The Department of Public Expenditure and Reform has recently published a Model Publication Scheme and accompanying Guidance document. These dictate much of the format and content for the Publication Schemes required of FOI bodies under the FOI Act. The Act requires each FOI body to prepare, and then to publish, a scheme which sets out detailed information about the body and its operation, and about the information and records it will make available - both generally, and by way of FOI.
Publication Schemes are not merely a technical governance requirement to be complied with: what is included or omitted can have legal consequences beyond this. As the latest date for publication of a scheme is 14 April 2016, it is important to get familiar with the required contents now.
The Freedom of Information Act 2014 requires each Freedom of Information ("FOI") body to prepare and make available a scheme for the publication of information by it. It must then publish information in line with that scheme.
Amongst other things, schemes must include:
- details of information published, or intended to be published, by the body;
- the terms, including any charges, under which the body will make such information available;
- details about the body itself, its structure and functions; any services it provides, and how to avail of them;
- information on how, and in reliance on what materials, it goes about its business; and
- details of what types of records it holds, and how to obtain these under FOI, as well as how to appeal decisions to refuse access, where necessary.
Each scheme must conform to any model and guidelines issued by the Minister for Public Expenditure and Reform ("PER").
The Model Scheme and Guidance
The Model Publication Scheme ("Model Scheme") and Guidance document ("Guidance") now published by the Department of PER provide greater detail on the information that should be included in order to go towards meeting these requirements. The model and guidance are available here.
For consistency, the Model Scheme and Guidance require both the content and the format of presentation of schemes to be uniform and consistent. They therefore require information to be provided on the websites of all FOI bodies in tabular form under six headings as set out below.
1. Information About the FOI Body
2. Services Provided or to be provided to the Public
3. Decision Making process for major policy proposals
4. Financial Information
6. FOI Disclosure Log and Other Information to be Published Routinely
The Model Scheme recommends that the following respective sub-headings be included under the above headings in every Publication Scheme:
- Who we are and what we do
- The services we offer
- How we make decisions on policies
- What we spend
- How we spend
- Other information
Further details and suggestions are provided in the Model Scheme and Guidance to flesh out the information required under the above headings and sub-headings. By following this guidance, in conjunction with referring to section 8 of the Act, FOI bodies can gain a better understanding of what information is required of them by the Act, and devise a compliant Publication Scheme accordingly.
General Guiding Principles
By way of further guidance, in devising a Publication Scheme, the Act requires each FOI body to bear in mind the public interest in:
- allowing public access to information held by it;
- publishing reasons for decisions made by it; and
- publishing information which is of relevance or interest to the general public in relation to its activities or functions generally.
However, reflecting the Act, the Guidance also suggests that a Publication Scheme may identify some of the items in the Model Scheme as "not applicable" if:
- the FOI body concerned does not hold particular types of record;
- the body is only partly subject to FOI, and the types of records listed in the model scheme are exempted or excluded from FOI in its case; or
- if the information or matter is covered by an exemption under the FOI Act, or its disclosure is prohibited by other legislation or other applicable legal instruments or measures.
The final deadline for the preparation and publication of the inaugural Publication Scheme is 14 April, 2016. On or before this date, the Guidance requires each FOI body to display its Publication Scheme in a prominent place on its website, while the Act also requires that a printed version be available at its Head Office.
In addition, the Act permits the Information Commissioner to examine, investigate and report on the extent to which FOI bodies, or individual FOI bodies, are complying with the requirements of the Act in relation to Publication Schemes. Therefore, it is essential that FOI bodies begin to prepare their Publication Schemes and seek to include, at a minimum, the information set out in the Model Scheme and Guidance.
Once prepared, the Act requires FOI bodies to review and update their Publication Schemes every three years, and to review and update any materials published under the Publication Schemes annually.
The Model Scheme and Guidance are clear and concise. By examining them, FOI bodies can better understand what is required. The guidance is to be welcomed in avoiding a 'blank canvas' scenario, and in promoting some uniformity and consistency. FOI bodies now have a template which they can populate and tailor appropriately with their own details and information. However, the departmental Model and Guidance are not comprehensive. Also, at times, they do not fully reflect the provisions of the FOI Act. Therefore, FOI bodies will have to take care both to comply with the requirement to conform to the Model Scheme and Guidelines, and to abide by the requirements set out in the FOI Act itself.
Publication Schemes represent an opportunity and a challenge. What is included or excluded can have legal consequences beyond mere technical compliance with the governance requirements of the FOI Act. Therefore, as the deadline of 14 April, 2016 draws closer, it is ever more important for FOI bodies to familiarise themselves with both the departmental guidance and the provisions of section 8 of the Act, and then to tailor these to their own particular circumstances in a considered and thought-out way. This will ensure that the schemes they devise are in compliance with the law, and minimise the risk of other legal consequences arising.
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.