FoI Right of Access

Public Bodies Covered

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.

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 the power to include or exclude bodies or elements of bodies, whether new or future, from the remit of the legislation.

Schedule I sets out the bodies excluded under the legislation or partly included or excluded.   Part I list bodies that are partly included.   Part II lists the bodies that are excluded from the legislation in full.

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.

A previous restriction on access in respect of services provided to a public body by a commercial State body and certain private bodies was relaxed.

Right to  Information

There is a legal right for the public to obtain official information from FOI bodies.  They are legally obliged to assist the public when making requests for such information.  This applies to public bodies,  prescribed bodies and service providers.

The legislation sets out the key principles to inform the bodies in the performance of their obligations under the Act.  This includes the need to achieve greater openness and strengthen the accountability of public bodies.

Access to Records

There is a general right to access to records. They should be released unless they are found to be exempt.

A person has certain rights to information regarding acts of bodies which affect a person.  Each person has a right to a reason for decisions on a matter particularly affecting him.

In applying exemptions, the right of access is only to be disallowed where the exemptions very clearly support a refusal of access.

There is provision for an amendment of records relating to personal information.  Each member of the public may require personal information relating to himself and held by a body subject to the Act. It may be amended where it is incomplete, misleading or incorrect.  The body is to provide assistance to persons making requests.

Access can be granted in a number of different ways.  Bodies must take reasonable steps to search for and extract data held electronically analogous to that which would be considered reasonable if it was held in paper form, whether or not this would result in the creation of a new record.

Where part of a record is exempt, access may be allowed for the remainder, where this is practical and is not misleading.

Exercising Right of Access

The legislation sets out how the right of access is to be exercised.  Bodies are required to acknowledge receipt of the request within two weeks.  The body may advise the person making the request whether the records are available under the European Communities (Re-Use of Public Sector Information) Regulations or European Communities (Access to Information on the Environment) Regulations

There are provisions in relation to decisions in relation to request and notification.   Bodies must decide whether to permit or refuse requests within four weeks. They must notify the person making the request.  Where the request is refused, reasons for refusal must be given together with a statement of the rights of review and repeal.

There is provision for an extension of time for consideration of requests.  The period within which the decision must be made may be extended up to four weeks if the request or a related request relates to a large number of records and compliance within the general timeframe is not possible.

Administrative Issues

There is provision for refusal of a request on administrative grounds.  This is similar to the prior legislation but adds some additional grounds.  These include

• that the body intends to publish the records concerned within six weeks after receipt of the request.
• that the request relates to records already released.

The request may be refused on administrative grounds if granting the requests would cause substantial and unreasonable interference with or disruption of the work of the body.  A refusal on administrative grounds can be made on the basis of disruption to the work of a particular functional area rather than the body.

There is provision for greater communication with the requester in an effort to refine the request. There is provision for deferral of access to a narrow range of records similar to that in the earlier legislation.

The body need not, however, take any steps involving the creation of any program or code for the purpose of searching or extracting data.  It is not required to carry out any manipulation, analysis, compilation or other processing of data.  Where records are available in such form, they may be released in electronic and searchable form.