FOI reform – what is proposed?

Two of the more significant changes made by Fianna Fail to the FOI Act in 2003 were: the introduction of charges for FOI requests and appeals, and the lengthening of the five year rule to ten years under Section 19 of the Act, among others. Indeed the latter proved particularly controversial at the time because the five years were set to begin to expire in 2003. Though government records including Cabinet records began to become available in 2008.

But having reneged on the promise over removing the fees, what is the Government now proposing to make good on? They’ve given us some details in advance of the legislation being published. So here is what we know:

1) The prescriptive list of bodies subject to the Act is to go. Instead will come a broad definition of what a public body is, perhaps akin to the AIE legislation (though what that wording itself means is going through the High Court in relation to NAMA vs the Commissioner for Environmental Information).

2) Any new exemptions will be listed in a schedule with the Act in relation to certain public bodies. This can be added to via Ministerial Order rather than amendment.

3) Non-statutory bodies that the Minister chooses to fall under FOI and don’t fall under the public body definition in 1) will be listed in a separate schedule.

4) It is not proposed that the Freedom of Information Act will be extended to commercial state bodies – other than where they provide services on behalf of public bodies. This means that CIE, Bord Gais, the ESB, Bord Na Mona and others will remain outside FOI. The stated reason for this is commercial sensitivities – a rather spurious reason given Section 27 of the Act.

5) There will be a lead-in time before new bodies come under FOI, to allow them prepare for the change. The retrospective nature of access to non-personal records will depend on the body concerned.

And now for individual Sections:

Section 6 (11) (b)
This is a repeal of a section added in 2003. It *seems* technical in nature.

Section 19 Meetings of the Government
The Minister seems to be proposing either to amend or repeal this portion – (3) (b) refers to the 10 year period after which Government records can be obtained. The Minister wants to bring it back to five years, as per the 1997 legislation. This is partially fulfilling the promise to restore FOI to the pre 2003 position.

Section 20 Deliberations of public bodies
In 2003 this section was strengthened by allowing the use of certificates to say the deliberate process was ongoing. This meant that no appeal was possible in relation to the records sought. The proposal is the repeal the amendments made in 2003.

Section 24 Security, defence and international relations
The proposal is to narrow the scope of mandatory exemptions (often used in relation to Northern Ireland related records) and also to restore the harm test that existed in the 1997 legislation. The note says: “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 negotiations between States.” It will be extended to the Defence Forces, it appears via 2) above.

Section 46 Restriction of Act
The proposal here seems to only related to (d) (a) “a record held by a public body relating to the costing, assessment or consideration of any proposal of a political party carried out for or on behalf of that party”. The proposal is to repeal, which should mean (I think) that the position where written promises made to independent TDs while a coalition is being formed will now be subject to the Act.

Section 47 Fees
This section will remain (specifically (6)(a)), and the Minister will retain the power to increase or decrease fees via Ministerial Order. It is proposed the fees will be changed via Ministerial Order/SI, and not by amendment. The Minister has chosen to retain the €15 upfront fee for non-personal requests, while reducing internal review to €30 and appeal to the commissioner to €50.