What is the purpose of the Acts?
The purpose of the FOI Acts is explained in the lengthy title of the Freedom of Information Act, 1997, which reads as follows:
'An Act to enable members of the public to obtain access, to the greatest
extent possible consistent with the public interest and the right to privacy,
to information in the possession of public bodies and to enable persons
to have personal information relating to them in the possession of
such bodies corrected...'
The Freedom of Information Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003 , is designed to provide as much of a right of access as possible to information held by public bodies. By making certain exceptions, the Acts seek to achieve a balance between the right to access and the right to privacy and the public interest in maintaining confidentiality.
What information can I ask for?
The scope of the Acts is very broad. You can ask for the following types of records held by government departments or government bodies:
- Records relating to you personally.
- All other records created after 21 April, 1998.
A record can refer to a paper document, information held on a computer, printouts, maps, plans, microfilm, microfiche, audio visual material, and so forth.
You can seek information held by public bodies and by ministers in their capacity as heads of departments. You can also seek records relating to departmental matters in which ministers, ministers of state, their advisers and civil servants have been involved. However, there are a number of exemptions under which requests for information can be refused.
What are the exemptions?
Exemptions address a wide range of areas and, where appropriate, offer confidentiality for material such as the following:
- Cabinet documents, related briefings and records of certain committees.
- Deliberations and negotiations of public bodies.
- Records relating to law enforcement, security, international relations and Northern Ireland.
- Records whose release might damage the economic interests of the State.
- Third-party information, such as information received in confidence, personal information and commercially sensitive information.
- Records subject to legal professional privilege, and certain matters relating to the courts, the Oireachtas and tribunals.
- Records relating to research and natural resources.
Remember that most of the exemptions are designed to protect information only where its disclosure would be likely to cause damage to the particular matter involved. Most exemptions, but not all, do not apply if, on balance, the public interest would be better served by granting access to the records.
What is 'personal information'?
Personal information refers to information about a person that would normally be known only to that person or to their family members. It also includes information about an individual held by a public body on the understanding that it will be treated as confidential. The Acts provide several examples of what can be considered personal information.
There are a number of protections in the Freedom of Information Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003 in relation to the release of personal information. These include a requirement on the part of a public body to consult with the person to whom the information refers prior to its proposed release to a third party. If the body still proposes to release the information to a third party, the individual may appeal this decision to the Information Commissioner .
Do the Acts apply only to records created from 21 April 1998?
In the case of policy papers and similar records, the Acts normally apply only to records created from 21 April 1998 onwards. A record created before that date can be accessed if it is necessary to understand material created subsequently, or if the Minister for Finance makes regulations providing access to earlier records. Generally speaking, you have a right to obtain personal information relating to yourself, regardless of when it was created.
Who decides whether to grant requests?
In the first instance, decisions on requests under the Acts are made by the head of the relevant public body. In the case of a government department, this is the relevant minister. However, in practice it is not possible for a Minister to examine and decide on each request received by a department, as requests must normally be dealt with within four weeks. For this reason, the Acts provide for the delegation of decision making on requests. If the initial decision to refuse a request is made by an official under a delegation, you can first appeal the decision by way of internal review within the department, either to a more senior official or to the minister.
Can I appeal against a refusal to provide information?
Yes. If you are dissatisfied with the decision on an FOI request, you can ask the department or public body for an internal review of the decision. A more senior officer then reviews your application, and you are told the result of this within three weeks. If you are not happy with the decision made after the internal review, you can appeal to the Information Commissioner.
The Office of the Information Commissioner was established by the Acts as an independent body to review refusals of requests for information and related matters. The Commissioner's findings are binding on the parties concerned, and subject to appeal to the High Court on a point of law. Generally, you can make an appeal to the Commissioner only where you have first availed of an internal review. Where there is no delegation in place and your request has been refused at the outset by a minister, you can appeal directly to the Information Commissioner for a review.
Can the Information Commissioner review all decisions on all requests?
Under the Acts, the Commissioner, Ms. Emily O'Reilly , has broad powers to examine documents and summon witnesses, in order to determine if material is exempt. However, in certain areas, where a matter is exempt and of sufficient seriousness or sensitivity, a minister may issue a certificate to this effect. These areas are as follows:
- Deliberations of Departments of State
- Law enforcement
- Security
- International relations
- Northern Ireland
Where such a certificate is issued, the decision to refuse the information cannot be reviewed by the Commissioner. Instead, the matter may be reviewed by other members of the Government or by the courts in the case of a point of law. It is anticipated that the use of ministerial certificates will be extremely rare.
