Download Public Interest Test

FOI Act 2014 - Exemptions
Sinéad Byrne
AllOne Corporate Solutions Ltd.
25.06.2015
AllOne Corporate Solutions Ltd.
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Long Title of the FOI Act
“An act to enable members of the public obtain access, to the
greatest extent possible consistent with the public interest and
the right to privacy, to information in the possession of public
bodies, other bodies in receipt of funding from the State and
certain other bodies…”
Start with assumption that records will be released in full and
work back from there
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Schedule 1
• Up to 13th October 2014 Schedule 1 was the list of bodies
covered by the FOI Acts 1997 & 2003
• Revised Schedule 1 in FOI Act 2014
• Now all public bodies covered by FOI unless they are
included in Schedule 1, Part 1 or Part 2
• 70 new bodies under the Act – effective date 14th April 2014
• Some partial inclusions and some exclusions
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Schedule 1
• Part 1 – partially included Agencies
• Includes Central Bank, NAMA, NTMA, OIC, Data Protection
Commissioner, Labour Relations Commission, Labour Court,
Ombudsman, etc.
• Part 2 – excluded Agencies
• Includes Allied Irish Banks, An Post, DAA, National Lottery,
Bus Eireann, VHI, etc.
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Exemptions
• Exemption – when an FOI body decides not to release a
record
• Various provisions under the FOI Act to withhold records in
certain circumstances (Sections 28 to 41)
• Some mandatory – “shall”; some discretionary – “may”
• Public interest test applies to some exemptions
• Harm test applies to some exemptions
• Decision Maker & Internal Reviewer must address all
elements of the exemption they are relying upon
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Justifying your decision
Section 22 – Review by the Commissioner of decisions
Section 22(12)(b) states:“In a review under this section –
(b) A decision to refuse to grant an FOI request shall be
presumed not to have been justified unless the head
concerned shows to the satisfaction of the Commissioner that
the decision was justified.”
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Harm Test
• Arises in various sections of the FOI Act 2014
• Be aware of the wording used in the exemption sections
• “Reasonably be expected to”
• “Significant, adverse effect”
• “Affect aversely”
• Must demonstrate in your decision letter that the risk of
harm is real
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Public Interest Test
Definition of the public interest:“embracing matters, among others, of standards of human
conduct & of the functions of government & government
instrumentalities, tacitly accepted & acknowledged to be for
the good order of society and for the well being of its
members” Jeanes & Kalgoorlie Regional Hospital & Ors (D00395), Eccleston
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Public Interest Test
• Section 29 (Deliberations of Public Bodies)
• Section 30 (Functions & Negotiations of Public Bodies)
• Section 32 (Law Enforcement & Public Safety)
• Section 35 (Information obtained in Confidence)
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Public Interest Test
• Section 36 (Commercially Sensitive Information)
• Section 37 (Personal Information)
• Section 39 (Research & Natural Resources)
• Section 40 (Financial & economic interests of the State)
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Public Interest Factors
Factors favouring release:• Exercising rights under FOI
• Public interest in openness to scrutiny and transparency of
FOI bodies particularly in relation to decisions, spending of
public funds, etc.
• Public interest in officials being held to account for decisions
they make
• Public interest in ensuring effectiveness and efficiency of
public bodies
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Public Interest Factors
Factors favouring withholding:• Protecting the ability of FOI bodies carrying out certain
functions without undue intrusion
• Protecting the privacy of individuals/third parties
• Public interest in protecting investigations in progress and
not prejudicing the outcome of such investigations by the
premature release of records
• Public interest in protecting the ability of FOI bodies to
achieve value for money in procurement procedures
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Public Interest Considerations
• When relying on any of the listed exemptions, Decision
Maker must address the public interest factors relevant to
the records under consideration
• Must list the factors favouring release and those favouring
the withholding
• Must balance the factors i.e. state how the public interest is
best served – by release or by withholding
• Must all be included in the decision letter
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Section 38 Consultation
• Requirement to consult under Section 38
• Applies where, having balanced the public interest, the
Decision Maker finds in favour of release
• Only arises under Section 35, 36 and 37
• Third party consultation
• Formal procedures
• Must adhere to the timeframes
• No internal review – appeal directly to OIC
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Meetings of Government (S28)
• To protect documents created for consideration by a
Minister or the AG and records of the Government
• Discretionary – “may”
• Mandatory protection for “statement made at a meeting of
the Government” – “shall”
• Constitutional protection for such documents
• No public interest or no harm test
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Deliberations of FOI bodies (S29)
• Protects the deliberative processes of an FOI body
• Includes opinions, advice, consultations, etc.
• Where granting would be contrary to the public interest
• And, the requester “would become aware of a significant
decision that the body proposes to make”
• Discretionary exemption – “may”
• Must address the public interest test
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Functions & Negotiations (S30)
• Protects core functions of FOI bodies – tests, examinations,
inquiries or audits and methods of investigation; functions
relating to management (including industrial relations and
management of its staff) and negotiation positions
• Discretionary exemption – “may”
• 2 Harm Tests – “reasonably be expected to” and “significant,
adverse effect”
• Must meet the threshold of the Harm Tests in decision letter
• Must address the public interest test
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Parliamentary, court & certain
other matters (S31)
• Protects legal professional privilege, dominant purpose of
litigation
• Protects also private papers of member of European
Parliament or Local Authority; opinions, advice etc.
considered by Oireachtas for proceedings at either House
• Mandatory exemption – “shall”
• No public interest test
• Discretionary exemption for records relating to Tribunals
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Law enforcement &
public safety (S32)
• Prejudice or impair certain functions – prevention, detection
or investigation of offences; compliance with any law;
fairness of criminal proceedings and security of various
institutions (prisons, Central Mental Hospital, etc.)
• Endanger the life of safety or a person
• Facilitate the commission of an offence
• Discretionary exemption
• Public interest and Harm Tests apply
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Law enforcement &
public safety (S32)
• Significant amendment to this section in 2014 Act
• Removal of provision to withhold information that could
“reveal or lead to the revelation of” a source of confidential
information
• Now in Section 42 – “This Act does not apply to….”
• Stronger protection for such information
• Remember to separate the information– information given in
confidence and information that could reveal the source of
confidential information – two separate things
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Security, defence &
international relations (S33)
• Protects records re security or defence of the State; matters
relating to Northern Ireland and international relations
• Discretionary exemption – “may”
• No public interest test
• Harm tests x 2 – “reasonably be expected to” & “affect
aversely”
• Part mandatory exemption – confidential communications
between States and where release may “affect aversely the
international relations of the State”
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Conclusiveness of certain decisions
pursuant to Section 32 & 33 (S34)
• Ministerial certificate to protect a record where it is “of
sufficient sensitivity or seriousness”
• Protects the record from release – no internal review, no
appeal to OIC
• Provides for the review of each Certificate issued under this
section
• Not widely used – currently 10 certificates in force (7 Justice
& Equality, 3 Foreign Affairs & Trade)
• Reported each year in OIC annual report
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Information obtained in
confidence (S35)
• Part 1(a) provides protection for information given in
confidence
• Public interest test applies
• Does not apply to records created by a staff member of an
FOI body
• Part 1(b) protects records where release would “constitute a
breach of a duty of confidence” – enactment or agreement
• No public interest test
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Information obtained in
confidence (S35)
• Both parts are mandatory exemptions – “shall refuse”
• If public interest factors are balanced in favour of release
(S35(1)(a)), obligation to formally consult under Section 38
• Must follow consultation procedures
• When taking information in confidence, confirm with source
whether they wish to withhold their identity
• Remember also the subject of any complaint has a right to
know what they are being accused of
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Commercially sensitive
information (S36)
• Protects trade secrets; “financial, commercial, scientific or
technical information or other information” where disclosure
could result in material financial loss or gain or prejudice
competitive position; information that could prejudice the
conduct or outcome of negotiations
• Mandatory exemption – “shall”
• Some exceptions e.g. where records relate to the requester,
the person gave consent, they were told when giving
information that it would be made available
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Commercially sensitive
information (S36)
• Public interest applies
• If balance finds in favour of release formal consultation
under Section 38 applies
• Harm test – “reasonably be expected to” in S36(1)(b)
• Inform tender applicants that certain information may be
released
• Invite them to identify commercially sensitive information
when submitting their tenders
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Personal Information (S37)
• Personal information is always exempt…..unless
• Requester seeks own records; gives consent; information is
in the public domain; person informed when giving the
information that it would be made available; necessary to
avoid “a serious and imminent danger to the life or health of
an individual”
• Mandatory exemption – “shall”
• Public interest test applies
• Section 38 consultation applies if favouring release
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Personal Information (S37)
• Provisions for parents/guardians to act on behalf of children
or person with incapacity
• Provision for access to deceased persons records
• Both comprehensively dealt with in the Guidance Notes
• Decision must always be in the best interests of the subject
of the records
• Can take motive of requester into account
• Must remember High Court and Supreme Court precedents
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Personal Information (S37)
• For medical, psychiatric or social work data, provision to
refuse if release “might be prejudicial to his or her physical
or mental health, well-being or emotional condition”
• Release through “such health professional having expertise
in relation to the subject-matter of the record as the
requester may specify”
• Difference between Data Protection and FOI – DP refuse if
release could cause harm
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Personal Information (S37)
• Very complex area
• Decision Maker must fully inform him/herself of all the
circumstances
• Use the Guidance Notes
• Consult with Health Professionals
• Make decision based on the best interests of the subject of
the records
• Record reasons for decision
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Research & natural resources (S39)
• Provides a refusal if record contains information in relation
to research and disclosure would be likely to result in
“serious disadvantage” to researcher or FOI body, or
• Disclosure could “reasonably be expected to” prejudice the
well-being of a cultural, heritage or natural resource or a
species or flora or fauna
• Discretionary exemption – “may”
• Public interest test applies
• Remember Access to Information on the Environment
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Financial & economic interests
of the State (S40)
• Release “could reasonably be expected to”…
• Have a “serious, adverse effect” on the ability of
Government to manage the economy or financial interests of
the State, or
• Premature release could result in “undue disturbance to the
ordinary course of business”, or
• Release could negatively impact investors, research or
industrial development strategy
• Result in “unwarranted benefit or loss” to person(s)
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Financial & economic interests
of the State (S40)
• Harm test relevant to each of the four sections (a) to (d)
• Additional Harm Test in (a) – “serious, adverse effect”
• Must address this in decision if relying on this exemption
• Discretionary exemption – “may”
• Public interest test
• Subsection 2 lists particular records to be conscious of
including rate of exchange; taxes; interest rates; securities or
foreign currency; wages, salaries or prices, etc.
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Enactments relating to
non-disclosure (S41)
• Refuse if disclosure is prohibited by EU law or any enactment
(except those in Schedule 3) or if non-disclosure is
authorised by enactment in certain circumstances and those
circumstances apply to this case
• Mandatory exemption – “shall”
• No public interest test
• All non-disclosure provisions must be reviewed and report
back to Government and OIC
• OIC may give opinion on appropriateness of such provisions
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So remember…
• Find the appropriate exemption section
• Address all the relevant provisions of the section(s)
• Use the resources available – CPU & OIC websites
• You must justify your decision to withhold any information
• Do it right the first time – scope, schedule, decision, etc.
• Requirement to publish all non-personal requests under
Section 8 Publication Scheme
• Release as much as you can!
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Publication Scheme – Section 8
• Draft Model Publication Scheme circulated as part of a
consultation process by CPU (response due by 18.06.2015)
• Publication Scheme replaced the old Section 15 & 16
Manuals
• “The Minister is of the view that FOI bodies should publish as
much information as possible in an open and accessible
manner on a routine basis outside of FOI, having regard to
the principles of openness, transparency and accountability
as set out in Sections 8(5) and 11(3) of the Act.”
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Purpose of Publication Scheme
• Allowing public access to information held by the FOI body
• The publication of reasons for decisions made by the FOI
body, and
• Publishing information of relevance or interest to the general
public in relation to its activities and functions generally
• Information should be published as per model scheme on
the website
• A written copy must be maintained “at the body’s Head
Office” for viewing
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Updating the Publication Scheme
• It should be published not later than 6 months after the
Minister has approved the Scheme
• It should be reviewed and updated not later than 3 years
after it is made and every 3 years thereafter
• Material should be reviewed and revised at least on an
annual basis
• Providing a link to access the information is sufficient
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Publication Format
To be published in tabular form under the 6 headings:1. Information about the FOI body
2. Functions & Services provided or to be provided
3. Decision Making procedures
4. Financial Information
5. Procurement
6. Information sought routinely & miscellaneous
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1. Information about the FOI body
• Background to the FOI body, its establishment, Memos &
Arts, etc.
• Roles and responsibilities including legislative responsibilities
• Boards and membership
• Structure including organisational chart (down to AP level)
• Contact details
• Details of Service Level Agreements
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2. Functions & Services provided
or to be provided
• Details of the services provided
• How to access the services, leaflets, criteria, etc.
• Fees & charges
• If records can be purchased from the body, all the details
about how, where, etc.
• Any public consultations underway
• Significant research projects being undertaken
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3. Decision Making procedures
• Information about grants or schemes – rules, procedures,
rights, benefits, penalties, etc.
• Right of review or appeal
• Timelines for the administration of the schemes
• Timelines for the review or appeal processes
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4. Financial Information
• Financial statements including annual accounts or update
statements
• Details of spending on capital projects
• Quarterly details of purchases of goods or services costing
over €20k
• Board member remuneration (travel & subs, etc.)
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5. Procurement
• Procurement policies & procedures
• Details of current tender competitions
• Quarterly details of public contracts awarded (including minitender awards) for values of over €25,000 (ex VAT) including
•
•
•
•
•
•
Details of whether it is a single award
Name of winning contractor and legal address
Value of contract (ex VAT)
Type of contract
Award date
Duration and brief description of contract
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6. Information sought routinely &
miscellaneous
• Annual reports
• Disclosure log of non-personal FOI requests
• Evaluation & inspection reports
• Reports on operation of services by the FOI body
• Customer Charters or Codes
• Information released on a regular basis e.g. minutes of
meetings, staff expenses, Ministers’ diaries, staffing levels,
monies spent on training, etc.
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Thank you for listening
Questions?
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