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How private entities may be affected by the new Freedom of Information Act 2014
While previous Freedom of Information (“FOI”) legislation explicitly named the entities which were subject to FOI, the FOI Act 2014 (the “Act”), which was enacted on 14 October 2014, takes a different approach and is more far-reaching. Consequently, under the Act, it will be necessary for an organisation to carefully review the definition of public body to ascertain whether it falls within its remit. Even if it does not, the Act may nevertheless apply to an entity to the extent that it provides a service to an entity that is captured.
In addition, a number of public bodies will now come within the remit of FOI to a limited extent. These include the Central Bank, the National Asset Management Agency (NAMA), the National Treasury Management Agency (NTMA), the National Pensions Reserve Fund Commission (NPRF) and the National Development Finance Agency (NDFA).
Other reforms contained in the Act include revising the fee structure for making FOI requests and increasing the Information Commissioner’s enforcement powers to include the power to apply to the High Court to require an FOI body to comply with a binding decision of the Information Commissioner. In addition, the Act makes it an offence to wilfully alter or destroy records that are the subject of an FOI request.
Capture of private entities and those providing services to FOI bodies
The purpose of Irish FOI legislation is to allow public access to information which is in the possession of public bodies. This helps to maintain public confidence in the use by public bodies of funds and services funded by the State. An “FOI body” is a new umbrella term used to describe an entity covered by the Act, whether it is a “public body”, as defined in section 6 of the Act, or a “prescribed body”, as defined in section 7 of the Act. Accordingly, there has been a move away from listing bodies subject to FOI to the approach of bodies now having to consider if they fall within the relevant definition.
Section 6 of the Act contains a generic definition of “public body” which allows the legislation to apply to all entities that fall within its definition, unless partially or fully exempt under Schedule 1 of the Act. The definition is wide enough to cover a private entity controlled by an entity established by the Government, a Minister of the Government, or Statute (other than the Companies Acts). The Act has retrospective application from 21 April 2008 to public bodies newly covered by its remit. However, these bodies will have a six month lead in time, until 15 April 2015, to make preparations for compliance. This may be extended for a further period of six months, by order of the Minister for Public Expenditure and Reform (the “Minister”).
With regard to “prescribed bodies”, section 7 of the Act allows the Minister to prescribe private entities in receipt of significant State funding as FOI bodies.
The old provision, which deemed records held by service providers to certain FOI bodies to be held by the FOI body itself, is maintained under the Act. This provision, however, has now been expanded to apply to records held by service providers to all FOI bodies. Furthermore, where a commercial state body that is not covered by FOI legislation provides a service under a contract for service to an FOI body, the records relating to that service will now be subject to FOI. The purpose of this is to ensure that records are not removed from the scope of the legislation as a result of FOI bodies contracting out their functions to non-FOI bodies either by way of contract or administrative arrangement.
In summary, the Act is wide enough to capture certain private entities either under the definition of “public body” in the Act or because such entities have entered service contracts or administrative arrangements with public bodies.
Removal of the €15 application fee and introduction of ceiling limits on search, retrieval and copying charges
The Act removes the initial €15 application fee payable for making an FOI request. The Act, however, allows FOI bodies to charge fees for the search, retrieval and copying of records in satisfaction of a request.
The Minister proposes to prescribe, by separate order, a €500 ceiling limit on search, retrieval and copying fees which equates to approximately 25 hours’ work, and an upper limit of €700, which equates to approximately 35 hours’ work. Beyond this, the FOI body may refuse to process the request unless the requester is prepared to refine the request to bring the search, retrieval and copying fees below the €700 limit. Therefore, if search, retrieval and copying fees exceed €500 but do not meet the upper limit of €700, an FOI body may only charge up to €500 for processing the request. A minimum threshold of €100, which equates to approximately five hours’ work, below which no search, retrieval and copying fees may be charged, is also proposed.
Due to the removal of the initial application fee, FOI bodies, particularly those bodies newly covered by the Act, may wish to consider implementing systems to enable search, retrieval and copying fees to be charged. A practical advantage of such a system is that a requester faced with the prospect of paying search, retrieval and copying fees may be prompted to make a more focused request.
Strengthened enforcement powers and the introduction of financial penalties
The functions and powers of the Information Commissioner under the new Act are largely similar to those contained in the old legislation, which include powers to conduct reviews of decisions, investigations into the practices and procedures of FOI bodies and powers to summon witnesses for these purposes. However, the Information Commissioner can now apply to the High Court to require an FOI body to comply with a binding decision of the Information Commissioner where the FOI body has failed to do so. Previously, the Information Commissioner had no such power.
The Act makes it an offence to wilfully and without lawful excuse destroy or alter a record that is the subject of an FOI request. This offence carries with it a fine of up to €4,000 on summary conviction. Accordingly, FOI bodies should review their record retention and destruction policies and, in particular, their protocols surrounding implementation of destruction policies on foot of FOI requests received to ensure that the receipt of FOI requests are promptly communicated within the organisation and that records that are subject to an FOI request are available.
If you would like any further information on the provisions of the Freedom of Information Act 2014 and how it might impact on your organisation, please contact Bríd Munnelly, Carina Lawlor, Michael Byrne or Aoiffe Moran.