This country could benefit from the work undertaken internationally in reviewing the operation of very similar legislation to our own, writes Maeve McDonagh
A decision has been made to bring a Bill to amend the Freedom of Information Act before the Government next week and to introduce it in the Dáil within a fortnight.
Scant information about the proposed amendments has emerged as yet, and non-governmental stakeholders such as users of the Act, FOI commentators and civil liberties groups have not been consulted.
The Act has been in force for almost five years, and a review of its operation would indeed be timely. The current secretive approach has, however, the potential to seriously undermine the Act, which is acknowledged internationally as an example of best practice.
The main motivation for amendment of the legislation is concern about disclosure of cabinet records, and this issue will be examined below.
Whether or not this concern, and the legislation to remedy it, is justified, there is a fear that amending legislation primarily aimed at addressing the cabinet records issue may also introduce a wide range of other changes to the Act without any debate as to whether they are warranted or not.
It is worth bearing in mind that FOI has brought with it enormous benefits in terms of openness, enhanced accountability and general improvements in public administration. Many of these benefits are acknowledged, not only by users of FOI, but also by officials.
Nonetheless some public servants also have concerns about the operation of the Act.
These focus on issues such as the cost of FOI; interference with day-to-day operations of public bodies; and inadvertent release of certain information. All of these concerns are contestable and should be assessed in the course of an open review of the Act which would consider its best and worst aspects.
The carrying out of a review of the Act would also allow for deliberation on a wide range of issues such as: the impact on FOI of public sector reform; the question of whether the FOI Act is sufficiently technology-neutral; and the interaction between the FOI Act and other important legislation such as that relating to official secrets, archives, data protection and access to environmental information.
In the case of the latter two legislative regimes, EU directives are in place with which the FOI Act must be compatible.
Another issue which must be addressed is that of the use of public sector information for commercial purposes.
The proposed EU Directive on Commercial Exploitation of Public Sector Information is likely to have a major impact on governmental information policies and practices and requires in-depth public debate.
Reviews of FOI legislation have been undertaken in various jurisdictions such as Australia, New Zealand and most recently, Canada.
We can benefit from the work undertaken internationally in reviewing the operation of very similar legislation to our own.
The Canadian review, for example, commissioned several research papers which are readily available.
We should also follow the example of the Canadian review by ensuring that consultation with all the stakeholders in FOI is pursued. In the Irish context these should include, at the very least, the Office of the Information Commissioner, the FOI Central Policy Unit, the FOI Citizens and Business Advisory Groups which were set up by the Department of Finance to provide feedback from the user perspective, FOI officers of public bodies, senior Government officials, bodies such as Let in the Light and the Irish Council for Civil Liberties and the media.
The cabinet records issue centres on the Government's reservations concerning the operation of a provision of the Act which allows for disclosure of certain cabinet records five years after the Government decision to which they relate has been made.
The timing of the proposed amendments is designed to coincide with the fifth anniversary of implementation of the Act in April, which would have been the first occasion on which records could be disclosed on foot of this provision.
It is clear that the Government intends to extend the five-year period or possibly even remove the provision altogether.
The justification for protecting cabinet records against disclosure is that it helps to protect the unanimity of cabinet decision-making, which is seen as an essential element of the parliamentary system of government.
However, the scope for damage arising from the coming into force of the five-year provision is limited for three main reasons.
In the first place, records which would reveal cabinet discussions cannot be disclosed under this arrangement as they are absolutely exempt.
Secondly, the cabinet records exemption is but one of 12 exemptions provisions in the Act, and sensitive material may be covered by one of the other exemptions even if the cabinet records exemption is no longer applicable.
This point is significant in light of the fact that one of the reasons being put forward for amending the legislation is a fear that sensitive records relating to the peace process may be released.
There is, in fact, a separate exemption in the Act relating to Northern Ireland which specifically prevents disclosure of records where their release could adversely affect matters relating to Northern Ireland.
Finally, the fact that the five-year time limit corresponds to the maximum life span of a government means that records relating to a government currently in power could not become subject to disclosure in this way.
It is worth acknowledging, however, that our five-year period is shorter than that provided for in overseas legislation. Elsewhere the minimum period is 10 years.
The fact that the political parties represented in the current Government are the same as those who participated in the previous government (and indeed that some serving Government Ministers also served in the previous government) means that the coming into operation of this provision may have the potential to cause embarrassment to the current Government.
While the case for amending the five-year provision is not strong, the political realities are such that amendment of the legislation before the April deadline is a fait accompli.
This short time frame will allow insufficient time for a wide-ranging review of the legislation of the kind advocated in this article.
In the circumstances, the least worst option would be to extend the period of five years by a year to allow time for a comprehensive and participatory review of the legislation to take place.
This proposal would have the effect of warding off any perceived damage that might arise from the coming into force of the five-year provision while at the same time allowing for a comprehensive, open and participatory review of the Act before any wide-ranging amendment of the Act.
In deciding on what course of action to take, the Government would do well to take note that precipitate action on its part to significantly curtail FOI rights may well prove counterproductive.
A leading Australian FOI commentator, Rick Snell, who is currently visiting UCC Law Faculty, has warned that in other jurisdictions this type of restrictive, heavy-handed approach has produced a public or parliamentary backlash.
It has led to the government of the day being labelled secretive, a sobriquet which has proved difficult to get rid of and which has been extremely damaging in subsequent election campaigns.
It would be in the Government's own interest and in the broader public interest that no significant amendment of the Act take place pending the carrying out of a full review of the Act.
Maeve McDonagh, Senior Lecturer in Law at University College Cork, is author of Freedom of Information Law in Ireland (Round Hall, 1998)