Freedom of Information - Request Processing


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GUIDELINES FOR PROCESSING REQUESTS FOR INFORMATION UNDER THE FREEDOM OF INFORMATION ACTS 1997 AND 2003

Index

SECTION 1: SUMMARY OF PROVISIONS OF ACTS AND ACCESS ARRANGEMENTS
1.1 FOI ACTS 1997 AND 2003
1.2 Main features of the Acts
1.3 Reference Books
1.4. Definition of a record
1.5. Personal information
1.6 Personal information - some examples
1.7 Non personal information
1.8. Non personal information - examples
1.9 Records covered by the Acts
1.10 Form of Request
1.11 Functions of FOI Officers
1.12 Functions of Internal Reviewer
1.13 Appeal to Information Commissioner
1.14 Time Limits
1.15 List of exemptions
Section 19 :Meetings of Government
Section 20 : Deliberations of public bodies
Section 21 : Functions and negotiations
Section 22 : Parliamentary and Court matters
Section 23 : Law enforcement and public safety
Section 24 : Security, Defence and International relations
Section 26 : Information given in confidence
Section 27: Commercially sensitive information
Section 28: Personal information
Section 30: Research & natural resources
Section 31: Financial and economic interests
Section 32: Enactments relating to non disclosure of records
1.16 Public Interest
1.17 Information Service
1.18 FOI Officers and reviewers - personal records
1.19 Handling Requests - Non-personal information
1.20 Form of Access

SECTION 2: ROLE OF INFORMATION OFFICER
2.1 Proof of Identity
2.2 Assisting with request
2.3 Non-FOI solution
2.4 Motive for request
2.5 Formal request
2.6 INFORMATION OFFICER - records not held at SWLO.
2.7 Records held in another Government Department or Agency
2.8 Public Offices - records in DSFA and in other Departments and Agencies
2.9 Recording FOI requests
2.10 RECAP ON PROCEDURES

SECTION 3: RECEIVING REQUESTS: DETAILED GUIDELINES
3.1 Who may make a Request?
3.2 Phone enquiries
3.3 Requests made in person
3.4 The role of the Information Officer/Officer in Public Office
3.5 The role of the FOI Liaison Officer
3.6 The role of the FOI Decider - Regional Office
3.7 Identity Checks
3.8 Reasons for Request not relevant
3.9 Forwarding Requests to FOI Office
3.10 Cross Scheme Requests
3.11 Requests made by post
3.12 Requests for Non-Personal records
3.13 Requests for Records under Appeal
3.14 Requests proper to other Departments
3.15 Requests for DSFA and for another Department
3.16 Need for prompt action by staff generally

SECTION 4: PROCESSING REQUESTS: DETAILED GUIDELINES
4.1 Recording the Request/Opening Request File
4.2 Action and Decision Form (ADF)
4.3 Acknowledging Receipt
4.4 Insufficient Particulars about Records requested
4.5 Making Contact with Requester.
4.6 Seeking the Records
4.7 Extension of Time
4.8 Informing Supervising Officer
4.9 Continuous Review
4.10 Reserve FOI Officer
4.11 Examination of Records
4.12 Exemptions relating to Personal Information
4.13 Provision relating to Confidential Records
4.14 Privacy Protection
4.15 Joint Personal Information
4.16 Medical Reports
4.17 Third Party Records
4.18 Public Interest Factors
4.19 Weighing the Public Interest
4.20 Third Party Consultation
4.21 Unable to Consult
4.22 Records forming part of an ongoing Investigation
4.23 Exemptions for non-personal information
4.24 Contact in other circumstances
4.25 No Discussion of case with Internal Reviewer
4.26 Importance of Meeting the Deadline

SECTION 5: MAKING THE DECISION: DETAILED GUIDELINES
5.1 Refusal on Grounds of Exemption (Sections 19-32)
5.2 Record does not exist or cannot be found (S.10(1)(a))
5.3 Refusal - request is too large (S.10 (1)(c))
5.4 Refusal - request is frivolous (S.10 (1)(e))
5.5 Refusal - request is vexatious (S. 10 (1)(e))
5.6 Form of Access
5.7 Recording the Decision
5.8 Notification of Decision
5.9 Noting the Papers
5.10 Giving Access to Records
5.11 Giving Copies of Records
5.12 Preparation of Records for Inspection
5.13 Part of Record Exempt
5.14 Sending Records to another Office
5.15 Role of Officer supervising Inspection
5.16 Rules of Inspection
5.17 Action Following Inspection
5.18 Failure by requester to attend for inspection

SECTION 6: INTERNAL REVIEW
6.1 What Decisions are Subject to Internal Review?
6.2 Time Limits
6.3 Form of application for review
6.4 Recording receipt of application
6.5 Forwarding application to Reviewer
6.6 Acknowledging the application
6.7 Processing the review
6.8 Withdrawal of application for review
6.9 Giving Access
6.10 Recording the decision
6.11 Notice of decision

SECTION 7: APPEALS TO INFORMATION COMMISSIONER
7.1 Processing of appeal
7.2 Procedure by Commissioner
7.3 Burden of Persuasion
7.4 Decisions of the Commissioner
7.5 Review by High Court of Decisions

SECTION 8: REQUESTS FOR AMENDMENT OF RECORDS
8.1 Form of Request
8.2 Grounds for amendment
8.3 Acknowledgement of the request
8.4 Consideration of the Request
8.5 Ways of Amending the record
8.6 Recording the decision
8.7 Applications for review of decisions
Section 8 Appendix - CPU Notice

SECTION 9: REQUESTS TO SUPPLY REASONS FOR ACTS
9.1 Obligation to supply reasons for acts
9.2 Exemptions
Section 9 Appendix - CPU Notice

SECTION 10: PUBLICATION OF GUIDELINES
10.1 Shared Drawer
10.2 Printing copies on request
10.3 Omission of a Guideline

SECTION 11: CHARGING OF 1.17 FEES 67
11.1 General
11.2 Personal Information
11.3 Non-personal Records
11.4 Procedures
Appendix - CPU Notice

SECTION 12: RECORDS OF CHILDREN, DISABLED OR DECEASED
12.1 Outline of Contents
12.2 Classes of records which may be made available
12.2.1 Factors to be considered
12.2.3 Other provisions of the FOI Acts
12.3 Categories of requester
12.3.1 Factors to be considered
12.3.2 Consultation re the records of the deceased
12.3.3 Other provisions of the FOI acts

SECTION 13: CPU GUIDANCE NOTES RE PROVISION OF SERVICES TO DISABLED PERSONS
13.1 Outline of contents
13.2 Introduction
13.3 Designation of officers to provide a service to requesters with a disability
13.4 Provision of services to requesters with a disability
13.5 Identity of requesters seeking personal information
13.6 Consent of requesters to release of records to third parties

Appendix A Sources of disability training
Appendix B List of service providers to persons with a disability
Appendix C FOI Checklist


SECTION 1: SUMMARY OF PROVISIONS OF ACTS AND ACCESS ARRANGEMENTS

1.1 FOI ACTS 1997 and 2003

The Freedom of Information Act was passed on 21 April 1997 and public bodies were given a year to prepare for its implementation. The legislation comes into force for all Government Departments and certain State agencies from 21 April, 1998.

It will be extended to include Health Boards and Local Authorities from October 1998.

The legislation applies only to public bodies and not to private companies or firms.

The Freedom of Information Act, 1997 was amended by the Freedom of Information Amendment Act 2003.

1.2 Main features of the Acts

The Acts confer three new rights on members of the public:

  • a right to access all records unless they are exempt (see list of exemptions at 1.16 below)
  • a right to have personal information amended where it is incomplete, incorrect or misleading (amendment of records is unlikely to arise very often)
  • a right to reasons for decisions regarding acts of public bodies affecting the person.

The Acts also provide for the establishment of the Office of the Information Commissioner having independent status. The Information Commissioner has the power to review decisions of public bodies to refuse access to records.

The Commissioner designate is also the current Ombudsman.

Note: The term 'Requester' is used throughout these guidelines to refer to a member of the public seeking access to records.

1.3 Reference Books

The Acts requires each Government Department to produce and publish by 21 April, 1998:

  1. A Reference Book setting out
    * its functions, structure and organisation
    * the services which it provides and how these may be availed of by the public
    * the general types of records held, and
    * the arrangements which it has put in place so that the public can gain access to records held by the body.
  2. a Reference Book containing the internal rules, guidelines, interpretations and procedures which it uses for the purposes of making decisions and recommendations.
1.4. Definition of a record

The definition of a record for the purposes of the Acts is as follows:

  • Paper records: books, files, letters, loose papers,desk diaries, notes and memos
  • Electromagnetic: disks, servers, databases
  • Audio visual: film, tapes, CDs,
  • Photographs: maps, plans, x rays, microfiche, microfilm

Records fall into two categories -

  1. records relating to personal information, and
  2. records relating to non personal information.
1.5. Personal information

Personal information is information about an identifiable individual that would only be known to the individual or members of his/her family or friends
or

information held by the public body on the understanding that it would be treated as confidential.

The Acts allows members of the public to access personal records relating to themselves which are held by a public body unless they are covered by an exemption. Members of the public are entitled to seek this information regardless of their motive in doing so.

1.6 Personal information - some examples

Files and documents containing details of an individual's

  • educational or medical history
  • finances
  • employment record
  • marital status, religion, age and sexual orientation
  • social welfare/tax records.
1.7 Non personal information

This includes records generated by, or on behalf of, or broadly concerning the work of the public body itself.

1.8. Non personal information - examples

Includes analysis, advice, internal rules, procedures, practices, briefs, submissions and reports.

1.9 Records covered by the Acts
  1. The legislation applies to all personal records of members of the public, whenever they were created.
  2. It applies only to non personal records created after 21 April, 1998, except in instances where access to records created previously is necessary in order to understand records created after the commencement date.
  3. For staff of public bodies, it applies to all Personnel records created three (3) years prior to the commencement date, i.e., created after 21 April, 1995. Personnel records created before this date may only be accessed where they are being used in a manner that affects adversely the interests of the person concerned.
1.10 Form of Request

A request for access to a record under the FOI Acts must be made in writing and addressed to the head of the public body concerned (i.e., the Minister), or (in practice) to any member of staff. It must also give sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps to locate it.

1.11 Functions of FOI Officers
  1. To decide whether to grant or refuse a request for access to records or to grant the request in part
  2. to decide whether to defer an offer of access to records
  3. if request is to be granted, to determine the form and manner in which the right of access will be exercised
  4. to give access in a form other that that specified in the request (if necessary)
  5. to give notice of the decision and determination in writing to the requester concerned
  6. to decide whether to grant or refuse a request for amendment of records
  7. to decide on requests for reasons for decisions and on the contents of the statement of such reasons
  8. to decide whether a fee or deposit should be charged, and if so the amount to be charged.
1.12 Functions of Internal Reviewer

Where a requester is dissatisfied with the decision given by the FOI Officer in relation to any of the matters listed at 1.11, he/she is entitled to seek an internal review of the decision.

The Internal Reviewer may

  1. affirm or vary the decision, or
  2. annul the decision, and if appropriate, make such decision in relation to the matter as s/he considers appropriate.

Failure on the part of the Department to make a decision within the 3 week period is taken as a refusal to the request and entitles the requester to apply for an internal review.

1.13 Appeal to Information Commissioner

Where the requester is still dissatisfied with the decision made, following the internal review, he/she may lodge an appeal with the Information Commissioner. This is referred to as 'external review'.

The Information Commissioner must take all reasonable precautions during a review to prevent disclosure to a party (other than a head) of exempt information in a record, or in certain circumstances, information as to whether or not a record exists.

The decision of the Information Commissioner is binding. However, an appeal may be made to the High Court on a point of law by any person affected by an initial decision, an internal review or a decision of the Commissioner.

The Information Commissioner may also refer any questions of law arising in a review to the High Court for determination, and may postpone making a decision in a review until after such a determination.

An applicant may withdraw their request for review at any time, in writing to the Commissioner.

1.14 Time Limits

The Acts specify the following time limits for processing FOI requests.

FOI requests must be acknowledged within 2 weeks of receipt. The decision must be made and notified to the requester within 4 weeks of having received the request (this includes the 2 weeks in which to acknowledge receipt of application).

There is an extension of three weeks to the original period of four weeks if it is necessary to consult with third parties.

An application for Internal Review must be made within 4 weeks of the initial decision. That time period may be extended at the discretion of the reviewer on reasonable grounds.

The internal review must be completed within 3 weeks. If no decision is made within 3 weeks, it is deemed to be a refusal and the applicant may proceed with an appeal to the Information Commissioner Appeals to the Information Commissioner must be made within 6 months of the date the notice of decision is given to the person bringing the appeal.

1.15 List of exemptions

Most of these exemptions relate to non-personal records and are included to allow the business of Government to continue unimpeded while maintaining the spirit of the Acts.

The exemptions are mentioned in the sequence they appear in the Acts and one or two examples of the records covered under each heading are given.

Section 19: Meetings of Government submissions, briefing material and records of government are protected for 5 years

Section 20: Deliberations of public bodies protects opinions, advice, recommendations, and outcome of consultations where disclosure is contrary to the public interest

Section 21: Functions and negotiations protects records where disclosure could prejudice the effectiveness of investigations, inquiries or audits or the outcome of industrial relations negotiations

Section 22: Parliamentary and Court matters protects certain records which would be exempt from production in court and the private papers of certain elected representatives

Section 23: Law enforcement and public safety protects records where disclosure could prejudice or impair the prevention, detection or investigation of offences

Section 24: Security, Defence and International relations protects records where disclosure could reasonably be expected to harm the security, defence or international relations of the State.

Section 26: Information given in confidence the Acts allow public bodies to exempt from disclosure certain information received in confidence

Section 27: Commercially sensitive information protects the disclosure of trade secrets and other sensitive information to a third party which could affect the competitive position of the person to whom the information relates

Section 28: Personal information personal information held by a public body may only be disclosed to the person to whom the information relates. However, if a person gives permission this information can be released to a third party.

Section 30: Research & natural resources protects the disclosure of records which could prejudice the well being of cultural, heritage or natural resources

Section 31: Financial and economic interests protects records whose disclosure could be expected to have a serious adverse affect on the financial interests of the state or would result in undue disturbance of the ordinary course of business generally

Section 32: Enactments relating to non disclosure of records refers to other existing legislation which prohibits the release of certain information, e.g., the secrecy provisions of the Adoption Act.

1.16 Public Interest

There is a Public Interest test on some of these exemptions. This allows for the release of information in circumstances where in the opinion of the head of the body (or the member of staff with delegated functions) "the public interest would, on balance, be better served by granting than by refusing to grant the request concerned". (See Section 4.15)

1.17 Information Service

At all offices that deal with the public there will be an officer available to advise on FOI and accept/help with FOI requests.

The Information Officer at Local Offices and staff of Public Offices will fulfil this role. (See also Section 2 of this guideline on the Role of Information Officers)

1.18 FOI Officers and reviewers - personal records

In each Regional Office and scheme area where personal records are held, there is an FOI Officer at EO/HEO grade who decides all requests for access to personal records only.

As a person has a right of review within the Department where he/she has been refused access to a record, there are number of Internal Reviewers at a more senior level.

The centre for support and advice on FOI in the Department is based in the Decisions Advisory Office.

1.19 Handling Requests - Non-personal information

A small number of officers in the SWS and Aireacht will decide on requests for access to non-personal records.

Requests for internal reviews will be dealt with by officers at a more senior level.

1.20 Form of Access

The Acts provide that access to a record may be made in a number of ways, e.g.:

  • a copy of the record
  • a transcript of the information concerned
  • a reasonable opportunity to inspect, hear or view the record

The decision as to the manner of access is determined by the FOI Officer in each case.

In the majority of cases a photocopy of the record(s) requested will be provided to the requester. In some instances, however, he/she will ask to see the actual records concerned. In these cases, arrangements will have to be made to allow the requester the opportunity to inspect the records in question. This does not entail an opportunity to question the FOI Officer on the content of the records but merely a chance to view the originals of the records requested.

SECTION 2: ROLE OF INFORMATION OFFICER

The Information Officer in the SWLO and the staff of the Public Offices are the first point of contact for members of the public who visit the Department's offices to make enquiries under FOI.

The Information Officer and staff in the Public Office will accept and help with FOI requests from members of the public under the FOI Acts.

The FOI Liaison Officer (formerly FOI Officer) in the local office plays a role in assisting the Information Officer to determine whether a request can be dealt with outside FOI or whether an official request should be made.

The following sets out the role of the Information Officer/staff of the public office in handling FOI requests:

2.1 Proof of Identity

It is important that before dealing with a request for personal records that the Information Officer establish the proof of identity of the requester to his/her satisfaction (e.g., Passport/Driver's licence/any document with photo affixed). This procedure is necessary to help eliminate the risk of impersonation during the process.

It might be useful for the Information Officer to get the requester's Personal Public Service Number (PPSN) and bring up his/her records on INFOSYS while talking to the requester. This will help with ID checks where a person has no other form of identification at the time of making the request.

2.2 Assisting with request

When the FOI requester first calls to the SWLO/Public Office to make a request, the Information Officer or officer in the Public Office will seek to accurately determine what the requester is looking for.

The Information Officer or staff in the Public Office should discuss the request with the person and see if it can be met in a non-FOI way, i.e., disclose the information without the requester having to avail of his/her rights under the FOI Acts.

2.3 Non-FOI solution

This Department routinely makes information available to members of the public at present. It is intended that this practice should continue and that the provisions of the FOI Acts need only be invoked for information that is not routinely available.

A number of personal records are currently given out to claimants, especially where a person has lodged an appeal with the Social Welfare Appeals Office. These records include:

  • claim forms,
  • tax forms P45 & P60,
  • SWAO appeal forms,
  • letters concerning search for work for UA/UB purposes
  • claimant's bank statements
  • UP 20 *
  • SWI reports *

* Given that these documents may contain information which is exempt from disclosure under FOI, it is suggested that where these records are requested the FOI Officer should examine them in advance of disclosure and decide whether an FOI request is required or whether they can be released in full.

If a request can be met in a non-FOI way the Information Officer/staff of the Public Office will make a note of the records requested and pass this information to the relevant person for action. For records held at the SWLO, the Information Officer can either ask the requester to call back to the office at a certain time or suggest that a copy of the records requested could be sent out to him/her. For records held in another local office or scheme area, the Information Officer should send a message to the appropriate person in that area asking that the records in question be forwarded to the requester.

In the case of requests made at a public office, the request should be noted and the appropriate person in the relevant area should be asked to deal with the request.

2.4 Motive for request

The Acts specifically state that the motive behind a request must be disregarded. Information Officers, staff in public offices and FOI Officers should not, therefore, question a person as to why they want particular records as this must be disregarded in the making of the decision whether or not to release the records requested.

2.5 Formal request

Where the request clearly cannot be met in a non-FOI way it will be necessary for the Information Officer/staff in a Public Office to try to determine exactly what the requester is seeking. The Department has a duty under the FOI Acts to give reasonable assistance to a person in relation to the making of the request for access to records. This is especially important where the requester may be a person with a disability.

The FOI request must be made in writing on the Request Form (FOI 1) and addressed to the Head of the Department (i.e. the Minister) or to any member of staff. Request forms for access to records under the FOI Acts are available in every local office. Where a request form is taken away to be completed by the requester, please ensure that the address of the SWLO is stamped on the back of the form.

When the request form has been completed it must be passed on to the FOI Officer for immediate attention.

2.6 INFORMATION OFFICER - Records not held at the SWLO

A member of the public can submit a request for records held in any section of the Department to the Information Officer in the SWLO.

Where the request is for records that are held at another office or in another section of the Department, a formal written request must be made for the records in question.

The role of the Information Officer is merely to assist the requester to make the request and pass the formal request to the FOI Officer in the Regional Office for attention.

The FOI Officer in the Regional Office will be the person responsible for ensuring that the request is sent to the FOI Officer in the relevant office or section.

This procedure also applies where the request is for non-personal records - the request form should be given to the FOI Officer in the Regional Office who will transfer it to the relevant FOI Officer for non-personal records.

While it will be the function of the FOI Officer to transfer requests between offices/sections, a list of all the FOI Officers and their locations will be issued to Information Officers for information.

2.7 Records held in another Government Department or Agency

The Acts provide for the transfer of a request where the records sought are held by another public body. This means that where a written request for records under the FOI Acts is received in a local office or public office, it should be passed without delay to the FOI Officer in the Regional Office for transfer to the appropriate Department. This procedure only applies where the request for records relates in whole to another Government Department or State agency.

Where a request relates only in part to records held by another Government Department or State Agency, the requester should be told that the FOI Officer in the Regional Office will deal with the part of the request proper to this Department and the name of the other Department or Agency to which the rest of the request relates. Where possible the name of the FOI Officer in that Department or Agency should be supplied.

However, if a person is simply making an enquiry about certain records and is not sure to which Department he/she should address their enquiry, the Information Officer should try and clarify what the person is looking for and refer them to the relevant Department or Agency where possible.

A list of the FOI Officers for the various Departments will be made available to Information Officers for information in due course.

2.8 Public Offices - records in DSFA and in other Departments

Staff in public offices will have a slightly different role than Information Officers by virtue of the fact that there will be no FOI Officer in the public office.

Public office staff will have to determine in each instance to which FOI Officer in the Department the completed request form should be sent.

In the case of receipt of a written request that is proper to another Department, the public office staff will have to forward the request to that Department for attention. As with callers to the local offices, however, where it can be determined that the records being requested are proper to another Department or Agency the requester should be advised to make a request to the other body.

To assist with the transfer of requests within the Department, a list of all the FOI Officers and their locations will be issued to staff of the public offices before 21 April 1998. Similarly, a list of the FOI Officers in other Departments will be circulated when available.

2.9 Recording FOI requests

The FOI Officer will be responsible for recording details of each FOI request they deal with, including the nature of the assistance given to the requester at the time he made his request. This is needed in case the request if refused on the grounds of being an invalid request and the matter is reviewed at a higher level within the Department or by the Information Commissioner.

It would be helpful, therefore, if the Information Officer and the staff in the public office keep a record of the FOI queries they receive and the assistance given at the time.

2.10 RECAP ON PROCEDURES

To recap, the role of the Information Officer/staff in Public Offices for FOI purposes will be as follows:

  1. assist the requester in clarifying what records he/she requires
  2. explore the feasibility of a non-FOI solution with the requester
  3. if an FOI request is required, assist the requester to complete a request form for access to records
  4. accept the FOI request
  5. advise the FOI requester of the next steps in the procedure and the name/location of the relevant FOI Officer for further enquiries
  6. ensure that the request is passed to the FOI Liaison Officer in the SWLO with the minimum of delay but in any event no later than close of business on the same day the request was received.

SECTION 3: RECEIVING REQUESTS

DETAILED GUIDELINES

These guidelines cover the procedures for handling both personal and non-personal information. A separate manual produced by the Central Policy Unit of the Department of Finance is also available to the Officers dealing with non-personal information and includes detailed material on exemptions which may apply to non-personal records.

3.1 Who may make a Request?

Any person can make a request under the Acts. A 'person' for this purpose can include a legal entity such as a corporation, a community association, a sole trader, a trust or an unincorporated firm.

3.2 Phone enquiries

FOI requests must be made in writing. An FOI Information Leaflet SW 89 and an FOI Request Form (FOI 1) should be issued to any person who phones about obtaining access to records under the Acts. When issuing a request form, please ensure to include your address in the space provided at the back of the form for return postage.

3.3 Requests made in person

At a local office/Public Office:

Where a person attends at a Local Office enquiring about how to make a request under the FOI Acts, s/he should be referred to the Information Officer for attention. The Information Officer may call upon the FOI Liaison Officer to assist with an enquiry about an FOI Request.

The officers at Public Offices will also be a first point of contact for personal callers enquiring about FOI.

3.4 The role of the Information Officer/Officer in Public Office dealing with enquiries is -
  • to issue the Information Leaflet SW 89
  • to issue FOI Request Forms
  • to help to clarify the records the person wishes to access to assist the person with the completion of the Request Form
  • to check and record ID where a Request is made at that point
  • to advise the person about what happens next
  • to forward the Request to the FOI Liaison Officer without delay
3.5 The role of the FOI Liaison Officer

When an official FOI request is received in the local office, it will be the duty of the FOI Liaison Officer to send it immediately to the FOI decider in the regional office for his/her information (this should be done via fax or e-mail in the first instance). The FOI Liaison Officer should also locate the file/records in question and forward these with the official request to the FOI decider in the Regional Office as soon as possible.

It is important that all relevant and available records are forwarded to the FOI decider in the regional office as quickly as possible following receipt of an FOI request. Where records no longer exist, e.g., have been purged in accordance with normal archiving procedures the regional FOI decider should be made aware of this. Where records cannot be found, the search steps should be documented and forwarded to the FOI decider for his/her attention.

When forwarding files/records to the regional offices you should ensure that you have a safe method of delivery. Similarly, when files/records are being returned to the local office, the FOI decider should ensure that the records are returned safely and promptly. Where certain records are necessary to process a claim or make payment to a client, copies of these records should be kept by the local office before forwarding to the regional office.

3.6 The role of the FOI Officer in the Regional Office

It is the job of the FOI decider in the Regional Office to acknowledge receipt of the request, clarify request where this is necessary and enter details on the FOI Request Registration (FRR) system. All contact with the requester, following receipt of an FOI request, will be made by the FOI decider.

It is important that we have a good record of the search undertaken for records that cannot be found in case of further appeals. When a case goes before the Information Commissioner he will look for the following:

  • the particular records management system in operation
  • the circumstances in which the records were created
  • whether the records were active or dormant
  • who has responsibility for them and the actual steps taken to locate them, e.g. who searched, where, how.

If necessary, the FOI decider should visit the local office/branch office himself/herself to confirm the search undertaken for the records in question.

All regional FOI deciders have been given access to the FRR and have been associated with all the local offices in their region, i.e., they will be able to key in the name of the local office where request is received in the "station" field. This is to enable us to provide statistics (if necessary) to show what areas are receiving most queries on FOI.

3.7 Identity Checks

To guard against a person obtaining access to records under another person's name, ID checks will have to be made. In the case of personal callers, this check should be made, where possible, at the point they complete and hand in an FOI Request. The person should be asked for identification such as the birth cert or passport and one other form of identification. If the person has no form of identification, the Request should be noted 'No ID'.

When the FOI Officer in the Regional Office receives the request and identity has not been confirmed, s/he should check identification through Departmental sources i.e. signatures, address checks etc. If the FOI Officer has reason to doubt the identity of the requester s/he should make arrangements for him or her to call in person to the Local or Public Office and have identity checked in person.

3.8 Reasons for Request not relevant

Under the Acts, a person may not be asked about his or her reasons for seeking access to the records requested. Care should be taken, therefore, to ensure that questions about the particular records being sought are framed in such a way does not contravene this requirement.

3.9 Forwarding Requests to FOI Officer

It is important that all staff ensure that any FOI Requests received are forwarded to the FOI Officer on the date of receipt.

3.10 Cross Scheme Requests

A requester may submit a request which covers records for more than one scheme in the Department or which covers both personal and non-personal information. In such cases, the FOI Officer should retain the request relevant to him/her and should immediately fax or send the request to the FOI Officers dealing with the other schemes or non-personal information.

Each FOI Officer is responsible only for the request relevant to his/her area. In acknowledging receipt in such cases, each FOI Officer acknowledges that part which is proper to him/her.

In the case of public offices, the person who receives the request must identify the relevant FOI Officers and refer copies of the request to them.

It is important that where a request is received that is not readily identifiable as being relevant to any particular area, that the FOI Officer who receives the request contacts the requester and clarifies what records s/he is looking for. Requests should not be passed to other sections unless it is clear that the request is actually for that section.

3.11 Requests made by post

An FOI request may be made in writing other than on the Request Form e.g. by letter. To be a valid request, the person must state in the letter that s/he is seeking access to records under the FOI Acts and give sufficient particulars to enable the records to be identified.

If a letter contains all of the necessary elements it can be accepted as an FOI request and processed accordingly. However, in any relevant elements are absent, a Request Form should issue. Again, please ensure that a return address has been included on the form.

Note: in any case where a person indicates in a letter (including representations) that s/he wishes to make a request under the Acts, the fact of the request should be notified immediately to the FOI Officer for attention.

Requests received by fax, E-Mail should be referred to the appropriate FOI Officer for consideration.

3.12 Requests for Non-Personal records

Requesters should be directed to send non-personal requests to the FOI Unit in the first instance at the following address:
FOI Unit, Department of Employment Affairs and Social Protection, Social Welfare Services Office. Carrick-on-Shannon, Co. Leitrim. Phone: (071) 9672545, E-mail: foi@welfare.ie

The FOI Unit will forward the request to the relevant FOI Officer, retaining a copy for reference.

A copy of each request received direct by the appropriate FOI Officer (i.e. not via FOI Unit) must be faxed to the FOI Unit on the date of its receipt.

A request received direct by another area of the Department should be forwarded to the FOI Officer nominated for the area in question. A copy of the request should be faxed simultaneously to the FOI Unit with a note as to whom the request has been forwarded. If there is any doubt as to the correct FOI Officer, the person who recieves the request should send it direct to the FOI Unit immediately.

3.13 Requests for Records under Appeal

Where records requested are held by the Social Welfare Appeals Office (SWAO), the FOI Officer in the SWAO will process such requests. It is important, therefore, to clarify in the first instance that some or all of the request is actually proper to the Appeals Office.

If a request is received which relates wholly to records held by the Appeals Office, the entire request should be forwarded to the SWAO. Where the request relates only in part to records held by SWAO (i.e., other records are also sought) a copy of the request should be sent to the FOI Officer in the Appeals Office to deal with the part of the request relevant to the SWAO.

It is important to confirm, however, that the records in question are actually with the Appeals Office at the time of the request and that they have not been referred back to the local office/scheme area with follow up queries or to an Inspector. If the case has been referred back to an Inspector and the investigation is in train, the request can be refused under Section 21 of the FOI Acts (records part of ongoing investigations). In such cases, the requester has of course the right to re-apply for access to the records when the investigation is complete.

3.14 Requests proper to other Departments

The FOI Acts require that where a request is received for a record that is held by another Public Body, a copy of the request must be forwarded to that body within 2 weeks of receipt. It is essential, therefore, that any such requests received be referred immediately to the FOI Officer for transmission to the body concerned without delay.

The FOI Officer should advise the person concerned that the request has been forwarded to the public body in question and that all further correspondence will be with that body.

If a requester makes an enquiry about FOI which is entirely proper to another Department (without actually having submitted a request) s/he should be informed that the request should be made to that Department.

3.15 Requests for DSFA and for another Department

The FOI Officer should accept that part of the request proper to this Department and inform the requester which Department the remainder is proper to, advising the requester to make a separate application to that Department in respect of those records.

3.16 Need for prompt action by staff generally

Given the strict time limits for acknowledgement and determination of FOI requests, it is most important that action on processing a Request commences without delay.

It is most important, therefore, that all staff co-operate in ensuring that Requests are sent to the appropriate FOI Officer immediately.

A list of the names, telephone numbers, addresses and E-Mail user names for all FOI Officers and Reviewers will be available to facilitate this process. The FOI Unit in the DAO should be contacted if there is any doubt about where to send a request.

SUMMARY OF SEQUENCE OF ACTION (PARAGRAPHS 3.1 - 3.16)

  • Issue FOI Information Leaflet and Booklet to any person enquiring about FOI
  • Issue Request Form if a person makes phone enquiry
  • Identify records that the person wishes to access
  • Assist with completion of request form, where required
  • Check identity of requester
  • Transfer any requests for records proper to another Department
  • Transmit any requests for non-personal information to the FOI Officer dealing with non-personal records
  • Transmit requests for personal information to FOI Officer immediately

SECTION 4: PROCESSING REQUESTS

DETAILED GUIDELINES

4.1 Recording the Request/Opening Request File

The Request Form must be date-stamped on the date it is received - the time for processing the Request begins from that date (but see para 4.3 below re acknowledgement). The request Form should then be placed in a file cover , on the front of which should be written the person's name, address, Personal Public Service Number (PPSN) and the latest date for reply i.e. 4 weeks from date of receipt. (This date should be amended if the time limit is subsequently extended).

Details of the FOI request should be entered on to the FOI Request Registration (FRR) System.

4.2 Action and Decision Form (ADF)

An Action and Decision form should be maintained in each Request File. This form is to be used to record all action in relation to an FOI Request, including the following:

  • date Request received
  • date of Acknowledgement
  • messages sent to other sections to forward records
  • consultation in relation to the request
  • decision on request, with reasons
  • date of notification of decision
  • request for Internal Review, action, decision etc.
  • appeal to Information Commissioner
4.3 Acknowledging Receipt

Receipt of a request should normally be acknowledged on the date it is received by the FOI Officer, but in any event not later than 2 weeks from the date of its receipt, by means of the Acknowledgement Form devised for this purpose (template in FRR).

However, if the request is not clear or insufficient particulars have been supplied by the requester, the request should not be acknowledged until the FOI Officer is satisfied that it can be accepted as a valid request.

See also Section 11 re Fees.

4.4 Insufficient Particulars about Records requested

If the Request Form does not contain sufficient particulars to enable the records the person is seeking to be identified, the FOI Officer should:

  • contact the person concerned, if possible by phone
  • advise him/her that the Request cannot be processed because the information supplied is insufficient
  • inform the requester about records held which relate to the matter of his/her interest
  • discuss with the person the terms and scope of the FOI Request
  • agree with the requester the details of their FOI request
  • acknowledge receipt of the request, as now agreed, with effect from the date of such agreement. Note ADF.

It should be explained to the person that in the absence of clarification or supply of relevant particulars, the request will have to be refused. In the event that the particulars are not furnished, a note should be made and retained on the Request File of all steps taken and of assistance offered. This may subsequently become the subject of an internal review application or of an appeal to the Information Commissioner.

4.5 Making Contact with Requester.

Other than in straightforward cases, it will generally be in the interests of both parties for the FOI Officer to contact the requester as early as possible and clarify what exactly the latter is seeking. Ideally this should be done face-to-face or by phone. Clarification of a request could arise, for example, where the person seeks access to "all records which the Department holds" about him/her. In such cases, the FOI Officer should try to establish whether the request relates to records of one or more specific social welfare claims or to PRSI records or another record type.

It should be made clear to the requester that the purpose of the contact is help meet the request in every way possible. In no circumstances should any attempt be made to dissuade from pursuing the request.

4.6 Seeking the Records

On receipt of a request, the FOI Officer should identify the records being sought and ask the section(s) concerned to forward them for consideration without delay. This should normally be done by way of a Mail Message to the Section marked 'Urgent - FOI Request'.

It might also be useful for the FOI Officer to draw up a distribution list of staff in a particular area to be contacted if a request is received, for example, in the case of an FOI Officer in the Local Office, the distribution list might include officers of the SIU/JIU who may retain separate client files from the local office. If the section is in another area/office, the message should be sent to the FOI Officer there. The message should set a specific deadline for furnishing the records and ask any reason why it may not be possible to meet that deadline be notified immediately - so that special action can be taken to overcome the problem.

4.7 Extension of Time

The Acts allow the standard 4 week time limit for dealing with requests to be extended in certain limited circumstances:

  • where the request relates to such a number of records that compliance with the standard 4 week time period is not reasonably possible
  • where the number of other FOI requests relating to the particular record(s) sought or to information corresponding to that to which the request relates, are such that compliance with the standard 4 week time period is not reasonably possible.

The requester must be notified of the fact of the extension and the period of the extension before the expiry of the initial 4 week period. The period of extension must not exceed 4 weeks.

Where a period of extension is proposed, the requester has the right to appeal the matter directly to the Information Commissioner, without going through internal review. The notification of the extension of time should clearly specify this right together with details as to how the right may be exercised.

In all cases where an extension of time is being considered, the DAO should be consulted.

4.8 Informing Supervising Officer

In all cases the mail message requesting records from a section or office should be copied to the FOI Officer's supervising officer. This procedure is to ensure that, if the FOI Officer is not available, arrangements can be made to furnish the records being sought.

The FOI Officer should notify his/her AP/PO of any non personal request for records received.

4.9 Continuous Review

The FOI Officer will need to keep the position in relation to each Request with which s/he is dealing under continuous review by phoning, sending reminders etc. The Decisions Advisory Office should be alerted of undue delay in records being provided.

4.10 Reserve FOI Officer

In the event that the FOI Officer is absent from duty, the FOI Officer should arrange for the Reserve FOI Officer to deal with cases.

Note: If both of the FOI Officer and the Reserve Officer are concurrently absent, alternative arrangements will have to be made to process requests.

SUMMARY OF SEQUENCE OF ACTION (Paragraphs 4.1 to 4.10)

  • Open a Request Folder with identifying details on cover and deadline for reply
  • Send Acknowledgement. Note on FOI Action and Decision Form (ADF).
  • If insufficient particulars given on Request Form, contact requester
    - if particulars supplied, accept from date of supply and process in the normal way
    - if particulars not supplied, refuse access
  • If request is not clear, contact requester for clarification
  • Ask sections concerned for the records in question. Record on ADF.
  • Copy mail message to person's supervisor
  • Keep under continuous review
  • On receipt of records, examine them to see if they are relevant/all present
  • Identify records that may be exempt
4.11 Examination of Records

On receipt, the FOI Officer should check that:

  1. the records are relevant to the request
  2. all available records have been furnished

Each record should then be examined to see whether it can be disclosed or whether it is exempt under the provisions of the Acts.

Records that will normally be disclosable will include:

  • documents completed or furnished by the requester e.g. claim forms, tax forms, applications for jobs, appeal forms
  • replies by employers to enquiries about reason for leaving work etc.
  • claimant's bank statements
  • reports by inspectors on investigation *
  • UP20 *
  • OB4 *

* These documents may contain sensitive information which would be exempt from disclosure under the Acts. It is advisable therefore that any request which includes such documents should be referred to the FOI Officer to advise on whether they can be released or whether an application under FOI should be made (as some material would be exempt).

Current practice in releasing information to TDs or to solicitors on behalf of claimants will continue as heretofore.

4.12 Exemptions relating to Personal Information

The main exemptions to be aware of in dealing with requests for personal information relate to:

  • information received in confidence (Section 26 of FOI Acts)
  • personal information (Section 28 of FOI Acts)
  • ongoing investigations (Section 21 of FOI Acts)
4.13 Provision relating to Confidential Records

The FOI Acts provide that information received in confidence is exempt from disclosure unless the FOI Officer decides that the public interest overrides such exemption. There are four elements which must be satisfied before a record can be considered as coming within the scope of this provision:

  1. the record concerned contains information given to the Department in confidence, and
  2. on the understanding that it would be treated as confidential, and
  3. its disclosure would be likely to prejudice the giving of further similar information from the same or other persons, and
  4. it is of importance to the Public Body that such future similar information should continue to be provided

Each case has to be tested to see whether it meets all four elements of the provision.

The fact that a document received in the Department is marked 'confidential' does not mean that it is thereby exempt - it has to meet the above tests.

4.14 Privacy Protection

Section 28(1) provides that a public body must refuse to grant an FOI request if access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased person).

This exemption is designed to protect the personal privacy of individuals and together with the other provisions of Section 28 puts in place controls to prevent the inappropriate release of personal information about individuals.

See Section 12 with regard to:

  1. the release of the records of a deceased person to specified classes of requester, and
  2. the release of records of minors and incapacitated persons who are unable to act on their own behalf to parents and guardians.
4.15 Joint Personal Information

If the record contains joint personal information about the requester and other person(s), it will be necessary to consider whether the information relating to the requester is in discrete, clearly identifiable form and can be extracted from the record. If the information of the requester is inextricably linked with that of other persons, the privacy protection of Section 28(1) will apply to the personal information of those other persons. If despite this, the decision maker is of the view that the information sought should be released, he or she must first undertake consultation with the third parties involved in accordance with Section 29 (Public Interest Test).

The issue of joint personal information is most likely to arise in the case of reports held on DWB claims and One Parent Family Payment claims held in the PSO. It may also arise in the context of the work of the Family Mediation Services. In any case where is doubt as to whether the information held is joint personal information, the DAO should be consulted.

4.16 Medical Reports

The Acts provide that the confidentiality requirement mentioned above does not apply to records held by a Public Body that were furnished by a person who is under a contract for services to that body. Accordingly, certificates or reports relating to sickness benefits claimants that are received in the Department from approved Medical Certifiers are not covered by the confidentiality provision.

The Acts provide however that where the disclosure of medical records might prejudice the health or well-being of the person concerned, their release should be to a qualified health professional. Therefore, in all cases where a request is made for access to records containing medical reports, it should be referred to the Medical Adviser of the Department for advice on this aspect, including whether the records should issue directly to the requester or to the GP.

4.17 Third Party Records

Personal information relating to a third party is generally exempt from disclosure except in the following circumstances:

  • the public interest in disclosure outweighs the public interest in the right to privacy of the person to whom the information relates
    or
  • the grant of the request would benefit the individual to whom the information relates and/or
  • the 3rd Party agrees to its release.
4.18 Public Interest Factors

The FOI Officer has to form a judgement on the matter by balancing the public and private interests. For this purpose s/he must make whatever enquiries are necessary to establish the pros and cons of the particular case. The relevant public interest factors will vary depending on the facts of each case but will include the following:

  • the public interest in protecting privacy
  • the entitlement of members of the public to a degree of personal privacy when they have dealings with Government
  • the public interest in maintaining personal privacy of third parties
  • the public interest in a person being given access to documents which contain personal information about that person
  • the public interest in the requester exercising rights of access under the FOI Acts
  • the public interest in ensuring that personal information held by public bodies is accurate, complete and up-to-date and not misleading, and in the subject of that information being able to access and correct such information, where it can be shown to be inaccurate, incomplete, or misleading
  • the public interest in the accountability of officials
  • the public interest in persons being informed of the basic substance of allegations made against them to public bodies
  • the public interest in citizens being able to exercise their rights at law where the facts establish a cause of action
  • the public interest in maintaining the ability of a body to investigate breaches of the law
4.19 Weighing the Public Interest
  1. Identify the relevant public interest factors.
  2. List the factors for and those against access.
  3. Evaluate the relevant public interest factors, e.g., no weight, minimal weight, moderate weight or considerable weight.
  4. Determine where the balance lies.

If an FOI Officer considers that there may be a public interest test applying to a case, s/he should contact the DAO immediately.

4.20 Third Party Consultation

Where the FOI Officer concludes that the record is exempt because of the provisions relating to (a) confidentiality or (b) personal information but that the public interest may be served by granting the requester access to the record, s/he must consult with the relevant party or parties concerned.

Consultation should be done by way of letter to the 3rd Party which should informing him/her of the requester and should:

  • set out details of the record(s) in question
  • ask the Third Party for his/her comments on why the record(s) should not be disclosed.
  • advise the 3rd Party that s/he has three weeks to make a submission to the FOI Officer in the matter
  • say that after that time a decision will be made.
  • inform the 3rd Party that although s/he is being consulted for her views in the matter, it is a matter for the FOI Officer to decide whether to release the information or not
  • advise him/her that if the FOI Officer decides the information should be released, s/he will be given the opportunity to appeal the decision to the Information Commissioner

If no response is received from the third party within the three weeks, the decision can be made. The 3rd Party has no right of review or appeal against this decision.

If a submission is made but the FOI Officer concludes that disclosure should nevertheless be made, the FOI Officer must notify the Third Party in writing of that conclusion and afford him/her the right to appeal it to the Information Commissioner before a decision is formally made in the matter. Such an appeal must be made within 2 weeks of receipt of the notification. If an appeal is made, the requester should be advised of the position. If the Information Commissioner rules that the record(s) may not be released, the requester should be notified accordingly.

4.21 Unable to Consult

The FOI Officer must make all reasonable efforts to contact a 3rd Party who has a right to be consulted in a case. Reasonable efforts to locate the third party could include basic steps such as:

  • contacting persons who would be likely to know the current whereabouts of the third party;
  • searching related databases (e.g. INFOSYS) and other files which might hold a current address
  • checking telephone directories or other available sources.

After all reasonable steps have been taken without success, the FOI Officer should apply to the Information Commissioner for approval to dispense with consultation. If the Information Commissioner conveys his agreement to waiver of consultation, a decision on the request should be made within 7 weeks.

4.22 Records forming part of an ongoing Investigation

The Acts provide that access to records may be refused where it would prejudice the effectiveness of investigations by or on behalf of the Department. Requests made therefore for records which are part of an investigation in process can be exempted from disclosure, pending the outcome of the investigation.

4.23 Exemptions for non-personal information

Guidelines on exemptions applicable for non-personal information are available separately to the FOI Officers with responsibility for processing requests for non-personal information. (See CPU Manual)

4.24 Contact in other circumstances

While the Acts do not require consultation in circumstances other than those mentioned above, it may be good practice to consult where information is being released on the basis that it was provided in connection with a claim with the consent of a third party. For example, a bank statement provided by a claimant to Jobseeker's Allowance in relation to his wife - it could be assumed that this record was provided with her consent in the course of the application but it would be advisable to contact her and inform her that the request made includes access to this information.

4.25 No Discussion of case with Internal Reviewer

The FOI Officer is free to discuss aspects of a Request with other staff (e.g. other staff in the section or office, or FOI Officers or his/her manager) but should avoid any discussion with the person who may have to carry out an Internal Review as this would taint the process.

4.26 Importance of Meeting the Deadline

The decision must be made and notified within 4 weeks of having received the request (including the 2 weeks within which the request must be acknowledged).

There is an extension of three weeks to this period where it is necessary to consult with third parties due to a public interest test i.e. the decision must be made and notified within 7 weeks of receipt.

Failure to meet the deadline must be avoided at all costs. In the event that delays or problems emerge which might threaten the deadlines, the FOI should inform his/her management immediately.

If it transpires that the deadlines cannot be met, the requester should be informed of the position and offered a partial release of the records requested, if possible.

SUMMARY OF SEQUENCE OF ACTION (Paragraphs 4.11 to 4.26)

Confidential Records

  • apply '4 elements' test
  • if a record is confidential, do not release

3rd Party Records

  • if a record relates to a 3rd Party, check whether consent has been given with request
  • If 3rd Party consent given, verify genuineness of consent
  • if 3rd party consent not given with request, consider Public Interest provision
  • list factors for and against disclosure in Public Interest. Evaluate each factor.
  • If Public Interest warrants disclosure, consult 3rd Party in writing

Manner of Consultation

  • Send consultation letter to 3rd Party. Record on ADF.
  • notify Requester in writing of consultation with 3rd Party and of extension of deadline by 3 weeks. Record on ADF.
  • On receipt of response from 3rd Party, proceed to decision
  • if 3rd party does not reply within 3 weeks, proceed to decision stage
  • if 3rd party cannot be located, apply to Commissioner to dispense with consultation
  • If you conclude records should not be disclosed, proceed to make your decision
  • Issue notification of your decision. Record on ADF
  • Be sure to Meet Deadline
    - notify DAO of problems
    - consider partial release - inform requester of position

SECTION 5: MAKING THE DECISION

DETAILED GUIDELINES

5.1 Refusal on Grounds of Exemption (Sections 19-32)

Access to a record or part of a record may be refused on the grounds that it is exempt from disclosure - see section 3 above.

5.2 Record does not exist or cannot be found (S.10(1)(a))

Before a request is refused on these grounds, all reasonable steps to locate the records must have been taken. Such steps include, where appropriate,

  • search of the file registry system
  • search of INFOSYS
  • physical search of filing area/cabinets etc.
  • enquiries of relevant staff and written confirmation of search undertaken to identify relevant records.
5.3 Refusal - request is too large (S.10 (1)(c))

The volume of records sought can also be a basis for a refusal of a request under section 10. However, there is a statutory obligation on the FOI Officer to assist the requester to narrow his or her request before refusing a request on those grounds (s. 10(2) refers).

A Department will not be able to include additional time or work needed because its filing system or index searching is cumbersome or inefficient. Requesters are entitled to expect that a Department will have an efficient records management system. If section 10(1)(c) is used, it should only be on the basis of a documented and defensible estimate of how the other work of the Department would be interfered with or disrupted to a substantial and unreasonable extent. Another approach for dealing with a very large request is to offer to provide the records to the requester on a phased basis. As this provision is outside of the strict provisions of the Acts, it is essential that the prior agreement of the requester is secured to the arrangement.

In this way, it may be possible to agree an extended timetable to handle the request which goes beyond the statutorily required time periods, but which also allows the Department to deal with the request in manageable parts. The requester must be informed of his or her rights to appeal the refusal under section 10(1)(c) if he or she is not agreeable to phased release.

(Note: the relevant date of the Request for time-limit purposes remains the date on which the initial request was received).

5.4 Refusal - request is frivolous (S.10 (1)(e))

Refusal on this ground need to be well-grounded and to take account of the overall context of the FOI Acts. In this regard, requesters are entitled under the Acts to seek to exercise the right of access to any records (including both significant and trivial records), and the reasons for their request are irrelevant to a decision on it.

5.5 Refusal - Request is vexatious (S. 10 (1)(e))

Repeated and very closely sequential requests for the same records may be characterised as "vexatious" and refused on that basis. However, requests that are made close in time to one another may not necessarily be vexatious e.g. requests may encompass records which are subsequently altered or updated or newly created and therefore contain fresh information.

5.6 Form of Access

In deciding to grant a request, the FOI Officer must also decide on the form of access to be given. The Acts provide that access to a record may be arranged in any one (or combination) of the following formats:-

  • a copy of the record
  • a transcript of the information concerned
  • a reasonable opportunity to view the record

The FOI Request Form for access to documents includes a question on whether the person wishes a copy of the record or to inspect the document. Access to the record should be given in the form requested, unless:

  • the granting of the record would be significantly more efficient, or
  • the granting of access in the form requested would be:
    - physically detrimental to the record
    or in the case of non-personal records:
    - involve an infringement of copyright
5.7 Recording the Decision

If the request or part of the request is refused, the following must be recorded (as appropriate) on the Record of Decision Form:

  1. the reasons for the refusal
  2. a statement of the findings of any material issues or questions of fact
  3. where relevant, the public interest factors taken into account
  4. a description of the records which come within the scope of the request but without revealing the exempt matter
  5. the exemptions under which non-disclosure of records or parts of records is claimed

Notes

The section of the Acts must be cited.

(b) Material issues are facts necessary to establish the basis for the decision made. Some will be basic factual matters, for example, documents which have been identified within the terms of the request and those which have not. Others may be facts in the sense of evidence on which can be based conclusions of fact necessary to satisfy the standard in a particular exemption

(c) The decision must include particulars of any matter relating to the public interest which has been taken into account and why the balance was regarded as being on a particular side.

(d) the description should say briefly what records are included

(f) exemption sections should be quoted without naming the document

5.8 Notification of Decision

The decision should be notified on a form which must include the following particulars:

  • the date the decision was made
  • the name and grade of the FOI Officer *
  • how and when the records will be made available
  • information about the rights of review, including the time limits
  • the various elements of the decision described at 5.7 above

* The name and grade of the FOI Officer may be omitted where there is a reasonable belief that its inclusion would prejudice the safety or well-being of that officer.

The Rules of Inspection should be issued where the decision to grant access is by way of physical inspection (See para 4.17)

5.9 Noting the Papers

If the request is for a specific document or documents only, it is necessary to note their release on the folder or claim file.

5.10 Giving Access to Records

When an FOI request is granted, it is the responsibility of the FOI Officer to arrange for suitable access by the Requester to the records in accordance with the decision on the form of access. Access to inspection of the records must be made available during four weeks following the notification of the decision.

5.11 Giving Copies of Records

If copies of records are being sent by post, the FOI Officer should satisfy himself/herself as far as possible about the identity of the requester e.g. by checking that the signature matches that of Departmental records.

If the request is for the entire contents of a file, each document in the file should be numbered in indelible ink and any documents exempt from release should be noted. Documents of more than one page (e.g. a claim form) should be treated as a single document for numbering purposes.

The numbering of the documents in this way will serve two purposes:

  • it will assist the FOI Officer to maintain the sequence of the file in the course of photo-copying
  • it will serve as a record of the documents released
5.12 Preparation of Records for Inspection

Prior to the inspection of the record(s) by the requester, the FOI Officer should ensure that all relevant records are present and in sequence and have been numbered, as appropriate.

5.13 Part of Record Exempt

Where it has been decided that one of a number of records or a part of a record should not be disclosed, the FOI Officer should arrange to remove the document in question or to block out the relevant part prior to the inspection.

5.14 Sending Records to another Office

If access is by way of inspection of the original records by the Requester at another office, the FOI Officer should send the records to the FOI Officer at that office with a suitable covering message, giving details of the decision. Registered post should be used when sending original documents between Local Offices or between a scheme section and Local Office i.e. where it is handled by external post. A copy of key records should always be kept.

On receipt of a message asking for an inspection to be arranged, the FOI Officer at that office should notify the person concerned of the times when the records will be available for inspection at the Office. The notification should indicate the rules of inspection.

5.15 Role of Officer supervising Inspection

The role of the officer is to facilitate and supervise access to the records, to protect them from damage and to return them to their owner as soon as the inspection is completed.

It is not the officer's role to reply to questions by the Requester about the content of records. However, a note should be made of such queries and passed to the section (or Deciding Officer) concerned afterwards

5.16 Rules of Inspection

The Rules of Inspection include the following:

  • the role of the supervising officer
  • that during the inspection, it would not be permitted to write on, remove or deface any document
  • that s/he is free to make notes/transcripts from the records
  • that a photocopy of documents can be provided on request at the conclusion of the inspection
5.17 Action Following Inspection

Following inspection, the FOI Officer should return the records to the relevant section or office with a suitable covering message giving details of the inspection.

5.18 Failure by requester to attend for inspection

If the requester fails to attend on the agreed date for inspection, s/he should be notified by the FOI Officer of the date of expiry of access and should be asked to make contact to arrange another date. If s/he fails to make contact by the expiry date, the papers should be noted to this effect and returned to the FOI Officer. The Acts provide that a requester has 4 weeks within which to physically inspect a record to which access has been granted.

SUMMARY OF SEQUENCE OF ACTION (PARAGRAPHS 5.1 - 5.18)

  • Consider Grounds for Refusal
  • If refusing a request, record the decision with reasons and facts/findings on ADF
  • If granting request, consider form of access to be given
  • Issue Notification of Decision. Record on Action & Decision Form. Log on ADF
  • Send copy of records with notification of decision if appropriate and convenient
  • If giving access, check ID
  • Do not give copies of exempt records

Inspection of records at another Office

  • send records to FOI Officer with covering minute
  • keep copy of vital documents

Inspection of records at your own office

  • issue notification of arrangements to requester
  • prepare for inspection
  • check ID of requester
  • inform requester of your role
  • tell requester the rules of inspection
  • note questions, make copies of records if requested

At end of inspection

  • if records belong to your Office, update ADF
  • if records are proper to another area, return records with Notification Form
  • If requester fails to attend, update ADF or notify other FOI Officer

SECTION 6: INTERNAL REVIEW

6.1 What Decisions are Subject to Internal Review?

The following decisions may be addressed by internal review:

  • decision to refuse all or part of a request (Note - failure to decide within the set time limits is included as a decision to refuse)
  • decision to grant access in a form other than that requested
  • decision to delete certain exempt material from a record
  • decision refusing the correction of personal information which the requester believes is incomplete, incorrect or misleading
  • decision relating to the rights of a person to obtain reasons for decisions affecting that person

Note: Decisions where the public body is required to consult with a third party are referred directly to the Information Commissioner without going through the process of internal review.

6.2 Time Limits

Where a decision to refuse an FOI request is made, the requester may seek 'internal review', within 4 weeks of the initial decision. That time period may be extended at the discretion of the reviewer on reasonable grounds.

The Acts require that internal review be completed within 3 weeks. If no decision is made within 3 weeks, non reply is deemed to be a refusal and the applicant may proceed with an appeal to the Information Commissioner.

6.3 Form of application for review

Application for review should be made in writing. Any written letter or note should be accepted as an application.

6.4 Recording receipt of application

Receipt of the application for review must be immediately entered on the FRR (FOI request register) with the date of receipt of the application.

6.5 Forwarding application to Reviewer

Where the application is received by the FOI Officer, all the relevant papers/files should be forwarded to the reviewer without delay, with comment on the reasons for the decision.

Where the application is received by the Reviewer, s/he should request the file and reasons for decision from the FOI Officer.

6.6 Acknowledging the application

An acknowledgement form setting out the date of receipt of application, date by which the review must be done, and right of appeal to the Information Commissioner if the deadline is not met, should issue to the applicant immediately.

6.7 Processing the review

The review must be undertaken by a person of higher rank than the officer who made the first decision, and must be completed within 3 weeks from receipt of the request for a review.

Reviews must not only consider new arguments put forward by the applicant, but must start from scratch by checking that all relevant documents have been traced, evaluating the evidence and applying the Acts.

The reviewer should make any inquiries necessary to ensure that the internal review is a full revisiting of the initial decision on the case.

The reviewer may consult with the FOI Officer, or with others, including the FOI Unit in the Decisions Advisory Office.

The result of the internal review is binding on the parties, subject to further appeal.

6.8 Withdrawal of application for review

An applicant may withdraw his/her request for review at any time, in writing or in any other form acceptable to the reviewer.

6.9 Giving Access

If the Reviewer concludes that third party information which was refused in the original decision should be released, s/he should notify the 3rd Party in writing of the right of appeal to the Information Commissioner within 2 weeks.

6.10 Recording the decision

The decision must be recorded on the Record Decision Form and must include:

  • reasons for annulling, amending or upholding the original decision
  • if decision is to grant request, the form or manner of access
  • date of decision
  • name of reviewer

The decision must also be recorded on the FRR.

6.11 Notice of decision

A notification of the decision must be issued to the requester not later than 3 weeks after the receipt of the request for review. A copy should also be sent to the FOI Officer and to any 3rd Party involved.

If access is refused, reasons for refusal, and the relevant material issues must be conveyed to the applicant.

Details of rights of appeal to Information Commissioner and High Court must also be conveyed to the applicant.

SUMMARY OF SEQUENCE OF ACTION BY INTERNAL REVIEWER (6.1 to 6.11)

  • log application for review on FRR on date of receipt
  • issue acknowledgement
  • ask FOI Officer for FOI Request File
  • Review from scratch
  • obtain reasons for decision from FOI Officer
  • contact FOI Unit if in doubt
  • if application withdrawn, log on FRR
  • record your decision on the decision form and on FRR
  • if you decide to revise the decision (i.e. allow access), note form and manner of access allowed
  • issue notification of your decision.
  • notify FOI Officer and ask him/her to arrange for access to records if appropriate

SECTION 7: APPEALS TO INFORMATION COMMISSIONER

7.1 Processing of appeal

When the Information Commissioner receives an application for review, a copy will be sent to the Department and to any 3rd Parties involved. On receipt in the Department, the appeal will be sent to the Internal Reviewer to arrange for all relevant papers and files to be forwarded to the Information Commissioner, together with a schedule setting out the detailed reasons for decision and particulars of 3rd Parties involved. The papers should be sent to the DAO for transmission to the Commissioner's Office.

7.2 Procedure by Commissioner

The Commissioner will seek, where appropriate, to settle the matter informally between the parties concerned in which case s/he may suspend the review for a period agreed with the parties and/or discontinue the review.

7.3 Burden of Persuasion

A decision not to disclose is presumed not to be justified, and the onus is on the Internal Reviewer to persuade the Commissioner otherwise - i.e. if the Commissioner finds that the matter is evenly balanced, and that the burden of persuasion in favour of the exemption has not been met, then the Commissioner will conclude that the record is not exempt.

In cases of a decision that it is in the Public Interest to disclose (confidential or personal information), and an appeal has been lodged by a person objecting to disclosure, the original decision is presumed justified. The party objecting to disclosure bears the burden of persuading the Commissioner that the decision was not justified.

7.4 Decisions of the Commissioner

The Commissioner may refuse an appeal, or discontinue a review if he or she forms the opinion that:

  1. the application is frivolous or vexatious;
  2. the application does not relate to a decision which is reviewable; or
  3. the matter to which the application relates has been or will be the subject of another review.

The Commissioner must give notice in writing (or such other form as determined) of his decision and the reasons for that decision to: (a) the Minister; (b) the person who made the appeal, and (c) any other person in the view of the Commissioner to whom notice should be given.

Decisions of the Commissioner are binding on the parties concerned, subject to appeal to the High Court on a point of law under section 42. If the decision is to make records available for inspection, the decision will specify the time-frame within which it must be implemented.

7.5 Review by High Court of Decisions

An appeal may be made to the High Court (but only on a point of law) by any person affected by an initial decision, an internal review or a decision of the Commissioner.

These appeals must be commenced no later than four weeks after notice of the decision is given to the person bringing the appeal.

The Information Commissioner may also refer any questions of law arising in a review to the High Court for determination, and may postpone making a decision in a review until after such a determination.

SUMMARY OF SEQUENCE OF ACTION - INFORMATION COMMISSIONER CASES

  • Obtain FOI Request File
  • Record appeal on ADF
  • Forward file to Commissioner (via DAO) with detailed reasons for decision and particulars of any third parties
  • Co-operate fully and immediately with any communications from Commissioner
  • Record Commissioner's decision on ADF
  • If Commissioner allows the appeal, arrange for access to records

SECTION 8: REQUESTS FOR AMENDMENT OF RECORDS

8.1 Form of Request

A request to amend personal information contained in a record held by the Department must be made -

  • in writing
  • by the person to whom the information relates

It must specify the record concerned and the amendment required and include any information in support of his/her application.

A request form for this purpose is available.

Application for amendment of records will normally only occur where a person has had access to the records under an earlier FOI request.

There is no time limit involved in making an application for amendment of records following access to or inspection of records.

8.2 Grounds for amendment

The request for amendment may be granted if the subject information is "incomplete, incorrect or misleading".

"Incomplete" = details are missing which are required to be in a particular document by the terms of that document, or which on a proper and considered view should be included with the personal information already present in the records.

"Incorrect" = factually wrong.

"Misleading" = giving the wrong impression about the person concerned or their circumstances, or unfounded opinions about an individual.

8.3 Acknowledgement of the request

An FOI Officer has 4 weeks in which to make a decision whether to grant or refuse the request for amendment. The request should be acknowledged within 2 weeks on the acknowledgement form. The acknowledgement should advise the time limit applying, and the right of review if the time limit is not met.

8.4 Consideration of the Request

An FOI Officer must examine the records as outlined by the requester and consider the information contained therein.

When making a decision whether or not to amend a record, the FOI Officer should consider the following questions:

  • was the applicant the subject of the opinion? A person can only amend a record that contains information about his or her own personal affairs and not, for example, those of a living child or spouse.
  • can the author be contacted? It may be advantageous to discuss the matter with the author. In particular, the author should be advised of the applicant's claims and supporting evidence. The FOI Officer will need to weigh the applicant's statement against the author's statement, taking into account the age of the record. If the author cannot be contacted, an alternative may be to discuss the record with an equally qualified person.
  • how was the opinion reached? For example, was it based on facts? Did it take account of all the available facts? Were other circumstances surrounding the creation of the record considered?
  • what evidence has the applicant produced in support of his/her claim and how authoritative is it? For example, is it a statutory declaration sworn by the applicant, another medical examination or a reference from an employer? Has this evidence been provided by a person as qualified as the person making the original report, such as another doctor, social worker, specialist or the like?
8.5 Ways of Amending the record

If the request is granted the type of amendment to be made must be determined. The options are alteration, annotation or deletion. In choosing amongst these options, the extent to which the FOI Officer agrees with the applicant, or endorses their views, should not be taken into account but rather the steps which must be taken to adequately address the impact which the wrong information may otherwise have.

Alteration - Records that are inaccurate or incomplete should normally be altered by the insertion or correction of the relevant data. In entering the alteration, the original and the corrected data should both be evident, where the earlier position affected a decision or action of the Department.

Annotation - normally, an annotation will be preferable where a record will be substantially altered, or where it is alleged that it is misleading, and the allegation cannot be clearly proved or disproved. An overly voluminous or a defamatory annotation is not permitted (s 17(4)).

Deletion - It may be that the more serious instances of "incomplete, incorrect or misleading" information will warrant deletion of the original entry.

Note: Total removal or destruction of records is not allowed.

A Department must amend all documents containing the information that the Department has acknowledged to be inaccurate, incomplete or misleading. That is, the Department should amend all records in its possession, not only those that an applicant has seen, to ensure that the records are consistent and the spirit and intent of the Acts is respected.

The Department should also ensure that anyone who received a copy of the record in question in the previous 12 month period should be advised of the amendment.

8.6 Recording the decision

The FOI Officer should complete a notice of decision and issue a copy of same to the requester. Where the request is granted, the action to be taken must be described. If possible, issuing a copy of the amended records will be the easiest form of doing this, and may prevent an unnecessary repeat FOI request for inspection.

Where the request is refused, the record in question must show that the application for amendment was made, either by attaching the request to the file papers or by annotation. The requester must be advised of the decision and of the rights of review.

8.7 Applications for review of decisions

An applicant is entitled to internal and external review of a decision to refuse a request for amendment, or if the choice of means of amendment is not to his/her satisfaction. See Sections 6 and 7 for details.

Section 8 Appendix

FOI Central Policy Unit Notice

SECTION 17 - AMENDMENT OF RECORDS RELATING TO PERSONAL INFORMATION

INTRODUCTION

The FOI Acts confer a right on members of the public to seek amendment of records relating to personal information held by public bodies. Section 17 of the Acts sets out the mechanism whereby such a record may be amended if it is incomplete, incorrect or misleading. This right parallels a provision in the Data Protection Act allowing for amendment of personal information held on computer, but differs in that it also applies to manual records.

MAKING THE DECISION

Requirements of the application:

The decision maker must first be satisfied that the application meets the terms of section 17. It must therefore meet the following requirements:

  1. It must be in writing
  2. It must specify the record concerned
  3. It must specify the amendment required
  4. It must include appropriate information in support of the application. It is not sufficient for the applicant to merely state that the record in question is incomplete, incorrect or misleading. He or she must provide sufficient evidence to back up the claim, e.g., if factual information, such as birth date, is claimed to be incorrect, then evidence of the correct date must be supplied.
  5. The amendment sought must relate to personal information of the individual submitting the application (or a representative properly authorised to act on his or her behalf).
  6. The same procedures in relation to an application under section 17 as apply with an FOI request should be followed, e.g., acknowledgement requirements, etc.

What time limits apply?

A decision must be made on the application within 4 weeks of receipt by the public body.

Is the amendment appropriate?

The key step in the decision making process is to consider if the information in question is incomplete, incorrect or misleading:

Incomplete - Information may be incomplete if it does not adequately deal with the relevant facts and circumstances.

Incorrect - Information that is wrongly recorded, based on a mistake of fact or without proper regard to the evidence in a particular case may be incorrect. Precedent abroad suggests "incorrect" to mean "not in conformity with a recognised standard, faulty, not in accordance with fact, erroneous, inaccurate" (Leverett v Australian Telecommunications Commission (1985) 8 ALN N135)

Misleading - Information can be said to be misleading if it could lead a person reading it to take a mistaken meaning from it. It may also be misleading if the language or terminology used might have particular meaning to a specialist or professional but convey an alternative meaning to the ordinary reader. The word was interpreted abroad to mean "leading astray, causing to go wrong, giving the wrong impression" (Re.Page and the Director-General of Social Security)(1984)6ALN N171)

PROCEDURES FOR AMENDING RECORDS RELATING TO PERSONAL INFORMATION

Where a public body agrees to amend a record relating to personal information, it may, at its discretion, avail of any of the three options outlined in section 17:

  1. alter the record so as to make the information complete, correct or not misleading, as may be appropriate
  2. add to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or
  3. delete the information from the record

Guidance is not provided in the FOI Acts themselves as to the made. In processing an application for amendment the decision maker should:

  1. firstly consider the level of proof supplied by the applicant in support of his or her application, and
  2. secondly, acquaint him or herself fully with the context in which s/he is making the decision. This will include consultation with colleagues, perusal of the relevant files, familiarisation with the details of any scheme, etc. associated with the matter.

The decision maker should always be aware of the possible consequences of any amendment sought e.g. if the granting of the amendment may be pivotal to the conferring of a benefit or privilege on the applicant.

Care should be taken to ensure an appropriate level of proof from the applicant. The decision maker needs to be satisfied, on the balance of probability, that the requested amendment is reasonable, having regard to the material presented by the applicant and the information available to the decision maker from the organisation's files.

PROCEDURE FOR AMENDMENT:

In considering the appropriate form of amendment, the decision maker should have regard to :

  • the nature of the amendment proposed
  • the form in which the information is stored i.e. manually or electronically
  • the physical condition of the record
  • the desirability of maintaining the historical accuracy of the original record, having regard to the nature of the amendment sought.

Alter the record

The incorrect record may be amended by putting a line through the incorrect information and writing "amended under FOI - to be disregarded" alongside. The correct information should be included on the same page, where practicable or, if not, then on a new page with appropriate cross-references. The advantage of simply striking through the original record is that the historical accuracy of the record is maintained and the nature of the amendment sought and made is clearly shown.

Adding to the record a statement

Where the amendment sought requires the correction of several lines or paragraphs, it may be preferable to add a statement to the record indicating the respects in which the body is satisfied that the information is incomplete, incorrect or misleading. In that case, the original record should be clearly annotated indicating that the statement of amendment exists. This form of amendment may also be preferable, in the case of many electronic records, where the format in which the information is stored does not readily lend itself to significant amendment or annotation. The electronic version of the record should be cross-referenced to indicate the existence of the amending statement and its location.

Delete the information from the record

While section 17 provides for deletion of information from a record, it is preferable, where practicable, to preserve the integrity of the original record. Deletion of information may leave gaps in the record and make other documents and events on the file inexplicable in the light of the deletion. Information should only be removed from a record where the other options for amendment are not practicable, and the decision maker believes that there is justification for amendment in that form. Where information is deleted from a record, a note should be made on the record clearly indicating that a portion of the record was "deleted under FOI".

In all cases, the following steps should be taken following amendment of a record:

  • The applicant should be notified of the amendment and the manner of amendment within 4 weeks of the receipt of the request. The most convenient means of satisfying the applicant as to the adequacy of the amendment made would be to give a copy of the amended record to the applicant
  • Any administrative action which may be required as a consequence of the amendment, should be communicated to the appropriate staff or section having responsibility for the matter in the organisation. The decision maker will previously have consulted with these staff prior to making the decision to grant the request for amendment
  • A copy of the evidence provided in support of the application should be placed on the applicant's file(s) with appropriate cross-references to the amended application
  • The Acts requires that, where a record is amended pursuant to section 17, the public body concerned shall take all
    reasonable steps to notify of the amendment-
    - any person to whom access to the record was granted under the FOI Acts, and
    - any other public body to whom a copy of the record was given during the previous twelve month period

What amendments are likely to be sought?

The requested amendment may relate to either

  • a record of factual information
  • a record of opinion, advice or recommendation

REQUESTS FOR AMENDMENT OF FACTUAL INFORMATION:

Many requests for amendment will relate to personal information which is factual in nature e.g. date of birth, income level, marital status, address, educational record, etc. Where factual information is in contention, the applicant should be able to provide documentary evidence in support of his or her claim. Where the decision maker is satisfied that the request for amendment is reasonable and has verified the evidence supplied, he or she should proceed to consider the appropriate form of amendment to the record.

REQUESTS FOR AMENDMENT OF OPINIONS

Applicants may also seek correction of records containing opinions of other persons about the applicant.

Applicants, in seeking amendment to opinions on file, may provide contradictory opinions from other professionals in the same field in support of their claim e.g. opinions of professional persons such as doctors. In most cases, the record on file will reflect the bona fide views that the person held at the time the record was created. The right to amendment should not necessarily prompt a review of a decision previously made. Rather it allows a mechanism to:

  1. check that the opinion, as recorded, is correct in terms of representing accurately the views of the persons involved, and
  2. check that any contrary views known to the public body are also recorded

Amendment of records should be undertaken on the basis of good reasons, supported by evidence. In this regard, it may be helpful to consider, where the original opinion appears incorrect, etc., whether this was based on a mistake of fact or on misconceptions.

While the Acts do not provide for formal consultation procedures in relation to amendment of personal information, a decision maker should always, where practicable, consult informally with the original author of the record, where he or she is contemplating amendment of a record.

Where a decision maker is agreeable to amendment of a record containing opinions, the most appropriate form of amendment may be the addition of a statement giving details of the contrary opinion, with appropriate cross-reference to the earlier record.

REFUSAL TO GRANT AN APPLICATION FOR AMENDMENT

If the decision maker refuses to grant a request for amendment, he or she should take the following steps:

  1. notify the applicant, within 4 weeks, of the decision to refuse the application and state why.
  2. include in the notification, particulars of the applicants rights of review, the procedures for exercising those rights and the relevant time limits.
  3. attach to the record concerned, the application or a copy of it and an indication that amendment has been refused. Where that is not practicable, for example, if the record is held on computer, a notation should be added to the record indicating that the application has been made. This requirement does not apply where the application is defamatory or the alternations would be unnecessarily voluminous.

DO THE EXEMPTION PROVISIONS APPLY TO SECTION 17?

When preparing a notice of decision under section 17, you are not required to include any information which may be exempt under the Acts. You may also apply the "refusal to confirm or deny provision" where it is appropriate to do so.

SECTION 9: REQUESTS TO SUPPLY REASONS FOR ACTS

9.1 Obligation to supply reasons for acts

Section 18 of the FOI Acts require Departments to give a statement of reasons, in writing, for any act by a public body that materially affects the requester i.e. that the requester is affected by the act in a way that persons generally are not affected. A decision on the request must be given within 4 weeks. There is no standard form for such requests.

In the normal way, requests under section 18 for reasons for decisions made in this Department will arise in relation to policy/administrative decisions that impact on the person rather than in relation to decisions on claims for social welfare schemes and services. This is because reasons for such decisions, in the case both statutory and non-statutory claims, are already made available to the persons concerned. Any requests for further elaboration of such reasons should be referred to the person who made the decision.

Note: Under Section 18 a person has the right to information about an act, the consequences of which are to confer or withhold a benefit on him/her which is not also conferred on others generally. This could arise, for instance, where a claim for a benefit has been disallowed and the person concerned wants to know why others, allegedly in the same circumstances, had their claims allowed.

Policy/Administrative acts: any requests under Section 18 received for the reasons for such acts should be referred for immediate attention to management who should consult with the DAO in the matter.

9.2 Exemptions

This requirement is limited by the same exemptions in the FOI Acts, so that a record or part of a record exempted from a Section 7 request is equally exempt from a Section 18 request. For example, the provision that precludes disclosure of the source of a confidential report, or of material which would prejudice or impair the enforcement of Social Welfare law, operates to prevent reference both to the existence and to the content of such material.

Those reasons for the decision which are exempt and the grounds of that exemption must be listed in the report however, as it is subject to Internal and External review, even though they are not disclosed to the applicant.

Note: FOI Officers and Reviewers for non-personal information should also see the CPU Manual dealing with Section 18 of the Acts.

SUMMARY OF SEQUENCE OF ACTION - REASONS FOR ACTS

  • No set form for application
  • Log application on ADF
  • Acknowledge request
  • Send to DO for statement of reasons
  • Examine whether any reasons are exempt from release under FOI
  • consult with DAO
  • record decision on decision form
  • issue notification of statement of reasons
  • Log decision on ADF

See also the Central Policy Unit Notice attached.

Section 9 - Appendix

FOI Central Policy Unit Notice

SECTION 18 - REASONS FOR DECISIONS

The FOI Acts confer the right on members of the public to seek reasons for decisions. This right can be exercised by a person who is affected by an act of a public body and who has a material interest in the matter.

KEY WORDS AND PHRASES

an act of a public body - this includes a decision of a public body, other than a decision under the FOI Acts

material interest - this indicates that the person is directly affected by a decision or act of a public body, but that the people in general, or a large class of people, are not similarly affected. The term is defined in the Acts in the following terms:
"a person has a material interest in a matter affected by an act of a public body, if the consequences or effect of the act, may be to confer on or withhold from the person a benefit, without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member".

benefit - essentially includes:-

  • any advantage to the person, or
  • the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person

RIGHT UNDER SECTION 18

Section 18 confers a right on a person who is affected by an act of the body, and has a material interest in a matter affected by the act or to which it relates to be given a statement of

  1. the reasons for the act, and
  2. any findings on any material issues of fact made for the purposes of the act.

REQUIREMENTS ON THE APPLICANT

The applicant must comply with the following requirements of sections 18:

  1. The request must be submitted in writing (or such other forms as may be determined) to the public body
  2. The applicant must demonstrate that he or she is affected by an act of the public body. This contrasts with requests under Section 7 where the standing or motive of the applicant is to be disregarded. An act of the public body is defined to include decisions of the body, (other than decisions under the FOI Acts)
  3. The applicant must have a material interest in a matter affected by the act or to which the act relates, i.e., that he or she is affected by the act in a way that persons generally, etc. are not affected.

In addition, draft regulations are currently under consideration with a view to providing:

  • applications under section 18 should state that they are made under the FOI Acts
  • the attention of a person should be drawn to the FOI Acts where it would be beneficial to them to submit their request under the Acts
  • the public body should follow the same procedures as with an FOI request e.g. acknowledgement requirements, etc.

MAKING A DECISION ON A REQUEST UNDER SECTION 18

A decision on the application must be made within 4 weeks of receipt. The decision maker should:

  1. satisfy him or herself that the application conforms with the requirements of section 18, as set out above
  2. retrieve the relevant file and consider whether reasons were previously given and, if so, were they full and complete, when that decision or act was communicated originally to the person
  3. consult with the person who has dealt with the decision or act referred to in the request
  4. if satisfied that the reasons previously given, meet fully with the terms of section 18, these may form the basis of the response to the applicant. The notice should include full details of the applicant's rights under the FOI Acts.
  5. if not satisfied that full information has been previously given, proceed to prepare a statement of reasons in accordance with section 18.

PREPARING A STATEMENT OF REASONS

The statement must contain:

  1. the reasons for the act
  2. any findings on any material issues of fact made for the purposes of the act

In preparing a statement of reasons, the guiding principle for the decision maker is to adequately explain to the applicant how the decision was reached. Further guidance on these two phrases is set out below.

WHAT ABOUT SENSITIVE INFORMATION?

When preparing a statement of reasons, you are not required to include any information which may be exempt under the Acts. You may also apply the 'refusal to confirm or deny provision' where it is appropriate to do so.

IS IT RIGHT TO REASONS RETROSPECTIVE?

No. The right to reasons set out in section 18 applies to public bodies made on or after commencement of the FOI Acts i.e. on or after 21 April, 1998.

REASONS FOR THE ACT - Precedent abroad gives some guidance as to the content of a statement of reasons:

  • Every decision should be capable of a logical explanation. A statement of reasons should contain the steps linking the facts to the ultimate decision made. In this way, the person affected can understand how the decision was reached.
  • The criteria relevant to the decision, the weight attached to each criterion, and the conclusion reached on the criteria should be stated.
  • The reasoning should identify any element of policy or guideline or departmental practice which is part of the justification of the decision made.
  • Decision makers frequently act upon recommendations, reports, and results of investigations carried out by other officers or appropriately qualified experts. Where those recommendations, etc, are considered in making a decision, the statement of reasons should incorporate the recommendation, etc. as well as the facts (and a reference to the evidence or other materials on which they are based) and the reasons leading thereto. It is insufficient merely to state that the decision maker has relied upon the advice of a named person.

FINDINGS ON MATERIAL ISSUES OF FACT - Precedent abroad gives the following guidance on the provision of findings on material issues of fact:

  • Set out matters of fact which were taken into account in making the decision. If a fact is relied upon, it should be set out. If a matter was considered then the findings of fact in relation to it must be set out.
  • In so far as the statement of reasons does not set out findings of fact on a matter, it may be inferred that those facts were not considered to be relevant;
  • Sometimes, a material fact is established directly by the evidence or other material.
  • Where, however, a material fact is inferred from other facts (which are in turn established by evidence or other material), it may be necessary to state those other facts and the process of inference in order to provide adequate information on the way in which the decision was reached.
  • Findings of fact are distinguishable from subjective judgements or opinions. Where a subjective judgement or opinion is based on facts, it is desirable that those underlying facts should be set out as well as the judgement or opinion formed on the basis of them.

SECTION 10: PUBLICATION OF GUIDELINES

The Guidelines used by Deciding Officers are available to the public from 21/4/1998, under the provisions of Section 16.

They are made available on the internet and internally on the All-in-One.

As they are to be made available as freely as possible, anyone seeking an extract relevant to a query about our services should be given a print-out of the appropriate part of the guideline in the shared drawer i.e. not the circular itself.

These guidelines will replace all earlier circulars relating to the same topics. Some material that refers to internal control procedural matters not affecting the customer (keeping of records, reporting arrangements, etc.) have not been included, and existing instructions remain in force.

10.1 Shared Drawer

The All-in-One version will be on a Shared Drawer called FOI_GUIDELINES. Each Scheme will have a folder and the documents will consolidate all previous guidelines.

There will also be common guidelines covering material that is common to multiple schemes, e.g. Means, Recovery of Overpayments, Decision-making, Overlapping Benefits, etc.

The Drawer will include a Folder called 'A INDEX' which will list all folders and documents.

10.2 Printing copies on request

A request for a print-out should be treated in the same way as a request for an information leaflet. In the normal way it should be given out freely by any staff member.

Such requests are not requests under Section 7 of the FOI Acts.

10.3 Omission of a Guideline

The Acts provide that if a rule or requirement is not published and made available, or if it is incomplete or inaccurate, a person shall not be subjected to any prejudice as a result if s/he could otherwise have avoided that prejudice.

'Prejudice' for this purpose would include an adverse decision, determination or recommendation with respect to rights, privileges, benefits, obligations or sanctions to which members of the public are or may be entitled. However, 'prejudice' in this context does not include a penalty imposed by a court upon conviction of an offence.

To succeed in such a case, the person would have to be able to show:

  • that the rule or requirement was not published, or made available, or was incomplete or was inaccurate in a material respect that affected his/her position, and
  • that but for the non-publication, non-availability, incompleteness or incorrectness, s/he would have been aware of the rule or requirement, and
  • that if s/he had been aware, s/he could lawfully have avoided that prejudice, and
  • that the Department had not taken reasonable steps to bring the rule or requirement to the notice of those affected by it.

Any cases where a person invokes this provision should be referred to Scheme Management for consideration.

SECTION 11. CHARGING OF FEES

11.1 General

Section 47 of the Freedom of Information Acts allow for fees to be charged for requests for access to records under the Acts. The fees can only apply to the search and retrieval costs involved in locating the records in question and the cost of photocopying these records. Departments cannot charge for the time taken to examine the records sought with a view to determining whether they may or may not be released.

A notice on Fees, circulated by the Central Policy Unit in the Department of Finance, is attached for information (See Section 11 Appendix).

If there is a question about charging a fee, the FOI Officer should contact the FOI Unit for advice as early as possible.

Speedy action is necessary because under the Acts the requester must be notified within two weeks of receipt of the request of the amount of any fee being charged.

11.2 Personal Information

Generally speaking, Departments do not charge fees in respect of requests for personal information (but see para. 3 of the CPU notice at Section 11 Appendix).

11.3 Non-personal records

In some cases the processing of requests for non-personal records can be quite time consuming. Before proceeding with a request, FOI Officers for non-personal records are advised to make an estimate of the time it will take to search for and retrieve the records involved. The charge that has been set for search and retrieval is 20.95 (16.50) per hour. Where the total cost of the number of hours search and retrieval will exceed 50.79 (40) a letter seeking a deposit should issue to the requester within 2 weeks of the date of the request.

It is better to make an estimate of the time it will take to locate records rather than to first carry out the search and then find that you have run out of time in which to issue the letter. When you send out a letter seeking a deposit "the clock stops running" on the request and does not start again until such time as the deposit has been received from the requester.

While the non issue of a letter seeking a deposit does not mean that a fee cannot be imposed, we have been advised that the most a Department could charge before releasing records (where no deposit has been sought) is 50.79 (40). It is not a good idea to proceed on the basis that a fee will be paid when the records are released as the requester may refuse to pay the fee and the time and work involved in preparing the response to the request will have been wasted.

11.4 Procedures

Any FOI Officer who intends to impose a fee must notify the FOI Unit in the DAO as we need to be kept informed of the number of cases where fees are imposed and the circumstances of each case.

When the decision has been made to release the records, the fee (or the balance of the fee where a deposit has been paid) should be obtained before the records are released.

When you receive the cheque from the requester please issue a letter of acknowledgement immediately. Please then forward the cheque for lodgement to the Cashier, Floor 3, Accounts Branch, Oisin House, Pearse St., Dublin 2 with an instruction for coding to the General Ledger under Nominal Code 31690 and Cost Centre V5580. An official receipt will also be issued to the requester by the Cashier when the money has been lodged.

Section 11 - Appendix.

FOI Central Policy Unit Notice

CHARGES

General

1. This notice sets out the arrangements to apply in respect of charges in response to FOI requests.

Personal information

2. The Acts provides that in the normal course a person seeking personal information relating to him/herself can only be charged in respect of the cost of copying the records released. Furthermore, where it would not be reasonable to impose this charge because of the limited means of the requester and the nature of the record concerned, no such copying charge should apply.

3. Where a significant number of personal records are involved the cost of search and retrieval of such records will apply. Departments should use reasonable judgement in applying this rule: for example the ready retrieval of a few hundred pages of text electronically would not warrant the imposition of a retrieval charge; on the other hand the efficient retrieval of a lesser number of manual records from across various sources would.

Non-personal information

4. In the normal course, a fee should be charged equal to the estimated cost of search, retrieval and photocopying of the records released. Search and retrieval would normally involve two stages: firstly, location of the broad set of records in which those requested might be found; secondly, identifying, extracting and assembling the particular records sought for examination. It should be emphasised that it is not permissible to charge for the time taken subsequently to examine the record sought with a view to determining whether it may be released.

Deposits

5. Where the estimated cost of search and retrieval of the records sought is likely to exceed 50.79 (40), a deposit of at least 20% of this amount must be charged to and paid by the requester. The process of search and retrieval of the records should not commence until the deposit is paid. Notice of a request for a deposit must be provided in writing to a requester within a fortnight of receipt of a request. It is recommended that notice of a deposit should issue as soon as possible so as to allow a public body adequate time to process a request subsequent to payment of the amount sought.

Such notice should indicate an estimate of the length of search time etc. involved, assert that the search will not commence until the deposit is paid, and advise that a decision on the request will be determined by reference to the date of the payment of the deposit.

6. A public body must, if approached on the matter by the requester, advise as to changes to the request which, if made would have the effect of reducing or eliminating the deposit sought. Where this comes about, the date of amending the request should be regarded as the date on which the request was received.

7. Where a deposit is paid:

  • The eventual fee to be charged must be reduced by the amount paid,
  • A refund must be made where the amount of the fee due in respect of records actually being released is less that the deposit paid.

Waiver or reduction of fee deposit

8.

  1. Where the administrative and related costs involved in collecting a fee are likely to exceed the fee itself (i.e. up to 6.35 (5)) no fee should be charged,
  2. Where a person of limited means is seeking information relating to him/herself no fee should be charged,
  3. Where some or all of the information involved would be of particular assistance in understanding an issue of national importance a fee or deposit can be reduced or waived.

9. As regards (iii) it should be noted that a number of significant conditions must be met before this provision can be invoked. Most fundamentally the issue must be one of genuine importance to the Irish nation as a whole, and not just to individuals or interest groups. Secondly, there must be a very strong likelihood that the information would be particularly helpful to understanding the issue.

Failure to pay a deposit or fee

10. Where a person having paid a deposit, subsequently fails to pay the balance of the fee due in respect of records to be released, the public body can retain the deposit. An eight week period should be allowed from the time of notification for the person to pay the balance of the fee outstanding. A similar period might be appropriate in respect of the period to elapse before a deposit is deemed not to have been paid.

11. Where a person has failed to pay a fee or deposit due on foot of a request, the Acts confer discretion on a public body to refuse a subsequent FOI request. However, this must be approached in a reasonable way. It is recommended that failure to pay a deposit should not ordinarily be a basis for refusing a subsequent request. An exception might arise where a requester is persistently making requests which are neither proceeded with, or withdrawn, when deposits are sought.

12. Where a person fails to pay a fee due, the public body should similarly consider the matter in a practical and fair way. Where considerable expense was incurred in processing a previous request it might be reasonable for a public body to require payment of the amount outstanding. Alternatively, a public body might simply impose a deposit well over 20% on a subsequent request where the likely costs involved were likely to exceed 50.79 (40). Where a fee outstanding from a previous request is not significant, the matter might be disregarded, unless this follows a pattern of non payment.

13. The following fees under the Acts are provided for by regulation and chargeable in accordance with section 47:

  • Search and retrieval: 20.95 (16.50) per hour
  • Copying Charges:
    Photocopy per sheet: 4c (3p)
    Floppy disk: 51c (40p)
    CD Rom: 10.16 (8)
    Radiograph: 6.35 (5)

FOI fees and the Euro

14. On foot of a suggestion from the Euro Changeover Board of Ireland we would now ask that where FOI fees are being requested that the euro equivalent of Irish pound amounts also be given.

One euro = 0.787564 and to convert an Irish pound to a euro amount, divide the Irish pound amount by 0.787564. Round the resulting euro amount to two decimal places i.e. to the nearest cent. An example of rounding in euro follows:

Round down where the third figure after the decimal point is 4 or lower; round up where it is 5 or higher. For example, 3.174 should be rounded down to 3.17, and 3.175 should be rounded up to 3.18.

If you have any queries re converting to the Euro as outlined above you can contact Annette Connolly at the Euro Changeover Board of Ireland (01- 6396200).

SECTION 12 - RECORDS OF MINORS AND DISABLED PERSONS

Guidance Notes on Access to records by parents /guardians Access to records relating to deceased persons prepared under section 28(6) of the Freedom of Information Acts 1997 and 2003

As approved by the FOI Interdepartmental Working Group - March 1999

Contents

12.1. Outline of contents
12.2. Classes of Records which may be made available to Parents or Guardians arising from Section 28(6) of the FOI Acts
12.2.1 Factors to be considered
(A) Persons with a disability
(B) Minors
12.2.2 Consultation with minors / incapacitated adults
12.2.3 Other provisions of the FOI Acts.
12.3. Categories of Requester who may be given access to the records of deceased persons
Category 1 - Personal representative
Category 2 - A person appointed by the courts or by statute
Category 3(i) - Spouses / former spouses, partners/ former partners, next of kin,
Category 3(ii) - Other persons
12.3.1 Factors to be taken into consideration in deciding if release is appropriate
12.3.2 Consultation in relation to the records of the deceased.
12.3.3 Other provisions of the FOI Acts

12.1. Outline of contents

Contents of guidance notes

These notes deal with:

  • classes of persons whose records may be made available to parents or guardians
  • categories of requester who may obtain access to the records of deceased persons.

The purpose of these notes is to assist decision makers in considering requests relating to such persons.

Access to routinely available information

In general, members of the public will use the FOI Acts to access information only when that information is not readily available through existing sources. Where access to records is currently routinely available to parents and guardians, or where the records of deceased persons are similarly available, these practices should continue. The provisions of section 28(6) will only be used when access is required to the specific range of records covered by that subsection where such routine access is not available

12.2. Classes of Records which may be made available to Parents or Guardians arising from Section 28(6) of the FOI Acts

There are two classes of person whose records may, in certain circumstances, be made available to parents or guardians

  • those relating to persons with a disability, and
  • those relating to minors

In applying these notes, decision makers should have due regard to the best interests of the person to whom the records relate.

Use of these notes in relation to adults will only arise where the adult is incapable of exercising his or her rights under the Acts. Decision makers would have to make whatever enquiries and consultation were necessary to verify any such incapacity.

In general, decision makers are advised to put themselves in the place of the person to whom the records relate as far as practicable when examining requests. In this way, they would be better able to assess the impact of release of material on the person.

12.2.1 Factors to be considered

(A) Persons with a disability:

(i) The nature and duration of the disability: A critical factor is whether the condition or incapacity is temporary or continuing:

  • Intermittent or temporary incapacity: In the case of a person who suffers intermittent incapacity, but can normally manage his or her own affairs, it is unlikely that records would be released to a third party during such periods of incapacity unless the decision maker had strong grounds for assuming either:
    a. that the person would consent to release if able to do so, or
    b. if release was in his or her best interests e.g.- where the person's parent/guardian have concerns about treatment and seek the person's medical records with a view to obtaining a second medical opinion
  • Continuing incapacity: In cases where incapacity is continuing, it is more likely that release to third parties may be in the person's best interests where such third parties are caring for the person on an ongoing basis. However, this may not always be the case. Decision makers must treat each request on its merits on a case by case basis.

(ii) Would the person consent to release of the material?

In forming an opinion as to whether the person would have consented to release, it may be helpful to consider:

  • whether access to the record may be of benefit to the requester e.g. whether access to the records may help to improve the quality of care being provided to the person.
  • whether the information is of a particularly private and sensitive nature e.g. where carers' case notes may reveal that a resident in an institution has developed a relationship with another resident.
  • whether information on an incapacitated person also related to their parents/ guardians or includes details on family background etc.. Depending on the circumstances of that background (e.g. abuse or ill treatment of the person), it may be inappropriate to release the material to the parents/guardians.

(iii) Would release of the material be damaging to the person in any way? In seeking to assess the likely affects of disclosure of the record on the individual, the following would be among the factors the decision maker should consider:

  • whether disclosure is likely to be damaging to the person's interests
  • if the record relates to a person's treatment, the likely effects of disclosure on the treatment programme. The decision maker should endeavour to identify both beneficial and adverse effects, if any
  • the inclusion in the records of any notes containing unflattering comments made by the person about their parents/guardians

(B) Minors (persons who have not reached the age of majority - persons under 18 years who are not or have never been married):

(i) Would the minor consent to release of the material?

The general tenet of our legal advice is that consultation is not compulsory. Therefore, the amount of consultation to take place, and the weight to be given to a minor's views obtained in the consultation process, is being left at the discretion of the decision maker. In this way, the minor's best interest can be determined on a case by case basis (see Section 2.2 below on consultations with minors). The fact that a minor might object to release of information to his or her parents/guardians will not always be enough in itself to justify refusal, but it will always be a factor that the decision maker should consider before making a decision.

(ii) Would release of the material damage the minor in some way?

As with the records of incapacitated persons, there will be occasions when it would not be appropriate to release the records of minors to their parents/guardians, e.g.-

- release of records relating to a school disciplinary action against a pupil - if there is evidence that the pupil might suffer physical abuse as a result of his or her parents/guardians becoming aware of the process, then it would not be in the minor's best interests to release the records. Conversely, if the decision maker had reason to believe that remedial parental action could improve the pupil's performance at, and standing in, the school, then release of the records on the disciplinary process would be in the minor's best interests.

(iii) Are the records held in the minor's own right?

If so, the general position is that such records would not be released to a parent or guardian unless such release was in the minor's best interest. Examples of records in this area would be:

  • Lone Parent's Allowance in the Department of Employment Affairs and Social Protection (which are not age related),
  • Motorcycle licenses in the Department of the Environment which can be issued to 16 year old applicants in their own right.
  • Certain medical records which may not be appropriate for automatic release to parents/guardians, such as records a GP might have on prescribing contraceptives to a minor.

(iv) Records of incapacitated minors:

The treatment of these would be the same as (i)-(iii) above but would also incorporate the approaches set out in (A).

12.2.2 Consultation with Minors or Incapacitated Adults

Before making a decision on whether to release records, if will often be necessary to consult with the subject of the records. When considering or undertaking such consultation, a decision maker should take account of the following:

  1. The capacity of the person to understand the issues involved:
    This could depend on the extent of disability or, in the case of minors, their age, intelligence and maturity. The decision to consult with a minor will also depend on factors such as the nature of the record, i.e. its sensitivity or otherwise. The decision maker should seek to ascertain whether the minor is capable of coming to a mature view as to what is in his/her best interests in the particular circumstances and weigh any opinion that may be got from the child accordingly. In some cases, even young children may be capable of understanding the issues involved and in such event the refusal of the minor to consent to release of a record to a parent or guardian could be given a significant weighting.
  2. The presence of a parent or guardian during consultation:
    The decision maker would need to determine the extent to which involvement of a parent or guardian in the consultation process is appropriate. For example, if the record sought contains allegations of abuse or suspected abuse of the child by a parent or guardian, it may not be appropriate for that parent or guardian to be present during consultation with the child.
  3. The nature of the record:
    Where records sought are of substantial concern to the minor or incapacitated adult to whom they relate, or they are of an inherently personal and sensitive nature, this will influence the form and extent of consultation undertaken and the weight to be given to the views of the person, e.g. where records sought relate to personal, including sexual, relationships of the person, it is more likely that the decision maker would give greater weight to the views of the person in such a case than in others.
  4. The nature of the consultation:
    When a decision is made to consult with a child, common sense should dictate how the consultation is to be conducted. A personal contact or visit will often be more appropriate than a written consultation enclosing copies of documents and seeking the child's views. The decision maker would need to be confident that any view obtained in writing was, in fact, the view of the child. As has been outlined previously, the age, intelligence and maturity of the child will be factors to be considered by the decision maker in weighing any opinions he or she might get from the child. In this context, the decision maker's view may need to be informed through contact with the child directly, consultation with professionals in contact with the child (teacher, social worker, doctor, police etc.) or as appropriate with a parent, guardian, other relative or close adult friend.
  5. Guardianship and custody issues:
    Different parties can enjoy different rights pertaining to the child and this may influence a decision maker regarding access sought to records that concern the personal affairs of the child. This includes the question of which of those parties, if any, should be consulted. Where rights have been extinguished or limited through the courts, such as a parental barring order, the decision maker should take such limitation into account in determining with whom it is appropriate to consult.
  6. Proof of consent:
    As indicated above, the decision maker must satisfy him or herself that such consent, where provided, is genuine.

In applying these notes, decision makers must have due regard to the best interests of the person to whom the records relate.

Section 12.2.3 Other provisions of the FOI Acts

When reflecting on whether access should be provided, decision makers must also consider any other exemptions that may be relevant. They must assess whether any harm or damage may arise from disclosure e.g.

  • whether disclosure may lead to the revelation of confidential sources
  • the danger of prejudice to an ongoing investigation
  • damage to a law enforcement matter
  • whether the information may be protected by a secrecy provision in another enactment

Decision makers should, therefore, be aware that decisions on release of records under these guidance notes cannot be taken in isolation from the other provisions of the FOI or other Acts.

12.3. Categories of requester who may be given access to the records of deceased persons

In general, the FOI Acts provide the same rights of privacy for the records of deceased persons as it does for persons living. However, section 28(6) provides for regulations which would set aside that general privacy right where requests are submitted by certain categories of requester. Following from this, four categories of requester are identified who may be granted access to the records of deceased persons:

  • Category 1 - Personal representative
  • Category 2 - A person appointed by the courts or by statute
  • Category 3(i) - Spouses / former spouses, partners/ former partners, next of kin
  • Category 3(ii) - Other persons

The persons set out in categories 1 and 2 have the same right of access as the deceased person enjoyed when living, in respect of the classes of records for both categories specified in the text of the regulations.

The burden of establishing the death of an individual rests with the requester who would be required to submit an affidavit or other proof acceptable to the public body identifying the deceased and exhibiting the necessary death certificate. Where the death has not been registered (under the Births and Deaths Registration (Ireland) Acts, 1863 and 1880) the requester would submit an affidavit or other acceptable proof identifying the deceased and exhibiting such evidence of the death, such as church records etc establishing the fact of death. In these cases, it would be a matter for the public body to decide if such proofs are acceptable. These proofs would not be required if the public body already have sufficient proof of the death of the person whose records are being sought.

There is no automatic access "as of right" for spouses, partners, next of kin or other persons. These persons are covered by categories 3(i) and 3(ii) and the public body may decide to release records to these persons in appropriate cases. The burden of demonstrating that theirs is an appropriate case rests with requesters.

CATEGORY 1

The personal representative of the deceased acting in due course of administration of the estate of the deceased or any person acting with the consent of the personal representative so acting. This only covers people who have taken out a grant of probate in cases of testacy or letters of administration in cases of intestacy of the deceased and any agent acting for the personal representative. It does not include a will where a grant of probate has not been taken out, i.e. with an unproven will. As release of records for the administration of the estate will readily apply to this category of requester, the public body will need to satisfy itself on a number of basic points. Among the steps that the decision maker should take are the following:

  1. Require the requester to produce the original or Probate office copy of the Grant of Probate or Administration;
  2. Have the requester confirm that, where the grant of Probate is limited, it is still in full force and effect;
  3. Evidence of identity of the requester to confirm that he/she is the person named in the Grant;
  4. Evidence of identity of any person acting with the consent of the personal representative, and evidence of such consent. A written statement from a solicitor that he or she is acting on behalf of the personal representative can be taken as sufficient evidence of consent in this case.
  5. Check that the grant covers the class of records to which access is being sought i.e. if the grant is limited to the personal estate of the deceased it would not cover records relating to the real estate or other personal affairs of the deceased not related to administration of the estate.
  6. Satisfy yourself that the records sought are required for the administration of the estate e.g. records relating to land, property, finance, pensions, social welfare payments, grants etc.. In the normal course of administration the personal representative would not require access to sensitive medical records or such like. If in doubt the decision maker should ask the requester to show how he/she is acting "in due course of administration" of the estate in requesting the particular records.

CATEGORY 2

A person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function. This would cover, inter alia, cases where the estate and subsequent affairs of the deceased are taken over by a court or State agency. The steps required in this instance would be the following:

  1. Require the requester to produce the Official copy of the Court Order where applicable;
  2. Proof of identity of the requester to confirm that he/she is the person appointed by the Court Order or authorised by the Statute; and
  3. Check that the records requested are covered by the authorisation in the court order or statute.

CATEGORY 3(i)

Spouses/former spouses, partners/former partners or next of kin of the deceased: This category permits, in appropriate circumstances, for access to certain records to be given to the different individuals who enjoyed a particular relationship with the deceased.

Applicants under this category would be required to produce evidence of their relationship to the deceased. Examples of appropriate evidence are set out below:

A. Spouses/former spouses - An affidavit or other acceptable proof showing the marriage certificate and stating the circumstances at the date of death of the deceased i.e. living together in a spousal relationship, separated and the length of the separation, whether legal proceedings for separation/ divorce had been instituted. Copies of any separation agreements, court orders, divorce decrees should be lodged.

B. Partners/former partners - The requester should establish that he or she has lived with and shared the life of the deceased person for a significant period of time. It is suggested that four or more years might be a guideline in this regard. Proof of living with and sharing the life of the deceased should be done by way of affidavit or other acceptable proof setting out such facts as are relied upon in support of his/her claim to be the partner of the deceased. The onus is on the requester to prove the facts on which he or she bases his or her claim. Such proofs could include -

  1. evidence of unequivocal acts of sharing the life of the deceased for a significant period;
  2. evidence of living with the deceased on a continuous basis as opposed to occasional social visits; and
  3. evidence of payment of outgoings relating to a shared family home.

Any element of such evidence, considered on its own, may not suffice to establish that the requester was the partner of the deceased. The matter should be decided by the decision maker on consideration, firstly, of all of the facts established by the requester and secondly, on consideration of the views of other relevant parties whose views have been obtained through the consultation process referred to below. The weight to be given to the different facts established and views obtained is a matter for the decision maker and each such case must be dealt with on its merits on a case by case basis.

C. Next of Kin - In order to establish his or her claim to be next of kin of the deceased, the requester would be required to submit an affidavit or other acceptable proof establishing the relationship and showing the necessary State Certificates. For this purpose, next of kin are described (in accordance with the Succession Act, 1965) as follows:

  • spouse of the person to whom the record relates, then
  • child or children of the person to whom the records relate, then
  • parents or surviving parent of the person to whom the record relates, then
  • brothers and sisters of the person to whom the record relates, then
  • nephews and nieces of the person to whom the record relates, then
  • the person or persons who, at the date of death, stand nearest in blood relationship to the person to whom the record relates, then
  • the Minister for Finance.

(Relatives of the half - blood are to be treated equally with relatives of the whole blood)

This hierarchy of categories of next of kin is purely for the purposes of establishing the relationship of the requester to the deceased. The question of consultation with different categories within the next of kin hierarchy is set out in the consultation process described below. In some instances, supplementary evidence may be required to establish next of kin e.g. if a child seeks access to records of a father whose name does not appear on the birth certificate, a court declaration of paternity may be required.

Where a person claims that he or she had a "family" relationship with the deceased during his/her life, though not legally related to him or her, such as a foster parent of an informally adopted child, this should be taken into account in reaching a decision.

CATEGORY 3(ii)

Such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister.

This category is intended primarily to cover requesters not covered by the previous categories who are deemed eligible by the public body to pursue access to certain records. Decisions would follow such enquiries and consultations as the public body deems necessary.

It may also cover the following situations:

  • any cases where the deceased had made arrangements in their will as to how their personal records were to be handled following death
  • where there is no will and letters of administration have not been extracted,
  • where there is a will but no grant of probate,
  • where there are disputes regarding a will, or
  • where no grant will be extracted because there is no estate to be administered.

12.3.1 Factors to be taken into consideration in deciding if release is appropriate to persons in category 3

Once a decision maker is satisfied that the requester comes within the scope of category no. 3, it is a matter for the decision maker to make such enquiries and engage in such consultations as is necessary to allow him or her to decide if release is appropriate in the circumstances.

Each case will have to be judged on its own merits. The decision maker will have to balance the right to privacy of the deceased against the right of the requester to access the records. While section 8(4) requires that the decision maker shall disregard any reasons the requester gives for the request, in making a judgment in relation to the records of deceased persons, it is reasonable for a decision maker to inform him or herself as fully as possible of all the circumstances relevant to the request.

In reaching this decision, the decision maker should take the following into consideration:

  • The deceased's right to privacy as set out in section 28(1) of the Acts
  • Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death. If however the deceased had refused to release the records during his/her lifetime or had left written instructions in a will or other document that the records were not to be released, there would have to be compelling reasons for overturning the deceased's expressed wishes.
  • Has the person outlined arrangements in his or her will or other instrument in writing consenting to release of personal records? If so, the following steps may be appropriate:
    a. Evidence of the original grant of probate, or the probate office copy, or the original instrument in writing;
    b. Proof of identity of the requester to confirm that he/she is the person authorized in the proven will or written instrument;
    and
    c. Check that the records requested are covered by, or appropriate to, the authorisation in the proven will or written instrument.
  • Would the release damage the good name and character of the deceased? While there is no "best interest" test in the guidance in relation to the records of the deceased, the affect of release of the records on the good name and character of the deceased should be considered e.g. whether disclosure of the information would, without just cause or excuse, lower the standing of the person in the eyes of right thinking persons or leave the person open to ridicule.
  • The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased. Particular account should be taken of the relationship (if any) of the requester to the deceased. For example, if the requester is a spouse, issues such as whether the parties were living together, or had been separated or engaged in legal proceedings, and whether the relationship was amicable or acrimonious would be relevant. The claims of a cohabiting spouse would in most circumstances be stronger than those of a non cohabiting spouse. Similarly the claims of a child would be stronger than those of a more distant relative.
  • The nature of the records to be released. If the record is inherently private and of a very sensitive nature then it is likely not to be released unless there are compelling reasons for so doing. Such reasons might include the release to a blood relative of records that show a hereditary medical condition. Records containing joint personal information of both the requester and the deceased might, subject to other considerations, fall to be released. In the case of a former spouse or former partner seeking access to records of the deceased, in the normal course only records concerning the period of his or her marriage or relationship with the deceased should be considered for release.
  • Can the requester obtain the information they seek without accessing the records of the deceased, for example from another family source? This avenue should be explored with the requester. Any request for access to financial records should be directed in the first instance to the personal representative.
  • Any other circumstances relevant to the request as set out by the requester. These should be taken into account by the decision maker in reaching a decision on the request.

Decision makers should note that, even where they have made a preliminary finding that access is appropriate in the particular circumstances, it is still necessary to consider the other exemptions in the Acts.

12.3.2 Consultation in relation to the records of the deceased

General points

Consultation does not arise in respect of FOI requests by requesters in categories 1 and 2, i.e:

Category 1 - The personal representative of the deceased acting in due course of administration of the estate of the deceased or any person acting with the consent of the personal representative so acting, and

Category 2 - A person appointed by the courts or by statute.

Access should be granted to appropriate records sought by such requesters on submission of the necessary material described earlier in this text.

Where a request for the release of records relating to a deceased person falls into category 3 the public body may make such enquiries and engage in such consultations as are necessary to ensure that all relevant circumstances are taken into account. This process may be necessary to establish whether or not access by the requester to the record would be appropriate. Examples of how this might operate in particular circumstances are described below:

  1. Where there is a proved will or where letters of administration have been extracted on a death intestate and the records are such as are necessary for the due course of administration of the estate of the deceased the personal representative may be consulted in the first instance.
  2. Where there is an unproved will or where no letters of administration have been extracted on the death intestate of a deceased person or where the personal representative is deceased, or where the records are personal non-administration records, the following people with a "legal" relationship to the deceased, may be consulted, usually in the order indicated, i.e. spouse, partner or next of kin (see Category 3.C. above for the order of consultation with next of kin). In undertaking consultation with next of kin in these circumstances, is for the deciding officer to decide, on the evidence available and on a case by case basis, with whom to consult and the weight to be given to any information obtained through such consultation.
  3. Persons who had a "family" relationship with the deceased during his/her life, though not legally related to him or her, such as a foster parent of an informally adopted child, could also be consulted as could persons with an established relationship of trust such as a medical or legal adviser or close friend.

Contacts

It may be necessary to make enquiries to establish whereabouts of next of kin. In cases where a grant to the estate of the person to whom the record relates has issued, the names and present addresses of the party or parties as set out above should be sought from the personal representative or his/her solicitor. Where a grant has not been extracted the requester could be asked to make every effort to provide the necessary information. Relevant information may be obtained from:

  • Inspection of the death certificate
  • Valuation Office
  • Probate Office
  • Land Registry/Registry of Deeds records,
  • Other sources such as the electoral register, death notices in newspapers, telephone directories or in Thom's Directory.

12.3.3 Other provisions of the FOI Acts

As with the classes of persons whose records may be made available to parents or guardians, decision makers, when reflecting on whether access should be provided to the records of deceased persons, must also consider any other exemptions that may be relevant.

SECTION 13 : PROVISION OF ASSISTANCE TO MINORS AND DISABLED PERSONS.

GUIDANCE NOTES ON THE PROVISION OF ASSISTANCE BY PUBLIC BODIES TO FACILITATE PERSONS WITH A DISABILITY TO EXERCISE THEIR RIGHTS UNDER THE FREEDOM OF INFORMATION (FOI) ACTS, 1997 AND 2003, PREPARED UNDER SECTION 6(3) OF THE FOI ACTS.

13.1 TABLE OF CONTENTS:

1. Outline of Contents

2. Introduction
2.1 Terms of Reference

3. Designation of officers to provide a service to requesters with a disability

4. Provision of services to requesters with a disability
4.1 Provision of a referral service

5. Identity of requesters seeking personal information
5.1 Establishing identity
5.2 Release of personal information

6. Consent of requesters to release of records to third parties
6.1 Consent to release of records to third parties
6.1.1 Is consent informed?
6.1.2 Is consent valid?
6.1.3 Provision of records to third parties with consent

App. A Sources of disability awareness training

App. B List of service providers to persons with a disability

13.2. INTRODUCTION:

These Guidelines were prepared under Section 6(3) of the FOI Acts, which provides that the Minister for Finance shall, following consultation with whatever other Minister(s) he or she considers appropriate, introduce guidelines on the provision of reasonable assistance to persons with a disability in exercising their rights under the Acts, and that public bodies shall have regard to such Guidelines.

The wording of section 6(3) focuses the scope of the Guidelines solely on the rights of persons with a disability in accessing their rights of access to records held by public bodies. Wider issues affecting persons with a disability, such as physical access to buildings etc., are therefore not within the scope of the Guidelines.

13.2.1. TERMS OF REFERENCE

The Guidelines were prepared by a subgroup of the FOI Interdepartmental Working Group on the basis of the following Terms of Reference agreed by the subgroup:
"To draft guidelines for public bodies so as to assist persons with a disability in exercising their access rights under the FOI Acts. The guidelines will have regard to:

  • Different ranges of disability;
  • Issues of consent given by persons with a disability;
  • Advocacy issues;
  • Provision of practical official assistance to persons with a disability in exercising their access rights; and
  • Any other issues identified as relevant by the Subgroup."
13.3. DESIGNATION OF OFFICERS TO PROVIDE A SERVICE TO REQUESTERS WITH A DISABILITY.

The Head of each public body should ensure that an officer is designated to deal directly with requesters with a disability when such requesters are, due to their disability, unable to fully exercise their access rights under the Acts.. This function should be carried out as an integral part of the duties of the relevant officer and should be executed on the basis that professionalism of the service is applied equally to all requesters. Public bodies could achieve this through any of the following means:

  • assigning the task to the existing FOI officer, if such a post exists;
  • assigning the task to the officer in the body whose existing duties most closely relate to it, or
  • putting other arrangements in place that suit the requirements of the requester and the responsibilities of the public body.

Heads of public bodies should make arrangements to ensure that the service is provided at all times, i.e. that any absences of the dedicated officer are covered through nomination of a deputy or otherwise as required to ensure continuity of the service.

In any event, heads of public bodies should ensure that all officers who perform this duty are provided with basic disability awareness training. Such training should ensure that officers are in a position to have due regard to the extent and categories of disability of requesters, and should have a particular emphasis on advocacy issues. Details on sources of such training are attached as appendix A.

Public bodies should also be aware of and have regard to existing Guidance under section 28(6) of the FOI Acts which set out the circumstances when it is appropriate to release records relating to incapacitated persons to parents or guardians acting on their behalf.

13.4. PROVISION OF SERVICES TO REQUESTERS WITH A DISABILITY:

The task of the nominated officer is to ensure that requesters with a disability are provided with access rights consistent with the provisions of the FOI Acts. In fulfilling their task, disability access officers should take a pragmatic approach to performing this task and apply common sense to situations which are covered by formal mechanisms of the FOI Acts.

This level of service could be maximised by:

  • accepting oral requests from requesters who are unable to read, print and/or write due to their disability. In receiving oral requests, the disability access officer should make a verbatim record of the request, to be read back to and agreed by the requester. This would make such requests consistent with section 7(1) of the Acts which requires that FOI requests are in writing. As email requests which are by their nature unsigned are acceptable as valid requests, the technical issue as to whether the oral recorded request needs to be signed does not arise. If the request is for personal information, issues of identity and consent arise. These issues are dealt with in section 5 following;
  • accepting email requests from requesters who are unable to write due to their disability. The main issues here would be of identity and security, as it has been established that receipt of email requests does not fall foul of the requirement that FOI requests be in writing. Public bodies should largely be guided by the wishes of the requester in this regard, as he or she would be better placed to advise on the security of a home email destination (including issues such as family access etc.) than the public body.
  • enabling the requester to inspect or have records explained to him or her. There may be cases where a requester with a reading disability who has sought access to records does not want such access to be via a third party, but is prepared to have the content of the records explained to him or her by the public body. In such cases, the public body should ensure that, with due regard to disability awareness issues, the officer most familiar with the records provides the service;
  • accepting requests from a third party on behalf of a requester with a disability. Subject to the issues of identity and consent mentioned above, there is no difficulty under FOI in public bodies releasing records to third parties, including those which are confidential, commercially sensitive or personal to the requester. Release of records via third parties should only be considered when the public body is satisfied that the requester does not wish to have direct access to the records or to have them explained to him or her by the public body;

13.4.1 Provision of a referral service

It may not always be possible to provide an appropriate standard of service directly to the requester, for example when records sought by a requester cannot be understood by him or her due to the particular nature of their disability. In this context, public bodies could consider providing appropriate technology (such as voice translation software and scanners) when updating or replacing existing Information Technology apparatus as circumstances and resources allow. Provision of such technology where relevant and appropriate should reduce the recourse by public bodies to Section 12 of the Acts which provides that requesters should be provided with records in any form specified by the requester unless it is not efficient for the public body to do so.

However, there will be some cases where the issue of understanding records can not be dealt with by technology alone. In these exceptional cases, public bodies may wish to consider making contact with a number of voluntary and other services which can provide assistance to requesters with particular disabilities in such matters. Public bodies should not refuse access to a record under section 12 of the FOI Acts in the case of a requester with a disability until all reasonable steps have been taken to assist the requester within the body, including consideration of technical solutions to the issue. Only then should public bodies consider referring the requester to the service most relevant to his or her case. It is a matter for each public body to consider whether and when such efforts would be appropriate, but should always bear in mind the importance of providing a level of service to persons with a disability at least equivalent to that provided to other requesters. A list of service providers, and an indication of the categories of disability each caters for, is attached as Appendix B. It is not expected that the cost of translation would be an issue in most cases, but where it is, charging for translating records into specified formats would be a matter for public bodies to decide on a case by case basis. The requester should be assisted in minimising charges. It may suit the public body to pay, for example, for a Braille version of a record that it is intended to make publicly available and a requester would not be required to pay in such a case. Moreover, public bodies can consider waiving fees in certain circumstances as set out in Section 47 of the Acts, e.g. Section 47 (4)(b).

At a general level, the service provided by public bodies to persons with a disability could be considerably improved in the following ways:

* production of key documents, (i.e. publishable documents most frequently sought from public bodies), in video or audio format, with subtitling as appropriate. Use of existing reformatting technology should be considered, i.e. in-house technology that facilitates translation of material into different formats thereby removing the need to source such translation externally. This could reduce the reformatting costs of any records the public body decides to translate;

* production of key records in Braille or in an appropriate voice translation medium. Again, use of existing reformatting technology is suggested.

13.5. IDENTITY OF REQUESTERS SEEKING PERSONAL INFORMATION:

This section of the Guidelines relates to the treatment of requests for one's own personal records. In this regard, there should be no difference between the service provided to requesters with a disability and that provided to other requesters. The terms of the FOI Acts [section 28(2)] oblige public bodies to satisfy themselves of the identity of requesters for personal information.

13.5.1. Establishing identity.

The FOI Acts do not specify any particular form of identification which public bodies should consider as satisfactory for the purposes of positively identifying requesters for personal information. However, listed below are some forms of identification which may be of assistance to public bodies in identifying requesters for personal information:

  • any form of photographic identification, such as a passport, driver's licence etc.;
  • the person's signature, either on legal documentation such as an affidavit or in routine correspondence in cases where the body has had prior written dealings with the person. This could include State entitlement documentation such as allowance/benefit booklets when the public body is satisfied that the bearer is the person to whom the allowance is payable;
  • the person's home or email address and telephone number, if the body is satisfied that such details are not available to other people, and
  • any other form of identification acceptable to the public body.

In general, public bodies should have regard to forms of identification convenient for the requester provided they provide sufficient proof of identity.

13.5.2. Release of personal information

Once the identity of the requester has been established, the public body must then decide whether it would be appropriate to release the requested records. In doing this, the public body should consider the following:

  • are the records appropriate for release? The FOI Acts provide that requested records held by public bodies will be released unless they contain exempt material. Therefore, decision makers must consider whether requested records, including personal records, include information that may be exempt before making any decision to release them.
  • does the nature of the disability require additional steps to be taken other than sending the records to the requester by post? If so, then the issues of maximising the service to requesters with a disability (as set out in section 4 above) should be considered, including email or phone conversation. If not, no additional action is required.
  • would release of the records be harmful to the person in some way? i.e. as specified in Section 28(3) of the Acts. When considering this issue, the public body should have the best interests of the person in mind at all times, and should approach it on the basis that the likelihood of such harm occurring is no more likely in most cases for requesters with a disability than it is for the majority of requesters. Before making any decision to withhold records from a requester for this reason, the public body should consult with as wide a range of sources as is reasonably possible, such as a family member, trusted friend, carer, health professional, legal representative etc.,.
    Intermittent or temporary incapacity: In the case of a person who suffers intermittent incapacity, in most cases of an intellectual nature, but can normally manage his or her own affairs, it is unlikely that records would be released to a third party during such periods of incapacity unless the decision maker had strong grounds for assuming either:
    a) that the person would consent to release if able to do so, or
    b) if release was in his or her best interests e.g.- where the person's nominated third party have concerns about treatment and seek the person's medical records with a view to obtaining a second medical opinion
    The Acts [section 28(3)] provides a basis for such an approach in that medical records or records related to social work which in the opinion of a deciding officer may be potentially harmful to the requester if released directly to him or her can be released on the requester's behalf to a health professional nominated by him or her.
  • is the person in a position to understand the records? If the public body have concerns of this nature, steps should be taken to ensure that released records are properly explained to the requester. This could be done by having an officer familiar with the records or a third party nominated by the requester take him or her through them to ensure that there is no potentially upsetting misunderstanding of their content.
13.6. CONSENT OF REQUESTERS TO RELEASE OF RECORDS TO THIRD PARTIES:

This section of the Guidelines relates to the issue of consent of persons with a disability to records being released to third parties. The terms of the FOI Acts [section 28(2)] oblige public bodies to satisfy themselves of the consent of requesters to the release of information sought by them to a third party. This section should only be referred to where the requester, due to the nature of their disability, is not in a position to provide written or oral consent to release of records relating to him or her self to third parties. Guidance regarding issues of consent generally is also provided on the section 28(6) guidelines referred to previously.

13.6.1. Consent to release of records to third parties:

As with identification of requesters for personal information, the FOI Acts do not specify any particular form of consent which public bodies should consider as satisfactory proof of consent to release (i) requested records to third parties on their behalf, or (ii) personal information relating to requesters with a disability to third parties. Public bodies should take a pragmatic approach in considering this issue and be sensitive to the reality that some aspects of particular requests will require dealing with the requester him or herself directly, while with other aspects of the same requests contact will be with the third party by themselves or along with the requester.

13.6.1.1. Is consent informed?

In examining these issues, public bodies should firstly satisfy themselves that the requester is in a position to provide informed consent. This would be an issue of judgement for the public body, but some of the factors which public bodies should consider on this issue are:

  • previous dealings with the person. If the public body, through FOI or otherwise, has had prior dealings with the person, the nature of such dealings may provide grounds for the body to decide whether the person was in a position to provide informed consent;
  • previous dealings with a nominated third party. If the body has had prior dealings with a nominated third party on behalf of the person (such as a family member, trusted friend, carer, health professional, legal representative etc.), the nature of such dealings may also provide grounds for the body to decide whether the person was in a position to provide informed consent; and
  • the nature of records held on the person. In cases of requests for personal information, there may be material on the person's file which would assist the body in deciding if he or she was in a position to provide informed consent to release of such material to third parties;
  • the nature of the disability. A critical factor is whether the disability is temporary or continuing. Requests from people with intermittent or temporary disability would be treated as outlined in 5.2 above, with decision makers having regard to the best interests of the person to whom the records relate. In cases where disability is continuing, it is more likely that release to third parties may be in the person's best interests where such third parties are caring for the person on an ongoing basis. However, this may not always be the case.

Decision makers must treat each request on its merits on a case by case basis.

13.6.1.2. Is consent valid?

Once a public body has established that the person is in a position to give informed consent, the next step is to decide if such consent is valid. Below are listed some forms of consent which public bodies might find useful for the purpose of establishing the validity of consent for all requesters:

  • the person's signature, either on legal documentation such as an affidavit or in routine correspondence in cases where the body has had prior written dealings with the person;
  • confirmation by telephone when the public body is satisfied that such consent is being given without duress;
  • consent by email when the public body is satisfied that such consent is secure and being given without duress; and
  • any other form of consent acceptable to the public body.

If public bodies have any concerns about the validity of consent given by people, they should take all reasonable steps to contact the person on the issue, either directly or via an intermediary nominated by him or her. If they are unable to contact the person, they should assume that the person does not consent as the FOI Acts provide that one's personal information will not be revealed to third parties, unless the person to whom the records relate has consented or there are public interest grounds for releasing the records which override the right to privacy of the person.

13.6.1.3. Provision of records to third parties with consent.

Once consent has been established, the requested records should be released forthwith to the third party nominated by the requester.


APPENDIX A

This is not an exhaustive list and does not constitute a recommendation, public bodies are free to source disability awareness training elsewhere as required, subject to public procurement procedures.

Sources of disability awareness training:

Trainer(s)

Contact point

Email

Ben Murray

ph. 01-4510260 /
087-6862306

 

Jacqui Browne

ph. 066-36575 /
088-610447

jbrowne@iol.ie

Barry Tumbleton

ph. 01-6237180

barrytumbleton@gmail.com

Mary Beggan (FS)

 

 

The National Association for the Deaf

ph. 01-8723800

 

The National Council for the Blind of Ireland

ph. 01-8307033

 

The Irish Wheelchair Association

ph. 01-8338241

 

List of disability/equality trainers in National Rehabilitation Board information pack

ph. 01-6080400

 

Ms. Margaret Blanchfield
79 Marble Crescent, Kilkenny.

ph. 056 - 63681

 

Mr. Alan Bruce, 53 Rathdown Sq.,
North Circular Road, Dublin 7.

ph. 01 - 8380970

 

Ms. Frances Finucane,
49, Lios na Greine,
South Douglas Road, Cork.

ph. 021 - 322366

 

Mr. Michael Gogarty,
42 Castle St,
Trim, Co. Meath.

ph. 046 - 37163

 

Mr. Christopher Keeley,
3 Herberton Drive,
Rialto, Dublin 12.

ph. 01 - 4542857

 

Ms. Anne Marie Kennedy
Liberty Hall, Dublin 1.

ph. 01 - 8749731,
01 - 8787272

 

Mr. Allen O'Connor,
Ashley House,
Douglas Road, Cork.

ph. 021 -294749

 

Mr. Kevin Power,
St. Michael's House,
Santry Hall, Dublin 9.

ph. 01 - 8622458

 

Ms. Elaine Shields
24 Crescent 2,
Muirhevnamore, Dundalk,
Co. Louth

ph. 042 - 9339604

 

APPENDIX B

This is not an exhaustive list and does not constitute a recommendation, public bodies are free to refer requesters to other sources as required, subject to the usual procurement procedures.

List of service providers to persons with a disability:

Source(s)

Service

Contact point/Email

Jackson Technology,
Supplier of Braille
Convertors/Printers,
24 Kiltipper Ave.,
Aylesbury, Dublin 24

Braille

ph.01-4518508

National Council for the Blind
PV Doyle House,
Whitworth Road,
Dublin 9.

Braille/Recording

ph. 01-8307033

Irish Sign Link
25 Clyde Road Ballsbridge, Dublin 4

Interpreting Signing service

ph. 01-6080437
signlink@indigo.ie
Fax 01-6685029

Forum of People with Disabilities

General

ph. 01-8786077

The National Disability Authority,
Clyde Road,
Dublin 4

General

ph 01-6080400

Appendix to the Code of Practice for the employment of people with disabilities in the local authority sector

General

ph. 01-8882344
ph. 01-8882345

PROCESSING AN FOI REQUEST

CHECKLIST

1. PRE-REGISTRATION:

On receipt of the FOI request by FOI Officer

Where a request is not proper to your area:

  • Determine the appropriate decision maker to handle the request and notify him/her that request is being sent to him/her for processing (this can be done by e-mail or phone). If in doubt as to the appropriate decision maker, contact the FOI Unit.
  • Send on actual request immediately (copy by fax initially, where possible).
  • Keep copy of request and check with decision maker within 2 days to see if request has been received.
  • Where a request relates to a number of areas including your own, you are only obliged to deal with the part of the request relating to your own area - request should be copied to other relevant FOI Officers for their attention.

Where request is proper to your area:

Check that request comes within scope of FOI Acts.

  • Was it received in writing or other approved form (e.g. e-mail)?
  • Does it refer to the Acts?
  • Does request contain sufficient details to allow identification of records sought?
  • If request does not contain sufficient particulars or is too general or vague, contact requester within 2 days to clarify the request (either by phone or in writing).

Can Request be dealt with outside of FOI Acts?

  • Certain records can be released outside of the FOI Acts, e.g., where information is already in the public domain; if information is already included in published Guidelines; or if the request is for statistics where there is no problem releasing such information.
  • If responding outside of FOI, obtain agreement of requester and confirmation that he/she is satisfied with material released.

Transfer of Requests to other public bodies.

  • If records requested are not held by this Department - section 7(3) refers. Take all reasonable steps to identify which other body holds the records requested and transfer the request to that body as soon as possible, but within 2 weeks of receipt of request.
  • If only some records are held by this Department - section 7(4) refers. If some records are held by you, you should deal with those records in the normal way. As regards records not held by you, you should take all reasonable steps to identify which other body holds such records and inform the requester of the relevant public body. This can be done when acknowledging part of request being dealt with by you.
  • When in doubt, contact the FOI Unit.

2. REGISTRATION

  • Date stamp on day of receipt.
  • Open a registered file, showing name of requester and date request received on front of file.
  • Note the deadline for reply on front of file.
  • Enter the details of the request on the FOI Request Register (FRR).
  • Check proof of identity where requester is seeking access to personal information.
  • Where request is for personal information relating to a third person, has consent to release of records of that person been received?

Acknowledge receipt

  • Within 2 weeks as per FOI Acts - ideally within 2 days to allow maximum time for consideration of the request.
  • Use template acknowledgement letter on FRR as this includes particulars of the requester's rights of review.

3. SEARCH AND RETRIEVAL

Search for and locate records relevant to the request as early as possible.

  • Establish if there are administrative reasons for refusing the request (Section 10 exemptions), e.g. if the record does not exist or cannot be found; if the request is not sufficiently detailed to enable the records sought to be identified. Remember that the Acts oblige the public body to assist the requester in identifying the records required to enable him/her to make a valid request.
  • Charges: If the fee for search and retrieval is likely to exceed 50.79 (40) (i.e. search will take more than two and a half hours), issue letter seeking deposit of 20% of total fee within 2 weeks of receipt of request - template letter on FRR. Enter details of fees sought on FRR.
  • Charges will not normally apply where personal records are concerned unless a significant number of records are involved. Contact FOI Unit if extensive personal request received.
  • Identify and retrieve the records as soon as possible.
  • Keep note of all the steps taken to locate records and the time spent collating and photocopying records prior to examination by FOI Officer (Remember: we cannot charge for time spent actually examining records for exempt material).
  • Seek signed confirmation of searches undertaken from relevant divisions, if appropriate (in case adequacy of search is challenged by requester or Information Commissioner).
  • Copy all records that come within the scope of the request.
    (As you cannot amend originals when examining for exempt material, you need to work from photocopies).
  • Take note of the various time limits which must be met
  • Number the records.
  • Prepare a schedule of all the records that come within the scope of the request.

4. EXAMINATION OF RECORDS

  • Check each page for exempt material.
  • Undertake informal consultations with colleagues, or other relevant persons, as appropriate to determine the status of the records in question.
  • Amend schedule of records to show those that are being released and those that are being refused.

Note: a well-prepared schedule of records will be of particular importance in dealing with requests for internal review or Information Commissioner review.

5. CONSULTATION

Third Party Consultation NB: to be initiated within 2 weeks of receipt of request.

  • Consider whether the records coming within the scope of the request contain third party information.
  • Undertake formal consultations if required under Section 29.
  • Consult with FOI Unit before undertaking formal third party consultations.

Extension of time

  • The standard 4 week time limit for dealing with requests can be extended in certain limited circumstances as set out in Section 9 of the Acts.
  • Consult with FOI Unit before invoking Section 9.

6. MAKING THE DECISION

  • What exemptions, if any, apply?
  • Where required, is the injury or harm test satisfied?
  • Consider views of third party, where appropriate.
  • Consider what public interest factors apply?
  • Take the decision based on the relevant facts.
  • Record your decision and the facts upon which it is based.

Access considerations

  • Delete exempt material carefully, i.e., by blanking out exempt material on a photocopy and then photocopying again.
  • Is deferral of access relevant (Section 11 of Acts). If so, notify the applicant of the decision and the reasons for the deferral together with the rights of review and appeal.
  • Form of access (S.12 of Acts). How are the records to be accessed? Any special arrangements needed, e.g., people with disabilities?

7. NOTIFYING THE DECISION

  • State the decision, the day on which the decision was made, the name and grade of the decision maker.
  • If the request is granted, whether wholly or in part, state the day on which access to the record will be offered to the requester, the form of access, the period during which the record will be kept available and the amount of any fee payable. Template letter on FRR.
  • If the request is refused, whether wholly or in part, state the reasons for the refusal, and the following information
    (a) any section of the acts you are using to deny access - all relevant exemption provisions should be mentioned and you might consider enclosing a copy of any relevant sections,
    (b) the findings on any material issues relevant to the decision and
    (c) details of public interest issues taken into consideration in reaching the decision (i.e., arguments for and against release in the public interest, the weightings attached to them and the final outcome). Template letter on FRR.
  • List the exact records coming within the scope of the request - attach schedule of records showing list of records that are being released and those that are being refused.
    (Note: this is not necessary where all records are being released, however, you should keep some record of what has been released).
  • If the giving of access is deferred under Section 11, state the reasons for the deferral and the period of deferral.
  • Explain the review and appeal rights to the requester, the steps the requester should take to exercise those rights and the time limits governing such exercise (contained in template decision letters on the FRR).
  • Notify third parties, where appropriate, indicating right and time limit of appeal.
  • Enter decision and date of decision on FRR.

8. RELEASE OF RECORDS

  • Collect balance of fee outstanding (where appropriate) before release of actual records.
  • Obtain suitable identification where applicant seeks access by inspection of records which concern his/her personal information.
  • Release copies of records to the requester or copies of edited records, as appropriate.
Last modified:03/06/2010
 

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