FOI appeals become more adversarial

(CNS): In her latest quarterly report regarding the work of her office the Information commissioner has raised concerns that government departments are increasingly engaging lawyers to help them withhold records rather than trying to disclose them, as was intended by the Freedom of Information law. Jennifer Dilbert said that as the public becomes more aware of its rights under the law, the number and complexity of hearings and investigations being carried out by her officer is increasing but the process is becoming increasingly legalistic. Dilbert also reports that during the first quarter of 2012 her office handled a record number of appeals.

She said that between 1 January and 31 March twelve new appeal files were opened and two were closed, the largest number of appeals received in one quarter to date.

Dilbert explained that the hearings were becoming increasingly complex as cases naturally work their way through the system and she pointed to the non- or partial disclosure, procedural or legal questions, a lack of response from the public authorities as well as incorrect interpretation and unexplained applications as some of the issues her office was dealing with when handling appeals and hearings. She said that applicants may at times be unclear in the precise scope of their requests, further complicating the problems.

Dilbert pointed to the adversarial approach now adopted by some public authorities as they try to prevent the release of documents and information.

“An increasing number of public authorities engage legal counsel to deal with FOI requests, especially once an appeal has been raised,” Dilbert wrote in her report. “This puts additional pressure on the ICO as the approach becomes increasingly legalistic and adversarial, with a greater emphasis on withholding records, rather than maximum disclosure as intended in the Law,” she added.

According to the latest statistics, since the FOI law came into force in 2,295 requests for information have been filed with public authorities by members of the public by the end of March this year. In that time 90 appeals were opened by the ICO and 74 of them closed. Nineteen hearings have already been conducted and a twentieth is currently underway. During the last quarter of 2011, 193 Freedom of Information requests were logged by public authorities, representing a 69% increase in requests over the previous period and covered 58 out of the 91 public authorities.

However, Dilbert revealed that 25 public authorities failed to submit their information to the ICO before the deadline, despite reminders from the office. The commissioner said that authorities which continue to be non-compliant will be named in future quarterly reports.

Of the many other issues analysed in the report, Dilbert also writes that despite the legal requirement to review the freedom of information legislation and the formation of a review sub-committee, chaired by Attorney General Sam Bulgin, almost two years ago, there has been no progress on the law review.

See full quarterly report below and for more information visit www.infocomm.ky