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Freedom of Information - Changes to who can make particular FOI applications

13/12/2016

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Ireland

The FOI legislation has been amended by the Freedom of Information Act, 2014 (Section 9, sub-section (6) and (37) Regulations 2016 (SI 558/2016) (“the 2016 Regulations”).What are the sections that are impacted?Section 9 Amendment of records relating to personal informationSection 10 Right of person to information regarding acts of FOI bodies affecting the personSection 37 Personal informationWhat are the changes?The 2016 Regulations set out two “defined cases” where applic...

The FOI legislation has been amended by the Freedom of Information Act, 2014 (Section 9, sub-section (6) and (37) Regulations 2016 (SI 558/2016) (“the 2016 Regulations”).

What are the sections that are impacted?

  • Section 9 Amendment of records relating to personal information
  • Section 10 Right of person to information regarding acts of FOI bodies affecting the person
  • Section 37 Personal information

What are the changes?

The 2016 Regulations set out two “defined cases” where applications can be made on behalf of minors, incapacitated and deceased persons in relation to the specific sections stated above.

The primary purpose of the 2016 Regulations appears to have updated the meaning of “next of kin” in the context of making applications in relation to deceased persons.

First Defined Case

The first defined case 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 legislation.  In these circumstances the parent or guardian of such an individual may apply on his or her behalf under Section 9 (amend records) or Section 10 (right to information regarding Acts of FOI bodies affecting that person).  FOI bodies shall grant these applications where they are of the opinion that it is in the best interests of the individual.

Second Defined Case

The second defined case concerns deceased individuals to whom Section 9 and Section 10 apply. In relation to a deceased individual an application can be made by the personal representative of the deceased or a person to whom a function is conferred by law in relation to the deceased individual and/or his or her estate, or the spouse or next of kin of the individual where having regard to all the circumstances the public interest would on balance be better served by granting than by refusing to grant the application.

In relation to Section 10 and the “second defined case” where the individual is deceased, the 2016 Regulations require that in addition to being a personal representative or performing a statutory function in relation to the deceased, or being a spouse or next of kin, applicants under Section 10 must also be a parent or a guardian of the deceased individual concerned. This may be an unintended requirement and will require clarification from the Department of Public Expenditure and Reform.

Definition of next of kin expanded

The 2016 Regulations has expanded the definition of “next of kin” for the purpose of the second defined case, where “next of kin” now includes:

  1. Issue,
  2. Next parent,
  3. Next brother or sister,
  4. Next niece or nephew, or
  5. Any other persons standing nearest in blood relationship to the deceased individual in accordance with Section 71 (2) of the Succession Act, 1965.

In addition the 2016 Regulations provide that the above list should be applied as follows:

  1. If more than one category applies to a particular applicant only the first in alphabetical order will be regarded as being applicable.
  2. If two or more persons, within one of the defined criteria in (a) to (e), each of them will be regarded as next of kin of the particular individual.

Section 37(8) Personal Information

The 2016 Regulations also amend the definition of next of kin as set out above for the purposes of Section 37(8).

Comment

For FOI bodies assessing FOI applications particular consideration must be given to the status of the applicant and whether in light of the 2016 Regulations that person is now an applicant within the meaning of the FOI legislation. We would in particular draw the extended definition of next of kin to the attention of FOI bodies.  In relation to personal representatives, spouses and next of kin wishing to make a Section 10 application, they will need to be aware of the ‘double-requirement’.  We anticipate that the Department of Public Expenditure and Law Reform will issue clarity on this and we will provide a further update in this regard.

Please see link for a copy of the 2016 Regulations.

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