This Thursday, 10th January the Joint Oireachtas Committee on Finance, Public Expenditure and Reform will be discussing with Minister Brendan Howlin the General Scheme of the Freedom of Information Bill.
This is a key commitment in the Programme for Government and Labour has long advocated for increased and extended public access to what happens in our Government, public service and agencies that carry out their work on behalf of Irish citizens.
This new law will extend FoI to the administrative side of the Garda SĂochĂˇna and all statutory bodies and agencies. These changes will undo the damage done by the Fianna Fail decision in 2003 to reverse much of the groundbreaking law put in place by the Rainbow Government.
It is also intended that public financial bodies including NAMA, NTMA, NPRF and the NDFA will all be brought within the jurisdiction of the Bill, as well as the Central Bank subject to EU laws and regulations related to the ECB.
Other bodies that are expected to be included are the Office of the Refugee Applications Commissioner and Refugee Applications Tribunal, VECs and non-public bodies benefiting from significant public funding.
The Departmental briefing note is appended below, as are links to the Minister’s press release and a pdf of the general scheme of the Bill.
Freedom of Information Briefing Note
1. Extension of Freedom of Information
1.1 The extension of Freedom of Information to all public bodies will be 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 lacunae in application for new and restructured public bodies.
1.2 Any new exemptions under the Act will be explicitly listed in relation to the individual public body concerned in a Schedule to the Act and will be subject to repeal by Ministerial Order. It is an important priority to maintain strict standards of commercial confidentiality in relation to the public financial bodies to safeguard the financial and economic interests of the State.
1.3 Non-statutory bodies which it is proposed should be subject to the Act will be listed in a separate schedule.
1.4 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 â€“ on account of the potential for negative commercial effects which could impact adversely on their competitive standing and commercial performance to safeguard the Stateâ€™s economic and financial interests.
1.5 A corresponding high level of protection will be provided for the Defence Forces for records relating to highly sensitive security and intelligence records as has been provided to An Garda SĂochĂˇna.
2. Application and Retrospection Date
2.1 Sufficient lead-in time will be required post-enactment of the legislation to allow public bodies to prepare for the introduction of Freedom of Information.
2.2 Decisions on the effective date for Freedom of Information in terms of its retrospective effect for non-personal 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, it is proposed to retain these amendments.
3.2 It is also proposed to include a significant number of additional provisions to improve the operation of the Act based on the Information Commissionerâ€™s proposals included in her Commentary of March 2007.
3.3 The Ministerâ€™s proposals in relation to the substantive changes to Irelandâ€™s Freedom of Information regime introduced in 2003 are summarised below:-
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.
See content of Press Release.
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. It is proposed to repeal these amendments.
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 negotiations between States, or containing analysis, opinions or advice relating to negotiations, and for information relating to intelligence in respect of security or defence of the State and confidential communications containing information the disclosure of which is prohibited.
It should be noted that exemptions are also being proposed for the Defence Forces under section 46 of the Act in relation to security/intelligence records related to specific enactments in line with those being provided for An Garda SĂochĂˇna.
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 DĂˇil and Ministerial statements made to Oireachtas committees represent the strongest and most significant form of constitutional accountability of Ministers to the DĂˇil 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 DĂˇil.
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 â‚¬75 to â‚¬30 and fees for appeal to the Information Commissioner are being reduced from â‚¬150 to â‚¬50.