August-20-2013 in Employment Law
The Freedom of Information (FOI) Bill 2013 was recently published by the Minister for Public Expenditure and Reform, Mr Brendan Howlin, T.D.
The purpose is stated as a Bill to “provide for the commitments in relation to freedom of information contained in the Programme for Government.” The Bill aims to remove the substantive restrictions in relation to access to official information and to extend FOI to all public bodies. The Minister has said that this restoration and extension is central to securing “greater openness, transparency and accountability of public governance.”
Under the proposed Bill, the application of FOI will be greatly extended given the Bill’s broad definition of “public bodies” and will include a number of significant high profile bodies excluded under previous legislation e.g. An Garda Síochána, NTMA, NAMA and the Central Bank will now be partially included bodies under the scope of FOI. Notably, the Bill also provides for the applicability of FOI to non-public bodies which are in receipt of significant funding from the State. The Minister will in due course, through consultation with the relevant Government Departments, select non-public bodies which are funded in this manner, to be brought under the FOI regime. However, it is proposed that certain State entities will be provided with a full or partial exemption from the FOI regime.
The following are key features of the draft FOI Bill:
- The proposed legislation will repeal and replace the Freedom of Information Acts 1997 and 2003
- FOI bodies will be required to publish a “Publication Scheme”(replacing FOI Manuals) specifying the class of information that the body holds and has published or intends to publish and the terms under which it will make information available including the relevant charges
- Section 9 in its draft form provides a legal right for members of the public to require FOI bodies to amend incomplete, incorrect or misleading personal information
- FOI bodies will be required to perform their functions with the objective of achieving “greater openness and to strengthen accountability.” Section 11(7) has been inserted to clarify that there is a general right of access to records and these should be released unless an exemption can be relied upon which very clearly supports a refusal of access
- Public bodies must acknowledge FOI requests within two weeks and deal with such requests within a period of four weeks (to be extended by up to four weeks in certain circumstances). An FOI refusal must be accompanied by reasons for same together with the right of review and appeal
- The proposed Section 17 is a new provision dealing with the responsibilities of public bodies to search for and extract data held in electronic form. The Minister has stated that the “framework for FOI needs to be updated to reflect the transformation that has taken place in ICT” since the previous legislation was enacted
- The current rules on FOI fees are retained at present as is the Office of the Information Commissioner who shall prepare annual and special reports
- Part 4 of the Bill sets out the various exemptions to the FOI regime and contains some changes from previous legislation. By way of example, the protection from disclosure of information which could reasonably be expected to have serious adverse effects on the financial interests of the State, has been extended to include additional classes of exempted records
- The Minister may prepare and publish a new Code of Practice and Guidelines to assist FOI bodies in performing their functions
- A new Section has been included in the Bill to provide for a criminal offence under the Act if a person wilfully destroys or alters a record which is the subject of an FOI request.
It is planned that the Bill will be enacted during Autumn 2013. For more information please contact a member of our Employment Law Department.
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