The Freedom of Information Act 2014 (the FOI Act), which replaces the FOI Acts 1997 and 2003 (the Acts), was signed into law by President Higgins on 14 October 2014.
The FOI Act contains a broad definition of "Public Body" which will enable FOI to apply to all public bodies unless specifically exempt, either in whole or in part. This will replace the previous approach of scheduling each individual body subject to FOI. Commercial State bodies, with some exceptions, will not be brought within the remit of the FOI Act other than where they provide services on behalf of public bodies.
The FOI Act comes into operation immediately in respect of those public bodies which were already subject to the previous Acts.
The FOI Act provides a 6 month lead-in time post-enactment of the legislation (i.e. until 14 April 2015) in respect of all public bodies which were not previously subject to FOI, to allow them to prepare for same. The Minister for Public Expenditure and Reform has the power to extend this period by up to a further 6 months where necessary.
Other Important Amendments
Public bodies should be aware of the key changes brought about by the new legislation, including:
- The requirement to prepare and furnish publication schemes, instead of the section 15 and 16 manuals;
- A general right of access which should be set aside only where the exemptions very clearly support a refusal of access;
- Clarification of the extent of responsibility to search for and extract electronic records;
- The broadening of the grounds of appeal to the High Court;
- The strengthening of the enforcement powers of the Information Commissioner,
- The new penalty for altering or destroying records which are the subject of an FOI request;
- The abolishment of the €15 application fee and for Search, Retrieval and Copying fees only to be imposed where the preparation time exceed 5 hours;
- The introduction of a cap on the amount of Search, Retrieval, and Copying fees that can be charged at €500 (approximately 25 hours);
- The restoration of the strict definition of what constitutes a Cabinet record. Communications between members of the Government will no longer be exempt from FOI;
- A reduction from 10 to 5 years in respect of the period during which Cabinet records are exempt from disclosure;
- The mandatory power to refuse an FOI request relating to Government records or records to be submitted to Government is removed; and
- The power of a Secretary General of a Government Department to certify the existence of a deliberative process is being removed. The effect of such a certificate was that access to records concerning the deliberative process was refused with no scope for appeal, other than by way of judicial review. Records relating to the deliberative process must now be released unless such release would be contrary to the public interest.
It is noteworthy that the new requirement in the FOI Act for all public bodies to prepare and publish certain information on their websites (instead of publishing section 15 & 16 manuals), will commence 12 months from enactment (i.e. 14 October 2015) or on such earlier day as the Minister may appoint by order. This requirement aims to promote the proactive publication of information outside of FOI, thereby pre-empting FOI requests.
It is important that public bodies being brought within the scope of FOI start taking immediate steps to prepare for the commencement of the Act. The FOI Act will have retrospective effect to public bodies not previously within the remit of FOI, from 21 April 2008. Accordingly, it is vital that such bodies conduct a review of their document management practices, and implement appropriate policies and procedures to train staff to handle FOI requests.