1997 Act Exclusions

Certain Bodies

The legislation does not apply to Courts or tribunals.  It does not apply to:

• Records held by the Attorney General and Director of Public Prosecutions;
• Records held by the Director of Corporate Enforcement;
• Records held by the Medical Bureau of Safety regarding road traffic;
• Ombudsman’s information other than records created before the commencement of the review, investigation, audit or examination in question (in the case of audits on Ombudsman’s but not DPP etc.);
• Records relating to the Present;
• Records held by a public body relating to costing, assessment or consideration of a proposal by a political party carried out for or on behalf of the party;
• Records given by public bodies to members of the Government for use in any proceedings in either house of the Oireachtas;
• Records created by the Health and Safety Authority;
• Records relating to private papers of members of the Oireachtas;
• Records whose disclosure could be expected to disclose information which would reveal or lead to the revelation of the identity of a person who has provided information to a public body in confidence in relation to the enforcement of criminal law or any other source of such information provided in confidence to a public body.

Government and Public Bodies

A range of records are exempt.  Records submitted to Government, communications between members of the Government, advice for Government members, cabinet consultations.  The exemption does not apply to the actual decisions of Government or factual information relating to decisions of the Government that have been published to the general public.  If the record relates to a decision of the Government made more than 10 years before the provision regarding access within 10 years is subject to other provisions of the Act

Access to records may be refused where they relate to the deliberations of a public body including opinions, advice, recommendations and the result of consultations considered by the body.  A request must be refused if the secretary general of a Government department issues a certificate that the record contains matters relating to the deliberation processes of a Department of State.  A certificate under this section is final and not subject to review.

The above restrictions do not apply to reasons for making of a body decision, factual information, reports of an investigation, analysis of performance, efficiency or effectiveness of the body in relation to its functions generally, reports that the analysis of a scientific or technical expert relating to the particular matter containing opinions or advice not been commissioned for the purposes of a decision by the body.  The restriction also does not apply where the freedom of information official decides on balance public interest is better served by granting the request.

Prejudice to Public Proceedings

Access may be refused if in the opinion it is reasonably to be expected to:

• Prejudice effectiveness of tests, examinations, investigations, enquiries or audits conducted on behalf of a public body or procedures employed for their conduct;
• Have a significant adverse effect on performance by the body of its functions relating to management including industrial relations and staff management;
• Disclose positions taken are to be taken, plans procedures, criteria or instructions used or to be used for the purpose of negotiations carried on by or on behalf of the Government or a public body.

The above does not apply where the freedom information official is of the opinion that the public interest would be better served by granting rather than refusing the request.

Access may not be given to information by a freedom of information official if:

• It will be exempt from production on the basis of legal professional privilege;
• Its disclosure would be contempt of Court
• consists of private papers of a member of TD European Parliament, member of local authority;
• Opinion, advice, recommendations or consultations considered by Houses of the Oireachtas or committees appointed by them.

Records may be withheld if they relate to an appointment or proposed appointment, business or proceedings of tribunals of enquiry, other tribunals or bodies appointed by the Government to enquire into matters.

Where a request is made that the information or disclosure of the existence of the record would be contrary to public interest the freedom of information official must refuse the request and shall not disclose whether or not the record exists.

Law Enforcement

Access may be refused if in the opinion of the freedom of information official the record can reasonably be expected to:

• Prejudice or impair law enforcement, prisons, security of the Central Mental Hospital security, may endanger life or safety of a person;
• Reveal the identity of a person who has given information in confidence;
• Facilitate commission of crime.

In the above case the freedom of information official shall refuse the request and not disclose whether the record exists or not.

• If the record discloses an investigation for the purpose of enforcement of law or
• anything is done in the course of investigation or the purpose of prevention or direct detection of offences,
• contains information concerning performance of functions of a public body whose functions include enforcement of law or
• the merits or otherwise of a scheme or policy of a public body for detecting or investigating contraventions of the law

There is an exception if in the opinion of the freedom of information official the public interest would on balance be better served by disclosing the record.

Access to records may be refused if they can be reasonably expected to affect adversely security of the State, defence of the State, international relations, matters relating to Northern Ireland.

Access must be refused if it contains information obtained or prepared for the purpose of intelligence in respect of the security or defence of the State, relates to military tactics or suppression of terrorism, contains communications between Government and diplomatic missions or consular posts, can send information communicated in confidence to any person inside or outside the State relating to certain matters.

Where the freedom of information official is satisfied disclosure of the existence of the record would be prejudicial he shall not disclose whether the record exists.

Decisions given in relation to the refusals on the basis of law enforcement, safety, security, defence of international relations are conclusive.

Information in a record given to a public body in confidence along the understanding that it will be treated as confidential or disclosure of which would constitute a breach of a duty of confidence imposed by an agreement of law shall not be furnished.

The provision does not apply to records prepared by persons providing services for a public body under a contract of service unless disclosure would constitute a breach of duty of confidence provided by the agreement or legislation.

The provision does not apply if the freedom of information official decides that the public interest would on balanced be served by granting the request.

References above to be a freedom of information official refer to the head of the relevant department.

Trade Confidential Information

Requests for information must be refused if they contain:

• Trade secrets of third parties;
• Financial, commercial, technical or other information whose disclosure would be reasonably expected to result in financial loss or gain or could prejudice competitive position;
• Information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations.

The information may be disclosed if the person concerned consents, the information relates to the applicant, information of the same kind is not contained in the record in respect of persons generally or a class of persons having regard to all the circumstances of a significant size, is available to the general public, disclosure is necessary to avoid a serious and imminent danger to health or life of the individual or the environment.

Personal Information

A request will be refused if it will result in disclosure of personal information.  This does not applied to information relating to the person requesting it, information of a kind that is contained in the record in respect of individuals generally or a class of individuals that having regard to the circumstances of a significant size is available to the public, information was given to the body and the individuals informed before giving  that the information belongs to such class or disclosure is necessary to avoid serious and imminent danger to life, health.

Where the request relates to medical or psychiatric records or records obtained in the course of social work relating to the requestor and the body concludes that the disclosure would be prejudicial to physical, mental health, well-being or emotional condition the request may be refused.

Where a request is refused on the above basis a statement must be included if so requested that it will be offered to a professional having expertise in the subject matter and if so requested he shall offer access to help professional and keep it available for that purpose.

Other than in the above circumstances information in relation to the personal information shall not be disclosed nor shall it disclosed where the record exists.

Access to a record may also be refused it if in addition to involving disclosure of personal information related to the requestor it will also involve disclosing personal information relating to other individuals.

Provision may be made for disclosing records to parents or guardians or to certain other parties in the case of a deceased person.

There are provisions in relation to correcting incomplete, incorrect and misleading information.  This may also apply where the person concerned is dead in which case certain specified persons may correct the record on his behalf.

Third Party Furnished Information

In certain cases where it is decided that it is appropriate to release information and the information was provided or relates to a third party or in some cases that third party must be notified in advance of the decision and given the opportunity to make representations.  Such submissions must be considered.  The relevant periods may be extended during which consideration is given to be submissions and objections of the third party.

 

Financial Interests of State

Information may be refused if it contains information in relation to research being carried on by a public body and disclosure before completion would be likely to cause disadvantage or disclosure could prejudice the well-being of cultural heritage, natural resource or species or habitat or species of flora or fauna.  Such information may be released if in the opinion of the Department the public interest would be better served by granting rather than refusing information.

A body may refuse a request to information if in their opinion:

• Access could have a serious adverse impact on the financial interests of the State or the ability of the Government to manage the economy;
• Premature disclosure of the record could reasonably be expected to result in undue disturbance in the ordinary course of business generally or to a particular class of business and access would involve disclosure of information which is premature;
• Access could reasonably be expected to result in unwarranted benefit or loss to a person or class of persons.

The provision applies to information concerning:

• Exchange rates, tax, duties or income, interest rates borrowing by State bodies, regulation and supervision of banking, insurance, dealings in foreign currency, regulation of wages, salaries and prices;
• Proposals in relation to expenditure by the State;
• Foreign investment in enterprises in the State industrial development, trade between persons in the State and persons outside the State;
• Trade secrets, financial, commercial, industrial, scientific or technical information belonging to the State or a public body or a substantial body of value or reasonably likely to be of substantial value;
• Information which could reasonably be expected to adversely affect the competitive position of a commercial body;
• The economic or financial circumstances of a public body.

Bodies may refuse requests if the disclosure is prohibited by any other legislation or non-disclosure is authorised by such enactment in circumstances.