Certain Freedom of Information requests allowed by the InformationCommissioner would not be granted under the proposed new legislation, writes Carol Coulter, Legal Affairs Correspondent
A number of the cases appealed to the Information Commissioner would have fared differently had the legislation been amended along the lines proposed by the Government.
In his report on the working of the Freedom of Information Act, released on Tuesday, the commissioner, Mr Kevin Murphy, gave examples of such cases.
One concerned a number of individuals and the companies in which they were involved. They had unsuccessfully sought access to correspondence relating to their tax affairs from the Revenue Commissioners. All but one of the records sought were created before the commencement of the Act.
Section 4 of the proposed amending Bill provides for the word "contain" to replace the words "relate to" when referring to personal information sought by individuals, when those records were created before the commencement of the Act. In his ruling, Mr Murphy considered the distinction between records which "relate" to personal information and records which "contain" it.
He found that all the records in this case could not be said to contain personal information about each requester.
However, because the terms of the Act did not require this and it was clear that the records were created for the purpose of dealing with the tax affairs of the individuals and their companies, he found that they did fall within the scope of his review.
Mr Murphy took a similar approach with a request from a man who had asked a health board for records concerning his children. These records were created in the context of concerns about allegations of sex abuse by the requester.
The request had been refused by the health board, but the Information Commissioner found that the records did relate to personal information about the requester and that the relevant section of the Act did apply, though he specified that the requester should be given access only to parts of the records.
In his comment on these cases, Mr Murphy said that records which "relate to" the requester under the Act at present clearly encompass a broader category of records that those which "contain" information about the requester.
Another proposed amendment refers to section 8(4) of the Act, which provides that the reason or motive for the request should be disregarded. It is proposed to add "subject to the provisions of the Act" to this sub-section.
Mr Murphy states that it is unclear what the effect of this would be, but considers that sometimes the public interest might require that the individual's history is relevant.
A woman who had been in foster care sought her records from the health board and these were refused.
The woman appealed to the Information Commissioner, who found in her favour.
He added: "There is a public interest in the requester having access to information which would enable them to assess the performance of the board in its dealings with them."
Another proposed amendment is of section 24(2) of the existing Act. It removes the need to identify the specific harm that would arise from the release of the records.
Mr Murphy gave the example of a man who had asked the Department of Justice, Equality and Law Reform for his security clearance records. This was refused and the man appealed.
In its submission, the Department gave a number of examples where the release of security clearance records would prejudice the security of the State.
However, Mr Murphy found that it did not show that releasing these particular records would do so and he found in favour of the applicant. At the moment that decision has been appealed by the Minister to the High Court.
However, Mr Murphy commented that under the proposed amendment, he would have had to consider the general arguments about such records, rather than the question of specific harm to the State arising from this individual request.