This note does not purport to be a legal interpretation.

Section 1 defines the term "the Principal Act" as meaning the Freedom of Information Act 1997. The term has the same meaning in this Explanatory Note.

Section 2 makes the following amendments to section 2 (interpretation) of the Principal Act:-

(i) the definition of "record" in subsection (1) is amended to provide that a photocopy or other reproduction of a record is deemed to have the same date of creation as the original record.

(ii) the definition of "local authority" is updated in line with the Local Government Act 2001.

(iii) "factual information" is defined as including "information of a statistical, econometric or empirical nature together with any analysis thereof".

(iv) "week" in the Principal Act is defined as five consecutive week-days, excluding a Saturday, or a public holiday. The main effect is that the reference in section 8(1) of the Principal Act to 4 weeks for a decision to be made on a request is to be read as 20 consecutive days excluding Saturdays, Sundays and public holidays.

Section 3 amends section 4 (delegation of certain functions of heads) of the Principal Act by the deletion of subsection (5). This removes the requirement for the head of a public body to cause notice of a delegation made under section 4 of the Principal Act to be published in Iris Oifigiúil.

Section 4 inserts a new subsection (11) into section 6 (right of access to records) of the Principal Act.

Paragraph (a) of this subsection provides that the commencement date of the Principal Act for local authorities and health boards is 21 October 1998. This provision supersedes S.I. 516 of 1998.

Paragraph (b) provides that "person" for the purposes of subsection (9) of section 6 of the Principal Act (which subsection brings a record held by a person providing a service for a public body under a contract for services within FOI) does not include a public body listed in the first schedule or any other body or group not standing prescribed for the time being under subparagraph (5) of paragraph (1) of the first schedule. This provision supersedes S.I. 517 of 1998.

Section 5 amends section 7 (requests for access to records) of the Principal Act to create a legal basis for a member of the public to withdraw a request under that section. The head of a public body is required to cause notice of such withdrawal to be given to any other person to whom, in the opinion of the head, such notice should be given.

Section 6 makes two amendments to section 8 (decisions on requests under section 7 and notification of decisions) of the Principal Act:-

(i) by the addition of sections "26(4), 27(4) or 28(5A)" to paragraph (d)(ii) in subsection (2). This is consequential to provisions contained in sections 21(b), 22(b) and 23 of the Amendment Act.

(ii) by insertion of the words "Subject to the provisions of this Act, in deciding" for the words "in deciding" in subsection (4) of section 8 of the Principal Act. Section 8(4)(b) provided in unqualified terms that the motive of a requester cannot be considered when deciding whether to grant or refuse a request for a record. The amendment is intended to provide consistency with other provisions where consideration of motive may be necessary.

Section 7 provides for the following amendments to subsection (1) of section 10 (refusal on administrative grounds to grant a request under section 7) of the Principal Act:-

(i) the word "other" before "work" in paragraph (c) of section 10(1) is deleted.

(ii) the behaviour of a requester in relation to previous requests may be taken into account under paragraphs (e) and (f) of subsection (1) where a request forms part of a pattern of linked unreasonable requests from one or a number of requesters acting in concert or where there has been a previous failure on the part of a requester to pay a fee or deposit payable under section 47 (fees) of the Principal Act.

Section 8 amends subsection (3) of section 13 (decisions on requests under section 7 and notification of decisions) of the Principal Act by the addition of sections "26(4), 27(4) or 28(5A)" This is consequential to provisions contained in sections 21(b), 22(b) and 23 of the Amendment Act.

Section 9 makes two amendments to section 14 (review by heads of decisions) of the Principal Act:-

(i) by the substitution in paragraph (c) of subsection (5) of "section 10(1)(c), 19(5), 22(2), 23(2), 24(3), 26(4), 27(4) or 28(5A)" for "section 10(1)(c), 19(5), 22(2), 23(2), 24(3)". This is consequential to provisions contained in sections 21(b), 22(b) and 23 of the Amendment Act.

(ii) by substituting subsection (8) with the effect that a head is required to notify any person whom s/he considers relevant that an application under section 14 of the Principal Act has been withdrawn.

Section 10 makes the following amendments to that section 15 (publication of information about public bodies) of the Principal Act:-

(i) the Minister for Finance is enabled to make his annual report on a calendar year as opposed to a mid-year basis. The existing reporting year is linked to the commencement date of the FOI Act (21 April 1998).

(ii) "published" is defined for the purposes of section 15 of the Principal Act as including published by electronic means.

(iii) subsection (4) of section 15 is deleted thereby removing the requirement for a public body to prepare a summary of reference book under subsection (1) and for the Minister for Finance to collate and publish a reference book containing such summaries.

Section 11 amends section 16 (publication of information regarding rules and practices in relation to certain decisions by public bodies) of the Principal Act by including a definition of "published" to include publication by electronic means.

Section 12 amends section 17 (amendment of records relating to personal information) of the Principal Act by inserting a new subsection (6) which will empower the Minister for Finance to make regulations to enable parents, guardians or next-of-kin to apply to a public body to have personal information about an individual corrected where the information held by the public body is incomplete, incorrect or misleading.

Section 13 amends section 18 (right of person to information regarding acts of public bodies affecting the person) of the Principal Act by inserting a new subsection (5A) which will empower the Minister for Finance to make regulations to enable parents, guardians or next-of-kin to apply to a public body for a statement of reasons in respect of an individual who has been affected by an act of the public body.

Section 14 provides for the following amendments to section 19 (meetings of the Government) of the Principal Act:

• mandatory exemption of all Government records covered by section 19(1) of the Principal Act by substituting the words "shall refuse" for the words "may refuse" in subsection (1) and a consequential amendment to subsection (2)(b) to reflect this mandatory exemption;
• protection for communications between Ministers concerning matters expected to come before Government or under consideration by the Government.
• substitution of the word "primarily" for the word "solely" in paragraph (c) of subsection (1).
• extension of the period during which records covered by section 19(1) as amended (i.e. including ministerial communications and records of committees of the Government) from 5 to 10 years by substituting "10 years" for "5 years" in paragraph (b) of subsection (3);
• amendment of subsection (6) to extend the protection available under section 19(1) to the records of a committee of officials where the committee concerned is certified by the Secretary General to the Government as having been established for direct support of Government deliberations. "Officials" are defined as either civil servants, special advisers or such other persons as may be prescribed.
• A requirement for the Secretary General to the Government to furnish to the Information Commissioner an annual report specifying the number of certificates issued by him or her in the preceding year in relation to committees of officials certified as falling within paragraph (b) of subsection (6).
• Removal of the consultation requirements contained in subsection (4) of section 19 of the Principal Act.

A copy of Section 19 inclusive of these amendments is attached for illustrative purposes.

Section 15 makes the following substantive amendments to section 20 (deliberations of public bodies) of the Principal Act:-

(i) by clarifying at paragraph (a) that the protection available under section 20 of the Principal Act for a record applies to a record relating to the deliberative processes of any public body rather that of the public body in receipt of the request.

(ii) by the insertion of a new subsection (1A) after subsection (1) requiring a head to refuse a request for a record if a Secretary General of a Department of State has certified that the record relates to the deliberative processes of a Department. While such a certificate is in force, an application for review under sections 14 or 34 of the Principal Act shall not lie. Each Secretary General is required to furnish an annual report to the Information Commissioner specifying the number of certificates issued by him or her in the previous year and also the number of certificates revoked in the same period.

(iii) by redefining the public interest test so that a record falling within subsection (1) of section 20 shall be released if, on balance, the public interest would be better served by granting than by refusing to grant the request for the record.

A copy of Section 20 inclusive of amendments is attached for illustrative purposes.

Section 16 amends section 21 of the Principal Act (functions and negotiations of public bodies) by substituting paragraphs (a) and (b) of subsection (1) in order to clarify that these provisions can be invoked to protect records prejudicial to the functions and negotiations of any public body.

Section 17 makes two amendments to section 22 (parliamentary, court and certain other matters) of the Principal Act:-

(i) A "reasonable awareness" test is inserted into paragraph (b) of subsection (1) to clarify that contempt of court is committed in the release of a record where a head knows, or ought reasonably to have known, that the disclosure of the record would constitute contempt of court.

(ii) A new subsection (1A) is inserted containing a discretionary exemption for records held by a public body that relate to the work of tribunals and inquiries as defined in section 17. This subsection can be invoked during the preparatory stages of a tribunal or inquiry and/or when the work of a tribunal/inquiry is ongoing but ceases to apply once a tribunal/inquiry has completed its work. Records relating to the general administration of tribunals and inquiries are explicitly excluded from this subsection.

Section 18 amends section 23 (law enforcement and public safety) of the Principal Act by the insertion of a new paragraph (aa) in subsection (1) containing explicit protection within section 23 for a record which could reasonably be expected to endanger the life or safety of a person. Subsection (2) of section 23 has also been amended to provide that a head shall refuse to confirm or deny the existence or non-existence of a record if, by so confirming or denying, it would have the effect specified in the new paragraph (aa).

Section 19 amends subsections (1) and (2) of section 24 (security, defence and international relations) of the Principal Act. The effect is to create a mandatory class exemption for records specified in subsection (2) impacting on security, defence and international relations.

Section 20 provides that section 25 (conclusiveness of certain decisions pursuant to sections 23 and 24) of the Principal Act is amended by substituting a revised paragraph (a) in subsection (7). The effect is a reduction in the frequency of reviews of the operation of section 25(1) of the Principal Act conducted jointly by the Taoiseach and such other Ministers as are prescribed (currently the Tánaiste and Minister for Finance).

Section 21 provides for two amendments to section 26 (information obtained in confidence) of the Principal Act:-

(i) by clarifying that section 26(1)(a) can be invoked by a head to exempt information obtained in confidence by any public body.

(ii) by the insertion of a new subsection (4) providing that a head shall refuse to confirm or deny the existence of a record if the record is within subsection (1) of section 26 (but not subsections (2) and (3)) and the acknowledgment of the existence or non-existence of the record would have an effect specified in subsection 1 i.e. the effect of disclosing information obtained in confidence or breaching a duty of confidence provided by an agreement or a provision in an enactment not specified in the third schedule to the Principal Act.

Section 22 makes two amendments to section 27 (commercially sensitive information) of the Principal Act:-

(i) by inserting a new provision in paragraph (e) of subsection (2) to require a head to satisfy him/herself as to the identity of a requester, or as to the consent of the person to whom the information relates, prior to releasing commercially sensitive information where the information relates to the requester or where the person to whom the information relates has consented to its release to the requester.

(ii) by the insertion of a new subsection (4) providing that a head shall refuse to confirm or deny the existence of a record if the record is within subsection (1) of section 27 of the Principal Act (but not subsections (2) and (3)) and the acknowledgment of the existence or non-existence of the record would have an effect specified in subsection (1) i.e. the effect of disclosing commercially sensitive information within the meaning of subsection (1).

Section 23 inserts two new subsections ((5A) and (5B)) into section 28 (personal information) of the Principal Act:
 

Subsection (5A) provides that a head shall refuse to confirm or deny the existence of a record if the record is within subsection (1) of section 28 (but not subsections (2) and (5)) and the acknowledgment of the existence or non-existence of the record would have the effect specified in subsection (1) of disclosing personal information.

Subsection (5B) relates to requests for records containing joint personal information i.e. records containing personal information about the person making the request under FOI and the personal information of a third party. The subsection confirms that, in the case of a request for such a record, third party information would, subject to the public interest or other provisions in the Act, remain protected. The purpose is to protect the privacy rights of third parties in cases of joint personal information while ensuring that there was no restriction in any way on the provision of personal information that relates solely to the requester. This subsection supersedes S.I. 521 of 1998.

Section 24 amends section 29 (procedure in relation to certain requests under section 7 to which section 26, 27 or 28 applies) of the Principal Act by providing for more time at third party consultation stage in subsection (2). 4 weeks (rather than 2 weeks under the Principal Act) is the maximum amount of time for the initiation of third party consultation in cases which involve a significant amount of records or a large number of third parties to be consulted.

Sections 25 and 31 contain provisions clarifying the arrangements governing the terms of appointment, including remuneration, of the Information Commissioner where he or she is also Ombudsman.

Section 26 makes a number of amendments to section 34 (review by Commissioner of decisions) of the Principal Act:-

(i) the Information Commissioner may review a decision of a public body to refuse access to a record to which section 46 (restriction of Act) of the Principal Act applies.

(ii) extension from 3 to 4 months of the period that the Commissioner has to reach a decision on an application made to him for a review under section 34.

(iii) The Information Commissioner will have discretion to accept a late application for review in relation to a decision to extend the time limit for the consideration of a request under section 9 (extension of time for consideration of requests under section 7) of the Principal Act and a decision on a request to which section 29 applies. This is consistent with the discretion the Information Commissioner has at present to accept a late application for other decisions he is empowered to review under section 34.

Section 27 makes three amendments to section 42 (appeal to High Court) of the Principal Act:-

(i) The time for initiating an appeal to the High Court under subsections (1), (2) and (3) of section 42 is extended from 4 to 8 weeks.

(ii) A right of appeal to the Supreme Court is created from a decision of the High Court under section 42. This right applies to any party affected by a review undertaken by the High Court.

(iii) A related amendment clarifies that the Supreme Court may order that some or all of the costs of a person may be paid by a public body if the court considers that the point of law concerned is of exceptional public importance.

Section 28 amends section 43 (precautions by High Court and Commissioner against disclosure of certain information) in providing that the Information Commissioner shall take all reasonable precautions in the course of the performance of his or her functions against disclosing matter that, if it were included in a record, would cause the record to be an exempt record.

Section 29 amends section 46 (restriction of Act) of the Principal Act by inserting new paragraph (da) and (db) in subsection (1). Paragraph (da) restricts the application of the Act to a record relating to the costing, assessment or consideration by a public body of a proposal of a political party. Paragraph (db) restricts the application of the Act to parliamentary briefing records including records created for the purpose of briefing for parliamentary questions (whether oral or written).

Section 30 inserts a new subsection (6A) into section 47 (fees) of the Principal Act. This subsection permits the Minister for Finance to prescribe a fee, by regulation, to be charged by a public body in respect of the making of a request under section 7 of the Principal Act or the making of an application for review under sections 14 and 34. Such fees shall not be charged if the record or records concerned contains only personal information relating to the requester, or as the case may be, the applicant. Fees of different amounts may be prescribed in respect of different classes of requester or applicant.

Section 32 contains the short title and collective citation.

An Roinn Airgeadais
April 2003

19.- (1) A head shall refuse to grant a request under section 7 if the record concerned-

(a) has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose,

(aa) consists of a communication-

(i) between two or more members of the Government relating to a matter
that is under consideration by the Government or is proposed to be
submitted to the Government, or

(ii) between two or more such members who form, or form part of, a group of such members to which a matter has been referred by the Government for consideration by the group and the communication relates to that matter,

(b) is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government, or

(c) contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the Government at a meeting of the Government.

(2) A head shall refuse to grant a request under section 7 if the record concerned-

(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and

(b) is not a record by which a decision of the Government is published to the
general public by or on behalf of the Government.

(3) Subject to the provisions of this Act, subsection (1) does not apply to a record referred to in that subsection-
 

(a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or

(b) if the record relates to a decision of the Government that was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned, or

(c) if the record relates to a communication to which subsection (1)(aa) applies and the communication was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned.

(4) The Secretary General to the Government shall, in each year after the year 2003, furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year under paragraph (b) of the definition of 'Government' in subsection (6).

(5) Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would be contrary to the public interest, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

(6) In this section-

"decision of the Government" includes the noting or approving by the Government of a record submitted to them;

"record" includes a preliminary or other draft of the whole or part of the
material contained in the record;

"Government" (except in paragraphs (a) and (b)) includes-

(a) a committee of the Government, that is to say, a committee appointed by the
Government whose membership consists of-
 

(i) members of the Government, or

(ii) one or more members of the Government together with either or both of the following:

(I) one or more Ministers of State,(II) the Attorney General,

and

(b) a committee of officials-

(i) that is appointed by the Government for the purpose of assisting the Government in relation to a particular matter that has been submitted to the
Government for their consideration,

(ii) that is requested by the Government to report directly to them in
relation to the matter, and

(iii) in relation to which the Secretary General to the Government
certifies in writing at the time of its appointment that it is a
committee of officials falling within this paragraph;

"officials" means two or more of the following persons:

(a) a person holding a position in the Civil Service of the Government or the
Civil Service of the State;
(b) a special adviser within the meaning of section 19 of the Ethics in Public
Office Act 1995;
(c) a person who is a member of any of such other (if any) classes of person
as may be prescribed.

20. (1) A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes).

(1A)(a) Notwithstanding subsection (1), a head shall refuse to grant a request under section 7 in respect of a record in relation to which a Secretary General of a Department of State has issued a certificate in writing stating that the record contains matter relating to the deliberative processes of a Department of State.
 

(b) Where a certificate under paragraph (a) is in force and the Secretary General of the Department of State concerned is satisfied that the deliberative processes concerned have ended, he or she shall, by certificate in writing, revoke the certificate and, thereupon, paragraph (a) shall cease to apply.(c) A certificate under this subsection shall be final and, accordingly, an application for a review under section 14 or 34 in relation to a decision under paragraph (a) shall not lie.(d) A Secretary General of a Department of State shall, in each year after the year 2003, furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year under paragraph (a) and the number of certificates so issued under paragraph (b).

(2) Subsection (1) does not apply to a record if and in so far as it contains-

(a) matter used, or intended to be used, by a public body for the purpose of making decisions, determinations or recommendations referred to in section 16,

(b) factual information,

(c) the reasons for the making of a decision by a public body,

(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 and not being a report used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme.

(3) Subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request.
 

Acts Referred To