Decisions, Decisions

Thestory.ie would like to welcome a guest post from Rodney Breen of foireland.blogspot.ie

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There’s theory, and then there’s reality. In 2004, I was working for a British university, preparing the staff for the Freedom of Information Act due to come into effect on the following 1st January. One question people regularly asked was this: how much do we have to reveal about our contracts? Value for money seemed to require maximum disclosure. But how would our commercial relationships survive if we told the public anything they wanted to know?

The Lord Chancellor’s office, which introduced the new Law, provided guidance on how they thought it should work. So did the Information Commissioner, who would monitor its operation. The problem was, it was all theoretical. What we needed to know was how it would be interpreted in a real case.

Eventually, somebody appealed to the Information Commissioner for a decision. The Tate Gallery had commissioned an artist to produce a piece of work. Someone asked how much it had cost; the Gallery refused, saying it would damage their ability to negotiate contracts. The Commissioner looked at the evidence and concluded it would not. We had our answer: total amounts of contracts, at least, should be public.

For the professional FOI officer, and for the serious requester, Decision Notices are a hugely important resource. They show how the law is interpreted in real life cases. It’s the difference between looking at a car in the brochure and taking it for a spin. The UK Information Commissioner publishes all decisions shortly after they are completed. So does the Scottish Commissioner, who also publishes a list of cases currently under review.

When I began looking at how Freedom of Information works in Ireland, one of the first things I did was look for decision notices. To my astonishment, there were very few: the Irish Information Commissioner publishes only a selection of decisions. With fewer appeals because of the high fees, the result is a much smaller base of information to draw on. The Scottish Commissioner has published 1,568 decisions in just over eight years; in Ireland, after fifteen years, we have just 435.

I contacted the Commissioner’s Office to ask why. It took some time to get a reply:

Decisions are published on the website on a quarterly basis. The reason being that most decisions are category 1 and usually do not contain anything of significant value. At the end of each quarter the senior investigator will review all decisions made within the time period and decide which ones to publish. All Category 2 and 3 decisions are published. … The vast majority of decisions are Category 1. No Category 3 decisions were made in 2011, or 2012 thus far.

I pressed them to explain what the difference was between Categories 1, 2 and 3. Finally, I got an answer:

An internal system of rating decisions and identifying key decisions has operated in OIC for a number of years.

3 rating is a key decision which is identified as having high value and interest because it sets an important precedent, or clarification of the Commissioner’s stance on a provision of the Act, and/or breaks new ground.

2 rating is a decision of importance because of legal research carried out, or an issue discussed, which had not received in-depth treatment heretofore, or involving examination of records having significant public interest whilst not necessarily departing from the Commissioner’s published position on the issues arising.

1 (the majority of decisions) rating is a decision which broadly follows the Commissioner’s previous findings on the exemption(s) at issue and which is of interest primarily to the parties involved.

To me, this seems completely wrong.

It seems to be entirely down to the Commissioner’s staff to decide whether they are of interest. How can they tell? The experience of Freedom of Information tells us that what public bodies think are of interest is often very different from what people actually want to know.

It is absolutely extraordinary that an organization devoted to transparency seems so uninterested in disclosing its own workings. If we can’t see their decisions, can we be confident they are getting it right? Notices allow us to see that the Commissioner works in a fair and rational manner.

Decisions that don’t set a precedent can be just as important as those that do. If public bodies make the same mistakes, we may never know because the decisions won’t be published. Seeing the full range of decisions gives us a picture of how they are performing, and which ones perform best.

We need to see all the decisions made, on our behalf, by the Commissioner. Uploading all the unpublished ones could hardly take more than a couple of days. They should be published immediately and routinely. We also need them as PDFs, so they can be easily downloaded and studied.

I will be writing to the Information Commissioner shortly to ask for all decisions to be published, as a matter of urgency, and for all future decisions to be published as a matter of urgency. We’ll let you know how we get on.

5 thoughts on “Decisions, Decisions”

  1. Did I miss something? Help me out here Gavin.
    The last I heard was you were going to a European court to access Trichet’s 12th Nov 2010 bailout letter to Lenihan and it’s contents.
    Am I misunderstanding the situation or is that correct ? If so, any news?
    Thanks again for all your work on our behalf.

  2. Putting all the decisions up online would be trivial. If nothing else it would remove the need for time spent on the spurious categorisation. I suspect you’re missing something; something else which might be revealed in the process.
    Why not try requesting the data under FOI. You could run a competition on your website to predict which exemption(s) would be used.

  3. I called the OIC yesterday (28/2/13) to ask about the number of unpublished decisions (there are approx 2000) and whether I could FOI them. I was informed that a journalist had previously sought all decisions of the commissioner, and that this had been refused, citing Section 461.c.i. of the Freedom of Information Act.

    In brief, this section of the Act says the commissioner has discretion over whether to publish decisions, and in the view of the commissioner’s office, exempts the decisions from FOI law.

    That said, it’s writen in dense legalese, so I may have parsed it incorrectly. Either way, since the commissioner has discretion to publish, there’s no reason why she shoudn’t do so, particularly given the nature of her office.

    It’s also worth noting that approx half of all FOI appeals to the OIC are dropped before a decision is reached for reasons unknown.

    1. Section 46(1)c(i) refers to an exclusion for ‘reviews’ under section 34, but Section 34 itself seems to draw a distinction between ‘a review’ and ‘a decision’. It is arguable then that ‘decisions’ are not included under Section 46(1)c(i) and therefore should be amenable to FOI.

  4. Given that the OIC is quasi-judicial I would bet a fiver that the discretionary publication power and the refusal to publish decisions is unconstitutional.

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