First Previous (PART IV The Information Commissioner) Next (FIRST SCHEDULE Public Bodies)

13 1997

FREEDOM OF INFORMATION ACT, 1997

PART V

Miscellaneous

Decisions deemed to have been made in certain cases.

41. —(1) Where notice of a decision under section 8 or 17 is not given to the requester concerned or to the person who made the application concerned under section 17 before the expiration of the period specified for that purpose in section 8 or 17 , as the case may be, a decision refusing to grant the request under section 7 or the application under section 17 shall be deemed for the purposes of this Act to have been made upon such expiration and to have been made by a person to whom the relevant functions stood delegated under section 4 .

(2) Where notice of a decision under section 14 is not given to the person who made the application concerned under that section before the expiration of the period specified in subsection (4) thereof, a decision affirming the decision to which the application relates shall be deemed for the purposes of this Act to have been made upon such expiration.

(3) Where a statement under subsection (1), or notice of a decision under subsection (4), of section 18 is not given to the person who made the application under the said subsection (1) concerned before the expiration of the period specified for that purpose in the said subsection (1) or (4), as the case may be, a decision refusing to grant the application shall be deemed for the purposes of this Act to have been made upon such expiration and to have been made by a person to whom the relevant functions stood delegated under section 4 .

Appeal to High Court.

42. —(1) A party to a review under section 34 or any other person affected by the decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision.

(2) The requester concerned or any other person affected by—

(a) the issue of a certificate under section 25 ,

(b) a decision, pursuant to section 8 , to refuse to grant a request under section 7 in relation to a record the subject of such a certificate, or

(c) a decision, pursuant to section 14 , to refuse to grant, or to uphold a decision to refuse to grant, such a request,

may appeal to the High Court on a point of law against such issue or from such decision.

(3) A person may appeal to the High Court from—

(a) a decision under section 14 , or

(b) a decision specified in paragraph (a), (b), (c), (d), (e), (f) or (g) of subsection (1) of that section (other than such a decision made by a person to whom the function stood delegated under section 4 at the time of the making of the decision),

made by the Commissioner in respect of a record held by the Office of the Commissioner or (in a case where the same person holds the office of Ombudsman and the office of Commissioner) made by the Ombudsman in respect of a record held by the Office of the Ombudsman.

(4) An appeal under subsection (1), (2) or (3) shall be initiated not later than 4 weeks after notice of the decision concerned was given to the person bringing the appeal.

(5) The Commissioner may refer any question of law arising in a review under section 34 to the High Court for determination, and the Commissioner may postpone the making of a decision following the review until such time as he or she considers convenient after the determination of the High Court.

(6) (a) Where an appeal under this section by a person other than a head is dismissed by the High Court, that Court may, if it considers that the point of law concerned was of exceptional public importance, order that some or all of the costs of the person in relation to the appeal be paid by the public body concerned.

(b) The High Court may order that some or all of the costs of a person (other than a head) in relation to a reference under this section be paid by the public body concerned.

(7) A decision of the High Court following an appeal under subsection (1), (2) or (3) shall, where appropriate, specify the period within which effect shall be given to the decision.

(8) The decision of the High Court on an appeal or reference under this section shall be final and conclusive.

Precautions by High Court and Commissioner against disclosure of certain information.

43. —(1) In proceedings in the High Court under or in relation to this Act, that Court shall take all reasonable precautions to prevent the disclosure to the public or, if appropriate, to a party (other than a head) to the proceedings of—

(a) information contained in an exempt record, or

(b) information as to whether a record exists or does not exist in a case where the head concerned is required by this Act not to disclose whether the record exists or does not exist.

(2) Without prejudice to the generality of subsection (1), precautions under that subsection may include—

(a) hearing the whole or part of any such proceedings as aforesaid otherwise than in public,

(b) prohibiting the publication of such information in relation to any such proceedings as it may determine, including information in relation to the parties to the proceedings and the contents of orders made by the High Court in the proceedings, and

(c) examining a record or a copy of a record without giving access or information in relation thereto to a party (other than a head) to the proceedings.

(3) In the performance of his or her functions under this Act, the Commissioner shall take all reasonable precautions (including conducting the whole or part of a review under section 34 or an investigation under section 36 otherwise than in public) to prevent the disclosure to the public or, in the case of such a review, to a party (other than a head) to the proceedings concerned of information specified in paragraph (a) or (b) of subsection (1).

Stay on certain decisions.

44. —(1) This section applies to—

(a) a decision to grant a request to which section 29 applies, and

(b) a decision under section 34 .

(2) Effect shall not be given to a decision to which this section applies before—

(a) the expiration of the time for—

(i) making an application for a review of the decision under section 34 , or

(ii) bringing an appeal to the High Court from the decision,

as may be appropriate,

or

(b) if such an application or appeal is made or brought, the determination or withdrawal thereof,

whichever is the later.

Immunity from legal proceedings.

45. —(1) This section applies to—

(a) an act consisting of the grant or the grant in part under section 8 or by virtue of section 14 or 34 of a request under section 7 ,

(b) an act consisting of the furnishing to a person under section 18 of a statement specified in that section, or

(c) an act consisting of the publication under section 15 or 16 of a document specified in that section,

being an act that was required or authorised by, and complied with the provisions of, this Act or was reasonably believed by the head concerned to have been so required or authorised and to comply with the provisions of this Act.

(2) Subject to the provisions of this section, civil or criminal proceedings shall not lie in any court—

(a) against—

(i) the State,

(ii) a public body,

(iii) a head,

(iv) a director or a member of the staff of a public body, or

(v) a person providing a service for a public body under a contract for services with the body,

in respect of an act to which this section applies or any consequences of such an act, or

(b) against the author of a record to which an act specified in subsection (1)(a) relates or any other person in respect of any publication involved in, or resulting from, that act by reason of that author or other person having supplied the record to the public body.

(3) Subsection (2) does not apply in relation to proceedings for breach of a duty imposed by section 16 .

(4) Civil or criminal proceedings shall not lie in any court against the Commissioner or a member of the staff of the Commissioner in respect of anything said or done in good faith by the Commissioner or member in the course of the performance or purported performance of a function of the Commissioner or member.

(5) The grant of a request under section 7 shall not be taken as constituting an authorisation or approval—

(a) for the purposes of the law relating to defamation or breach of confidence, of the publication of the record concerned or any information contained therein by the requester concerned or any other person,

(b) for the purposes of the law of copyright, of the doing by the requester concerned of any act comprised within the copyright in—

(i) any literary, dramatic, musical or artistic work,

(ii) any sound recording, cinematograph film, television broadcast or sound broadcast, or

(iii) a published edition of a literary, dramatic, musical or artistic work, contained in the record concerned, or

(c) for the purposes of the Performers' Protection Act, 1968 , of the doing by the requester concerned, in relation to any record or cinematograph film (within the meaning, in each case, of that Act) contained in the record concerned, of an act prohibited by that Act.

(6) Words or expressions that are used in subparagraph (i), (ii) or (iii) of subsection (5)(b) and are also used in the Copyright Act, 1963 , have in those subparagraphs the same meanings as in that Act.

Restriction of Act.

46. —(1) This Act does not apply to—

(a) a record held by—

(i) the courts,

(ii) a tribunal to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied, or

(iii) a service tribunal within the meaning of section 161 of the Defence Act, 1954 ,

and relating to, or to proceedings in, a court or such a tribunal other than—

(I) a record that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal, or

(II) a record relating to the general administration of the courts or the offices of the courts or such a tribunal or any offices of such a tribunal,

(b) a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices),

(c) a record relating to—

(i) a review under section 34 or an investigation under section 36 ,

(ii) an audit, inspection or examination carried out by the Comptroller and Auditor General under the Comptroller and Auditor General Acts, 1923 and 1993, the Exchequer and Audit Department Acts, 1866 and 1921, or any other enactment, or

(iii) an investigation or examination carried out by the Ombudsman under the Ombudsman Act, 1980 ,

other than—

(I) such a record that was created before the commencement of the review, investigation, audit, inspection or examination aforesaid, or

(II) a record relating to the general administration of the Office of the Commissioner, the Office of the Comptroller and Auditor General or the Office of the Ombudsman,

(d) a record relating to the President,

(e) a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential, or

(f) a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of—

(i) the identity of a person who has provided information to a public body in confidence in relation to the enforcement of the criminal law, or

(ii) any other source of such information provided in confidence to a public body.

(2) Subject to subsection (3), this Act does not apply to—

(a) a record that is available for inspection by members of the public whether upon payment or free of charge, or

(b) a record a copy of which is available for purchase or removal free of charge by members of the public,

whether by virtue of an enactment (other than this Act) or otherwise.

(3) A record shall not be within subsection (2) by reason only of the fact that it contains information constituting personal data to which the Data Protection Act, 1988 , applies.

Fees.

47. —(1) Subject to the provisions of this section, a fee of such amount as may be appropriate having regard to the provisions of this section shall be charged by the public body concerned and paid by the requester concerned to the body in respect of the grant of a request under section 7 .

(2) Subject to the provisions of this section, the amount of a fee under this section shall be equal to—

(a) the estimated cost of the search for and retrieval of the record concerned, and

(b) the estimated cost of any copy of the record made by the public body concerned for the requester concerned,

as determined by the head concerned.

(3) For the purposes of subsection (2)

(a) the amount of the cost of the search for and retrieval of a record shall be calculated at the rate of such amount per hour as stands prescribed for the time being in respect of the time that was spent, or ought, in the opinion of the head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently, and

(b) the amount of the cost specified in subsection (2)(b) shall not exceed such amount (if any) as stands prescribed for the time being and the determination of that amount shall be in compliance with any provisions standing prescribed for the time being in relation to such determination.

(4) Where the record or records concerned contains or contain only personal information relating to the requester concerned, then, in calculating the amount of the fee under subsection (1)

(a) paragraph (a) of subsection (2) shall be disregarded unless the grant concerned relates to a significant number of records, and

(b) paragraph (b) of that subsection shall be disregarded if, in the opinion of the head concerned, it would not be reasonable, having regard to the means of the requester and the nature of the record concerned, to include the cost specified in that paragraph in the calculation.

(5) A head may reduce the amount of or waive a fee or deposit under subsection (1) or (7) if, in his or her opinion, some or all of the information contained in the record concerned would be of particular assistance to the understanding of an issue of national importance.

(6) A fee shall not be charged under subsection (1) if, in the opinion of the head concerned, the cost of collecting and accounting for the fee together with any other administrative costs incurred by the public body concerned in relation to the fee would exceed the amount of the fee.

(7) Where, in the opinion of the head concerned, the estimated cost, as determined by the head, of the search for and retrieval of a record the subject of a request under section 7 is likely to exceed £40 or such other amount as may stand determined for the time being—

(a) a deposit of such amount as may be determined by the head (not being less than 20 per cent. of such cost) shall be charged by the public body concerned and paid by the requester concerned to the body,

(b) the process of search for and retrieval of the record shall not be commenced by the body until the deposit has been paid, and

(c) the head shall, not later than 2 weeks after the receipt of the request aforesaid, cause a request in writing for payment of the deposit to be given to the requester and the document shall include an estimate of the length of time that the process of searching for and retrieving the record will occupy and a statement that the process will not be begun until the deposit has been paid and that the date on which a decision will be made in relation to the request will be determined by reference to the date of such payment.

(8) In a case to which subsection (7) applies, the head concerned shall, if so requested by the requester concerned—

(a) specify to him or her the amendments (if any) to the request under section 7 concerned that, if made, would have the effect of reducing or eliminating the deposit payable under that subsection, and

(b) if amendments are specified under paragraph (a), make such of them (if any) to the request as the requester may determine.

(9) Where a deposit under subsection (7) is paid, the amount of the fee under subsection (1) payable in respect of the grant of the request under section 7 concerned shall be reduced by the amount of the deposit.

(10) Where a deposit under subsection (7) is paid and, subsequently, the grant of the request under section 7 concerned is refused or is granted in relation to a part only of the record concerned, the amount of the deposit or, if a fee under this section is payable in respect of the grant, so much (if any) of that amount as exceeds the amount of the fee shall be repaid to the requester concerned.

(11) Where a fee or deposit under this section is paid and, subsequently, the fee or deposit is annulled or varied under section 14 , 34 or 42 , the amount of the fee or deposit so annulled or, as the case may be, any amount thereof in excess of the amount thereof as so varied shall be repaid to the requester concerned.

(12) Section 8 (1) shall be construed and have effect—

(a) in relation to a case in which a deposit is payable under subsection (7), as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the request under subsection (7) concerned to the requester concerned to the date of the receipt of the deposit,

(b) in relation to a case in which such a deposit is annulled following a review under section 14 or 34 or an appeal under section 42 , as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the request under subsection (7) concerned to the requester concerned to the date of the decision under section 42 or, as the case may be, of the giving to the requester concerned of notice under section 14 or 34 of the decision, and

(c) in relation to a case in which an amendment pursuant to subsection (8) has the effect of eliminating such a deposit, as if the reference to the receipt of a request under that section were a reference to the making of the amendment.

(13) The Public Offices Fees Act, 1879, shall not apply to fees under this section.

Amendment of Official Secrets Act, 1963 .

48. —(1) A person who is, or reasonably believes that he or she is, authorised by this Act to communicate official information to another person shall be deemed for the purposes of section 4 of the Official Secrets Act, 1963 , to be duly authorised to communicate that information.

(2) In a prosecution for an offence under section 5 or 9 of that Act, it shall be a defence to prove that the act to which the charge of the offence relates is authorised, or is reasonably believed by the person charged to be authorised, by this Act.