Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

Ireland

Access to Information Regime

The Republic of Ireland’s Freedom of Information Act, 1997 came into effect in April 1998 as part of a general movement of reform of the public sector. This Act establishes a right to obtain information held by government departments and public bodies, to obtain reasons for decisions affecting an individual, and to have official information relating to an individual amended where it is incorrect, incomplete or misleading. While the Act applies retroactively to personal information, it does not apply to any government document created before April 21, 1998. Any person living anywhere can make a request for information.

An Information Commissioner oversees the Act and its application to 280 public bodies, including all government departments and offices, health boards, local authorities (county and borough governments), publicly funded hospitals, health service providers, courts and other public bodies. As new bodies are created, it is expected they will be phased in and covered under the Act. There is a presumption of access to information held by public bodies, which includes records relating to departmental matters in which Ministers, Ministers of State, their advisers, and civil servants have been involved. Exceptions to access include Cabinet documents and related briefings, deliberations and negotiations of public bodies, records relating to law enforcement, security, international relations and Northern Ireland, records the release of which might damage the economic interests of Ireland, third party information received in confidence, personal information, commercially sensitive information, information subject to solicitor-client privilege, certain matters relating to the courts, and disclosure of not-yet-completed research. Such exceptions are subject to a proviso that they should not apply if, on balance, the public interest would be better served by granting rather than refusing access to the information. The records of the Director of Public Prosecutions and the Attorney General are excluded.

Under the Act, there is no application fee. Fees may be charged to cover document search, retrieval and copying costs, but may be waived on the discretion of a department head where the information may be in the larger public interest or where the cost of collecting the fees would exceed their value.

In 2000, over 13,700 FOI requests were made to public bodies, with the Information Commissioner accepting 388 cases for review by the end of the year. Formal decisions were made on 134 cases, with the decision of the public body affirmed in 91 cases and varied in 43 others. The Commissioner conducts paper hearings and has used his search and entry powers to look at documents in government offices. The Court has ruled that there is no “right” to counsel for public servant witnesses in an investigation by the Information Commissioner. The Information Commissioner cannot initiate complaints.

Decisions of the Commissioner are binding, subject only to being referred to the High Court on a point of law. In 2000, two appeals were made to the High Court for review. The Commissioner may refer any question of law arising in a review to the High Court for determination.

A minister may issue a certificate to override the Act on national security matters and Cabinet confidences to be absolutely certain a record will not be released. Such certificates have only been used twice since 1998 and the certificate is reviewed regularly by an ad hoc committee of ministers, including the Prime Minister. When the certificate is in force the Commissioner cannot conduct an investigation and require the production of documents. The requester can ask for judicial review of the certificate but the Commissioner cannot.

Under the Irish Act, public bodies must formally publish where authority under the Act is delegated in each body. Generally this “decision-maker” is a middle level manager, allowing for a two-tier review process where the head of an institution can first review a decision not to disclose information before it goes to the Information Commissioner. If the head of the institution makes the decision on disclosure, there is no further internal review. This internal review mechanism is effective - a lot more information is released when a more dispassionate look is taken. According to government officials, the FOI decision-makers are encouraged to consult with the Freedom of Information Co-ordination Unit and colleagues and superiors within their department to generate not just a legalistic decision but an informed one. Communications offices are not involved in the FOI process.

Fees for access are difficult to administer and are often not charged. Government officials believe the public service is quite good at responding within the allotted four-week time frame, a view that seems to be shared by journalists and is confirmed by the recent report on compliance by the Information Commissioner.

In contrast to most jurisdictions, the identity of requesters is not protected. Public officials comment that “transparency works both ways” and requesters should be prepared to provide information about their identity, but not about their reasons for seeking the information, which cannot be considered under the Act.

Records containing the substance of Cabinet meetings are protected by a mandatory class exemption and records are exempt from disclosure without a public interest test, for a period of five years after a decision is made. Records containing information about what has been or is proposed to be submitted to a Minister or to Cabinet can be released by the Minister or Cabinet. The factual information contained in Cabinet documents may be released, although it can be difficult at times to distinguish precisely which portions of a document are facts. In the past the release of some factual information from cabinet documents has upset ministers.

The government is looking at creating an electronic format to segregate factual information that can be released from advisory information in Cabinet documents, as well as addressing retention times and access policies for e-mail messages. Ministers’ offices are covered by the Act. Ministers’ diaries have been released in the past, but mostly out of good will, as their status in law is unclear.

The implementation of a unified information system coincided with the introduction of the Act in 1998. Government officials surmise that the public service needs to understand the Act better and needs to learn how to write records that are more factual and do not contain personal opinions.

The Department of Finance is assisting in this education process by keeping a record of FOI opinions to assist individuals in understanding the scope and application of the Act. In addition there are three interdepartmental bodies working on FOI. An Interdepartmental Working Group of departmental FOI specialists resourced centrally co-ordinates the implementation of FOI and provides general advice on policy. The Civil Service Users’ Network of FOI Officers from each government Department and Office focuses on practical issues in the implementation of FOI in the central, Civil Service part of the government. In cases of multi-departmental requests it is common for someone from the Network to negotiate with the requester on behalf of all departments. Both users and ministers appreciate the consistency. The Public Service Users’ Network consists of FOI practitioners from public bodies outside the civil service, and, like the Working Group, is resourced centrally. The Working Group and the two Networks have proved effective both in training new FOI Officers and in sharing and transferring corporate memory.

Officials are concerned with lawyers making FOI request where there is an order for legal discovery, the complexity of coverage of courts under the Act and the challenge of meeting time limits with third party commercial information. They are also of the view that the combination of an injury test and a general public interest test in the Act while a good concept in theory is very complicated to administer in practice. “Frivolous and vexatious” requests are also a concern and the Commissioner has had to deal with at least one abusive requester who flooded the system in its first few months of operation.

The officials believe that the media needs to learn how to deal with government information and make proper access requests. For their part, journalists, the largest single group of requesters, are not happy with the lack of retroactivity of the Act beyond 1998, the fact that it does not apply to the Garda Síochána, Ireland’s national police force, and the slowness with which appeals to the Information Commissioner are dealt with.

About 12 per cent of requests go to internal review and about five per cent to the Information Commissioner. Under the Act, the Information Commissioner, who is also the Republic of Ireland Ombudsman, is required to render decisions on Access appeals within three months. However, some decisions are now overdue by a year. Government officials acknowledge that the Information Commissioner is overwhelmed with review requests. The Commissioner, in turn, cites problems with departments forcing the use of a formal Access request where it is not needed (i.e. for routine information), and overly broad or vaguely worded exemptions for government records.

The government has challenged decisions of the Information Commissioner in court three times. The court does not substitute its opinion on the public interest test as long as the department has properly applied it.

There is a perception that there is good public awareness of the Act and that the extensive training of public servants at all levels before the Act was implemented has engendered a positive attitude towards the law. FOI has led to proactive practices, such as putting minutes of departmental management committee meetings on the Internet and FOI has generated a culture of release – talking with requesters often leads to informal release – though there is still some learning to be done.

There is also a lot of parliamentary scrutiny over FOI and the use of FOI by Parliamentarians is growing – one made 100 requests to test the implementation of the Act in its first year. A Citizen Advisory Group, consisting of journalists, departmental representatives, consumer associations and academics is advising the government on FOI practices. Academics feel that the Irish legislation is relatively strong compared to other jurisdictions, with a good review model, but deplore the fact that it is not fully retroactive.