New Regulations have been introduced regarding who can make particular FOI applications on behalf of minors, incapacitated and deceased persons, and in what circumstances. With one surprising exception, they do not substantively alter the existing regime for such applications, and aim, primarily, to update the meaning of “next-of-kin”.
In addition to the right, under the Freedom of Information Act 2014 (“the FOI Act”), to access one’s personal information as held by an FOI body, the FOI Act also provides for two lesser-known rights:
- to apply to have one’s personal information amended where it is incomplete, incorrect or misleading (section 9); and
- to apply for a statement of reasons and underlying fact-finding relating to an “act” of an FOI body, where one is affected by, and has a material interest in a matter affected by, that act (section10).
Previous Regulations of 2009 enabled certain persons to apply to exercise these rights in certain circumstances in relation to, or on behalf of, minors, persons of diminished capacity and deceased persons.
On 15 November 2016, the 2009 Regulations were revoked and replaced by the Freedom of Information Act 2014 (Sections 9(6), 10(6) and 37(8)) Regulations 2016 (SI 558/2016) (“the 2016 Regulations”).
With one surprising exception, the 2016 Regulations do not substantively alter the existing regime for section 9 and 10 applications made by persons other than the individual to whom the application relates. Instead, the primary purpose of the 2016 Regulations appears to have been to update the meaning of “next-of-kin” in the context of making such applications on behalf of deceased persons.
The updated regime under the 2016 Regulations provides that these applications can be made in two “defined cases”.
The two defined cases:
The “first defined case” in the 2016 Regulations concerns minors, or adults who have a psychiatric condition, mental incapacity or severe physical disability which renders them incapable of exercising their rights under the FOI Act. Here, the parent or guardian of such an individual may apply on his/her behalf under section 9 or, as the case may be, section 10 of the FOI Act. FOI bodies shall grant these applications where they are of the opinion that it is in the best interests of the individual.
The “second defined case” in the 2016 Regulations concerns deceased individuals:
- to whom the relevant personal records relate (section 9); or,
- who are affected, and have a material interest in a matter affected, by the act(s) of an FOI body, as provided for in section 10.
Here, applications may be made by one of the following:
- a personal representative of the deceased individual acting in due course of administration of his/her estate, or a person on whom a function is conferred by law in relation to the deceased individual or his/her estate; or
- the spouse or next-of-kin of the deceased individual. FOI bodies shall grant such applications where they are of the opinion that the public interest would, on balance, be better served by granting than by refusing to grant, these applications.
However, the 2016 Regulations contain a surprising, and perhaps unintended, departure from the pre-existing regime concerning applications under s.10 in the “second defined case”. Regulation 5 requires that, in addition to being a personal representative or performing a statutory function in relation to the deceased’s estate, or being the spouse or next-of-kin, applicants under section 10 must also be a parent or guardian of the deceased individual concerned. This new, apparent ‘double-requirement’ for applications under section 10 is unusual, and may merit clarification from the Department of Public Expenditure and Reform (the “Department”).
Broader definitions in the second defined case:
The key change made by the 2016 Regulations is to expand the definition of “next-of-kin” for the purpose of the “second defined case”.
“Next-of-kin” now means:
(c) brother or sister;
(d) niece or nephew; or
(e) any other person standing nearest in blood relationship to the deceased individual in accordance with section 71(2) of the Succession Act 1965.
In addition, the 2016 Regulations provide that the above list should be applied as follows:
- if more than one category applies to a particular applicant, only the first in alphabetical order will be regarded as being applicable; and
- if two or more persons come within one of the defined criteria in (a) to (e), each of them will be regarded as next-of-kin of the particular individual.
Finally, it should be noted that the 2016 Regulations also amend the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (SI 218/2016) to include the above provisions on how to apply the definition of “next-of-kin”.
For FOI applications to amend personal information of minors, incapacitated or deceased individuals, or to seek statements of reasons for acts of FOI bodies which affect these individuals, it is almost ‘business as usual’ under the 2016 Regulations.
The key change to be aware of is the extended definition (and order of application) of “next-of-kin” when making these applications on behalf of deceased persons.
However, personal representatives, spouses and next-of-kin wishing to make a section 10 application ought to be aware of the apparent ‘double-requirement’ for these applicants, which may merit clarification from the Department.