Freedom of Information Act reform is welcome
Bill shows change of emphasis towards release but interpretation will be key
Eithne Fitzgerald’s Freedom of Information Act was recognised as a genuinely reforming piece of legislation when it was introduced in 1997. Photograph: Alan Betson
Some months after the general election in 2002, the Sunday Tribune submitted a freedom of information request to the Department of Foreign Affairs seeking records on cuts to the budget for overseas aid.
Due to an oversight, the records supplied covered not only overseas aid but all areas of government spending. They showed that the Department of Finance and its minister, Charlie McCreevy, were warning about the economic situation deteriorating and the need for cuts across all departments. This was against the backdrop of ministers’ repeated public denials in the run-up to the election that spending cuts were necessary.
There is no doubt the embarrassment caused by the release was a driving factor in the wholesale revision of the then six-year-old Freedom of Information Act in 2003. The Act was introduced by Labour minister Eithne Fitzgerald in 1997 and was widely acknowledged as a genuinely reforming piece of legislation that made hundreds of thousands of documents held by the State accessible to individuals, organisations and the media.
The 2003 Act introduced a large number of amendments that severely restricted the information that could be retrieved. For one, fees were introduced – €15 for an initial application rising to €150 for an appeal to the Information Commissioner. The real cost though, was search and retrieval fees – an Irish Examiner journalist was asked to cough up more than €1,000 by a State agency in 2005.
A number of other measures severely spancelled the information flow. The definition of deliberative process was greatly expanded and so was the definition of government.
And so it became mandatory to refuse access to a government record, even though the information might have been only tangentially connected to a government decision. The 1997 Act allowed full access to Cabinet papers after five years but that restrictive period was extended to 10 years in 2003.
Minister for Public Expenditure and Reform Brendan Howlin promised he would restore the status quo ante in Government, in other words revert to the more inclusive 1997 Act. And in his new Bill amending the Freedom of Information Act, on balance it seems that Mr Howlin has done just that.
On the downside, fees have not been abolished but the cost of an appeal to the Information Commissioner will be reduced from €150 to €75. The Minister has also promised a review of search and retrieval fees.
On the other side of the equation, he has restored the original definitions from 1997 of government and deliberative process. The head of a State body now has a discretion to refuse the release of a government record. This new Bill has also reduced the period of exemption for Cabinet papers from 10 years to five (though some cynics suggest this will play into the Coalition’s hands as the electorate will be reminded of Fianna Fáil’s poor crisis management between 2008 and 2010 in the run-up to the next election).
In addition, a whole raft of public bodies come under the ambit of FOI for the first time, including An Garda Síochána, Nama, the Central Bank, and the National Treasury Management Agency. However, while this is a welcome step forward, there are limits on what can be accessed, some of them very restrictive. For example, in relation to the Garda, only administrative records relating to human resources, finance or procurement matters will be accessible, and a number of its more sensitive units (including the Emergency Response Unit and the Special Detective Unit) are not amenable to FOI requests under any circumstances.
In the Defence Forces, there is no longer a full exemption for records detailing tactics, strategy or operations. They will not be subjected to a “harm test”.
The office of the President is still exempt from FOI, as are 38 commercial State companies including Bord Gáis, ESB, Bord na Mona, VHI, Tourism Ireland, CIE, the port companies, waterway companies, Eirgrid and Coillte. Interestingly, Dublin Bus and Bus Éireann are exempt but not Iarnród Éireann, which seems a little anomalous. The blanket exemption seems a bit restrictive.
A possible new restriction is that a request may be refused on administrative grounds if it interferes or disrupts the operation not only of the whole body or department involved but of a unit or division of that body. On the face of it, that would seem to make a refusal easier.
Change of emphasis
Overall, there is a change of emphasis apparent in the Act, with a presumption towards release and a right of access to records. How successful that aim will be depends on the manner in which the legislation is interpreted, firstly by the decision-makers within departments and agencies and ultimately by the Information Commissioner.
The current commissioner, Emily O’Reilly, has been a robust advocate of the Bill being presumptive towards information being released.
Ms O’Reilly has been appointed as the new Ombudsman for the EU, and it will fall to her successor to determine how robust the legislation will be in allowing citizens, journalists and other interested parties gain access to records and information held by the State and its agencies.