The Minister for Public Expenditure and Reform, Mr Brendan Howlin T.D. today announced that the Bill to restore Freedom of Information (FOI) and extend FOI to all public bodies, was agreed for publication at the Government meeting yesterday (16 July).
The Bill will be published early next week and its enactment by the Oireachtas will deliver on the commitment included in the Programme for Government. It strongly complements the substantial progress made on a suite of significant government reform measures which will achieve greater openness, transparency, accountability, and strengthen public governance and good government across the system.
The Minister said:-
“Substantial work has been done in the area of government reform in the last year through the significant expansion of the remit of the Ombudsman and powers of the Ombudsman through the enactment of the Ombudsman (Amendment) Act 2012, the recent publication of comprehensive whistleblower protection legislation in the Protected Disclosures Bill, the imminent enactment of the Oireachtas (Inquiries Privileges and Procedures) Bill which will provide a detailed legislative framework for Oireachtas inquiries and the forthcoming banking inquiry.
Work is also underway on the drafting of the lobbying regulation legislation and to secure Ireland’s full participation in the Open Government Partnership through the development of a national action plan on which the inaugural public meeting of the citizens and civil society interests took place last week.
The legislation has been finalised in tandem with a review of the operation of FOI, which was assisted and informed by the assessment of two expert groups; one of which comprised FOI users, academics and transparency advocates and the other comprising representatives of public bodies. The deliberations of both groups have now been completed and the drafting of a Code of Practice for FOI to strengthen the performance of public bodies and secure greater consistency of approach in dealing with FOI requests, is currently being finalised and is expected to be published for public consultation in September.
Minister Howlin also welcomed the recent pre-legislative scrutiny report of the Oireachtas Committee on Finance and Public Expenditure and Reform on his FOI proposals. The Minister has agreed with the Committee that consideration will be given to the proposals contained and issues raised in the report in the context of the Bill’s passage through the Houses or where implementation issues are concerned, these will be reflected in the Code of Practice.
The Minister said
“The FOI Bill seeks in essence to ensure that Ireland’s FOI regime is restored to the top tier of legal frameworks internationally for facilitating access to official information. The Bill will substantially restore the legislation and extend it to almost all public bodies, as well as consolidating and modernising it to improve the functioning of the Act and to improve the structure of the legislative framework”.
It is expected that the FOI Bill will be enacted in the autumn in parallel with the introduction of the Code of Practice for FOI so that the implementation of the legislation and Ireland’s FOI regime overall meets the objectives of the legislation, in ensuring that official information is available to citizens to the greatest extent feasible, consistent with the public interest in safeguarding highly confidential and very sensitive information.
Restoration and extension of Freedom of Information
Information Note
1. Extension of Freedom of Information
1.1 The extension of Freedom of Information to all public bodies is being achieved through the insertion of a general definitional provision designed to capture all public bodies, replacing the current administrative cumbersome and inefficient approach of scheduling bodies subject to Freedom of Information Act individually by name under the Act, which can lead to lacunae in application for new and restructured public bodies.
1.2 Any new exemptions under the Act have been explicitly listed in relation to the individual public body concerned in Schedule 1 to the Act and will be subject to repeal by Ministerial Order. Special implementation arrangements have been sanctioned only in limited and exceptional cases. These are underpinned by clear criteria grounded in the public interest in safeguarding particularly highly sensitive and confidential information consistent with the original objective of the Act to enable access to information to the greatest extent possible in the possession of public bodies.
1.3 Non-statutory significantly funded bodies which it is proposed should be subject to the Act will be brought under the Act in due course following agreement with relevant Government Departments on criteria governing which bodies should be selected as a priority for bringing within remit.
1.4 Current policy is that commercial State bodies with some exceptions are not, in general, subject to the Freedom of Information Act. With the exception of Irish Rail which will be brought under the Act in full, it is proposed that no new commercial state bodies will be brought within remit at this time - other than where they provide services on behalf of public bodies – on account of the potential for negative commercial effects which could impact adversely on their competitive standing and commercial performance to safeguard the State’s economic and financial interests.
1.5 A number of high-profile public bodies previously entirely outside of the scope of the Act will be brought within remit including:-
An Garda Síochána for its administrative records subject to security exemptions
Public financial bodies, including NTMA, NAMA, NPRF, and the NDFA who will all be brought within the jurisdiction of the Act for the first time. This will be subject, in particular, to the maintenance of strict confidentiality of their engagement with commercial counterparties, for example, in securing external private finance for the State.
The Central Bank of Ireland will also be brought under Freedom of Information other than in respect of records that are subject to professional secrecy obligations in particular under EU law and Eurosystem requirements
In addition, several important public bodies with important regulatory, quasi-judicial and investigative functions will no longer be excluded from the scope of the Act. This will include the Office of the Refugee Applications Commissioner and the Refugee Applications Tribunal, the case for inclusion under Freedom of Information has been highlighted by the Information Commissioner.
The Act will apply to the Education and Training Boards subject to a restriction on records which would enable school league tables to be compiled; as well as to the State Examinations Commission and the Student Universal Support Ireland
1.6 Provision is being made in the Bill to allow, by way of Ministerial Order, for the application of FOI to non-public bodies in receipt of significant funding from the State in line with the commitment included in the Programme for Government;
2. Application and Retrospection Date
2.1 In general a 6 month lead-in time will be provided post-enactment of the legislation to allow new public bodies to prepare for the introduction of Freedom of Information. The Bill provides the power for the Minister to extend the preparation time, providing up to a maximum of 12 months for new bodies coming under the Act.
2.2 Decisions on the effective date for Freedom of Information in terms of its retrospective effect for public bodies will be considered in light of further information provided in the case of the individual bodies concerned.
3. Restoration of Freedom of Information
3.1 A large number of technical amendments were made to the Freedom of Information Act in 2003 to improve the operation of the legislation. Having consulted with the Information Commissioner in each case, these amendments have been retained.
3.2 A significant number of additional provisions have been included in the Bill to improve the operation of the Act; these are based on the Information Commissioner’s proposals included in her Commentary of March 2007.
3.3 The Minister’s proposals in relation to the substantive changes to Ireland’s Freedom of Information regime introduced in 2003 are summarised below:-
Section 11(9) (former section 6(9))
The 2003 Act limited the potential for access to records relating to services provided by a commercial state body or a private body under a contract for services to a public body. It is proposed to repeal this amendment (former s6(11)(b) restoring former s6(9)).
Section 28 (former section 19 Government records)
(i) the mandatory power to refuse an FOI request relating to Government records or records to be submitted to Government, introduced in 2003, is removed and the discretionary power contained in the original Act is restored;
(ii) the five year rule in relation to the release of Government records is restored;
(iii) the strict definition of what constitutes a Cabinet record is restored as is the definition of Government;
(iv) the anomaly created in 2003 by the creation
of a mandatory exemption for Cabinet records containing factual information which is already largely in the public domain being precluded from release is being reversed and communications between members of the Government will also no longer be exempt.
Section 29 (former section 20 Deliberative processes)
A significant strengthening of the deliberative process exemption was introduced in 2003 to allow the Secretaries General to issue a certificate to the effect that the deliberative processes are ongoing. The effect of the granting of such a certificate is that access to records concerning the process must be refused with no appeal possible. Furthermore, the public interest protection in the exemption was weakened in that under the original Act, access to a record concerning deliberative processes could only be refused if its disclosure could be shown by the public body concerned to be contrary to the public interest. This was changed to allow for refusal unless in the opinion of the head of the public body concerned the public interest would, on balance, be better served by granting than by refusing access. There amendments are repealed in the Bill.
Section 33 (former section 24)
The 2003 Act introduced a mandatory exemption for categories of records relating to security, defence, international relations and Northern Ireland, the effect of which was that such records could not be released irrespective of whether their release could cause harm or not. These restrictions have been reviewed in consultation with the relevant Departments. The objective was to achieve a more proportionate approach balancing the public interest in promoting appropriate access to official information and safeguarding essential national interests in these areas. In overall terms, it is proposed to narrow the scope of the mandatory exemptions relating to certain diplomatic and defence records and to restore a harm test in some cases. The absolute exemption for records relating to the tactics, strategy or operations of the Defence Forces and certain diplomatic communications will be removed and made subject to a harm test. The mandatory exemption will remain for highly sensitive confidential communications relating for example to intelligence in respect of security or defence of the State and confidential communications containing information the disclosure of which is prohibited.
Section 42 (former section 46 Restriction of the Act)
The 2003 Act excluded records relating to the costing of a public body of a proposal of a political party and records relating to parliamentary briefing for all parliamentary questions. The Bill proposes to remove the exemption for the costing of a proposal.
The exemption relating to parliamentary briefing / draft PQ replies will be retained as Ministerial replies to Parliamentary Questions in the Dáil and Ministerial statements made to Oireachtas committees represent the strongest and most significant form of constitutional accountability of Ministers to the Dáil and removing the exemption creates a significant potential for adversely affecting the standing and importance of these vital forms of direct accountability of ministers to the Dáil.
Additional subsections have been included in the Bill relating to security/intelligence records relating to An Garda Siochana in terms of specific Units (e.g. Emergency response Unit, the witness protection programme) and specific pieces of legislation (e.g. Criminal Justice (Surveillance) Act 2009. A corresponding high level of protection is being provided for the Defence Forces for records relating to highly sensitive security and intelligence records as has been provided to An Garda Síochána.
Section 27(former section 47)
The power included in the Act in 2003 to allow the charging of application, review and appeal fees for non-personal requests will be retained. Fees for internal review are being reduced from €75 to €30 and fees for appeal to the Information Commissioner are being reduced from €150 to €50. The Minister will be considering options for changes to the search and retrieval fees regime arising from the recent operational review of FOI.
4. Other Substantive Policy Changes
Publication Scheme - Section 8 deals with the publication of information held by public bodies, replacing the requirements under Sections 15 and 16 of the 1997 Act;
In the interests of minimising the cost to the requester and avoiding administrative duplication, the Bill provides for a link to Regulations on the Re-use of Public Sector Information and on Access to Information on the Environment;
A number of changes are proposed in relation to the refusal of FOI requests on administrative grounds - Section 15 of Bill (formerly Section 10) – dealing with requests that are frivolous/vexatious, interfere with or disrupt the work of a particular functional area or relate to records which have already been released or are planned for publication;
Section 11 sets out key guiding principles to assist public bodies in the performance of their functions under the Act;
Section 35 (formerly Section 26) clarifies the position in relation to information obtained orally in confidence;
Functions/Powers of the Information Commissioner as set out in Section 45 (formerly Section 37) are being extended;
A new Section 52 introduces the penalty of a Class B fine for a person convicted of the deliberate altering or destruction of records which are the subject of an FOI request;
A new provision is proposed at Section 17- Manner of Access to Records to deal with records relating to data held electronically;
Sections 24 and 50 make provision in relation to the Central Bank in terms of an absolute right of appeal to the High Court in certain circumstances and in relation to the provision by the Bank of information to the Commissioner and obliging the Commissioner to comply with professional secrecy obligations in dealing with the information provided to her by the Bank. These amendments have been sought by the ECB;
Section 40 (formerly Section 31) is strengthened to protect the financial and economic interests of the State in the light of FOI being extended to the NTMA group;
Responsibility for training and organisational arrangements are set out in Section 8 (formerly Section 15);
Section 11 is amended to address a significant Supreme Court decision in relation to FOI (i.e. the Rotunda case)
The structure of the Bill is also being revised to seek to improve the accessibility and comprehensibility of the legislation for the benefit of public bodies and citizens alike.