3.1 What is a record?

A record is defined as including any papers, 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. A copy in any form of a record is deemed to have been created at the same time as the original.

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

The following manual and electronic records may be sought:

• records created from the commencement date of the 1997 Act (21 April 1998; 21 October 1998 for health boards and local authorities)
• all personal records and records relating to personal information of a requester irrespective of when created
• any other records necessary to the understanding of a current record
• personnel records of staff in public bodies created less than 3 years before commencement i.e. from 21 April 1995 Earlier records may be accessed if they are liable to be used in a way that might affect adversely the interests of the member of staff involved.
   

A record 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

A person who wishes to exercise their right of access to records under the Act can make a request, in writing, to the head of the public body concerned for access to the record concerned:

• stating that the request is made under the FOI Act
• setting out sufficient particulars to enable the record to be identified
• specifying the preferred form of access, if he or she has such a preference (e.g. photocopy or computer disc).
• making payment of the amount of the fee prescribed in regulations under section 47(6A). The standard fee is currently set at €15 with a reduced fee of €10 applying if the requester is covered by a medical card. A request for records containing only personal information related to the requester (including a request made pursuant to section 28(6) by a parent or guardian on behalf of a minor or disabled person or the next of-kin or personal-representative on behalf of a deceased person) is exempt from this fee.
   

3.4 Duty to Assist

If the request is unclear or of a general nature, the public body must assist the requester in the 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)) and should where appropriate consider relevant guidelines in this area which have been drawn up by the Minister for Finance.

3.5 Motive of the Applicant

Section 8(4) provides that, subject to the provisions of the Act, the interests and motives of a requester should not be taken into account in determining access. This provision reflects the general principle that 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 the motive of the requester. However the interests or motive behind a request may be considered where some other provision of the Act requires it. For example, in conducting his review in cases 020375, 020376, 020647, 020648, 020649, 020651, 020652 - Mr X and RTÉ, the Information Commissioner found that section 8(4) allowed for the motive of the requester to be taken into account when considering if a request is 'frivolous or vexatious'.

The identity and circumstances of a requester, rather than the reasons for the request, may be relevant in certain cases. The identity of a requester can also have relevance where privacy considerations apply. Similarly, the means of the requester may allow waiver of fees for search and retrieval and photocopying in certain circumstances (section 47).

3.6 Informal Consultation

Cases may arise from time to time where a request under FOI is received by a Department or public body which relates to the activities or functions of another Government Department or public body. While there is no requirement for a public body to consult in such circumstances, it is strongly recommended that the other body should be informed and where possible consulted prior to a final decision being taken on the request.

3.7 Dealing with an FOI Request – Time Limits

• Acknowledge receipt of request within 10 working days. A working day excludes a Saturday, a Sunday, or a public holiday as defined in the Organisation of Working Time Act 1997. (section 7(2))
• Issue acknowledgement setting out the rights of the requester in the event of the request not being dealt with within the specified time limits. (under section 41 non-reply to a request is deemed to be a refusal thereby allowing the requester to proceed to internal review at no charge).
• Decide whether to grant or refuse to grant the request within 20 working days (section 8(1))
  • 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
     

3.8 Extension of Time Limit (section 9)

The head of the public body may extend the time limit for dealing with a request by up to 20 working days, if the request, or related requests, concern such a large number of records that compliance within the initial 20 working day period is not possible

3.9 Information held by another public body (section 7(3))

The Act makes provision for transfer arrangements where an FOI request is made for a record held by another public body. If, upon receipt of a request, the record is not held by the recipient body, but is known to relate to another public body, the public body should consider recommending to the requester that the request be withdrawn and resubmitted – with the appropriate 'up-front' fee – to the body that holds the record.

Otherwise, a copy of the request must be forwarded to the body that holds the record within 10 working days of receipt. The public body should:
 

• 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.

Where a request is received for records, some of which are held by the body concerned and others are known to be held by one or more other public bodies, the requester should be informed of the names of the other bodies.

3.10 Information partly held elsewhere (Section 7(4))

• if part of a record is held by the first public body and the remainder by another public body, the first body must 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.
   

3.11 Granting of Access to Records

Procedure re Fees for search/retrieval and photocopying (section

• if no fee for search and retrieval and/or photocopying is due or the amount of the deposit paid covers the fee, access to the record is granted immediately.
• if such a fee is charged, access to the record is granted within 5 working days of receipt of same.

The charging regime under FOI is described in chapter 7.

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
• 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 (exempt records) or section 46 (records excluded from FOI).
     

3.12 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 (see chapter 5)
3. refusal for 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 60 working days
             v.  the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests
             vi. a fee or deposit for a previous or current request has not been paid

A 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)).

3.13 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 25 working days 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 information (defined as including "information of a statistical, econometric or empirical nature together with any analysis 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)}.

A 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.
 

3.14 Access to Parts of Records (section 13)

• If part of a record contains exempt material, where practical, access may be offered to part of the record only. In some instances, deletion may be impractical if the information to be deleted forms an integral or large part of the original document.
• The public body 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 records exist, as permitted in sections 19 Government Records, 22 Legal Professional Privilege, 23 Law Enforcement and Public Safety, 24 Security, Defence and International Relations, 26 Information Obtained in Confidence, 27 Commercially Sensitive Information and 28 Personal Information..
   

3.15 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. Again, this requirement does not apply if the public body is entitled not to disclose whether or not certain information exists.

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

3.16 Notification of Decisions on Requests (Section 8(2))

• 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)
  • a schedule of records covered by the request
  • 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 for search and retrieval and/or photocopying due
  • if the request is to be refused – the reasons for the refusal, findings on any material issues relevant to the decision (including details of any public interest factors taken into account) and the section of the Act upon which the refusal is based;
  • 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, fees and time limits involved.

     

Right to have Personal Information Amended

3.17 Section 17 of the Act confers a legal right on each member of the public to have personal information held by a public body 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 data.

This right can also be exercised on behalf of a certain persons who are unable to invoke section 17 directly i.e. by the parents or guardians of minors or disabled persons or relatives or personal representative of a deceased. Any guidelines published by the Minister for Finance should be considered in relation to such applications.

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 20 working days.

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 where the alterations or additions would be 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 (section 6(2)(b)).

Right to Reasons for Decisions

3.18 Section 18 confers a legal right on each person to obtain:

• reasons for a decision on any matter particularly affecting that person
• findings on any material issues of fact relevant to the decision.

This right can also be exercised on behalf of a person unable to invoke section 18 directly i.e. by the parents or guardians of minors or disabled persons or the relatives or personal representative of a deceased. Any guidelines published by the Minister for Finance should be considered in relation to such applications.

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
   

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