Information Commissioner, Ger Deering has raised concerns over the escalating reliance on external legal counsel by several public bodies in dealing with freedom of information (FOI) queries. He also noticed an alarming trend where a handful of these organisations have been outsourcing their decision-making process related to FOI requests to external legal consultants.
In his 2023 annual report, Deering highlighted that this practice could hinder the public’s right to access information to the maximum feasible level as stated under the FOI Act. He revealed instances where public authorities extensively utilised exemptions to deny an FOI request, some of which were, at best, weak.
The commissioner had to issue eight formal notices last year to various public bodies who failed to provide the necessary information to review their decisions regarding an FOI request. Out of these, four were sent to Cork City Council, and one each to Children’s Health Ireland, the Defence Forces, the Department of Health and Trinity College Dublin (TCD).
Deering had even contemplated launching official legal action against TCD for refusing access to specific records relating to commercial dealings. Only after four months of denial and impending High Court proceedings, did TCD agreed to a settlement and retracted its application for review.
According to his report, 37,437 FOI requests were submitted to public entities last year, marking the highest figure since 39,904 requests in 2019 and the second highest since 2014. With 11,748 requests, the Health Service Executive received the largest number, followed by the Department of Social Protection (2,468) and Tusla (1,333).
In 2023, the information commissioner reviewed 665 decisions by public bodies under the FOI Act, and most cases were denials of access to records. Deering praised the majority of cases handled efficiently by the Civil Service or public bodies. However, he noted that an increasing number of organisations were leaning on external legal advice. Deering also highlighted the conflict between public service and private practice cultures, alongside the additional costs incurred, besides posing the question of why this was an issue.
Mr Deering has expressed concerns over the prevalent approach of external legal consultants who often invoke blanket exemptions. Whilst conceding that there might justifiably be certain data that needs to remain confidential, he criticised a trend towards obstruction of complete data release.
He insisted that, when there are authentic reasons for withholding specific pieces of data, the authorities should articulate these reasons precisely while referring to the pertinent legal provisions.
Strikingly, Mr Deering dismissed the dire prophesying amidst fears that full data disclosure would lead to catastrophic outcomes. He argues that this attitude lacks practicality.