Shedding light on the State freedom of information

Since last April a quiet but remarkable revolution has been taking place

Since last April a quiet but remarkable revolution has been taking place. It was then the Freedom of Information Act came into force, giving citizens of this State access to a whole range of information for the first time.

Ten months ago, documents held by government departments and other bodies were made public. For the first time, ordinary people actually had a legal right to see the information being held on them by government departments and agencies.

Since October, a number of other bodies were brought within the scope of the Act, including health boards and local authorities.

Just think about it. Government agencies could hold information on a person for years. That information might be inaccurate. It might be used to make decisions about that person. However much someone tried, that information did not have to be made available. Since April, however, anyone can get access to information held and, if it's wrong, correct it.

READ MORE

It also means access to information used by the Government to make decisions - the reports that are commissioned, the memos, the files. Just how did the Government arrive at a decision concerning the Dublin light-rail system, Luas, for instance? Well, write in and request the files. And why not? After all, this is a democracy and the Government makes these decisions in our name.

It might seem so obvious that people should have access to files concerning their social-welfare entitlements, their hospital files and school files. It should have always been part of ordinary democratic practice that journalists have access to information, so that people can be informed - rather than rely on whispered "off-the-record" briefing from people called "sources".

Prior to last April, Ireland ranked as the most secretive state in the EU. The main instrument in ensuring secrecy was the Official Secrets Act. It stated that every file, bit of paper, document or whatever produced by the State was secret, unless otherwise stated. Even the menu in the Oireachtas restaurant was officially a secret.

The Official Secrets Act is not just a colonial inheritance. Yes, the original Act was the British one, passed in the early years of the century in the lead up to the first World War. However, that highly restrictive piece of legislation was not enough for our politicians, so in 1962 the then Minister for Justice, Charles Haughey, amended the legislation to make the Irish version even more restrictive.

Haughey ensured that it was Ministers who decided what was and was not secret and that their decisions could not be challenged by the courts. Under the 1962 Act, disclosure became the exception rather than the rule. It gave civil servants a major role in suppressing information.

Under that 1962 Act, the term "Official Secret" covered any "sketch, plan, model, article, note, document, or information which is secret or confidential or is expressed to be either and which is or has been in the possession, custody, or control of a holder of public office". Should a minister or State authority classify a document as secret, then it was illegal to divulge it.

Haughey cited a number of reasons that this change was necessary, including the leaking of a Leaving Certificate paper two years previously by an apprentice printer.

That legislation, which is still officially on the statute books (but has been superceded by the Freedom of Information Act) was extraordinarily wide, but was actually rarely used. In one instance, the Irish Independent was successfully prosecuted and fined for publishing a police identikit photo of two suspects in the investigation into the disappearance of race horse Shergar. The newspaper published the pictures, which were contained in a Garda bulletin, which had been sent to about 1,500 gardai.

In the second case, Liz Allen, a journalist with the Irish Independent, was found guilty under the Official Secrets Act for publishing details - again from an internal Garda bulletin - which purported to show that the force had prior knowledge of the multimillion-pound Brinks-Allied robbery in January 1993. Allen was found guilty in the District Court.

But it was never the number of prosecutions or even the threat of a court action that was the main effect of that Act; it was the culture of secrecy it created.

The Freedom of Information Act is designed to turn on its head that culture, and the presumption that everything is secret unless otherwise stated. It says that all information held by government and government agencies will be public unless otherwise stated.

It does give a number of exceptions to that rule. It allows information to remain secret when it impinges on sensitive areas, such as relations with other states, information regarding the security of the State, information relating to the Garda and so on.

When the Act came into force last April, the Ombudsman, Kevin Murphy, took on the extra responsibilities of Information Commissioner. It is he who rules, when information is withheld, as to whether that is legitimate. It is his job to look after the public interest and the rights of individuals to information.

Michael Foley is a lecturer in journalism at the Dublin Institute of Technology and a media commentator.