Written answers

Tuesday, 8 April 2014

Department of Public Expenditure and Reform

Freedom of Information Legislation

Photo of Éamon Ó CuívÉamon Ó Cuív (Galway West, Fianna Fail)
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251. To ask the Minister for Public Expenditure and Reform if any review is being carried out on the freedom of information legislation; the main purpose of this review; and if he will make a statement on the matter. [16392/14]

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The Freedom of Information Bill 2013 which passed Committee Stage in the Dail last November and is awaiting Report Stage reflects the outcome of a detailed and comprehensive review of Ireland's FOI legislation.  In overall terms the Bill comprises a substantial updating and modernisation of FOI legislation based on international best practice, it extends FOI to all public bodies, consolidates FOI law into a single Bill as well as restoring the main amendments to FOI introduced in 2003 which in significant respects restricted and curtailed the scope of Ireland's FOI regime.  The Deputy may wish to note, in particular, the following features of the new legislation. 

- The Bill reverses the very wide definition of Government introduced in the 2003 amending legislation

- The strict definition of what constitutes a Cabinet record is also restored.  Communications between members of Government will no longer be exempt from FOI.

- The ten-year prohibition on the release of Cabinet records is being restored to the original five years one of the most liberal provisions on access to Cabinet records internationally

- The mandatory power to refuse an FOI request relating to Government records or records to be submitted to Government introduced in 2003, is removed.

- The power for Secretaries General of Government Departments to certify the existence of a deliberative process with no scope for appeal is being repealed, and the public interest test applying to records relating to the deliberative process is restored.

- The reform of the legislation provides for some liberalisation of the mandatory class exemption put in place in 2003 in relation to diplomatic communications and defence matters. Significant protections for highly sensitive and secret information will be maintained.

- Where a commercial state body provides a service under a contract to a public body subject to FOI, the records relating to that service will now be subject to FOI.

- The Bill extends FOI to all public bodies as a default a reversal of the current position that a public body is included only if it is explicitly scheduled under the Bill.  This will result in a number of long-established high profile exclusions from FOI being brought under the scope of the legislation.

- A key new initiative included in the Bill requires public bodies to prepare and furnish publication schemes consistent with international best practice in this area to promote the proactive publication of information outside of FOI.

- These publication schemes will set out the nature of the information an organisation publishes on its website, which will include extensive information on its nature, role, responsibilities and activities.

- Publication schemes are intended to lead to a proactive disclosure of significantly more information and in a more accessible form than was previously provided under the so-called section 15 and section 16 manuals.

- The publication schemes will also provide for publication of FOI Disclosure logs which will provide information in relation to non-personal FOI requests received by the body. The idea is that as much information as possible will be made available outside of FOI.

- The Bill also allows FOI to apply to non-public bodies that are in receipt of significant funding by the Exchequer by way of Ministerial Order.  This is expected to result in a sea-change in the potential enhanced accountability of such bodies.

- The Bill includes a number of key principles to guide public bodies in the performance of their functions under the Act including the need to achieve greater openness, strengthen accountability and decision making and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

- It contains important extensions of the functions/powers of the Information Commissioner.

- It also introduces a new penalty for a person convicted of the deliberate altering or destruction of records which are the subject of an FOI request.

- There are new provisions to ensure that FOI requests relating to information held electronically are dealt with effectively.

- A very significant measure included in the Bill confirms that there is a general right of access to records held by public bodies and in applying exemptions, the right of access should only be set aside where the exemptions very clearly support a refusal of access.

The FOI Bill will, therefore, once it is enacted by the Oireachtas very significantly strengthen the legal framework for FOI in Ireland. 

In tandem with the development of the FOI Bill, a review of the implementation of the FOI Acts was assisted and informed by the assessment of two expert groups; one of which comprised FOI users, academics and transparency advocates and the other comprising representatives of public bodies.  The purpose of the review was to consider the current implementation of the Act with a view to developing a Code of Practice to address existing challenges in implementing FOI; to strengthen the framework and organisational arrangements for FOI in public bodies;  to better support the implementation of FOI; to achieve greater consistency and uniformity of approach by public bodies in their processing FOI requests than is currently evidenced; to minimise the administrative burden as well as to better co-ordinate, deepen and widen the expertise and capacity of public bodies in FOI.

The deliberations of the review groups have been completed and a draft Code has been prepared.  It is my intention to bring the draft Code to Government for approval shortly following which the draft Code will be published for consultation prior to finalisation on enactment of the FOI Bill.

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