The Government has published the draft general scheme of the Freedom of Information Bill 2012, which will repeal and replace the Freedom of Information Acts 1997 and 2003.
Extension of Freedom of Information (FOI)
The remit of the new Act will extend to all public bodies. The First Schedule of the Act provides a general definition of a “public body” which aims to include all public bodies. This definition will replace the restrictive approach of the Freedom of Information Acts 1997 and 2003 (the FOI Acts), which contains a long schedule of specific bodies which are subject to FOI.
Section 46 sets out a number of restrictions to the Act. For example, the Act will not apply to records held by the courts, a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies, the Criminal Assets Bureau, and certain records held by the Garda Siochána and the Defence Forces (i.e. security/intelligence records will be exempt). The Minister may also, by order, declare that certain public bodies are not subject to FOI to the extent specified in the order.
The Briefing Note by the Department of Public Expenditure and Reform states that: "It is not proposed that the FOI Act will be extended to commercial state bodies - other than where they provide services on behalf of public bodies." Nor will the Act apply to non-public bodies significantly funded by the State, but such bodies may be brought under the Act by way of Ministerial Order.
It is proposed that the following public bodies, previously beyond the remit of the FOI Acts, will be brought within its scope:
- Public financial bodies including the National Treasury Management Agency (NTMA), the National Asset Management Agency (NAMA), the National Pensions Reserve Fund Commission (NPRF), and the National Development Finance Agency (NDFA). This will be subject to certain restrictions. The FOI Act will not apply to a record held by the NTMA, NDFA, NAMA, or the NPRF relating to commercial counterparties with whom the public financial bodies engage with in performing their functions. The Minister for Public Expenditure and Reform does not envisage that FOI will override the protection of customer information under section 99 of the NAMA Act 2009, or the broader general confidentiality restrictions applying to NAMA under section 202 of the NAMA Act 2009.
- The Central Bank of Ireland, other than in relation to records which are subject to professional secrecy obligations under the ECSB Statute or EU Financial Services Directive.
- Vocational Education Committees, subject to the exception of any records which would enable the compilation of school league tables.
- The State Claims Agency in respect only of its administrative records.
- The Garda Siochána in respect only of its administrative functions. “Administrative records” are defined as records relating to finance, human resource and procurement functions of the Garda Siochána.
- The ODCE in respect of all its records. The current limitation to purely administrative records has been removed.
- The Medical Bureau of Road Safety in respect of all its records. The current limitation to purely administrative records has been removed.
- The Health and Safety Authority (HSA) in respect of all its records. The current exclusion of records relating to the HSA’s enforcement functions has been deleted.
- A record held by a public body relating to the costing of any proposal of a political party carried out on behalf of that party.
In relation to bodies which were subject to the FOI Acts, it is proposed that the new Act will come into operation on its enactment. However, public bodies which were previously beyond the remit of the FOI Acts, and have been brought within its scope, will have six months from the date of its enactment, in order to prepare themselves for FOI requests.
Other Important Amendments
- Access to Records - Records of all persons, including non-prescribed public bodies, who provide contracts of services to a prescribed public body, will be within the ambit of the new Act. Such records were previously excluded from FOI by the 2003 Act.
- Meetings of the Government - Reduction of the time period within which records of Government are exempt from FOI from 10 years to 5 years - restoration to pre-2003 position.
- Deliberations of Public Bodies - Documents relating to the deliberative processes of a public body must now be released unless it is shown that their release would be contrary to the public interest – restoration to pre-2003 position.
- Security, Defence and International Relations - Removal of the mandatory class exemption for records relating to security, defence and international relations. The exemption of this category of records will now be subject to a harm test. The mandatory exemption will remain for certain highly sensitive confidential communications relating to negotiations between States etc.
- Confidential Information - Insertion of a provision that confidential information conveyed via phone call, and noted by a member of staff of a public body, will qualify for exemption if it meets the criteria under section 26(1)(a). This amendment is aimed at addressing the anomaly whereby confidential information sent in a letter to a public body from a third party can qualify for exemption if it meets the criteria in section 26 (1)(a), whilst the same information received via phone call and noted by a member of staff of a public body cannot attract such protection unless it meets the ‘duty of confidence’ test under section 26 (1)(b) / section 26 (2).
Powers of Commissioner – There is currently no explicit provision requiring a public body to comply with a binding decision of the Commissioner. The new Act proposes that the Commissioner may apply to the Courts for an enforcement order where a public body fails to comply with a binding decision of the Commissioner.
The maximum fine for failure to comply is increased to €10,000 and/or 2 years’ imprisonment.
- Appeals – Curtailment of the time limit for an appeal of the Commissioner’s decision to the High Court from 8 weeks to 4 weeks - restoration to the pre-2003 position.
- Fees – Reduction of fees for internal review and appeals for non-personal requests. Fees for internal review are being reduced from €75 to €30, and fees for appeal to the Information Commissioner are being reduced from €150 to €50.
Please click here for a link to the new draft bill: Draft General Scheme - Freedom of Information Bill 2012