Ireland and the Freedom of Information Act: FOI@15

Ireland and the Freedom of Information Act

Irish Society

The Irish Society series provides a critical, interdisciplinary and in-depth analysis of Ireland that reveals the processes and forces shaping social, economic, cultural and political life, and their outcomes for communities and social groups. The books seek to understand the evolution of social, economic and spatial relations from a broad range of perspectives, and explore the challenges facing Irish society in the future given present conditions and policy instruments.

Series editor

Rob Kitchin

Already Published

Public private partnerships in Ireland: Failed experiment or the way forward for the state?

Rory Hearne

Migrations: Ireland in a global world

Edited by Mary Gilmartin and Allen White

The economics of disability: Insights from Irish research

Edited by John Cullinan, Seán Lyons and Brian Nolan

The domestic, moral and political economies of post-Celtic tiger Ireland: What rough beast?

Kieran Keohane and Carmen Kuhling

Challenging times, challenging administration: The role of public administration in producing social justice in Ireland

Chris McInerney

Corporate and white-collar crime in Ireland: A new architecture of regulatory enforcement

Joe McGrath

Management and gender in higher education

Pat O’Connor

Defining events: Power, resistance and identity in twenty-first-century Ireland

Edited by Rosie Meade and Fiona Dukelow

Ireland and the Freedom of Information Act

Edited by Maura Adshead and Tom Felle

Manchester University Press

Copyright © Manchester University Press 2015

While copyright in the volume as a whole is vested in Manchester University Press, copyright in individual chapters belongs to their respective authors, and no chapter may be reproduced wholly or in part without the express permission in writing of both author and publisher.

Published by Manchester University Press

Altrincham Street, Manchester M1 7JA

www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data applied for

ISBN 978 07190 9718 8 hardback

First published 2015

The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset by Out of House Publishing

Contents

List of figures and tables

Notes on contributors

Series editor’s foreword

Preface

Acknowledgements

Glossary

Introduction

Maura Adshead and Tom Felle

1 International trends in freedom of information

Nat O’Connor

2 Two steps forward and one step back: political culture and FOI

Maura Adshead

3 Freedom of information and national security: where’s the harm in that?

Jennifer Kavanagh

4 Freedom of information and policing: still a very secret service

Richard Dowling

5 FOI and public trust in parliament

Mark Mulqueen

6 Freedom of information and the media: a case of delay, deny, defeat?

Conor Ryan

7 A glass half-full or half-empty? Citizens’ experiences with FOI

Tom Felle and Gavin Sheridan

8 Reflections on freedom of information: past, present and future

Eithne FitzGerald, John Carroll and Peter Tyndall

9 Conclusions

Maura Adshead, Tom Felle and Nat O’Connor

Index

Figures and tables

Figures

1.1 Public confidence in institutions

1.2 Public interest in politics and desire for openness

1.3 The number of public bodies included under FOI

1.4 FOI requests by different types of user

1.5 Personal and non-personal FOI requests

1.6 Non-personal requests before and after the amendment to FOI

7.1 FOI requests by public body, 2000–2013

7.2 Percentage of personal, non-personal and mixed request by public body, 2000–2013

Tables

5.1 FOI requests to the Houses of the Oireachtas, 2010–2012

7.1 FOI requests to all public bodies – personal records

7.2 FOI requests submitted to all public bodies, 2001–2013

7.3 Source of requests to public bodies, 2000–2013

7.4 Appeals to the Information Commissioner – personal records

7.5 Decisions of the Information Commissioner

7.6 Knowledge of FOI and advice received (percentage)

7.7 Attitudes and satisfaction with FOI process (percentage)

9.1 Number of FOI requests received per year by public body

9.2 Estimated cost of FOI by public body, 2000–2013

9.3 Net fees collected for FOI requests, 2004–2013

Contributors

Maura Adshead is a senior lecturer at the Department of Politics and Public Administration, University of Limerick. Prior to her appointment in Limerick, she carried out research and taught in the universities of Dundee, Liverpool, Essex, Galway and Dublin. She is author of Developing European Regions? Ashgate, 2002; co-author (with Jonathon Tonge) of Politics in Ireland, Palgrave, 2009; and co-editor (with Michelle Millar) of Public Administration and Public Policy in Ireland: theory and methods, Routledge 2003 and (with Peadar Kirby and Michelle Millar) Contesting the State: lessons from the Irish case, Manchester University Press, 2008. She has published a variety of articles on aspects of Irish politics and public policy and has carried out commissioned research for Combat Poverty, the Health Service Executive and the National Economic and Social Forum.

John Carroll is the CEO of the Public Relations Institute of Ireland (PRII). From 2011 to 2014 he was Policy Adviser to Minister Leo Varadkar at the Department of Transport, Tourism and Sport. Prior to that, between 2007 and 2011 he worked as a Parliamentary Assistant to Deputy Varadkar when he was Opposition spokesperson on Enterprise, Trade and Employment, and Communications, Energy and Natural Resources. Carroll holds a BA in History and an MA in International Relations. He has a strong interest in political reform measures, particularly those that relate to the role of the Oireachtas in government and legislation. He is writing in a personal capacity.

Richard Dowling is North-Eastern correspondent with RTE, and is a grandson of R.J. Dowling, the state broadcaster’s first political correspondent. He began his career with the Waterford News & Star before moving to RTE. He is author of Secrets of the State … and how to get them (2011, Liffey Press) and was an early adopter and is a regular user of the Freedom of Information Act in his work as a journalist. A keen proponent of openness in government, he has given workshops to colleagues and to students on how to use FOI.

Tom Felle is acting director of newspaper journalism at City University London, and was formerly head of journalism at the University of Limerick. Prior to that he was a career newspaper journalist and worked for a decade as a reporter and correspondent at the Independent (Dublin); as Bureau Chief of the Leb News Agency (Beirut); and as Deputy Editor of the Irish Echo (Sydney). He has contributed to a number of books on issues including media policy, press regulation, investigative reporting and local journalism. In 2013 he was appointed by the Irish Government to a national expert committee examining the implementation of Ireland’s FOI legislation.

Eithne FitzGerald is policy officer with the National Disability Authority. She is a former Labour Party TD and was Minister of State at the Department of Finance, and a member of the Fine Gael, Labour and Democratic Left ‘Rainbow’ Government between 1994 and 1997 that introduced the Freedom of Information Act. She was first elected to the Dáil in 1992 for the Dublin South constituency.

Jennifer Kavanagh is a law lecturer at Waterford Institute of Technology and completed her PhD in the School of Law at the University of Dublin (Trinity College). Her research is in the areas of constitutional law, media law and politics and the law. She is a member of the executive committee of the Irish Political Studies Association. She is also a member of the Irish Association of Law Teachers. She is a regular contributor to the PSAI website, politicalreform.ie, and writes on civil liberty issues for humanrights.ie. She has also appeared in national media as a legal and political commentator.

Mark Mulqueen was appointed the first Head of Communications for the Houses of the Oireachtas in 2007. He has responsibility for the design and implementation of the national parliament’s communications strategy, incorporating media, web and social media, broadcasting, corporate branding, education and outreach, visitor experience, public events, public information and publishing. He is also the parliament’s spokesperson. Prior to this, he was CEO of the Irish Film Institute. He holds a master’s degree in Political Communications from Dublin City University.

Nat O’Connor is a former Director of the Think Tank for Action on Social Change. He also lectures on policy analysis at the Department of Applied Social Studies, National University of Ireland Maynooth. Nat previously led the research team in the Homeless Agency. He has a PhD in Political Science from Trinity College Dublin and an MA in Political Science and Social Policy from the University of Dundee. His PhD studies were on democracy and freedom of information.

Conor Ryan works with the RTE Investigations Unit. He was Investigative Correspondent with the Irish Examiner from 2011 to 2014. He engages extensively with the FOI Act and the Access to Information on the Environment Directive. Prior to specialising in investigative projects, he worked as a political correspondent. He has been in journalism for twelve years, working for the Irish Examiner, Tallaght Echo and as a freelance reporter with Clare FM. Following lengthy investigations in 2010, his book Stallions and Power: the scandals of the National Stud was published.

Gavin Sheridan was the first employee at Storyful (http://storyful.com) and was its Director of Innovation from its inception in 2010 until after its acquisition by News Corp in December 2013. In his spare time he co-founded TheStory.ie, a website that focuses on using access to information laws to obtain data and documents from governments. His efforts to get information from NAMA led to a High Court case, which decided in 2013 that NAMA was indeed subject to AIE requests. He is also co-founder of KildareStreet.com, Ireland’s open parliament platform.

Peter Tyndall is Ombudsman and Information Commissioner, and Commissioner for Environmental Information of Ireland. He was appointed to the role in December 2013, succeeding Emily O’Reilly. Mr Tyndall was Public Services Ombudsman for Wales between 2008 and 2013. Prior to that, he was the Chief Executive of the Arts Council of Wales. He was also previously Head of Education and Culture for the Welsh Local Government Association and before that worked in a variety of senior positions in housing and social care.

Series editor’s foreword

Over the past twenty years Ireland has undergone enormous social, cultural and economic change. From a poor, peripheral country on the edge of Europe with a conservative culture dominated by tradition and Church, Ireland transformed into a global, cosmopolitan country with a dynamic economy. At the heart of the processes of change was a new kind of political economic model of development that ushered in the so-called Celtic Tiger years, accompanied by renewed optimism in the wake of the ceasefires in Northern Ireland and the peace dividend of the Good Friday Agreement. As Ireland emerged from decades of economic stagnation and The Troubles came to a peaceful end, the island became the focus of attention for countries seeking to emulate its economic and political miracles. Every other country, it seemed, wanted to be the next Tiger, modelled on Ireland’s successes. And then came the financial collapse of 2008, the bursting of the property bubble, bank bailouts, austerity plans, rising unemployment and a return to emigration. From being the paradigm case of successful economic transformation, Ireland has become an internationally important case study of what happens when an economic model goes disastrously wrong.

The Irish Society series provides a critical, interdisciplinary and in-depth analysis of Ireland that reveals the processes and forces shaping social, economic, cultural and political life, and their outcomes for communities and social groups. The books seek to understand the evolution of social, economic and spatial relations from a broad range of perspectives, and explore the challenges facing Irish society in the future given present conditions and policy instruments. The series examines all aspects of Irish society including, but not limited to: social exclusion, identity, health, welfare, life cycle, family life and structures, labour and work cultures, spatial and sectoral economy, local and regional development, politics and the political system, government and governance, environment, migration and spatial planning. The series is supported by the Irish Social Sciences Platform (ISSP), an all-island platform of integrated social science research and graduate education focusing on the social, cultural and economic transformations shaping Ireland in the twenty-first century. Funded by the Programme for Research in Third Level Institutions, the ISSP brings together leading social science academics from all of Ireland’s universities and other third-level institutions.

Given the marked changes in Ireland’s fortunes over the past two decades it is important that rigorous scholarship is applied to understand the forces at work, how they have affected different people and places in uneven and unequal ways, and what needs to happen to create a fairer and prosperous society. The Irish Society series provides such scholarship.

Rob Kitchin

Preface

Timeline to the introduction of FOI in Ireland

The Freedom of Information (FOI) Act was first introduced in Ireland in 1997 by the then Fine Gael-led ‘Rainbow’ Government. It came at a time when Ireland was modernising its civil service structures and was introducing and strengthening oversight, accountability, governance and transparency measures. It also came following a period of political scandals, revealing a layer of secret corruption among Ireland’s political class (see Chapter 2). The Act, which came into force in April 1998, was a watershed moment for Irish democracy because for the first time a presumption of openness replaced the presumption of ‘official secrecy’ that had existed in the State since its foundation in 1922. The Act granted the right to every citizen to request access to documents held by public bodies, including the right to access personal information and have it amended, and the right to see documents detailing how public bodies (including the government) made decisions. The legislation was lauded internationally and proved extremely popular with citizens and the media (Felle and Adshead, 2009).

However, just six years later, in 2003, the Fianna Fdáil–Progressive Democrat Government introduced the Freedom of Information (Amendment) Act. The then Minister for Finance, Charlie McCreevy, explained that the 2003 legislation was necessary because FOI had caused unwarranted pressure on the workings of departments of state and on government. At the time, however, ministers were known to be less than enthusiastic about the release of politically embarrassing information and it is likely that was also a causal factor in the decision to amend the Act. That amended legislation severely curtailed the kind of information that could be released under FOI and also introduced fees for FOI requests. Correspondence between government ministers was specifically excluded from release under FOI, as were all documents that were created for a government meeting. The definition of ‘government’ was so broad as to make any document held by a government department potentially exempt. But more importantly, the legislation sent a strong signal that the open society agenda had firmly closed. The Civil Service took its cues from government, and the signal was clear: FOI was no longer important. Plans to extend the scope of FOI to other public bodies such as financial regulatory authorities and the Irish police (An Garda Síochána) were shelved. After 2003, journalists frequently complained about long delays in accessing documents, about spurious reasons for refusal and about inconsistencies in the ways that information was – or was not – released. Up-front charges included a €15 fee for making a request, a €75 fee for an internal appeal and a €150 fee for a review by the Information Commissioner. There was no recourse to a refund if an appeal was successful. The complaints from journalists were joined by those from civil society groups and international rights groups such as GRECO and Transparency International. Although the 2003 legislation had little impact on personal requesters, it effectively capped the capacity of journalists to investigate in the public interest using FOI laws: documents that might be judged controversial, or potentially embarrassing to the government of the day, could be refused.

With the economic boom in the mid-2000s, Irish journalists continued to report on current affairs, but arguably there was insufficient scrutiny of government economic policy or of the financial oversight and regulatory systems. When the economic crisis of the late 2000s hit, Ireland was among the worst effected countries in the world. There has been much commentary about the severity of the impact of the financial crisis in Ireland, and about the inability of Opposition Members of Parliament, or the media, to get access to documents that formed the basis for government decisions during the Celtic Tiger years (O’Brien, 2014). It is impossible to say whether a more open system of government and regulation would have resulted in flaws in the system being spotted earlier, or whether government policy could have been changed in a way that might have lessened the severity of the crisis. However, it is arguable that if Opposition Members of Parliament and members of the media had been able to probe using the original 1997 FOI Act, some of the weak regulation and flawed policies might have been exposed earlier.

In the 2011 general election, the Fianna Fáil–Green coalition government that had been elected in 2007 was routed, and a Fine Gael–Labour coalition entered power. FOI returned to the national agenda on foot of a promise in the coalition’s Programme for Government (Government of Ireland, 2011). In 2012, the Minister of Public Expenditure and Reform, Brendan Howlin, introduced a Freedom of Information Bill. Though he initially resisted changing the fee regime and acknowledged that fees kept the number of requests down to a manageable level, in June 2014 he agreed to abolish up-front fees for requests in favour of a cost limit along the lines of what is in place in the United Kingdom (SI 2014/531; Minihan, 2014). The Freedom of Information Act 2014 was passed by the Oireachtas on 14 October 2014 and came into effect for new bodies including the Irish police and the Central Bank in April 2015.

The 2014 legislation explained

The 2014 Act is broadly similar to the 1997 legislation, in that it restores the principles contained in the original law and places openness and transparency at the forefront of the operation of the legislation. Indeed, the Act specifically states that public bodies, in performing their functions under the Act, shall have regard to (a) the need to achieve greater openness of public bodies and to promote the principle of transparency in government and public affairs; (b) the need to strengthen accountability and improve the quality of decision-making of public bodies; and (c) the need to inform discussion, debate and comment by the public of decisions of public bodies (2014(11)(3)(a–c)).

Section 8 of the Act requires public bodies to proactively publish records and to prepare publication schemes. This was a feature of the original legislation and while all public bodies initially complied with the requirement, the publication schemes became hopelessly out of date in many instances, especially following the 2003 amendment. Under the new Act there is an onus on public bodies and other organisations covered by FOI to review their publication scheme every three years. The legislation also provides for model schemes for classes of public bodies, and the Information Commissioner has an oversight role in ensuring public bodies are in compliance with the Act. A separate code of practice produced by a panel of experts also provides for training for FOI officers, and public bodies are required under the Act to have regard to the code (Section 48).

Access to records is provided for under Sections 11 and 12 of the legislation. The section is largely similar to sections in the original Act, in that it provides a right of access to any person to request access to records held by a public body, and requires the public body to provide reasonable assistance in getting access to those records. Stronger language on the need for public bodies to be open and transparent is included. As with most similar legislation in Western countries, the request must be in writing (though email requests are accepted) and public bodies have four weeks to respond. Sections 13 to 16 detail grounds for release, part release and refusal, or delays and deferral of access to records. There is little change in these sections from the original Act, or from similar legislation internationally. The legislation also grants access to personal records, with strong entitlements to access records, including the right to have incorrect information amended. These sections are little changed from the original legislation. Further sections of the Act dealing with the functioning and administration of the legislation, with charges for search and retrieval, and with internal appeals, reviews by the Information Commission and appeals to the High Court, are also broadly similar to the original legislation.

There are a number of small but significant changes in Part Four – Exempt Records that tip the balance of the legislation back in favour of the public interest and away from the blanket of secrecy that was introduced following the 2003 amendments. Section 28, concerning meetings of government, reverses the absolute exemption in place for government documents that was introduced in 2003. Documents that record cabinet decisions are still fully exempted (28(2)(a)) but documents created for submission to government by a minister of the Attorney General ‘may’ be released (28(1)) and the five-year rule for the release of such documents was reintroduced (28(3)). This had been extended to ten years in the 2003 Amendment Act. There are no specific grounds listed in the 2014 Act upon which a decision-maker would base a decision to release documents under Section 28(1), though subsection 6 includes an important definition of ‘government’ for the first time. It defines government as a committee of members of the government (the cabinet or a cabinet subcommittee), or a committee with a member of the government and a minister of state and/or the attorney general. While the definition is broader than the constitutional definition (which limits government to just the cabinet) (1937: Article 28) it is significant in that the 2003 Act’s blanket ban on the release of documents included no definition of government in its wide-ranging exclusions.

Section 34 of the new Act grants the power to a minister to issue a certificate to exclude any document on a number of grounds. This is largely similar to provisions in other jurisdictions, and was included in the original 1997 legislation. The provision has been used frequently by the Department of Justice, and on fewer occasions by other government departments. The UK Act requires a cabinet decision for the issuing of a certificate, and therefore the provision has been used on only a handful of occasions in the United Kingdom, most notably regarding records on the decision to invade Iraq in 2003.

Sections 33, 35 and 36 allow for the refusal of records that are sensitive, including those relating to national security, defence, Northern Ireland and international relations (33(1)); information obtained in confidence (35(1)); and commercial sensitivity (36(1)). A public interest override is in place for Section 33, and there is an onus on a decision-maker to first decide that release would adversely affect national security, defence, Northern Ireland or international relations before refusing to release documents. Still, no such public interest test is in place for commercially sensitive documents (see Chapter 3), and there is considerable anecdotal evidence from media reports of wholescale use of this section to refuse access to documents, even when there may be a legitimate public interest in the information being made public (see Chapter 7).

Section 40, dealing with financial and economic interests of the state, now also contains a public interest test. While information that could cause the state financial loss if released is still subject to refusal, Section 40(3) specifically states that decision- makers should consider whether the public interest would be better served by release of the information. This is a significant inclusion and offers an element of oversight of financial and economic affairs, and is likely a result of the legacy of light-touch regulation that dogged the Irish financial system during the Celtic Tiger years. The inclusion of the Central Bank and other economic and financial oversight bodies under FOI is also likely because of this.

The powers of the Information Commissioner to carry out investigations are strengthened. The old legislation gave the Commissioner the power to investigate any public body (2007: Section 36), in relation to its performance on matters pertaining to FOI, and to report on its findings. That power is continued under Section 44 of the 2014 Act. However, such reports in practice were rarely undertaken because the Information Commissioner’s office did not have the resources to carry out such work. In the 2014 Act the Commissioner is granted new powers to enter any premises and demand documents (Section 45), and any person who fails to comply, or obstructs or hinders the investigation of the Commission, is guilty of a criminal offence (45(7)). Significantly, however, the power to enter a garda station and demand records is excluded (45(10)) (see Chapter 4). The 2014 Act makes the destruction or material alteration of a document a criminal offence for the first time (Section 52). While the penalty for summary conviction is a