HomeRegulatoryThe Freedom of Information Bill 2012

The Freedom of Information Bill 2012

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The Freedom of Information Bill 2012 (the “Bill) is one of the Governments legislative priorities for 2013. If the Bill is enacted, it will repeal and replace the current Freedom of Information Acts 1997 and 2003.

Under the current regime people have a right of access to records held by may public bodies, such as Government Departments and Local Authorities. Under the new Bill it contains a general definition which is intended to capture all public bodies. A further point to note, is that the Bill also contains a provision which allows bodies in receipt of large amounts of funding from the State to be included by way of Ministerial Order. According to Minister for State, Brian Hayes, it is the aim of the Bill, “to ensure all statutory bodies and all bodies significantly funded from the public purse are covered under the legislation”.

If a dispute arises, as to whether a body comes within the remit of the Bill, the dispute shall be referred to the Minister for Public Expenditure and Reform, whose determination shall be binding.

The Bill will have wide ranging implications for many public bodies. The Central Bank, NAMA and An Garda Siochana, are some of the bodies that will be subject to the new Bill. While it is proposed that the Bill will apply to the Central  Bank, this is only in so far as the records are not subject to professional secrecy obligations under the European System of Central Banks Stature of EU Financial Services Directives. The European Central Bank decision dated 4 March 2004 (ECB/2004/3) explains the type of information to which professional secrecy obligations apply, and questions whether the disclosure of specific information would threaten the protection of:

  • Commercial interests;
  • Court proceedings and legal advice;
  • Investigations and audits.

However, Section 46 sets out a number of restrictions to the Bill. For example, the Bill will not apply to the Criminal Assets Bureau, and certain records held by the Garda Siochána and the Defence Force in relation to security. The Minister will also have the power to declare that specific public bodies are entirely exempt from the Freedom of Information Bill 2012 for security reasons.

There is already a significant backlog in the Information Commissioner dealing with complaints that will only increase once the Bill is enacted. It remains to be seen whether the new regime will provide greater openness and transparency into the system. It will only be when requests start being received by bodies such as NAMA and the Central Bank that it will become apparent whether their inclusion is meaningful or not.

By Seán Groeger, Solicitor