Reform of FOI (IE0013)

A comprehensive reform of Ireland’s Freedom of Information legislation will be implemented through the FOI Bill 2013 and the establishment of a Code of Practice for FOI as referenced above. Key actions in the legislation will include: Substantial updating/modernisation of the legislation based on international best practice Extension of FOI to all public bodies as a default with limited exceptions as set out in the Bill bringing long-established high profile exclusions from FOI within remit; and to significantly funded bodies to enhance accountability of such bodies Removal of the up-front application fee Restoration of the main amendments to FOI introduced in 2003 which significantly restricted and curtailed the scope of Ireland's FOI regime. This includes reversal of the very wide definition of Government introduced in 2003, restoration of the strict definition of what constitutes a Cabinet record, communications between members of Government will no longer be exempt from FOI; restoration to the original five years of the ten-year prohibition on the release of Cabinet records; provision for some liberalisation of the mandatory ‘class’ exemption put in place in 2003 in relation to diplomatic communications and defence matters; where a commercial state body provides a service under a contract to a public body subject to FOI, the records relating to that service will be subject to FOI etc.

Requirement by public bodies to prepare and furnish publication schemes to promote the proactive publication of information outside of FOI. A public body’s publication scheme will set out information on its role, responsibilities and activities including organisation charts, structure, contact points and for each Divisional area information relating to role and functions; classes of records held (e.g. publications, legislation, consultation procedures and processes, speeches etc); circulars/guidance/procedures/rules for the purposes of decisions relating to any scheme implemented (e.g. involving grants) with respect to rights, obligations, sanctions etc. to which the public is or may be entitled; or services provided including how such services may be accessed; rights of review or appeal in respect of decisions made by the body; FOI Disclosure logs on non-personal requests; Provision of a number of key principles to guide public bodies in the performance of their functions under the Act to achieve greater openness and strengthen accountability Extensions of the functions/powers of the Information Commissioner, provisions to ensure that FOI requests relating to information held electronically are dealt with effectively; etc Confirmation that there is a general right of access to records held by public bodies and in applying exemptions, the right of access should only be set aside where the exemptions very clearly support a refusal of access.

Cluster 3: FoI – Implementing Code and reform (3.2, 3.3)

3.2 - Strengthening Freedom of Information - Implement the Code of Practice for Freedom of Information (FOI).

3.3 -  Reform of FOI

Commitment Text:

Action 3.2 - Strengthening Freedom of Information - Implement the Code of Practice for Freedom of Information (FOI).

The Government will provide and implement a Code of Practice for Freedom of Information to promote best practice in public bodies in relation to the operation of FOI, guiding and informing their performance in relation to their responsibilities under the FOI Act and ensuring FOI requests are dealt with as efficiently as possible to minimise the administrative burden of FOI; and securing appropriate consistency and standardisation of approach in responding to FOI requests. It will provide a framework for appropriate oversight and accountability of the performance of public bodies through monitoring of compliance with the Code and promote the proactive publication of information by public bodies including routine information likely to be in the public interest.

Other actions are: Development and implementation of criteria to establish what information is likely to be in the public interest that should be published proactively in order to identify how more information can be made publicly available as a standard.

Review previous FOI requests and develop from that a model for identifying the information that is frequently requested under FOI as this type of information should be made public outside of the FOI process.

Introduce a “legislative footprint” in relation to current legislative initiatives, published on each Department’s website including details of publication of general schemes, any consultation documents, publications of draft Bills, pre- legislative scrutiny by Oireachtas Committees, submissions received and meetings held with stakeholders, etc.

Action 3.3 -  Reform of FOI

A comprehensive reform of Ireland’s Freedom of Information legislation will be implemented through the FOI Bill 2013 and the establishment of a Code of Practice for FOI as referenced above. Key actions in the legislation will include:

Substantial updating/modernisation of the legislation based on international best practice Extension of FOI to all public bodies as a default with limited exceptions as set out in the Bill bringing long- established high profile exclusions from FOI within remit; and to significantly funded bodies to enhance accountability of such bodies. 

Removal of the up-front application fee.

Restoration of the main amendments to FOI introduced in 2003 which significantly restricted and curtailed the scope of Ireland's FOI regime. This includes reversal of the very wide definition of Government introduced in 2003, restoration of the strict definition of what constitutes a Cabinet record, communications between members of Government will no longer be exempt from FOI; restoration to the original five years of the ten- year prohibition on the release of Cabinet records; provision for some liberalisation of the mandatory “class” exemption put in place in 2003 in relation to diplomatic communications and defence matters; where a commercial state b ody provides a service under a 31 contract to a public body subject to FOI, the records relating to that service will be subject to FOI etc.

Requirement by public bodies to prepare and furnish publication schemes to promote the proactive publication of information outside of FOI. A public body’s publication scheme will set out information on its role, responsibilities and activities including organisation charts, structure, contact points and for each Divisional area information relating to role and func tions; classes of records held (e.g. publications, legislation, consultation procedures and processes, speeches etc); circulars/guidance/procedures/rules for the purposes of decisions relating to any scheme implemented (e.g. involving grants) with respect to rights, obligations, sanctions etc. to which the public is or may be entitled; or services provided including how such services may be accessed; rights of review or appeal in respect of decisions made by the body; FOI Disclosure logs on non-personal re quests; Provision of a number of key principles to guide public bodies in the performance of their functions under the Act to achieve greater openness and strengthen accountability.

Extensions of the functions/powers of the Information Commissioner, provi sions to ensure that FOI requests relating to information held electronically are dealt with effectively; etc.

Confirmation that there is a general right of access to records held by public bodies and in applying exemptions, the right of access should only be set aside where the exemptions very clearly support a refusal of access.

Responsible institution: Department of Public Expenditure and Reform (DPER)

Supporting institution(s): All public bodies and Office of the Attorney General

Start date: August 2014                                                                        End date: July 2015

Commitment Aim

In terms of policy area, FoI legislation promises that open access to governmental information should increase transparency in the policy-making process. With this in mind, and in order to strengthen the functioning of the Freedom of Informaiton Act of 1997, these two commitments had the following aims. First, Action 3.2 seeks to provide and implement a “Code of Practice” for FoI, promoting best practice in public bodies in the FoI’s operation, including proactively publishing information that is deemed in the public interest. Action 3.3 has as its main goals to reform the FoI and effectively make it easier (and less costly) for citizens to make requests. In this regard, the action explicitly states that there will be a removal of the up-front application fee.

Status

Midterm: Substantial

Before OGP, FoI legislation existed in Ireland since 1997, but reform to the pre-existing legislation took place shortly after the new government came to power in 2011. In June 2013, an external group which had civil society members and a working group of public bodies reviewed FoI implementation. During the process of negotiating the action plan, FoI issues (particularly relating to the fees) were raised in consultation with civil society and became a focal point. The new FoI Act came into force in the first year of the action plan in October 2014, and was published with the FoI Code of Practice,^{[Note 14: For both documents, see bit.ly/1TdJ84Y and bit.ly/1SC6HVL (last accessed September 9, 2015)]} reflecting the substantial progress that was made. Further details can be found in the IRM progress report.

End of term: Complete

Both Actions 3.2 and 3.3 have been completed in year two of the action plan, as reflected in the government’s end of term self assessment report. For example, as also verified in desk research, the implementation of the code has been completed in significant areas, such as the establishment of a single FoI Training Framework that allows public bodies access to trainers, and a Model Publication Scheme and associated guidance which provides for proactive publication by FoI bodies was developed and launched in October 2015.^{[Note 15: The Model Publication Scheme can be found on: http://www.per.gov.ie/wp-content/uploads/Model-Publication-Scheme-October-2015.docx ]} Guidelines for the introduction of a legislative footprint, as per Action 3.2, have also been reflected in a separate document which was published in November 2016.^{[Note 16: See: http://www.per.gov.ie/wp-content/uploads/Consultation-Principles-Guidance.pdf (page 13) The reader will note that this document also outlines consultation principles as per Action 2.1 as discussed below in this report (i.e. Section 6. Action 2.1: Revise Government Principles on Consultation Processes)]} The up-front application fee of €15 was abolished.

Did it open government?

Access to information: Major

Public accountability: Marginal

Prior to these actions, many believed the state apparatus funcitoned opaquely, particularly throughout the economic crisis in the 2000s.^{[Note 17: See Kitchen R, C’O’Callaghan, M.Boyle, and J. Gleeson, Placing neoliberalism: the rise and fall of Ireland’s Celtic Tiger’, Environment and Planning A, 2012, volume 44, pages 1302 – 1326]} In the outset of the action plan implementation, the expectation for this action was that it would potentially increase the ease with which people can access information and transparency in the policy process. The new regulations would allow for a clearer picture of what goes on in the state. As implemented, it has had a major change to government practice in terms of access to information. Currently, the code of practice is in place, the fees on information requests have been removed, and the government has standardized the guidance on how to publish information. Regarding public accountability, the commitment’s implementation has not enabled or improved opportunities for citizens to hold government officials accountable. However, the framework does provide the foundation to do so, and therefore its change on government practice is marginal.

Carried forward?                         

This commitment was not carried forward into the next action plan. However, as explained in detail in the IRM progress report, the government may consider the following action for the next action plan regarding further reforms for the FoI:

• Set up an independent working group that examines the costs and benefits of the strengthened FoI program.