Freedom of Information
Introduction
Historically, Governments have not been forthcoming with information to the public, and secrecy has
been the default setting regarding States operations and decision-making. This default position has
been replaced more recently with transparency being formulated as a key indicator of a healthy
Government. However, in reality the extent of the impact of freedom of information on accountability
is contested, and in many States, including Ireland, its operation is often limited.
As T. Mendel said, freedom of information plays an essential part in a democracy. In the following
essay, I will set out the key elements of FOI and the role it can play, among other integrity
mechanisms, in improving democracy and governance, strengthening public decision-making and
inculcating in the citizens confidence and engagement in Government.
Rationale
One of the principal foundations lies in the principle of good governance, since the openness that FOI
can produce allows the exposure of corruption and mismanagement. Also, a well-functioning FOI
scheme should reduce the need for more costly accountability mechanisms, such as public inquiries
and judicial review applications.
Beyond the financial benefits, it should also increase public confidence in Government, bearing in
mind that errors are more likely to be exposed. Similarly, citizens are given an empowering tool
through which they can exercise information rights, which should, in principle, increase political
participation. All of this should also lead to an improvement in the effectiveness and operation of
public services.
Downsides
However, in practice we have seen some difficulties and weaknesses. For example, research by Hazell
and Worthy found that there is little evidence that FOI improved decision-making or public trust.
Also, even after some improvement, patronage has continued to be the primary method of interaction
at the local government level and clientelism has also persisted in relation to other public bodies.
Moreover, FOI has encouraged a different type of secrecy, since its legislation relates to written
records, impoverishing them. Regarding oral conversations, the former UK Prime Minister has
expressed that FOI has had the effect of hindering open communication and discussion among public
sector workers.
The Development of Freedom of Information Legislation in Ireland
Eventually, widespread secrecy could not be sustained and its damage started to be exposed by the
political scandals that emerged in the 1980s. At the same time, Ireland’s participation in the EU led to
pressure for change requiring a decentralised decision-making system and operated rules of
accountability
The establishment of the Office of the Ombudsman in the 1980s and several public sector reforms in
the 1990s were decisive steps that brought a significant change of culture that acknowledged the need
for oversight.
One specific issue arose out of the Beef Tribunal, which was the first tribunal of inquiry to expose
inappropriate relationships between business and politics in Ireland. Here, the Attorney General
objected to certain questions on the grounds of cabinet confidentiality. The decision of the Tribunal to
proceed with the questioning resulted in a judicial review (Attorney General v Hamilton) where the
Supreme Court held that cabinet confidentiality was necessary to the principle of collective
responsibility of Government. This sparked off a shift in public opinion, emerging a new appetite for
transparency.
Finally, in 1994, the Rainbow Coalition made the formal commitment to develop the FOI legislation,
becoming law in April 1997. Minister Fitzgerald stated that its intended effect was to replace the
presumption of secrecy, represented by the Official Secrets Act, with a presumption of openness.
Freedom of Information Act 1997
The 1997 Act was revolutionary in changing the operation of the Irish Government and providing
citizens with a statutory protected right. It was shaped by pre-existing legislations in other
jurisdictions.
There are four fundamental features at its core:
1. Right of access to particular Government records when access request made
2. Requirement to publish information on operation of Government Departments
3. Right to request amendments to personal information
4. Statutory right to reasons for administrative decisions
1) Access to records
It provides the right of access for citizens to records either held by or under the control of a
public body. The right is limited by the fact that the legislation relates to “records” rather than
to the wider idea of “information”. The Act provided a wide definition of a record, including
emails, references, notes and decisions; and recently it has been updated to also include
material in any electronic device or machine readable form. However, it does not include
unrecorded, verbal information or information which someone has knowledge of.
Since the 2014 reforms, all public bodies are now subject to the 1997 Act unless specifically
exempted, and the Minister has the power to extend FOI to private bodies “significantly
funded by the Exchequer”. Regarding retrospective information, it can only be requested if it
relates to the requester personal information, or it is necessary to the understanding of
posterior records.
It is also possible for a public body to refuse a request, being a variety of grounds for a refusal
under s 15 of the 2014 Act, such as not finding the record after taking all reasonable steps or if
granting the request would cause a substantial disruption of the work of the public body.
The legislation also provides restrictions characterised as exclusions and exemptions which
seek to protect a variety of interests both of the State and of third parties. Exclusions mean
certain types of information are wholly excluded from disclosure, for instance, court and
tribunal records and records in relation to criminal investigations.
On the other hand, exemptions relate to types of records which are exempted under certain
conditions, being important bearing in mind that the 2014 Act requires the right of access to
records to be balanced with competing interests, such as the maintenance of law and order
and state security and individual interests to confidentiality and privacy.
Section 28 of the 2014 Act protects Cabinet records based on the principle of cabinet
confidentiality. The concern is that public scrutiny could undermine collective ministerial
responsibility for the decisions of Cabinet as protected by the Constitution.
Finally, the application process consists in making a written request under s 12 of the 2014 Act
to the head of the pertinent public body. The FOI body should provide reasonable assistance
to the requester.
2) Publication of information on operation of public bodies
The requirement that bodies publish information about their operation and decision-making
is a central part of the process of achieving greater transparency.
The 1997 Act created a system whereby public bodies were required to publish information
regarding their activities in the form of a “reference book” and to publish their “internal law”.
Nevertheless, the development of new technologies has led to considering manuals as an
outdated approach, resulting in their replacement in the 2014 Act by a requirement that
public bodies prepare and publish a “publication scheme”. This must detail the classes of
information each body has or intends to publish and how the information will be made
available.
3) Right to Reasons
Section 18 of the 1997 Act clarified the circumstances in which reasons for administrative
decisions were required to be given, providing a right to a written statement of reasons and
finding of fact in respect of any act of a public body concerning the individual. The individual
must have a material interest in a matter affected by the Act. This is now replaced by section
10 of the 2014 Act.
4) Right to amend personal information
Section 9 provides members of the public with a right to have personal information held on
them by a public body amended, which is equivalent to the right under s.6 of the Data
Protection Act 1988. The right can also be exercised by parents and guardians of minors or
other representatives under s.17. If the public body disagrees with the requester, believing that
the information is actually correct, it must attach a copy of the application to the relevant
record. Moreover, details of amended records must be provided to any other public body or
person to whom the record has been provided within the previous 12 months.
As many other freedom of information systems, Ireland’s operates through both internal and
external review mechanisms
Internal reviews must be completed within three weeks of the request. There is discretion as
to the process since it is not directed by the legislation. The decision has to be communicated
to the applicant including reasons and, if the request is refused, it must also include the
relevant provisions of the legislation, relevant findings and details of public interest
considerations. A 2001 report noted that the process’ biggest defect was the “widespread
failure to give proper reasons”, and the Information Commissioner recently highlighted that
delays in processing internal reviews continue to be a problem.
To provide external review of FOI decisions, the Irish legislation relies upon an Information
Commissioner, whose Office, established under the 1997 Act, was in large part modelled on
the Office of the Ombudsman. The Information Commissioner has the power to review
decisions taken at internal review stage and those exempt from internal review. It has been
argued that, even if internal reviews systems are critical, there is a need for a stronger external
review system since, as Mc Donagh notes, the operation of compulsory internal systems
results in delays in accessing external review mechanisms.
The initial assessment is carried out by the investigator, where many different factors are
considered, such as if another party should be notified or if the review can be resolved without
a binding decision. Informal resolutions are preferred over more formal binding processes,
since the firsts are faster and less expensive. During this process, the public body has to
establish a submission stating that its decision was appropriate under the legislation.
The Information Commissioner has significant powers and considerable discretion, so long as
the procedures adopted by the Information Commissioner do not breach the rules of
constitutional justice, as it was further noted in The National Maternity Hospital v The
Information Commissioner and Parents for Justice.
Review decisions are required to be made not later than 4 months after request received “in so
far as is practicable”. However, it has been noted that only 19% of cases were closed within the
statutory time frame. Upon completion, the decision must be communicated to the applicant,
the public body and relevant third parties along with reasons.
Compliance is crucial to the effective operation of the integrity institutions, therefore,
decisions of the Information Commissioner are binding on public bodies. Section 37 of the
1997 Act, now replaced by Section 23 of the 2014 Act, states that a failure to cooperate,
hindering or obstructing the Information Commissioner, is a criminal offence.
Moreover, the 2014 Act provides the Commissioner with additional enforcement powers such
as the possibility of court-ordered compliance.
Regarding judicial reviews, appeals can be made to the High Court on a point of law, or if the
decision of the Commissioner contravenes a requirement imposed by the European Union.
Conclusion
Taking into account all the explained above, we can affirm that the introduction of the 1997 Freedom
of Information Act entailed a movement away from the deeply rooted tradition of secrecy.
As it has been underscored in this essay, many public bodies have, to some extent, integrated FOI into
their activities and even if not enthusiastically embracing transparency, have started to adopt new and
more open practices.
However, it is also necessary to secure the efficient operation of information systems with sufficient
resources, ensuring their day to day functionality, and promoting an appreciation of its value by both
public officials and the general public. Therefore, from my perspective, there are some changes which,
if implemented, could benefit the effectiveness of the FOI system.
These changes include simplifying and streamlining the FOI request process to make it more
user-friendly and efficient for both requesters and public bodies. Also increasing awareness and
understanding of FOI rights and procedures would facilitate the previous step.
Moreover, it is essential to review and potentially revise the fees and charges associated with making
FOI requests to ensure they remain reasonable and do not hinder access to people with limited
financial means. Strengthening enforcement mechanisms and oversight of FOI compliance is crucial
to ensure that public bodies fulfil their obligations under the law, and regular reviews of the Act are
necessary to keep it effective and relevant in addressing evolving challenges and technological
advancements.
Ultimately, as demonstrated by Australia's adoption of an "open data" policy, a shift towards the
presumption of proactive information sharing is desirable, rather than public bodies waiting for
information to be requested.
Thus, it is paramount that FOI is not regarded as a costly administrative and political burden, but
appreciated as an important cultural change in the public sector that supports accountability and
transparency among other core administrative justice mechanisms.
I will conclude with a thought-provoking quote from Adshead and Felle: “... if FOI is to work
effectively in Ireland, much more change is required than the passing of a legislative Act.”
