Major overhaul of Freedom of Information proposed in new draft

Major overhaul of Freedom of Information proposed in new draft legislation

The Minister for Public Expenditure and Reform published the Freedom of Information Bill 2013 on 24 July. This legislation, if enacted, will establish a new FOI system, changing many of the current rules on access to, and management of, information held by public bodies. 

Application of FOI will be greatly extended under the proposed legislation, due to the broad definition of 'public bodies', and to section 7 of the Bill, which will give the Minister a new power to prescribe non-public sector entities as being FOI bodies for the purposes of the legislation. Notably, the legislation, in its current form, will allow the Minister to exercise his power under section 7 to make private entities or elements of such entities who have received finance 'by means of monies provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of Government', subject to FOI.  

However, not all public bodies will be subject to the full rigors of FOI. Some bodies, such as the Gardaí, NAMA, the NTMA, the Central Bank, the Equality Tribunal, the Labour Relations Commission, and the Labour Court, will be 'partially included' in the new system. Others, including the Boards of Management of schools, other than schools established or maintained by an Education and Training Board (formerly VECs), and many commercial semi-state bodies, will be exempt. Boards of Management that are established and maintained by Education and Training Boards will be partially included, and the examination results of students of these Boards of Management will not be subject to FOI.

Some of the key features of the draft Bill are as follows:  

1. Section 8 will require FOI bodies to prepare and publish a Publication Scheme specifying (i) the classes of information that the FOI body has published, or intends to publish, and (ii) the terms under which it will make information available and any charges that will apply. This document will replace the FOI manuals that public sector entities are currently required to maintain. 
2. Members of the public will have a legal right to require FOI bodies holding their personal information to amend that personal information, where it is incomplete, incorrect or misleading.
3. The new system will require FOI bodies to give requestors access to records that are the subject of an FOI request, unless an exemption applies. Section 11(7), inserted to address the Supreme Court's decision in Rotunda Hospital v Information Commissioner [2011] IEHC 26, states that the right of access will not apply to exempt records where their exemption is mandatory, or 'where an exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release'. The Minister has stated that 'the right of access should only be set aside where the exemptions very clearly support a refusal of access'.
4. Records held by service providers of FOI bodies will be deemed to be held by the FOI body, and service providers will be obliged to give records to the FOI body 'for retention by it for such period as is reasonable in the particular circumstances'.
5. The legislation, as currently drafted, will retain the existing rules on fees, so fees for different classes of requestor or applicant will continue to be set by ministerial order. Until such an order is made, the Freedom of Information Act 1997 (Fees) Regulations 2003, S.I. 264/2003, will continue to operate. It is expected that these fees will be reduced by ministerial order after the Bill has been enacted. 
6. Rules on the various exemptions to FOI will be changed in the new legislation. For example, the period during which Government records are exempt from FOI will be reduced from 10 years to 5 years. Records dealing with the 'deliberative processes of an FOI body', including opinions, advice, recommendations, and the result of consultations considered by that body, will be exempt, where disclosure would be contrary to the public interest. Other exemptions include sensitive defence and security information, commercially sensitive information, and, information relating to the financial and economic interests of the State. 
7. The office of the Information Commissioner will be retained.
8. A person who 'wilfully and without lawful excuse' destroys a record that is the subject of an FOI request, will be guilty of a criminal offence. 

If the Bill is enacted, public sector bodies would be well advised to begin working on their Publication Scheme early to ensure that they are complaint with section 8 in time for its commencement, and to carry out a detailed review of their FOI policies and procedures to ensure that they conform to the new requirements.

For more information, please contact Michelle Ní Longáin.