On 24 July, 2013, the Minister for Public Expenditure and Reform (the “Minister”) published the Freedom of Information Bill 2013 (the “Bill”). The Bill will repeal and replace the Freedom of Information Acts 1997 and 2003 (the “FOIA”), and proposes that most regulations made under the FOIA will cease to have effect.
As well as consolidating, modernising and updating FOI legislation generally, the explanatory memorandum states that its purpose is to:
- remove the main restrictions on access to official information introduced by the Freedom of Information (Amendment) Act 2003 (the “2003 Act”);
- extend FOI to all public bodies; and
- provide a framework for the extension of FOI to non-public bodies receiving significant funding from the Exchequer.
This article summarises the main changes and also the next steps for this legislation.
Public Bodies: Perhaps the most significant change proposed is that all “public bodies” will be “FOI bodies” unless specifically exempt.
The meaning of “public body” is in section 6(1), providing that certain entities shall be public bodies, including Departments of State, bodies established by enactment (other than the Companies Acts), and higher education institutions receiving public funding.
Also, unless otherwise provided, all bodies listed as public bodies in the First Schedule to the FOIA, or standing prescribed as such on the date the Bill is enacted, will continue to be public bodies, and therefore FOI bodies.
Further, and somewhat confusingly given the above ‘catch-all’ for current public bodies, section 54 specifically “saves” three regulations made under the FOIA prescribing certain public bodies1.
Prescribed Bodies: Under section 7, the Minister can prescribe non-public bodies that receive significant funding from the Exchequer as FOI bodies, in whole or in part.
Exempt Agencies: The Bill proposes that most commercial State bodies will be fully exempt from FOI, such as An Post, Bord Gáis, Dublin Bus, Coillte, ESB and, controversially, Irish Water, and school boards of management.
Partially Included Agencies: Certain bodies will be ‘FOI-able’ in part only. These include the Adoption Authority, the Central Bank of Ireland, the Garda Síochána, the Insolvency Service of Ireland, the Mental Health (Criminal Law) Review Board, NTMA, NAMA, the various Ombudsmen and the Equality Tribunal, the Labour Relations Commission and the Labour Court.
Restriction of the New Act: As with the current FOIA, the Bill exempts certain records from the application of FOI, including records held by the Criminal Assets Bureau and records relating to the President, inquiries by a Tribunal of Inquiry and the private papers of Oireachtas members. Also excluded are certain records held by the Courts, the Defence Forces, the Central Bank of Ireland, the Garda Síochána, the Attorney General, the DPP, and the Comptroller and Auditor General.
The Bill provides a six-month lead-in time for new bodies coming under FOI.
The definition of “record”, which is perhaps the most fundamental FOI term, has been updated and modernised to include (i) material in any electronic device or in
machine readable form, and (ii) mechanical or electronic devices in which visual images or other data are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced.
An “electronic device” is also defined as including “any device which uses any electrical, digital, magnetic, optical, electromagnetic, biometric or photonic means, or other forms of related technology, or any combination thereof, to store or transmit data, or both store and transmit data”.
Arguably, whilst this modern definition brings clarity, it may not mean much practical change as the previous definition of the term was broad enough to cover any thing which held or stored information electronically.
By contrast with other aspects of the Bill, there are relatively few amendments to the exemption provisions which are now set out in Part 4.
As with the current FOIA, the exemption provisions can be categorised into mandatory and discretionary exemptions, and the majority still include “harm based” and/or “balance of public interest” tests. Some notable amendments include:
- Meetings of the Government
Section 28 will replace section 19, and reverse the amendments introduced by the 2003 Act, including the exemption for communications between members of the Government. It will now include both a discretionary and mandatory exemption.
The discretionary exemption will apply to internal Government records, records created for submission to the Government, and records containing information solely for Government business. It will not apply to factual information relating to Government decisions already published or made over 5 years previously.
The mandatory exemption will apply to records that reveal the substance of statements made at Government meetings where those other records are not covered by the discretionary exemption.
- Deliberations of FOI Bodies
Section 29 will replace section 20. It also reverses most amendments made by the 2003 Act, including removing the power of a Secretary General to certify that certain records are exempt.
The amended discretionary exemption will apply only where granting the request would be contrary to the public interest. The FOI body must consider if it would be contrary to the public interest that the requester would become aware of a significant proposed decision of the body.
- Security, Defence and International Relations
Section 33 will replace section 24 along with making some structural and substantive amendments. For example, a discretionary exemption will apply where access could reasonably be expected to affect adversely State security, defence, international relations or matters relating to Northern Ireland. However, a mandatory exemption will apply to information relating to such matters where it was communicated in confidence to or by any person and expressed to be so communicated.
Under section 33(2), the records to which the discretionary exemption may apply specifically include records that contain information relating to the tactics, strategy or operations of the Defence Forces, or certain communications between the Government and a diplomatic mission or consular post in or of the State, or another government.
A mandatory exemption will also apply to confidential communications relating to, for example, State negotiations with other states or international organisations and information relating to State security or defence intelligence.
- Information Obtained in Confidence
Section 35 will replace section 26 with one amendment only to cure an anomaly in the current legislation. This anomaly prevents the current exemption from applying to records containing confidential information which were prepared by staff of a public body. The Bill proposes that a “record” in this section will include “information conveyed in confidence in person, by telephone, electronically or in writing (including a written note taken of a phone message by a person authorised to receive such message)”.
- Personal Information
Section 36, which will replace section 28, remains unchanged, save an updated reference to the Medical Practitioners Act 2007.
However, the definition of “personal information” has been amended to incorporate the definition of “sensitive personal data” in the Data Protection Acts 1988 & 2003. Thus, it includes specifically information relating to trade union membership, the commission or prosecution of offences, racial or ethnic origin, civil status, disability, political opinions, and religious or philosophical beliefs.
Consequently, the Bill clarifies that the rights of access under FOI and data protection are consistent as regards personal information / personal data.
- Financial and Economic Interests of the State
Section 40 will replace section 31, and introduces a new ground for this discretionary exemption, and specifies new types of records to which the exemption may apply.
Under section 40(1)(c), the exemption may apply where access could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State, particularly regarding the strategies of other states.
Under section 40(2), the additional records to which the exemption may apply specifically include records relating to investment or provision of financial support by the State or a public body, liabilities of the State or a public body, or advising on or managing public infrastructure projects, including public private partnership arrangements.
Other Notable Amendments
The Bill makes numerous amendments to the current FOI procedures. These include:
- Publication Schemes (section 8)
FOI bodies will be required to publish a “publication scheme” to replace the now outdated sections 15 & 16 reference manuals. These schemes will specify the classes of information that each FOI body has published or intends to publish, and the terms under which it will make such information available, including any applicable charge.
In preparing, reviewing or revising these schemes, FOI bodies must have regard to the public interest in (i) allowing public access to information held by it, (ii) the publication of the reasons for its decisions, and (iii) publishing information of relevance or interest to the general public regarding its activities and functions.
The schemes are similar to those required under the UK FOI legislation; however, the Bill does not require that they be approved by the Information Commissioner.
- The Right of Access (section 11)
Section 11, which will replace section 6, makes several procedural amendments, including:
- For newly ‘FOI-able’ public bodies, subject to certain limited exemptions, the right of access applies to records created on or after 21 April, 2008.
- In complying with the right of access, FOI bodies must have regard to the following key FOI principles:
- “the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs”,
- “the need to strengthen the accountability and improve the quality of decision making of FOI bodies”, and
- “the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies”.
These principles, if adopted by the Oireachtas, should meet the requirements of “true” public interest factors for the public interest test, as required by the Supreme Court in Rotunda2.
- Section 11(7) replaces section 6(7) and provides that there is no right of access to an exempt record where (i) the exemption is mandatory, or (ii) where the exemption is subject to a public interest override, if the factors in favour of refusal outweigh those in favour of release.
This amendment seeks a balance between the pre- and post-Rotunda positions on whether the exemptions provisions should be interpreted narrowly. According to the Bill’s explanatory memorandum, this section is intended to clarify that there is a general right to access records which will only be set aside where an exemption clearly applies.
- As under the current FOIA, records held by a contract service provider to an FOI body will be deemed to be held by that FOI body. The Bill defines “service provider” as any contract service provider who was not, itself, an FOI body at the time the FOI request was made. Consequently, service providers may now include exempt public bodies and commercial state bodies.
- Administrative Grounds for Refusal (section 15)
The Bill proposes useful new administrative grounds for refusal, including where (i) the FOI body intends to publish the records within 6 weeks of the request, and (ii) the records have already been released to the requester or a previous requester and are available to the requester concerned, or the requesters are acting in concert. This latter ground may be helpful for FOI bodies dealing with repeated requests and/or persistent requesters.
In addition, the administratively burdensome ground will apply where interference with or disruption of work would be caused to a particular functional area of the FOI body concerned, rather than to the FOI body as a whole. Again, this may be helpful for FOI bodies where the appropriate section/ department dealing with an FOI request has limited resources, as is increasingly the case.
- Manner of Access (section 17)
The Bill provides that where searchable electronic versions of records are available, access can be provided in that form. For requesters, it is likely that records so accessed will be more useful.
For FOI requests relating to data held in more than one electronically-held record, FOI bodies will be required to take reasonable steps to search for and extract such records, regardless of whether such steps result in the creation of a new record.
- Reviews by the Information Commissioner (section 22)
The Bill proposes several changes to the conduct of reviews by the Information Commissioner, including the addition of new grounds on which the Commissioner may refuse a review application, such as where the review would cause an administrative burden to her Office.
It also specifies that nothing prevents the Commissioner, in conducting a review, from taking into account that a record has lost its confidentiality, is no longer commercially sensitive, or is personal information relating to a third party. Thus, in a review to which the third party consultation procedure applies, the Commissioner may now consider the request afresh, rather than just the FOI body’s decision on where the balance of public interest lies.
FOI bodies should also note the proposed new enforcement power of the Commissioner. Under section 45, the Commissioner may apply for a court order to oblige an FOI body to comply with her binding decision where it has failed to do so. The Bill does not specify how such orders obtained are to be enforced.
- Appeals to the High Court (section 24)
Under the current FOIA, a decision of the Commissioner can be appealed to the High Court on a point of law only. However, the Bill includes a right to appeal on a finding of fact where the release of a record would contravene EU law.
It is also reduces the time for appealing to the High Court to 4 weeks. If, however, the decision was to part-grant the FOI request, the time limit remains at 8 weeks. Presumably, this distinction is drawn as it will be necessary to analyse carefully those records to which access has been granted or refused before deciding whether to appeal.
- Fees (section 27)
The Bill does not amend the current fees provisions. However, the Minister has confirmed that he intends, by Order following the Bill’s enactment, to reduce the fees prescribed for internal review applications to €30 and reviews by the Commissioner to €75. These proposed reductions will make FOI more accessible. However, for FOI bodies and indeed the Commissioner, the ‘nominal’ fees currently prescribed are far exceeded by the costs actually incurred in processing FOI requests. Consequently, these proposed reductions will increase the FOI costs for the State.
- Offences and Penalties (sections 52 & 53)
For the first time, the Bill makes it an offence to destroy or materially alter a record, with the intention to deceive or without lawful excuse, after an FOI request has been made for that record. Any person guilty of such offence is liable on summary conviction to a class B3 fine. Personal liability for officers of incorporated or unincorporated bodies can apply.
Proceedings for an offence must be brought within 12 months from the date of the offence, or the date on which sufficient evidence to prosecute is known.
According to the Minister, it is planned that the Bill will be enacted in the autumn, together with a Code of Practice for FOI to assist FOI bodies. However, this will depend on how quickly the Bill progresses through the Oireachtas. As yet, no other information is available.
Until enacted, the Bill is subject to further debate and potential amendment. This provides an opportunity for FOI bodies (current and future) to raise any concerns with the current FOI regime or the proposed Bill. Any such concerns should be raised as soon as possible with the Minister.