The Freedom of Information Act 2014 updates and restates the freedom of information legislation. It replaces the 1997 and 2003 Acts.
The original 1997 legislation was enacted at the behest of the Fine Gael-Labour coalition of the mid-1990s. It was amended substantially in 2003. The 2003 amendments, related principally to the treatment of government records, restriction in relation to records under deliberative processes, exemptions for categories of records relating to security, defence, international relations in Northern Ireland.
The effect of the 2014 legislation was to remove the main restrictions introduced in 2003. It extends freedom of information to all public bodies. It provides a framework for the extension of freedom of information to public bodies in receipt of significant exchequer funding.
The Act applied freedom of information principles to all public bodies with some exemptions and to all bodies significantly funded by the exchequer. Ministerial order may extend the application of the Act subject to consultation with the relevant Departments and agreement of criteria regarding the selection of bodies which are a priority to be brought within the scheme.
Exemptions are provided for some bodies so as to protect their ability to perform their functions, r in the interest of security or for financial position of the State remain. The Act exempts most commercial State bodies. Some bodies are exempted in part including in particular,
- the National Treasury Management Agency,
- the Garda Síochána,
- the Central Bank of Ireland,
- Industrial Relations Body,
- the Ombudsman,
- Insolvency Service of Ireland.
New bodies which are to established under future legislation are to be automatically subject to the legislation unless a ministerial order is made to specifically exclude them.
The 2014 Act was intended to be simpler and more accessible than the existing legislation. Section 11 sets out key principles which are to guide freedom for information bodies in the performance of their functions under the legislation. This includes the need to achieve greater openness and accountability of bodies.
Each freedom of information body is to publish a publication scheme to replace the section 15 and 16 manual. Given the introduction of the widespread development of information technology, the migration of information onto websites is preferable to paper, hardcopy manual.
The publication schemes are to specify the classes of information the body holds or publishes, has published or intends to publish. This is intended to allow greater recourse to publications by bodies on an administrative basis and to reduce the administrative burden of the legislation.
A public body is defined in generic terms. The legislation accordingly potentially applies to all public bodies unless specifically exempted. Certain bodies are exempted and listed in Schedule I as exempt. The Minister has power to include or exclude bodies or elements of bodies, whether new or future from the remit of the legislation.
A non-public body which receives significant funding from the Exchequer may be prescribed by ministerial order to be a freedom of information body, either wholly or in part. The legislation refers to these bodies as prescribed bodies.
The 2014 Act replaces the Section 15 and 16 of the 1997 Act, whereby public bodies must maintain manuals outlining their structures and functions, detailing their services and the types of records they hold, decisions made and indexing precedence.
Where there is a failure by a freedom of information body to reply to a request within a timeline specified, there is deemed to be a refusal. Accordingly, the deemed refusal may be appealed. In certain cases, it may be against the refusal or a partial grant only. It is to be undertaken at the higher level than the person who made the original decision and is to be completed within 21 days.
A decision may be referred for review to the Information Commissioner. The public body is obliged to justify its decision to refuse information. The Commissioner’s decision is binding on the parties. There was a further limited right of appeal to the High Court.
The Commissioner may consider the request anew. Where the Commissioner has received an application for review, it may remove any personal or confidential information. The Commission may discontinue a review or refuse an application for review in respect of all or some aspects of the case.
The Commissioner may require the public body to provide more detailed reasons for refusal and grant requests where it s of the view that the details given are inadequate. The additional information may include matters taken into account by the body relating to the public interest.
There is a right of appeal on a point of law against the decision of the Information Commissioner to the High Court. There is also an appeal in respect of a ministerial certificate. The High Court may review findings of facts in a decision where it is alleged that the release would contravene a requirement imposed by EU law.
The time scale is four weeks. Where the request is granted only in part by the Commissioner, the time limit for an appeal is eight weeks.
There is a reduction in the fee for an internal review from €75 to €30. The fee for an appeal to the Information Commissioner is reduced by 50% to €75.
The office of the Information Commissioner is continued. It is a corporation sole with power to hold assets, take legal action etc. Commissioner is to keep legislation under review and may carry out investigations into practices and procedures adopted by public bodies for the purpose of compliance with legislation.
The powers of the Commissioner are restated. He has powers to examine documents and summons witness. He may apply to a court for an order requiring a body to comply with a binding decision where the body has failed to do so.
The Commissioner may not enter Garda premises subject to regulations to be made under the Garda Síochána Act. The Commissioner must comply with professional secrecy obligations in dealing with information in relation to the Central Bank.
The Commissioner may make practical information available in relation to the legislation.
The Commissioner is to provide, prepare annual and special report. It must publish any decision in relation to a review and a summary of any appeal to the High Court once proceedings have been concluded.
The Minister has power to draw up and publish codes of practice and guidelines to assist public bodies in relation to the legislation. They must have regard to the code and guidelines in the performance of their function.
There are legal protections for those granting access to records under the legislation or until the reasonable belief the legislation has been complied with.
The Official Secrets Act is amended by providing that a person is deemed to be authorised under that Act to release official information where he is authorised to do so under the Freedom of Information Act on the reasonable belief that he is so authorised. It is a defence against prosecution under the Official Secrets Act.
There are new provisions in relation to offences and penalty. It is an offence to wilfully and without lawful authority destroy or alter a record subject to a freedom of information request. A Class B fine may be imposed on summary conviction.
Timelines for commencement of offences, prosecution of offences are set out. A director or officer of a management of a company may be guilty of an offence if it is connected with their offence or to a wilful neglect.
The Schedule I, sets out the bodies included under the legislation or the elements of those bodies which are included or excluded. The Part I, Part II list of body is exempted from the legislation in full.
Schedule II provides for the Office of the Information Commissioner.
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