Law lecturer says Official Secrets Act still a threat to information

The Official Secrets Act will always be a threat to the development of a culture of openness in the Civil Service, even after the Freedom of Information Act is fully implemented, a conference

Ms Marie McGonagle, a lecturer in law at the National University of Ireland, Galway, said the Official Secrets Act had always acted as "a very serious threat" to civil servants and journalists, and that threat would exist as long as the Act remained unappealed and unamended.

Ms McGonagle told the "Making Freedom of Information Work" conference in Dublin City University that the Freedom of Information Act was "only a first step" in creating a culture of openness and accountability in government and in the Civil Service.

The Act was a complicated piece of legislation, she said, the strengths and weaknesses of which would become evident only in its use. She was worried about how the ministerial right to issue certificates preventing access to certain sensitive documents might be used. However, the fact that the Act enshrined a "right" of access to information was "highly significant".

"The presumption is very clearly stated to be in favour of access to information. Information can only be refused with reference to one of the exceptions listed," she said.

She also welcomed the fact that when applicants were denied information with reference to the public interest, they would have to be informed what aspect of the public interest was at stake. Another of the Act's strengths was the power vested in the Information Commissioner to deal with appeals.

The Minister of State for Finance, Mr Martin Cullen, said the Act was "only the beginning of transition to a successful Freedom of Information environment" and constituted just "one step in a major reform programme" for the public service. He advised journalists and members of the public to familiarise themselves with the Act to "be able to distinguish between administrative intransigence and genuine exemptions under the legislation".

He warned journalists that "scoops" were unlikely to be uncovered by use of the Freedom of Information Act alone. However, he hoped "journalists would, over time, build freedom of information into their consciousness and avail of it routinely in their work".

So far, most requests under the Act were not incurring charges, thanks to the willingness of applicants "to focus requests". However, the general level of requests so far had been low and most were for personal information, he said.

The Ombudsman and Information Commissioner, Mr Kevin Murphy, said the Act was about "serving the public interest and removing the blindfold from democracy". However, the right to information was a qualified right, and would sometimes compete with other rights and essential public and private interests. He anticipated "much soul-searching about where the public interest lies".

The National Irish Bank controversy featured a conflict between the public interest in the preservation of banking confidentiality and the public interest in wrongdoing being exposed. In the end, the Supreme Court decided that the public interest in exposing wrongdoing was the greater. However, sometimes the public interest was best served by the nondisclosure of information, he said.

Ms Eithne Fitzgerald, who developed the legislation when in office and saw it passed into law just before the Rainbow coalition dissolved, said her own experience of using the Act was that civil servants had "by and large gone out of their way" to provide the relevant information".

Those who used the Act would have to ensure there was "no rowing back on it, but rather a pushing out of the boundaries of the Act".