The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

THE section of Exempt records in the new Freedom of Information (FOI) Bill 2015 released yesterday that was most expanded related to law enforcement.

It was added that the section does not apply to any record that reveals that the scope of a law enforcement investigation has exceeded the limit imposed by the law;

• reveals the use of illegal methods or procedures in dealing with matters arising out of breaches or evasions of the law;

• a record containing general outline of the structure of any programme adopted by a public authority for investigating breaches, enforcing or administering the law or a report on the degree of success achieved by such a programme;

• a report prepared in the course of routine law enforcement, inspections, or investigations by a public authority that has a function for enforcing and regulating compliance with a law that is not a criminal law;

• and a report on a law enforcement investigation where the substance of the report has been disclosed to the person or body which was the subject of the investigation, granted that it is in the public interest that access should be granted.

Exempt records related to the national economy and commercial affairs were consolidated, with the addition of certain documents concerning the operations of public authorities.

The former Bill stated that only some exemptions were subject to a public interest test; however, the 2015 version suggests there is no limit to public interest considerations, and that the Information Commissioner may issue guidelines about considerations in favour of, or against, the disclosure of records held by a public authority.

Exemptions must pass a three-part public interest test:

• it must be related to the legitimate aims that justify the exemption;

• it must be demonstrated that the disclosure would threaten to cause substantial harm to the legitimate aim;

• and it must be demonstrated that harm to the objective is greater than the public’s interest.

The Internal Review process was relatively unchanged, keeping the 30-day period and removing oversight of annotation of personal records.

Public authorities will have 12 months to publish a schedule that will include an initial state of its organisation and functions, informing the public of the information to be published by the authority – a feature included in the former Bill.

The Act does not apply to judicial functions of court; the holder of a judicial office; security or intelligence services: police, defence force, customs and immigration, and the Financial Intelligence Unit; and private holdings of the National Archives where the contract or arrangement under which the holdings are held prohibit disclosure under circumstances included in the Act.

But it does apply to records of an administrative nature held in a registry or other office of a court.

As in the old Bill, applications should be made in writing and addressed to the relevant Information Manager. The application may be transmitted by fax or email, and should contain information concerning the record that will enable the public authority to identify it.

The new bill consolidates another section from the old Bill, which indicates that where an applicant’s information was inadequate, the applicant would be allowed a “reasonable opportunity” to consult with the authority with a view to revising the application so that the record can be identified.

The term “calendar days” was replaced with “days”, and defined weekends and holidays as exempt from the time period.

Public authorities still have 30 days to respond to an application after date of receipt, and must state their decision on application and reasons for refusal, deferment to another authority or extension of response period. The authority has 14 days to transfer to another authority if the record is not held by them.

The 30-year moratorium on exempt records was upheld, and the section providing protection to whistleblowers from victimisations was unchanged.

Other sections that were minimally altered or unchanged include the terms of fines and imprisonment for someone who alters, destroys or conceals a record with the intention of preventing disclosure; establishment of a parliamentary committee to routinely review the Act, the first to be conducted no later than 18 months after its appointment; and protection from liability regarding defamation, breach of confidence and intellectual property rights.