• Introduction
• Publication Requirements
• Processing an FOI Request
• Exemptions
• Review of Decisions
• Charges

Chapter 1 -

1.1 Introduction

The Freedom of Information Act commenced on 21 April, 1998, for Government Departments and certain Government bodies. The Act commenced for Local Authorities and Health Boards in October 1998. Additional public bodies have been included since that time. A list of all public bodies covered by FOI is availabe at www.gov.ie/finance/publications/foi/foibodies.htm 

1.2 Purpose of FOI

The long title sets out the purpose of the Freedom of Information Act. It asserts the right of members of the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy.

Freedom of Information derives from the following broad principles:

every individual has should have the right:

- to know what information is held in government records about him or her personally subject to certain exemptions to protect key interests

- to inspect files held about or relating to him or her

- to have inaccurate material on file corrected

groups and individuals who are affected by decisions of public bodies should have the right to know the criteria used in making those decisions;

decisions by public bodies should be more open to public scrutiny, thus providing greater appreciation of the issues involved in policy decisions and stronger public ownership and acceptance of decisions made;

citizens, as shareholders in public bodies, should have the right to examine and review the deliberations and processes of public bodies

1.3 Main Features of the Act

The Act establishes three new statutory rights:

- a legal right for each person to access information held by public bodies;

- a legal right for each person to have official information relating to him/herself amended where it is incomplete, incorrect or misleading;

- a legal right to obtain reasons for decisions affecting oneself;

In addition, the Act provides for the establishment of an independent Office of Information Commissioner to review decisions relating to FOI made by public bodies.

1.4 Overview of the Act: Key Provisions in Each Part

Part I - Preliminary and General

- provisions in relation to short title and commencement (section 1)

- interpretation of various terms used in the Act (section 2)

- provides for the making of regulations and delegation of functions (sections 3 and 4)

Part II - Access to Records

- establishes a legal right for the public to access records held by public bodies (section 6)

- sets out the practical arrangements for processing requests (sections 6 to 13)

- sets out the procedures for internal review (section 14)

- requires public bodies to publish information about themselves, the information they hold, and the internal rules and guidelines used in decision making (sections 15 and 16)

- establishes a right to have personal information held by a public body amended where such information is incorrect, incomplete or misleading (section 17)

- establishes a right for each member of the public to access reasons for decisions directly affecting him or her (section 18)

Part III - Exempt Records

- sets out a series of related measures to protect information relating to key areas of Government activity, third party interests, court and parliamentary matters (sections 19 to 32)

- provides for the issue of Ministerial Certificates in the areas of law enforcement, defence and international relations (section 25)

- enables, where appropriate, one or more exemptions to be invoked to protect a particular matter

- provides for the release of information in the public interest in exceptional circumstances.

Part IV - The Information Commissioner

- establishes the Office of the Information Commissioner (section 33)

- sets out the scope and procedures for review of decisions by the Commissioner under the Act (section 34)

- sets out the functions, duties and powers of the Commissioner (sections 35 - 40)

Part V - Miscellaneous

- provides that a decision is presumed to have been made in the event of failure by a public body to reply to a request within specified times (section 41)

- provides for appeal to the High Court (section 42 - 43)

- requires stay on certain decisions pending possible appeals (section 44)

- sets out legal protections for the release of information under Freedom of Information (section 45)

- provides for exclusions from the Act (section 46)

- sets out charging principles (section 47)

- amends the Official Secrets Act (section 48)

Chapter Two - B>Publication Requirements

Under the Act, public bodies are required to publish certain information about themselves and also to make available details of their internal rules, procedures, interpretations, etc. used in decision making. These requirements are outlined in sections 15 and 16 of the Act. For public bodies coming within the scope of the Act from commencement, publications must be made available on or before commencement date.

Manual under Section 15 (Reference Book)

2.1. Section 15 requires each public body to prepare and publish a manual setting out a general description of;

- structure and organisation

- functions, powers, duties

- services it provides for the public and how these may be availed of

- a general description of the rules and guidelines used in implementing its schemes and programmes (required to be published under section 16)

- classes of records held and the arrangements for enabling the public to access such records

- names and designations of members of the staff of the body responsible for carrying out these arrangements (unless the publication of this information could threaten the physical safety or well being of the person)

- rights of review and appeal against the decisions of the body (including rights of review under this Act)

2.2 Purpose of Manual

The central purpose of the manual is to assist the public in ascertaining the information held by each organisation and how to access it. The content, design and layout of the manual should therefore be determined by reference to this objective. To this end section 15(3) requires bodies to have regard to the needs of the public in ascertaining and exercising their rights when compiling the manual. Such manuals are a standard feature of FOI legislation in other jurisdictions.

Information on the functions, structure and services of public bodies incorporated into recently published strategy statements under the SMI process may serve as a useful foundation for preparation of the manual.

2.3 Summary Document

Each public body is required to furnish a summary of the manual to the Minister for Finance, who shall collate and publish same within 15 months of commencement of the Act.

2.4 Exempt Material

The section explicitly provides that the requirement to include certain information in the manual is subject to the protections outlined in Part III (exemptions) and section 46 (excluded matter). If, for example, reference to a particular file title or document reference would disclose the identity of a confidential source, such details may be exempt from the manual.

2.5 Publication Requirements for Manuals

The Act provides that the manual shall be available for inspection and for removal or purchase at such places as the head of the body considers appropriate. The head is required to cause notice of such places to be published in such manner as he or she considers adequate. In keeping with the spirit of the Act, such manuals are available in public offices, public libraries, and Citizen Information Centres etc.

Manuals of local authorities and health boards must also be made available to members of the relevant authority or board.

2.6 Sample Manuals

Copies of sample manuals from public bodies in other jurisdictions have already been provided to Departments.

2.7 Internal Rules and Guidelines

Under Section 16 of the Act, each public body must publish the following:

rules, procedures, practices, guidelines and interpretations used by the body and index of any precedents kept by the body which may be used in making decisions, determinations or recommendations under any enactment or scheme administered by the body, with respect to:

- rights, privileges or benefits to which members of the public are or may be entitled

- obligations, penalties or other sanctions to which members of the public are or may be subject

- information in relation to the manner or intended manner of administration of any scheme

2.8 Purpose of Publication of Internal Rules, Guidelines, etc.

The availability of such information is complementary to the general right of access. The objectives of this provision may be broadly summarised as:

- to assist the public in understanding more fully their rights and entitlements in relation to particular schemes

- to enhance public confidence in decision making

- to enable the quality and accuracy of the public body's interpretation and application of statutory provisions to be assessed.

2.9 What are rules, guidelines, practices, etc.?

Rules, procedures, practices, guidelines and interpretations refer to a wide range of documents used by a public body in making a decision or recommendation affecting the rights of members of the public. It may include interpretation of legislation, staff circulars, manuals provided for the guidance of staff, statements of policy and decisions which operate as precedent.

Where public bodies have discretionary powers under legislation, it is intended that such discretion would be respected by this provision. They will, however, be required to identify such discretion and to outline the broad criteria by which such decisions are made.

2.10 Index of Precedents

Precedents refer to reasoned decisions previously made by public bodies which are used as standard interpretation in determining similar cases. By their nature, while some precedents will have general application to subsequent decisions, many will deal with very specific points of interpretation which may arise infrequently and only in respect of particular groups or narrow interests. For practical reasons therefore, public bodies are required to publish an index of these precedents only, alerting the public to their existence. In accordance with section 16(6), copies of precedents shall be made available on request.

2.11 Persons not to be Disadvantaged by Non-Publication

Section 16(3) provides that a person shall not be disadvantaged as a result of a public body failing to meet its requirements under this section i.e. if the material is not published or if the published material is incomplete or inaccurate. To avoid any misuse of this provision, it shall not apply where the public body can demonstrate that it has taken necessary action to fulfil its statutory obligations and bring the information to the notice of persons affected by it.

2.12 Publication Requirements for Internal Rules, Guidelines, etc.

As with the manuals, the Act provides that the internal rules and guidelines be available for inspection and for removal or purchase at such places as the head of the body considers appropriate. The head is required to cause notice of such places to be published in such manner as he or she considers adequate. Again, in keeping with the spirit of the Act, such publications are available in public offices, public libraries, and Citizen Information Centres etc.

The rules and guidelines of local authorities and health boards must also be made available to members of the relevant authority or board.

2.13 Exempt Material

Section 16(7) clarifies that information need not be published if it comes within an exemption in Part III (e.g. information likely to disclose the precise control or audit procedures used by a public body need not be disclosed) or an exclusion under section 46.

Chapter Three - Access to records, amendment of personal information and reasons for decisions

3.1 What is a record?

Under the Act a record includes any memorandum, text or other document, any photograph, film or recording, or any form in which data are held (whether manual, mechanical or electronic), and anything that is a part, or a copy, or a combination of the foregoing.The Act provides a right of access to records held by public bodies.

3.2 What records can be sought from bodies within the scope of the Act?

The following manual and electronic records may be sought:

- all records created from commencement date

- all personal records irrespective of when created

- any other records necessary to the understanding of a current record

- all personnel records of staff in public bodies created less than 3 years before commencement. Earlier records may be accessed if they are liable be used in a way that might adversely affect the interests of the member of staff involved.

The Minister for Finance may extend the scope of the Act, by regulations, to include earlier records or records relating to a particular subject matter created prior to commencement.

Information will not come within the scope of the FOI Act where it is:

i. already publicly available

ii. available under another enactment (except the Data Protection Act: requests for personal data may be made under either Act).

iii. excluded under section 46

3.3 Making an FOI Request (section 7 refers)

A person who wishes to exercise the right of access under the Act shall make a request, in writing, to the head of the public body concerned for access to the record concerned. The requester must;

- state that the request is made under the FOI Act

- set out sufficient particulars to enable the record to be identified

- specify the preferred form of access, if he or she has such a preference (e.g. photocopy or computer disc)

Having regard to the needs of requesters, the Minister for Finance may determine that requests be made in forms other than in writing.

3.4 Duty to Assist

If the request is unclear or of a general nature, the public body must assist the requester in preparation of his/her request so as to enable identification of the information sought. A request may not be refused on the grounds of being either voluminous in nature or not sufficiently focused unless the body has first offered to assist the requester. (Sections 6(2)(a) and 10(2) refer). The public body must also have particular regard to the needs of people with a disability. (Section 6(2)(b) refers)

3.5 Motive of the Applicant is not relevant

Under Freedom of Information the interests and motives of the applicant are not to be taken into account in determining access. Each person has an equal right to access records under the Act, irrespective of any reasons the requester may give or any opinion the public body may have regarding such reasons.

However, the identity and circumstances of the requester, rather than the reasons for access, may be relevant in certain cases. The identity of the requester has relevance where privacy considerations apply (see page 18 regarding sections 26-29). Similarly, the means of the requester may allow waiver of fees in certain circumstances (section 47).

3.6 Dealing with an FOI Request - Time Limits

- Acknowledge receipt of request within 2 weeks (section 7(2) refers)

- Acknowledgement notice shall set out the rights of the applicant in the event of the request not being dealt with within the specified time limits. (non reply to a request shall be deemed to be a refusal, thereby allowing the applicant to proceed to review - section 41 refers).

- Decide whether to grant or refuse to grant the request within 4 weeks (section 8(1) refers)

- If decision is to grant the request, determine the manner in which access will be offered. Cause notification in writing* of the decision and determination to be given to the requester

3.7 Extension of Time Limit (section 9 refers)

The head of the public body may extend the time limit for dealing with a request by up to 4 weeks, if the request, or related requests, concern such a large number of records that compliance within the initial 4 week period is not possible

3.8 Information held by another public body (section 7(3) refers)

The Act makes provision for transfer arrangements where the information sought is held by another public body ( or in such other form as may be determined by the Minister)

if the record is not held by the recipient body, but is known to relate to another public body, a copy of the request must be forwarded to that body within 2 weeks of receipt

the public body is obliged to:

- take reasonable steps to acquire knowledge as to the most appropriate body for transfer

- inform the requester that his/her request was transferred

the "first" public body shall be deemed not to have received the request

3.9 Information partly held elsewhere (Section 7(4) refers)

If part of the record is held by the first public body and the remainder by another public body, the first body shall notify the requester of the names of the other public bodies which hold such records. The first body should then process the request insofar as it relates to records which it holds.

3.10 Granting of Access to Records

Procedure re. Fees (section 8)

The charging principles are set out at Part 6 of this guide (section 47 of the Act refers)

- if no fee is due or the amount of the deposit paid covers the fee, access to the record is granted immediately.

- if a fee is charged, access to the record is granted within 1 week of receipt of same.

Form of Access (section 12)

Access may be granted in the following forms:

- a copy of the record

- a transcript of the information concerned

- a computer disk or other electronic device containing the information

- a reasonable opportunity to inspect the record

- if the record is of sound or visual images, a reasonable opportunity to hear or view the record

- if the information is in shorthand or other code, the information in decodified form or written form or in such other form or manner as may be determined by the Minister for Finance

- in a combination of any two or more of the foregoing

Access to the record should be given in the form requested, unless the granting of the record in an alternative form would be significantly more efficient, or the granting of access in the form requested would be:

- detrimental to the record

- involve an infringement of copyright (other than that owned by the State, the Government or the public body concerned)

- conflict with a legal duty or obligation of the public body

- prejudice, impair or damage any interest protected by Part III or section 46.

3.11 Refusal to grant requests

Requests to access records may be refused for any of three reasons

1. the record is exempt under Part III of the Act

2. the record is excluded under section 46

3. refusal for the following administrative reasons (section 10):

i .the record does not exist or cannot be found

ii .the request does not include sufficient details to identify the record sought

iii. the request is of a voluminous nature

iv .the information requested is likely to be published within 12 weeks

v. the request is frivolous or vexatious

vi .a fee or deposit for a previous or current request has not been paid

The public body must consult with the requester to ascertain more clearly what information is being sought, before refusing a request on the grounds that it does not contain sufficient particulars or is a voluminous request (section 10(2) refers).

3.12 Deferral of Access to Records (section 11)

Access to a record may be deferred in the following circumstances;

- if the record was prepared solely for the information of both or either Houses of the Oireachtas or a committee of the Houses and will be so provided within a reasonable time

- if the interest to the public generally in disclosure is such that the Minister wishes to inform the Houses of the Oireachtas of, or otherwise make public, the contents prior to its release under FOI. The Minister must do so within 5 weeks of receiving the request, subject to payment of fees, etc..

- if the information constitutes that in paragraphs (b), (d) or (e) of section 20(2) and disclosure on or before a particular day would be contrary to the public interest i.e.

(b) factual (including statistical) information and analyses thereof,

(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body,

(e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert. {A deferral of access under section 11 may not be invoked in respect of reports used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme, because exemption for such matter may be sought under section 20(1)}.

The public body is required under section 8(2) to notify the requester of the reasons for the deferral, the period within which the record will be made available and his or her rights of appeal. Deferral of access for the latter two reasons (i.e. Minister informing the Houses or matters relating to section 20) may be appealed directly to the Information Commissioner.

3.13 Access to Parts of Records (section 13)

If part of a record contains exempt material, where practicable, access may be offered to part of the record only. In some instances, deletion may be impracticable if the information to be deleted forms an integral or large part of the original document.

The head must ensure that an edited copy is not misleading or falsely representing the contents of the entire document.

The public body is obliged to inform the requester that the information offered has been edited and to indicate the nature of the information deleted. This requirement does not apply if the public body is entitled not to disclose whether or not certain information exists, as permitted in sections 19 (5) Cabinet Matters, 22 (2) Legal Professional Privilege, 23 (2) Law Enforcement or 24 (3) Security and International Relations.

3.14 Reasons for refusal of FOI Requests (whether in whole or in part)

Section 8(2)(d) requires reasons for refusal to be given together with findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. The reasons requirement is designed to:

1. give an applicant the underlying reasons for a decision as opposed to merely quoting a section of the Act

2. enable the applicant to make an informed decision about an appeal

3. encourage public bodies not to invoke an exemption unless good grounds exist for so doing

3.15 Notification of Decisions on Requests (Section 8(2) refers)

The following details should be included in the notification of a decision on an FOI request:-

- the decision and date on which it was made

- name and designation of officer dealing with request (unless disclosure of this information could prejudice the safety or well being of the person concerned)

if request is to be granted - the form and manner of access, the period during which the record will be kept available and the amount of any fees due

if the request is to be refused:

- the reasons for the refusal, findings on any material issues relevant to the decision and the section of the Act upon which the refusal is based;

- detailed explanations are not required if the public body is entitled to refuse to confirm or deny the existence of information (sections 19(5), 22(2), 23(2) and 24(3) refer)

if access to the record is deferred:

- the reasons for the deferral and the period of its deferral

- particulars of rights of review and appeal, including procedures and time limits involved

3.16 Right to have Personal Information Amended

Section 17 of the Act confers a legal right on each member of the public to require that personal information relating to oneself and held by a public body be amended, where it is incomplete, incorrect or misleading. It complements the right of access to personal information and is analogous to the right under the Data Protection Act (section 6) which allows individuals to seek amendment of personal information held on computer.

Time Limits

The time limits applying to applications for correction of information are similar to those applying to access requests. Applications must be processed by the public body within 4 weeks.

If the Public Body does not Agree

Where a public body does not agree that the information in question is incorrect, it must append to the record a copy of the application. This requirement does not apply where the application is considered by the head to be defamatory or unnecessarily voluminous.

Electronic Records

Section 17 recognises that some electronically stored records would be impossible to append. It provides therefore that a notation may, instead, be added to the record indicating the existence of the application, where it is not practicable to append the actual application.

Amended Record to be Furnished to Others

Details of the amended record must be furnished to any other person or public body to whom the record was given in the previous 12 months. This provision is consistent with the requirements of the Data Protection Act (sn 6(2)(b))

3.17 Right to Reasons for Decisions

Section 18 confers a legal right on each person to:

- reasons for a decision on any matter particularly affecting that person

- findings on any material issues of fact relevant to the decision.

Findings on any material issues of fact refer to matters taken into account in making the decision. They may include:

- all the steps of reasoning linking the facts to the ultimate decision

- the criteria relevant to the decision, the weighting attached to each criterion and the conclusion reached on each

- any internal rules and guidelines used as part of the decision making process

- details of any recommendations, reports or investigations carried out by subordinate officers or experts and considered in the decision making process.

Chapter Four -

4.1 General Principles

Part III of the Act sets out a series of related measures to protect information relating to key areas of Government activity, parliamentary and court matters as well as third party information of a personal, commercial or confidential nature. Such exemptions feature one or more of the following aspects:

injury test: the majority of the exemptions require that an injury or harm test be satisfied before material can be withheld. This test requires consideration to be given to whether disclosure would have an adverse or harmful effect on a specific interest (e.g. section 31 requires consideration of whether disclosure could reasonably be expected to have a serious adverse affect on the financial interests of the State)

public interest test: many exemptions contain an overriding public interest test. This requires consideration to be given to whether the public interest in disclosure of a particular record may outweigh the potential harm or injury arising from such disclosure

class test: a record may be exempt because it falls into a particular class. There are a few exemptions in this category. These relate mainly to matters such as cabinet documents, legal professional privilege, etc.

protection of third party interests: the Act protects information given to public bodies which is of a personal, commercially sensitive or confidential nature. Such information may only be disclosed in the public interest following the specific consultation procedures outlined in section 29.

certificates: in the areas of Law Enforcement, Security and International Relations a matter which is exempt and also of sufficient sensitivity or seriousness may be the subject of a Ministerial Certificate. Such a decision may not be reviewed by the Information Commissioner but is instead subject to review by the Taoiseach and other members of the Government, or on a point of law by the High Court. (Sections 25 and 42 refer).

4.2 Brief Description of the Exemption Provisions

Meetings of the Government

Section 19 protects matters prepared for consideration by Government and related briefing material. This protection does not apply:

- where five or more years have elapsed since the relevant Government decision was made or

- where the information constitutes factual material and the decision to which it relates has been made public.

Government memoranda and related briefing may be released prior to the expiry of 5 years but only if there has prior consultation with the leader of each political party who participated in government at the time the particular material was considered by the cabinet.

Deliberations of Public Bodies

Section 20 provides that access to records relating to the deliberative processes of a public body may be refused, but only where disclosure would be contrary to the public interest. For the purposes of this section, where a significant decision is pending, the public interest is weighted in favour of protection of the information until such time as a decision has been made.

This section does not offer protection to factual information, technical reports or reports on the performance or effectiveness of public bodies. Internal rules and guidelines and reasons for decisions are also excluded from the protections afforded to the deliberative process.

Functions and Negotiations of Public Bodies

Under section 21 records may be protected where disclosure could harm certain operations of a public body i.e. information which could:

- prejudice the effectiveness of test, audit, control, examination or investigative functions of the body

- have a significant adverse effect on the performance of functions relating to management, including industrial relations and personnel management

- disclose negotiating positions of Government or state agencies.

Information may be released where the public interest would on balance, be better served by granting than by refusing the request.

Parliamentary, Court and Certain Other Matters

Section 22 exempts from disclosure:

- opinion and advice relating to the proceedings of the Oireachtas

- records which would be exempt from production in court either on grounds of contempt or legal professional privilege, or

- the private papers of elected representatives of the European Parliament or of Local or Regional Authorities or Health Boards

(The private papers of Oireachtas members are excluded under section 46).

Law Enforcement and Public Safety

Section 23 provides that information may be protected where its disclosure could prejudice or impair law enforcement functions or public safety.

This protection does not extend to information concerning the performance of a body or the success or otherwise of a law enforcement programme or policy where the public interest would be served by such disclosure.

Security, Defence and International Relations

Section 24 provides that information may be withheld where its disclosure could adversely affect defence, security, international relations or matters relating to Northern Ireland.

Ministerial Certificates: Matters coming within the scope of the exemptions in sections 23 or 24 may be the subject of a Ministerial Certificate.Where a Minister is satisfied that information sought is exempt by reference to prejudicing interests in sections 23 or 24, and that the information is of exceptional sensitivity or seriousness, he or she may sign a certificate confirming that the material is exempt. Section 25 outlines the procedures in relation to the issue of Ministerial certificates. In such cases review is undertaken by other members of the Government rather than by the Information Commissioner (see Chapter 5 following).

A certificate must be withdrawn where such a review finds insufficient grounds for its use. Where a certificate is withdrawn, the refusal to grant access to the information in question may then be subject to review by the Commissioner.

Information Obtained in Confidence

Section 26 provides that information can be protected where it has been given to a public body and is subject to an obligation of confidence. The head has discretion to consider release of the information where, on balance, he or she is of the opinion that it is in the public interest to do so. Prior to making a decision on such release, the consultation procedures in section 29 must be followed.

Commercially Sensitive Information

Section 27 provides thata public body can refuse to grant access to commercially sensitive information to persons other than the individual or company to whom the information relates. The head has discretion to consider release of the information where, on balance, he or she is of the opinion that it is in the public interest to do so. Again, in this area, the consultation procedures in section 29 must be followed before making a decision on disclosure.

Personal Information

Section 28 protects the privacy of individuals by allowing the withholding of personal information held by a public body from third party access. A definition of "personal information" is included at section 2 of the Act.

Sensitive Medical Information: Particular procedures must be followed in respect of medical information where the head of the body is of the opinion that its disclosure to the person concerned may be prejudicial to his or her health or emotional well-being. In these circumstances, if requested to do so by the person concerned, the public body shall, instead release the record to an appropriate health professional nominated by the requester.

The head has discretion to consider release of personal information to a third party where, on balance, he or she is of the opinion that

the public interest in disclosure outweighs the right to privacy of the individual concerned, or

where release of the information would benefit the individual.

As with the previous two areas of information, the consultation procedures in section 29 must be followed when a head is contemplating release.

Consultation Procedures

Section 29 outlines consultation procedures to be followed if a head proposes to release, in the public interest, information referred to in sections 26(3), 27(3) or 28(5). In that case, the public body is obliged to:

(i) advise the relevant third party of the intention to release the information and the public interest grounds involved,

(ii) consider the response of the third party prior to deciding on disclosure, and

(iii) allow opportunity for appeal to the Commissioner, if the public body proposes release of the information

Where a public body is unable to comply with these steps, the consent of the Information Commissioner must be sought prior to finalising a decision on release.

Research and Natural Resources

Research: Section 30 allows information in relation to research to be withheld by a public body if premature disclosure of the information would be likely to expose the body concerned or the persons engaged in the research to serious disadvantage.

Natural Resources: Information may also be protected under this section where its release could reasonably be expected to prejudice the well-being of a cultural, heritage or natural resource or the habitat or species of flora or fauna.

Information relating to either category may be released where the public interest would, on balance, be better served by granting than by refusing the request.

Financial and Economic Interests of the State and of Public Bodies

Section 31 protects information where

- its disclosure could reasonably be expected to have serious adverse effects for the financial interests of the State or the ability of the Government to manage the economy

- premature disclosure could result in undue disturbance of the ordinary course of business of the community

- access to the record could result in undue benefit or loss to any person.

Information may be released where the public interest would on balance, be better served by granting than by refusing the request.

Secrecy Provisions in other Legislation

Section 32 upholds the operation of specific secrecy provisions in other enactments. However, general "catch-all" secrecy provisions, listed in Schedule 3, are set aside, for the purposes of FOI, in favour of the particular provisions set out in this Bill.

This section further provides for periodic review of secrecy provisions in other enactments by a committee of the Oireachtas. To facilitate such review, each Minister is obliged to furnish to the committee within 12 months of commencement, a report:

- setting out any enactments that authorise or require non-disclosure of a record

- specifying whether any of the provisions should be amended, repealed, retained or listed in the third schedule.

Existence or non-existence of information

The head of a public body may refuse to disclose the existence or non-existence of information in certain specific circumstances. This provision may be used to protect information outlined in sections 23(1) (Law Enforcement) or 24(1) (Defence, Security etc.) where disclosure of its existence or non-existence would be likely to prejudice the interests protected by those subsections. In addition this provision may be used to protect information referred to insections 19(1) (Matters before Government) or 22(1)(a) (Parliamentary, Court, etc.), where confirmation of its existence or non-existence would be contrary to the public interest.

Chapter Five -  of Decisions

Under the Freedom of Information Act, a person has a right to appeal a decision taken by a public body. The appeal is to a higher authority within the body and/or to the Information Commissioner. The rights to internal review and procedures for review by the Information Commissioner are set out in sections 14 and 34 respectively.

5.1 Internal Review (section 14)

Section 14 provides for internal review of initial decisions made by a public body. Internal review must normally be undertaken before an appeal may be made to the Information Commissioner.

For public bodies, internal review provides an opportunity to consider new arguments put forward by the applicant. It also gives bodies an opportunity to monitor the quality of their primary decisions and to identify and correct problems or inconsistencies with their decision making process. The Act requires that internal review be completed within 3 weeks.

5.2 What Decisions are Subject to Internal Review?

The following decisions may be addressed by internal review

- decision to refuse all or part of a request.

- decision to defer access to records prepared solely for the Oireachtas

- decision to grant access in a form other than that requested

- decisions to delete certain exempt material from a record

- decisions refusing the correction of personal information which the requester believes is incomplete, incorrect or misleading

- decisions relating to the rights of a person to obtain reasons for decisions on acts of the public body affecting that person

- decisions relating to the charging of a fee or deposit

5.3 Decisions which Bypass Internal Review

The following are decisions which are referred directly to the Information Commissioner without going through the process of internal review:

- section 29 matters i.e. where the public body is required to consult with a third party.

- any initial decision made by a head of a public body

- deferral of access under section 11(1)(b) and (c)

- extension of time limit for deciding on a request (section 9)

5.4 Delegation (section 4 refers)

The delegation of functions relating to initial decisions is essential for the conduct of effective internal review procedures. Delegation provisions are set out at section 4 of the Act.

5.5 Procedures on Internal Review

the review

- must be undertaken at a higher level than that at which the original decision was taken

- must be completed within 3 weeks from receipt of the request for a review

- the public body may annul or vary the original decision.

Following review the public body is required to:

- issue details in writing, etc. of its decision to the requester. The notice must include details of date of decision

- if decision is to grant request - form or manner of access and any fees payable

If access is refused, reasons for refusal, and unless public body is entitled to refuse to confirm or deny existence of material (sections 19(5), 22(2), 23(3) and 24(4)), relevant material issues must be conveyed to the applicant.

If access is deferred, reasons for deferral must be conveyed to the applicant.

Details of rights of appeal to Information Commissioner and High Court must also be conveyed to the applicant.

An application for internal review must be made within 4 weeks of initial decision, but head of public body has discretion to extend this period. If no decision is made within 3 weeks non-reply is deemed to be a refusal and applicant may proceed with an appeal to the Information Commissioner

5.6 Review by Information Commissioner

Section 33 of the Bill establishes the Office of Information Commissioner.

Under the FOI Act, the Commissioner reflects key features of the effective appeals systems in terms of:

- independence

- powers to seek documents and compel witnesses

- a mandate to operate informally

- decisions binding, subject to review by the High Court

- specific time limits

- a mandate to review operation of the Act and compliance by public bodies

- reports directly to Parliament

The Ombudsman will be the first Information Commissioner.

5.7 What Decisions can the Commissioner Review?

The Commissioner may review the following:

- decisions made on internal review under section 14

- initial decisions on requests made personally by a head of a public body

- decisions on charges where the fee in question exceeds £10

- decisions to extend the time for consideration of requests under section 9

- decisions to defer the provision of access to a record falling within section 20(2) or a matter of such public interest that the Minister first wishes to inform the Houses of the Oireachtas

- decisions to which the consultation procedures outlined in section 29 apply

The Commissioner may not review under section 34:

- initial decisions taken by a member of staff acting under a delegation (internal review must first be completed)

- matters subject to a ministerial certificate under section 25 (review is instead undertaken by the Taoiseach and other Ministers)

- FOI decisions in respect of a record relating to the Office of Commissioner, or where the Ombudsman is also the incumbent of that office, the Office of Ombudsman (section 42 provides a direct right of appeal to the courts in this case)

5.8 Binding Powers

Decisions of the Commissioner are binding on the parties concerned (section 34(14) refers), subject to appeal to the High Court on a point of law under section 42.

5.9 Powers of the Commissioner (section 37 refers)

The Act confers on the Commissioner sufficient powers to enable effective discharge of his/her mandate both in relation to reviews and investigations. These include powers:

- to require the provision of information on the basis that it is relevant to a review or investigation

- to require the attendance of witnesses

- to remove records and retain them for a reasonable period

- to enter any premises occupied by a public body

Failure to comply with such requirements or the hindering of the Commissioner is an offence.

5.10 Informal Mandate

Section 37(6) promotes, where practicable, an informal approach to reviews by the Commissioner, rather than a highly structured and quasi judicial approach.

5.11 Investigations by the Commissioner

Section 36 requires the Commissioner to investigate and report on the practices and procedures adopted by public bodies generally, or any particular public body, in complying with the Act. In addition the Commissioner is required to undertake a general review of the operation of the Act within 3 years of commencement.

5.12 Promote Information Giving

In line with the role of the Commissioner in promoting and encouraging the release of official information generally, section 38 requires the incumbent to foster and encourage the publication of additional information by public bodies over and above that specified in section 15 and 16 of the FOI Act.

5.13 How to contact the Information Commissioner

The Information Commissioner may be contacted at the following address:

Office of the Information Commissioner, 18 Lower Leeson Street, Dublin 2

Telephone: 01-6785222 Fax: 01-6610570 E-Mail foi@ombudsman.irlgov.ie

Chapter Six -

Section 47 sets out the charging regime for information released under the FOI Act.

6.1 Charging Principles

Charges may be waived

Note: This guide is not and does not purport to be a legal interpretation of the Freedom of Information Act .

Click here for the text of the Freedom of Information Act 1997

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