How Private Entities May Be Affected By The New Freedom Of Information Act 2014

Author:Ms Bríd Munnelly, Carina Lawlor and Michael Byrne

While previous Freedom of Information ("FOI") legislation explicitly named the entities which were subject to FOI, the FOI Act 2014 (the "Act"), which was enacted on 14 October 2014, takes a different approach and is more far-reaching. Consequently, under the Act, it will be necessary for an organisation to carefully review the definition of public body to ascertain whether it falls within its remit. Even if it does not, the Act may nevertheless apply to an entity to the extent that it provides a service to an entity that is captured.

In addition, a number of public bodies will now come within the remit of FOI to a limited extent. These include the Central Bank, the National Asset Management Agency (NAMA), the National Treasury Management Agency (NTMA), the National Pensions Reserve Fund Commission (NPRF) and the National Development Finance Agency (NDFA).

Other reforms contained in the Act include revising the fee structure for making FOI requests and increasing the Information Commissioner's enforcement powers to include the power to apply to the High Court to require an FOI body to comply with a binding decision of the Information Commissioner. In addition, the Act makes it an offence to wilfully alter or destroy records that are the subject of an FOI request.

Capture of private entities and those providing services to FOI bodies

The purpose of Irish FOI legislation is to allow public access to information which is in the possession of public bodies. This helps to maintain public confidence in the use by public bodies of funds and services funded by the State. An "FOI body" is a new umbrella term used to describe an entity covered by the Act, whether it is a "public body", as defined in section 6 of the Act, or a "prescribed body", as defined in section 7 of the Act. Accordingly, there has been a move away from listing bodies subject to FOI to the approach of bodies now having to consider if they fall within the relevant definition.

Section 6 of the Act contains a generic definition of "public body" which allows the legislation to apply to all entities that fall within its definition, unless partially or fully exempt under Schedule 1 of the Act. The definition is wide enough to cover a private entity controlled by an entity established by the Government, a Minister of the Government, or Statute (other than the Companies Acts). The Act has retrospective application from 21 April 2008 to public bodies newly covered by its remit. However...

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