The Freedom of Information Act establishes the Information Commissioner. The Ombudsman was appointed as Information Commissioner. The Information Commissioner may make a legally binding determination. His or her decisions may be appealed on a point of law to the High Court. The Commissioner monitors the enforcement and operation of the Freedom of Information Act.
The Information Commissioner is an independent officer and is eligible for reappointment. The Information Commissioner is independent of government as is its office and staff.
The Information Commissioner has quasi-judicial characteristics and must act with due process in fairness. Other grounds on which he acts involve the exercise of discretion and is more administrative in nature.
The Commissioner reviews decisions of the body whether directly where there is no provision for review or after review. The Commissioner may not act where a conclusive certificate has been issued in certain cases by a governmental department. See the sections on a limited number of such cases generally based on public security or vital interest grounds.
The Commissioner may refuse to undertake a review or discontinue a review on the grounds that it is frivolous or vexatious. The applicant for review must be notified.
The Commissioner is to keep the operation of the Act under review. It may investigate practices and procedures undertaken by public bodies in compliance with the Act. It may publish a report and its findings and conclusions. Copies are to be provided to the minister and public bodies.
The Commissioner is to produce and publish an annual report. They are also broader powers to investigate and publish reports on matters concerning freedom of information.
Freedom of Information Act provides that the original decision of the head of the relevant public body may be the subject of an internal review where the decision has been made by a person to whom it is being delegated by the head. The internal review must be exhausted before the application/appeal to the Information Commissioner.
Some decisions only allow for internal review. They include refusal of grant of access based on an exemption, exclusion from the Act on administrative grounds or that the record predated the Act. Decisions regarding the form in which access is to be given, access to a part are only refusals to amend records reasons for decisions are the subject of internal reviews. Most other processes provide for review by direct recourse of the Information Commissioner.
The internal review must generally be sought within four weeks of the original decision. The head may extend this period if there are reasonable grounds for so doing. Fees are charged.
The appeal/internal review must be made in writing to the head of the body. The review may be undertaken by another delegate of the head, but at a higher level than the original decision maker. The reviewer has powers to uphold the decision, cancel it or amend it. It is to be completed within three weeks and notice is to be issued. If no decision is made, the decision is deemed to be upheld.
The review decision must give reasons. It must be based on provisions of the Act. The findings on which it is based may be set out. This does not apply where the legislation allows for withholding the existence of the record on public interest grounds or where the refusal is based on the volume of material.
An application for review may be made by the person who has requested the record. It is subject to consultation procedures in certain contexts. A person who has applied to have personal records amended is to be given reasons for a decision.
The application must be made in writing and a fee must be paid. It must generally be made within six months. The shorter time limit of two weeks applies in relation to third-party consultation.
The Commissioner’s review is generally a review afresh of the request for access. The Commissioner has discretion as to the procedure which he uses for the conduct of the review. The legislation provides that the review is to be as informal as consistent to the due performance of the Commissioner’s function.
The head of the body must be notified before the commencement of the review. Third parties who have been notified must be disclosed to the Commissioner. The head of the body, the applicant and other third parties who have been notified in certain contexts may make submissions that are to be taken into account.
The Commissioner may require records of the relevant public body. The head can be required to furnish all information under his control. This must be complied with within three weeks.
The Commissioner may require information and records to be furnished which he believes are relevant to the review. It may require persons within the relevant office to attend before him. The Commissioner may examine all relevant files.
The Commissioner may enter the public body’s offices to obtain information where records are available and take copies of records. Provisions of law regarding confidentiality and restriction disclosure are not to preclude access for the Commissioner to records.
The Commissioner may seek an amicable settlement. It may facilitate the same by suspending the review with the consent of the parties
It is an offence to refuse to furnish information requested or to obstruct the Commissioner in the performance of duties. A person guilty is liable on summary conviction to a fine of up to €1,905- or six-months’ imprisonment. Similar provisions apply in respect of a refusal to answer questions.
The Commissioner may take submissions verbally in writing or otherwise. There is no provision for oral hearings as such. In some contexts, constitutional justice may require an oral hearing. The questions of law arising may be referred to the High Court and the decision may be suspended pending reference back from the High Court.
Nature of Review
The burden is on the body which denies access to justify denial under the legislation. Where the review arises from an objection on behalf of a third party, the onus is on the third party to show that the access is justified.
The review is to be undertaken as may be needed. Generally, the decisions are to be given within four months insofar as practicable. The Commissioner must give reasons for its decision as soon as may be insofar as practicable within the time limit for making the decision.
The Commissioner may uphold, annul or vary the decision in such manner as he or she considers proper. The Commissioners specifies the time limit within which the decision must be given effect by the public body. It is to give sufficient time to allow an appeal to the High Court if it arises.
Decisions are binding on the public body and the applicant. The office of the Commissioner also has a general function in relation to publicising the legislation. It may publish commentaries based on its experience and decisions or otherwise for the purpose of guidance.
The Commissioner may publish a report in relation to a review carried out under the Act.
Appeal to Court on Point of Law
A decision of the Commissioner may be appealed in a point of law to the High Court. An appeal may be made in respect of a ministerial certificate denying access to particular classes of documents on the basis of security et cetera. In the case of records held by the office itself, the High Court acts as reviewer of decisions of access. The Commissioner may refer questions of law to the High Court.
An appeal must be brought to the High Court within four weeks. An appeal is made by notice of motion to the court, served on the Commission and the relevant public body. It is determined on affidavit unless the court directs an oral hearing.