The Freedom of Information Act creates a right of access for the public to Government information. The initial 1997 legislation was revised considerably in 2003. The broad effect of the 2003 revision was to reduce the scope of information available. The legislation was replaced in 2014, largely with the intent of reinstating the original 1997 legislation.
The Act applies to a range of governmental and public sector bodies. Subject to the restrictions and limitations in the Act, every person has a right on request, to be offered access to any records held by a public body. The public authority is under a duty to give reasonable assistance to a person who seeks records.
There are a number of significant restrictions on the right to access, which are set out in a separate chapter. There is a wide range of exempted records and materials. However, public bodies may publish records, notwithstanding that there is no right of access.
The Minister for Finance after consultation with other bodies and ministers draws up guidelines in relation to compliance by public bodies with their obligations.
Pre-1997 Act Information
The records covered by the Act are only those created after the commencement of the Act in 1997. The Minister may prescribe by regulations, that records or types of records created before the commencement of the Act (in relation to particular matters and/ or during certain periods), shall also be covered by the Act.
Certain records created before the Act are subject to the access rights in the Act, subject to conditions. Records created before the commencement of the Act which are necessary in order to understand records created after the Act are covered.
Pre-Act records relating to personal information are covered. The exception does not entitle an individual who was a member of staff of a public body, a right of access to a record held by that body which is a personnel record, created more than three years before the commencement of the Act and which has not been used or proposed to be used in a purpose or manner that adversely affects that person’s interest.
A person who requests information under the Act must do so in writing addressed to the “head” of the relevant public body. He must specify that the request is made under the Freedom of Information Act, furnish sufficient particulars in relation to the information to enable a record to be identified by taking reasonable steps. If the person requires access to be given in a particular form or manner, he must so specify.
The head of the relevant body, appointed for the purpose of the Act, must acknowledge receipt within two weeks, giving certain information and particulars as to the right of review of the Act, procedures governing the exercise of right and time limits in relation to them. A request once given, may be withdrawn by the requestor.
Where the records are not held by the public body to whom the request is made, but the relevant body is aware that they are is held by another body, it must pass the request to the other body within two weeks and inform the requestor accordingly in writing. In this case, the relevant freedom of information officer in the second body is be deemed to have received the request. If some only of the records are held, the relevant department must inform the requestor by notice in writing of the names of other public bodies holding any of the records.
The Minister for Finance after consultation with the Information Commissioner may draw up guidelines to which Heads of the relevant departments have regard. The heads may delegate their functions under the Act, within their body to an appropriate official.
Where a person requests information or access to records from a body, its staff or officers, other than in accordance with the legislation and it is not possible to make available the request other under the legislation, the relevant freedom of information official must cause the person to be informed of the statutory right of access.
The freedom of information officer must within four weeks after the request, decide whether or not to grant it in whole or in part. If it is granted, he must decide the form and manner in which the right of access will be given and give notice in writing or another format of the decision to the person requesting the record. Details of the manner in which the information is available should be given in the notice.
If the request is refused, wholly or in part, reasons for the refusal must be given. In some circumstances, the provisions of the legislation justifying refusal and the findings of relevant facts, material to the decision, must be given. Details of the right of review and appeal under the legislation must be given.
Where the information is given without a fee, access to the record is to be given immediately and kept available for four weeks. If a fee is charged, access is to be offered as soon as it may be, but not more than one week after payment. Records are kept available until four weeks after payment or eight weeks of the notice, whichever is earlier.
The freedom of information official may extend the period for consideration of a request in certain cases, in particular where the number of requests are such that it is not reasonably possible to comply. The notice must be given to the requestor.
There is provision in the legislation for internal departmental reviews by the head of the body concerned of decisions made under the legislation. Following the review, the decision may be affirmed, cancelled or varied.
A request may be refused if:
- the record does not exist or cannot be found after reasonable steps have been taken to ascertain its whereabouts;
- the request does not give sufficient information to locate the record;
- by reason of the number and nature of the records concerned or information that it involves, retrieval and examination of the numbers and records would cause substantial or unreasonable interference with the work of the body;
- publication is required by law and is intended to be effected within 12 weeks in any event;
- in the opinion of the freedom of information official, the request is frivolous and vexatious or forms part of a pattern of manifestly unreasonable requests from the same person or from different persons appearing to act in concert;
- The requisite fee has not been paid.
A refusal on the second and third grounds require that an offer is made to assist in amending the request.
Manner of Access
Access is given to records by way of a copy of the record, transcript, computer or electronic disc, a reasonable opportunity to inspect, opportunity to hear or view visual or sound records, or such other form as is appropriate. Where access would be physically detrimental to the records, infringe copyright, conflict with an existing legal duty, prejudice, impair or damage interests protected by the legislation, the form of access may be varied.
Where a request relates to a record which is exempt by reason of the inclusion of certain matters, access must be given insofar as practicable to the remainder of the record. This may only be done if the remainder is not misleading.
Records held by persons providing services to public body under a contract are deemed to be held by the public body. The person concerned must give the records to the body for retention for such period as is reasonable if so requested. Where the request relates to service contracts with public bodies, contains matters that may be redacted from the copy furnished.
S.15 and S. 16 Freedom of Information Manuals
Public bodies must cause to be prepared and published information concerning their activities including:
- a general description of its structure and organisation, functions powers and duties, services that it provides to the public and procedures by which the services may be availed of;
- a general description of the records held by it;
- arrangements made by the body to enable access to information by the public;
- names of members of staff responsible for carrying out the arrangements;
- name and address to which request can be made;
- information regarding right of appeal in respect of decisions made;
- the procedure governing the exercise of rights.
The relevant book must be prepared, published and revised not less than every three years. The relevant book is to be made available free of charge. The “book” is generally published on the internet.
A public body must cause the information to be published in relation to its:
- rules, procedures, practices, guidelines and interpretations;
- an index of precedents kept for the purpose of decisions, determinations and recommendations under any enactment or scheme administered by the body with regard to rights, obligations, penalties and sanctions to which members of the public are or may be entitled or subject to under the scheme;
- appropriate information in relation to administration under any legislation or scheme.
Where personal information held by a public body is incomplete, incorrect and misleading, the freedom of information official, on application made in writing by the person to whom the record relates must:
- alter or amend, complete or correct it;
- add to the statement or record where it is satisfied it is incomplete, incorrect misleading or by deleting records.
The application to amend the records must specify the records concerned and give specific and sufficient information to enable it to be accessed. The freedom of information official must make the requisite decision within four weeks. Notice must be given in writing of the decision.
If the application is refused, the official must attach the record concerned or a note of it and give details of the right of review on appeal under the legislation and the procedures and time limits for exercising the rights.
Where a record is amended, the body concerned must take reasonable steps and notify the amendment to other persons granted access or to other public bodies to whom copies of the records have been given.
There is provision for exercise of the right by guardians on behalf of children and other representatives including applications on behalf of deceased persons.
The Data Protection Act may also apply in the above circumstances. See the other chapters on the Data Protection legislation.
Individual Public Sector Decisions
On application to the freedom of information official, a person affected by an act or decision who has a material interest in it, may apply to obtain details in writing of the reasons for the act and any findings or material issues of fact on which the act finding is based. The body must generally respond within four weeks.
Exempt records or records required not to be revealed are exempt. See the separate chapter on exemptions from the legislation.
The provision expressly does not apply to decisions of the Public Appointments Service not to accept a person as qualified for a position or to recommend a person for appointment, if in the opinion of the official concerned, the giving of the information would be likely to prejudice the effectiveness of the process.
The Freedom of Information Act establishes the office of the Information Commissioner. The Information Commissioner is independent in its function. The Information Commissioner is appointed by the President on the advice of the Government following a resolution of the Dail and Seanad.
The Information Commissioner may review most decisions made under the legislation by various bodies. There are exclusions and limitations. Following the review, the Information Commissioner may affirm, vary or cancel the decision.
The application must be made within two weeks after notification of the decision. The grounds may be extended by the Information Commissioner where reasonable. The decision of the Information Commissioner should generally be made within four months.
The Information Commissioner must generally give a copy of the appeal to the relevant department and request their comments. The Information Commissioner may attempt to effect a settlement between the parties.
The Information Commissioner may affirm, review or modify the decision.
The Information Commissioner must keep the operation of the Act under review.
The Information Commissioner has powers to require the production of information and require co-operation from bodies. It may examine and take copies of records relevant to the investigation. It may enter premises occupied by public bodies and require persons to furnish information. It may take copies of records and documents.
A decision of the Information Commissioner may be appealed to the High Court on a point of law. Certain matters may be appealed directly to the High Court.
Fees are payable in respect of Freedom of Information requests. There are limitations in respect of the amount of fees.
Public bodies include Government departments and a very wide range of bodies and authorities set out in the legislation. It covers local authorities. It has been extended by ministerial order from time to time.
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