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FOI Bill: The Department of Public Expenditure and Reform’s Right To Reply

I told the Department of Public Expenditure and Reform that if they would like to make a reply to my FOI Posts, I would publish it. You can read their response below.

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The FOI Act, like FOI Acts in other jurisdictions, provides for access to records which already exist and are held by public bodies consistent with the public interest and the right to privacy. The Act, similar to Acts in other jurisdictions, does not provide that in the event records are not already in existence, they should be created by public bodies whether through manipulation or analysis of data held, or otherwise. Indeed the Information Commissioner has made decisions in this regard accepting that refusal under section 10(1)(a) on grounds that records are not already in existence, is justified.

Far from causing a new restriction to be placed on access to electronic records, the following steps have been taken in the FOI Bill:

• The definition of record has been updated to take account of technological advances and to clarify that it includes electronic records and encompasses databases (section 2 of the Bill refers).

• The Bill makes clear that an FOI body is not expected to start manipulating and analysing data in response to an FOI request where such manipulation and analysis does not already exist which is similar to the situation in other jurisdictions. However, the new section 17(4) of the Bill recognises that we have moved from a paper-based environment to an ICT-based one and makes fully clear that records in a database may be accessed provided no manipulation to the data is required in order to produce the record. Indeed it goes further that the current Act in that it provides that FOI bodies should take all reasonable steps to extract electronic records from a database and that the extraction of records from a database and providing them does not constitute ‘the creation of new records’ in the FOI context. Instead it sets out that the extraction of records from a database would be akin to searching through paper-based files and extracting records from such files. The provision ensures that a request for the electronic equivalent of a schedule of files would not be denied for the reason that the record does not exist.

• Furthermore, the Bill makes a new provision at section 17(1)(c ) that an FOI body may provide a requester “where available in such form, and subject to subsection (2), with a searchable electronic version of the record”.

It is regrettable that the Government’s attempts to clarify the right of access to electronic records is being interpreted as some sort of new restriction instead of widening the scope of access as it does.

For assistance, examples of data that might be accessed under the new Bill are set out below:

(a) a requester should be given access to records of a public servant’s T&S claims as someone could search the system under a name and print the records off as one new record without doing any manipulation of the information. The new Bill provides that this does not constitute a new record under the Act. ( It is understood that public bodies have argued that because data is held in a number of different sources, they cannot extract that data and copy it into a new record as that would constitute the creation of a new record.)

(b) a public body would not be required to give access to a requester of the top 500 websites accessed by D/PER staff because to do this would require that a programme be written to access the necessary details and sorting and aggregating the information would be required. It is not something that would be stored as a record – data would be compiled/manipulated to come up with the details requested. However, if public bodies wished, they could provide access to such data outside of FOI.

(c ) if a requester sought all emails from one person to another between 1st and 5th May concerning official information, this would be information which could be accessed using a simple search process and downloading relevant records and under the Bill public bodies would be required to provide this.

2 Comments

  1. So.

    “select * from expenses” is allowed.

    “select * from civil_servant” is allowed.

    What about “select * from expenses e, civil_servant cs where cs.id = e.civil_servant_id” so that it all comes out nicely related?

    What about “select * from expenses e, civil_servant cs where cs.id = e.civil_servant_id where cs.department = ‘Justice’” so that data are also relevant to the request?

    What about some easy analytics like “select cs.full_name, e.month, sum(e.claim) total_per_month from expenses e, civil_servant cs where cs.id = e.civil_servant_id where cs.department = ‘Justice’ group by cs.full_name, e.month” to get the sum of claims per month for each member?

    At some point, extracts start to look a little like analytics. If the managers are doing their jobs properly, they’re getting analytics already, because they require their MIS reports in order to ensure they are on the job. So, fulfilling data requests that are likely to be provided internally anyway should be no problem. Even complex data analysis should be straight-forward if the extract queries have already been written.

    There’s a difference between presenting data that are already there in a particular fashion (that might require some level of code development) and creating new systems of data gathering purely to fulfil FOI requests. I suspect the above emphases the latter a little too much.

    Not being trained in law, the above still doesn’t remove the concern that I have that section 17(4) suggests that requests could be turned down because it would be unreasonable to attempt to fulfil them in a purely paper-only environment.

    Éibhear

  2. It does sound like the easiest resolution to this will be to amend the bill to remove the words ‘, having due regard to the steps that would be considered reasonable if the records were held in paper format’. These words are ambiguous and open to an interpretation which nobody wants.

    On the other hand, the words add absolutely nothing to the meaning. In the three sample cases, the words ‘, having due regard to the steps that would be considered reasonable if the records were held in paper format’ don’t make it any clearer how the record should be dealt with.

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