| Making use of the Freedom of Information Act |
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| The Freedom of Information Act, 1997, which came into operation on 21 April, 1998 is a landmark statute. For the first time, individuals and businesses are given a general statutory right of access to information held by public bodies, including their personal files. Niall Michel says businesses in Ireland are well advised to make use of this facility sooner rather than later, for their own competitive advantage. |
In one fell swoop, the culture of secrecy which previously characterised the Irish public service has been officially swept away and replaced with a ‘right to know’. Ireland is following the lead of many other countries which already had freedom of information legislation (sometimes known as ‘sunshine government’) such as the US, Canada, Australia and New Zealand.
The new Act gives members of the public access, not only to information, (including any personal information or files) but also to the internal rules followed by such bodies in their dealings with the public. In addition, the Act gives people the right to have any personal records corrected.
Moreover, where a person is materially affected by any decision of a public body he has the right to obtain the reasons and the facts underpinning the decision.
The information which must be disclosed under the Act is extensive. The Act provides a statutory right of access to ‘records’ held by public bodies, the definition of records being a wide-ranging one, including everything from simple handwritten memoranda to videotapes and e-mail messages.
However, the right of access to information is not open-ended. The Act also lists ‘exempt records’ to which public bodies may refuse to grant access. Records of meetings of the Government; the deliberations, functions and negotiations of public bodies; records concerning parliamentary and court matters; law enforcement and public safety records; security, defence and international relations records; information obtained in confidence; commercially sensitive or personal information; and information relating to research and natural resources or the financial and economic interests of the State and of public bodies, all fall into the ‘exempt’ category.
The list seems endless. However, many of these exemptions must pass ‘harm’ and/or ‘public interest’ tests before they take effect. Thus, a public body will have to consider whether disclosure would have a specific harmful effect and/or whether the public interest would be better served by granting than by refusing to grant the request for access before withholding material from a requester. It is thought that the very fact of granting a request is a public interest consideration which a head of a public body may bear in mind when considering how best the public interest might be served in any given case.
Secondly, the Act applies only to records which were created after the coming into operation of the Act. Access to ‘pre-commencement’ records is, however, possible where (a) such access is necessary or expedient in order to understand records created after commencement or (b) such records relate to personal information about the requester.
The Act applies only to records held by what it calls ‘public bodies’. These bodies are specifically listed in the First Schedule to the Act or added by Order. Therefore, if a person wishes to request access to information from a particular body, he or she must first of all check whether the body is listed in the Act or has been prescribed as having the Act apply to it by Order. Apart from the various Government Departments, the Act applies to 49 other bodies (including, for example, An Bord Pleanala, the Competition Authority, the Revenue Commissioners, the Patents Office and the Defence Forces) and to all the health boards and local authorities.
Not only do the various public bodies have to grant requests for access in appropriate cases, but they must also help members of the public make use of the Freedom of Information Act by publishing reference books, explaining their structure, organisation, functions, powers and duties. This reference book must also give a description of the services provided by the relevant bodies and of the procedures they follow in providing them.
The public bodies covered by the Act are also statutorily required to make available a general description of the classes of records held by them and of the arrangements made by them to enable people to obtain access to their records. They must also publish the names and designations of the staff members responsible for carrying out the arrangements, the address or addresses at which requests should be made and appropriate information regarding rights of review or appeal). Many public bodies have included this information on their web sites as well as having it in hard copy form.
The Act, not unreasonably, provides that access may only be granted to records ‘held’ by a public body. This means any records which are either physically held by the body or are under its control. Interestingly, the Act also provides that a record in the possession of a person who is or was providing a service for the public body under a contract for services will, if and so far as it relates to the service, be deemed for the purposes of the Act to be held by the body.
It should be borne in mind that, the Act is not interested in the reason(s) behind the making of a request for access and, assuming it holds the record concerned, the only factors a public body can take into account in deciding whether to refuse to grant a request for access are whether the record is (a) a pre-commencement record or (b) an exempt record.
The Act also lays down the time limits within which requests for access to information and internal reviews must be dealt with. These will be contained in the reference book already mentioned. The Act also provides for an appeal to an independent Information Commissioner, who can affirm or vary the decision of the body or he can annul the decision and, in appropriate cases, substitute his own.
The use which might be made of the Freedom of Information Act by businesses depends on the imagination of those making requests. In the first instance, a business should make itself aware of the public bodies which come under the Act’s umbrella and then form a view as to whether any information held by these bodies might be of use to it.
The next step is to refer to the reference book made available by the body or bodies identified as potentially holding useful information in order to find out (a) what classes of record are held by the body or bodies in question, (b) how to make a request for access and (c) the procedures and time frames involved.
Having established that a public body holds potentially useful information, the business will then make a request (or have one made on its behalf) to the body concerned. The format of making a request is set down by the Act and simply involves writing to the body or bodies concerned, stating that a request is being made under the Act, specifying the information concerned and the form or manner in which access is sought (for example, photocopies, transcripts, computer disks, a recording, an opportunity to hear or view a recording and so on). A fee may be charged by the body or bodies involved and this will be set out in the reference book.
The Act will clearly be of interest to those businesses dealing with the public sector but will also be of interest to those seeking information for other purposes. Access may now be sought to a huge variety of information held by public bodies which will help businesses identify policies, make more effective and focused decisions, yield certain intelligence on competitors, isolate commercial opportunities and generally obtain the inside track on the public bodies covered. |
Niall Michel, a barrister, is a senior member of the commercial department at Mason Hayes & Curran, Solicitors.
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| Article appeared in the January 1999 issue.
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