The Freedom of Information Act 2014 (the “2014 Act”) was enacted on 14 October 2014. It introduced significant changes to the Freedom of Information (“FOI”) regime in Ireland including repealing and replacing the Freedom of Information Acts 1997 and 2003 (the “1997 & 2003 Acts”) and expanding the scope of FOI to a number of further bodies.
This briefing sets out a summary of the main changes arising from the 2014 Act and their consequences for public and private sector entities.
Expanded Scope of the Act
While the 1997 & 2003 Acts applied only to prescribed entities, the 2014 Act applies to all entities that fall within a broad definition of ‘public body’ that is set out in section 6, unless they are explicitly exempted from its scope. Under section 7, the Minister for Public Expenditure and Reform (the “Minister”) may also prescribe certain other types of entities, including private entities that receive public funding, as being wholly or partly subject to FOI.
Schedule 1 to the 2014 Act sets out exhaustive lists of ‘public bodies’ that are either fully exempt or partially exempt. The list of fully exempt bodies includes commercial semi-state companies such as CIÉ, Coillte and Ervia and banks that are currently owned by the State, such as AIB and permanent TSB. The partially exempt bodies include entities such as the Central Bank of Ireland, the Director of Corporate Enforcement, the Equality Tribunal and the Revenue Commissioners.
In addition, section 42 provides for exceptions for specified categories of records, including records held by the courts or tribunals and certain types of records held by the Gardaí, the Defence Forces, the Attorney General, the Director of Public Prosecutions and the Central Bank.
As a result of these changes, a large number of ‘public bodies’ will be brought within the scope of FOI for the first time. While the 2014 Act came into force in relation to public bodies that were subject to the 1997 & 2003 Acts on 14 October 2014, it will not come into force in relation to entities that were outside the scope of the 1997 & 2003 Acts until 14 April 2015. The Minister may defer the application of the 2014 Act to such ‘new’ FOI bodies to a later date between 14 April 2015 and 14 October 2015.
For public bodies that had been subject to the 1997 & 2003 Acts, the 2014 Act applies to records dating back to 21 April 1998. For ‘new’ FOI bodies, the 2014 Act only applies to records dating back to 21 April 2008. These cut-off dates do not apply where earlier records are required to understand records created on or after those dates, or to requests by individuals for access to personal information.
The three main rights that were provided for under the 1997 & 2003 Acts are replicated in the 2014 Act and are as follows:
- a legal right for individuals to have personal information relating to them amended where it is incomplete, incorrect or misleading under section 9;
- a legal right for any person to obtain reasons for an act of a FOI body which affects them and in which they have a material interest under section 10; and
- a legal right for any person to access records held by a FOI body under section 11.
These rights are subject to certain exemptions and exceptions. The procedures for the exercise of these rights and the exemptions and exceptions are largely the same as those under the 1997 & 2003 Acts, although some changes have been made. Certain of the exemptions are now more restricted, while additional exceptions and administrative grounds have been included.
Under the 1997 & 2003 Acts, an upfront fee of €15 was payable for FOI requests, subject to certain exceptions. This upfront fee has now been abolished. The 2014 Act permits charges to be imposed for the costs of searching for, retrieving and copying the relevant records in certain circumstances and subject to maximum rates, including a maximum rate of €20 per hour for search and retrieval activities. Where a FOI body estimates that, based on the applicable rates, the charge for dealing with a FOI request would not amount to more than €101, then no charge may be imposed. Where it is estimated that the charge will be between €100 and €700, then a charge may be imposed, subject to a maximum cap of €500. Where it is estimated that the charge will exceed €700, then the FOI body must invite the requester to narrow the scope of their request and, if they fail to do so, then it may either refuse to deal with the request, or proceed with it but impose charges without any limit.
In addition to these changes to the rules regarding charges for dealing with FOI requests, the fees payable for submitting decisions of FOI for internal review and for making appeals to the Information Commissioner have been reduced.
Code of Practice and Section 8 Publication Schemes
Under section 48 of the 2014 Act, FOI bodies are obliged to have regard to any FOI Code of Practice that is published by the Minister. A draft Code of Practice was published for public consultation in June 2014. This draft Code envisages that each public body must appoint a FOI officer and emphasises that public bodies must devote appropriate effort and resources to compliance with the 2014 Act. A lack of FOI resources will not justify a refusal to deal with an access request. In addition the Code encourages the routine publication of information that is typically the subject of access requests. For example, in relation to public procurement competitions, the Code recommends that the name of the wining contractor, value, overall purpose and duration of the contract should be published. Furthermore, the Code provides that each public body should maintain and publish a log of FOI requests received, as well as records released in response to such requests, except in relation to requests for access to personal information.
FOI bodies are also obliged to prepare and publish certain publication schemes which conform to the requirements set out in section 8, any model publication scheme that may be published by the Minister and any requirements that are set out in the Code. These publication schemes are the successors to the Section 15 and Section 16 Booklets that were required to be published under the 1997 & 2003 Acts. The deadline for publishing such a scheme will be 14 April 2016, unless the Minister changes this date by order.
In addition to the changes outlined above, the 2014 Act also provides, among other things, for additional enforcement powers for the Information Commissioner and a new criminal offence where a person, without lawful excuse and with intention to deceive, destroys or materially alters a record that is the subject of a FOI request.
Consequences for Clients
FOI bodies that were previously subject to the 1997&2003 Acts
The 2014 Act came into effect in relation to these bodies on 14 October 2014. The main steps that such bodies need to take to comply with the 2014 Act are to:
- review their organisational measures, policies and procedures;
- update their practices regarding fees and charges in respect of FOI requests; and
- publish a Section 8 Publication Scheme by 14 April 2016.
New FOI Bodies
The 2014 Act will come into effect in relation to new FOI bodies on 14 April 2015 (or later if the Minister so provides by order). Any body that might fall within the broad definition of ‘public body’ set out in section 6 should consider whether it does and, if so, whether it has the benefit any full or partial exemptions. Once such an entity has identified the extent to which it will be subject to FOI, it should consider:
- establishing and resourcing a FOI unit;
- developing of internal policies, guidelines and templates for dealing with FOI requests;
- reviewing its current record retention practices and procedures;
- setting up structures for charging FOI fees;
- arranging internal training regarding the application of FOI; and
- publishing a Section 8 Publication Scheme.
Exempt public bodies and private sector entities
Bodies that are currently outside the scope of FOI need to be mindful that information that they provide to FOI bodies, that relates to services they provide to FOI bodies, or that they hold on behalf of FOI bodies, may be susceptible to release under the 2014 Act. While it is not possible to ‘contract out’ of FOI, practical steps can be taken to mitigate against the risk of such information coming within the scope of FOI and being susceptible to release.