FoI Limits & Exemptions

Governmental Records

The position with governmental meetings was restored by the 2014 Act to the position under the 1997 legislation.  The power of the head of the body to refuse a request relating to government records or records to be submitted to the government, which was introduced in 2003, is removed, and discretionary power is substituted.

The exemption may be available if records are solely rather than primarily for the purpose of the transaction of governmental business.

The period when records of government were exempt from freedom of information is reduced from 10 to 5 years.  The exemption is narrowed and no longer applies to records which contain factual information in the public domain and communications between members of the public.

There is to be periodic review of the secrecy provisions in other legislation by a Committee of the Oireachtas with a view to recommending whether they should be amended or appealed.  If it is recommended that they should continue, the Committee has the power to recommend whether they should override the Act or be included.

Government Exemptions

Records may be protected from disclosure. There exemptions from disclosure where disclosure will prejudice the effectiveness of the operations of a governmental body, including audit, control, examination or investigative functions, industrial relations and negotiation positions of a governmental body is modified.

Documents that are part of the deliberative process may be refused only where the disclosure would be contrary to the public interest.  The power of the Secretary-General to issue a certificate stating that a particular record related to a deliberative matter is deleted.

Information may be released where it is determined that the public interest will, on balance, be better served by granting the request.

Legislators

The Act does not apply to a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee (including such proceedings in relation to questions put by members of either such House to members of the Government or Ministers of State (whether answered orally or in writing))

The Act does not apply  to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential,(l) unless consent has been lawfully given for its disclosure, a record relating to any private paper or confidential communication, or ) a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of—

• the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession, or
• any other source of such information provided in confidence to an FOI body or where such information is otherwise in its possession

The private papers of elected representatives of Parliament and local or regional authorities are excluded.  Also excluded are

• matters relating to proceedings of the Oireachtas
• records and that which would be in contempt of court
• qualifies for legal professional privilege.

Diplomatic

There is an exemption for highly sensitive confidential information relating to such matters as negotiations with other States and organisations where disclosure is prohibited.

Disclosure is restricted to ministerial matters containing analysis, opinions and advice where disclosure could be expected to disclose positions, plans and structures and instructions to be used for the purpose of State negotiations or information relating to intelligence in relation to the security and defence of the State.

There is a provision for the issue of ministerial certificates declaring records to be exempt for the above purpose.

Confidential & Personal

Where information is given to a public body, in confidence, the information may be protected from disclosure. A public body may refuse access to commercially sensitive information to persons other than the person or company to whom the information relates.

Personal information held by public bodies is protected against third party access.  Personal information applies the Data Protection Act definition i.e. referring to an identifiable living person.

The head of the public body has the discretion to consider whether the release of the information to a third party should be made where he or she believes that the public interest in disclosure outweighs the individual’s right of privacy.

There are consultation procedures applicable where a head proposes to release public information referred to above i.e. information received in consultation, commercially sensitive information or personal information.

Information in relation to research and natural resources is subject to special provisions.  Information in relation to research may be withheld if premature disclosure would be likely to expose the body or persons engaged in research to a serious disadvantage.

Culture & Other Interests

Information may be protected if it would prejudice the well-being of culture, heritage and natural resources or habitats or species of flora or fauna.  It may be released where the public interest would, on balance, be better served by granting than refusing the request.

Information whose disclosure could be reasonably expected to have serious adverse effects on the financial interest of the State or the government or the ability of the government to manage the economy is exempted.  Specific secrecy obligations in other legislation apply unless such provisions are listed in Schedule III, in which case, the Freedom of Information Act is to take precedence.

Courts & Tribunals

There are exclusions in respect of tribunals of inquiries and commissions of investigations. The Act does not apply to a record relating to an inquiry into any matter by a tribunal, whether the record concerned is held by the tribunal of inquiry or commissions of investigation.

The Act does not apply to a record held by the courts other than a record that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal, or a record relating to the general administration of the courts or the offices of the courts or such a tribunal or any offices of such a tribunal.

Security & Policing

Information may be protected where its disclosure would prejudice or impair law enforcement functions.  This does not apply to information concerning the performance of a body or the success or otherwise of a law enforcement program or policy,  where the public interest would be served by the disclosure.

There are exceptions for access to Garda, Criminal Assets Bureau and Defence Forces records. The Act does not apply to a record held or created by the Garda Síochána that relates to any of the following:

• the Emergency Response Unit;
• the Secret Service Fund maintained by it;
• the Special Detective Unit (SDU);
• the witness protection programme sponsored by it;
• the Security and Intelligence Section;
• the management and use of covert intelligence operations;
• the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 ;
• the Criminal Justice (Terrorist Offences) Act 2005 ;
• the Criminal Justice (Surveillance) Act 2009 ;
• the Communications (Retention of Data) Act 2011,

The Act does not apply to a record held by—

• the Criminal Assets Bureau,
• the Independent Commission for the Location of Victims’ Remains (within the meaning of the Criminal Justice (Location of Victims’ Remains) Act 1999 ), and
• the Independent Monitoring Commission (within the meaning of the Independent Monitoring Commission Act 2003 ),

The Act does not apply to a record relating to  an inquiry within the meaning of the Garda Síochána Act 2005 , whether the record concerned is held by) persons conducting the inquiry, or (II) on the dissolution of the inquiry, any other body having custody of such a record, other than—

• a record relating to the appointment of a person to conduct an inquiry under the Garda Síochána Act 2005, or
• a record relating to the expenses or other matters concerning the general administration of an inquiry under that section,

The absolute exemption for records relating to tactics, strategies and operations of the Defence Forces and certain diplomatic communications was removed by the 2014 Act.  This is made subject to a harm test.

High Office of State

The Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration,

The Act does not apply to a record relating to an audit, inspection, investigation or examination carried out by the Comptroller and Auditor General other than  such a record that was created before the commencement of the investigation, audit, inspection or examination aforesaid, or a record relating to the general administration of the Office of the Comptroller and Auditor General,

The Act does not apply to a record relating to the President.

Access is subject to professional secrecy obligations under European Constitutional Treaties, European Central Bank statute and Supervisory Directives in relation to the Central Bank.

The Act does not apply to  a record held by the Central Bank of Ireland, the disclosure of which is prohibited by—

• the Rome Treaty,
• the ESCB Statute or
• any of the Supervisory Directives, within the meaning of the Central Bank Act 1942