On 16 July, 2014, the Freedom of Information
("FOI") Bill 2013 was passed by
Dáil Éireann. It now awaits review and potential
revision by Seanad Éireann when it resumes on 17 September
after the Summer vacation. As yet, no other information is
available on when the Bill might finally be enacted.
The Bill, as passed by the Dáil, is available here. It contains numerous amendments to that initiated by the Minister for Public Expenditure and Reform on 24 July, 2013. Included are amendments which: remove, and cap, certain FOI fees; extend the scope of service-provider records coming under FOI; particularise the concept of "search and retrieval", and what amounts to taking "reasonable steps" in certain cases; further define the intended contents of FOI bodies' "publication schemes"; and further provide for partially-included, exempt and non-exempt agencies, including Irish Water.
A draft Code of Practice for Freedom of Information for Public Bodies has also been published for public consultation.
The most significant of the amendments relate to the reform of the FOI fee regime, as set out in section 27 of the Bill, including:
- the removal of the application fee for making an FOI request for access to non-personal information; and
- the introduction of a minimum threshold, and a maximum cap, for search, retrieval and copying fees, such amounts to be prescribed. In a press release of 1 July, 2014, Minister Howlin flagged a proposed €100 minimum threshold under which no fee would be charged, and a €500 maximum cap where charges do arise.
Other notable amendments include:
- An extended definition of "service provider" to include administrative arrangements between an FOI body and another person. Thus, records held by a service provider relating to the provision of services to an FOI body under an administrative arrangement will be deemed to be held by the FOI body for the purposes of FOI.
- A new definition of what is included in the "search and retrieval" of records (section 27(2)).
- Further details of what an FOI body is required to include in a "publication scheme" (section 8(2)).
- Clarification in relation to what will amount to the taking of "reasonable steps" in searching for and extracting records held on an electronic device in circumstances where the FOI request relates to data contained in more than one record held on such a device (section 17(4)).
- The addition of numerous "partially included agencies" which will be subject to FOI in respect of limited records or functions only, including the Information Commissioner, Commissioner for Environmental Information, Data Protection Commissioner, Director of Corporate Enforcement, Residential Institutions Redress Board, Iarnród Éireann and the Revenue Commissioners (Part 1, Schedule 1).
- The addition of several "exempt agencies", including AIB plc, Ervia (previously Bord Gáis Éireann), and IBRC Limited (in Special Liquidation) (Part 2, Schedule 1).
- The removal of Irish Water as an exempt agency (Part 2, Schedule 1). While it was originally intended to be exempt under the FOI Bill 2013, as initiated, Irish Water has since been prescribed as a "public body" for the purposes of the current FOI Acts under the Freedom of Information Act 1997 (Prescribed Bodies) Regulations 2014 (S.I. 140 of 2014), and the amendment therefore aligns the Bill with this change of policy.
In addition to the proposed FOI reforms detailed above, on 1 July, 2014, the Department of Public Expenditure and Reform published a draft Code of Practice for Freedom of Information for Public Bodies for public consultation. Under section 48 of the FOI Bill, all FOI bodies will be obliged to have regard to the Code in the performance of their FOI functions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.