Freedom of information: Some public bodies ‘over-reliant’ on external legal advice over requests

A number of public bodies are “over-reliant” on external legal advice when responding to freedom of information (FOI) requests, the information commissioner has said.

Ger Deering said there is a “concerning” growing trend in which a small number of bodies contract out their decision-making on FOI requests to external legal advisers.

In his annual report for 2023, Mr Deering said the trend can result in the public not being given access to records to the “greatest extent possible” as provided for under the FOI Act.

“I have seen a number of cases where this practice has resulted in a public body using a broad range of exemptions to refuse an FOI request – some of which were tenuous at best,” he said.

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Mr Deering also said he was forced to issue eight formal notices to public bodies last year for failing in their obligation to supply him with the information needed to review their decision on an FOI request.

Four notices were issued to Cork City Council, with one each to Children’s Health Ireland, the Defence Forces, the Department of Health and Trinity College Dublin (TCD).

Mr Deering said he came close to issuing formal legal proceedings against TCD after it refused to provide access to certain records concerning commercial transactions.

TCD refused access for four months until the commissioner advised it would be initiating High Court proceedings, shortly after which the university advised a settlement had been reached and its application for review withdrawn.

Some 37,437 FOI requests were made to public bodies last year, according to the report, the highest number of requests made since 2019 when 39,904 were received and the second-highest since 2014.

The Health Service Executive received the most requests at 11,748, followed by the Department of Social Protection (2,468) and Tusla (1,333).

The information commissioner received 665 applications to review decisions made by public bodies under the FOI Act in 2023, most of which were refusals of access to records.

Mr Deering told RTÉ radio’s Morning Ireland the majority of such cases were dealt with very well by staff at the Civil Service or public service bodies, but a number of bodies were now relying on external legal advice.

While some might ask why was this a problem, the issue, apart from the cost, was that the culture was different between public service and private practice, he said.

External legal advisers tend to apply blanket exemptions, and while there could be legitimate exemptions for information not to be released, there appeared to be a policy of “let’s object to everything being released”, Mr Deering said.

If public bodies had a genuine reason why a particular piece of information should not be released then they should make that argument in a targeted way and quote the relevant parts of legislation, he said.

“This notion that the sky will fall down if all of our information is released just doesn’t work,” Mr Deering added.

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