Freedom of Information Act reform is welcome
Bill shows change of emphasis towards release but interpretation will be key
In addition, a whole raft of public bodies come under the ambit of FOI for the first time, including An Garda Síochána, Nama, the Central Bank, and the National Treasury Management Agency. However, while this is a welcome step forward, there are limits on what can be accessed, some of them very restrictive. For example, in relation to the Garda, only administrative records relating to human resources, finance or procurement matters will be accessible, and a number of its more sensitive units (including the Emergency Response Unit and the Special Detective Unit) are not amenable to FOI requests under any circumstances.
In the Defence Forces, there is no longer a full exemption for records detailing tactics, strategy or operations. They will not be subjected to a “harm test”.
The office of the President is still exempt from FOI, as are 38 commercial State companies including Bord Gáis, ESB, Bord na Mona, VHI, Tourism Ireland, CIE, the port companies, waterway companies, Eirgrid and Coillte. Interestingly, Dublin Bus and Bus Éireann are exempt but not Iarnród Éireann, which seems a little anomalous. The blanket exemption seems a bit restrictive.
A possible new restriction is that a request may be refused on administrative grounds if it interferes or disrupts the operation not only of the whole body or department involved but of a unit or division of that body. On the face of it, that would seem to make a refusal easier.
Change of emphasis
Overall, there is a change of emphasis apparent in the Act, with a presumption towards release and a right of access to records. How successful that aim will be depends on the manner in which the legislation is interpreted, firstly by the decision-makers within departments and agencies and ultimately by the Information Commissioner.
The current commissioner, Emily O’Reilly, has been a robust advocate of the Bill being presumptive towards information being released.
Ms O’Reilly has been appointed as the new Ombudsman for the EU, and it will fall to her successor to determine how robust the legislation will be in allowing citizens, journalists and other interested parties gain access to records and information held by the State and its agencies.