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Chapter 2
FOI Requests
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Access to records
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11. (1) Subject to this Act, every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body and the right so conferred is referred to in this Act as the right of access.
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(2) An FOI body shall give reasonable assistance to a person who is seeking a record under this Act—
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(a) in relation to the making of the FOI request for access to the record, and
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(b) if the person has a disability, so as to facilitate the exercise by the person of his or her rights under this Act.
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(3) An FOI body, in performing any function under this Act, shall have regard to—
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(a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs,
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(b) the need to strengthen the accountability and improve the quality of decision- making of FOI bodies, and
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(c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
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(4) The records referred to in subsection (1) are—
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(a) records created on or after the effective date, and
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(b) (i) records created during such period (if any), or after such time (if any), before that date, and
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(ii) records created before such date and relating to such particular matters (if any), and
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(iii) records created during such period (if any) and relating to such particular matters (if any),
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as may be prescribed, after consultation with such Ministers of the Government as the Minister considers appropriate.
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(5) Notwithstanding subsections (1) and (4) but subject to subsection (6), where—
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(a) access to records created before the effective date is necessary or expedient in order to understand records created after such date, or
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(b) records created before the effective date relate to personal information about the person seeking access to them,
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subsection (1) shall be construed as conferring the right of access in respect of those records.
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(6) Subsection (4) shall not be construed as applying, in relation to an individual who is a member of the staff of an FOI body, the right of access to a record held by an FOI body that—
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(a) is a personnel record, that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member,
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(b) was created more than 3 years before the effective date by the FOI body concerned, and
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(c) is not being used or proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely the interests of the person.
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(7) Nothing in this section shall be construed as applying the right of access to an exempt record—
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(a) where the exemption is mandatory, or
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(b) where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release.
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(8) Nothing in this Act shall be construed as prohibiting or restricting an FOI body from publishing or giving access to a record (including an exempt record) otherwise than under this Act where such publication or giving of access is not prohibited by law.
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(9) A record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of this Act, give the record to the FOI body for retention by it for such period as is reasonable in the particular circumstances.
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(10) If a person who is or was providing a service for a public body under a contract for the service is a public body specified in Part 2 of Schedule 1, but immediately prior to the enactment of this Act was not a public body to which the Act of 1997 applied, subsection (9) shall not apply to records held by that public body in respect of the contract for service it provides for the other public body until 6 months after the date of such enactment.
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(11) Where an FOI request would fall to be granted by virtue of subsection (9) but for the fact that it relates to a record that contains, with the matter relating to the service concerned, other matter, the head of the FOI body concerned shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate of so much of the record as does not consist of the other matter aforesaid and the request shall be granted by offering the requester access to the copy.
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