The Freedom Of Information Bill 2013

On 24 July, 2013, the Minister for Public Expenditure and Reform (the "Minister") published the Freedom of Information Bill 2013 (the "Bill"). The Bill will repeal and replace the Freedom of Information Acts 1997 and 2003 (the "FOIA"), and proposes that most regulations made under the FOIA will cease to have effect.

As well as consolidating, modernising and updating FOI legislation generally, the explanatory memorandum states that its purpose is to:

remove the main restrictions on access to official information introduced by the Freedom of Information (Amendment) Act 2003 (the "2003 Act"); extend FOI to all public bodies; and provide a framework for the extension of FOI to non-public bodies receiving significant funding from the Exchequer. This article summarises the main changes and also the next steps for this legislation.

FOI Bodies

Public Bodies: Perhaps the most significant change proposed is that all "public bodies" will be "FOI bodies" unless specifically exempt.

The meaning of "public body" is in section 6(1), providing that certain entities shall be public bodies, including Departments of State, bodies established by enactment (other than the Companies Acts), and higher education institutions receiving public funding.

Also, unless otherwise provided, all bodies listed as public bodies in the First Schedule to the FOIA, or standing prescribed as such on the date the Bill is enacted, will continue to be public bodies, and therefore FOI bodies.

Further, and somewhat confusingly given the above 'catch-all' for current public bodies, section 54 specifically "saves" three regulations made under the FOIA prescribing certain public bodies1.

Prescribed Bodies: Under section 7, the Minister can prescribe non-public bodies that receive significant funding from the Exchequer as FOI bodies, in whole or in part.

Exempt Agencies: The Bill proposes that most commercial State bodies will be fully exempt from FOI, such as An Post, Bord Gáis, Dublin Bus, Coillte, ESB and, controversially, Irish Water, and school boards of management.

Partially Included Agencies: Certain bodies will be 'FOI-able' in part only. These include the Adoption Authority, the Central Bank of Ireland, the Garda Síochána, the Insolvency Service of Ireland, the Mental Health (Criminal Law) Review Board, NTMA, NAMA, the various Ombudsmen and the Equality Tribunal, the Labour Relations Commission and the Labour Court.

Restriction of the New Act: As with the current FOIA, the Bill exempts certain records from the application of FOI, including records held by the Criminal Assets Bureau and records relating to the President, inquiries by a Tribunal of Inquiry and the private papers of Oireachtas members. Also excluded are certain records held by the Courts, the Defence Forces, the Central Bank of Ireland, the Garda Síochána, the Attorney General, the DPP, and the Comptroller and Auditor General.

The Bill provides a six-month lead-in time for new bodies coming under FOI.

Records

The definition of "record", which is perhaps the most fundamental FOI term, has been updated and modernised to include (i) material in any electronic device or in machine readable form, and (ii) mechanical or electronic devices in which visual images or other data are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced.

An "electronic device" is also defined as including "any device which uses any electrical, digital, magnetic, optical, electromagnetic, biometric or photonic means, or other forms of related technology, or any combination thereof, to store or transmit data, or both store and transmit data".

Arguably, whilst this modern definition brings clarity, it may not mean much practical change as the previous definition of the term was broad enough to cover any thing which held or stored information electronically.

Exemption...