FOI Update: New Freedom Of Information Regulations

Author:Mr Edward Gleeson, Catherine Allen, Niall Michel and Lisa Joyce
Profession:Mason Hayes & Curran

New Regulations have been introduced regarding who can make particular FOI applications on behalf of minors, incapacitated and deceased persons, and in what circumstances.  With one surprising exception, they do not substantively alter the existing regime for such applications, and aim, primarily, to update the meaning of "next-of-kin".

In addition to the right, under the Freedom of Information Act 2014 ("the FOI Act"), to access one's personal information as held by an FOI body, the FOI Act also provides for two lesser-known rights:

to apply to have one's personal information amended where it is incomplete, incorrect or misleading (section 9); and to apply for a statement of reasons and underlying fact-finding relating to an "act" of an FOI body, where one is affected by, and has a material interest in a matter affected by, that act (section10). Previous Regulations of 2009 enabled certain persons to apply to exercise these rights in certain circumstances in relation to, or on behalf of, minors, persons of diminished capacity and deceased persons.

On 15 November 2016, the 2009 Regulations were revoked and replaced by the Freedom of Information Act 2014 (Sections 9(6), 10(6) and 37(8)) Regulations 2016 (SI 558/2016) ("the 2016 Regulations").

With one surprising exception, the 2016 Regulations do not substantively alter the existing regime for section 9 and 10 applications made by persons other than the individual to whom the application relates. Instead, the primary purpose of the 2016 Regulations appears to have been to update the meaning of "next-of-kin" in the context of making such applications on behalf of deceased persons.

The updated regime under the 2016 Regulations provides that these applications can be made in two "defined cases".

The two defined cases:

The "first defined case" in the 2016 Regulations concerns minors, or adults who have a psychiatric condition, mental incapacity or severe physical disability which renders them incapable of exercising their rights under the FOI Act. Here, the parent or guardian of such an individual may apply on his/her behalf under section 9 or, as the case may be, section 10 of the FOI Act. FOI bodies shall grant these applications where they are of the opinion that it is in the best interests of the individual.

The "second defined case" in the 2016 Regulations concerns deceased individuals:

to whom the relevant personal records relate (section 9); or, who are affected, and have a material...

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