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13 1997

FREEDOM OF INFORMATION ACT, 1997

PART IV

The Information Commissioner

Establishment of office of Information Commissioner.

33. —(1) There is hereby established the office of Information Commissioner and the holder of the office shall be known as the Information Commissioner.

(2) The Commissioner shall be independent in the performance of his or her functions.

(3) The appointment of a person to be the Commissioner shall be made by the President on the advice of the Government following a resolution passed by Dáil Éireann and by Seanad Éireann recommending the appointment of the person.

(4) (a) Subject to paragraph (b), the provisions of the Second Schedule shall have effect in relation to the Commissioner.

(b) Paragraphs 4 and 5 of the Second Schedule shall not have effect where the person who holds the office of Commissioner also holds the office of Ombudsman.

(5) Section 2 (6) of the Ombudsman Act, 1980 shall not apply to a person who holds the office of Ombudsman and also holds the office of Commissioner.

Review by Commissioner of decisions.

34. —(1) This section applies to—

(a) a decision under section 14 , other than a decision referred to in paragraph (c),

(b) a decision specified in paragraph (a), (b), (c), (d), (e) or (f) of section 14 (1),

(c) a decision under section 14 , or a decision under section 47 , that a fee or deposit exceeding £10 or such other amount (if any) as may stand prescribed for the time being should be charged under section 47 ,

(d) a decision under section 9 to extend the time for the consideration of a request under section 7 ,

(e) a decision under section 11 to defer the giving of access to a record falling within paragraph (b) or (c) of subsection (1) of that section, and

(f) a decision on a request to which section 29 applies,

but excluding—

(i) a decision aforesaid made by the Commissioner in respect of a record held by 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 Ombudsman, and

(ii) a decision referred to in paragraph (b), and a decision under section 47 referred to in paragraph (c), made by a person to whom the function concerned stood delegated under section 4 at the time of the making of the decision.

(2) Subject to the provisions of this Act, the Commissioner may, on application to him or her in that behalf, in writing or in such other form as may be determined, by a relevant person—

(a) review a decision to which this section applies, and

(b) following the review, may, as he or she considers appropriate—

(i) affirm or vary the decision, or

(ii) annul the decision and, if appropriate, make such decision in relation to the matter concerned as he or she considers proper,

in accordance with this Act.

(3) A decision under subsection (2) shall be made as soon as may be and, in so far as practicable—

(a) in case the application for the review concerned was made during the period of 3 years from the commencement of this Act, not later than 4 months after the receipt by the Commissioner of the application, and

(b) in case the application for the review was made after the expiration of the period aforesaid, not later than 3 months after the receipt by the Commissioner of the application.

(4) An application under subsection (2) shall be made—

(a) if it relates to a decision specified in paragraph (d) or (f) of subsection (1), not later than 2 weeks after the notification of the decision to the relevant person concerned, and

(b) if it relates to any other decision specified in that subsection, not later than 6 months after the notification of the decision to the relevant person concerned or, in a case in which the Commissioner is of opinion that there are reasonable grounds for extending that period, the expiration of such longer period as he or she may determine.

(5) A person who makes an application under subsection (2) may, by notice in writing given to the Commissioner, at any time before a notice under subsection (10) in relation to the application is given to the person, withdraw the application, and the Commissioner shall cause a copy of any notice given to him or her under this subsection to be given to the relevant person, or the head, concerned, as may be appropriate, and any other person to whom, in the opinion of the Commissioner, it should be given.

(6) As soon as may be after the receipt by the Commissioner of an application under subsection (2), the Commissioner shall cause a copy of the application to be given to the head concerned, and, as may be appropriate, to the relevant person concerned and, if the Commissioner proposes to review the decision concerned, he or she shall cause the head and the relevant person and any other person who, in the opinion of the Commissioner, should be notified of the proposal to be so notified and, thereupon, the head shall give to the Commissioner particulars, in writing or in such other form as may be determined, of any persons whom he or she has or, in the case of a refusal to grant a request to which section 29 applies, would, if he or she had intended to grant the request under section 7 concerned, have notified of the request.

(7) Where an application under subsection (2) is made, the Commissioner may at any time endeavour to effect a settlement between the parties concerned of the matter concerned and may for that purpose, notwithstanding subsection (3), suspend, for such period as may be agreed with the parties concerned and, if appropriate, discontinue, the review concerned.

(8) In relation to a proposed review under this section, the head, and the relevant person concerned and any other person who is notified under subsection (6) of the review may make submissions (as the Commissioner may determine, in writing or orally or in such other form as may be determined) to the Commissioner in relation to any matter relevant to the review and the Commissioner shall take any such submissions into account for the purposes of the review.

(9) (a) The Commissioner may refuse to grant an application under subsection (2) or discontinue a review under this section if he or she is or becomes of the opinion that—

(i) the application aforesaid or the application to which the review relates (“the application”) is frivolous or vexatious,

(ii) the application does not relate to a decision specified in subsection (1), or

(iii) the matter to which the application relates is, has been or will be, the subject of another review under this section.

(b) In determining whether to refuse to grant an application under subsection (2) or to discontinue a review under this section, the Commissioner shall, subject to the provisions of this Act, act in accordance with his or her own discretion.

(10) Notice, in writing or in such other form as may be determined, of a decision under subsection (2) (b), or of a refusal or discontinuation under subsection (9), and the reasons therefor, shall be given by the Commissioner to—

(a) the head concerned,

(b) the relevant person concerned, and

(c) any other person to whom, in the opinion of the Commissioner, such notice should be given.

(11) (a) The notice referred to in subsection (10) shall be given as soon as may be after the decision, refusal or discontinuation concerned and, if it relates to a decision under subsection (2), in so far as practicable, within the period specified in subsection (3).

(b) The report of the Commissioner for any year under section 40 shall specify the number of cases (if any) in that year in which a notice referred to in subsection (10) in relation to a decision under subsection (2) (b) was not given to a person specified in subsection (10) within the appropriate period specified in paragraph (a).

(12) In a review under this section—

(a) a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified, and

(b) a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

(13) A decision of the Commissioner following a review under this section shall, where appropriate, specify the period within which effect shall be given to the decision and, in fixing such a period, the Commissioner shall have regard to the desirability, subject to section 44 , of giving effect to such a decision as soon as may be after compliance in relation thereto with subsection (11).

(14) Subject to the provisions of this Act, a decision under subsection (2) shall—

(a) in so far as it is inconsistent with the decision to which this section applies concerned have effect in lieu thereof, and

(b) be binding on the parties concerned.

(15) In this section “relevant person”, in relation to a decision specified in subsection (1), means—

(a) the requester concerned and, if the decision is in respect of a request to which section 29 relates, a person to whom subsection (2) of that section applies, or

(b) if the decision is under section 17 or 18 , the person who made the application concerned under that section.

Requests for further information by Commissioner.

35. —(1) Where—

(a) an application for the review by the Commissioner of—

(i) a decision to refuse to grant a request under section 7 , or

(ii) a decision under section 14 in relation to a decision referred to in subparagraph (i),

is made under section 34 , and

(b) the Commissioner considers that the statement of the reasons for the decision referred to in paragraph (a) (i) in the notice under subsection (1) of section 8 or of the findings or particulars referred to in subsection (2) (d) (ii) of that section in relation to the matter is not adequate,

the Commissioner shall direct the head concerned to furnish to the requester concerned and the Commissioner a statement, in writing or such other form as may be determined, containing any further information in relation to those matters that is in the power or control of the head.

(2) A head shall comply with a direction under this section as soon as may be, but not later than 3 weeks, after its receipt.

Review of operation of Act and investigations by Commissioner.

36. —(1) The Commissioner shall keep the operation of this Act under review and may, subject to subsection (2), carry out an investigation at any time into the practices and procedures adopted by public bodies generally or any particular public body or public bodies for the purposes of compliance with—

(a) the provisions of this Act generally,

(b) any particular provisions of this Act.

(2) The Commissioner shall carry out an investigation under subsection (1) (a) in relation to public bodies generally not later than 3 years after the commencement of this Act.

(3) The Commissioner may at any time carry out an investigation into the practices and procedures adopted by public bodies or any particular public body or public bodies for the purposes of enabling persons to exercise the rights conferred by this Act and facilitating such exercise.

(4) The Commissioner may at any time prepare a report, in writing or such other form as may be determined—

(a) of his or her findings and conclusions resulting from the performance of any function under subsection (1) (2) or (3), or

(b) on any matter relating to or arising out of the performance of such a function.

(5) The Commissioner shall, if he or she considers it appropriate to do so, cause a copy of a report under this section to be furnished to the Minister and to each public body concerned and shall cause a copy of the report to be appended to the report under section 40 (1) prepared next after the preparation of the first-mentioned report.

Powers of Commissioner.

37. —(1) The Commissioner may, for the purposes of a review under section 34 or an investigation under section 36

(a) require any person who, in the opinion of the Commissioner, is in possession of information, or has a record in his or her power or control, that, in the opinion of the Commissioner, is relevant to the purposes aforesaid to furnish to the Commissioner any such information or record that is in his or her possession or, as the case may be, power or control and, where appropriate, require the person to attend before him or her for that purpose, and

(b) examine and take copies in any form of, or of extracts from any record that, in the opinion of the Commissioner, is relevant to the review or investigation and for those purposes take possession of any such record, remove it from the premises and retain it in his or her possession for a reasonable period.

(2) The Commissioner may for the purposes of such a review or investigation as aforesaid enter any premises occupied by a public body and there—

(a) require any person found on the premises to furnish him or her with such information in the possession of the person as he or she may reasonably require for the purposes aforesaid and to make available to him or her any record in his or her power or control that, in the opinion of the Commissioner, is relevant to those purposes, and

(b) examine and take copies of, or of extracts from, any record made available to him or her as aforesaid or found on the premises.

(3) Subject to subsection (4), no enactment or rule of law prohibiting or restricting the disclosure or communication of information shall preclude a person from furnishing to the Commissioner any such information or record, as aforesaid.

(4) A person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as a witness in a court.

(5) The Commissioner may, if he or she thinks fit, pay to any person who, for the purposes of a review under section 34 , or an investigation under section 36 , attends before the Commissioner or furnishes information or a record or other thing to him or her—

(a) sums in respect of travelling and subsistence expenses properly incurred by the person, and

(b) allowances by way of compensation for loss of his or her time,

of such amount as may be determined by the Minister.

(6) Subject to the provisions of this Act, the procedure for conducting a review under section 34 or an investigation under section 36 shall be such as the Commissioner considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the Commissioner.

(7) A person who fails or refuses to comply with a requirement under this section or who hinders or obstructs the Commissioner in the performance of his or her functions under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or both.

(8) This section does not apply to a record in respect of which a certificate under section 25 is in force.

Commissioner to encourage publication of information by public bodies.

38. —The Commissioner shall foster and encourage the publication by public bodies, in addition to the publications provided for by sections 15 and 16 , of information of relevance or interest to the general public in relation to their activities and functions generally.

Publication of commentaries by Commissioner on practical application, etc., of Act.

39. —The Commissioner may prepare and publish commentaries on the practical application and operation of the provisions, or any particular provisions, of this Act, including commentaries based on the experience of holders of the office of Commissioner in relation to reviews, and decisions following reviews, of such holders under section 34 .

Reports of Commissioner.

40. —(1) The Commissioner shall, in each year after the year in which this section comes into operation—

(a) prepare a report in relation to his or her activities under this Act in the previous year, and

(b) append to the report a copy of any report furnished to him or her under section 25 (11),

(c) cause copies of the report and of any copy referred to in paragraph (b) to be laid before each House of the Oireachtas.

(2) The Commissioner may, if he or she considers it appropriate to do so in the public interest or in the interests of any person, prepare and publish a report in relation to any investigation, or review carried out or other function performed, by him or her under this Act or any matter relating to or arising in the course of such an investigation, review or performance.