1. Rights in relation to Records and Decisions regarding Records Francis Kieran Barrister-at-Law Disclaimer: Nothing in this presentation is intended to be relied upon as constituting legal advice

2. Overview of Topics Addressed The Right to Information and Transparency What public bodies are covered? Control over records Right to assistance in making requests Right to have records amended Internal review and review by Commissioner

3. Why Freedom of Information? “Sunlight is said to be the best disinfectant” - Justice Louis Brandeis, US Supreme Court “We must not let the daylight in upon the magic” - Sir Walter Bagehot, The English Constitution.

4. What is Freedom of Information? FOI is a creature of statute. Contrast with Access to Information on the Environment – an EU obligation. Attempt to circumvent Cabinet confidentiality

5. Principles in FOI decision-making Section 11(3) of the 2014 Act: “An FOI body, in performing any function under this Act, shall have regard to (a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs (b) the need to strengthen the accountability and improve the quality of decision- making of FOI bodies, and (c)the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.” Meaning of “have regard to”.

6. FOI and Freedom of Expression S.P. Gupta v. President of India [1982] AIR (SC) 149: “The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression.... disclosure of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands”.

7. Youth Initiative for Human Rights v Serbia (2013) ECHR 584 An NGO sought information on how many people had been subject to surveillance by intelligence services. Despite the national FOI body ordering release, the information was not provided. In the circumstances, this was held by the European Court of Human Rights to be an interference with freedom of expression under Article 10 of the Convention. The NGO had “legitimately requested information of interest to the general public with the intention of disseminating it and contributing to the public debate”

8. Public bodies: Section 6(1) of 2014 Act 6(1) Subject to this section, each of the following shall be a public body … : (a) a Department of State; (b) an entity established by or under any enactment (other than the Companies Acts); (c) any other entity established (other than under the Companies Acts) or appointed by the Government or a Minister of the Government, including an entity established (other than under the Companies Acts) by a Minister of the Government under any scheme; (d) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government (e) a subsidiary (within the meaning of the Companies Acts) of a company to which paragraph (d) relates; (f) an entity (other than a subsidiary to which paragraph (e) relates) that is directly or indirectly controlled by an entity to which paragraph (b), (c), (d) or (e) relates; (g) a higher education institution in receipt of public funding; (h) notwithstanding the repeal of the Act of 1997 by section 5, and subject to this Act, any entity that was a public body (including bodies or elements of bodies prescribed as such) within the meaning of the Act of 1997 on the enactment of this Act.

9. Public bodies (cont) Exclusion under section 6(3): “An entity specified in Part 2 of Schedule 1, a subsidiary of such an entity or a body directly or indirectly controlled by such an entity shall not be a public body for the purposes of this Act.” AIB, IBRC, PTSB, the VHI, the ESB, Dublin Bus, An Post, Dublin Airport Authority National Lottery among those excluded.

10. Partially Included Agencies Listed in Part 1 of Schedule 1 Not within FOI for certain of their functions which may be confidential, but are with respect to other areas (such as the general administration of the agency) E.g. The “Adoption Authority of Ireland, insofar as it relates to records concerning, or arising from, the making of an adoption order or the recognition of an intercountry adoption effected outside the State” does not fall within section 6. E.g. “the Garda Síochána, other than insofar as it relates to administrative records relating to human resources, or finance or procurement matters”

11. Subsidiaries or controlled entities Section 6(2)(b) of the 2014 Act: (b) A subsidiary of a parent entity, or a body directly or indirectly controlled by a parent entity, shall be a public body for the purposes of this Act but only to the extent that the functions of the subsidiary or other body coincide with those functions of the parent entity that are subject to this Act. A ‘parent entity’ is a partially included agency on the last slide.

12. Public authorities under Access to Information on the Environment NAMA v Commissioner for Environmental Information [2015] IESC 51 More of a functional approach? Although NAMA was obliged to act commercially it had ‘special powers’ which made it a “public authority exercising public administrative functions” for the purposes of the test in C-279/12 Fish Legal [2014] 2 CMLR 36 Note also that in the latter case the CJEU had held that “all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve” were also public authorities for AIE purposes.

13. Control over records Section 2(5) of the 2014 Act: “In this Act a reference to records held by an FOI body includes a reference to records under the control of that body.” Minister v Enterprise Trade and Employment [2006] 4 IR 248

14. Westwood v Information Commissioner [2014] IEHC 375 Company set up by Bray Town Council to operate leisure facilities Commissioner had decided that the council did not control “the day to day operations of the company” Cross J. – “The day to day workings of the company and whether the Notice Party interferes with the day to day operations is of course an important matter. It is not, however, to be taken as definitive.” “’Control’ must include the real strategic control of one entity by the other and the financial nexus between them.” Refers to “the obvious, clear and, in my view, undoubted real control that the Notice Party exercises over Shoreline and thus its records”.

15. Rights to Assistance in making requests Section 11(2): FOI body shall give “reasonable assistance” to a requester “in relation to the making of the FOI request for access to the record”. If the person has a disability, the assistance shall be such “as to facilitate the exercise by the person of his or her rights under this Act”. Section 12(6) and 12(7) – Duty to inform persons of the appropriate statutory mechanism for their information request

16. Right to have records amended Right of “the individual to whom the information relates” to apply under section 9 where information is “incomplete, incorrect or misleading”. Power to delete the information, alter the record or add to it. 4 weeks to say yes or no, and if yes, how the application is to be granted. What about persons who have already received the record under FOI before it was amended? - 1 year to take reasonable steps to (i) bring the amendment to their attention, and (ii) also to bring it to the attention of other FOI bodies.

17. Right of Internal Review Section 21: Within 4 weeks of the decision, the requester for access (or the person seeking amendment of information relating to them) can apply to the “head” of the FOI body concerned, for a review of various decisions including a decision to refuse access to a record. Within 3 weeks after the receipt of the application for the review the head shall affirm, vary or annul the decision, and give notification of this. Under section 20 a head can delegate their functions under the FOI Act to another member of staff. The only powers that can’t be delegated are the power of delegation itself and the power of a Minister to certify that certain records are particularly sensitive

18. Review by the Commissioner 4 weeks to apply to the Commissioner who can affirm, vary or annul the internal review decision. Also you can seek that the Commissioner reviews FOI bodies extending the time for consideration of requests or deferring access. The Commissioner’s Office shall make the decision “as soon as may be and, insofar as practicable, not later than 4 months after the receipt by the Commissioner of the application for the review concerned.” Section 22(8): Right to make submissions.

19. Power of Commissioner to discontinue a review or not accept an application Frivolous or vexatious If the request for review doesn’t relate to the decision the FOI body made The matter to which the application relates is, has been or will be, the subject of another review The applicant has failed to provide the Commissioner with sufficient information or particulars, or otherwise has failed to co-operate with the Commissioner in the conduct of a review There is no longer any issue requiring adjudication, as access to the records in question has been granted by the FOI body in the course of the review The application forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the Commissioner, appear to have made the requests acting in concert, or Accepting the application would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of his or her Office

20. Questions ???