The Freedom of Information Bill 2013 (the "Bill") was published on 25 July 2013 by the Minister for Public Expenditure and Reform, Brendan Howlin (the "Minister"). The reform rendered by this Bill represents the most significant development in freedom of information ("FOI") law in Ireland in over a decade. The Minister explained that the Bill is intended to "restore the legislation and extend it to almost all public bodies, as well as consolidating and modernising it to improve the functioning of the Act and to improve the structure of the legislative framework".

The Bill represents a major overhaul of the current legislation, the Freedom of Information Act 1997, as amended by the Freedom Of Information (Amendment) Act 2003 (together the "existing Act"), and, if the Bill is enacted in its present form, the scope of FOI will be expanded to include almost all public bodies (including a number of high profile public bodies), as opposed to the specific schedule of approved bodies currently subject to the terms of the existing Act. Some of the key amendments proposed by the Bill are discussed below.

Key Reforms

What bodies will be subject to FOI?

The Bill contains a broad definition of ''public body'' which will effectively enable FOI to apply to all public bodies (an "FOI body") unless specifically exempt. As new public bodies are established, they will automatically be subject to the terms of FOI, although provision is made for the Minister to make an order to specifically exclude certain bodies, in whole or in part, if required. The Bill contains exemptions for some bodies so as not to affect the ability of these bodies to perform their core functions or in the interests of the security or financial position of the State. An Garda Síochána, the National Treasury Management Agency Group, the Central Bank of Ireland ("CBI"), the industrial relations bodies, the Insolvency Service of Ireland and the various Ombudsmen will all enjoy exemptions in part (of varying degrees and kinds). By way of illustration, the records of CBI are covered other than in relation to: (i) confidential personal information relating to the financial or business affairs of any individual; or (ii) confidential financial, commercial or regulatory information relating to the business affairs of any person who holds or has held or who has applied for a licence, authorisation, approval or registration from the CBI, or is otherwise regulated by the CBI, that the CBI has received for the purposes of performing, or in the discharge of, any of its statutory functions (other than when that information is contained in records in summary or collective form, such that persons cannot be identified from the record).

While the Bill continues to exempt in full from FOI most commercial State bodies, records of those parties who provide services to a FOI body under a contract for services, will be subject to the new Act (and this may include commercial state bodies to the extent they provide services to a FOI body).

Have the access rules changed?

As before, the stated objective of the legislation is to ensure that official information is available to citizens to the greatest extent feasible, consistent with the public interest in safeguarding highly confidential and very sensitive information. In furtherance of this general principle, the Bill introduces key principles to guide public bodies in the performance of their functions under the new legislation, regarding the need: (a) to achieve greater openness and promote transparency in government and public affairs; and (b) to strengthen the accountability of public bodies and improve the quality of decision making.

In a departure from the position under the existing Act, the Bill provides that there is a general right of access to records and they should be released unless they are found to be exempt, and in applying these exemptions the right of access is only to be set aside where the exemptions very clearly support a refusal of access. The explanatory memorandum accompanying the Bill explains that this amendment was considered necessary arising from the Supreme Court Decision in The Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC 26 (which found that in circumstances where a tension exists between a right of access under FOI and an exemption from disclosure under Part III of the existing Act, the existing Act mandates a refusal of information).

Exercise of the rights to access records is dealt with in a similar fashion as in the existing Act. However, in the interests of minimising the cost to the requester and for administrative efficiency, it is proposed that a FOI body may advise a requester whether the records concerned may be accessed under: (a) the European Communities (Re-use of Public Sector Information) Regulations 2005; or (b) the European Communities (Access to Information on the Environment) Regulations 2007, instead of under FOI.

Does the Bill take account of technological developments in record management?

The Minister has commented that: "the current legislation was essentially designed to deal primarily with paper records and the legislative framework for FOI needs to be updated to reflect the transformation that has taken place in ICT since that time. Many requesters use new technologies and seek records in electronic format and we must work with that and try to facilitate the provision of records in open format as much as possible in line with our Open Government objectives".

With this sentiment in mind, Section 17 of the Bill sets out the responsibility of FOI bodies in relation to requests for data contained in more than one record held electronically by the covered body. Departing from the position under the existing Bill, it is proposed that FOI bodies would be required to take reasonable steps to search for and extract such data (analogous to the steps that would be considered reasonable if such a record was held in paper form), whether or not that would result in the creation of a new record. Two aspects of this provision are notable: (a) that the benchmark for searching electronic records is whether it is reasonable to search for such records by reference to an analogous search for a paper file; and (b) the potential for responses to a request to require the creation of new records. We can expect further debate on this provision once the practical implications of conducting searches are considered by FOI bodies.

The FOI body is not, however, required to take any steps that involve the creation of any program or code for the purpose of searching for or extracting the data, nor is it required to carry out any manipulation, analysis, compilation or other processing of the data. The Bill also provides that where records are available in such form they may be released in electronic and searchable format.

How does the Bill address grounds for refusal of access to records?

As with the existing Act, the Bill considers refusal of access from a number of perspectives, most notably via administrative grounds, as well as through the operation of certain exemptions (Part 4 of the Bill).

  • Administrative Ground for Refusal: The Bill provides for a refusal of an FOI request on administrative grounds. The Bill largely preserves the administrative grounds under Section 10 of the existing Act but also adds some additional administrative grounds for refusal, such as: (a) if the FOI body intends to publish the record concerned within 6 weeks after receipt of the request; or (b) where the request relates to records already released to a requester. As under the existing Act, it remains permissible to refuse a request on administrative grounds if granting the request would cause substantial and unreasonable interference with or disruption of the work of the body concerned, although this provision is amended to provide that a refusal can be made on the basis of disruption to the work of a particular functional area, rather than only to the body as a whole.
  • Exempt Records: Certain of the exemptions are narrowed in application. For example the protection of records relating to meetings of the Government is restored to effectively the position in Section 19 of the 1997 Act, i.e. prior to the 2003 amendment Act. Records in relation to the deliberative process may be refused but only where disclosure would be contrary to the public interest, again substantially returning this provision to its position under the 1997 Act. The period during which records of Government are exempt from FOI is reduced from 10 to 5 years (this had increased to 10 years under the 2003 Act). A current anomaly in the legislation is being removed by allowing information obtained orally in confidence, and noted by a member of staff of a FOI body, to enjoy the same protections as information received in writing or electronic means.

Where the disclosure of information could reasonably be expected to have serious adverse effects on the financial interests of the State or the ability of the Government to manage the economy, it continues to be open to exemption, with additional types of records being potentially added to the classes of records covered by this exemption including: (i) records relating to investment by or on behalf of the State or a FOI body; (ii) records relating to liabilities of the State or a FOI body; and (iii) records advising on or managing public infrastructure projects, including PPP arrangements.

Have the fees been reduced?

While the upfront application fee of €15 per non-personal request will be retained, it is proposed to reduce from €75 to €30 the fee for internal review and from €150 to €75 the fee for an appeal to the Information Commissioner. There is an on-going review regarding the search and retrieval fees regime and the explanatory memorandum to the Bill notes that changes on this point may be introduced at Committee stage of the Bill.

Does the Information Commissioner have any additional powers? Are there any penalties for non-compliance?

A new provision is provided in the Bill to allow the Information Commissioner to apply for a court order to oblige a covered body to comply with a binding decision of the Commissioner where that body has failed to do so. Furthermore it will be an offence to wilfully and without lawful excuse either destroy or alter a record that is the subject of an FOI request (with a Class B fine on summary conviction, i.e. up to €4,000). These are welcome reforms as the enforcement powers of the Commissioner in the existing Act are widely regarded as unsatisfactory, as are the consequences for non-compliance with the requirements of the existing Act.

Can a decision of the Information Commissioner be appealed?

The grounds for an appeal have been broadened to allow an appeal to the High Court on a finding of fact in a case where a person contends that the release of a record would contravene a requirement imposed by EU law. In addition, the timescale to initiate an appeal to the High Court is being reduced from 8 weeks to 4 weeks on the recommendation of the Information Commissioner, although where a request is granted only in part by the Information Commissioner, the time limit for a requester to make an appeal to the High Court will remain 8 weeks.

When will these new rules take effect?

Once enacted, the new FOI regime will apply retrospectively from 21 April 2008 in the case of an entity that prior to enactment of the new law, was not a public body within the meaning of the existing Act. The Bill is not yet law and must continue through Committee stage in the next sitting of the Oireachtas. Public bodies can, in the interim, take certain steps to prepare for the enactment of the Bill.

What should public bodies do next?

For those bodies previously subject to FOI, it might be noted that Sections 15 and 16 of the existing Act, which require that a FOI body must maintain manuals outlining its structures and functions, detailing the services it provides, etc. are to be replaced by a requirement that FOI bodies establish a "publication scheme" to promote the proactive publication of information outside of FOI. This scheme is intended to specify the classes of information that the FOI body has published or intends to publish, the terms on which it will make this available and any fees. When preparing a publication scheme FOI bodies must have regard for the public interest: (a) in allowing access to information; (b) in providing reasons for decisions; and (c) in publishing information on its functions and activities.

Public bodies being brought within the ambit of FOI for the first time will be allowed a lead-in period of six months after the law is enacted to allow them to prepare for FOI. This period can be extended by the Minister by Order under the Bill, subject to a business case being made to the Minister.

It is expected that the Bill will be enacted in the 2013/2014 session of the Oireachtas, in parallel with the introduction of the Code of Practice for FOI. Furthermore the Minister may make available model publication schemes for FOI bodies or make guidelines on publication schemes for FOI bodies. The Technology and Life Sciences Group advises on all aspects of the Freedom of Information Acts 1997 and 2003. Our freedom of information practice extends across our firm's wide client base. Partners Colin Rooney and Rob Corbet work with both public bodies designated for the purposes of the FOI Act and for those bodies dealing with such public bodies or seeking access to records or information from such bodies. We advise on the full range of issues relevant to the FOI Act including:

  • Guidance for public bodies on compliance with the FOI Act;
  • Application of available exemptions in relation to requests pursuant to the FOI Act and mechanisms for addressing refusals of access by public bodies;
  • Dealing with public bodies in relation to the provision of confidential and commercially sensitive information by commercial entities;
  • Procedural advices, review of decisions, including public body internal review, review by Information Commissioner and appeal to the High Court;
  • Appeals of Information Commissioner decisions;
  • Interaction of the FOI Act with the Data Protection Acts 1988 and 2003 and other relevant legislation; and
  • Freedom of Information training.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.