to emissions into the environment may not be exempt (except under administrative exemptions such as unreasonable request, internal discussions etc.). This ensures that the public can access this information to a greater extent than non-emissions related information bearing in mind the interest the public has in accessing this type of information. Emissions are defined broadly in the Aarhus implementation guide: “direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into the air, water or land.” (page 60)

However when Ireland transposed this Directive it qualified this mandatory disclosure of emissions-related information by excepting cabinet discussions (see Articles 8(b) and 10(2) of the AIE Regulations). This qualification does not appear to have any basis in either the Convention or the Directive.

Mr Fitzgerald sought access to a range of cabinet documents concerning greenhouse gas emissions but the appeal was narrowed to a single note of a cabinet discussion that related directly to such emissions.

The Commissioner was of the opinion that the cabinet confidentiality exception although made under Article 28 of the Constitution was not permitted under the Directive and that since the Directive met the criteria for direct effect under EU law she should apply the Directive to the request. She allowed the request and ordered the Government to release the information.

The decision was appealed to the High Court which held in June 2010 that the Commissioner did not have the legal power to interpret the Regulations beyond its terms including the power to give direct effect to the terms of the directive. The Court further held that in any event the information requested was also exempt under the internal discussion exemption.

The Commissioner appealed this decision to the Supreme Court where it is now pending for three years, in total more than six years after the original request was made. In that time the Commissioner’s office has disposed of 80 further appeals.


Swords -v- OCEI: Was there ever any doubt over search and retrieval charges for AIE?

The recent appeal decision by the Commissioner for Environmental Information highlights that during the previous five years search and retrieval fees have been wrongly charged by public authorities for requests for access to environmental information. The decision also provides a good opportunity to summarise how the provisions of Directive 2003/4/EC relating to fees have been interpreted in Ireland and the UK.

The impermisibility of charging search and retrieval fees has been clear since an earlier 2008 decision of the Commissioner in Open Focus and Sligo County Council. In that case (which was not appealed) the issue of discretionary fees, although not the main issue, was examined in detail by the Commissioner who found that search and retrieval fees are not permitted:

“Furthermore, in order for a decision maker within the Council to deal with the request for information and form a view as to whether it could be supplied under the Regulations, it would be necessary for the information at issue to be identified and retrieved. There is no provision in the Directive or in the Regulations for the charging of fees for the processing of a request for access to environmental information. Following the assessment of the information and, as in this case, a decision to release it, I consider that it is the next step – the supply of the information to the requester in copy form – that potentially attracts the charge.”

Accordingly since May 2008 public authorities should have been under no doubt that search and retrieval fees were not permitted to be charged. Worryingly the Open Focus decision seems to have been completely ignored by most public authorities including, it must be said, the Department of the Environment which up until this month continued to publish guidelines which explicitly stated that search and retrieval fees could be charged.

Only after the Commissioner decided against the Department of the Environment itself has it finally decided to modify its guidelines to bring them into compliance with the Open Focus decision.

Interestingly the issue had not been subject to a definitive adjudication in the UK until 2011 when the Upper Tier Tribunal in Kirklees Council v Information Commissioner and PALI Ltd [2011] UKUT 104 held that such fees may not be charged for in situ examination and the First Tier Tribunal further held in Leeds City Council -v- Information Commissioner that charges could only be levied for the costs of transferring environmental information (e.g. costs of reproduction) to a requestor who did not wish to examine it in situ. Each of these cases arose from appeals by commercial property searchers (who provide responses to standard Law Society questionnaires as part of conveyancing transactions) against search and retrieval fees charged by local authorities for access to environmental information required by them to fill out the search questionnaires.

The UTT in Kirklees had little doubt on the issue:

“[98] We also disagree with Mr Coppel’s submission that the word “supply” in that sense can be extended to cover the process of locating and retrieving information for examination.  We consider that the proper reading of Article 5(2) of the Directive and Regulation 8(2)(b) of the EIR is to prevent a public authority from charging an applicant for examining in situ the requested information and to permit fees to be imposed only for supplying the information in some different way, e.g.  by provision of a copy of some sort. To put it simply, an authority that makes a charge for going and getting the information to make available for examination in situ, and refuses to make it so available unless the charge is paid, is not making that information available for examination without charge.”

Moreover, the FTT in Leeds City Council  further emphasised the Kirklees decision:

“[78] … Kirklees confirms that a public authority may not impose any charge or recover any cost for making information available for inspection. It would be wrong, in principle and in light of the purpose of the Directive, that a public authority which has not done the work necessary to put in place systems so that the information is in a form in which it can be inspected, free of charge, to be able to pass on to a requester the costs of locating and retrieving the information to put it into a format in which it can be made available.”

and went on to hold that:

[98] … having regard to the provisions and underlying aims of the legislation, the cost of ‘making available’ environmental information should be construed narrowly so as to apply only to the cost associated with the process of supplying (i.e. transferring) the information to an applicant once the requested information has been located, retrieved and put in disclosable form. Any other interpretation would have significant adverse consequences to those wishing to access environmental information.”

While the issue has not been the subject of a definitive decision by the CJEU it seems likely that this court will also follow the rationale of the Irish and UK cases. In fact in case C-217/97 Commission -v- Germany Advocate General Fennelly (as he then was and now a member of the Supreme Court) stated in his opinion at para 23:

“The notion of what is ‘reasonable‘ must in my view be interpreted in the light of the general scheme and purpose of the Directive, and of the context in which it is used. As already noted, the Directive proceeds upon the basis that access to environmental information will ‘improve environmental protection‘. Its primary objective is ‘to ensure freedom of access to … [such] information‘, and it seeks to achieve this end by obliging the Member States to ensure such informationis effectively ‘made available … to any natural or legal person at his request without his having to prove an interest‘. In the light of this objective and the means chosen to achieve it, the question of whether the charges for the supply of the information are ‘reasonable‘ must be judged from the perspective of the member of the public requesting the information, rather than from that of the public authority. While it does not expressly preclude a Member State levying a charge for the time and effort of public officials, such an approach seems to me to be fundamentally incompatible with the principal features of the Directive.”

Ultimately the ECJ (as it then was) did not need to rely on this element of AG Fennelly’s opinion but it seems likely that it would adopt it should the it be required to do so.

It seems that the conclusion to be drawn from these decisions is that there is a greater public interest in access to environmental information when compared to access generally under freedom of information. Accordingly, the question of which charges are permitted should be interpreted narrowly so that the objective of making environmental information available as widely as possible can be achieved. Therefore requesters should not be obliged to pay for the processing of a request, should be able to examine information in situ free of charge and should only pay the disbursements incurred by a public authority where copies of requested information is transmitted to them.

Ironically Mr Swords had to pay €150 to the Commissioner to lodge his appeal against a search and retrieval fee of €146.65 proposed by the Department of the Environment. Following the rationale of the Irish and UK decisions it seems unreasonable that the Commissioner should charge a fee for lodging an appeal since an appeal itself can be rightly viewed as a part of the processing of a request and not of supplying environmental information. Indeed very often an appeal to the Commissioner is necessary before any information is supplied.

At the very least it is now uncertain whether the Commissioner is entitled to levy this fee but we must wait until this issue itself is examined in an administrative tribunal or court before it can be resolved.


Judge cites NAMA's delay as crucial factor in decision not to grant stay

On Friday the High Court refused to grant a stay to NAMA pending its appeal to the Supreme Court against the February decision of the High Court that NAMA is a public authority and therefore subject to the Access to Information on the Environment Regulations.

The power to grant a stay pending an appeal is a discretionary power and the Court set out the test that should be applied when exercising its discretion. The Court was of the view that a balance of convenience-type test is appropriate whereby once there is an arguable appeal the Court must examine the relative prejudices flowing to various parties as a consequence of its decision to grant or refuse a stay. This test was recently enunciated in Danske Bank t/a National Irish Bank -v- McFadden.

The Court also drew support from Okunade -v- The Minister for Justice, Equality and Law Reform a 2012 Supreme Court decision which considered how courts should approach interlocutory injunctions in public law matters.

In reaching his decision the judge acknowledged that more than 1,000 days had elapsed since the request was made and was critical of NAMA’s behaviour in refusing to deal with the request by sticking firmly to the narrow issue that it was not a public authority. Despite having the resources and means to do so, NAMA decided it was not a public authority and took no further steps to process the request  thereby neutralising the whole request and ensuring the process will take further time and result in further appeal to the Information Commissioner. This elongation was, the court found, a direct result of the unnecessarily narrow approach adopted by NAMA.

According to the judgment:

NAMA decided to dismiss Mr. Sheridan’s 2010 request for information on a threshold issue as to whether or not it was a public authority. No other decision has ever been taken by NAMA on his request even though it could have decided whether or not the information he sought comprised environmental information as defined and whether or not any of the mandatory or discretionary grounds for refusal of information were applicable. Thus, by framing its refusal so narrowly, NAMA have effectively neutralised the whole of Mr. Sheridan’s request and have ensured that the process is likely to take further time and result in further appeals to the Information Commissioner. The elongation of the process for deciding Mr. Sheridan’s request seems to be the direct result of the unnecessarily narrow approach adopted by NAMA in determining the request.

NAMA adduced no evidence to show that the processing of the request would be an unreasonable administrative burden nor that irreparable harm would be done should information be released in circumstances where it transpires that it is not a public authority. Since no information would actually be released the balance of prejudice favoured refusing a stay. Furthermore the judge also was of the view that the rights of third parties were amply protected by the mandatory and discretionary grounds for refusal. As the Court noted:

No substantive argument or fact has been put before me which would persuade me that dealing with Mr. Sheridan’s request will cause an undue burden, either administratively or financially to NAMA. If it were the case that dealing with his request would cause such difficulties, such an argument should have been made in detail and possibly by affidavit evidence.

This judgment is a clear signal that it is incumbent upon public bodies who wish to refuse access to information on the basis that they are not public authorities to deal with all issues arising under the request unless it is administratively burdensome to do so. They will receive little sympathy in the courts should a narrow position lead to significant delays in processing a request for information. It also is a signal that public bodies wishing to avail of discretionary court orders which introduce delays will need to show specific evidence of immediate, irreparable harm before a court will make an order that unreasonably prolongs the processing of a request.

This judgment sets an important precedent in relation to how the courts expect to see requests for environmental information handled by public bodies  While the Commissioner for Environmental Information’s procedures did not feature in the judgment it is also certain that this judgment will have to be reflected in her office’s procedures.

While TheStory also made arguments in relation to EU and international law, the Court seemed to be satisfied that it had sufficient authority under national law to refuse a stay. It appears that we will have to wait until another time for further judicial consideration of the application of EU and international law to issues arising under the Aarhus Convention.

Observations on the NAMA AIE judicial review

The experience in court yesterday highlights the unfairness of the judicial review procedure in relation to High Court appeals by public authorities under the Access to Information on the Environment Regulations.

Gavin as the requester had no automatic right to be a notice party to the proceedings even though his right of access to information formed the subject matter and the decision of the Court to grant of a stay could affect that right adversely.

Luckily the judge asked that Gavin be invited to address the court. He was, in fact, the only party to put arguments against a stay being granted since the Commissioner has decided to remain neutral on this issue.

We already know that in late 2011 the Commissioner was on the point of consenting to an application by NAMA to ask the court to find in its favour and thereby ending the appeal and reversing the Commissioner’s decision. Without being a notice party we do not know why or in what circumstances the Commissioner continued to fight the appeal. Crucially, we did not have the right to make submissions on the issue but rather had to rely on the discretion of the Commissioner to inform us of the position.

It goes without saying that this situation is fundamentally unfair.

Indeed, Article 9 of the Aarhus Convention guarantees applicants a fair, equitable, timely and not prohibitively expensive judicial review process. However serious question marks must be raised concerning how this provision is implemented in Ireland since there is no automatic right for an applicant to be a notice party to judicial review proceedings initiated by a public authority against an administrative decision.

It is not like the State has no experience of this issue. Ireland has already lost a case in similar circumstances when the European Commission took Ireland to the ECJ concerning the non-implementation of the “not prohibitively costly” element of the review obligations. The ECJ  found that discretionary practices (in relation to costs) cannot be considered to be a valid implementation of an obligation. Yet here we are today and a requester for environmental information has no automatic right to participate in the appeal procedure initiated by a public authority.

This ECJ decision led to the enactment of Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which means that now costs may not be awarded against plaintiffs in certain judicial review cases relating to environmental law unless there are exceptional circumstances.

Leaving aside costs, the NAMA -v- Commissioner for Environmental Information case has exposed further flaws in the procedures for environmental judicial review where a public authority is the appellant. With a minimum 7 year delay for a final appeal in the Supreme Court the procedures clearly lack the timeliness required under the Aarhus Convention and with no automatic right to be a notice party a fundamental lack of fairness is built in to the structure of the current review procedure.