Ireland and the Freedom of Information Act: FOI@15 9781784997175

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Ireland and the Freedom of Information Act

IRISH SOCIETY The Irish Society series provides a critical, interdisciplinary and in-depth analysis of Ireland that reveals the processes and forces shaping social, economic, cultural and political life, and their outcomes for communities and social groups. The books seek to understand the evolution of social, economic and spatial relations from a broad range of perspectives, and explore the challenges facing Irish society in the future given present conditions and policy instruments.

Series editor

Rob Kitchin

already published Public private partnerships in Ireland: Failed experiment or the way forward for the state?  Rory Hearne Migrations: Ireland in a global world  Edited by Mary Gilmartin and Allen White The economics of disability: Insights from Irish research  Edited by John Cullinan, Seán Lyons and Brian Nolan The domestic, moral and political economies of post-Celtic tiger Ireland: What rough beast?  Kieran Keohane and Carmen Kuhling Challenging times, challenging administration: The role of public administration in producing social justice in Ireland  Chris McInerney Corporate and white-collar crime in Ireland: A new architecture of regulatory enforcement  Joe McGrath Management and gender in higher education  Pat O’Connor Defining events: Power, resistance and identity in twentyfirst-century Ireland  Edited by Rosie Meade and Fiona Dukelow

Ireland and the Freedom of Information Act Edited by Maura Adshead and Tom Felle

MANCHESTER UNIVERSITY PRESS

Copyright © Manchester University Press 2015 While copyright in the volume as a whole is vested in Manchester University Press, copyright in individual chapters belongs to their respective authors, and no chapter may be reproduced wholly or in part without the express permission in writing of both author and publisher. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 978 07190 9718 8 hardback First published 2015 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

List of figures and tables

page vii

Notes on contributors

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Series editor’s foreword

xiii

Preface

xv

Acknowledgements

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Glossary Introduction Maura Adshead and Tom Felle 1 International trends in freedom of information Nat O’Connor 2 Two steps forward and one step back: political culture and FOI Maura Adshead 3 Freedom of information and national security: where’s the harm in that? Jennifer Kavanagh

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4 Freedom of information and policing: still a very secret service Richard Dowling

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5 FOI and public trust in parliament Mark Mulqueen

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6 Freedom of information and the media: a case of delay, deny, defeat? Conor Ryan

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7 A glass half-full or half-empty? Citizens’ experiences with FOI Tom Felle and Gavin Sheridan

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8 Reflections on freedom of information: past, present and future Eithne FitzGerald, John Carroll and Peter Tyndall

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9 Conclusions Maura Adshead, Tom Felle and Nat O’Connor

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Index

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Figures and tables

Figures 1.1 1.2 1.3 1.4 1.5 1.6 7.1 7.2

Public confidence in institutions Public interest in politics and desire for openness The number of public bodies included under FOI FOI requests by different types of user Personal and non-personal FOI requests Non-personal requests before and after the amendment to FOI FOI requests by public body, 2000–2013 Percentage of personal, non-personal and mixed request by public body, 2000–2013

page 13 14 19 25 26 27 127 128

Tables 5.1 7.1 7.2 7.3 7.4 7.5 7.6 7.7 9.1 9.2 9.3

FOI requests to the Houses of the Oireachtas, 2010–2012 FOI requests to all public bodies – personal records FOI requests submitted to all public bodies, 2001–2013 Source of requests to public bodies, 2000–2013 Appeals to the Information Commissioner – personal records Decisions of the Information Commissioner Knowledge of FOI and advice received (percentage) Attitudes and satisfaction with FOI process (percentage) Number of FOI requests received per year by public body Estimated cost of FOI by public body, 2000–2013 Net fees collected for FOI requests, 2004–2013

96 127 129 130 131 131 133 135 170 171 172

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Contributors

Maura Adshead is a senior lecturer at the Department of Politics and Public Administration, University of Limerick. Prior to her appointment in Limerick, she carried out research and taught in the universities of Dundee, Liverpool, Essex, Galway and Dublin. She is author of Developing European Regions? Ashgate, 2002; co-author (with Jonathon Tonge) of Politics in Ireland, Palgrave, 2009; and co-editor (with Michelle Millar) of Public Administration and Public Policy in Ireland: theory and methods, Routledge 2003 and (with Peadar Kirby and Michelle Millar) Contesting the State: lessons from the Irish case, Manchester University Press, 2008. She has published a variety of articles on aspects of Irish politics and public policy and has carried out commissioned research for Combat Poverty, the Health Service Executive and the National Economic and Social Forum. John Carroll is the CEO of the Public Relations Institute of Ireland (PRII). From 2011 to 2014 he was Policy Adviser to Minister Leo Varadkar at the Department of Transport, Tourism and Sport. Prior to that, between 2007 and 2011 he worked as a Parliamentary Assistant to Deputy Varadkar when he was Opposition spokesperson on Enterprise, Trade and Employment, and Communications, Energy and Natural Resources. Carroll holds a BA in History and an MA in International Relations. He has a strong interest in political reform measures, particularly those that relate to the role of the Oireachtas in government and legislation. He is writing in a personal capacity. Richard Dowling is North-Eastern correspondent with RTE, and is a grandson of R.J. Dowling, the state broadcaster’s first political correspondent. He began his career with the Waterford News & Star before moving to RTE. He is author of Secrets of the State … and how to get them (2011, Liffey Press) and was an early adopter and is a regular user of the Freedom of Information Act in his work as a journalist. A keen proponent of openness in government, he has given workshops to colleagues and to students on how to use FOI.

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Tom Felle is acting director of newspaper journalism at City University London, and was formerly head of journalism at the University of Limerick. Prior to that he was a career newspaper journalist and worked for a decade as a reporter and correspondent at the Independent (Dublin); as Bureau Chief of the Leb News Agency (Beirut); and as Deputy Editor of the Irish Echo (Sydney). He has contributed to a number of books on issues including media policy, press regulation, investigative reporting and local journalism. In 2013 he was appointed by the Irish Government to a national expert committee examining the implementation of Ireland’s FOI legislation. Eithne FitzGerald is policy officer with the National Disability Authority. She is a former Labour Party TD and was Minister of State at the Department of Finance, and a member of the Fine Gael, Labour and Democratic Left ‘Rainbow’ Government between 1994 and 1997 that introduced the Freedom of Information Act. She was first elected to the Dáil in 1992 for the Dublin South constituency. Jennifer Kavanagh is a law lecturer at Waterford Institute of Technology and completed her PhD in the School of Law at the University of Dublin (Trinity College). Her research is in the areas of constitutional law, media law and politics and the law. She is a member of the executive committee of the Irish Political Studies Association. She is also a member of the Irish Association of Law Teachers. She is a regular contributor to the PSAI website, politicalreform. ie, and writes on civil liberty issues for humanrights.ie. She has also appeared in national media as a legal and political commentator. Mark Mulqueen was appointed the first Head of Communications for the Houses of the Oireachtas in 2007. He has responsibility for the design and implementation of the national parliament’s communications strategy, incorporating media, web and social media, broadcasting, corporate branding, education and outreach, visitor experience, public events, public information and publishing. He is also the parliament’s spokesperson. Prior to this, he was CEO of the Irish Film Institute. He holds a master’s degree in Political Communications from Dublin City University. Nat O’Connor is a former Director of the Think Tank for Action on Social Change. He also lectures on policy analysis at the Department of Applied Social Studies, National University of Ireland Maynooth. Nat previously led the research team in the Homeless Agency. He has a PhD in Political Science from Trinity College Dublin and an MA in Political Science and Social Policy from the University of Dundee. His PhD studies were on democracy and freedom of information.

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Conor Ryan works with the RTE Investigations Unit. He was Investigative Correspondent with the Irish Examiner from 2011 to 2014. He engages extensively with the FOI Act and the Access to Information on the Environment Directive. Prior to specialising in investigative projects, he worked as a political correspondent. He has been in journalism for twelve years, working for the Irish Examiner, Tallaght Echo and as a freelance reporter with Clare FM. Following lengthy investigations in 2010, his book Stallions and Power: the scandals of the National Stud was published. Gavin Sheridan was the first employee at Storyful (http://storyful.com) and was its Director of Innovation from its inception in 2010 until after its acquisition by News Corp in December 2013. In his spare time he co-founded TheStory.ie, a website that focuses on using access to information laws to obtain data and documents from governments. His efforts to get information from NAMA led to a High Court case, which decided in 2013 that NAMA was indeed subject to AIE requests. He is also co-founder of KildareStreet.com, Ireland’s open parliament platform. Peter Tyndall is Ombudsman and Information Commissioner, and Commissioner for Environmental Information of Ireland. He was appointed to the role in December 2013, succeeding Emily O’Reilly. Mr Tyndall was Public Services Ombudsman for Wales between 2008 and 2013. Prior to that, he was the Chief Executive of the Arts Council of Wales. He was also previously Head of Education and Culture for the Welsh Local Government Association and before that worked in a variety of senior positions in housing and social care.

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Series editor’s foreword

Over the past twenty years Ireland has undergone enormous social, cultural and economic change. From a poor, peripheral country on the edge of Europe with a conservative culture dominated by tradition and Church, Ireland transformed into a global, cosmopolitan country with a dynamic economy. At the heart of the processes of change was a new kind of political economic model of development that ushered in the so-called Celtic Tiger years, accompanied by renewed optimism in the wake of the ceasefires in Northern Ireland and the peace dividend of the Good Friday Agreement. As Ireland emerged from decades of economic stagnation and The Troubles came to a peaceful end, the island became the focus of attention for countries seeking to emulate its economic and political miracles. Every other country, it seemed, wanted to be the next Tiger, modelled on Ireland’s successes. And then came the financial collapse of 2008, the bursting of the property bubble, bank bailouts, austerity plans, rising unemployment and a return to emigration. From being the paradigm case of successful economic transformation, Ireland has become an internationally important case study of what happens when an economic model goes disastrously wrong. The Irish Society series provides a critical, interdisciplinary and in-depth analysis of Ireland that reveals the processes and forces shaping social, economic, cultural and political life, and their outcomes for communities and social groups. The books seek to understand the evolution of social, economic and spatial relations from a broad range of perspectives, and explore the challenges facing Irish society in the future given present conditions and policy instruments. The series examines all aspects of Irish society including, but not limited to: social exclusion, identity, health, welfare, life cycle, family life and structures, labour and work cultures, spatial and sectoral economy, local and regional development, politics and the political system, government and governance, environment, migration and spatial planning. The series is supported by the Irish Social Sciences Platform (ISSP), an all-island platform of integrated social science research and graduate education focusing on the social, cultural

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and economic transformations shaping Ireland in the twenty-first century. Funded by the Programme for Research in Third Level Institutions, the ISSP brings together leading social science academics from all of Ireland’s universities and other third-level institutions. Given the marked changes in Ireland’s fortunes over the past two decades it is important that rigorous scholarship is applied to understand the forces at work, how they have affected different people and places in uneven and unequal ways, and what needs to happen to create a fairer and prosperous society. The Irish Society series provides such scholarship. Rob Kitchin

Preface

Timeline to the introduction of FOI in Ireland The Freedom of Information (FOI) Act was first introduced in Ireland in 1997 by the then Fine Gael-led ‘Rainbow’ Government. It came at a time when Ireland was modernising its civil service structures and was introducing and strengthening oversight, accountability, governance and transparency measures. It also came following a period of political scandals, revealing a layer of secret corruption among Ireland’s political class (see Chapter 2). The Act, which came into force in April 1998, was a watershed moment for Irish democracy because for the first time a presumption of openness replaced the presumption of ‘official secrecy’ that had existed in the State since its foundation in 1922. The Act granted the right to every citizen to request access to documents held by public bodies, including the right to access personal information and have it amended, and the right to see documents detailing how public bodies (including the government) made decisions. The legislation was lauded internationally and proved extremely popular with citizens and the media (Felle and Adshead, 2009). However, just six years later, in 2003, the Fianna Fdáil–Progressive Democrat Government introduced the Freedom of Information (Amendment) Act. The then Minister for Finance, Charlie McCreevy, explained that the 2003 legislation was necessary because FOI had caused unwarranted pressure on the workings of departments of state and on government. At the time, however, ministers were known to be less than enthusiastic about the release of politically embarrassing information and it is likely that was also a causal factor in the decision to amend the Act. That amended legislation severely curtailed the kind of information that could be released under FOI and also introduced fees for FOI requests. Correspondence between government ministers was specifically excluded from release under FOI, as were all documents that were created for a government meeting. The definition of ‘government’ was so broad as to make any document

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held by a government department potentially exempt. But more importantly, the legislation sent a strong signal that the open society agenda had firmly closed. The Civil Service took its cues from government, and the signal was clear: FOI was no longer important. Plans to extend the scope of FOI to other public bodies such as financial regulatory authorities and the Irish police (An Garda Síochána) were shelved. After 2003, journalists frequently complained about long delays in accessing documents, about spurious reasons for refusal and about inconsistencies in the ways that information was – or was not – released. Up-front charges included a €15 fee for making a request, a €75 fee for an internal appeal and a €150 fee for a review by the Information Commissioner. There was no recourse to a refund if an appeal was successful. The complaints from journalists were joined by those from civil society groups and international rights groups such as GRECO and Transparency International. Although the 2003 legislation had little impact on personal requesters, it effectively capped the capacity of journalists to investigate in the public interest using FOI laws: documents that might be judged controversial, or potentially embarrassing to the government of the day, could be refused. With the economic boom in the mid-2000s, Irish journalists continued to report on current affairs, but arguably there was insufficient scrutiny of government economic policy or of the financial oversight and regulatory systems. When the economic crisis of the late 2000s hit, Ireland was among the worst effected countries in the world. There has been much commentary about the severity of the impact of the financial crisis in Ireland, and about the inability of Opposition Members of Parliament, or the media, to get access to documents that formed the basis for government decisions during the Celtic Tiger years (O’Brien, 2014). It is impossible to say whether a more open system of government and regulation would have resulted in flaws in the system being spotted earlier, or whether government policy could have been changed in a way that might have lessened the severity of the crisis. However, it is arguable that if Opposition Members of Parliament and members of the media had been able to probe using the original 1997 FOI Act, some of the weak regulation and flawed policies might have been exposed earlier. In the 2011 general election, the Fianna Fáil–Green coalition government that had been elected in 2007 was routed, and a Fine Gael–Labour coalition entered power. FOI returned to the national agenda on foot of a promise in the coalition’s Programme for Government (Government of Ireland, 2011). In 2012, the Minister of Public Expenditure and Reform, Brendan Howlin, introduced a Freedom of Information Bill. Though he initially resisted changing the fee regime and acknowledged that fees kept the number of requests down to a manageable level, in June 2014 he agreed to abolish up-front fees for requests in favour of a cost limit along the lines of what is in place in the United Kingdom (SI 2014/531; Minihan, 2014). The Freedom of Information Act 2014 was

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passed by the Oireachtas on 14 October 2014 and came into effect for new bodies including the Irish police and the Central Bank in April 2015.

The 2014 legislation explained The 2014 Act is broadly similar to the 1997 legislation, in that it restores the principles contained in the original law and places openness and transparency at the forefront of the operation of the legislation. Indeed, the Act specifically states that public bodies, in performing their functions under the Act, shall have regard to (a) the need to achieve greater openness of public bodies and to promote the principle of transparency in government and public affairs; (b)  the need to strengthen accountability and improve the quality of decision-making of public bodies; and (c) the need to inform discussion, debate and comment by the public of decisions of public bodies (2014(11)(3)(a–c)). Section 8 of the Act requires public bodies to proactively publish records and to prepare publication schemes. This was a feature of the original legislation and while all public bodies initially complied with the requirement, the publication schemes became hopelessly out of date in many instances, especially following the 2003 amendment. Under the new Act there is an onus on public bodies and other organisations covered by FOI to review their publication scheme every three years. The legislation also provides for model schemes for classes of public bodies, and the Information Commissioner has an oversight role in ensuring public bodies are in compliance with the Act. A separate code of practice produced by a panel of experts also provides for training for FOI officers, and public bodies are required under the Act to have regard to the code (Section 48). Access to records is provided for under Sections 11 and 12 of the legislation. The section is largely similar to sections in the original Act, in that it provides a right of access to any person to request access to records held by a public body, and requires the public body to provide reasonable assistance in getting access to those records. Stronger language on the need for public bodies to be open and transparent is included. As with most similar legislation in Western countries, the request must be in writing (though email requests are accepted) and public bodies have four weeks to respond. Sections 13 to 16 detail grounds for release, part release and refusal, or delays and deferral of access to records. There is little change in these sections from the original Act, or from similar legislation internationally. The legislation also grants access to personal records, with strong entitlements to access records, including the right to have incorrect information amended. These sections are little changed from the original legislation. Further sections of the Act dealing with the functioning and administration of the legislation, with charges for search and retrieval, and with internal appeals, reviews by the Information

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Commission and appeals to the High Court, are also broadly similar to the original legislation. There are a number of small but significant changes in Part Four – Exempt Records that tip the balance of the legislation back in favour of the public interest and away from the blanket of secrecy that was introduced following the 2003 amendments. Section 28, concerning meetings of government, reverses the absolute exemption in place for government documents that was introduced in 2003. Documents that record cabinet decisions are still fully exempted (28(2)(a)) but documents created for submission to government by a minister of the Attorney General ‘may’ be released (28(1)) and the five-year rule for the release of such documents was reintroduced (28(3)). This had been extended to ten years in the 2003 Amendment Act. There are no specific grounds listed in the 2014 Act upon which a decision-maker would base a decision to release documents under Section 28(1), though subsection 6 includes an important definition of ‘government’ for the first time. It defines government as a committee of members of the government (the cabinet or a cabinet subcommittee), or a committee with a member of the government and a minister of state and/or the attorney general. While the definition is broader than the constitutional definition (which limits government to just the cabinet) (1937: Article 28) it is significant in that the 2003 Act’s blanket ban on the release of documents included no definition of government in its wide-ranging exclusions. Section 34 of the new Act grants the power to a minister to issue a certificate to exclude any document on a number of grounds. This is largely similar to provisions in other jurisdictions, and was included in the original 1997 legislation. The provision has been used frequently by the Department of Justice, and on fewer occasions by other government departments. The UK Act requires a cabinet decision for the issuing of a certificate, and therefore the provision has been used on only a handful of occasions in the United Kingdom, most notably regarding records on the decision to invade Iraq in 2003. Sections 33, 35 and 36 allow for the refusal of records that are sensitive, including those relating to national security, defence, Northern Ireland and international relations (33(1)); information obtained in confidence (35(1)); and commercial sensitivity (36(1)). A public interest override is in place for Section 33, and there is an onus on a decision-maker to first decide that release would adversely affect national security, defence, Northern Ireland or international relations before refusing to release documents. Still, no such public interest test is in place for commercially sensitive documents (see Chapter 3), and there is considerable anecdotal evidence from media reports of wholescale use of this section to refuse access to documents, even when there may be a legitimate public interest in the information being made public (see Chapter 7).

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Section 40, dealing with financial and economic interests of the state, now also contains a public interest test. While information that could cause the state financial loss if released is still subject to refusal, Section 40(3) specifically states that decision- makers should consider whether the public interest would be better served by release of the information. This is a significant inclusion and offers an element of oversight of financial and economic affairs, and is likely a result of the legacy of light-touch regulation that dogged the Irish financial system during the Celtic Tiger years. The inclusion of the Central Bank and other economic and financial oversight bodies under FOI is also likely because of this. The powers of the Information Commissioner to carry out investigations are strengthened. The old legislation gave the Commissioner the power to investigate any public body (2007:  Section 36), in relation to its performance on matters pertaining to FOI, and to report on its findings. That power is continued under Section 44 of the 2014 Act. However, such reports in practice were rarely undertaken because the Information Commissioner’s office did not have the resources to carry out such work. In the 2014 Act the Commissioner is granted new powers to enter any premises and demand documents (Section 45), and any person who fails to comply, or obstructs or hinders the investigation of the Commission, is guilty of a criminal offence (45(7)). Significantly, however, the power to enter a garda station and demand records is excluded (45(10)) (see Chapter  4). The 2014 Act makes the destruction or material alteration of a document a criminal offence for the first time (Section 52). While the penalty for summary conviction is a small fine, the section sends out a signal to public bodies of their statutory duty to comply with FOI legislation. The extension of the legislation to bodies in receipt of funding from the state is also an important step. However, the legislation does not extend to companies who perform public functions that have been privatised, such as waste collection, major semi-state bodies (except Irish Water), areas where the state has a monopoly such as rail, or public transport that is part monopolised, such as Dublin Bus and Bus Éireann.

References Felle, Tom and Adshead, Maura (2009) ‘Democracy and the right to know:  10  years of Freedom of Information in Ireland’ Limerick Papers in Politics and Public Administration 4, University of Limerick Government of Ireland (2011) Government for National Recovery 2011– 2016:  Programme for Government between Fine Gael and the Irish Labour Party. Dublin: Government Publication Sales Office

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Minihan, Mary (2014) ‘Cabinet abolishes €15 Freedom of Information fee’ The Irish Times, 1 July O’Brien, Mark (2014) ‘The Irish press, politicians and the Celtic Tiger economy’ in Steve Schifferes and Richard Roberts (eds) The Media and Financial Crises. Abingdon: Routledge

Acknowledgements

First and foremost, we would like to thank our contributors. Thank you for agreeing to be part of the book and thank you for tolerating our editorialising. That you all did it with such goodwill, in addition to the day jobs that you all already do, and with nothing in return but queries for more references, made us feel part of a very special collective endeavour. A book about a major element of political reform cannot help but be political and some of the evidence uncovered here may prove reassuring for sceptics and cynics. Our work with you, however, demonstrates real enthusiasm for reform across all sections of Irish society and is cause for optimism. We are grateful for all of the support we received from the University of Limerick. We would like to acknowledge grants received from the Office of the Vice President Research; the Department of Politics and Public Administration; and ISKS, which helped to fund the initial conference on FOI in February 2013 that constituted the genesis of the book. We are also extremely grateful for the practical support given from Manchester University Press, especially Tony Mason. Finally, on a personal level, thanks are due, as usual, to our families. Maura sends her love to Mani, Sáoirse and Neil; and Tom sends his to his parents Martin and Chrissie Felle, who have been a constant source of support throughout his life. Last but by no means least, we’d like to thank each other. This was a straightforward, lovely and engaging piece of work, marked only by good humour and common sense. If we can find another excuse, we’d be delighted to do it all again.

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Glossary

Note on Irish language terms This book naturally contains a number of terms and phrases in the Irish language. To treat them all as foreign language terms would be distracting and, for most readers, unnecessary. We have therefore adopted the contemporary Irish practice of treating some Irish words as being assimilated into Irish English: these are not italicised or translated in the text. For readers unfamiliar with the Irish names and acronyms, we offer a short glossary of essential terms. Ard-fheis  National convention of a political party or group Bunreacht na hÉireann  the Irish Constitution Ceann Comhairle  Chairperson of the Parliament (Dáil Éireann) Dáil Éireann  the lower house of the Irish Parliament directly elected under universal suffrage via the Single Transferable Vote (STV) system of Proportional Representation FÁS  Foras Áiseanna Saothair (Training and Employment Authority)  – a state agency established in 1988 with responsibility for assisting those seeking employment Fianna Fáil  political party founded by Éamon de Valera Fine Gael  political party founded by Eoin O’Duffy Garda Síochána  the Irish police, translated from the Irish for ‘Guardians of the Peace’ GRECO  the Group of States against Corruption, established in 1999 under the aegis of the Council of Europe to monitor states’ compliance with its anti-corruption standards Houses of the Oireachtas  Dáil Éireann and Seanad Éireann HSE  the Health Service Executive  – a government agency reporting to the Minister of Health. It came into operation in 2005, replacing the regional Health

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Boards and a variety of other local organisations that were in existence prior to its creation NAMA  the National Asset Management Agency – a body created by the Irish Government in late 2009 in response to the Irish financial crisis. NAMA functions as a ‘bad bank’ acquiring property development loans from Irish banks in return for government bonds NTMA  the National Treasury Management Agency – a government body to manage the national debt Oireachtas  the legislature of Ireland comprising the President, the Dáil and the Seanad RTE  Raidió Teilifís Éireann, a semi-state company and the national public service broadcaster in Ireland Seanad Éireann  Senate of Ireland – the upper House of the Irish Parliament constituted by an indirectly elected mixture of elected and selected members Tánaiste  Deputy Prime Minister Taoiseach  Prime Minister TD (Teachta Dála)  Member of Parliament, translated from the Irish for ‘Deputy of the Dáil’ Tithe an Oireachtas  Houses of Parliament

Introduction Maura Adshead and Tom Felle

Freedom of information (FOI) is important because it aims to makes government open, transparent and accountable. FOI legislation is based on the premise that people have the right of access to public documents, save for certain exemptions. The philosophy behind such legislation is that citizens have a ‘right to know’ how and why decisions are made by government in their name. In this respect, it is often argued that FOI legislation also has the potential to lead to more accountable government, less corruption and better democratic outcomes for states. In short, FOI presents a key element in effective political reform. In the aftermath of massive economic, political and social crisis and upheaval in Ireland there is widespread agreement about the need for political reform, but far less consensus about what form this reform should take. This book presents the case for FOI and examines the potential it offers for better government, as well as the limits and constraints to what the most recent FOI legislation might deliver. The book traces Ireland’s experience of FOI legislation, from the first Freedom of Information Act in 1997, to the amendments that significantly constrained its provisions in 2003, to the new revisions that came into operation in 2014. Following from that, it looks at the operation and use of FOI from a series of perspectives: from a governmental perspective, taking views from public officials and politicians, in government and in opposition; from a state perspective, looking at the legal balancing act between keeping secrets and keeping government accountable; from a journalist’s perspective on the use and misuse of FOI; and from a citizen’s perspective, using FOI to develop active citizenship and engagement. Finally, taking all of these views into account, the book assesses the extent to which FOI has contributed to, and may continue to contribute to, political reform.

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Maura Adshead and Tom Felle

Chapter 1 by Nat O’Connor, Director of the Think Tank for Action on Social Change, places our understanding of freedom of information in an international context, by examining the evolution of governmental attitudes towards the relationship between public access to information and the democratic system. By looking at international trends in FOI, the chapter situates Ireland’s experience with FOI more clearly and highlights the significant difference between narrow bureaucratic and primarily administrative approaches to the implementation of FOI, and more ambitious and broader attempts to use FOI as a cornerstone of democratic practice. The chapter illustrates quite clearly evidence for both approaches to FOI in Ireland and outlines the key issue areas where this tension is most evident. After a review of the data available to examine public attitudes towards and uses of FOI in Ireland, the chapter goes on to discuss the broader democratic system in which freedom of information interacts with parliamentary questions, administrative record-keeping, official secrets and other ways in which information is made available (or denied) to people living in Ireland, and the extent to which the overall availability of information promotes (or constricts) democracy in Ireland. Chapter 2, by Maura Adshead from the Department of Politics and Public Administration at the University of Limerick, gives particular consideration to the political culture in which Irish approaches to governmental secrecy and freedom of information evolved and developed. It notes that openness and transparency in government institutions were not high priorities for the fledgling Irish state. Fresh from fighting the War of Independence and in the midst of Civil War, the Free State government that was established with Irish independence was driven by an expedient imperative to maintain control. From these beginnings, many have noted that the Irish state system that subsequently evolved was characterised by a centralised and secretive approach to government  – governed more by pragmatics than principle. It is from this starting point that Chapter 2 documents the political and administrative culture of the Irish state as it evolved throughout the last century, demonstrating that once institutional norms are established, they take a great deal of effort and directed political intention to shift them. The chapter looks at Irish attitudes to FOI and illustrates the unevenness of reform efforts over the years, as well as the prospects for a future re-orientation. Having identified likely areas for tension in FOI in Chapter 1 and a particular approach to state secrecy in Chapter 2, Chapter 3 by law lecturer and specialist in constitutional and media law, Jennifer Kavanagh from the Waterford Institute of Technology, examines the clash between national security and the public interest in Ireland’s FOI legislation. Noting that freedom of information is grounded in the public interest to access information, whereas national security typically tries to restrict information to protect the security of the state, Chapter 3 examines legal and constitutional parameters in which the restriction

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of access to information operates. It assesses how Ireland’s FOI legislation measures up against international norms of FOI in this area and examines the challenges to litigating the public interest in such cases where Irish courts have always shown undue deference to the will and arguments of the state. The chapter concludes by arguing that Ireland’s national security restrictions are disproportionate to its security threats, serving rather to stifle democratic debate and effective discussion of government policy. These themes are further developed in Chapter 4, which looks at the difficult balancing act required by the needs of freedom of information versus law enforcement. Richard Dowling, an RTE investigative journalist with considerable experience of using FOI legislation nationally and internationally, notes that unlike other states with FOI legislation, the Irish state has traditionally excluded the police force from FOI. This is set to change now that the Government has included An Garda Síochána in the revised FOI legislation. In consequence, this chapter examines and questions that extension in order to assess how effective it is likely to be in practice. It notes that many parts of the organisation are excluded from the new FOI provisions and examines why this is the case, and how the Irish Act compares to other similar jurisdictions where the police are subject to FOI. Irish exemptions are compared with the FOI regimes in other jurisdictions, such as the United States and the United Kingdom, particularly in relation to the release of Irish material, which – ironically – may sometimes be obtained ‘second-hand’ from agencies in other states that are subject to FOI. An examination of this, and recent reports regarding gardaí and crime, reveals that the current FOI legislation, while welcome, remains limited in its capacity to deal with the Irish state’s approach to policing and accountability. Chapter 5, by Mark Mulqueen, Director of Communications at the Houses of the Oireachtas, examines the response made to FOI legislation in the Oireachtas and suggests that FOI is but one move towards a more functional and developed system of open government in Ireland. Highlighting that public trust in government is paramount for a flourishing democracy, the chapter examines the relationship between the Houses of the Oireachtas, the public and the media in terms of developing public confidence in government. The chapter argues that this is predicated on citizens being more knowledgeable about how the political system works, and examines the ways in which the Houses of the Oireachtas, as well as the media, have responded to the Irish FOI regime. The main contention of the chapter is that Oireachtas efforts to inform citizens about the political system and processes do not have the same level of impact or resources as are available to the media. Bearing this in mind, the chapter concludes that many positive efforts to develop public trust in parliament are routinely undermined by an excessively single-minded use of FOI by journalists keen to make a headline.

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Maura Adshead and Tom Felle

Chapter  6, by the Irish Examiner’s investigative correspondent, Conor Ryan, offers something of an antidote to this view. FOI, for a generation of post-Troubles Irish journalists, has unearthed many important stories and allowed journalists to report in the public interest on important investigations. However, restrictions on the Act since 2003 have severely curtailed journalists’ ability to carry out investigations and ensure accountability for the public. Inconsistencies in approach from public bodies have in many cases made the Act almost impossible to use successfully in an accountability role as a reporter. Chronic understaffing at the Office of the Information Commissioner’s office has also meant that, in effect, access delayed is access denied in many instances. Ryan also laments the inability of the FOI regime to implement any system of precedent – and charts his own personal experiences with various public bodies, in which he has requested access to material that both the Information Commissioner and the High Court have previously ruled should be released, but which continues to be denied by decision-makers. He also examines the use of exemptions such as personal information and commercial sensitivity, and demonstrates again how inconsistencies in approach are leading to poor decision-making on FOI by public bodies. Having referred to and explored ‘the public interest’ from a variety of perspectives in previous chapters, Chapter 7 examines the citizen’s experience of FOI. It begins with a basic ‘how to’ guide to making an FOI request and details citizens’ usage of the Act since its inception. Following an examination of significant Information Commissioner rulings that, it is argued, have shaped the evolution of the Act, the chapter assess a sample of citizens’ experiences making FOI requests. The chapter is co-authored by former journalist and current academic, Tom Felle, and Gavin Sheridan, investigative journalist and citizen activist for FOI; both of whom have quite different citizen experiences to relate. Utilising the reported experiences of personal and non-personal FOI requests, this chapter details quite different levels of satisfaction with the two FOI processes. Chapter 8 presents three critical reflections on the initial intentions, contemporary usage and possible evolution of FOI legislation in Ireland by three practitioners well placed to comment. This chapter combines the thoughts and ideas of Eithne FitzGerald, the original minister in charge and champion of FOI in Ireland; John Carroll, a former policy analyst and political adviser with experience of using the Act both in opposition and in government; and Peter Tyndall, the current FOI Information Commissioner and Ombudsman. The book concludes with some summary insights offered by the editors and Nat O’Connor, who was responsible for setting out the international and comparative context of Irish FOI legislation in the first chapter. In his initial contextual chapter, Nat suggested that FOI legislation typically follows one of two alternative implementation types:  a narrow and primarily administrative

Introduction

5

interpretation that is focused on citizens’ access to personal records; or a broader and much more substantive interpretation, which sees FOI as but one building block in the creation of a more open and transparent system of governance. The chapter draws together the evidence presented by the various contributors  – pointing out the evidence that exists for both the narrower and broader interpretations of FOI in Ireland. On balance, it is fair to conclude that thus far the Irish FOI regime is closer to the former, narrower, interpretation of FOI than the latter, broader prescription for open government. Whether this is a stage in the evolution of Irish FOI, or the intended end point, is a judgement that we leave to reader.

1 International trends in freedom of information Nat O’Connor

Introduction The historical starting point for discussing freedom of information in relation to modern democratic states is in Sweden in 1766. During a period of parliamentary rule, a new government passed an access to official information law. This law has been interpreted as an act of realpolitik because it simply permitted the new government to access the documents of the previous incumbents. Yet, this explanation is incomplete as the Freedom of the Press and the Right of Access to Public Records Act was wide-ranging and incorporated free press and public access elements that went far beyond the narrowly instrumentalist purpose of a government ensuring that it could access official documents for itself. An alternative interpretation of the law is that the law’s originator, a Finnish clergyman named Anders Chydenius (Finland was under Swedish rule at the time), was heavily influenced by Chinese administrative reforms of the seventh century and, in the context of Enlightenment thinking, sought to deepen democratic governance in Sweden (Lamble, 2002). Although democratic rule was interrupted in Sweden, the constitutional principle of Offentlighetsprincipen (public access) has remained one of the central pillars of the Swedish Constitution and has influenced the development of democracy in neighbouring countries (ibid.). By 1789, similar principles were to be found in the United States’ Bill of Rights. Although, initially, these ‘rights’ stemmed from a concrete desire to explicitly curtail the power of the central government, their general language and wide-ranging influence requires them to be seen as ideological. In terms of information, the focus in the Bill of Rights is on press freedom, and freedom of speech more generally, as the mechanism to safeguard liberties. The United States’ Constitution has been highly influential in the establishment of

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democratic rule in other countries and many constitutions have been modelled on elements of the US Constitution. The crucial limitation of the freedom of information aspect of the US Constitution is that it focuses exclusively on freedom of speech and the press.1 It does not safeguard the freedom to seek or access official information, merely to publicly disseminate existing knowledge and opinion. The discourse of freedom of speech is decisively limited without such safeguards, as freedom of expression logically relies on prior access to information in order to be meaningful as a genuine safeguard of liberty. Freedom of opinion and speech was similarly protected in Articles 10 and 11 of the French Déclaration des droits de l’Homme et du citoyen in 1789. Additionally, public access to official documents about taxation and other matters was explicitly enshrined in Articles 14 and 15. The explicit nature of Articles 14 and 15 is evidence that reinforces the claim that proponents of democracy in the Enlightenment period were conscious of the vital importance of public access to official information. It also serves as an example of a much stronger level of accountability being sought of public officials. The Déclaration is explicitly recalled in the current French Constitution (1958), showing the enduring influence of the values and principles it upholds. Pettit argues that a public right to explanations about official decision-making is a basic tenet of civic republicanism (Pettit, 1997: 188). Following the Enlightenment, there was little significant discourse on freedom of information again until the aftermath of the Second World War resulted in a series of international institutions designed to promote human rights and to prevent war. The United Nations is the archetype of these bodies and the Universal Declaration of Human Rights (UDHR) is perhaps the quintessential ideological document that underpins many modern conceptions of democracy. Article 19 reiterates freedom of opinion and expression as human rights and also includes the right ‘to seek’ information, although it falls short of including any right of access to official information. It is interesting to compare the more open language used in Article 19 of the UDHR in 1948 with the set of restrictions and limits included in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) of 1966. In the latter, public order, public morality and individuals’ reputations are all cited as reasons to limit freedom of expression. Article 19 is the most heavily qualified of all the articles of the UDHR that were put into the ICCPR. The extent of specific limits in this article is perhaps evidence of the complexity in translating values relating to freedom of information into balanced, judiciable principles (see Chapter 3). That freedom of expression needs to be regulated to prevent abuses appears reasonable, but the focus on what constitutes ‘reasonable’ freedom of expression seems to have overshadowed the more important question of what access to official information is necessary to provide protection and promotion of democracy.

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One of the early acts of the United Nations was focused on exactly that question. In 1948, the UN held a Freedom of Information Conference. The conference supported the principle that the public should have access to government documentation in order to safeguard legitimate, democratic forms of government around the world. However, proposals to pass a specific resolution were blocked by Western countries who argued that any such resolution that permitted state interference in freedom of information could be used to regulate and curtail freedom of the press (Romulo, 1948). Nevertheless, the holding of the conference so early in the United Nations’ history provides support for the claim that issues of freedom of information were close to the core of the human rights ideology being developed by the UN project. The Council of Europe was founded on similar ideals to those of the United Nations. The European Convention on Human Rights (1950) was more binding than the UDHR, and in Article 10 it enshrines freedom of speech and press in similar, restricted language to that later used in the ICCPR. Nevertheless, it represents an attempt to enshrine values in broadly applicable language as part of an attempt to spell out the ground rules for democratic rule (Council of Europe, 1950). Freedom of information, in the sense of public access to government documents, has appeared in several of the Council of Europe’s recommendations to its members. Key recommendations were Recommendation No R. (81) 19 in 1981 and Recommendation Rec. (2002) 2 in 2002. The 1981 recommendation spells out clear support for freedom of information in eight points: i

Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities. ii Effective and appropriate means shall be provided to ensure access to information. iii Access to information shall not be refused on the ground that the requesting person has not a specific interest in the matter. iv Access to information shall be provided on the basis of equality. v The foregoing principles shall apply subject only to such limitations and restrictions as are necessary in a democratic society for the protection of legitimate public interests (such as national security, public safety, public order, the economic well-being of the country, the prevention of crime, or for preventing the disclosure of information received in confidence), and for the protection of privacy and other legitimate private interests, having, however, due regard to the specific interest of an individual in information held by the public authorities which concerns him personally. vi Any request for information shall be decided upon within a reasonable time. vii A public authority refusing access to information shall give the reasons on which the refusal is based, according to law or practice. viii Any refusal of information shall be subject to review on request.

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The preamble to the 2002 recommendation makes clear the connection between freedom of information and democracy and reinforces the 1981 recommendation by suggesting that legislation be put in place to clarify exactly what records are not accessible through freedom of information. Alongside the wide-ranging establishment of these general principles, the first freedom of information (FOI) legislation in the twentieth century was passed in Sweden in 1949. This was followed by Finland in 1951. However, the most influential piece of legislation of this type was the United States’ Freedom of Information Act (FOIA) of 1966. On the one hand, the FOIA was a development of previous American administrative laws since the 1950s and simply increased public access to federal documents (Cain et al., 2003). From this perspective, the law was primarily administrative in origin and purpose. But the political context for the introduction of the FOIA was also important. Introduced at the end of the Civil Rights movement period, when in many sections of the population public confidence in politics was at a low ebb, FOIA gave genuine, open public access to official documents, which it was hoped would increase public confidence in the legitimacy of government. To do this, FOIA had to be genuine and to strongly guarantee transparency as a core principle of the United States’ democratic system, rather than merely open up one or two new channels to access some official documents. FOI legislation (often called ‘sunshine’ laws) rapidly spread through each of the fifty states of the union. Later, the Privacy Act of 1974 was a similar tool giving the citizen right of access to public records in which he/she is named, and to sue the government for the non-release of official records where access is not restricted by the personal privacy elements of this Act. Also, the Government in the Sunshine Act of 1976 required meetings of public agencies to be open for public observation. In the wake of Watergate, these were important pieces of legislation that gave the public significantly increased access to the inside workings of their democratic institutions. From 1966, the existence of FOI legislation in the United States was a strong influence on other countries to include public access to official information as one of the core elements of democratic rule. Banisar (2013) counts ninety-nine countries or jurisdictions as having some form of public right to access official information. Similarly, the global network freedominfo.org (2012) presents a consensus list of ninety-three countries. European states that have introduced FOI legislation in the twentieth century include: Sweden (1949); Finland (1951); Denmark (1964); Norway (1970); France (1978); Netherlands (1978); Austria (1987); Spain (1992); Portugal (1993); Belgium (1994); Ireland (1997); Latvia (1998); Czech Republic (1999); Estonia (2000); Lithuania (2000); Slovakia (2000); United Kingdom (2000); Poland (2001); Slovenia (2003); Germany (2005); and Hungary (2005). Other states that have adopted FOI include: Australia (1992); New Zealand (1992); Canada (1993); Israel (1998); Japan (1999); India (2000); South Africa (2000); and Turkey (2004). Many other countries have introduced

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constitutional and/or legal provisions about public rights to access official documents, but some of these are more symbolic than others (Banisar, 2002). Article 255 of the Treaty Establishing the European Community has given citizens and residents of Member States the right to access European Parliament, Council and Commission documents since 1957. This rule applies to the operation of the European institutions themselves and sets an example for Member States. In 1990 the European Union went further with the Directive 90/313/EEC on Environmental Information. This directive obliged all Member States to grant their citizens and residents access to state documentation on specific information on environmental pollution and related matters. The requirement to ratify this directive and to operate a public access institution has thus entered the administrative experience of each member state. This is an important test of the democratic credentials of Member States, especially those with fledgling democratic institutions. In addition, implementing this directive was evidence to government officials, politicians, activists and citizens alike of the likely impact of broader public access to official information. For the public (represented mostly by the media and environmental activists in this case) it may have raised the question of why other information was kept secret when environmental information of an equivalent level of confidentiality was accessible. Article 11 of the Charter of Fundamental Rights of the European Union 2000 is one of the latest major declarations of liberal democratic ideology. However, while it reinforces freedom of speech and freedom of the press, it does not include a specific public right to access official information. This replicates the position of the ICCPR and the US Constitution. It also raises a question about the status of public access to official information as part of contemporary democratic discourse, as to whether it is seen as a primary right – equal in status to freedom of speech  – or whether it is seen as a secondary right that exists to reinforce free speech, but does not exist for its own sake. From the point of view of freedom of information as an ideal, it is public access to official information that is logically prior to free speech or press freedoms. These other freedoms are crucially weakened without guaranteed access to information. The lack of attention to freedom of information indicates a serious flaw in the constitutional documents mentioned above as well as in the conceptualisation of free speech as part of democracy. Moreover, debate in this area has constantly focused on what might be ‘reasonable’ limits of free speech: for example, citing the ‘harm principle’, that certain categories of speech should not be permitted (e.g. incitement to hatred). What this debate fails to address is a positive account of what information should be available to be transmitted in order for free speech to contribute to democratic rule. The above international developments set the broad context for the development of freedom of information in Ireland. There are good reasons to believe

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that Ireland was influenced by many of the international factors outlined above. Historically, the Irish rising of 1798 was modelled on the French Revolution, and the French and American political systems were influential in early republican discourse in Ireland. As an independent state, Ireland was one of the ten founder members of the Council of Europe, and has always had a tradition of strong engagement with the United Nations. Irish society has always been open to influences from the United States, through popular culture and the media as well as through a strong formal relationship between both countries. Perhaps the largest, positive influence on Ireland in relation to freedom of information was the European Union (and its predecessors). The European treaties and directives set binding requirements on all members and freedom of information has been part of these requirements. However, a discussion of the international context would not be complete without mention of the large (and largely negative) influence – in terms of freedom of information  – on Ireland of the United Kingdom (UK). The UK has a long-standing tradition of state secrecy embedded in both its civil administration and its security/military traditions. Perhaps the single most important reason why Ireland did not pursue freedom of information earlier was because it runs so contrary to what was for so long the ‘normal’ practice of British government. As Ireland inherited its civil service and state military traditions from the UK (Coakley, 1999), and has modelled many policy initiatives on similar developments in the UK, it is unsurprising that successive Irish governments did not embark on the radical departure from British political culture that is implied by freedom of information. Finally, in terms of wider influences, it is important to remember that democracy remained an exceptional regime type until the early twentieth century. From the aftermath of the First World War, a series of ‘waves of democratisation’ have been described, where increasing numbers of countries introduced democratic forms of government (Huntington, 1991). Perhaps, however, due to the influence of the United States, a strong emphasis has been placed on free speech as part of liberal democracy, whereas public access to official information has rarely been argued for as one of the basic elements of democratic rule, regardless of how strongly implicit it may be in the operation of fair elections and political free speech. Nevertheless, the above list attests to the steady growth of FOI legislation in democratic countries around the globe.

The evolution of freedom of information in Ireland The scandals and subsequent tribunals that dominated Irish public life in the 1990s provided the catalyst for a series of actions by the State to put in place mechanisms to narrow the growing gap between public pressure for openness

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and a closed political-administrative culture (see Chapter 2). These measures included the Ethics in Public Office Act 1995 and the Freedom of Information Act 1997. Prior to this, however, there had been a degree of agitation for FOI legislation in Ireland throughout the 1980s. In 1983, an Oireachtas Committee submission by the Irish Council for Civil Liberties claimed that ‘Ireland is characterised by secrecy, and there is now an absolute need for a freedom of information act so that citizens of this country may obtain from government departments copies of [documents] that may affect them’ (O’Brien, 2006: 38). The first Dáil record of freedom of information is from 1983 when Proinsias De Rossa TD asked the Minister for the Public Service if he would consider introducing a Freedom of Information Bill. In 1985, the chairman of the Association of Higher Civil Servants, James O’Brien, suggested the introduction of a Public Information Act at the association’s annual conference. The first Freedom of Information Bills were proposed in 1985 and 1988 by Senator Brendan Ryan. The call for more openness was taken up by a civil society organisation, Let in the Light, which included a number of members of the National Union of Journalists (NUJ) and held a major conference in 1993 (The Irish Times, 1993; Smyth and Hazelkorn, 1993). Once it was clear that the 1997 legislation was really happening, a number of conferences were held that not only discussed the legal and administrative nuances of the new measures, but also gave a platform for discussion of freedom of information in much wider terms, as it related to the ideal operation of democratic government. For example, in 1997, the Library Association of Ireland held a conference, and accountability was the theme of the IPA national conference. The Department of Law at University College Cork held a conference the following year. The Freedom of Information Act 1997 was brought in by Eithne FitzGerald TD, a Labour Party Minister of State in the ‘Rainbow’ (Fine Gael–Labour–Democratic Left) coalition (see Chapter  9). However, after the 1997 election, the new legislation was implemented by the subsequent Fianna Fáil–Progressive Democrat coalition. As such, political parties from across the spectrum have been involved in bringing in the FOI regime. The Irish case is perhaps typical of the more recent wave of introducing transparency legislation in modern democratic states. The ideas of freedom of information and other means of monitoring official behaviour had developed a long pedigree by 1997. Various political actors in Ireland, including journalists, Opposition politicians and senior civil servants, had voiced support for FOI legislation over the previous fifteen years (or more). However, it was not until a series of political scandals had erupted, costing the Irish taxpayer millions (originally and again through tribunals of inquiry), that legislation was brought in to open up government activities to greater public scrutiny and accountability (Clifford, 2013).

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90 80

1981 1999

70

Percentage

60 50 40 30 20 10 0 Confidence in parliament

Confidence in the civil service

Confidence in Churches

Confidence in the press

Figure 1.1  Public confidence in institutions Source: World Values Survey, Wave 2 and Wave 3a a Online database at www.worldvaluessurvey.org

It is extremely important to remember that major institutional reform is not inevitable. The fact that the Freedom of Information Act was amended in 2003, and substantially weakened in many respects, provides a clear warning to the public that openness and accountability cannot be taken for granted. But before going into the detail of the Freedom of Information Act and subsequent Amendment, it is worth looking at the evidence that the Irish people wanted more open government. One source of evidence of a groundswell of popular support for direct public access to official information comes from the World Values Survey, which monitors changes in people’s social and political values in countries across the world. The survey is professionally conducted and at least one thousand people were asked the questions in Ireland, which makes the findings statistically representative of the population as a whole. Figure 1.1 shows a significant drop in public confidence in parliament, the church and the press, with less than a third of people (31 per cent) reporting confidence in parliament in 1999. At the same time, Figure 1.2 shows that an increasing proportion of people declared that they were interested in politics. A third of people said they followed politics in the news daily and another third said they followed it at least once or twice a week. Most crucially, in 1990 (which is the only year this

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Nat O’Connor 100 90 80

Percentage

70 60 50 40 30 20 10 0 'Very' or 'somewhat' interested in politics (1999)

Follow politics in the news at least 1 or 2 times/week (1999)

'Completely' or 'somewhat' agree with the need for much more open government (1990)

Figure 1.2  Public interest in politics and desire for openness Source: World Values Survey

particular question was asked), the vast majority of people (88 per cent) agreed ‘completely’ or ‘somewhat’ that ‘our government should be made much more open to the public’. Nearly nine out of every ten people said that government should be more open, which implies wide cross-party support for the idea of openness. It is important to be clear what open government is all about. There is the minimalist conception of openness, which is essentially ‘open administration’. In this conception, freedom of information is about allowing individuals to see their personal files held by public bodies. Openness, in this way, is limited to resolving individual dealings with public bodies. This administrative conception of freedom of information is closer to data protection concerns. It is certainly an important safeguard for individuals, but it is far less than the substantial conception of open government as something required by democracy because the public have a right to know why decisions were made by public bodies, officials and elected representatives. The State and all public bodies serve the people, and hence the people have an absolute right to access information that explains how these bodies operate and what advice they received when they made decisions (including working papers, internal reports, etc.). Not only do the public have the right to access official information, but the way in which records are organised and managed by public bodies should facilitate this. In order for citizens (and civil society organisations, including the media) to know why decisions were made and to monitor public bodies, they need near-total access to information – access to official documents, records,

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etc. And it makes no difference to the public right to information whether public services are delivered through contracts with the private or non-profit sectors or directly by public bodies. This will not plausibly result in hordes of people appearing at the door of every public office looking for documents. But it empowers civil society organisations, journalists and individual citizens with the ability to monitor the area of public policy that interests them. New technologies make this much easier than before and putting more online can facilitate public bodies as well as citizens by reducing the staff costs associated with processing individual requests. This contrast between ‘FOI as administrative reform’ and ‘FOI as integral to open government and democracy’ is useful for understanding the amendment to the legislation in 2003. The administrative reform represented by FOI was largely unaltered (individuals continued to pay no fee for personal requests); however, non-personal requests incurred fees and the level of available information, especially around decision-making, was greatly curtailed. Likewise, the administrative conception of FOI can partially explain the rationale for not extending it to cover all public bodies. There is an element of suggesting that citizens ‘have no business’ seeking information if a public body does not deal directly with the public. The former Fianna Fáil Taoiseach, Brian Cowen, used to talk about FOI in a way that suggests that his Government conceived of FOI in the narrower, administrative fashion. He said FOI ‘is about relevant information in the public interest where that is required, and for the private citizen who is dealing with the State through its agencies, boards and Departments so that he or she can have access to relevant information pertinent to him or her and how he or she was dealt with by the State’ (Oireachtas Éireann, 2009). The expression ‘relevant information in the public interest’ suggests that the reasons that citizens seek information can be pre-judged. On the contrary, the broader democratic understanding of FOI suggests that public access to information about policy-making is a fundamental right and citizens do not have to give reasons, much less pass a ‘public interest’ test when asking to be given reasons for decisions. One of the strengths of FOI in achieving open government compared to previous mechanisms is that it (in theory) allows relatively quick access to the detail of policy-making. Traditionally, in terms of mechanisms to provide scrutiny of public bodies, there is a major trade-off between detail and speed of access. Some bodies provide detailed information (such as the Comptroller and Auditor General) but they do so slowly, where the information provided is typically several years behind what is current. On the other hand, some information is provided very quickly, such as press releases that are carried in one day’s news cycle and then vanish. But all too often, little or no detail is provided and little in-depth investigation or analysis occurs. FOI bridged this gap by allowing citizens to quickly access the detail of documents relevant to current policy-making.

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This was (and remains) an important advance, albeit partially reversed by the Amendment Act, slowed down by an appeals process that can take six months or more and by the gaps in the legislation (such as that FOI did not apply to all public bodies). Nevertheless, despite the limits placed on it, the introduction of the Freedom of Information Act in 1997 was a defining moment in Irish democracy. It is worth noting some details of the controversial way in which FOI was amended in 2003. The background work leading to the amendment was carried out by a so-called ‘high level group’ of civil servants, whose work was conducted in secrecy and did not involve consultation with other stakeholders. The amending legislation was introduced by then Minister for Finance, Charlie McCreevy, who sparked indignation at the time when he did not attend the final debate on the amendment, preferring to attend the Cheltenham horse racing festival instead. Recent events have shown that ineffective regulation was a large component in the failure to prevent the worst of the bubble and burst in the Irish economy. The weakness in the system designed to provide information to the Oireachtas (Irish parliament) and civil society can be seen as part of that failure. More open government could have allowed the problems to be identified sooner and perhaps prevented the worst of the collapse.

Necessary state secrecy In any bureaucracy, there is a hierarchical cordon around executives, with each layer (closer to the top) having access to more information. It is no coincidence that the words ‘secret’ and ‘secretary’ have the same root; secretaries are those who are privy to secrets. And there are good reasons for some things to be kept secret. For example, national security or criminal investigations may need to operate in secrecy. Likewise, some secrecy may be motivated by preventing individuals getting an unfair advantage in the economy (e.g. through inside information about future changes in government policy). Very few people dispute the need for secrecy in certain circumstances, but it is vital to ensure that rules and laws governing secrecy should be specific and proportionate to the seriousness of the information in question. Ireland continues to be governed by laws and an administrative culture that grant blanket secrecy to government business. Blanket secrecy not only prevents the public (and the Oireachtas) from having relevant information on why decisions were taken, but sometimes prevents the public from knowing what decisions were taken or if any decision was taken at all. This in turn undermines democracy. But what about real secrets, in terms of national defence, policing, etc.? A  solid case can be made for providing secrecy measures for a range of specific information. However, the range of information involved is limited and can be defined quite specifically in most cases. A new piece of legislation can

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cater for this, without giving ministers the temptation of having the power to declare embarrassing facts secret. For example, Sweden has the longest tradition of strongly protecting the public right to access official documents, d ­ ating from 1766 when its first Freedom of the Press and the Right of Access to Public Records Act was passed. In principle, all individuals (whether citizens of Sweden or of another country) have the right to read official documents held by public authorities. Only the following types of information can be made secret (and official documents may not be kept secret in order to protect interests other than those listed): • national security or Sweden’s relations with a foreign state or an international organisation; • the central financial policy, the monetary policy or the national foreign exchange policy; • the inspection, control or other supervisory activities of a public authority; • the interest of preventing or prosecuting crime; • the public economic interest; • the protection of the personal or economic circumstances of private subjects; or • the preservation of animal or plant species (sweden.gov.se). We could agree similar guidelines in Ireland, on a non-partisan basis, about what information actually needs to be kept secret. Everything else should be made publicly available. And, like the Swedish, let’s use the term ‘secrecy’ rather than softer language like exceptions or exemptions. Some things do need to be kept secret, but by using a daunting word like secrecy in combination with government, we are reminded that in a democratic state the level of necessary secrecy must be kept to a minimum to avoid the risk of abuse.

Exemptions and exclusions A false caricature of FOI presents it as unlimited and requiring all manner of documents to be available on request, and hence, calls are made for FOI laws to be restricted in various ways. On the contrary, FOI laws explicitly provide for secrecy as well as openness. But unlike legislation such as Ireland’s Official Secrets Act 1963, which makes everything automatically secret, FOI lists those topics where it is reasonable that some or all files are to be kept secret. Everything else is to be made available on the basis of a presumption in favour of public access. To allow for an extraordinary circumstance where a minister wants to keep something secret that should ordinarily be made available, there is a mechanism to allow that to happen, while not allowing it to create a major loophole in the law (see ‘Certified exemptions’, below).

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As discussed above, there are categories of official information (such as relating to crime and national security) that require secrecy. The purpose of this section is to demonstrate that the secrecy provisions under FOI would be sufficient to guarantee state secrecy in those areas where it is really needed. Both the original 1997 and amended 2003 legislation already provide a comprehensive list of exemptions and grounds for refusal of FOI requests. These are given under fourteen broad headings: • • • • • • • • • • • • • •

administrative grounds; meetings of the government; deliberations of public bodies; functions and negotiations of public bodies; parliamentary, court and certain other matters; law enforcement and public safety; security, defence and international relations; information obtained in confidence; commercially sensitive information; personal information; research and natural resources; financial and economic interests of the State and public bodies; enactments relating to non-disclosure of records; restriction of the Act (specific further exemptions, e.g. investigations of Comptroller and Auditor General).

The wide range of exemptions should make it clear that there would be no need for Ireland to have official secrets legislation if FOI were extended automatically to all public bodies (or bodies in receipt of public money). It is significant too that Ireland’s FOI legislation provides many more exemptions than apply in Sweden. A number of these exemptions were significantly strengthened by the 2003 Amendment. For example, Section 19 on ‘Meetings of the Government’ was considerably broadened to restrict access to a wider range of documents. In addition, Section 32 of the FOI law adjudicates between secrecy provisions provided by other legislation. If the exemption is listed under FOI, previous law is overruled. But if a new law introduces a new exemption, then it can block FOI requests. The number of secrecy provisions in other legislation and whether or not they block FOI requests is reviewed every five years by an Oireachtas committee. There is a significant risk that the increase in secrecy provisions in a lot of other legislation (in areas not overruled by FOI) will remain as a barrier to open government, even with the planned restoration of FOI to its pre-amendment status. Another form of secrecy provision is the fact that FOI only applies to a list of public bodies. The Minister for Finance has the power to bring additional

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700 600 500 400 300 200 100 0 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Figure 1.3  The number of public bodies included under FOI Source: Annual Reports of the Office of the Information Commissioner

bodies under the scope of the legislation. As Figure 1.3 shows, this rose from 187 at the end of 1998 to around 619 by 2008 (the figure is approximate as some listed bodies may have merged or been abolished). However, the Freedom of Information Act 2014 automatically includes all public bodies, and other bodies significantly funded by public money, with a short list of bodies to be excluded rather than a long (but incomplete) list of bodies included. In some cases, the staff of public bodies are uncertain of whether or not they come under FOI. A number of public bodies’ websites do not provide the required Section 15 and 16 manuals or instructions to the public on how to make FOI requests. The fact that any public bodies have been excluded from FOI raises serious problems. For example, some public bodies with important regulatory functions had not been included under the old legislation, including the National Treasury Management Agency (NTMA), which manages the national debt, and the Financial Regulator. Another major exclusion was the Gardaí (despite repeated calls by the Information Commissioner for their inclusion, which is the norm in other jurisdictions including, for example, the Police Service of Northern Ireland). The Government included the NTMA, Central Bank and An Garda Síochána as part of the 2014 FOI Act; however, special exemptions apply to the information they hold. It may seem counter-intuitive, but in order to protect the secrecy of some information held by public bodies, as well as to guarantee more openness, it is necessary for FOI to apply universally to all public bodies, along with other bodies funded through public money. Only if FOI is universal can its list of exempt information be used to preserve the secrecy of documents that should be kept secret, such as records to do with police investigations, national defence, etc. If some public bodies are not covered by the Freedom of Information Act,

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then this requires the existence of another piece of legislation, such as the Official Secrets Act, to ensure the secrecy of their files. However, if the grounds for secrecy are legitimate, then there is no reason why the same level of confidentiality cannot be achieved by including such bodies under FOI. In fact, there is something wrong with the FOI legislation if its secrecy provisions around exempt material are any less robust than other measures. In this context, special new exemptions introduced in the 2014 Act to exclude some of the workings of both the Gardaí and the NTMA raises the question of whether the FOI’s exemptions are sufficiently robust. (This is not an argument for even wider coverage by these exemptions, but it is more a question of ensuring the legal and constitutional robustness of the legislation, rather than relying on a ‘belt-and-braces’ approach involving several overlapping laws.) It is quite possible that the vast majority of files held by some public bodies might be exempt from disclosure under FOI rules. But in order to have open government, the principle of a public right to access must be universal across all public bodies, as well as other organisations in receipt of public money.

FOI and parliamentary questions It has been claimed that FOI is ‘in practice a far more powerful investigative instrument than a parliamentary question’ (Connolly, 2005: 348). There is some evidence for this (see Chapters 5 and 8). For example, until the Amendment in 2003, Opposition TDs in the Dáil successfully gained access to ministers’ briefing notes for parliamentary questions. This gave the Opposition access to much more detail than was traditionally made available as the notes contained more detail around the range of supplementary questions that the ministers’ advisers expected could arise from the original question. After 2003, these notes were no longer released as they were excluded from the Act completely. The use of FOI by members of the Oireachtas (just 157 requests in 2008 and 1,887 requests in total between 1998 and 2008) is small compared to the volume of parliamentary questions (well over 20,000 per year since 1998). However, a single FOI request can provide access to a large volume of documentation, whereas questions typically elicit a brief answer from the relevant minister (occasionally accompanied with data in tabular form, which can be particularly useful). Another benefit of FOI over parliamentary questions is that, unlike them, FOI is not suspended for the summer holidays. Studies by Upcher and Snell (2002: 40) and Worthy (2014:  800–802) concluded that FOI was a useful tool in seeking answers to questions by key groups such as MPs.

Better administration One of the aspects of the FOI Act with great (but under-realised) potential was the requirement for public bodies to produce two manuals, to publish them and

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to keep them up to date. The ‘Section 15’ manual (named after the relevant section of the Act) is a reference book of its ‘structure and organisation, functions, powers and duties, any services it provides for the public and the procedures by which any such services may be availed of by the public’, as well as what records it holds and how they might be accessed. Section 16 requires each body to produce another manual describing the rules, procedures, practices, guidelines and interpretations used by the body, and an index of any precedents kept by the body, for the purposes of decisions, determinations or recommendations, under or for the purposes of any enactment or scheme administered by the body with respect to rights, privileges, benefits, obligations, penalties or other sanctions to which members of the public are or may be entitled or subject under the enactment or scheme [alongside] appropriate information in relation to the manner or intended manner of administration of any such enactment or scheme.

In theory, these manuals could be a strong foundation for the development of administrative law in Ireland (i.e. a codification of the rules and regulations guiding the operation of public bodies, at least as far as entitlements and public services are concerned). This type of law has not been developed previously in the state to any great extent. Again, the exclusion of some bodies from FOI means that the internal reform and reorganisation required to create the manuals has not occurred uniformly across public bodies. FOI also put into law one of the basic tenets of civic republicanism, that a citizen has the right to an explanation from a public body for a decision that affects him or her materially (Section 18). Allied with the manuals explaining the rules of the organisation, this reinforces the administrative reform aspect of the law. Despite this, there is little evidence that FOI has led to increased levels of trust among the public in the institutions of state. An analysis of the impact of FOI on the British Houses of Parliament found that FOI had increased transparency and accountability, but did little to increase public understanding, participation or trust in politics (Hazell et al., 2012: 918). It is reasonable to posit that a similar situation exists in Ireland.

Government working papers The secrecy surrounding governmental papers in Ireland goes way beyond other OECD countries. One of the real challenges to Ireland’s culture of obsessive cabinet secrecy was the provision (under Section 19) that the special blanket exemption applying to Cabinet papers would expire after five years. The spurious argument that was presented as the rationale for the amendment to FOI in 2003 was that the five-year rule was about to expire for Cabinet papers

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from 1998 and this might compromise relations with Northern Ireland, as papers relevant to the Belfast Agreement could be available for release (see, for example, Connolly, 2005). This argument was patently false, as the expiry of the special five-year period does not change the applicability of all the usual secrecy provisions, such as national security, that could still be used to refuse requests. The amendment also widened the scope of papers that could be included, from those ‘solely’ for meetings of government, to those ‘primarily’ for that purpose. Likewise, the law changed the instruction on these grounds from ‘may refuse’ to ‘shall refuse’, which removed any discretion to make innocuous documents available. Moreover, it is against the ideal of open government that FOI permitted any special status to government papers at all. If a given document does not qualify under the agreed grounds for secrecy (national security, crime, prevention of unfair advantage in the economy, etc.), then it should not be kept secret. To be clear, this would mean that many governmental papers would be eligible for release when the issues they address are still current. Such papers will not be really sensitive (in the sense of national security or crime prevention), merely politically sensitive at times. Their release would allow parliamentarians, civil society organisations, journalists and citizens to gain real access into the ‘thought processes’ behind government decisions as they happen (this notion is discussed by John Carroll in Chapter 8). This happens in most OECD countries, where many or all government working papers are readily and speedily made available to parliaments. A better-informed and more mature public debate is the best place to thrash out the issues and choices presented by different policy options. This process is also known as democracy.

Certified exceptions As noted above, under the heading of ‘Necessary state secrecy’, it might sometimes arise that a minister is in possession of a document that he or she believes should not be released for perfectly good reasons. This creates a potential dilemma. Ministers (who have access to more information, including information protected by secrecy provisions) can sometimes be best placed to know that a particular document should be kept secret, despite that fact that it is not covered by one of the agreed grounds for secrecy. The dilemma is that a minister cannot be given blanket discretion to declare just any document secret. This problem is solved under FOI by the use of certificates, which ultimately make the Oireachtas the final arbiter, which is appropriate. If a minister wants to make a document secret, he or she can issue a certificate stating that this was done. The Information Commissioner has the duty to report annually to the Oireachtas on the number of current certificates in operation. Hence, it will soon become obvious if any particular minister is issuing a large number of certificates. This double-safeguard system provides a usefully

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clear cross-over point between the administrative, legal operation of FOI and the discretionary, political power of governments. This important double-safeguard was broken by the amendment to FOI in 2003. Under the amendment, secretaries general of government departments can also block the release of information by issuing certificates. This removes the direct accountability to the Oireachtas and also blurs the ‘political’ act of a minister blocking requests.

The Information Commissioner The Office of the Information Commissioner was established to oversee the operation of the legislation and to provide a low-cost and independent appeals process. The Information Commissioner has the duty to place an annual report before the Oireachtas as well as the duty to keep the operation of the Act under review. In addition, the office has the discretion to investigate the practices and procedures of public bodies in complying with FOI and to publish reports on this matter. The reports are important because they keep the operation of FOI closely connected to the political sphere. If public bodies attempt to block legitimate requests for information, this is brought to the attention of elected representatives. If restrictions on the operation of FOI appear to be politically motivated, in the sense of shielding the government from accountability, then the task of ensuring accountability is passed across to the Oireachtas. After the amendment in 2003, the Information Commissioner was criticised by the Government for publishing a review of the operation of the amended law that highlighted the new limitations place on it (RTE News, 2004). However, Section 36 of the Act clearly requires the Information Commissioner to review the continued effectiveness of the Act and to report on the blocks to this. The former Information Commissioner, Emily O’Reilly, clearly stated her understanding of FOI as belonging to the wider conception of public information in a democracy, far beyond the narrow conception of FOI as a form of data protection. In 2006 she stated: I suppose public servants the world over are practical and pragmatic people and understandably wary of the rhetoric and hyperbole that is often a feature of any discussion of good government. Nevertheless, it is worth recalling that a proper FOI regime is of huge significance for the healthy functioning of a modern democracy. The attributes of a well functioning FOI regime include: helping to keep government honest and to discourage corruption; helping to educate the public about government; helping to hold government accountable to the people; helping to improve the quality of decision making by public bodies; acting as a check on the exercise of power by government and its agencies; promoting citizen participation. (Office of the Information Commissioner, 2006).

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There is a unique relationship between the role of Information Commissioner and democracy. Access to relevant information in a complete and timely fashion is obviously crucial to the operation of democratic government. It is vital for parliament and for citizens. Hence, the person appointed as regulator of the level of openness achieved by government and public bodies is in an exceptional role. Therefore, there is a strong argument for a non-partisan process for choosing the person to take up this role. Likewise, the role should be immune from political interference (including cuts to the funding of the office, which could increase the time for appeals to be processed). Ideally, it should enjoy similar constitutional protection to that of the Comptroller and Auditor General and one option would be to grant a similar constitutional status to the Information Commissioner.

Use of FOI Between 1998 and 2008, more than 142,000 formal FOI requests were made, rising to 200,000 by 2013 (Office of the Information Commissioner, 1999–2014). As Figure  1.4 shows, the use of the Act increased steadily between 1998 and 2003 (with 1999 being the first full year of its operation). The first year in which the effects of the amendment could be seen was 2004. FOI requests decreased by a third (32 per cent) between 2003 and 2004, presumably due to the new fees regime that had been introduced plus the restriction on what documents were made available. The main type of requesters were private citizens, most of whom are likely to be direct users of some service provided by the public body from which they request information. (For a detailed discussion of private citizens’ and personal use of the Act, see Chapter  7.) However, businesses, journalists and staff of public bodies have also been significant users of FOI. While this data is officially recorded annually by the Information Commissioner, it should be noted that some researchers have questioned the accuracy of statistics collated by public bodies, especially around personal, non-personal and mixed requests (McDonagh, 2010: 16–18). Issues may arise when requests are made on behalf of others, who may lack capacity to make a request themselves (McDonagh and Paterson, 2010: 525–527). It is not straightforward to judge the success of FOI by the number of requests made, as a decline in requests can represent the fact that more information is now made routinely available than previously, which is part of the intent of the original law. Likewise, many interests (especially personal requests) can be readily dealt with in a single request, rather than ongoing requests. FOI requests are categorised as ‘personal’ (directly relating to an individual’s dealings with the public body), ‘non-personal’ or ‘mixed’. Personal requests do not incur any fees.

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International trends in freedom of information 20,000 18,000 16,000 14,000 12,000

Others

10,000

Staff

8,000

Oireachtas

6,000

Business

4,000

Journalist

2,000

11

10

20

09

20

08

20

07

20

06

20

05

20

04

20

03

20

02

20

01

20

00

20

99

20

19

19

98

0

Figure 1.4  FOI requests by different types of user Source: Annual Reports of the Office of the Information Commissioner

The total number of requests dipped for 2004, but remained above initial full-year levels (1999). But when this is broken down into personal and non-personal requests, it can be seen that the level of non-personal requests never recovered after the amendment. Non-personal requests more than halved when the period before the amendment (1999–2003) is compared with the period afterwards (2004–2008). On average, 7,329 non-personal requests were made per year between 1999 and 2003, which decreased to an average of 3,440 per year subsequently, despite the fact that three times as many public bodies were included under FOI in 2004–2008 compared to 1999. The main bodies receiving requests are government departments, the Health Service Executive (HSE) and local authorities. In general, significantly more personal than non-personal FOI requests go to bodies such as the HSE, Department of Health and Children, hospitals and the Department of Education and Science (which handles requests to former state institutions such as industrial schools). Government departments receive the largest share of non-personal FOI requests and around a quarter of non-personal requests go to local authorities. The overlap between requester type and non-personal requests is not given in the annual reports of the Office of the Information Commissioner; however, it is possible to estimate this as follows. If one assumes that the requests by staff and ‘others’ are mostly personal, then requests from these categories more than covers the number of personal requests. The remainder can be assumed to be mixed or non-personal, and presumably the requests of business, journalists and Oireachtas members are also non-personal.

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14,000 12,000 10,000

Personal requests

8,000

Non-personal requests

6,000 4,000 2,000

00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11

99

20

19

19

98

0

Figure 1.5  Personal and non-personal FOI requests Source: Annual Reports of the Office of the Information Commissioner

What this analysis shows is that, between 1999 and 2003, it can be estimated that citizens (i.e. requesters not labelled explicitly as journalists, business requesters, Oireachtas members or staff of bodies) were making an average of around 3,300 non-personal requests per year, which decreased to an average of less than 1,400 in the years 2004 to 2008. The fees regime can thus be seen as a real barrier to ordinary people asking questions of authorities. Requests by journalists were more than halved by the amendment, with an average of around 2,350 requests per year (1999–2003) dropping to 1,150 per year (2004–2008). However, the fees regime cannot fully explain the reason for the decreased number of requests. Clearly, the new restrictions placed on what information was made available had a significant affect. For example, FOI requests by Oireachtas members (who are unlikely to be deterred by the small fees) also halved after the amendment. It is sometimes argued that the complexity of modern government makes it impossible for parliaments to adequately monitor the activities of the wide range of agencies working underneath ministries. It is helpful to see the evolution of FOI as a valuable assistance to the continued democratic accountability of bodies funded out of the public purse. Individuals, civil society organisations and journalists making FOI requests are performing a valuable service in monitoring public bodies, even if some of this relates to their own specific interests. Whenever revelations occur, it will ultimately require action by parliaments to deal with them. In Ireland, the relevance of FOI to the national response to events is important. In 2007, the national jobs agency FÁS received just nine

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27

1999–2003 2004–2008

2,500 2,000 1,500 1,000 500 0 Journalists

Businesses

Oireachtas

Other

Figure 1.6  Non-personal requests before and after the amendment to FOI Source: Annual Reports of the Office of the Information Commissioner

non-personal FOI requests. In 2008, following revelations of mismanagement this increased to eighty-eight requests. This represents the work of journalists and citizens investigating public bodies, which should be seen as in the public interest. This is also further reinforcement for the argument for universal application of FOI, as it cannot be anticipated which public body will next be in the public eye, and confidence in government is punctured whenever a public body mired in controversy is found to be exempt from FOI.

Conclusion The success and value of public access to official information is not measured in the level of embarrassment caused to ministers. Freedom of information has proved to be socially and economically beneficial to the State by revealing situations where harm was being done and/or where money was being poorly spent by public bodies. Rather than attempt to provide an exhaustive account of the various ways in which FOI has led to public revelations or scandals, a number of major examples will serve to illustrate how the public interest was served by FOI, presented under the following headings: • • • •

human rights abuses; corrupt, inappropriate or illegal activity; waste of public money/poor public management; insight into governmental decision-making.

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These headings are purposely hierarchical. We would hope that, at the very least, information will ‘get out’ if human rights abuses are occurring in a public body, a body funded with public money or a body that is regulated by the state. That this clearly did not happen in the Church- and state-run institutions where children were raped and tortured is motivation to ensure that all bodies are accountable and that those who report wrongdoing are encouraged and protected. Another one of the major scandals of recent years was the serious mistreatment of elderly people in nursing homes in two prominent cases (Leas Cross and Rostrevor House). FOI exposed the misjudgements and failure of regulation that led to the registration of these nursing homes in the first place; for example, an FOI request gave access to Health Board inspectors’ reports that recommended against the registration of Leas Cross nursing home six years before the scandal broke. The fact that knowledge was kept secret, whether about the quality standards of nursing homes or information about institutions where children were abused, raises the further question of why no one on the inside spoke out. Information on abuse was clearly available to the Department of Education for years before abuse in institutions ended. A culture of secrecy, combined with a lack of protection for whistle-blowers, made a bad situation worse through delays and inaction.2 Corrupt, inappropriate or illegal activity may not do the same direct harm to vulnerable people, but its effects may still be indirectly felt when, for example, public money is misused and the result is less money to fund other vital public services. Freedom of information has provided an important further safeguard, alongside bodies such as parliament and the Comptroller and Auditor General, against inappropriate or illegal activity by public bodies or in the use of public resources. For example, the misuse of funds within the State’s employment agency FÁS was revealed through FOI, as was the handling of a Government attempt to appoint a former Supreme Court Judge to the European Investment Bank, despite his having resigned from the court in controversial circumstances. Again, access to information is essential so that citizens can see where tax money is being spent and that the documentation of a body is correct. A worrying revelation for Ireland’s democracy was when FOI requests showed that the Government was aware of worsening public finances before a general election but did not reveal this information until afterwards. This inappropriate use of the government’s power to keep secrets showed contempt for voters. Waste of public money and/or poor public management is obviously more difficult to judge. Nevertheless, a basic tenet of democracy is that the public interest is best served by knowing how public resources are being used. For example, an FOI request revealed the high number of civil servants (403) employed on constituency work on behalf of ministers and ministers of state (Coakley and Gallagher, 2012: 255). FOI requests were instrumental in exposing

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the growing costs of Sports Campus Ireland and, in particular, the proposal to build a national stadium, which threatened to cost hundreds of millions of euro (Glennon, 2002). FOI was used to expose the costs associated with controversial electronic voting machines, which were eventually scrapped at a cost of over €60m to the taxpayer (Melia and Byrne, 2012). The management of public hospitals was put under scrutiny by FOI requests into the extent of MRSA infection, as well as revelations through FOI into the uneven availability of patient data across the public maternity hospitals (RTE News, 2010). Essentially, people need to know where money is being spent and what decisions are being taken, as well as the reasons for those decisions, as this is basic to their participation in democracy (even if they only participate by voting in elections). Finally, access to documentation allows greater (but still limited) insight into governmental decision-making. There will always be an amount of secrecy involved, and maybe even required, to allow ministers to argue about what are the best policies for the government as a whole to follow. At the same time, much government decision-making is not about confidential matters such as crime or national security. Access to most government papers is standard in other countries as citizens are entitled to be given explanations for decisions. These examples are not intended to give exhaustive coverage of the results of more openness, transparency and accountability through FOI, but they illustrate the tangible benefits of the legislation. In each of these Irish FOI examples, and in many other cases, the question to be asked is:  would any minister or other public representative like to go on record to say that they would prefer it if this information had not come to light? Does anyone believe that the minister should have been given the sole right to determine if and when this information was revealed? That is the bottom line about the cost, the inefficiency and the wrongdoing: would you really prefer for it all to be kept hidden or only released when a minister decides to do so? There is no doubt that ministers would prefer not to be embarrassed by revelations from their department or public bodies within their remit. In particular, ministers do not want to learn of something in the press that they should have been made aware of before. But is there any better motivation for ministers to take control of their area of responsibility than the sure knowledge that detailed information on the actions of all public bodies are in the public domain?

Notes 1 More specifically, it specifies that Congress will not seek to limit free speech, rather than proposing mechanisms to ensure personal free speech or press freedom. 2 Recent legislation has changed this, as the Protected Disclosures Act 2014 provides more comprehensive protection for whistle-blowers.

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References Banisar, D. (2002) Freedom of Information and Access to Government Records around the World. Washington, DC: Freedominfo.org Banisar, D. (2013) ‘National Right to Information laws, regulations and bills 2013 map’. Article 19, Global Campaign for Free Expression Cain, Bruce, Fabbrini, Sergio and Egan, Patrick (2003) ‘Towards more open democracies: The expansion of FOI laws’ in B. E. Cain, R. J. Dalton and S.  E. Scarrow (eds) Democracy Transformed? Expanding Political Opportunities in Advanced Industrial Democracies. Oxford:  Oxford University Press, pp. 115–139 Clifford, Michael (2013) ‘Farewell to tribunals’ Irish Examiner, 1 January 2013 Coakley, John (1999) ‘Society and political culture’ in John Coakley and Michael Gallagher (eds) Politics in the Republic of Ireland, 3rd edn. London: Routledge, pp. 32–70 Coakley, John and Gallagher, Michael (2012) Politics in the Republic of Ireland, 4th edn. Abingdon: Routledge Connolly, Eileen (2005) ‘The government and the governmental system’ in John Coakley and Michael Gallagher (eds) Politics in the Republic of Ireland, 4th edn. London: PSAI Press/Routledge, ch. 12 Constitution of the Fifth Republic of France (1958) Journal Officiel de la Republique Francaise, 4 June 1958 Council of Europe (1950) Convention for the Protection of Human Rights and Fundamental Freedoms. Strasbourg: Council of Europe freedominfo.org (2012) ‘93 countries have FOI regimes, most tallies agree’, available at www.freedominfo.org/2012/10/93-countries-have-foi-regimes-most­tallies-agree (accessed 15 August 2014) Glennon, Chris (2002) ‘€1bn puts paid to dream of Bertie Bowl’ Irish Independent, 1 February 2002 Government of Ireland (1963) Official Secrets Act 1963. Dublin: Government Publications Sales Office Government of Ireland (1997) Freedom of Information Act 1997. Dublin: Government Publications Sales Office Government of Ireland (2003) Freedom of Information (Amendment) Act 2003. Dublin: Government Publications Sales Office Hazell, Robert, Bourke, Gabrielle and Worthy, Benjamin (2012) ‘Open House? Freedom of Information and its impact on the UK parliament’ Public Administration 90/4: 901–921 Huntington, Samuel P. (1991) Democratization in the Late Twentieth Century. Norman: University of Oklahoma Press The Irish Times (1993) ‘Editorial: Right to know’, 16 January 1993 Lamble, Stephen (2002) ‘Freedom of Information, a Finnish clergyman’s gift to democracy’ Freedom of Information Review 97: 2–8

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McDonagh, Maeve (2010) ‘Access to local government information in Ireland:  Attitudes of decision-makers’ Open Government:  A  Journal on Freedom of Information 6/6: 1–20 McDonagh, Maeve and Paterson, Moira (2010) ‘Freedom of Information: Taking account of the circumstances of individual applicants’ Public Law: 505–529 Melia, Paul and Byrne, Luke (2012) ‘54m voting machines scrapped for €9 each’ Irish Independent, 29 June 2012 O’Brien, Carl (2006) Protecting Civil Liberties, Promoting Human Rights:  30 Years of the Irish Council for Civil Liberties (ICCL). Dublin:  Irish Council for Civil Liberties, available at www.iccl.ie/DB_Data/publications/ICCL_ Brochure_Final.pdf (accessed 19 August 2014) Office of the Information Commissioner (1999–2014) Annual Report of the Information Commissioner. Dublin:  Government Publications Stationery Office Oireachtas Éireann (2009) Dáil Debates, Vol. 695/18, 18 November 2009. Dublin: Government Publications Stationery Office Pettit, Philip (1997) Republicanism. Oxford: Oxford University Press Romulo, Carlos P. (1948) ‘UN Freedom of Information Conference 1948: What conference achieved’ reprinted in United Nations Chronicle: Online Edition [originally published in United Nations Bulletin 4/9, 1 May  1948], available at www.un.org/Pubs/chronicle/2002/issue3/110502_unconf_freedom_ achieve.html (accessed 10 August 2014) RTE News (2004) ‘Information Commissioner rejects criticism’, 13 March RTE News (2010) ‘MRSA Infection costs hospitals €23m annually’, 20 April Smyth, Patrick and Hazelkorn, Ellen (eds) (1993) Let in the Light: Censorship, Secrecy and Democracy. Dingle: Brandon Books United Nations (1966) International Covenant on Civil and Political Rights. Geneva: United Nations Publications United States Government (1966) Freedom of Information Act. Washington, DC: US Government Printing Office Upcher, James and Snell, Rick (2002) ‘Freedom of information and parliament:  A  limited accountability took for a key constituency?’ Freedom of Information Review 100: 35–41 Worthy, Benjamin (2014) ‘A powerful weapon in the right hands? How Members of Parliament have used the Freedom of Information Act in the UK’ Parliamentary Affairs 67/4: 783–803

2 Two steps forward and one step back: political culture and FOI Maura Adshead

Introduction: Irish FOI provisions at a glance Following the Act’s design by Minister Eithne FitzGerald in the coalition ‘Rainbow Government’ of December 1994 to June 1997, the Freedom of Information (FOI) Act became effective on 21 April 1998 under the subsequent Fianna Fáil–Progressive Democrat coalition government. The Act stipulates that, subject to eleven specified exceptions, ‘every person has a right to and shall, on request therefore, be offered access to any record held by a public body’. The Act covers records produced after its implementation but also authorises the Minister for Finance, ‘after consulting such Ministers of Government as appropriate’, to extend this access to records created prior to the Act. It provides for the appointment of a commissioner by the President, on the advice of the Government, tasked with oversight of the Act’s operation and with giving his/ her opinions and reports to the Government and/or the Oireachtas as required by the Act. The first Commissioner was Kevin Murphy. In 2003 Emily O’Reilly was appointed and, following a vote in the European Parliament in July 2013, she was appointed as European Ombudsman. In December 2013 Peter Tyndall took up the position. Following its re-election in June 2002, the Fianna Fáil–Progressive Democrat coalition established a High Level Review Group, comprising the secretaries general of six government departments, charged with a review of the Act’s operation. The group’s report (Department of Finance, 2002) illustrated a high degree of scepticism regarding the alleged advantages of the Act as compared to the administrative costs of its implementation, and suggested that a rolling back on the initial intentions of the legislation might be appropriate. They therefore recommended exempting from disclosure communications

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between ministers and extending the protection of Cabinet records from five years to ten, plus introducing up-front fees for FOI requests and possibly a fee for reviews (ibid.: 3). These recommendations were implemented in the consequent FOI Amendment Act in 2003, which introduced an initial request fee of €15, an internal review fee of €75, a €150 fee for an appeal to the Commissioner and a €50 fee for a third-party appeal to the Commissioner (Zimmerman, 2008: 23). Reduced fees were offered to medical cardholders. In April 2013, the Fine Gael–Labour coalition government implemented its deferred Freedom of Information Amendment Bill, designed not only to restore the original remit of FOI legislation, but to extend it over new statutory bodies such as NAMA, as well as existing bodies such as An Garda Síochána and the Central Bank, which were previously not covered by FOI legislation. The reinstitution and extension of the Act signalled a renewed commitment to open and transparent government, which was formally recognised by the Government’s decision to participate in the Open Government Partnership (OGP) initiative in 2014. Established in 2011, the OGP is intended to provide an international platform for domestic reformers committed to making their governments more open, accountable and responsive to citizens (Open Government Partnership Initiative, n.d.). As part of its membership commitment to the OGP, the Minister for Public Expenditure and Reform, Brendan Howlin, was responsible for drafting and implementing Ireland’s first OGP ‘National Action Plan’. The plan spans three main areas: open data and transparency; citizen participation; and rebuilding public trust in government (Department of Public Expenditure and Reform, 2014). It appears, then, that an Irish government is once more attempting to challenge the traditional way of doing things. The remainder of this chapter examines where this traditional conservatism came from and how it was manifest in a scepticism for open government and freedom of information; what prompted the changes that delivered the FOI legislation in 1997; why this legislation was rolled back in 2003; and finally, what prompted changes again to extend the FOI remit with reform in 2013. The intention is to place our understanding of FOI legislation into a broader context of progress towards political reform and a shifting attitude to Irish politics more generally.

Explaining Irish political culture Political culture is something of a fuzzy idea. Essentially, however, it refers to the idea that the political orientations, beliefs and values prevailing among a population constitute a crucial determinant of the type of political system by which that population is governed. It is the proposition that ‘Much of politics takes place in our heads:  that is, it is shaped by our ideas, values and assumptions about how society should be organised, and our expectations, hopes and fears

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about government’ (Heywood, 2002: 199). This idea is by no means new. In the eighteenth century Montesquieu (1949 [1748]) argued that the nation might operate as a tyranny, a monarchy or a republic, depending on the prevalence of servile, honest or egalitarian dispositions among its people; and in the nineteenth century de Tocqueville (1947 [1856]) argued that democracy flourished in the United States because of the liberal, egalitarian and participatory orientations of the American people. At the end of the day, what we believe about the society in which we live may be more important than the reality of its power structure and the actual distribution of resources and opportunities within it (Heywood, 2002: 199). For example, if you recognise the old expression ‘it’s not what you know, it’s who you know’ as a descriptor for Irish politics, then you are also recognising that for many ordinary people, this constitutes a perceptual and analytic shorthand for their understanding of how Irish politics actually works. In an Irish Times article about the dangers of ‘group-think’, Irish academic Catherine Kavanagh suggests that ‘whether because of their colonial past, or the intellectual grip of the church’, Irish people ‘are enormously concerned about what other people think about us’, and this tends to stymie our critical engagement. In other words, we tend to find it difficult to articulate a critical voice. Indeed, to the Irish ear, ‘critical thinking’ can sometimes be mistaken for ‘extended whingeing’ (The Irish Times, 19 November 2013). In July 2007, for example, the Taoiseach Bertie Ahern expressed this intolerance for dissent when referring to people who were critical of his economic policies: ‘Sitting on the sidelines, cribbing and moaning is a lost opportunity’, he said. ‘I don’t know how people who engage in that don’t commit suicide because frankly the only thing that motivates me is being able to actively change something’ (RTE News, 2007). He was later obliged to apologise – for causing hurt to those who were affected by suicide, not for his intolerance of criticism. That this should be so illustrates the extent to which we exist in a political culture where dissenting voices are often met with intolerance. In the Irish case, this is important since it is widely noted that demand for political change tends to come from society itself rather than from our political elite (Meehan, 2013: 9). This idea, that our political expectations and outlook are constrained by custom and convention, is especially important in consideration of Irish political reform, and goes a long way to explaining why the progress towards reform has been relatively slow. Until very recently, accounts of political culture in the Republic of Ireland were prone to noting that the post-Independence state was characterised by an unusually high degree of political and social conservatism, arising from the persistence of rural and peasant culture in Ireland, the relative failure of left politics and Ireland’s relative isolation from continental European political movements and influences (Adshead and Tonge, 2009:  262–263). Thus, from its foundation, the Irish Free State was centralised and secretive

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(McDonagh, 2010:  73), and far from a model of openness and transparency. Much of this approach to government was a direct consequence of two primary influences at the foundation of the Irish State: the British colonial legacy and the Catholic Church’s ideological hegemony.

Seeding the secretive state: origins and influences The highly centralised and secretive nature of the Irish state is a legacy of its colonial past. First, the majority of Irish political institutions and its administrative bureaucracy were inherited from Britain  – an unequivocally unitary state; and second, the manner in which they were placed under Irish control was the ultimate act of political consolidation. After a long struggle for independence and a bitter civil war, the state established in 1922 was consciously and deliberately a centralised one. The revolutionary government that took over was determined to show itself fully in control and to establish its capacity to rule. Kissane (2002: 17) quotes the description by Kevin O’Higgins of the Provisional Government as: ‘Simply eight young men in the City Hall standing amidst the ruins of one administration, with the foundations of another not yet laid, and with wild men screaming through the keyhole.’ Openness and transparency in government institutions were not high priorities for the fledgling Irish Free State. Fresh from fighting the War of Independence and in the middle of the Civil War, the Free State Government was more concerned with defending against subversive elements to ensure its survival and was characterised by a ‘spirit of intense centralism and control’ because of the circumstances of its foundation (O’Halpin, 1998: 124). Garvin (1993:  9–23) suggests that the pervading culture of centralised and secretive government was ingrained into the new Free State as a consequence of the manner of its birth – through secret societies that met with the aim of subverting British rule. Suggesting that the commitment to democracy in Ireland was somewhat ‘equivocal’, Garvin (1993: 22–23) even goes so far as to suggest that the emergence of democracy as the favoured form of government at all was a ‘close run thing’. The reason for this, according to Garvin (1993: 11–12), is that Irish democracy was born at a time of considerable violence and was forcibly imposed on the rebellious republican minority and the guerilla IRA, which had shown contempt for democratic ideals. As the Free State Government established its control, its civil service developed in a highly centralised and secretive way  – largely influenced by the Westminster model of government, where citizenry had no right of access to information and the relationship between the citizen and government was from the start kept at arm’s length (Chubb, 1992: 4). The 1924 Ministers and Secretaries Act, which laid the foundations for the structures of modern government departments, combined with the adoption of British civil service

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structures and staff, led to the incorporation of old British traditions such as centralised, authoritarian and secretive public service (Garvin, 1996:  179). Farrell (1993:  93)  argues that the establishment of the Irish Free State represented a continuation of the British traditions of civil service secrecy, which were a ‘Westminster import’, rather than any great revolutionary creation. The prevalent and ‘entrenched commitment to executive secrecy’ (ibid.) was further augmented by the attitudes among ministers in the new government at the time, many of whom remained suspicious of civil service personnel who had previously served ‘the Crown’ (O’Halpin, 2002:  283). Contact between politicians and the bureaucracy in the Irish Free State context was similarly an arm’s-length relationship, because many civil servants working for the Free State Government had previously worked for the Crown (ibid.). In consequence, early Free State governments sought to protect their integrity through a vow of omerta-like adherence to the notion of collective responsibility and confidentiality in Cabinet decision-making (Farrell, 1993: 93). It is unlikely that decisions in Cabinet were made without any dissent, yet even with regard to recording government decisions for national archives purposes the minutes of Cabinet meetings have traditionally been sparse, with only the final decision included and dissent never recorded (ibid.:  96), a practice that continues to this day. A notable feature of successive Cabinet Handbooks, which lay down the procedures for cabinet meetings, was their obsession with keeping the inner workings of government secret (ibid.: 97). In 1932, the Department of the President of the Executive Council laid down that ‘Cabinet documents not likely to be required again can be burned … personally by the private secretary [to the minister]’ (ibid.: 97; Saorstát Éireann, 1932). Successive Cabinet Handbooks have laid down the procedures under which memoranda for government are to be delivered to ministers – enclosed in special envelopes and marked for the minister’s personal attention, and sealed with wax (Farrell, 1993: 97). The Government’s desire for centralised power was, however, less concerned with political principle and more with finding immediate and pragmatic solutions to the problems of government in the aftermath of war. The strong preference for functional efficiency, even at the expense of clear democratic accountability, is a trait that has characterised governance in Ireland since its foundation (Farrell, 1973; Barrington, 1987). The Irish state’s historical pre-disposition towards partnership is noteworthy in this regard. Where the State did not have the resources to deliver its goals, it was happy to enter into partnership arrangements with extra-governmental agents that could deliver resources (infrastructural and/or financial) for policy implementation that would otherwise lie beyond the State’s reach (Adshead, 2008: 71–72). This predilection was especially important in relation to the nascent state’s relations with the Catholic Church: the Church provided the State with domestic legitimacy and was, in the main, willingly ceded power by the Free State Government

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over educational and social policy by an executive largely, although not exclusively, consisting of loyal and faithful Catholics (Keating, 2012:  3–4; see also Fahey, 2007). According to Keating (2012), both the Church and Ireland’s governing political and administrative elite conceptualised the newly established ‘Free State’ as ‘the spiritual and national rebirth of a dynamic Christian tradition that was said to have existed in the early medieval period before the English occupation of the country, typified as the land of “saints and scholars” ’. The ‘problem’, for many Catholic ideologues, however, was that since Ireland had been occupied for centuries by the English, many of her people had become ‘polluted’ by ‘foreign vices’ (Finnane, 2001) that – despite the withdrawal of the British – persisted via modern cinema (Rockett, 2004), the novel (Carlson, 1990) and the sensationalist press (Keating, 2012; Rafter, 2013). Therefore, just as the new Free State political elites wished to centralise power and control in government, the Catholic Church was keen to curtail extravagant or unnecessary freedoms that might challenge the moral purity of the newly established state. The coincidence of interests was complete and censorship, along with the Church’s control over education and social policies, bolstered a ‘collective orthodoxy’ that permeated civil society and the interest groups within it. The result was that the Catholic Church obtained a key role in the political socialisation of the emerging state (Inglis, 1998), securing for itself a powerful role in the shaping of state policy (Whyte, 1980) without even the inconvenience of having to run for office (Keating, 2012). The extent of this influence, personified by the pre-eminent influence of the Archbishop of Dublin, John Charles McQuaid, was later referred to in an Irish Times (1950) editorial as ‘the grey eminence behind Government’. In consequence the Church used its power and influence to encourage the opposite of open government: one of the first pieces of legislation to be passed by the Irish Free State was the 1923 Censorship of Films Act, which provided for ‘the official censoring of cinematographic pictures and for other matters connected therewith’. In 1926, following pressure from the Vigilance Association of Ireland, the Christian Brothers and the Catholic newspaper, the Standard, the Minister for Justice Kevin O’Higgins reluctantly acceded to the establishment of the Committee on Evil Literature (CEL), which subsequently provided the blueprint for the 1929 Censorship of Publications Act (Horgan, 2001). The Committee was concerned that existing legislation, in the form of the 1857 British statute on obscene publications, did not give adequate control over press reportage, particularly in relation to journalistic reports of crimes and court proceedings (CEL, 1926). At this time, British newspapers were in wide circulation in Ireland and regarded by the CEL as ‘harmful newspapers which simply set themselves out to describe crime, particularly sexual crime, with every disgusting detail’ (Oireachtas Éireann, 1928). Perhaps in the enthusiasm to assert an Irish identity that was distinct from the British, there was little opposition

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from the people, the politicians or even the mainstream Irish newspapers, who for the most part seemed quite happy to rid themselves of British competitors (O’Drisceoil, 2005; Keating, 2012). Opposition to censorship, with one or two exceptions,1 came from the minority Protestant community and it quickly became politically expedient to construct this opposition as a betrayal of Ireland itself (Keating, 2012: 12). And so it was that the dominant view was largely shaped and promulgated by Catholic activists and clergy who were keen to rebut an ‘Ireland so debased and despicable as to be undistinguished from England in the matter of its newspapers and periodical literature’ (Catholic Bulletin, 1928:  124). Some commentators have argued that the State willingly embraced censorship and other restrictions relating to dance halls (O’Connor, 2005), education (Farrell, 1995) and divorce (Dillon, 1993) because it was a way to differentiate the newly created Irish state from its former colonial master (Calfano et al., 2013). Others, such as Keating (2012), argue that it was more state capitulation to dominant interests than intentional agency. Still, the effect was the same. Whatever their genesis, the close relations between the newly established state and the Catholic Church were clearly outlined in de Valera’s 1937 redrafting of the constitution. The ‘special position’ accorded to the Catholic Church,2 the specific references to the importance of the family, the ban on divorce and the strong element of Catholic social teaching in the ‘Directive Principles of Social Policy’, all testify to the hegemonic influence of the Catholic Church. This early penchant for control was demonstrated firmly with the outbreak of the Second World War. The 1939 Emergency Powers Act empowered the Government to censor all broadcasts and newspapers in the Free State. The late Douglas Gageby, former editor of The Irish Times, noted the impact of this on democracy, writing that the wartime censorship ‘probably had an affect on the press and the public for some years after’ (Lee, 1979: 125). In 1963, the Irish Government updated and amended the Official Secrets Act, further ingraining the secretive nature of the Civil Service. The original British legislation, from 1911 and 1920, was considerably strengthened by the then Justice Minister, Charles Haughey, who banned all official documents from release without the express permission of the minister responsible. The Act also made it an offence to receive official information. Penalties for breaches on indictment included a jail term of up to seven years (Official Secrets Act 1963, s 13.3). Introducing the legislation in the Dáil, Mr Haughey argued that ‘Surely a minister or government is entitled to decide whether a thing is secret or confidential and mark it as such’ (Oireachtas Éireann, 1962). If we assume that the intention of freedom of information is to shine a light on government activity, then it can be argued that the Irish Official Secrets Act effectively ensured the opposite. Instead of any right of access to official documentation, there was an express ban on the release of all official documentation unless a government minister granted permission

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to do so (Official Secrets Act 1963, s 4). In this respect, Doyle (1996: 65) notes that no distinction was made between information that was simply embarrassing to a government of the day, and information that was prejudicial to the State’s interest. While the Act was ‘extraordinarily wide’ (ibid.), sanctions were rarely used, with just a handful of prosecutions against journalists recorded. In effect, the Act served to further support the so-called ‘culture of secrecy’ in Irish government (Ingle, 1998). Secrecy continued with the outbreak of ‘the Troubles’ in Northern Ireland in the 1970s and the invocation of Section 31 of the 1960 Broadcasting Act, which allowed the minister responsible for RTE to direct the station not to interview Sinn Fein or IRA representatives (Broadcasting Act 1960, s 31). That directive was used successfully to prevent senior republican figures including the Sinn Fein leader Gerry Adams from being interviewed on RTE, and it led to the sacking of the entire RTE Authority and journalist Kevin O’Kelly for an interview broadcast with the then IRA chief of staff Sean Mac Stiofain in 1971 (Meehan, 2013). It was not until 1994 that these measures were lifted by the Labour Minister for Arts and Culture, Michael D. Higgins, as part of the 1994–1997 ‘Rainbow Government’, which was also responsible for terminating the ‘state of emergency’ that had been declared with the Emergency Powers Act of 1939. The association of Michael D. Higgins with the arts probably increased his pre-disposition against censorship: the two go together in Irish politics.

What prompted change? In 1994, the ‘Rainbow’ coalition government moved FOI legislation to the top of their programme for government, promising to introduce legislation, ‘modelled on the best practice in other countries’ (Doyle, 1996: 67), as soon as was practical. Responsibility was given to Eithne FitzGerald, the Labour Minister of State in the Office of the Tánaiste. According to FitzGerald, FOI was part of a package of measures designed to make government open and accountable to the people, and to reverse the culture that had existed throughout the public service since the foundation of the State (FitzGerald, 1999: 18). The presumption of openness would replace the culture of secrecy implicit in the application of the Official Secrets Act (Doyle, 1996: 78). In consequence, Minister Eithne FitzGerald and a team of senior civil servants set out on a fact-finding tour of Australia and New Zealand to study the operation of FOI there. The influence of the Australian legislation, in particular, is evident. The final Bill introducing FOI was published in December 1996, following an extensive consultation process between the Bill’s authors and government departments, who displayed varying degrees of enthusiasm (Doyle, 1996). The 1997 FOI Bill was clearly shaped by both external and internal political influences:  in terms of prior experience with the implementation of the EU’s

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Access to Information on the Environment (AIE) Directive; and a set of domestic political priorities that placed FOI at the top of the new government’s agenda. Internal influences The genesis of the FOI Act can be traced back to the late 1980s, when allegations of improper relationships between Irish politicians and overseas business interests surfaced in an ITV World in Action documentary broadcast on 13 May 1991. The tribunal of inquiry into the beef-processing industry, set up to investigate the Irish Government’s alleged deals to issue Irish passports to prominent Iraqi business interests who were at that time willing to agree to substantial Irish beef export contracts, was established by resolutions from the Dáil and the Seanad on 24 and 29 May, respectively (O’Toole, 1995). The tribunal took over three years to complete and cost somewhere in the order of €26m (McDonagh, 2003:  1). Wrapping up his investigation, the chair of the Beef Tribunal, Mr Justice Liam Hamilton, noted that if questions asked in the Dáil had been answered as fully as they were in the tribunal, the tribunal would not have been necessary (Gallagher, 2005: 222). This was by no means the first suggestion that the Dáil was an ineffective scrutineer of government activity. Demands for a tribunal and allegations of an improperly close relationship between the then Taoiseach and the Goodman group of companies had been made on several occasions since April 1989. The demands for an inquiry were led by prominent figures in the Labour Party and the Workers Party, as well as the leader of the Progressive Democrats, Dessie O’Malley, who was himself Minister for Industry and Commerce in the Fianna Fáil–Progressive Democrat coalition government of the time. Faced with the choice between a collapse of his coalition government or agreeing to an inquiry, the Taoiseach, Charles Haughey, opted reluctantly for the latter. Originally intended to last only until Christmas 1991, the Beef Tribunal continued to sit until June 1993, giving its final report in August 1994. It outlived the government that established it, and when the replacement Fianna Fáil–Labour coalition took office in January 1993, it did so with the commitment to implement any findings from the Beef Tribunal, nearly eighteen months before those recommendations were even made. Access to government information had been a key issue in the preceding election campaign and the new government’s programme for government promised a consideration of FOI legislation. When this government collapsed in circumstances even more controversial than the last, resulting in a new ‘Rainbow’ coalition without recourse to re-election, the new government committed itself to establishing FOI legislation. External influences In Ireland the AIE Directive was implemented via regulations adopted in 1993.3 The 1993 regulations were prepared by the Department of the Environment and

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were, for the most part, a direct copy of the AIE Directive (Mullany, 1994). The practical use of the new regulations, however, turned out to be difficult: replies were often delayed; information provided was incomplete or in the wrong format; and high fees were sometimes charged (O’Brien, 1995; Wates, 1996). Following a series of complaints to the Irish Ombudsman, the Ombudsman attempted to verify whether or not the withholding of information was justified, and thereby indirectly introduced the principle of ‘harm tests’ into the Irish implementation of the AIE Directive (Wates, 1996: 155). The experience of AIE implementation was important for the development of subsequent FOI legislation since, as Minister FitzGerald noted, ‘it offered a lot of cautionary lessons on what to avoid’ (FitzGerald, 1999: 19). Given that the usual Irish legislative prototype – in the form of pre-existing British legislation – was unavailable, since Britain had no FOI Act at this time, the Irish team was obliged to look further afield for working applications of FOI legislation in common-law jurisdictions. Experience with the implementation of the AIE Directive pointed to the importance of a strong appeals mechanism and it was for this reason that New Zealand and Australia were chosen as policy prototypes for examination (Bugdahn, 2007: 135–136). The result was that the 1997 FOI Act transferred all five elements of the common-law model into its legislation:  Irish FOI legislation applied only to state bodies; provided for harm-based exemptions, as well as public interest overrides; provided an obligation for the sorting out of exempted information; and established an Information Commissioner with powers to make binding decisions on the application of the Act (see Chapter 8). Aside from these practical policy principles in relation to the formulation and implementation of the Act, there also obtained urgent political issues that needed to be dealt with in government. The ‘Rainbow’ government came to power without recourse to a general election when the Fianna Fáil–Labour coalition collapsed, following the Labour leader’s withdrawal of support.4 The President, Mary Robinson, was not asked to dissolve the Dáil, thereby enabling the rearrangement of a governing coalition led by Fine Gael’s John Bruton, and combining the support of the Labour Party and the smaller Democratic Left. Following increasing pressure for explanations of government decisions that were based on policy ‘guidelines and circulars that were not made public’ (Ellis, 1994), and in the wake of controversy over the Beef Tribunal and associated efforts to extract information from government (see below), the new Taoiseach promised that his government would operate ‘as transparently as if it were working behind a pane of glass’ (Irish Times, 2014). ‘We are therefore committed to the enactment of freedom of information legislation to cover both central government and the broad public sector’ (Government of Ireland, 1994). As we have seen, change was prompted by political parties with a different agenda, a governmental desire to tackle opaque bureaucratic culture and

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a relative openness to EU and international influences. Crucially, these are all influences that stand outside the day-to-day running of the system of government. As we shall see below, resistance to open government and the potential for a roll back from FOI permeates the political culture of those who staff our system of government: without a consistent political push, this political culture can prove quite resilient to intermittent attempts at political reform.

Why the roll back? In addition to the relative discomfort felt by senior civil servants in relation to the operation and implementation of FOI, reflected in the High Level Review Group’s 2002 review of FOI’s operation (Department of Finance, 2002), it seems that the rank and file of civil servants were equally cynical regarding the operation of FOI requests. In 1999, the FOI Civil Service Users’ Network submitted a report to the Joint Oireachtas Committee on Finance and the Public Service reviewing some 7,000 FOI requests made to central government, and more than 3,000 FOI requests to regional health boards and local authorities (Zimmerman, 2008:  27). The network made twenty-four recommendations, including: proposals to charge full costs of information provision to business requesters; refuse multiple requests in order to prevent ‘abuses’ of the Act; and review a number of issues in relation to third-party consultations.5 The idea that requesters who were looking for too much information, or attempting to use one fee to cover multiple requests, were somehow ‘abusing’ the intention of the Act reflects a very particularistic approach to the release of records by government to the public. Following the introduction of FOI, some government departments – such as the Departments of Defence, Finance, Enterprise Trade and Employment and Foreign Affairs – were extremely efficient and took to the ‘spirit of the Act’ in their approach (Felle and Adshead, 2009). Equally, the Courts Service quickly got into the habit of by-passing formal FOI procedures by routinely releasing documents directly on request to requesters (ibid.). Similarly, after a couple of years of FOI requests the Department of Finance decided to publish the entire Tax Strategy Group portfolio of documents after each annual budget, a measure that they also used in relation to decentralisation (ibid.). Other departments, such as Justice and Health, acted to the ‘letter of the law’ and were much more cautious about what they released. Commenting on his experience with the Department of Justice, one senior official with extensive experience of FOI suggested that ‘the worst thing you can do is send an email to the Department of Justice. They don’t want emails, they don’t want letters, they want verbals, preferably on a park bench somewhere’ (Felle and Adshead, 2009). It is notable that the 2014 Toland report into the operation of the Department of Justice described it as having a ‘closed, secretative and

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silo driven culture’ (Department of Justice and Equality, 2014). In this respect there is a widespread view that the FOI Act may have engendered a new bureaucratic culture, but not necessarily a more open one (see Chapter  4). One senior political commentator observed that in his experience with FOI requests, one of the key problems lay with the use of Post-it notes stuck to official records, but with no official status: I’ve got FOI requests back where you can see the little line of shade and you know there was a post-it there but you can’t prove it, nor can you say ‘I’ve just received FOI documentation that has been tampered with’ which would be illegal, because all you’ve got is a photocopy but having absolutely no doubt whatsoever that it has been done. (Felle and Adshead, 2009)

The failure to record information by civil servants, or indeed the use of private email accounts to try to circumvent disclosure, is not unique to Ireland. Dunion (2012) notes that similar practices were in operation in Scotland. However, unlike in Ireland, such behaviour may be a criminal offence under the Scottish FOI Act. Section 65 of the Scottish Act makes it an offence to ‘alter, deface, block, erase, destroy or conceal’ a record held by the authority, if a request has been made for information contained in it, and the applicant is entitled to be given the information (Freedom of Information (Scotland) Act 2002). This lack of enthusiasm from the Civil Service was supported by an equal disdain on the part of the Government. The passing of the FOI Amendment Act in April 2003 was likely further prompted by the imminent arrival of the five-year time limit (referred to in the Act’s original provisions) for the withholding of Cabinet records. The Fianna Fáil–Progressive Democrat coalition in power in 2003 was, in many respects, staffed by the same personnel as the Fianna Fáil–Progressive Democrat Government of five years previously and was reluctant to stand over the operation of an FOI procedure that had the potential to cause embarrassment to the Government. Publicly they argued that disclosure of Cabinet records could potentially be damaging to the success of the Northern Ireland peace process. Privately, they presumably hoped that no one would draw attention to the fact that this was already exempted in the original Act’s provisions. The move to amend the Act caused widespread and largely negative commentary in the media that was largely ignored by the Government. When the amendment legislation went through, the sponsoring Minister for Finance, Charley McCreevy, was not present in the Dáil, preferring instead to attend the Cheltenham Racing Festival (McDonagh, 2003:  4). Despite repeated calls for better implementation, even of the restricted Act, the Commissioner, Emily O’Reilly, concluded that the Government was little concerned with the principles of FOI (O’Reilly, 2006).

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What prompts further change again? It is hard not to make a straightforward connection between the presence of the Labour Party in government and a commitment to FOI. Moreover, it is equally hard not to see a connection between the presence of Fianna Fáil in government and a sympathetic commitment to more traditional ways of governing, coincident with their long-standing position as the dominant party. At the very least, this refutes the popularly held notion that all Irish political parties are the same. Equally, the Fine Gael–Labour coalitions that have enacted FOI legislation have typically been working hard to distinguish themselves from prior governmental disgrace:  the Whelehan scandal associated with the Reynolds Government; and the banking and fiscal crisis associated with Brian Cowen’s Government. Economic recovery is hard to deliver and political popularity can be ephemeral. Relatively speaking, passing FOI legislation is a straightforward action that signals a different style of government and has the potential to deliver on its promises quickly. Given the severe economic constraints and lack of room for manoeuvre in budgetary politics, the Fine Gael–Labour coalition that came to office in 2011 was keen to give some positive messages. More broadly speaking, it could be argued that the great bulwarks of support for traditional and secretive government are now more challenged than ever before: the influence of the British system of government has given way to more European influences (Adshead, 2005) and the power of the Catholic Church has been much diminished by a series of scandals (Ryan Report, Murphy Report, Cloyne Report), made all the worse by the Church’s attempts to cover them up. The Cloyne Report was notable not only because it gave details of child sexual abuse in Catholic Church-run institutions in the diocese of Cloyne, but also because it detailed a series of attempts by the Vatican to frustrate the inquiry and cover up evidence of abuse. Following the Cloyne Report and the Taoiseach’s speech to the Dáil, relations between the State and the Catholic Church are considered to be at an all-time low. New proposals on child protection have introduced mandatory reporting and any failure to report allegations of child abuse is subject to sanction. The Catholic Church called for an exemption to be included in the legislation to cover the ‘privacy of the confession box’. Rebuffing this request, the Taoiseach Enda Kenny argued that ‘the law of the land should not be stopped by a crozier or by a collar’. Rebuking the Catholic Church for putting the position of the Church above consideration of the children abused by priests, the Taoiseach’s speech to the Dáil marked a watershed in Irish government–Catholic Church relations: This is not Rome. Nor is it industrial-school or Magdalene Ireland, where the swish of a soutane smothered conscience and humanity and the swing of a thurible ruled the Irish-Catholic world. This is the ‘Republic’ of Ireland 2011. A Republic

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of laws, of rights and responsibilities, of proper civic order, where the delinquency and arrogance of a particular version of a particular kind of ‘morality’ will no longer be tolerated or ignored. (RTE News, 2011)

Whether this renewed political approach is a statement of intent, or of action, remains to be seen.

Conclusion At the beginning of this chapter it was suggested that Irish people are ‘enormously concerned about what other people think about us’, and that this tends to stymie our critical engagement. Recent events concerning the discovery of children’s remains in Co. Galway illustrate that this is still the case. In October 2013, when the story of the 788 babies who had died in the care of the Bon Secours orphanage and were buried in the grounds without memorial was first published in the Connacht Tribune (Tierney, 2013), there was little reaction to it. Months passed and the story was later reported by the Irish Mail on Sunday (O’Reilly, 2014), but the mainstream media hardly reacted (Clifford, 2014; O’Shea, 2014). In June the Gardaí saw no reason to investigate (Boucher-Hayes, 2014). It was not until the story was taken up by foreign media, such as the Washington Post (McCoy, 2014), CNN and other international reporters, that it became a headline story with the national news broadcaster, RTE (RTE Drivetime, 2014). Eventually, a Cabinet decision on 10 June (McGee et  al., 2014) agreed to a statutory commission of investigation into ‘issues in religious-run mother and baby homes across the state’. Minister for Children and Youth Affairs, Charlie Flanagan, set up a high-level interdepartmental review group to establish the terms of reference for the inquiry, which submitted its report to Cabinet by the end of the month (RTE News, 2014). The Tuam Babies case illustrates, once more, that the absence of critical voices can have devastating consequences for state services, for those affected by them and for our capacity to compensate those adversely affected. It also illustrates the continuation of a political culture where the opinion of influential outsiders often counts for more than minority Irish views. This was so in the Tuam Babies scandal, as well as the revelations that led to the Beef Tribunal. A fully resourced system of freedom of information does not provide a ‘magic bullet’ for lapses in government – but it does provide the information necessary to pursue the means of redress. In this respect, we might view both the pursuit and maintenance of a fully institutionalised system of freedom of information as a litmus test for broader changes in contemporary Irish political culture. Garvin (1991: 42) suggests that in the Republic, Irish democracy was the product of two ‘strange foster parents’, competing from the start ‘with the overwhelming might of the centralised British imperial state and, more subtly, with

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the rival authority system of the Catholic Church’. The consequence, he argues, is both a pervasive populism  – reflected in a political system where political leaders and the general public are unusually vulnerable to each other’s influence – and a weakness of secular political institutions. A history of the state’s attitudes to freedom of information illustrate the veracity of this view and, more importantly, points to the significance of the relationship between the government and the governed for open and transparent government. A political culture that places no value on open government and expects no better is the biggest enemy of good governance. Challenges to conservatism have come but slowly. The power of the Church is diminishing, but this has been a largely negative phenomenon: as the Church’s influence has declined, it has thus far not been replaced by another set of civic values that act as a positive influence over government. It is in this respect that citizens’ attitudes to politics provide the primary bulwark against roll back on open government. These attitudes were not present in 2003, when the Fianna Fáil Government was able to amend the original FOI legislation with little public condemnation, and it is not clear that they are present now. If the current FOI legislation suffered another reversal of fortune, can we be certain that Irish citizens would complain? Recent events concerning the discovery of the buried remains of hundreds of babies that died while in the care of a state orphanage raise doubts about the answer to this question and illustrate the kinds of behaviour that FOI is designed to avert.

Notes 1 Such as the Irish Statesman newspaper and prominent individuals like Senator O’Farrell and a coterie of Irish writers (see O’Drisceoil, 2005). 2 This Article (44.1) was removed in 1972, together with Article 44.2, which gave reference (though no special position) to other Christian churches in Ireland. 3 It was replaced by new regulations in 1996, following a change of government, and in 1998 following amendments required by the European Commission. For details, see Bugdahn, (2007). 4 The Taoiseach, Albert Reynolds’ stubborn refusal to reconsider his decision to appoint Harry Whelehan to the position of Attorney General cost him both the coalition government and the party leadership (see Lysaght, 2007). 5 Third-party consultations refer to the requirement, under the legislation, to inform a third party if information relating to that person has been requested, and is being considered for release, under FOI. Such information may be exempt, subject to privacy conditions, but may be also releasable in certain circumstances.

References Adshead, Maura (2005) ‘Europeanization and changing patterns of governance in Ireland’ Public Administration 83/1: 159–178

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Adshead, Maura (2008) ‘State autonomy, state capacity and the patterning of politics in the Irish state’ in Maura Adshead, Peadar Kirby and Michelle Millar (eds) Contesting the State: Lessons from the Irish Case. Manchester: Manchester University Press, pp. 59–83 Adshead, Maura and Tonge, Jonathan (2009) Politics in Ireland:  Convergence and Divergence in a Two-Polity Island. Basingstoke: Palgrave Barrington, T.  J. (1987) ‘Ireland:  The interplay of territory and function’ in R.  A.  W. Rhodes and V. Wright (eds) Tensions in the Territorial Politics of Western Europe. London: Frank Cass Boucher-Hayes, Philip (2014) ‘Tuam Babies: The evidence’, 4 June, available at http://philipboucher-hayes.com/2014/06/04/tuam-babies-the-evidence (accessed 15 August 2014) Bugdahn, Sonja (2007) ‘Does the EU stifle voluntary policy transfer? A study of the introduction of Freedom of Information in Portugal and Ireland’ Public Administration 85/1: 123–142 Calfano, Brian R., Oldmixon, Elizabeth A. and Suiter, Jane (2013) ‘Assessing clergy attitudes: Ideology and institutional superiors’ Journal of Church and State: doi 10.1093/scs/cst028 Carlson, Julia (1990) Banned in Ireland:  Censorship and the Irish Writer. Athens: University of Georgia Press Catholic Bulletin (1928) Vol. 18, Issue 2, February 1928. Dublin: M. H. Gill & Son CEL (Committee on Evil Literature) (1926) Report of the Committee of Enquiry into Evil Literature. Dublin: National Archives of Ireland Chubb, Basil (1992) The Government and Politics of Ireland, 3rd edn. London: Longman Clifford, Michael (2014) ‘We’ve become indifferent to dead babies’ Irish Examiner, 7 June Department of An Taoiseach (2011) ‘Statement by the Taoiseach on the Dáil  Motion on the report of the Commission of Investigation into the Catholic Diocese of Cloyne, in Dáil Éireann’, Irish Government News Service, available at www.merrionstreet.ie/index.php/2011/07/ statement-by-the-taoiseach-on-the-dail-motion-on-the-report-ofthe-commission-of-investigation-into-the-catholic-diocese-of-cloyne-indail-eireann/?cat=3 (accessed 15 August 2014) Department of Finance (2002) High Level Review Group on the Freedom of Information Act 1997, Report to the Government. Dublin: FOI Central Policy Group, Department of Finance Department of Justice and Equality (2014) Report of the Independent Review Group on the Department of Justice and Equality, 28 July, available at www. justice.ie/en/JELR/Pages/ind_review (accessed 19 August 2014) Department of Public Expenditure and Reform (2014) OPG Draft National Action Plan Ireland 2014–2016, 8 May, available at www.ogpireland.ie (accessed 23 June 2014)

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Dillon, Michelle (1993) Debating Divorce:  Moral Conflict in Ireland. Lexington: University Press of Kentucky Doyle, John (1996) ‘Freedom of Information: Lessons from international experience’ Administration 44/4: 64–82 Dunion, Kevin (2012) Informing the Future: The State of Freedom of Information in Scotland  – Scottish Information Commissioner Special Report 2012. St Andrews: Office of the Scottish Information Commissioner Ellis, D. (1994) ‘Freedom of Information:  A  welfare rights perspective’, presented at the National Social Services Board (NSSB) Annual Conference, Dublin Castle, 9 December Fahey, Tony (2007) ‘The Catholic Church and social policy’ in Brigid Reynolds and Sean Healy (eds) Values, Catholic Social Thought and Public Policy. Dublin: CORI Farrell, Brian (1973) The Irish Parliamentary Tradition. Dublin: Gill and Macmillan Farrell, Brian (1993) ‘Cagey and secretive: Responsibility, executive confidentiality and the public interest’ in R. J. Hill and Michael Marsh (eds) Modern Irish Democracy. Dublin: Irish Academic Press Farrell, Sean (1995) The Politics of Irish Education, 1920–1965. Dublin: Institute of Irish Studies, UCD Felle, Tom and Adshead, Maura (2009) ‘Democracy and the right to know:  10  years of Freedom of Information in Ireland’, Limerick Papers in Politics and Public Administration 4, University of Limerick Finnane, Mark (2001) ‘The Carrigan Committee of 1930–31 and the “Moral Condition of the Saorstát” ’ Irish Historical Studies 34/134: 156–174 FitzGerald, Eithne (1999) ‘Freedom of Information: The next steps’ in J. Donnelly and M. Doyle (eds) Freedom of Information: Philosophy and Implementation, proceedings of the Conference on Freedom of Information, November 1997. Dublin: Blackhall Publishing, pp. 18–25 Gallagher, M. (2005) ‘Parliament’ in John Coakely and Michael Gallagher (eds) Politics in the Republic of Ireland. London: Routledge, pp. 211–241 Garvin, Tom (1991) ‘Democracy in Ireland:  Collective somnambulance and public policy’ Administration 39: 42–54 Garvin, Tom (1993) ‘Unenthusiastic democrats: The emergence of Irish democracy’ in R. J. Hill and M. Marsh (eds) Modern Irish Democracy, Dublin: Irish Academic Press Garvin, Tom (1996) 1922:  The Birth of Irish Democracy. Dublin:  Gill and Macmillan Government of Ireland (1960) Broadcasting Act 1960. Dublin:  Government Publications Stationery Office Government of Ireland (1963) Official Secrets Act 1963. Dublin: Government Publications Stationery Office

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Government of Ireland (1994) A Government for Renewal:  Programme for Government for Fine Gael, Labour and Democratic Left 1994–1997. Dublin: Government Publications Stationery Office Heywood, Andrew (2002) Politics, 2nd edn. London: Palgrave Horgan, John (2001) Irish Media: A Critical History since 1922. London: Routledge Ingle, Roisin (1998) ‘A radical departure from our national culture of secrecy’ The Irish Times, 25 April Inglis, T. (1998) Moral Monopoly: The Rise and Fall of the Catholic Church in Modern Irish Society. Dublin: Gill and Macmillan The Irish Times (1950) ‘Editorial’, 1 December The Irish Times (2014) ‘Editorial: Bastions of secrecy’, 10 May Kavanagh, Catherine (2013) ‘Say no to groupthink: How philosophy can transform learning’ The Irish Times, 19 November Keating, Anthony (2012) ‘Setting the agenda for the press: The 1929 case against the Waterford Standard’ New Hibernia Review 16/2: 1–8 Kissane, Bill (2002) Explaining Irish Democracy. Dublin: UCD Press Lee, Joe (1979) Ireland 1945–70. Dublin: Gill and Macmillan Lysaght, Charles (2007) ‘Harry Whelehan’, Independent.ie, 20 May 2007, available at www.independent.ie/business/irish/harry-whelehan-26291726.html (accessed 8 July 2014) McCoy, Terrence (2014) ‘Historian believes bodies of 800 babies, long-dead, are in a tank at Irish home for unwed mothers’ Washington Post, 3 June 2014, available at www.washingtonpost.com/news/morning-mix/wp/2014/06/03/ bodies-of-800-babies-long-dead-found-in-septic-tank-at-former-­irishhome-for-unwed-mothers (accessed 19 August 2014) McDonagh, Maeve (2003) ‘Freedom of Information in Ireland: Five years on’, posted on freedominfo.org, available at www.freedominfo.org/documents/ ireland.pdf (accessed 6 June 2014) McDonagh, Maeve (2010) ‘The impact of freedom of information on Irish local government’ in Richard A. Chapman and Michael Hunt (eds) Freedom of Information: Local Government and Accountability. Aldershot: Ashgate McGee, Harry, Flahery, Rachel and Minihan, Mary (2014) ‘Inquiry into mother and baby homes to be set up’ Irish Times online, 10 June, available at www. irishtimes.com/news/politics/inquiry-into-mother-and-baby-homes-tobe-set-up-1.1826875 (accessed 15 August 2014) Meehan, Ciara (2013) A Just Society for Ireland? 1964–1987. Basingstoke: Palgrave Montesquieu, C. L. (1949 [1748]) The Spirit of the Laws. New York: Hafner Mullany, C. (1994) ‘Implementation of the EC Directive on Freedom of Access to Information in Ireland and other Member States’ Irish Law Times 12: 138–144 O’Brien, G. (1995) ‘Freedom of Access to Information on the Environment: The reality in Ireland’ Irish Communication Review 5: 68–75

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O’Connor, Barbara (2005) ‘Sexing the nation: Discourses of the Dance Hall in Ireland in the 1930s’ Journal of Gender Studies 14/2: 80–105 O’Drisceoil, Donal (2005) ‘The best banned in the land: Censorship and Irish writing since 1950’ The Yearbook of English Studies 35: 146–160 O’Halpin, Eunan (1998) ‘A changing relationship? Parliament and Government in Ireland’ in P. Norton (ed.) Parliaments and Governments in Western Europe. London: Frank Cass, pp. 123–141 O’Halpin, Eunan (2002) ‘Still persecuting civil servants’ in P. Norton (ed.) Parliaments and Citizens in Western Europe. London: Routledge Oireachtas Éireann (1928) Dáil Debates, 26 October. Dublin:  Government Publications Stationery Office Oireachtas Éireann (1962) Dáil Debates, Vol. 194/1493, 5 April. Dublin: Government Publications Stationery Office Open Government Partnership Initiative (n.d.) ‘What is the OGP?’, available at www.opengovpartnership.org/sites/default/files/attachments/leaflet_no.pdf (accessed 23 June 2014) O’Reilly, Alison (2014) ‘Mass septic tank grave “containing the skeletons of 800  babies” at site of Irish home for unmarried mothers’ Mail Online, 2  June, available at www.dailymail.co.uk/news/article-2645870/Mass-­­ grave-­­contains-bodies-800-babies-site-Irish-home-unmarried-mothers. html (accessed 8 July 2014) O’Reilly, Emily (2006) ‘Speech at the launch of the Diploma in Management of Modern Public Service Delivery’, delivered to the Institute of Public Administration, 20 June O’Shea, Sinead (2014) ‘The dark truth about modern Ireland its media don’t talk about…’, Greenslade Blog, Guardian online, 20 June, available at www. theguardian.com/media/greenslade/2014/jun/20/ireland-childprotection (accessed 8 July 2014) O’Toole, Fintan (1995) Meanwhile Back at the Ranch: The Politics of Irish Beef. London: Vintage Parliament of Scotland (2002) Freedom of Information (Scotland) Act, 2002 [ASP13]. Edinburgh: Stationery Office Rafter, Kevin (2013) ‘Evil literature: Banning the News of the World in Ireland’ Media History 19/4: 408–420 Rockett, Kevin (2004) Irish Film Censorship:  A  Cultural Journey from Silent Cinema to Internet Pornography. Dublin: Four Courts Press RTE Drivetime (2014) ‘Tuam babies’, 4 June, available at www.rte.ie/radio/utils/ radioplayer/rteradioweb.html#!rii=9%3A20591964%3A83%3A04%2D06%2 D2014%3A (accessed 8 July 2014) RTE News (2007) ‘Ahern apologises for suicide remark’, 4 July, available at www. rte.ie/news/2007/0704/90808-economy (accessed 8 July 2014)

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RTE News (2011) ‘The law of the land should not be stopped by a crozier or by a collar’, 14 July, available at www.rte.ie/news/thefrontline/2011/0912/ 306039-frontlineblog (accessed 15 August 2014) RTE News (2014) ‘Cabinet briefed on mother-and-baby homes’, 1 July, available at www.rte.ie/news/2014/0701/627690-mother-and-baby-homes Saorstát Éireann (1932) Cabinet Procedure [National Archives, S1646/1, 16 April 1932] Tierney, Declan (2013) ‘Memorial for 788 babies buried in Tuam orphanage’ Connacht Tribune, 10 October, available at http://connachttribune. ie/memorial-for-788-babies-buried-in-tuam-orphanage (accessed 15 August 2014) Tocqueville, A.  de (1947 [1856]) The Old Regime and the French Revolution. Oxford: Blackwell Wates, J. (1996) ‘Ireland’ in R. Hallo (ed.) Access to Environmental Information in Europe: The Implementation and Implications of Directive 90/313/EEC. The Hague: Kluwer Law International, pp. 121–174 Whyte, J. H. (1980) Church and State in Modern Ireland 1923–1979. Dublin: Gill and Macmillan Zimmerman, Joseph (2008) ‘Freedom of information in Ireland’ Administration 56/2: 19–39

3 Freedom of information and national security: where’s the harm in that? Jennifer Kavanagh

Introduction National security and freedom of information are not natural bedfellows. Sometimes, undemocratic actions are thought necessary to protect the democracy on which the authority of the State is based: surveillance, stop and search policing and other security measures can present real challenges to democratic governance. Furthermore, the release of information may itself undermine the authority of the State. National security concerns for legitimate secrecy have, by their nature, undermined arguments for openness and transparency in the exercise of government power. The perceived power struggle between both democracy and human rights on the one hand, and state security on the other, are believed to pull against each other. This is neatly outlined by Coliver (1998), yet, as she suggests, the two in reality work together to promote sustainable democracy: Legitimate national security interests are … better protected when the press and public are able to scrutinise government decisions than when governments operate in secret … by enabling public scrutiny of government action [freedom of expression and access to information] serve as safeguards against government abuse and thereby form a crucial component of genuine national security. (Ibid.: 13)

This chapter examines the clash between national security and the public interest in Ireland, when government tries to balance the legitimate need for secrecy with efforts to allow for openness and transparency. It will assess the impact of national security restrictions on the development of democracy in the State, the relationship between government and the citizen, and the knock-on effects regarding government accountability. It will also assess how

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Ireland measures up against international norms of freedom of information as set out by the Johannesburg Principles. It will compare the current legislation, which permits restriction of these norms, and assess whether the reform in the Freedom of Information (FOI) Act 2014 goes far enough to promote and ensure compliance with international best practice and create a meaningful environment of legitimate restriction and oversight.

Freedom of information and legitimate secrecy Freedom of information is designed to serve the citizens of a state by providing for the public interest by granting access to information relating to the workings of the state. The use of the public interest is meant to serve democracy by increasing accountability. In Ireland, in order to preserve democracy, the ‘national security interest’ has always tried to restrict information to protect the security of the State. Much of the literature concerning the birth of the Irish State tends to argue that its survival is itself a remarkable achievement given the security threats from both left and right at its birth (Lee, 1989; Garvin, 1996; Kissane, 2002). However, these security threats were to be amplified during the period of ‘The Troubles’, which encapsulated the period of the late 1960s to the late 1980s where political violence was rife in Northern Ireland and spilled over into both the Republic of Ireland and Great Britain. This era of history provided a further catalyst for restricting freedom of expression in broadcast media, the adoption of emergency powers procedures and the creation of strong national security legislation in the Offences Against the State Acts, 1939–1988. When considering the need for freedom of information, the general rationale is the propagation of transparency and accountability, providing a counterbalance to the exercise of governmental power and a means for citizens to fully understand the policies and actions carried out by the State in their name. There are occasions, however, when the State argues that legitimate secrecy is necessary in cases of national security, where the protection of the State, the protection of democracy and the protection of citizens is at issue. However, the division between legitimate secrecy and the proprietorial guarding of State information was to be blurred when national security legislation was used to interfere with communications between journalists (Kavanagh, 2012). The case of Kennedy & Arnold v. Attorney General [1987] IR 587 is noted in constitutional law for the development of the unenumerated right to privacy under the provisions of Article 40.3 of the Constitution. The breach of privacy in this case emanated from the tapping of telephones of political journalists. The Irish Times on 18 December 1982 revealed that the telephones of Bruce Arnold and Geraldine Kennedy were being tapped in order to ascertain whether there was a leak from Cabinet. At the time, there was immense coverage of the tapping of phones belonging to two senior political journalists. The tapping of

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telephones was permitted under the provisions of the Post Office Act 1908 in instances where the security of the State was in jeopardy. In Kennedy & Arnold v. Attorney General, the ‘deliberate, conscious and unjustified intrusion by the servants of the State’ to protect executive secrecy was to create the right to privacy in an enforceable fashion for citizens. Even though the creation of the right to privacy was not the intention but the outcome of the case, it was nonetheless the statement of a right to privacy in the Constitution. Moreover, the actions were ‘without any lawful justification  … [they] constituted an attack on their dignity and freedom as individuals and journalists and cannot be tolerated in a democratic society such as ours’ ([1987] IR 587, 594). The judgment further stated that the unauthorised phone tapping was perpetrated ‘by an organ of the State which is under a constitutional obligation to respect, vindicate and defend their rights’ (ibid.). Sean Doherty, the Fianna Fáil Minister for Justice in the short-lived 1982 Government, stated in an interview with The Irish Times that ‘it was my function and duty to ensure that the security of the State and the confidentiality of the Cabinet is maintained’ (Murtagh, 1984). Conor Cruise O’Brien, a well-regarded journalist and formerly a TD and Minister for Posts and Telegraphs, said that ‘under the Doherty Doctrine of the security of the State, it is clearly justifiable to tap the telephones of political journalists, because this is a handy way of getting information which might be of advantage to the governing party and of its leader, and hence the State’ (O’Brien, 1984). This incident highlighted the possibility for the abuse of using the constitutional limitations of public order and morality as grounds for preventing the free exercise of freedom of expression and freedom of information. The case demonstrates that even though legislation may be passed for legitimate reasons of national security, the application of the legislation may go beyond what was envisaged at the time of its creation. Therefore, there must be safeguards within the use of national security legislation and proper means of review to ensure that restrictions are being used for legitimate and democratic purposes. When the State’s right to legitimate secrecy is set against the citizen’s right to speech and to information in Ireland, the only binding means of challenging the restriction is through the provision of the Irish Constitution. Even though international human rights documents, such as the United Nations Declaration on Human Rights and the International Covenant on Civil and Political Rights, contain protections (see Chapter 1), such documents do not have any domestic legal effect in the Irish legal landscape unless they are passed into domestic law by either amendment to the Constitution or with legislation. Even though the European Convention on Human Rights has been passed into Irish domestic law, its remedies are not as effective as constitutional judicial review. However, the essential element in legitimate secrecy is the degree of oversight and proportionality that is required to be balanced in any attempt to stifle

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the right to information and the right to free speech. The Irish Constitution does not allow for speech to be restricted when the sole aim of such a communication is to criticise government policy under the provisions of Article 40.6.1(i). Unlike the provisions of the international human rights documents mentioned above, the Irish Constitution does not include any right to information. However, commentators have argued that there may be an implied right to information in the Constitution (Casey, 1997: 565). Furthermore, the right to official information is not regarded as a human right in the strict sense in Ireland, as it is not considered in the context of an express right in the Constitution but is subsumed into the domestic legal structures by the European Convention on Human Rights Act 2013 (Kavanagh, 2013).

The Official Secrets Act 1963 The exact reason for the introduction of the Official Secrets Act 1963 is unclear. McGonagle posited that its introduction was due to the resurgence in IRA activity, though it was stated to the Dáil that it was due to the leaking of exam papers (McGonagle, 2003: 353). She contends that the true rationale is hard to identify. The scope of the legislation is very broad. In fact, its reach led the Committee on Legislation and Security to question the constitutionality of some the legislation’s provisions. Moreover, since the majority of the provisions of the Act are focused on the Civil Service, its provisions have been claimed to instil a ‘culture of secrecy’ within the Civil Service. In spite of the lack of prosecutions under the Act, the chilling effect and the culture within the Civil Service that has been fostered under the Act has been ‘no less real as a result’ (ibid.: 354). This culture of secrecy still pervades the Civil Service today and has been the subject of media reporting in 2014 denouncing its impact on effective democracy. The ‘Toland Report’, which reviewed management issues in the Department of Justice, stated that there is within that department a ‘closed, secretive and silo culture which has inhibited the capacity of the organisation to question and to challenge’ (Department of Justice and Equality, 2014: 7). The report continued that the ‘need for secrecy in particularly sensitive areas has not been restricted to those areas. It permeates much of the Department’s remit and has become part of its DNA, to the detriment of other areas that should be open’ (ibid.). At the very least, the framing of the legislation is worded in an imprecise manner. For instance, the definition of ‘official information’ is framed so vaguely that it may comprise any document or note that is or has been in the possession of a public office holder and is confidential. It is also an offence for any person to have in their possession any document containing any material that may be prejudicial to the safety of the State; this is an issue that is solely determined by the Minister for Finance. The most worrying aspect of the legislation is the provision contained in Section 3, whereby a certificate given by a minister under

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his seal may assert that any official codeword or password or any sketch, plan, model, article, note, document or information specified or indicated in the certificate is secret or confidential shall be conclusive evidence of the fact so certified. In other words, whatever a minister deems a secret is a secret. This removes any power of arbitration on the issue from the courts. The Opposition made this point during Dáil debates during the passage of the legislation (Cooke, 1985). Some commentators regard it as something of a farrago that Ireland, a small state with a history as a neutral country in international affairs, has the same degree of legislative protection for state secrets as a country in NATO (Cooke, 1985). According to Cook, ‘The most striking thing about the Irish Official Secrets Act is how closely it resembles the British one in throwing a net of secrecy over virtually all the proceedings of Government and the Civil Service’ (ibid.: 23). The only explanation for this rigorous approach could be the internal terrorist threat posed by the Northern Ireland situation, but this was easily regulated by means of the comprehensive provisions against terrorism as encapsulated in the Offences Against the State Acts. These concerns were raised in A Government for Renewal, the programme for government of the Fine Gael, Labour and Democratic Left ‘Rainbow’ coalition in 1994, as part of a legislative pathway of political reform. Their joint programme for government proposed that all ‘statutory provisions which restrict access to information would be reviewed on a regular basis by the Legislation and Security Committee in order to bring them in line with best international standard of public information provisions’ (Kavanagh, 2012: 7). Even though that government pledged to reform the offending provisions of the Official Secrets Act as part of an overall package of reform of legislation to increase transparency in government operations, no changes were made to the legislation. While the same government did introduce the original FOI legislation, arguably, the retention of the Official Secrets Act and its incorporation into the Freedom of Information Act 1997 significantly undermined the principles of openness and transparency that they sought to introduce with open government policies. In 1997, the Select Committee on Legislation and Security’s report on the reform of the Official Secrets Act 1963 (Oireachtas Éireann, 1997) were of the opinion that the protection of freedom of expression ‘in line with the requirements of good government means that there should be the maximum possible freedom of access to public information’ (ibid.: 3). The committee requested the repeal of the 1963 legislation as soon as possible, and its replacement with specified criminal sanctions for espionage and the unauthorised disclosure of specific categories of information. It also argued that the proposed reforms should incorporate the provisions of the FOI legislation (ibid.: 4). The proposed categories were: security and defence of the State; crime and criminal law enforcement;

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protection of life and safety; and disclosure of information for personal gain. The report also stated that release of other categories of documents should be a disciplinary offence, using the provisions of the criminal law only if someone knowingly released documents without authorisation, with explicitly showing that they caused harm by the release of the document (ibid.: 5). Perhaps the committee’s most important contribution, however, was regarding the constitutionality of the Official Secrets Act 1963. The committee stated that the ‘act may be unconstitutional as it is a blanket ban preserving secrecy at all costs’ (Oireachtas Éireann, 1997: 28), not just the situations that are provided for in the constitution as legitimate grounds for the restriction. Therefore it could be argued that even though there was a legitimate national security threat, which did affect the authority of the State, the legislative steps that were taken to protect the State are now unsuited to the current political environment. Furthermore, when steps are taken to de-escalate the legislative protections, the framing and consideration of the legislation is too conservative in adapting to current conditions.

Government by consent and citizen oversight Open government is shorthand for the belief that citizens have a right to access government information for effective public oversight. It also includes the idea of greater public consultation on issues of national importance. Furthermore, the aim of FOI legislation is to create a more open culture in national administration (McDonagh, 1995: 210). Ideally, this right should not be measured by the release of information by a government, but by the extent to which citizens are facilitated to access information that they choose for themselves. The free flow of information is essential to a healthy democracy, yet typically the guardianship of this flow is placed in the hands of those who would seek to contain this flow to the greatest extent: the government (Rourke, 1961: vii). Restricting this flow can restrict the development of democracy and stifle informed discussion of government policy (ibid.: 9). This creates a tension between those seeking to restrict the information and those who wish to access this information. It could be argued that those who seek to restrict the information generally base their arguments on grounds of public order and the effective running of the government. A democratic government could quite legitimately claim that secrecy is a necessary component of government (Sagar, 2007: 405). Yet those who seek the release of the information as a means of holding the government to account require rights to be put in place if this freedom of information is to be used as an effective tool. Essentially, the democratic right of a citizen to criticise government policy is toothless without the corollary right to freedom of information to access the details of government policies.

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In Ireland, commitments to open government policies have been made in the joint Programmes for Government – negotiated between the coalition parties – for successive governments since 1993. The general theme, exemplified in these documents, is to liberalise the flow of information between the government and the governed. This trend suggests a shift away from the traditional culture of secrecy and is perhaps indicative of a governmental view that regards the traditional culture of secrecy as no longer consistent with a modern democracy. However, the practical changes required to implement this more modern version of Irish democracy have not kept pace with the rhetoric. While the open government approach has meant more information on departmental websites and more engagement with the press to communicate policy messages to the citizens, the ability of the citizen to seek information for himself or herself is being eroded. In theory, moves towards open government illustrate a willingness at the political level to open up the business of government to scrutiny, but the practical effect of this change will not be felt unless there is a meaningful FOI scheme. This should allow for strongly based legislation that empowers citizens to access information with the least administration, and where information is restricted only for the most legitimate of reasons. It is in this context that the commitments to open government outlined in various Programmes for Government, when backed up with the requisite legislation or a review of current provisions that are seen as overly burdensome, could be cynically viewed.

Framing freedom of information and international influences The issue of freedom of information rights are considered by some to be the hallmark of a true democracy (Stubbs, 2008: 667). It could be viewed as a right that allows for participation in the activities of government policy and a means of democratic oversight by citizens into the workings of government, which is an essential aspect of citizen oversight as discussed in the previous section. In framing the FOI Act 1997 and in subsequent consideration of the legislation, Ireland has been greatly influenced by the Australian legislative framework. The influence of the philosophy of the Australian jurisdiction on the Irish legislation cannot be understated. Australia is a fellow common-law country. The legislation that had been passed there and the balances achieved resonate with the Irish jurisdiction. When considering the concept of freedom of information and the consequences for the relationship between the ‘government and the governed’, the Australian Senate Standing Committee on Legislation and Constitutional Affairs stated the following: The accountability of the government to the electorate, and indeed to each individual elector, is the corner-stone of democracy, and unless people are provided

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with sufficient information accountability disappears … We believe that if people are adequately informed, and have access to information, this in turn will lead to an increasing level of public participation in the processes of policy making and government itself. (Parliament of the Commonwealth of Australia, 1979: 21–22)

In the Irish FOI Act, the concept of the public interest was not defined. However, the report of the 2002 Annual Report of the Office of the Irish Information Commissioner draws from the Queensland Freedom of Information Act 1992 in addressing the meaning and concept of the public interest. Under Section 5 of the Queensland Act, the public interest is defined as follows: 5.(1) Parliament recognises that, in a free and democratic society – (a) the public interest is served by promoting open discussion of public affairs and enhancing government’s accountability; and (b)  the community should be kept informed of government’s operations, including, in particular, the rules and practices followed by government in its dealings with members of the community; and (c) members of the community should have access to information held by government in relation to their personal affairs and should be given the ways to ensure that information of that kind is accurate, complete, up-to-date and not misleading. (Government of Queensland, 1992: s 5)

FOI legislation has to strike a delicate balance between the ability of a person to access the information they seek, and the ability of a government to restrict access to such information in order to protect the privacy of other citizens and issues of a sensitive nature. The FOI Acts of 1997 and 2003 give a broad right to access information held by public bodies, and a public body is under a duty to give reasonable assistance. Moreover, a person who seeks information under the provisions of the Act does not need to show any reason for seeking the information. Generally, it is an international trend that sensitive information will remain outside the remit of freedom of information. When considering the balance between protecting democracy in the State and preserving the secrets of the State, it is clear that a blanket ban on the release of information pertaining to national security issues could not be maintained in the public interest. The disregard of the content of the information would not be considered proportionate to the aim of the restriction sought. However, the balance and tests that must be adopted when assessing the release of information that may affect the security of the State should incorporate an objective rather than a subjective assessment of the considerations that must be made in such a situation. One issue that arises in the restriction of national security information is the so-called ‘mosaic effect’ (Pozen, 2005). The mosaic effect refers to the potential ability to piece together a chain of documents on the basis of FOI refusals. Sometimes, notification of the existence of information that is denied may be just

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as dangerous for security as the release of the original documents in question. Because of this, FOI legislation empowers the relevant head to refuse to confirm or deny the existence of documents (McDonagh, 2006: 306). This feature can also be found in comparable English and international law. However, with all restrictions for national security issues, commentators question whether such denials of information may be based on ‘speculative reasoning by the government’ as opposed to genuine concerns in the public interest (Pozen, 2005: 633).

International best practice: the Johannesburg Principles Even though this chapter has already raised some concerns about the means of restricting information for the reason of national security, when international best practice in the area is consulted, the picture becomes bleaker for the Irish State. The Johannesburg Principles are considered to be the most even-handed statement of rules that should guide a state in the regulation of information regarding national security. Set by international experts in the area and approved by the United Nations, the principles have formulated a balanced approach to both protecting the security of the state by means of legitimate restriction and the promotion of human rights, especially the right to information. These principles were drawn up from a conference convened by the freedom of expression and media rights group, ‘ARTICLE 19’, the International Centre Against Censorship and the Centre for Applied Legal Studies of the University of Witwatersrand in Johannesburg, and were adopted on 1 October 1995. The Johannesburg Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, Abid Hussain (Article 19, 1996), and since then have often been considered to be the gold standard of national security protection, while still allowing for freedom of expression. It was felt that, on an international level, there should be a clear delineation of the acceptable levels of restrictions that could be applied by a government in order to restrict access to information on the grounds of national security. As stated in the preamble to the principles, the group of experts were cognisant of the use of national security restriction as a means of justifying serious violations of human rights. Therefore the principles were to represent a ‘clear recognition of the limited scope of restrictions on freedom of expression and freedom of information that may be imposed in the interest of national security, so as to discourage governments from using the pretext of national security to place unjustified restrictions on the exercise of these freedoms’ (ibid.: 6). They also recognised the necessity ‘for legal protection of these freedoms by the enactment of laws drawn narrowly and with precision, and which ensure the essential requirements of the rule of law’ (ibid.: 6). When considering the nature of the legitimate restrictions, which may be argued by a government, a number of factors should be considered. Under the Johannesburg Principles, a government needs to demonstrate that restrictions

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are necessary in a democratic society to protect a legitimate national security interest. There must be a genuine purpose for the restriction and demonstrable effect that can be used as evidence for a serious threat and the reason for the restriction compatible with democratic principles. Principle 2 defines what constitutes a legitimate national security interest as follows: Legitimate: Protection of a country’s existence or its territorial integrity against the use of, or threat of force, or affects capacity to respond to the use or threat of force, whether from an external source or internal source.

The principles also set out what is not considered to be a legitimate threat: Not legitimate:  Protecting interest unrelated to national security  – protecting from embarrassment, exposure of wrongdoing, concealment of information of the workings of public institutions, entrenchment of ideology or suppression of industrial unrest. (Article 19, 1996: 8)

However, one of the founding principles is to be found in Principle 14 – the right to independent review of a denial of information. As previously discussed in this chapter, the Official Secrets Act 1963 has been criticised not only for its overly expansive reach, which raises unresolved questions about its constitutionality, but also for the lack of independent review (Oireachtas Éireann, 1997). According to the Johannesburg Principles, a state is obliged to specify reasons for denial in writing as soon as possible and provide a right of review of the merits and validity of the decision, and an independent authority should carry out any such review (Article 19, 1996). As already discussed, the certification system does not allow for any truly independent means of adjudication and review. If there is a case of judicial review in such situations, then the reviewing authority must have the right to examine the information withheld. As yet there have been no such cases. However, the lack of independent review would also raise questions on a natural justice point, whereby a right of appeal or review of a decision is normal.

Reforming freedom of information and national security restrictions The initial 1997 FOI Act was hailed as a welcome move towards increasing the accountability and transparency of government business in Ireland. The 2003 Amendment Act, however, provided something of a reversal to these moves. One of the most retrograde steps taken in the 2003 legislation was the increase in time before Cabinet documents could be released. Under the 1997 Act, there was a possibility for Cabinet records to be released after five years, subject to the general exclusions in the Act itself. In amended 2003 Act, this time limit was

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extended to ten years. Even the legislative procedure surrounding the amendment was secretive. The irony was that ‘the Freedom of Information act, the epitome of openness and transparency in government, was being curtailed by government process shrouded in secrecy’ (McGonagle, 2003: 359). The 2014 FOI Act has introduced dramatic change to the treatment of national security information, departing from its current framework. The main change is with regard to the reintroduction of a harm test. This harm test will seek to balance the risk of damage to national security against the public interest in the release of such information. However, the harm test will be carried out by the head of an FOI body, which is further elaborated in the interpretations section as a minister or other person who is in charge of a section to which the FOI provisions relate. The lack of express consideration of the public interest in the framing of the legislation may undermine the attempt to rebalance towards the best practices of open government. The public interest, though implied, needs to expressed as part of the legislative construction of Section 24(4). Additionally, when the review of such decisions is considered, the issue of ministerial certificates still remains as an active concern within the current framework; as such certificates cannot be reviewed by the Information Commissioner. When considering the provisions of the Irish legislation and the spirit of the Johannesburg Principles, the lack of truly independent review may undermine the attempts to normalise national security restrictions. Even though the reintroduction of the harm test suggests that the drafters sought to implement international best practice, the lack of review outside the Cabinet may not go far enough. Review by another minister of documentation claimed to fall under the exception may not be independent enough for the purposes of the Johannesburg Principles. The original framing of the national security restriction stated that a ‘head may refuse to grant’ information under the 1997 Act. However, this provision was changed to ‘shall’ under the provisions to Section 19 of the 2003 Act. The 2014 Act reverts to the first incarnation of the Act. This change brings back in the harm test and removes the absolute exemption for such classes of documents. This means that any future restriction on such documents must refer to the content of the document and not the class of the document. Therefore the restriction of documents for the reason of national security is now based on what is contained in the document as opposed to the general category of national security information. As stated in the Consolidated Heads of Bill for the Freedom of Information Bill 2013 (while the Bill was making its way through the Oireachtas): Mandatory exclusion from freedom of information of a broad class of records can only be justified where a significant proportion of such records are so sensitive or so confidential that even consideration of their release is unlikely to ever be

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justified on account of the harm to the public interest that would be likely to be caused. (Oireachtas Éireann, 2013)

Regarding whether the reintroduction of the harm test has allowed for greater scrutiny of governmental action in the area of national security, the proof will be in the implementation and monitoring of the information that may emerge in this area. However, with the lack of an independent review mechanism for the decision-making process and without proper review by an independent authority (such as the Information Commissioner) to ensure impartiality, the test could be applied in an arbitrary manner.

A balanced approach to national security restrictions? It is clear that the reintroduction of the harm test into the FOI Act 2014 is a positive step. However, the philosophy underpinning the balance between freedom of information and national security in Ireland needs a reassessment. The current legislation is out of line with the principles enshrined in international documents. Despite the fact that the philosophy enshrined in the Johannesburg Principles is not applicable before a court in Ireland, there is no reason why the drafters of the Irish legislation cannot try, as far as is practicable, to aim towards these standards. Notwithstanding the turbulent conditions of the State’s birth (see Chapter 2), Ireland is a small, neutral state and its level of security legislation is out of step with reality. It has been demonstrated that there are constitutional and democratic issues with the current Official Secrets Act 1963. Arguably, the 1963 Act, coupled with minor sections of the Offences Against the State Acts, has reinforced the culture of secrecy already well established in the Civil Service and has, for many years, provided the default administrative position in relation to freedom of information. Still, it can also be argued that more recent Programmes for Government have introduced a directional and philosophical shift that has supported the creation of an FOI regime and the ultimate passage of the first FOI Act in 1997. The detailed provisions for national security are found in Section 24 of the 1997 Act. Under this section, information will not be released where it may ‘affect adversely, the security, defence or international relations of the State or matters relating to Northern Ireland’; also covered are the areas of intelligence, tactics, strategy or operations, detection, prevention or suppression of activities calculated or tending to undermine the public order or the authority of the State (linked to the Offences Against the State Acts). The section also covers consular and diplomatic communications, as well as information communicated in confidence to another person or in order to protect human rights; to an international organisation; to States or subsidiary organisations; or to bodies within the European Union.

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The issue of ministerial certificates, however, which was heavily criticised in the ‘Select Committee on Legislation and Security Report on the Reform of the Official Secrets Act’ (Oireachtas Éireann, 1997), was retained as a method of review for the FOI Act. As the legislation stands, therefore, a ministerial certificate can be used as conclusive evidence that the information falls under Section 24 of the Act and is therefore deemed ‘secret’. The only body or person who may review the applicability of such a certificate is another minister. There is no means for independent review of the certification procedure or the appropriateness of such certification by the Information Commissioner. The constitutionality of this arrangement, set out in Section 25(4) of the FOI Act, is unclear and may even be unconstitutional under the judgment in Maher v. Attorney General [1970] IR 140. In the Maher case, the use of a similar certification system for road traffic offences, particularly in drink driving cases, was declared unconstitutional as there was no means of independent verification. Even though the evidentiary issues regarding access to information in road traffic cases might be considered different from those pertaining to national security, the principle remains that conclusive evidence must still be subjected to the rigours of independent scrutiny and the adversarial systems of the law. Furthermore, such legislative measures whereby certificates are claimed as final and conclusive evidence of non-compliance with a statutory provision prevents the courts from exercising their judicial role in relation to the review of democratic systems of governance – a role that is of the utmost importance in the maintenance of a healthy democracy. Both the original FOI Act in 1997 and the 2014 legislation put forward provisions for a similar form of ministerial certification by the Minister for Finance. When this constitutionally questionable system was addressed by the ‘Select Committee on Legislation and Security Report on the Reform of the Official Secrets Act’ (Oireachtas Éireann, 1997), they recommended urgent reform as the ‘Act may be unconstitutional as it is a blanket ban preserving secrecy at all costs’. This report has not yet been acted upon. At the time of drafting the FOI Act 1997, the drafters were surely aware of this possible constitutional impediment and yet the system was carried forward into the new freedom of information structures. This critique can also be made for the Freedom of Information (Amendment) Act 2003 and the 2014 legislation.

Conclusion While national security information restrictions in Ireland developed during a period of legitimate threats to the continued authority of the State, the de-escalation of threats to the State’s national security have been only partially reflected in a slight modification to the underpinning legislation. The particular concerns in this regard relate to provisions of the Official Secrets

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Act that have been well flagged, even by Oireachtas committees (Oireachtas Éireann, 1997), as being constitutionally questionable. The administrative procedures, set up in the Official Secrets Act, have bled into the aims of creating a more inclusive and transparent State from the original philosophy underscoring the original FOI Act 1997. The harm test, which was part of the original legislation, was removed in 2003. The 2003 FOI (Amendment) Act made a number of heavily criticised changes to the open government efforts and the harm test was one of the victims of the retrenchment. While the 2014 Act reintroduces this measure, when restrictions for national security are pleaded, the requirement for some form of legitimate oversight remains a key issue. The absence of an independent arbitrator in such issues is clearly problematic. Independent review has been recommended by internationally agreed principles and the inability of the Information Commissioner to act as an impartial third party in such cases, plus the reliance on oversight by other members of the cabinet, highlights the main area where even the current bill is out of step with international best practice.

References Article 19 (1996) The Johannesburg Principles on National Security, Freedom of Expression and Access to Information. London: Article 19 Casey, James (1997) Constitutional Law in Ireland. Dublin: Thomson Roundhall Coliver, Sandra (1998) ‘Commentary to The Johannesburg Principles on National Security, Freedom of Expression and Access to Information’ Human Rights Quarterly 20/12 Cooke, Pat (1985) ‘Why we need open government in Ireland’ Seirbhís Phoibli 6/3: 23 Department of Justice and Equality (2014) Report of the Independent Review Group on the Department of Justice and Equality, 28 July, available at www. justice.ie/en/JELR/Pages/ind_review accessed 19 August 2014 Garvin, Tom (1996) 1922: The Birth of Irish Democracy. Dublin: Gill and Macmillan Government of Ireland (1963) Official Secrets Act 1963. Dublin: Government Publications Stationery Office Government of Ireland (1994) A Government for Renewal:  Programme for Government for Fine Gael, Labour and Democratic Left 1994–1997. Dublin: Government Publications Stationery Office Government of Ireland (1994) Fianna Fail and Labour Programme for a Partnership Government 1993–1997. Dublin:  Government Publications Stationery Office Government of Ireland (1994) Programme of Government between Fianna Fail and the Progressive Democrats 2002–2007. Dublin: Government Publications Stationery Office

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Government of Ireland (1997) Freedom of Information Act 1997. Dublin: Government Publications Office Government of Ireland (2003) Freedom of Information (Amendment) Act 2003. Dublin: Government Publications Stationery Office Government of Ireland (2011) Programme for Government between Fine Gael and Labour. Dublin: Government Publications Stationery Office Government of Ireland (2014) Freedom of Information Act 2014. Dublin: Government Publications Stationery Office Government of Queensland (1992) Freedom of Information Act [42/1992]. Brisbane: Queensland Stationery Office High Court (1970) Maher v. the Attorney General [1970] IR 140 High Court (1987) Kennedy and Arnold v. the Attorney General [1987] IR 587 Kavanagh, Jennifer (2012) Executive Secrecy and Access to Policy, available at http://historyhub.ie/executive-secrecy-and-access-to-policy (accessed 17 April 2014) Kavanagh, Jennifer (2013) Freedom of Information as a Human Right, available at http://humanrights.ie/civil-liberties/freedom-of-information-as-ahuman-­right (accessed 17 April 2014) Kissane, Bill (2002) Explaining Irish Democracy. Dublin: UCD Press Lee, Joe (1989) Ireland 1912–1985: Politics and Society. Cambridge: Cambridge University Press McDonagh, Maeve (1995) ‘Access to official information in Ireland: Part two – Freedom of information’ Irish Law Times 13/206 McDonagh, Maeve (2006) Freedom of Information, 2nd edn. Dublin: Thomson Roundhall McGonagle, Marie (2003) Media Law, 2nd edn. Dublin: Thomson Roundhall Murtagh, Peter (1984) ‘Duty to tap phones – Doherty’ The Irish Times, 24 March O’Brien, Conor Cruise (1984) ‘A whole new tap-dance’ The Irish Times, 27 March Office of the Information Commissioner (1999–2014) Annual Report of the Information Commissioner. Dublin:  Government Publications Stationery Office Oireachtas Éireann (1997) Select Committee on Legislation and Security Report on the Reform of the Official Secrets Act. Dublin: Houses of the Oireachtas Oireachtas Éireann (2013) Freedom of Information Bill 2013. Dublin: Houses of the Oireachtas Parliament of the Commonwealth of Australia (1979) Freedom of Information:  Report by the Senate Standing Committee on Legislation and Constitutional Affairs on the Freedom of Information Bill 1978, and Aspects of the Archives Bill 1978. Canberra: Australian Government Publishing Service Pozen, David E. (2005) ‘The mosaic theory, national security, and the Freedom of Information Act’ The Yale Law Journal 115/3: 628

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Rourke, Francis E. (1961) Secrecy and Publicity:  Dilemmas of Democracy. Baltimore, MD: Johns Hopkins University Press Sagar, Rahul (2007) ‘Combating the abuse of State secrecy’ Journal of Political Philosophy 15/4: 404–427 Stubbs, Rhys (2008) ‘Freedom of information and democracy in Australia and beyond’ Australian Journal of Political Science 43/4: 667

4 Freedom of information and policing: still a very secret service Richard Dowling

Let the people know the facts and the country will be safe. US President Abraham Lincoln, 1861

Introduction Every country has its secrets. They are as inevitable and essential as taxes and banks. The primary duty of every state is to provide protection for its people and itself. This includes the provision of law enforcement and defence forces. It would be unrealistic to expect any country to reveal many of the secrets it has gathered as part of such work. While that is a universal truth, what varies between countries is the balance struck between secrecy and the citizen’s right to know. In a properly functioning twenty-first-century democracy, citizens should not, nor should they be expected to, blindly follow those in charge. Reaching that balance is difficult. There are many aspects to consider and they vary from country to country: international and national politics, who gathered the secrets and why and perhaps most importantly, the state’s culture and prevailing attitudes towards openness. Security of the state and securing the state are not one and the same. They are markedly different in aims but it is arguable that in the Freedom of Information (FOI) Act 2014 the lines between the two have been further eroded in Ireland. They were already badly weakened in the 2003 Amendment Act, and while there have been measures to include more bodies under FOI in the new Act, the limitations that exist – including appeal fees and bodies totally excluded from FOI – mean that the citizen’s ability to inquire is significantly weaker than in most similar democracies. This is no accident. It has been done deliberately

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to limit the scope of material available under FOI. For example, the head of the national cyber security centre in the Department of Communications, Aidan Ryan, wrote to the Department of Public Expenditure and Reform saying that all records ‘associated’ with the security of the State’s IT system should be specifically excluded from the Government’s revised FOI Act, despite the fact that there are already several exemptions in existence to prevent the release of such sensitive information (Wall and Duncan, 2014). Pay levels for staff in the NTMA are to be excluded from scrutiny under the FOI Act because consultants warned that making such information available ‘would have a serious adverse effect on the organisation’ (ibid.). As Birkinshaw notes, information is inherently a feature of power. So too is its control, use and regulation. Take away a government’s preserve on information and its preserve of what and when to release and so take away a fundamental bulwark of power (2010).

FOI and the Garda Ireland is one of the few Western countries that did not increase transparency of policing by including it under FOI legislation. Since the implementation of the original FOI Act in 1998 the Irish police has been exempt from its provisions. However, Ireland’s new FOI Act 2014 has been extended to cover An Garda Síochána for the first time. This is one of the highlights of the new legislation and one that the Government has been keen to promote as a sign of their commitment to openness and transparency. The eventual inclusion of An Garda Síochána under FOI is very definitely to be welcomed. It will allow the public to ask some questions of their national police force. Not so welcome, however, are the extreme limits put on what is accessible using the legislation. The Irish public have a well-deserved high regard for their police officers – they remain trusted role models for most citizens (Melia, 2013). The fact that it remains a largely unarmed service is testament to both its effectiveness as a police force and the large public support it enjoys. Tragically, several members have died in the line of duty while many more are injured annually upholding the laws of the land. That is not to say, however, that the force has been without controversy. It is inevitable that an organisation of several thousand men and women would become occasionally embroiled in public controversy over various issues. What are of particular concern, however, are the controversies that highlight problems with the culture that exists among at least some members. One of the most troubling incidents involving garda abuse of power relates to the tapping of phones for political purposes. It emerged in 1982 that the phones of several political journalists were being tapped by the gardaí on the orders of the then Minister for Justice, Sean Doherty, with the approval of the Taoiseach, Charlie Haughey. The fictitious reason for the phone taps was to

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protect national security; in reality it was to find out who was leaking information to the journalists involved. The controversy resulted in the retirement of senior gardaí, compensation to the journalists and the resignation of Mr Haughey as Taoiseach in February 1992 (Kennedy, 2013). There have been three tribunals of note in recent decades in relation to alleged garda misconduct. The first, an investigation into the so-called Kerry Babies Case, inquired into the conduct of members of An Garda Síochána investigating the death of a newborn baby found washed up on a Kerry beach. The second was the Morris Tribunal. It was set up in 2002 to look at claims of garda corruption in Co. Donegal. Judge Morris issued eight reports in total, concluding in 2008, and his findings marked a sea change in the public standing of An Garda Síochána. The judge made damning findings about the conduct of several members of the force, including that they colluded in planting explosives for subsequent discovery, witnesses were encouraged to give false statements, weapons were planted to secure convictions and, most seriously, wrongful convictions were secured based on fabricated evidence by gardaí. The Tribunal’s estimated cost was in excess of €100m (Phelan, 2008). After publication of the first report, two former gardaí claimed that they had been scapegoated to protect senior officers. Despite criticism from the tribunal, senior gardaí did not implement major changes. Indeed, the Garda Commissioner at the time, Noel Conroy, insisted garda procedures were adequate to deal with major investigations (RTE News online, 3 June 2005). The most recent public examination of garda conduct was the Smithwick Tribunal. Originally set up to look at whether there was garda collusion in the murder of two senior RUC officers by the IRA in March 1989, the tribunal made strident criticism of the culture within the police force, commenting that ‘there prevails in An Garda Síochána today a prioritisation of the protection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty’ (Smithwick, 2013: 432). The judge noted that this misguided loyalty to the force above loyalty to the State was ‘a feature of life in this State’, also noting that allegations of wrongdoing against gardaí and against the force needed to be investigated fully and in a transparent manner (ibid.). In response, the man leading the gardaí at that time, Commissioner Martin Callinan, echoed the approach of his predecessor, Noel Conroy, and rejected the findings (Beesley and McGreevy, 2013). Indeed, former Commissioner Callinan would find his comments making headlines again some months later when he appeared before an Oireachtas committee examining the controversy surrounding the issue of gardaí removing penalty points from speeding motorists, an issue that cost the Irish taxpayer millions of euro (O’Toole, 2014). The matter came to prominence after two garda whistle-blowers released information to members of the Oireachtas. The controversy centred on whether cancelling penalty points for speeding motorists was done for legitimate reasons or

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not. However, the main issue for then Garda Commissioner Callinan was the passing of internal garda information by the whistle-blowers to members of the Dáil, which he described as ‘fundamentally wrong’ and ‘quite disgusting’ (Brady, 2014). What is particularly interesting is that the issues raised were investigated internally by the gardaí who found some minor administrative issues but nothing of significance (ibid.). A subsequent, independent investigation by the external Gardaí Inspectorate found that there ‘were consistent and widespread breaches of policy by those charged with administering the penalty points system’ (Garda Inspectorate, 2014). After another controversy emerged about the illegal tapping of phones in garda stations, Mr Callinan suddenly retired after a very unusual night-time visit to his home by the then Director General of the Department of Justice (Lally and Kelly, 2014). Some days later, the then Minister for Justice, Alan Shatter, also resigned in controversial circumstances (Collins, 2014). Eventually, the head of the Department of Justice, Brian Purcell, would also stand aside following criticism of the way the organisation was run (Kelly and Carbery, 2014). What emerged from all of this controversy was the lack of accountability and transparency that has, arguably, damaged the standing of the gardaí in the public eye. The controversies – particularly surrounding the penalty points issue – resulted in a lot of public debate including notable comments by the then head of the Road Safety Authority, Gay Byrne, describing the force as a ‘secret society’ (RTE, 2014). There is, as Walsh notes, ‘no democratic accountability for An Garda Síochána’ (Walsh, 1999: 400–406). This view has been reinforced in a report by Toland, written by a group of senior managers from outside the Department of Justice charged with reviewing the way the Department had operated in the wake of the controversies. Its conclusions were damning. It found the culture of the Department ‘to be closed and unnecessarily secretive’ (Department of Justice and Equality, 2014). It concluded that the Department’s interactions with the gardaí had a huge – and somewhat negative – influence on the entire organisation. There were leadership failures in the division of the Department charged with oversight of An Garda Síochána, where the necessary secrecy in dealing with policing issues had ‘permeated much of Department’s remit and has become part of its DNA, to the detriment of other areas that should be open’ (ibid.). Perhaps most worrying is the report’s authors’ finding that ‘there is a deferential relationship with An Garda Síochána with a lack of proper strategic accountability being brought to bear upon them by the Department’ (ibid.). It is clear from this that the Department did not provide any real ­oversight of the gardaí. More serious questions about garda conduct were raised in November 2014 with the publication of the Garda Síochána Inspectorate report on crime investigation (Garda Insepectorate, 2014). It found ‘serious failures’ in the recording, classification and subsequent r­ eclassification of crimes; a lack of oversight; inconsistencies in claims

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of crime detection; deficiencies in offender management; a lack of equipment and concerns over the timeliness of investigations. Freedom of information is meant to allow citizens to partake in some level of oversight of public bodies. In most countries that includes the police, but that has not been the case in Ireland to any real extent. It should be acknowledged that allowing the public oversight via FOI – even if it is only partial – to sections of the police force is to be welcomed. It allows for some limited scrutiny of the force by members of the public, the media and politicians. That is important because as Walsh – a specialist in policing in Ireland – noted: for the Dáil to ‘function as a substantial forum for police accountability it is essential for deputies to enjoy easy access to information on all aspects of garda structures, management, policies, practices and operations’ (1999: 404). The 2014 Act does not guarantee such access to information but it is a step in that direction. It will be a challenge to change the culture within a force that has never before had to answer questions to random members of the public. There will also be concerns about what type of information will be sought and what they might be forced to release as a result of FOI requests. However, that scrutiny is limited under the legislation to administrative functions only and, as will be discussed in the next section, is extremely limited by international comparison.

The Irish legislation examined As previously mentioned, Ireland was almost unique among advanced democracies in its failure to introduce elements of transparency and accountability to its police by making it subject to FOI when that Act was first introduced in 1997. The expansion of the legislation to include Ireland’s police is a major step forward but it can be argued that the legislation is quite minimal in its approach. Only a fraction of the actual work of the force is subject to FOI. Indeed, the Irish Act is incredibly weak by comparison with the legislation that covers the other police force on the island, the Police Service of Northern Ireland (PSNI). The former Information Commissioner, Emily O’Reilly, expressed concern ‘as to the overly restrictive nature of the protections afforded to the records of An Garda Síochána’. She pointed out that there are already many protections in the Act to prevent the release of sensitive information (O’Reilly, 2013). Indeed, the Oireachtas Select Committee on Public Expenditure and Reform, while examining the planned new FOI legislation, agreed, stating that the exemptions in the original Act were ‘sufficiently robust’ (Houses of the Oireachtas, 2013). However, the Government largely ignored this recommendation. As a result, the 2014 legislation covering access to records on the police includes a large blanket of exemptions. Unfortunately the legislation is notable for what is excluded rather than for what is included.

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The draft general scheme of what was then the 2012 Freedom of Information Bill, known as the Heads of the Bill, was published by the Department of Public Enterprise and Reform in advance of the actual Bill. It explained what the Government sought to achieve with the various sections. In ‘Head 46  – Restrictions of the Act’, it stated that FOI would not apply to ‘a record held or created by An Garda Síochána other than a record concerning general administration of An Garda Síochána’. It then goes on to describe what a general record is, namely ‘a record relating to finance, human resource or procurement matter’ (Oireachtas Éireann, 2012a: 136). This is repeated in Schedule 1 of the 2014 Act, which states that only garda information relating to administration of human resources, finance or procurement can be released (Freedom of Information Act 2014, s 6(f)). It is a remarkable limitation on the scope of FOI legislation and is replicated in no similar Western democracy. The explanatory note accompanying the Heads of the draft Bill stated that records from specific garda units and the Defence Forces would be entirely exempt from release because of the ‘highly sensitive nature of these units, release could prejudice or impair the prevention, detection or investigation of serious offences and seriously jeopardise the safety of significant witnesses or police informants’ (Freedom of Information Bill 2012). Section 42 of the 2014 Act states that FOI does not apply to any record relating to the Emergency Response Unit, Criminal Assets Bureau, Secret Service Fund, Special Detective Unit, witness protection programme and the security and intelligence section of An Garda Síochána. Specific exclusions also cover investigations under the Interception of Postal Packets and Telecommunications Messages Act 1993, Criminal Justice (Terrorist Offences) Act 2005, Criminal Justice (Surveillance) Act 2009 and the Communications (Retention of Data) Act 2011. Operations by the Defence Forces governed by the Offences Against the State Act as well as the Independent Commission for the Location of Victims’ Remains are also specifically exempt, as are records relating to internal inquiries ordered by the Minister for Justice (Freedom of Information Act 2014, s 42). Such blanket exclusions are arguably entirely unnecessary as the legislation already provides for protections on the grounds of law enforcement and public safety. Section 32 of the Act, for example, states that a decision-maker ‘may’ refuse to grant an FOI request if access to it could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension of offenders, the enforcement of or compliance with any law, lawful methods of ensuring the safety of the public and property, fairness of court proceedings, the security of penal institutions, security of buildings and other structures and systems of communications (Freedom of Information Act 2014, s  32). Additional protections are granted in Section 33 of the legislation (Security, Defence and International Relations) as well as Section 35 (Information Obtained in Confidence). It is inconceivable that sensitive records

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would be released but it would appear that the Government decided to err on the side of extreme caution and put most of the work of the force outside the remit of FOI. It should also be noted that there is a further hugely protective power granted to ministers via Section 34 of the 2014 Act. This gives the power to ministers to issue a certificate that prevents the release of a record or records covering certain areas such as security, defence and international relations. The only course of appeal is to the High Court, potentially at huge expense, as there is no provision in the Act for review of such a decision by the Information Commissioner. In his annual report for 2013, the current Information Commissioner, Peter Tyndall, revealed that the Department of Justice and Equality had six such certificates in place. These, along with a further six from the Department of Foreign Affairs, were reviewed by the Taoiseach and other ministers (Office of the Information Commissioner, 2014). Unsurprisingly, they decided that all twelve certificates were to remain in place, effectively meaning the records were exempt from FOI. This is a worryingly high number in comparison to other jurisdictions. That is not to say there aren’t blanket exemptions in other countries. In the United Kingdom, for example, blanket restrictions in their FOI legislation mainly relate to the work of the intelligence services such as MI5 and MI6. However, Ireland is unique in that its intelligence service is part of the general police organisation. The Crime and Security Division within An Garda Síochána is effectively the State’s intelligence service, while the Defence Forces have their own intelligence wing. It is understandable the Government may wish to explicitly list these agencies as exempt under Section 42, but what is striking about the 2014 Act is that it is not just the Irish intelligence services that are exempt – it is every record in the entire police force except those relating to procurement, human resources or finance. Absolutely nothing that relates to the actual work of the police service in Ireland is accessible. The reasons for such tightly worded exemptions may be an attempt at a ‘belt-and-braces’ limitation to exposure from scrutiny. The inclusion of references to specific pieces of legislation under the exemption provisions, for example, makes it virtually impossible for any investigative journalist or media organisation to inquire into many, many areas of Garda activity. For example, anyone who inquired into the number of interceptions carried out by the force over a year – arguably an important piece of public information – is likely to be refused under Section 42 of the Act, although it is hard to see what harm could be done by just giving overall figures. Interestingly, however, while records relating to internal inquiries ordered by the Minister for Justice are exempt, inquiries ordered by the Garda Commissioner are not listed as being specifically exempt. It may well have been an error on the part of the authors of the legislation, and in any event such

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inquiries may well be refused on other grounds, but the omission does point to inconsistencies in approach. There are some chinks of light, however. While the Irish legislation includes unique provisions designed to shield An Garda Síochána from scrutiny, the Act also includes a number of provisions that could shed light on important actions. For example, Section 32 states that records that reveal law breaking  – either accidental or deliberate – during a Garda or Defence Forces investigation are not automatically exempt from release. None of the exemptions apply if the record discloses that an investigation was not authorised or contravened any law. Information concerning the performance of the law enforcement body and records relating to the success or failure of any scheme designed to prevent, detect or investigate law breaking may also be released (Freedom of Information Act 2014, s 32(3)(a)(i–iii)). These provisions are somewhat unusual but are limited to the narrow areas where the gardaí are subject to FOI. Records containing information relating to the performance of the force or the success or otherwise of various operations may also be released. The legislation grants discretion to the decision-maker to release such documents in the public interest. However, it must be stressed that given the State’s – and An Garda Síochána’s – historic penchant for secrecy, it is unlikely that such records would be released without appeal. It will be interesting to see how the seemingly contradictory contents of Section 32 (as mentioned above) and Section 42, which limits the scope of FOI, are decided upon. The public interest discretion is likely to prove contentious. It is not common in Ireland for information to be released ‘in the public interest’. Although Section 33 of the Act returns to usual strict secrecy provisions, it is subject to a public interest test. It prevents the release of records that could ‘reasonably be expected’ to have an adverse effect on the security and defence of the State as well as matters relating to Northern Ireland or the international relations of the State. However, Section 33(3) also goes on to order that no records should be released if they contain intelligence information obtained or prepared for the security or defence of the State or of activities calculated to undermine public order or the authority of the State. The language used is somewhat opaque and open to interpretation, especially in relation to the interpretation of words such as ‘activities calculated’ and ‘undermine’. It is also worth highlighting that the gardaí have far greater protection under the Act than any other public body, and not just regarding accessing information. The power of the Information Commissioner under Section 37 of the Act to enter a public body and require the production of relevant records can only happen with the permission of the Minister for Justice in relation to An Garda Síochána, a point the former Information Commissioner, now European Ombudsman, Emily O’Reilly expressed concern about (O’Reilly, 2013).

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It is disappointing, therefore, that the Irish Act does not open An Garda Síochána to FOI in any substantial way. It is symptomatic of the State’s approach to security and freedom of information. An opportunity has been missed.

International comparisons on FOI and policing FOI legislation that covers access to policing is commonplace around the world. The following section examines such legislation in two common-law jurisdictions – namely the United Kingdom and Australia – and in the United States of America. United States of America On the evening of Monday, 23 October 2006, RTE News broadcast a story that revealed that several Islamic extremist groups had been operating in Ireland (RTE News, 2006). For the first time it was revealed that the Irish police believed there were six separate groups, each with operations based in the country to support terrorist activity. This information came not from details released by the Irish State to its own people – it came via the American Freedom of Information Act (FOIA). It was the first time the American FOIA had been used in Ireland by the Irish media to reveal a story of significant importance to the Irish people. I was the journalist who reported the story, and the information came as a result of an FOI request I had made to the US State Department seeking information about communications from the US Embassy in Dublin. In contrast to the open approach to freedom of information in the United States, the response to my story in the Dáil the following day highlighted the closed, secretive approach by this State. Enda Kenny, who was then the leader of the Opposition, wanted to know: ‘How did this information come into the public domain? Did it come to the Gardaí or Army via American security sources?’ he asked, continuing: ‘when such information is passed on to the Government, do the Gardaí, for instance, have control over whether it becomes declassified?’ (Oireachtas Éireann, 2006). The then Taoiseach, Bertie Ahern, responded by saying that he was aware of the story and that the information had come from garda sources. It was supplied by the gardaí to the US Embassy and then ‘recycled’. Labour TD, Pat Rabbitte, asked the Taoiseach if he agreed that ‘there is a certain irony in that this information was secured under American freedom of information legislation and it is not something that could happen in this jurisdiction’. The then Taoiseach responded that the manner in which the story was reported ‘and the response it got shows the danger of releasing such information’ (Oireachtas Éireann, 2006). In most other Western democracies, information like this would be made public regularly. In the United States, citizens are used to and expect to be able to ask pretty much any question of their government, although whether they get

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an answer depends on how security laden their request is. It is, arguably, a cultural issue where the United States – its citizens and government – have a more open attitude to information and security. Perhaps nothing sums up the difference in approach to FOI between Ireland and America more than the United States’ 1966 Freedom of Information Act, better known as FOIA. The American version sets out in pretty clear language what the legislation is aimed at and the duties of State agencies. What takes several pages and sections in the Irish legislation is condensed into a few sentences in the American law. There are nine exemptions for issues such as trade secrets, national defence, interference with law enforcement, etc. However, there are no widespread exemptions for agencies or the police. Specifically regarding law enforcement and policing, the US FOIA is remarkable for its straightforwardness. The premise of the US legislation is that every document is subject to FOI, save for specific narrow exemptions including live investigation files, documents that could deprive a person of the right to a fair trial, on personal privacy grounds, to protect confidential sources, documents that might disclose police tactics or procedures used in law enforcement and if disclosure could reasonably be expected to endanger the life or personal safety of an individual (Freedom of Information Act 1966, 5 U.S.C. 552, Section B(1–9)). By contrast, the Irish legislation is the exact opposite, listing only a narrow range of areas where the Irish police are subject to scrutiny. The effect of such an open approach to FOI in America has not led to significant failures in prosecutions, investigations or military operations. Given that the United States was subject to the 9/11 attacks and has waged several wars since then, it is interesting to note that the country still has an FOI Act that is incredibly more open and accessible than the Irish legislation when it comes to policing as well as the murky world of intelligence and spying. Agencies including the National Security Agency (NSA), the FBI, the CIA and the Defense Intelligence Agency are subject to the FOIA, though obviously much of the material is classified and therefore not subject to release. The agencies all have a ‘public reading room’, a section on their websites where declassified information as well as records released under FOIA are published. For example, a log on the Defense Intelligence Agency’s website makes for interesting reading – it includes requests for records on electronic surveillance; the use of loud music to interrogate individuals; information relating to exorcisms; and documentation on the ‘Jesus Project’1 (Defense Intelligence Agency, n.d.). The FBI has released what some might consider far more personal information about individuals as a result of FOIA requests, such as a background file on the late Apple founder Steve Jobs, files on Nelson Mandela and the late Libyan dictator, Muammar Qadhafi (Federal Bureau of Investigation, n.d.). They make interesting reading, and it is worth noting again that all these security, defence and intelligence agencies still function while under FOI regimes far more liberal than that in operation in Ireland.

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It is worth noting, too, that many FOIA requests reveal information that demonstrates details of how agencies operate, or that portrays agencies in a negative light. An example of this is the story about the development of spyware by the FBI to catch extortionists (Poulsen, 2009). The online current affairs magazine Slate.com reported in 2013 that FOIA documents revealed that the FBI was aware of concerns about the legality of its use of mobile phone tracking technology (Gallagher, 2013). It is also noteworthy that the US federal FOIA is free to use, although some charges do apply for search and retrieval. A requester does not need to be a US citizen or even to live in the United States to make a request. This gives rise to the somewhat farcical situation where Irish citizens can receive records about security matters in Ireland from an American agency that received them from an Irish counterpart not subject to FOI. There are many reasons why America is far more open and transparent with its FOI regime – both cultural and political. It is arguable that since the country’s foundation, America’s political culture has been far more open with its citizens. In keeping with that the US FOIA is based on the premise of government ‘by the people, for the people’, so therefore citizens are entitled to access far more state information. United Kingdom FOI was a long time coming to the United Kingdom. The Chairman of the Parliamentary Committee set up to examine the very restrictive powers of the Official Secrets Act in 1972, Lord Franks, said a government could not use secrecy to hide from the people. He warned that a government that used excessive secrecy ‘will lose the trust of the people’ (Franks, 1972). It would take nearly thirty years before the United Kingdom’s Freedom of Information Act was enacted in 2000, although it did not come into force until 2005. Not surprisingly, it was greatly influenced by legislation from other common-law jurisdictions such as Ireland, Australia, Canada and New Zealand. There are technically two FOI Acts in the United Kingdom. One covers England, Wales and Northern Ireland, while a second, slightly more liberal one operates in Scotland. It is arguable that the UK legislation plots a middle ground in terms of its provisions for access to documents on policing, security and intelligence – not as liberal as the US Act, nor as restrictive as the Irish one. All police forces in the United Kingdom are subject to FOI and, with some exceptions, so too are all aspects of their work. The intelligence agencies MI5, MI6 and the Government Communications Headquarters (GCHQ) and specified military units are exempt from FOI. In common with legislation in other similar jurisdictions, provisions are included in the United Kingdom’s FOI Act to limit the scope of inquiry in specific areas. These include Section 24, which includes exemptions on national security grounds but which are subject to a

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‘public interest test’, while Section 31 includes exemptions in relation to policing. Similar to other common-law jurisdictions, provision is made for exemptions on the grounds that release of a document may be likely to prejudice (a) the prevention or detection of a crime; (b) the apprehension or prosecution of offenders; (c) the administration of justice; (d) the collection of taxes; and (e) immigration control, among others. Again, those exemptions are subject to a public interest test (UK Freedom of Information Act 2000). There is also special provision for ministerial intervention in FOI like there is here in Ireland. Ministers may issue a certificate classifying a document as exempt without explanation and the Information Commissioner has no power to overrule them. While similar in approach, Irish ministers are far more likely to use it than their British counterparts, according to the latest annual report of the Irish Information Commissioner (Office of the Information Commissioner, 2014; Gay and Potton, 2014). In both jurisdictions decisions by the Information Commissioners can be appealed to the courts at considerable cost. However, in the United Kingdom there is the alternative and cheaper option of appealing a case to the Information Tribunal where legal arguments can be made in a more informal approach, either in person or via written submissions, before a judge. I had reason to use the UK legislation in relation to a report of the Stevens Inquiry, which investigated collusion between British security forces and loyalist paramilitaries in the murder of Catholics in Northern Ireland, including the Belfast solicitor Pat Finucane. The third report by Sir John Stevens found there was collusion, but only a portion of his work was published. An FOI request to the PSNI in 2008 for the unpublished chapters was refused. There then followed an appeal to the UK Information Commissioner who also rejected the request. The case was appealed again to the Information Tribunal in 2012. That Tribunal, presided over by a judge, ruled in part in RTE’s favour and ordered the release of some previously unseen material from the Stevens Inquiry. The case set a precedent for FOI and security matters and has been cited in a number of cases since (Dowling v. The Information Commissioner and the Police Service of Northern Ireland, Information Tribunal, 2011 [EA/2011/0118]). Overall, the British approach to FOI regarding policing has developed in a reasonably open manner. For example, as a result of an FOI request the transcript of an interview with Jimmy Savile and the Surrey Police was released with some redactions to protect the identity of his victims (Surrey Police, n.d.). The Act was also used to reveal that 4,500 children were strip-searched by the Metropolitan Police over a five-year period (Allison, 2013). There are also several instances where UK authorities have released information about garda activities that could not be released under the Irish legislation. These have included, for example, an FOI request to the PSNI that revealed details of cross-border involvement of both police services in each other’s jurisdictions (PSNI, 2008) and other documents relating to visits by An Garda Síochána to

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British nuclear facilities (WhatDoTheyKnow, 2010). The fact that Irish citizens have to rely on information released from police forces outside the jurisdiction to find out what their own police force is doing is remarkable. Australia Australia introduced its FOI legislation in 1982 in common with moves towards greater openness and transparency. Not unlike the United States, Australia has nine separate but closely linked FOI Acts due to its federal structure. Australia also once operated a fee regime when making requests, but this was abolished in 2010. Associated charges such as search and retrieval were reduced. The Australian legislation is very similar to that operating in Britain, especially when it comes to their approach to policing and security. All six Australia civilian and military intelligence agencies are exempt, as are all records they produce for other bodies, which are subject to FOI. The police forces, however, are not exempt (Commonwealth of Australia Freedom of Information Act 1982). Section 33 of the Australian FOI Act exempts documents affecting the country’s national security, defence and international relations. There are two separate categories of documents involved: documents that would, or could reasonably be expected to, cause damage to the country; and documents that if released would divulge information communicated in confidence by a foreign government or agency or an international organisation. The latter is more stringent in that information need not necessarily be harmful or damaging to be exempt – it must just have been given in confidence. However, there is a public interest test, which has to be applied before these records can be exempt from release. Documents classified as ‘secret’ or ‘confidential’ are not necessarily exempt from release. Section 37 of the legislation is the main part of the Act that refers to law enforcement and policing. It outlines the scope of documents that are exempt. Unsurprisingly, unlike Ireland there is no widespread exclusion of policing records and most are subject to a public interest test. The areas where there are exemptions follow a common theme, including documents that may prejudice an investigation; reveal a source of information; endanger someone’s life; prevent a fair trial; disclose methods of investigating crimes; or impact on public safety (Commonwealth of Australia Freedom of Information Act 1982, s 37). There is provision in the legislation for the head of the Australian intelligence services to make a case to prevent the release of certain classes of documents but the Information Commissioner has final say (ibid.). The Commissioner’s approach in law enforcement areas has been that there must be real and substantial grounds for expecting damage to be done, backed up by evidence or sound argument, before the Office will prevent the release of a record. For example, a request under FOI to the Attorney General’s office by the Australian Broadcasting Corporation revealed that the Government was aware and was cooperating with America’s National Security Agency and their PRISM project involving eavesdropping on communications around the world (ABC News,

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2013). An FOI request also revealed correspondence between senior officers in the Australian police and the Catholic Church over investigations into child abuse in which clerics sought to limit the scope of the probe (Ockenden, 2013). Such requests would not be granted under the new Irish Act because the provisions are so tightly framed as to exempt these types of records.

Conclusion This chapter set out to examine the new Freedom of Information Act 2014, specifically what it means in terms of law enforcement and citizens’ rights to information. For the first time the police force, An Garda Síochána, can be subject to public scrutiny via FOI in common with the police of most Western democracies. We have also sought to compare that legislation to what exists in similar jurisdictions. Unsurprisingly, the scope of the Irish Act is extremely restrictive. It is also clear that there is a pressing need for proper public scrutiny and accountability for all public bodies, including An Garda Síochána. There remains in Ireland no proper public oversight of our police force. As we have seen, the Department of Justice, which is responsible in part for the police, is clearly not up to the task with an ‘overly deferential approach’ to the force. Successive governments have also failed to address the issue of a ‘garda culture’, as referred to by Judge Peter Smithwick, that has seemingly been allowed to develop unhindered by outside influences. The new Act offered tremendous potential for the State to allow its citizens an opportunity to examine and question the work of arguably the most powerful body of men and women in the country. Unfortunately that opportunity has been squandered. The public can only question the gardaí about side issues and not the core principle of their work – policing. Instead there remains a darkness at the heart of the Irish State where the light of FOI cannot shine. Quis custodiet ipsos costodes?

Notes 1 The Jesus Project, an initiative of the Committee for the Scientific Examination of Religion, was an investigation to examine whether the Christian figure Jesus existed as a historical figure. See www.centerforinquiry.net/jesusproject for more.

References ABC News (2013) ‘Australia prepared briefing on US global internet spying program  PRISM before Snowden revelations’ ABC News Australia online, 3 October,  available at www.abc.net.au/news/2013-10-08/australiaprepared-briefing-on-prism-spying-program/5004290 (accessed 19 August 2014)

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Allison, Eric (2013) ‘43,000 strip searches carried out on children as young as 12’ Guardian, 3 March Beesley, Arthur and McGreevy, Ronan (2013) ‘Garda Commissioner Martin Callinan rejects criticism of Garda culture’ The Irish Times, 5 December Birkinshaw, Patrick (2010) Freedom of Information: The Law, the Practice and the Ideal. Cambridge: Cambridge University Press Brady, Tom (2014) ‘Garda watchdog to probe allegations of penalty points’ Irish Independent, 27 January Collins, Stephen (2014) ‘Alan Shatter’s resignation severe blow to Government’ The Irish Times, 8 May Commonwealth of Australia (1982) Freedom of Information Act. Canberra: Government Information Services Office Congress of the United States of America (1966) Freedom of Information Act 1966. Washington, DC: US Government Printing Office Defense Intelligence Agency (n.d.) Freedom of Information Act log, available at www.dia.mil/Portals/27/Documents/FOIA/FOIA%20Logs/2010_FOIA_ Log_CLEAR.pdf (accessed 10 August 2014) Department of Justice and Equality (2014) ‘Report of the Independent Review Group on the Department of Justice and Equality’, 28 July, available at www.justice.ie/en/JELR/Pages/ind_review (accessed 19 August 2014) Dowling, Richard (2011) Secrets of the State and How to Get Them. Dublin: The Liffey Press Federal Bureau of Investigation (FBI) (n.d.) Freedom of Information log, available at http://vault.fbi.gov/recently-added (accessed 10 August 2014) Franks, Lord Oliver (1972) Committee to Review the Operation of Section 2 of the Official Secrets Act 1911 and to Make Recommendations. London: Houses of Parliament Gallagher, Ryan (2013) ‘FBI documents shine light on clandestine cellphone tracking tool’ Slate online, 10 January, available at www.slate.com/blogs/ future_tense/2013/01/10/stingray_imsi_catcher_fbi_documents_shine_ light_on_controversial_cellphone.html (accessed 6 December 2014) Garda Inspectorate (2014) ‘Fixed Charge Processing System:  A  21st century strategy’, Garda Inspectorate report, 12 March Gay, Oonagh and Potton, Ed (2014) ‘FOI and ministerial vetoes’, 19 March. London: House of Commons Library Government of Ireland (2014) Freedom of Information Act, 2014. Dublin: Government Publication Stationery Office Houses of the Oireachtas (2013) ‘Report on hearings into the Draft General Scheme Freedom of Information Bill’, 2012 Joint Committee on Finance Public Expenditure and Reform, 26 June, available at www.oireachtas.ie/ parliament/media/committees/finance/[Final]-Report-on-FoI-Bill.pdf (accessed 10 August 2014)

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Information Tribunal (2011) ‘Dowling v The Information Commissioner and the Police Service of Northern Ireland’, EA/2011/0118, available at www.informationtribunal.gov.uk/DBFiles/Decision/i678/20120222%20 Open%20Decision%20EA20110118 (accessed 10 August 2014) Kelly, Fiach and Carbery, Genevieve (2014) ‘Purcell to go from Justice sector, but pay to be kept at €200,000’ The Irish Times, 30 July Kennedy, Geraldine (2013) ‘Phone tapping files a disappointing public record of historic events’ The Irish Times, 27 December Lally, Conor and Kelly, Fiach (2014) ‘Garda Commissioner Martin Callinan resigns’ The Irish Times, 25 March Melia, Paul (2013) ‘We trust gardaí, Google and Michael D, but not the Pope’ Irish Independent, 11 November Ockenden, William (2013) ‘FOI reveals church attempted to conceal crimes’ ABC News Australia online, 8 October, available at www.abc.net.au/ news/2013-10-03/foi-reveals-church-attempt-to-conceal-crimes/4997784 (accessed 19 August 2014) Office of the Information Commissioner (2014) Annual Report of the Information Commissioner 2013. Dublin: Government Publications Stationery Office Oireachtas Éireann (2006) Dáil Debates, Vol. 626/14-16, 24 October 2006. Dublin: Government Publications Stationery Office Oireachtas Éireann (2012a) Freedom of Information Bill, 2012 – Draft General Scheme. Dublin: Houses of the Oireachtas Oireachtas Éireann (2012b) Freedom of Information Bill, 2012. Dublin: Houses of the Oireachtas O’Reilly, Emily (2013) ‘Address to Oireachtas Select Committee on Public Expenditure and Reform’, 5 June, available at www.oireachtas. ie/parliament/me dia/committe es/f inance/O p ening-St atementInformation-Commissioner-5-June-2103.docx (accessed 10 August 2014) O’Toole, Fintan (2014) ‘Garda chief ’s answers leave us all with questions’ The Irish Times, 28 January Phelan, Shane (2008) ‘€11m in payouts for 55 victims of Donegal garda corruption’ Irish Independent, 15 August Police Service of Northern Ireland (PSNI) (2008) Response to Freedom of Information Act request for details of cooperation between the PSNI and An Garda Síochána, reference F-2008-03911. Personal correspondence Poulsen, Kevin (2009) ‘FBI spyware has been snaring extortionists, hackers for years’ Wired, 16 April, available at www.wired.com/2009/04/fbi-spyware-pro (accessed 6 December 2014) RTE (2014) ‘Whistleblowers’ interview with Gay Byrne, Marian Finucane Show, 22 March, available at www.rte.ie/radio1/marian-finucane/programmes/201 4/0322/603925-marian-finucane-saturday-22-march-2014/?clipid=1515777 (accessed 19 August 2014)

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RTE News (2006) ‘Islamists had Irish cells, US papers reveal’, 23 October, available at www.rte.ie/news/2006/1023/81669-alqaeda (accessed 10 August 2014) RTE News online (2005) ‘Gardaí speak out on Morris Tribunal findings’, 3 June, available at www.rte.ie/news/2005/0602/63825-morris (accessed 19 August 2014) Smithwick, His Honour Judge Peter (2013) Report of the Tribunal of Inquiry into Suggestions That Members of An Gardaí Síochána or Other Employees of the State Colluded in the Fatal Shootings of RUC Chief Superintendent Hary Breen and RUC Superintendent Robert Buchananon the 20th March 1989. Dublin: Government Publications Stationery Office Surrey Police (n.d.) FOI Disclosure Log online, available at www.surrey.police. uk/tabid/2980/InfoItemId/197/Default.aspx (accessed 10 August 2014) Wall, Martin and Duncan, Pamela (2014) ‘State vulnerable to cyber attacks if security documents exposed’ The Irish Times, 10 March Walsh, Dermot (1999) The Irish Police: A Legal and Constitutional Perspective. Dublin: Round Hall Sweet and Maxwell WhatDoTheyKnow (2010) ‘Inspection of nuclear facilities by Irish law enforcement’, 15 June, available at www.whatdotheyknow.com/request/ inspection_of_nuclear_facilities#incoming-99798p (accessed 20 August 2014)

5 FOI and public trust in parliament Mark Mulqueen

Introduction It is often said that nothing ever changes when it comes to our political system. A consideration of the changes made in the Houses of the Oireachtas since the introduction of the Freedom of Information (FOI) Act back in 1997 demonstrates that this view is simply not true. An examination of attitudes towards members’ expenses and allowances is a case in point. Following the publication of the Act, there was a certain media frenzy regarding requests for records relating to expenses provided to members of the Oireachtas. Multiple requests for essentially the same information from almost all of the newspapers of the day reflected a singular interest in the cost of politics, rather than the business of our parliament. The Houses of the Oireachtas refused to release the records sought by the journalists on the grounds that such payments are personal. However, in 1999 the Information Commissioner overturned the decision of the Office of the Houses of the Oireachtas and directed the release of the total expenses paid to each member of the Oireachtas. In its initial decision, the Oireachtas had only released details of certain expenses. The Oireachtas refused to release details of these expenses in a format that would identify the precise level of expenses claimed by individual members on the basis that it constituted personal information. However, the Commissioner ruled otherwise and, of course, the Houses of the Oireachtas complied in full! Later I will touch on the culture that informed this mindset that believed it to be exempt from such requests, but for now let me say that there is no evidence to suggest that it was particular to the Oireachtas, or the wider public sector, whether that be academia or the health sector. This was, and maybe still is for a small minority, a matter of culture.

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The political system introduced FOI and, following a moment of resistance, has complied with it. The recent review in advance of the revised FOI legislation is another case in point: draft legislation was subjected to broad public scrutiny and was amended in response to public concerns in relation to charges and other matters. Again, a case of a responsive and open political system. You won’t read that too often… For the Oireachtas, FOI has been a part of broad sea change in attitude. In contrast to 1998, the reality now is that the details of the precise amount paid by way of expenses and allowances are published monthly on the Houses of the Oireachtas website (www.oireachtas.ie), as are all salaries, the attendance recording system, an annual independent audit of expenses and allowances and an annual register of Members’ Interests and all regular supplements to it. This is not to mention the debates of both houses and its committees that are published hourly, live webcasting of all Oireachtas business, the publishing online of all documents laid in the Oireachtas Library and the broadcasting of all proceedings on a dedicated parliamentary TV channel. Records of all Oireachtas sittings are promoted across social media. Basically, it is now very easy to know exactly what is happening in our parliament. This expanding form of transparency comes from the same place that brought us FOI – a broad political belief that such transparency has a corresponding effect on accountability. FOI did not trigger this wider embrace of public access but it is one part of it. However, some things do not change. Fifteen years on and the focus of most media FOI requests remains resources and funding. Expenditure should always be transparent and this interest has helped the case for making such records public on a systematic basis. It is simply a pity that the media is not as interested in the business of our parliament as it is in the cost of same. The coverage arising from such singular interest can be disappointing in terms of tone. A survey of media coverage of the parliamentary and political system (Houses of the Oireachtas, 2012) highlights the negative bias of most coverage. That is to say that it is almost exclusively focused on the negative issue of the cost of politics and parliament. Some media analysis of cost is placed in context and it has a wider point regarding accountability and fairness, but some is simply lazy and opportunistic journalism. The general corollary is that the greater the negative bias and singular focus on the cost of politics, the smaller (to the point of non-existent) the coverage of actual parliamentary proceedings. The DCU research demonstrates that the more consistently negative the coverage, the more consistently non-existent the coverage of actual parliament. The media, both public and private, is a marketplace. They compete for viewership, listenership and readership. They compete for advertising income. They compete for subscribers. As with all markets, the media market is, first and foremost, about the bottom line. Accuracy, balance and public interest must match that and it cannot always be easy. Much like the very imperfect thing

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that parliamentary democracy knows itself to be, the media too is founded on a model that is imperfect. The difference between the two seems to be that whereby politics is self-critical in the extreme (i.e. every party and non-party has an alternative perspective on how the system needs to be reformed), the media is subject only to self-scrutiny, and as the media itself is oft minded to observe, self-regulation is not always an ideal way for a sector to maintain high standards. However, things are changing. For the sake of fairness, it must be assumed that some of those charged with managing our public services may still see FOI as an impediment to good political and public administration. Such a viewpoint may interpret the constant demands of complying with FOI legislation as bothersome and nothing more than an unnecessary hindrance. Of course, the important point here is that they must still comply with the law, despite their reservations. I can only speak for the Oireachtas, where I know FOI is a well-integrated and normalised part of the business of information management. The wider point is that the parliamentary and political system, like everything else, is evolving and is responsive to the times it serves in. Sometimes it is dragged kicking and screaming and other times it shows real leadership. The 1997 reaction to FOI is instructive. The parliament that passed the original legislation resisted its application to itself, though it did eventually submit to the authority it had granted to the role of Commissioner. In this respect, a cynic might argue that freedom of information is an admission of failure. Or at least logic suggests that it should be. Any state that must create a law to compel itself to make records public, because it believes the records should be in the public domain, yet still fails to do so, is hardly ideal. Still, states that do possess FOI laws are deemed some of the most progressive and deserve to be so. It is a measure of the imperfection of democracy that such an admittedly contradictory law is also a sound barometer of the health of a democracy. Churchill’s comment that ‘democracy is the worst form of government except for all those others that have been tried’ certainly applies. In that regard, FOI legislation may be more accurately described as an admission of imperfection, while its absence represents something closer to failure. Arguably, the truth about FOI is the truth about all law. If people do not buy into the spirit as well as the letter of law, the full value of that law can never be realised. There is no question but that the Houses of the Oireachtas have embraced the spirit of FOI since 1997. They have complied with and embraced the FOI culture. FOI compliance is promoted throughout the organisation by the Oireachtas Library Unit, the section assigned the role of administering applications and overseeing the processing of requests. Regular staff workshops are held to help ensure a full understanding of the legislation by those staff assigned as ‘decision-makers’. Furthermore, the Oireachtas Communications Unit promotes a policy of publishing more records and more information directly to

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the web with the aim of minimising the need for FOI requests. It also publishes records previously released under FOI directly to the web. In doing so we must also be aware that FOI makes records available, but records in themselves are generally created for internal consumption and understanding, so they really only speak to a small expert cohort of academics, media and civil servants. This is a narrow group and is not quite representative of the public. So, simply making records accessible is not in itself going to address a deficit of public trust or increase engagement. A recent seminar on the use of the web in parliaments (European Centre for Parliamentary Research and Documentation, 2014) included an admission by one parliament that their big move to open data and open platforms triggered almost none of the increased access and re-use of their records and data that they had expected. Why? Well, they learnt the hard way that ‘information’ in itself is of little use until it is effectively communicated. Communication that engages the public must occur hand in hand with the release of records. So, in terms of records management, promotion of FOI and the wider idea of making FOI an absolutely last resort option, the Oireachtas has come a long way. Where it will make further progress is when it communicates its records, content and data through media and channels that the public prefer to use. This requires putting information in context, in the language that people actually use and presenting it in an engaging and attractive way. The Oireachtas will achieve a real impact on public engagement when web-based broadcasting, publishing and interaction become the cornerstone of its relationship with the public. This is where political communications come in. This chapter addresses how we might achieve the ‘full value’ of FOI legislation in terms of developing public trust and engagement with the Houses of the Oireachtas. It argues that despite significant changes, a change in our culture is not yet complete. In consequence the changes achieved to date are still sub-optimal. For instance, there is no evidence that there has been a dividend in terms of improved public trust in return for greater transparency. In order to realise the real value that such changes were supposed to deliver, we may require a change management process focused on ‘culture’ rather than ‘processes’.

Promoting public trust in parliament In democratic systems of government, parliamentary democracy provides the means by which many people and many issues can be represented, and thence distilled into a coherent national plan for action, that is, a mandate for government. Essentially then, an effective parliamentary system of democracy presents a relationship between two key partners: the Members of Parliament, and the citizens whom they represent. As with all good relationships, it works better with trust between the two. There are many ways in which a depletion of public

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trust and confidence can impact on the parliament and its two stakeholders: the public and the members of the parliament. In truly political terms, loss of public trust and confidence first manifests itself in polling data whereby party A’s public support dips to the point that it decides it can no longer support party B in a coalition government. For an institution such as the Oireachtas we see it in our own annual poll (Ipsos MRBI, 2013) that reveals that more than half the public do not believe the institution is run efficiently. The same survey reveals that the majority do not have a basic understanding of the institution that they believe to be inefficiently run, so we have a knowledge and trust problem. In a parliamentary democracy public trust and confidence in the institution of parliament is paramount. It matters to the rule of law, the protection of our constitutional rights and the effective everyday administration of public services and public interest regulation of business. However, we know from both history and the present day that public trust and confidence in the political process is fragile. Take the Arab Spring or, more recently, Ukraine and Thailand as examples of the consequences of parliamentary systems losing public trust and confidence. Clearly, it need not be necessarily as dramatic as those examples for loss of public confidence to impact on the executive. It may be an event or events that lead to a political resignation. So, achieving and maintaining a high degree of public trust in the Irish parliamentary system is an objective of the Irish national parliament, the Houses of the Oireachtas. Many factors affect the level of public trust and confidence, for example, wider economic well-being, but one essential factor is a reasonably high level of public understanding of the work and role of a parliament. Essentially, a good understanding of the role and responsibility of the institution of parliament is necessary if one is to assess the effectiveness of that institution. This chapter seeks to temper the popular view that FOI in itself can have a major impact on the relationship between state and citizen. Instead, it will make the case for broad-based public engagement using political communications as a means of achieving a fundamental improvement in the relationship between the political system and the citizen. Remember, freedom of information is really freedom of ‘records’. Information is a powerful currency but only becomes subject to FOI once it is placed on the ‘record’. While it is ‘off the record’ it may be at its most potent but will not be subject to FOI. So, for all this it would be wise to keep our expectations of FOI in check. In rightly advocating and pursuing the adoption of FOI laws, advocates may naturally overstate the impact such laws can have on the level of civic trust that will arise as a result of enacting such laws. This is to be expected and is a feature of many reform campaigns, whatever the subject matter. Still, such advocates would do well not to present FOI as some sort of silver bullet. The British philosopher Onora O’Neill (BBC, 2002) has warned that since the tranche of ‘transparency’ legislation was adopted in

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the United Kingdom in the 1990s, the level of public trust and engagement with the State has actually declined. O’Neill very eloquently questioned and exposed how simplistic it is for anyone to assert that the greater the release of public records and information, the more trusting a society we shall have. This is not to undermine the importance of FOI, only to point out that alone FOI is not the antidote to the gulf that exists between Irish citizens and their political system. Access to records, which is essentially what freedom of information amounts to, is but one element of a large and complex challenge. Records may very well become free to access but the inclination to see ‘information’ as power, and thus to covet it, may require more fundamental adjustments. Such adjustments will be required of both our culture of public administration and on our part as citizens, too, if fundamental improvements in public trust and perception are to be achieved. Education, both formal and informal, begets empowerment and empowerment creates more engagement. This is where political communications and FOI converge.

Providing public information about parliament Since 2007 the Houses of the Oireachtas has pursued a communications and public engagement strategy. The strategy (see, for example, Houses of the Oireachtas Commission, 2012) is designed to improve the relatively low level of public understanding and negative perception of parliament (i.e. the Oireachtas). It aims to do this both by making information and communications from the Oireachtas highly accessible across the media sources that the public prefer and by challenging the sort of media coverage that misinform the public. Rebuilding a high level of public understanding and positive perception is the overriding goal of the strategy. My job is to implement the Irish parliament’s communications strategy. For me, FOI and public engagement strategies, such as the one I work to, exist upon the same assumptions. That is: that a healthy public engagement or ‘buy-in’ to the political process is potentially critical to the legitimacy and even viability of that political system; that citizens, or at least the vast majority of them, agree with such a sentiment; and that ultimately the state and the citizen are one and the same. It is within this context that this chapter questions the perceived promise that freedom of information and, more broadly, transparency offer to the cause of improved public understanding and perception of our democratic system. The chapter asks, therefore, whether or not FOI is a real game-changer for the public’s relationship with the state? In order to answer that question, I believe that we need to look at that central relationship between the parliament and the public, and at the role of key agents who seek to influence opinions about this relationship: my own office for Oireachtas communications, which

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is responsible for promoting public understanding and perception of parliament; and the media in all forms and influences, who are largely responsible for informing the public about the Oireachtas, according to the Oireachtas national survey (Ipsos MRBI, 2013).

The role of the Houses of the Oireachtas in public education about parliament Surveys suggest that in Ireland more than half of the public have repeatedly admitted to not possessing a basic understanding of the political system (Onside Marketing, 2010; Ipsos MRBI, 2013). A lack of access to the records of how the political system actually performs will surely be a contributing factor to this lack of understanding. How is one to acquire a real understanding and appreciation of the actual system if that same system, either actively or passively, resists public engagement and appraisal of its deliberations and actions? FOI is marginal to this point as it is much more about communication, education and promotion of public information than something as process related as FOI. The annual surveys undertaken by the Oireachtas (ibid.) and available on its website show a reasonably high level of interest in knowing more about the business of parliament, so there is an appetite for a better understanding. Arguably, where the public has low levels of understanding and/or a negative perception of the legislative process, achieving a high level of public buy-in to the legislative process will be hard. Moreover, low understanding and negative perceptions can have a corrosive effect on both the function and performance of a parliament as well as ultimately having negative political consequences for its incumbents. A simple example is where Members of Parliament are not seen to be in their respective chambers. The headlines and, it seems, the public both scream ‘Where Are They?’, when in fact members may be working in a committee room or even abroad on legitimate parliamentary business. This brings us to the task of communicating the Oireachtas. Up until 2007 it was accepted that the media informed the public about the parliamentary system. However, following the path taken by many other national parliaments worldwide, such as those in the United Kingdom, New Zealand, Denmark and many, many more, the Irish parliament moved from a reactive approach to its relationship with the media (and in turn its influence over public perception of it) to a proactive one. The Houses of the Oireachtas Commission, the corporate entity that operates the Irish national parliament, launched the first Communications Strategy for the parliament in 2007 (Houses of the Oireachtas Commission, 2007). The shifting focus of the three strategies adopted to date demonstrate the difficulty of addressing, or even identifying, the exact challenge each strategy seeks to resolve. For instance, the first such strategy in 2007 sought ‘to build public understanding and respect’ in the institution

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of parliament. The second strategy, adopted in 2010, sought to ‘build trust and confidence’ (Houses of the Oireachtas Commission, 2010) in the institution of parliament, while the third and current strategy seeks ‘to build public understanding and perception’ (Houses of the Oireachtas Commission, 2012) of the Oireachtas. Such shifting objectives are natural. They reflect the difficulty in defining the fault line between the state and the public, not to mention agreeing what is the exact remedy to bridging it. For some, FOI and greater transparency is the solution. The other shifting focus in this time has been shaped by, on the one hand, reduced funding but, on the other, increased opportunity to exploit web-based communications to engage audiences. Since the adoption of this strategic approach a series of surveys have been undertaken to help target our communications resources more effectively. The 2012 poll confirmed the following: • When asked what do you think makes up the Houses of the Oireachtas, just 44 per cent of the public answered relatively accurately; • When asked what they believe to be role of the Oireachtas, just 36 per cent of people answered close to correctly; • When asked do they feel well informed about the Houses of the Oireachtas, just 27 per cent felt so; • When asked how they keep themselves informed (or misinformed) about the parliament, the answer was the media, with the breakdown of TV 52 per cent, newspapers 41 per cent, radio 20 per cent and web, including social media, at 10 per cent (Houses of the Oireachtas, 2012). Basically, the research confirms the power of the media in determining public opinion of our parliamentary democracy. Our strategy has had some success. Targeted education of school students, regional touring information events and exhibitions, online video, social media content, a parliamentary TV channel, schools competitions, a variety of public events in the parliament, a media team dedicated to the promotion of parliamentary committees, weekly commissioned local radio and newspaper reports, modern branding, a plain English initiative, extensive explanatory publications (and even cartoons!), online games, a parliamentary app for smartphones, a new website and major visitor programme are some of the considerable resources the Oireachtas has committed to in an effort to improve public understanding and perception of parliament. Over the last six years upwards of 100,000 people, mostly of school age, have experienced a dedicated learning programme explaining how their political system works. This was a first for any Irish citizen. Further initiatives include:

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• television – despite the explosion of social and mobile media, 80 per cent of the Irish public choose television as their preferred means of informing themselves about the political and parliamentary business of the day (Ipsos MRBI, 2013). So, the Houses of the Oireachtas have developed a parliamentary television channel that will broadcast the business of the Dáil, Seanad and Committees to the vast majority of homes in Ireland on a 24/7 basis. This ‘Oireachtas TV’ channel puts what is actually happening in Leinster House directly into the hands of the public in the media format they prefer. That is an example of a communications strategy in action; • mobile  – approximately 50 per cent of all Irish web access is now via mobile media (Amarach Research, 2012). In response to this trend, the Oireachtas produced an app that makes all of its broadcast output, its debates and the profile and contact details of all of its members available to those that prefer mobile media. It is free and compatible with all devices. Again, that is a strategy in action; • online  – the Oireachtas has introduced an online parliamentary education programme for Junior and Leaving Cert that will dovetail with Civil, Social and Political Education and History. The programme will be whiteboard-based with a social media dimension integrated to it; • use of plain English  – the Oireachtas works with the National Adult Literacy Agency in promoting the use of plain English in the creation of records and reports. Experts, such as academics and civil servants, are more comfortable when using their own form of jargon or legalese. The Oireachtas is starting the long slog of reversing this culture within its own sphere. All of this represents what I regularly call the less popular but more effective deep-impact, long-term work of political communications. However, the impact is still limited and the Irish media remain the gatekeepers to public understanding and opinion of the system. Of course, the political dimension and the politicians themselves are key contributors to public opinion. However, the gatekeeper to public discourse – the media – is also responsible, as is every adult in the country. This idea that there are three stakeholders in this space – the political system, the media and the public themselves – informs my view that what the Oireachtas can do is make all of its business, its records and its output very easy to access and engage. The focus on increased understanding arising from increased knowledge should not be misunderstood. This is not to suggest the rather elitist notion that one must possess the equivalent of a degree in political science to make a valid contribution to such discourse. On the contrary, a person of real integrity and vision with little or no knowledge of the system may be a much more useful prospect as a politician (or a citizen) and do more for the state of public discourse

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than any supposed expert. Knowledge alone does not grant added legitimacy or value to contributions to public discourse. This brings me back to my own work and that of other parliamentary communications services across Europe and beyond. The word we use the most is engagement. Are people engaged? In that sense it is not simply a matter of knowledge or sentiment but one of making a connection. We have not produced a way of measuring ‘engagement’ but the aforementioned Oireachtas surveys do add up to a reasonably good picture. So, the basic theory is that if in the long term you inform the public by proactively improving their access to information by communicating it in their language and on their wavelength, in return the public will come to judge the parliament on its actual performance. This would be instead of basing their opinion on the one-dimensional persona that the media, in general, tends to prefer to present. As this is a long-term outcome (at best), as an institution a parliament also has to be proactive in challenging the short-term misinformation and blanket reputational criticism that contemporary media commentary often consists of. Staying with the theory of long-term engagement, just imagine the effects of increasing the current level of public understanding from, at best, 35 per cent to, say, 90 per cent (Ipsos MRBI, 2013). Just imagine if 90 per cent of the public had a really good understanding of how laws are made; knew how to engage and influence the law-making process; knew how to engage with parliamentary committees alongside and even ahead of the already active interest groups and lobbyists; or were active in engaging their local parliamentarians on their legislative priorities and performance and understood how, through their national parliament, they can also genuinely influence EU laws and regulations. If you can imagine that, you can also imagine how that would really change things. Remember, based on ongoing research, less than 35 per cent (Onside Marketing, 2010; Ipsos MRBI, 2013) of citizens currently possess such an understanding. What would be different if 90 per cent of the adult population had such a high level of understanding? Parliamentarians, public servants, government departments, state agencies, semi-states, the media and the regulated private sector would all perform differently in the face of such an informed and empowered public. Now compare such a scenario with the impact of FOI. FOI is certainly one of the many useful system improvements that would assist such a transformative process to become a reality, but a broad-based public engagement programme that empowers public understanding is, for me, the real deal. Champions of transparency and accountability rightly invest much hope and energy into such reforms as FOI. However, evidence and experience to date suggests that the empowerment of people to the level that they are genuinely likely to utilise laws such as FOI would be more transformative in its impact.

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The role of the media in public education about parliament The Houses of the Oireachtas, our national parliament, are subject to exceptional media coverage, scrutiny and commentary. Like many Western parliaments,1 it is perceived quite negatively by many of the public (Onside Marketing, 2010; Ipsos MRBI, 2013). In this respect, and from my own perspective, an argument might easily be made that the media has a crucial role in, and responsibility for, informing  – and misinforming  – the current very low level of public understanding and trust in the Oireachtas. In the experience of the national parliament, the media represents more than 80 per cent of FOI applicants, with interest groups and expert campaigners making up most of the balance (Houses of the Oireachtas, 2013). Even allowing for the media fascination with Leinster House, our experience of the general public rarely using FOI suggests that for it to be a truly groundbreaking resource the public would first need to be more empowered to interpret and use official records/data, etc. Every week the parliament receives requests for records under FOI. According to these unpublished internal records kept by the Oireachtas Library, the total number of FOI requests received in 2010 was 88, 2011 was 66 and 2012 was 114, and the figures for the decisions were as shown in Table 5.1.2 The data in the table show that the majority of material requested under FOI is released. Some requests are part-granted. This is where multiple (i.e. multi-part) and not directly connected records are sought and those that are subject to the legislation are released and those parts that are not are withheld. Some 57 per cent of FOI requests were multi-part in 2012 and 25 per cent of FOI requests were multi-part in 2011. Members of the media are primary users of the legislation: • 2012: 84 per cent of requesters were journalists/media; • 2011: 83 per cent of requesters were journalists/media; • 2010:  81 per cent of requesters were journalists/media (Houses of the Oireachtas, 2013). The information requests are generally about the cost of politicians; the facilities to be found in the parliamentary complex; parliamentary travel and the resourcing of politicians, their constituencies and their respective political parties. Such scrutiny is to be welcomed. It is necessary as it helps validate the system that exists at present. This is an example of where the media play a crucial role in scrutinising the administration of the political and parliamentary system. However, with regard to communicating and building a better public understanding and perception of our parliament, it would be useful if the media would, for instance, explain that there is a legitimate cost to a functioning parliament and that our

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Table 5.1  FOI requests to the Houses of the Oireachtas, 2010–2012 2010

Percentage

2011

Percentage

2012

Percentage

Granted

53

60

33

50

65

57

Part-granted

13

15

 5

 7.5

24

21

Withdrawn

 6

 6.8

 8

12

 9

 8

Refused

 7

 8

16

24

16

14

Source: Houses of the Oireachtas Library

political system is one worth paying for. Will the media offer some balance before concluding negatively? My experience leads me to be somewhat doubtful. In late 2012, the prominent Irish commentator Vincent Browne committed his weekly column in The Irish Times to an essentially contradictory piece on the subject of financing the political system (Browne, 2012). The story lambasted politicians’ pay and allowances. Nothing new about that, I hear you say. However, he concluded by saying that he was, of course, all for properly funding politics and politicians and even suggested that Irish politicians deserve more funding! So, a few hundred words of simplistic outrage towards the public funding of politics followed by a completely contradictory conclusion advocating the very thing it was criticising, and this published as expert and well-reasoned analysis. Around the same time, one of the best-selling newspapers in the country, the Irish Independent, declared in a front page headline that TDs’ lunches are paid for by the public purse. This is untrue and this was clearly explained in the records released, but the headline went ahead anyway (Irish Independent, 2012). A few months ago a Sunday newspaper misrepresented the role of the Oireachtas in relation to the administration of allowances to TDs on foot of an FOI request. The correct information was provided under FOI but the newspaper misread it and the resulting story was construed in the most one-dimensionally negative light possible. These are only a few examples to illustrate what the media sometimes pass off as ‘analysis’ of parliament. All of the information referred to was already in the public domain or had already been provided under FOI. Who cares? Does such negative coverage matter? Don’t they deserve it, I hear you ask? It does matter because the media are still so central to how the public are informed. It matters as much to the credibility of the media as a going concern as it does to the business of trying to get a fair hearing for our political process in the media. So, is this just me doing what the media do, selectively presenting stories for the purpose of agenda setting? Yes, it may be, but only to make an unpopular point. Consider now the findings of the independent, academic research of newspaper coverage of the Irish parliamentary and political process by Dublin City University (Houses of the Oireachtas, 2012). The research was intended to add to the ongoing research that underpins the parliament’s communications strategy.

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The research was commissioned to tell us whether or not the media are fair and balanced in their coverage of our parliament and, even more pertinently, to establish if they actually give much coverage to the actual work of the parliament. The primary finding is that with the exception of The Irish Times, and the Irish Independent to a slightly lesser degree, the print media are predominantly negative in their coverage of the Oireachtas. Moreover, their coverage of the parliamentary process is very limited. The latter point is revealed by the fact that their coverage is scarcely affected by the recess periods of August and January, proving that the focus of their coverage is not parliament or the actual political system. Again, an exception has to be made for The Irish Times in this regard too. Perhaps these results are unsurprising. They do, however, support the view that the media, both as the principle users of FOI and as the dominant channel through which the public say they are informed about the parliamentary and political process (Houses of the Oireachtas Commission, 2012), are often less than fair in their coverage. Our surveys of public understanding reminds us that the majority of the public rely on the media to inform them about politics and the work of their parliament (Onside Marketing, 2010; Ipsos MRBI, 2013). The same surveys also remind us that the vast majority of the public feel that they are not well informed about it. Against the backdrop of an evermore competitive media market and increasingly uncertain business models, one is entitled to wonder whether the media is capable of meeting the challenge of treating this increased freedom of information in a more responsible and fair manner, rather than interpreting it as a licence to sell a little more media space through sensationalism. Of course, there are many journalists who have put the current FOI regime to very good use and do so in the public interest. However, there are also those who seem to use it primarily as a means of corroding the relationship between what is a democratically elected parliament and the public that elected it. An aside: I am a newspaper addict. I find them to be the most enriching form of media and have done since I was knee-high. Opening a fresh newspaper is an absolute pleasure and delving into the diversity of voices, writing styles and personal angles is almost always fascinating. For me, nothing matches the newspaper. So, the question to be answered is: how can the FOI system become a major milestone in the journey towards a truly empowered and mutual relationship between the Irish public and its parliament? And in a world where the media is the predominant filter through which the flow of information from the state to the public will still pass, how can the theoretical potential of FOI be put into practice?

Open government and open parliament The principle of placing public records in the public domain so that the public can see them is evidently reasonable. However, I worry when some of those that campaign for this to happen claim it to be a remedy for all the ailments arising

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from low public trust and engagement in the political process. The philosopher Onora O’Neill also questions the notion that greater transparency of public records has the direct effect of improving public trust. According to her, ‘there has never been more abundant information about the individuals and institutions whose claims we have to judge’ (BBC, 2002). Due to the communications technology revolution, she argues: Openness and transparency are now possible on a scale of which past ages could barely dream  … [We are] flooded with information about government departments and government policies, about public opinion and public debate, about school, hospital and university league tables. We can read facts and figures that supposedly demonstrate financial and professional accountability, cascades of rebarbative semi-technical detail about products and services on the market, and lavish quantities of information about the companies that produce them  … So if making more information about more public policies, institutions and professionals more widely and freely available is the key to building trust, we must be well on the high road towards an ever more trusting society … High enthusiasm for ever more complete openness and transparency has done little to build or restore public trust. On the contrary, trust seemingly has receded as transparency has advanced. (Ibid.)

Perhaps on reflection we should not be wholly surprised. It is quite clear that the very technologies that spread information so easily and efficiently are every bit as good at spreading misinformation and disinformation. To be clear, I do not suggest that transparency may harm the cause of building greater civic trust. But there is a value in O’Neill’s scepticism towards the idea of transparency – in and of itself – as a panacea. My own contention is that one trusts only that which one understands and feels part of. Whether it is one’s family, community, church or country, one must feel part of the process. Unfortunately, too many people feel quite the opposite about the political system. This is why the Houses of the Oireachtas continue to pursue a communications strategy that is founded on a broad-based public engagement programme. People need to be encouraged and assisted in engaging with, understanding and participating to a level whereby they become genuinely part of the democratic process. Such a strategy will be a long journey but one worth taking. For the Houses of the Oireachtas Service our next priority will be to publish all information in an open and structured format. We want to embrace the ‘open government’ philosophy whereby we publish information in a way that is accessible and reusable. I do not expect this to mean that the media will report more of what actually happens in our parliamentary process, but it will mean that NGOs, citizen journalists, bloggers and independent websites can access and reuse all that we publish. It is a small step towards a more plural point of access.

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Conclusion The power of our national parliament is not in its traditions, its symbols, its protocols or its standing orders. Nor is it found in its physical manifestation of Leinster House (the home of the Irish parliament). Rather, it is in the democratic mandate granted to its members by the public. It is the public mandate that makes it a democratic parliament. This is why the relationship between our national parliament and the public is of real importance. Our research tells us that the media plays the critical role in informing the public understanding of the Oireachtas. Therefore, the role of the media as the primary disseminator of political information to the public cannot be dismissed. Greater access to records brings new challenges but at its core is the principle that is central to any functioning parliamentary democracy: public trust. For the institution of parliament this can be seen as an opportunity to communicate more openly and more transparently, and, hopefully, in return deliver better engagement with the public. However, this is – to a considerable extent – dependent upon our media. Public institutions like the Oireachtas will do what they are obliged to do. That is, they will comply with the law. Moreover, in the case of the Oireachtas, it will do more by pursuing a proactive public communications strategy. Put simply, the Irish parliament is ensuring that every citizen can know what is actually happening in their parliament at the tap of the button on their computer mouse, television remote control, mobile device app and through just about every other modern means of communications. However, against the backdrop of an evermore competitive media market and increasingly uncertain business models, one is entitled to wonder whether the Irish media is capable of meeting the challenge of treating this increased freedom of information in a more responsible and fair manner. As a practitioner of political communications, I would advocate for the use of large public information and communications strategies to address the gulf between the state and citizen when it comes to the matter of trust and understanding. Such strategies can be effective and, depending on what price one puts on the health of one’s democracy, it can be value for money. From the perspective of a national parliament that desires a better relationship between it and the citizens that elect it, access to more information is a sound idea. However, as so many of the public depend upon the media to present that information to them, both the state and citizens alike rely on the media to present such information in an accurate and fair way. A recent UK survey of public trust in the different professions scored both politicians and journalists as joint last at just 7 per cent trustworthiness (Ipsos MORI, 2013). Of course, such polls are somewhat generic and should not automatically be taken at face value. Yet, the media has no difficulty in supporting the accuracy of such polls especially when the political system is the sole target.

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According to such polls, it may be the case that the media will need to change their ways at least as much as those administering the political system, and will have to do so not for the sake of democracy but for its legitimacy and, ultimately, viability. The institution of parliament has proven itself capable of embracing change and one might ask the question of the media: is it capable of balancing its commercial imperative with the increased power it will enjoy with the advent of greater freedom of information? Let’s hope so.

Notes 1 See, for example, Hansard Society research on perceptions of Westminster reports (Fox and Korris, 2014). 2 Not all requests are processed in the year in which they are received, hence a disparity between the number of requests received and the number finalised.

References Amarach Research (2012) Second UPC Report on Ireland’s Digital Future: Accelerating Economic Recovery, available at www.upc.ie/pdf/UPC_2014_ report.pdf (accessed 15 August 2014) BBC (2002) Trust and Transparency, Lecture 4 of Reith Lectures 2002, available at www.bbc.co.uk/radio4/reith2002/lecture4.shtml (accessed 15 August 2014) Browne, Vincent (2012) ‘Pampered Cabinet is a grotesque spectacle’ The Irish Times, 31 October European Centre for Parliamentary Research and Documentation (2014) ‘From e-Parliament to smart-Parliament:  How to improve citizen’s participation using web technologies and social media? And how can parliamentary rules of procedure support transparency and participation?’, available at https:// ecprd.secure.europarl.europa.eu/ecprd/navigation.do?section=5 (accessed 15 August 2014 [restricted access]) Fox, Ruth and Korris, Matt (2014) Audit of Political Engagement 11: The 2014 Report. London: Hansard Society Houses of the Oireachtas (2012) ‘Tonality study of media coverage of the Houses of the Oireachtas, 2012’. Unpublished Houses of the Oireachtas (2013) Library and Research Service internal FOI records. Unpublished Houses of the Oireachtas Commission (2007) Houses of the Oireachtas Commission Strategic Plan 2007–2009:  Excellence in Parliamentary Service, available at www.oireachtas.ie/parliament/media/about/strategiccorporatereports/ Houses-of-the-Oireachtas-Commission-Strategic-Plan-2007---2009.pdf (accessed 14 August 2014)

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Houses of the Oireachtas Commission (2010) Houses of the Oireachtas Commission  Strategic Plan 2010–12:  Toward a World Class Parliamentary Service, available at www.oireachtas.ie/parliament/media/about/strategic ­corporatereports/Houses-of-the-Oireachtas-Commission-Strategic-Plan2010---2012-(no-images).pdf (accessed 14 August 2014) Houses of the Oireachtas Commission (2012) Houses of the Oireachtas Communications Strategy 2012–2014: Increasing Understanding and Improving Public Perception of the Houses of the Oireachtas, available at www.oireachtas. ie/parliament/media/about/strategiccorporatereports/Strategy-English--Web.pdf (accessed 14 August 2014) Ipsos MORI (2013) Trust in Professions, 3 December, available at www.ipsos-mori. com/researchpublications/researcharchive/15/Trust-in-Professions. aspx?view=wide (accessed 15 August 2014) Ipsos MRBI (2013) Houses of the Oireachtas Research, January 2013, available at www.oireachtas.ie/parliament/media/about/strategiccorporatereports/ Oireachtas-Market-Research---October-2012.pdf (accessed 12 August 2014) Irish Independent (2012) ‘€30,000 lunch cash fund for TDs’, Irish Independent, 6 November Onside Marketing (2010) Houses of the Oireachtas Public Research Study, available at www.oireachtas.ie/parliament/media/about/strategiccorporate reports/Oireachtas-Market-Research-April-2010.pdf (accessed 15 August 2014)

6 Freedom of information and the media: a case of delay, deny, defeat? Conor Ryan

Introduction In 1997 Irish journalism emerged from a period dominated by violence in Northern Ireland to find a new status in exposing wrongdoing in public life. As it took on this task it was given a powerful new tool, the Freedom of Information (FOI) Act. Yet without instructions or clarity on how it was to be interpreted and used, in its first fifteen years it fell victim to inconsistencies and delays. In June 2014 the reporters, whose frustrations festered, were given fresh hope. New legislation and, critically, a detailed Code of Practice promised to fix the problems that have blighted bona fide attempts to use the Act to scrutinise public bodies. This chapter documents the problems experienced by journalists who use the Act, using working examples of a tool that promised much more than it has delivered.

Letting in the light FOI legislation was passed in the Oireachtas in April 1997 at a pivotal time for Irish journalism. Newsrooms were emerging from a long period in which the coverage was dominated by the war in Northern Ireland, and the most prominent journalists of that era made their names documenting the Troubles. The priorities driven by this war, and for other reasons that have not been properly assessed, left the impression that journalists had not done enough during the 1980s to expose the corruption that had been rumoured to exist in Irish public life. The most extreme criticism was the lack of curiosity by Irish journalists in exposing the payments to politicians, described by writer Eamon Dunphy as the ‘Vichy period in Irish journalism’ (Dunphy, 2013). That statement fails to

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recognise that during that decade journalists were asking questions about issues such as the source of the then Taoiseach Charlie Haughey’s wealth (Arnold, 2006); however, they were not able to get answers. In the meantime, by the late 1980s the media outlets had established themselves as the most trusted reference point in Irish society when it came to issues related to the North (MRBI, 1987). Journalists did not uncover corruption, but neither were they idle. The dominance of the Troubles on the news agenda began to recede once the IRA ceasefire was announced in September 1994 and the slow-moving negotiations stuttered towards their successful conclusion on Good Friday, 1998. The stabilisation of the Troubles in Northern Ireland left a space in the news cycle and, in some respects, a lack of purpose in the Irish media. It meant home-grown media organisations were left following the lead of others. The Fianna Fáil–Labour Party coalition led by Albert Reynolds had been blighted by investigative reporters covering Irish scandals for British newsrooms. In May 1991 Susan O’Keeffe aired her investigation into corruption in the beef industry on the UK television channel ITV (World in Action, 13 May 1991). It led to the establishment of the Beef Tribunal that reported in 1994 and compromised Reynolds’ standing. Hot on its heels Chris Moore broadcast his investigation into the handling of serial child sex abuser Fr Brendan Smyth. That went out on UTV’s Counterpoint in 1994 (Counterpoint, 14 October). Mr Reynolds cited this as the catalyst that brought the coalition down weeks later (Reynolds, 2009). At the same time, another journalist, Jane O’Brien, was coming to the fore in the drive to find answers to the infected blood scandal (Clifford and Coleman, 2011). But it was as leader of the campaigning group Positive Action, rather than as a reporter, that O’Brien pressed for the Finlay Tribunal into the Hepatitis C contamination. The Fourth Estate was playing its role but not necessarily with established Irish news outlets, which the public had come to expect in the reporting of the Troubles. However, indigenous journalists were not to be caught out when uncovering the next wave of scandals, which initially stemmed from an incident in a Florida hotel room that left the businessman and political benefactor Ben Dunne professionally compromised (Keena, 2003). Dunne was caught with cocaine and his family began auditing the company. The revelation by Sam Smyth in the Irish Independent that Dunne had paid for work to be carried out to the then minister Michael Lowry’s home (Smyth, 1997) led to the McCracken Tribunal in 1997. When Cliff Taylor, in The Irish Times, reported that Dunne had given IR£1m (€1.27m) to Haughey, other journalists picked up the scent and kept digging. Their rooting on Haughey and Lowry continued that year and gave rise to the Moriarty and Flood tribunals. Thus a new generation of journalists, emboldened by the scandals of 1997, came to prominence. Senior figures in government recalled impressions of a new, harsher form of journalism (Finlay, 1998). It was into the laps of these

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young hacks that the FOI Act fell. The expectation was that the veil of secrecy, which had thwarted the work of journalists in previous years, would be lifted. When the Act was passed by the Oireachtas in April 1997, Michael Foley, media correspondent with The Irish Times, wrote that once enacted ‘the public service will begin the process of changing a culture it has lived with since the foundation of the State’ (Foley, 1997). But if the expectation was that the Act would accelerate or suddenly revolutionise the work of investigative journalism, the reality of the FOI Act proved to be a little underwhelming. There were notable successes. Issues exposed included the effect of tax individualisation; the inadequacies in prison health care; the practice of moving the body parts of deceased children to hospitals in Britain; and the mechanics of the controversial €127m indemnity deal between the State and religious orders (Office of the Information Commissioner, 2004). Similarly there were a series of scandals upon which the Act had no impact. The Act played little role in investigating Taoiseach Bertie Ahern as much of the evidence of the financial support he got from the private sector was not a public matter. It took until 2009 for the Act to deliver a truly top-level casualty, with the resignation of Ceann Comhairle John O’Donoghue (Irish Examiner, 2009). And it was not until 2014 that the first public figure, Ivor Callely, was jailed arising from information released under the Act (Kelly and Gallagher, 2014). He was found to have used forged invoices to claim mobile phone allowances. By the time the Act was up for renewal in 2013, arguably reporters and industry figures were keener to talk up their frustrations with the Act rather than its impact. The lack of sustained effect can be partly blamed on a dearth of imagination in the use of the Act by the media (see Chapter 5). Or perhaps the reluctance among journalists to challenge bad decisions to the final appeals stage – as annual reports from the Information Commissioner show, less than 10 per cent of refusals are appealed, and less than 5 per cent are reviewed by the Information Commissioner (Office of the Information Commissioner, 1999–2014). Initially the uptake was strong and 15 per cent of requests in the first year were from journalists (Office of the Information Commissioner, 1999a). Professor John Horgan, who later became the first Press Ombudsman, wrote in 2001 that the Act’s power had been used with greater enthusiasm than in other jurisdictions to embarrass the government (Horgan, 2001). In terms of perception, the view of FOI that it was a tool to embarrass politicians rather than to understand public decisions worked against the Act and, it is arguable, partly prompted the regressive amendments introduced in 2003 (Department of Public Expenditure and Reform, 2014: 2–18). This amendment had a dramatic impact on the use of the Act by the media and led to an immediate fall off in requests. It would be unfair to blame the media alone for the lack of success. Since its inception, the potential for the Act to empower the media has also been

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thwarted by a determination by key political forces to make it difficult for journalists to exploit it. This push against the press was inadvertently supported by a poorly resourced Office of the Information Commissioner that has not had the resources to cope with demand (O’Reilly, 2006). Later in this chapter specific experiences and case studies will discuss the Information Commissioner’s inability to police the inconsistent application of the Act, or ensure that records are released on timescales that allow them to be considered as part of a public debate rather than as a postscript to it. However, like the generation of 1997, journalists are now living with a new Act that has been billed as the legislation to restore it to its intended role. Another generation of ambitious investigative journalists are similarly emboldened by the successes of investigations conducted by the likes of RTE’s Ken Foxe and theStory.ie’s Gavin Sheridan (see Chapter 7). They pioneered the so-called multi-faceted requests that helped to negate the imposition of fees, until a controversial amendment was tabled in late 2013 that almost halted their progress. The threat to this approach abated with the scrapping of the ‘multi-faceted’ amendment in June 2014 and the restoration of the new legislation to its pre-2003 non-fees status. The prospects for innovation and investigation have been further bolstered by a Code of Practice that has addressed many of the problems raised by journalists in their criticism of the legislation. It has provided fresh impetus to a jaded power.

Impressions of the Act Journalists were quick on the uptake when the 1997 Act came into operation on 21 April 1998, and for some time afterwards they continued to see it as a valuable weapon in their arsenal. Former Information Commissioner Emily O’Reilly, herself a journalist during that period, summarised in 2004 that it had been very useful to the media: ‘The Act has proved itself as an invaluable instrument for scrutiny of public policy from the perspective of people as individuals and as taxpayers’ (Office of the Information Commissioner, 2004). The use of the legislation by journalists and the results that followed have never been fully analysed. Among politicians and public bodies, reporters gained a reputation for craving details on the results of bad practice rather than discovering material that uncovers the processes that give rise to those outcomes (see Chapters 5 and 8). Similarly the frustrations of reporters have also been aired in their quest to find more substantive records. Various reasons for the shortcomings have been offered; chief among these were the changes introduced in 2003. The introduction of fees in the 2003 Amendment Act had a significant impact on the use of FOI by journalists. Prior to the amendment 15 per cent of all requests came from the media. In its immediate aftermath this fell to 6.5 per cent. A report by the Information Commissioner recognised that the media – ‘a

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key element of an open and properly functioning democracy’ – were less likely to use the Act after 2003 (Office of the Information Commissioner, 2014). By and large investigative journalism in Ireland – and FOI use as a consequence – is confined to the national press. Much has been written about the impact of the legislation on the administrative systems of local government in Ireland (see, for example, McDonagh, 2010). Dunion (2010) writes about the creative use by Scottish local newspapers of the Freedom of Information (Scotland) Act. However, the provincial press in Ireland have not been significant users of the legislation. Local newspapers survive on a staple diet of community information, local news and sports, and few seek to upset the status quo. There is no strong tradition of local investigative journalism in Ireland, and few local journalists have used FOI as an investigative tool (Felle, 2012). In public debate, it is arguable that journalists’ relationship with the Act has been framed more by the perceptions of their intentions rather than their motivations or outcomes in its use. There is the impression that journalists simply ‘trawl’ for a story (Department of Finance, 2002). This has frequently allowed the debate to be focused on the burden of entertaining the requirements of a news organisation at the expense of public money. FOI-shy officials have rarely weighed the costs against the benefit of issues that have come to light because of requests that originated from media organisations. A  2014 report by the Department of Public Expenditure and Reform looked at the economic cost of the Act. It was prepared in the context of a desire by the Government to charge individual fees for different aspects of ‘multi-faceted’ requests. The report analysed the time in processing requests and printing costs, but at no point in reviewing the economic cost did it consider the potential economic benefit of a more accountable public service or, in crude terms, the savings that have been made on foot of news stories that emerged from records released under the Act (Department of Public Expenditure and Reform, 2014: 2–18) (for a fuller discussion of the cost–benefit of FOI, see Tom Felle’s discussion in Chapter 9). The same logic that informed the (later abandoned) attempt to extend the fee regime was expressed in 2003 when the then Finance Minister Charlie McCreevy introduced the charges. Both he and the current minister, Brendan Howlin, spoke about a desire to contain and manage the volume of requests. According to McCreevy: ‘I see no reason why the Act should be used to allow wide “trawls” through the records of Government Departments and public bodies in the hope of finding something that might justify a story. If the requester has something specific in mind that he or she wants to find that’s one thing’ (Oireachtas Éireann, 23–27 March 2003). Similarly, in his discussion at the Committee Stage of the 2013 Bill Howlin described fees as a tool to ‘manage demand’ (Oireachtas Éireann, 13 November 2013). In many ways the patterns established in the application of the Freedom of Information Act by journalists have occurred because successive reporters came

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back to the one area where there was unambiguous precedent for its use. In 1999 the Information Commissioner ruled against the Houses of the Oireachtas and ordered the release of politicians’ expenses (Office of the Information Commissioner, 1999b). The Oireachtas had originally refused to release the details of official travel and telephone allowances. However, the Information Commissioner decided that the public interest favoured accountability and outweighed the right to privacy (for details, see Chapter 5). The impact of that decision, more than any other, has influenced the use of the Act by the press in the intervening period. Yet it took ten years for the full import of this decision to bear fruit. This occurred when Ken Foxe, then at the Sunday Tribune, pressed for the release of original expenses documents from the then Ceann Comhairle, John O’Donoghue. To thwart his scoop political journalists were called into a room at the Department of Transport on a Friday evening and given access to boxes of expenses claims, outside of the Act. I was among the journalists who were granted access that day. Foxe lost the run on that story but succeeded in getting the quarry. The receipts showed that costly trips for official functions coincided with prestigious horse racing festivals. O’Donoghue resigned from office within days (Irish Examiner, 2009). Notwithstanding the revelations about the Ceann Comhairle, getting access to this type of information has become a rarity, due in part to the delays in getting appeals finalised at the Information Commissioner’s office (see Chapter 7). Before the Joint Oireachtas Committee on 6 February 2013, the then Information Commissioner Emily O’Reilly shared the frustrations expressed elsewhere by journalists. She accepted that the backlog had an impact for media requesters: I am acutely aware of that and I have said on occasions, both publicly and privately, that information delayed is information denied. I have at times ordered the release of records perhaps to a media person and I know we are not there just to give good stories to journalists but they have an important public interest function as well and I am a former member of that tribe. I am sending out material and I know that this is useless. There is no story in it and we might have expended a great deal of time and energy in doing it. We have been doing our best to improve our own processes. (O’Reilly, 2013)

The FOI Act was not devised as a tool to satisfy the deadlines of media companies or the requirements of a news cycle. It is a law used by journalists, not one created for them. But, as O’Reilly also recognised, the media plays an important role in society and when it uses the Act properly it can be very effective. The timeliness of information impacts on its relevance in a news cycle. In research carried out in 2008, more than 50 per cent of journalists agreed with the statement that appeals to the Information Commissioner take too long (Murray, 2008). Two-thirds said delays in getting records under the Act had impacted

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on their ‘newsworthiness’. One respondent, described as an experienced daily newspaper journalist who used the Act regularly, said the time it took to process appeals at the Information Commissioner was critical. ‘It is unfortunate but the time lag has usually killed the news story by then’ (ibid.). Similar sentiments were expressed at Oireachtas hearings in early 2013 on the then proposed 2012 FOI Bill. The secretary general of the National Union of Journalists, Seamus Dooley, said that the delays in getting results from the Act militated against its use by the media in an increasingly time-sensitive newsroom culture:  ‘While FOI legislation is useful for journalists, it is not designed for them. Rather, it is designed for all citizens. The mechanisms and procedures involved in the appeal systems mean that it is not the most efficient method of securing public information in a 24-hour media environment’ (Houses of the Oireachtas, 2013). Similarly, RTE reporter Ken Foxe, who was responsible for the most impactful FOI story in the Act’s first fifteen years, told the Committee that journalists had adapted their tactics to focus on what they believed would be released rather than necessarily what existed. ‘Journalists who deal with freedom of information a great deal tend to tailor their requests in the sense that they begin to target the State bodies they believe will co-operate with them and from which they are likely to obtain information that is worthwhile’ (ibid.). In the following section, an examination of a number of case studies in the use of the Act by journalists, and the application of exemptions by public bodies, shows that these delays are compounded by the Information Commissioner’s failure to use the potential efficiency of precedent to decide appeals at a very early stage.

The failure of precedent The former Information Commissioner Emily O’Reilly recognised the frustration of many appellants due to the delays in her office. She said that since its establishment in 1998, appeal numbers have exceeded staff capacity. But she said the decisions that were reached had led to major changes in public policy and this helped the situation going forward: ‘My Office’s appeal decisions have, I believe, set important precedents for FOI decision makers generally and have provided guidance and clarity in areas which are inevitably complex and difficult – areas such as confidence, legal privilege, privacy and state security and intelligence’ (O’Reilly, 2013). This may be the case in some areas. Pointing to precedent may be straightforward. Showing evidence that this has had an effect is a different matter. In reality the application of the Act has been blighted by the failure of decisions of the Commissioner’s office to trickle down and bring a consistency to its interpretation and application (see Chapter 7). There are many recurring examples of how this inconsistency emerges. This lack of uniformity

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was pointed out by journalists before the Joint Oireachtas Committee when it investigated the planned new FOI Bill in 2013 (Houses of the Oireachtas, 2013). To illustrate this point, it is best to consider the inconsistent application of a consistent request that has happened in the face of precedent coming from the most authoritative sources. In 2003 Deputy Enda Kenny, the current Taoiseach, submitted an appeal to the Information Commissioner against a decision of the Department of Education. Mr Kenny had sought the release of internal audit reports. The decision-maker felt they should not be released on the grounds that such an action would ‘prejudice the effectiveness of audits or procedures or methods employed for conducting such audits’ (Freedom of Information Act 1997, s  21(1)(a–b)). Crucially, the Information Commissioner did not accept the department’s argument and, moreover, said there was no basis for it. The ruling said audit reports had been released by other departments without harming the process that produced them (Office of the Information Commissioner, 2003). She did not accept the department’s view that there was an ‘expert/client’ (ibid.) relationship between the internal audit unit and the department, and the reports were released. This was not even the first time that the Information Commissioner had considered such an issue. In the context of a broader request a year earlier (Mr X and the Department of Education), a person sought the release of an internal audit report on the activities of an unidentified institute of technology. The Commissioner ruled that internal audit work did fall within the scope of Section 21(1)(a) but that the public interest was still best served by the release of the investigation report (Office of the Information Commissioner, 2002). While the impact of some decisions may not be appreciated, the decision in the Mr X versus the Department of Education case was. On 24 September 2003, the twenty-six members of the interdepartmental working group on the Act met and its chairman, Ronan Fox, drew specific attention to the decision in relation to internal audit reports. He asked for the decision and resulting advice from the Attorney General to be circulated among public bodies (Department of Finance, 2003). The Commissioner’s decision in the Kenny and Mr X (Education) cases were underscored by the Supreme Court in Sheedy v. Information Commissioner [2005]. In the High Court ruling it upheld, Justice Nicholas Kearns raised the bar for public bodies seeking to apply the Section 21 exemption, stating in his judgment that there was an onus on bodies to prove that the release of material would be expected to prejudice the systems of inquiry (ibid.). Further clarity was provided by the Information Commissioner in the later case of The Sunday Times v. the HSE [2010]. Decision-makers were told that before the Section 21 exemption could apply a specific harm in their release had to be identified and assessed.

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In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the decision maker’s expectation is reasonable. (Office of the Information Commissioner, 2010)

Yet, despite the publicity of the 1999 Oireachtas expenses precedent, this message, although stated and restated, did not filter down to all public bodies. This compounds the frustration of having to follow through to the end of the lengthy appeals process in order for the same decision that was reached in 2003 to be restated by the Information Commissioner via an appeal. There is a multitude of recent examples. On 28 April 2014 Cork County Council refused copies of internal audit reports I had requested that had highlighted problems with roads and housing. These were alluded to in the 2009 report of the Local Government Audit Service report on the Council. In this case the internal audit reports were refused under Section 21(1)(a). Following internal review the request was also rejected by the council. This file has been referred to the Information Commissioner and an investigator has been assigned, though at time of writing no decision has yet been reached. Cork City Council was previously criticised by the Local Government Audit Service for failing to properly respond to forty-two reports of its internal audit division. A request I submitted for the release of these reports was refused under Section 21(1). In May 2014 this decision was affirmed by the internal reviewer. The council’s internal reviewer noted that ‘internal audits primarily ascertain and evaluate systems of control and do not necessarily focus on individual transactions. I believe disclosure of potentially systematic weaknesses in the council’s risk management does represent financial or commercial information whose disclosure could reasonably be expected to result in material loss to the council’ (Ryan, 2014a) – this, despite precedents set by both the Information Commissioner and the High Court. This case gives some insight into why the operation of the Act to date has favoured examinations on the results of process rather than details on the processes themselves. According to a schedule of withheld information, the reports dealt with issues from procurement, income streams and the operation of the parking disc distribution network (Ryan, 2014a). The last topic, parking discs, emerged in court as the source of a €1m fraud committed by the private contractor running the system (English, 2010). Even among bodies that would have been directly affected by the Kenny and Mr X (Education) decisions, the precedents those appeals created have been forgotten. In November 2013 the chief operations officer at Dublin City

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University (DCU) was the decision-maker in an application I  submitted. He refused access to its internal audit reports on the grounds that they were exempt under Section 21(1). The position of DCU, echoing the point made by Cork City Council, articulated the precise argument that was dismissed so clearly in the Kenny and Mr X (Education) cases. The work of the internal audit function would be seriously prejudiced if the internal audit reports were made public. It is unlikely that information would be imparted to internal audit by staff in the current frank and open manner if staff felt that the information provided could be used to publicly highlight deficiencies prior to remedial action taking place. (Dublin City University, 2013)

Unlike Cork City Council, which did not consider the public interest in disclosure, DCU’s decision-maker put considerable effort into assessing the public interest arguments, which may have, but ultimately did not, justify the release of material. However, this did not include reflection on the specific precedents in this area. Cork Institute of Technology issued a blanket refusal to all of the work of its internal audit committee and unit because it would prejudice the process following a request for access to documents by me in 2013 (Cork Institute of Technology, 2013). In contrast, and at the same time, IT Tralee released eighteen reports by its internal auditors at the first stage of the request process (Ryan, 2013a). Similarly South Tipperary County Council, unlike the Cork local authorities, granted full access to its reports (Ryan, 2014b). For newsrooms mindful of budgets and time pressures, pursuing each of those cases required an investment of €240 when application fees and appeal fees were factored in, prior to the abolition of up-front fees and the reduction of costs for appeals in the 2014 Act. But, as in the case of the two Cork local authorities, the fact that precedent is already well established does not mean the appeal process can be short-circuited. In both Cork cases they have gone through the Information Commissioner’s triage system and an investigator has been appointed to the file (Ryan, 2014a, c, d). The value of the earlier decisions, in terms of efficiency and timeliness, is lost. Neither is there any punitive sanction under the legislation for failure of a public body to apply exemptions consistently or, one could argue, to wilfully misapply exemptions and hide behind the exclusions provisions in an attempt to prevent potentially embarrassing details from audit reports emerging in the media. The indications are that this fundamental flaw in the operation of the Act will be addressed. The Code of Practice for the 2014 Freedom of Information Act has, for the first time, sought to prescribe for decision-makers a list of information that should be routinely available, including ‘internal audit  … reports and reviews’ (Department of Public Expenditure and Reform, 2014). It also sets out an instruction to publish board minutes, procurement details and

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financial information as a matter of course. Crucially, it puts the onus on bodies to confirm to the minister that they complied with requirements to publish material rather than leave it for requesters to pursue when a record is required. This has the potential, if implemented and policed, to make the process more efficient and effective. It should leave the Information Commissioner free to quickly rule on fresh disputes rather than having to restate precedent in successive appeals. Many of the problems identified by journalists are rooted in this inconsistent approach. Gavin Sheridan, who established theStory.ie website in 2009, has been one of the most prolific users of the Act since its inception (see Chapter 7). His website has spent approximately €4,500 seeking information from public bodies under the Act and pursuing appeals (Houses of the Oireachtas, 2013). He has been in the vanguard of demanding raw data, in the form of spreadsheets, rather than reports and summaries that can be managed by the organisation releasing the material. His approach has focused on the value of the information rather than the value of any subsequent news story, which is a philosophy that has not been replicated by the existing newsrooms. In his experience, the Act has suffered because of the unpredictable nature of decisions and the reasons decision-makers use to withhold documents:  ‘The exemptions are generally applied inconsistently. That goes back to the issue of whether there is adequate training for FOI officers in all departments and agencies covered by the Act’ (Houses of the Oireachtas, 2013). The Information Commissioner has not been an ally of the specific needs of journalists in this area. During the Act’s first fifteen years of operation there was an implicit understanding on what should be released, based primarily on the understood outcomes of publicised cases dealt with by the Information Commissioner. But in requests that departed from the well-worn paths – such as expenses – the outcome was dependent on the knowledge of the parties submitting, receiving and handling the request.

Unsuccessful attempt to tap into precedent With the expressed view of creating a library of decisions, which would be available online, I submitted a request to the Information Commissioner under the Act in 2012 (Ryan, 2012a). The material sought was an electronic record of all decisions made by the Office of the Information Commissioner since its inception. This approach was taken because a small number of decisions received by a group of connected journalists were considered to have value because they dealt with similar themes. However, were it not for the personal relationships between the journalists they would not have known about the others’ experiences. The Information Commissioner refused this request on the grounds that its records were exempt under Section 46(1)(c)(i) of the Act. Ironically the Commissioner

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took the view that it was for the Information Commissioner to decide on which decisions should be published. Decisions are categorised as 1, 2 or 3. Categories 2 and 3 are made available on the website of the Information Commissioner. Other, category 1 decisions are made available at the discretion of the Commissioner. However, there is no provision in the FOI Act which obliges the Commissioner to make all decisions publicly available. (Ibid.)

The FOI Code of Practice has recognised the information deficit created by the discretionary publication approach. It stated that all decisions, regardless of their status, should be available for decision-makers and requesters to provide an ‘important reference point for both parties’ (Department of Public Expenditure and Reform, 2014). This was necessary so that both requesters and FOI officers are aware of recurring issues that may arise in terms of the application of the Act (ibid.).

Inconsistencies with other sources of information As well as an often-erratic interpretation of the Act, there has also been a problem with how its application jars with other sources of freely available information. There are various examples of this. In 2013 the Information Commissioner ruled in the case of Gavin Sheridan versus the Industrial Development Agency (IDA) (Office of the Information Commissioner, 2012) and allowed for the release of material relating to leased properties. The public body had held that the ownership of the properties it leased was commercially sensitive. But Sheridan successfully argued that, notwithstanding the public interest in knowing how the IDA spent its money, land ownership was typically a matter of public record and available from the Land Registry. It was a point accepted by the Information Commissioner, who also found in his favour on the need to encourage transparency by allowing access to such transaction details. In my view, the expectation of a diminution of privacy rights at least in relation to the disclosure of details of commercial transactions with public bodies, is a necessary consequence of entering into such arrangements. Furthermore, I would be concerned as to the implications of accepting that the details at issue should not be released on the basis of the vulnerability of a particular class of citizen, given the potential for abuse of such an arrangement. (Ibid.)

Another example of this occurs when personal information is up for consideration. Personal information, as it is considered under the FOI Act 2014, has a strange definition. It has two layers and one big caveat. On top there

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is a definition that it covers information that is known only to the person and those close to him/her, or that it was gathered by the public body in confidence. But then there is a second layer. This takes in information that relates to: • the educational, medical, psychiatric or psychological history of the individual; • the financial affairs of the individual; • the employment or employment history of the individual; • the criminal history of the individual; • the religion, age, sexual orientation or marital status of the individual; • any number, letter, symbol, word, mark or other thing assigned to the individual by a public body for the purpose of identification or any mark or other thing used for that purpose; • the entitlements of the individual under the Social Welfare Acts; or the purpose of assessing the liability of the individual in respect of a tax or duty or other payment owed or payable to the State or to a local authority, a health board or other public body or for the purpose of collecting an amount due from the individual in respect of such a tax or duty or other payment; • the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual; • the property of the individual (including the nature of the individual’s title to any property); • the opinions of another person about the individual (ibid.). When you get to the end of this list you can begin to agree with the assessment made by the Supreme Court in the Rotunda case (2011): ‘In general, personal information means information about a specific person’ (Rotunda v. the Information Commissioner [2011] IESC 26). The Supreme Court ruling can be considered a setback in accessing information that may be tenuously described as being personal. It does not raise the requirement for what is classed as personal information above the routine facts about who a person is and what they do. In fact it lowers it. The judgment says that even if information is available elsewhere, like the Registry of Births, Marriages and Deaths, it should not trigger an automatic release (ibid.). Long before that ruling, the Information Commissioner, considering a request by Richard Oakley, then of the Sunday Tribune (Office of the Information Commissioner, 1999b), ruled that even if the expenses were financial information that related to a named individual, they could not be classed as ‘personal’

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information because those details were not just known to that person, or his/ her friends and family. What is and what is not personal information is a constant headache for journalists in using the FOI Act. It can be used as a blanket clause to redact large swathes of interaction with State agencies. Similarly, in the case of commercially sensitive information there are constant conflicts between what may be thought to be accepted practice and some of the decisions that come back. In 2012 a request I submitted to the Irish Greyhound Board (IGB) for the release of the expenses of its chairman was denied because it was deemed to be commercially sensitive to him, not the company (Irish Greyhound Board, 2012). That is despite the fact that the expenses information for the chairman’s predecessor were already released by the Department of Agriculture (Ryan, 2012b). Furthermore, the board of the IGB had explicitly resolved two years earlier to report on expenses by members of the board to reflect its obligations under the Act (Ryan, 2013b). The frustration in this type of case is compounded by the fact that the request was submitted in the summer of 2012 and was not responded to. An internal review was sought on the grounds of a deemed refusal. A  decision was then made, which was appealed to the Information Commissioner, but it took until 30 September 2013 before the information was released following the intervention of the Commissioner (Irish Greyhound Board, 2013a). At that stage the board considered it unfair to release the expenses of only one individual, the chairman. It decided to approve the publication of other directors’ expenses and those of their predecessors, which were substantially higher (Irish Greyhound Board, 2013b). The actions of the IGB in this case were symptomatic of its inability to generally adhere to the requirements of the Act. It was the subject of two Section 37 notices issued by the Information Commissioner in 2013 for its failure to produce documents, out of a total of eleven notices made by the Commissioner that year (Office of the Information Commissioner, 2014). However, a request to investigate the conduct of the organisation under Section 36 of the Act – a provision to investigate the procedures adopted by public bodies to implement the Act – was turned down by the Commissioner’s office because it said it had to channel its limited resources elsewhere (Ryan, 2014e). Counterproductively, this meant that more appeals related to the IGB were submitted to the Information Commissioner, thus adding to its workload. This case provides further evidence that the full value of the Act was not just in the result – the headline expenses – but also in being able to probe the context to it. Building on success of Foxe in the O’Donoghue case, I sent a request to the IGB for the release of the original expenses claim sheets. These revealed the amounts along with the dates, locations and meetings that were claimed for (Irish Greyhound Board, 2013a). It brought into the public domain previously

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unknown matters, including the fact that agriculture ministers and their officials had held more than a dozen unrecorded meetings with the IGB chairman during a period in which it was embroiled in controversy (Ryan, 2013c). In another case, I asked for details under FOI of a legal dispute involving the Department of Transport and Cork County Council. The two State bodies had been arguing for ten years over the legal bill for defending a case taken by a woman who lost her husband and daughter in a ferry tragedy (Ryan, 2013d). The decision-maker in this case was helpful and very efficient. She made redactions to the documents, principally to remove the name of the woman who took the case and those of the claimants in associated actions following third-party consultation, but released the file (Ryan, 2012c). When she put this to me as the requester, I did not object and I did not appeal. She considered it personal information. On the basis of the wording of the law, past decisions of the Office of the Information Commissioner and the Supreme Court, it was. Importantly, when contacted, the person involved did not consent to disclosure. This is where the decision-maker needs inconvertible guidance on what to do. I believe the redactions were carried out with the best of intentions. But on a public policy level there is a blatant contradiction in the records that came back. The papers redacted the name of the person but still contained the High Court and Circuit Court reference numbers. A simple online search told me a lot more about the plaintiff than was contained in the redacted sections. This is because details of court judgments were available, and the case was held in public and reported in the media – under Article 34 of the Constitution, justice ‘shall be administered in public’ (Bunreacht na hÉireann, Article 34). The FOI Act had effectively overridden that by denying access to the names. It would have been ridiculous to redact the court reference numbers because the case had been widely reported on at the time. Moreover, the specific case was already referenced in my initial application. Likewise, in November 2012 the Department of Education responded to an updated request I submitted on an long-running issue of controversy, which is the subject of an investigation by the Comptroller and Auditor General. This was for correspondence and briefing material on an ongoing issue of money lost at a Youthreach centre in north Cork (Ryan, 2012d). The department released some documents but it made several redactions under Section 28(1) of the Freedom of Information Act, citing personal information. One of the documents redacted was a letter from the former secretary general of the department to the Public Accounts Committee. The reason cited was: ‘As the records you seek do not relate to you personally and would be considered personal in nature to another individual, I have decided to refuse access to certain documents under the Freedom of Information Act’ (ibid.). However, in 2012 the exact same letter was published openly on the Public Accounts Committee website along with all other departmental correspondence (McManus, 2012).

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In defamation terms it became a privileged document because it was now a matter of public record, discussed by a Dáil committee. But the personal information contained in it was deemed to be too sensitive for release under the FOI Act. The person involved was not named in the letter but his position was, so was clearly identifiable. Early in 2012 that letter was reported on in full by the Irish Examiner and the person was named (Ryan, 2012e). The effect of this report is interesting in this case because the fact that the Irish Examiner named him became a source of complaint to the Press Ombudsman (Press Ombudsman, 2012). The paper argued in its response, which I was party to, that not naming the person would have implicated other people, which was felt to be unfair and exposed the paper to unacceptable legal risk. The Press Ombudsman and the Press Council both reviewed this decision and the complaint against the newspaper was not upheld, with the Press Ombudsman’s ruling stating:  ‘The publication of his name in this context, while obviously unwelcome … did not breach this Principle’ (ibid.). These different interpretations on what is personal information and what is public information about a person have blighted the Act and allowed uncooperative decision-makers to deny access to material that should be accessible.

Conclusion Initially the FOI Act was embraced by a new, emboldened generation of journalists fresh from high-profile successes in holding public figures to account. But in 2003 the amendments introduced by Finance Minister Charlie McCreevy gutted the ideals of the legislation in a way that affected journalists directly, and the volume of requests from the media dropped as a consequence. With that the scope to build on the hit-and-miss experiences of the first five years of requests decreased. The early enthusiasm and innovation gave way to a tendency among newsrooms to ask for information that would deliver a story rather than dig into the unknown workings of the public service. This regression was in part due to the introduction of fees. But another creeping problem has been the constant inconsistency in the interpretation of the Act and the inability of the Office of the Information Commissioner to make speedy decisions on questions with established precedent. The Information Commissioner has also been unable to hold poorly performing bodies to account in a way that reflects its own expressed opinion that ‘information delayed is information denied’. A succession of high-profile, high-impact investigations in 2009 and 2010 provided new impetus for Irish journalists embracing the Act. These were supported by campaigning work from online innovators. This generation has, until now, been left with the same frustrations with the implementation of the Act as before. But, following a coordinated and successful lobbying campaign

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in late 2013 and early 2014, they have been rewarded with a new Freedom of Information Act and a Code of Practice that has the potential to ensure the promise of the Act is at last fulfilled.

References Arnold, Bruce (2006) Haughey:  His Life and Unlucky Deeds, 2nd edn. London: HarperCollins Clifford, Michael and Coleman, Shane (2011) Scandal Nation. Dublin: Hachette Books Ireland Cork Institute of Technology (2013) ‘Decision letter 4 September 2013 to Mr Conor Ryan’. Personal correspondence Department of Finance (2002) High Level Review Group on the Freedom of Information Act 1997, Report to the Government. Dublin: FOI Central Policy Group, Department of Finance Department of Finance (2003) ‘Minutes of interdepartmental committee 24 September, 2003’. Internal correspondence, Department of Finance FOI Central Policy Unit Department of Public Expenditure and Reform (2014) Draft Code of Practice for Freedom of Information for Public Bodies. Dublin:  Central Policy Unit, Department of Public Expenditure and Reform Dublin City University (2013) ‘Decision letter Mr Conor Ryan, 4 November’. Personal correspondence Dunion, Kevin (2010) ‘Freedom of Information in Scotland and the UK: Time to notice the difference’ in R. A. Chapman and M. Hunt (eds) Freedom of Information: Local Government and Accountability. Aldershot: Ashgate Dunphy, Eamon (2013) The Rocky Road. Dublin: Penguin English, Eoin (2010) ‘Council takes court action on suspected bin tag fraud’ Irish Examiner, 7 January Felle, Tom (2012) ‘Irish local newspapers post the Celtic Tiger’ in John Mair, Neil Fowler and Ian Reeves (eds) What Do We Mean by Local? Grassroots Journalism – Its Death and Rebirth. Bury St Edmunds: Abramis Finlay, Fergus (1998) Snakes and Ladders. Dublin: New Island Books Foley, Michael (1997) ‘Openness to replace public service secrecy under new information law’ The Irish Times, 12 April Horgan, John (2001) Irish Media: A Critical History since 1922. London: Routledge Houses of the Oireachtas (2013) Report on Hearings into the Draft General Scheme Freedom of Information Bill 2012, Joint Committee on Finance Public  Expenditure and Reform, 26 June, available at www.oireachtas.ie/ parliament/­m edia/committees/finance/[Final]-Report-on-FoI-Bill.pdf (accessed 10 August 2014)

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Irish Examiner (2009) ‘Editorial: O’Donoghue resigns, Information Act must be strengthened’ Irish Examiner, 8 September Irish Greyhound Board (2012) FOI decision letter, 20 September. Personal correspondence of author delivered via email Irish Greyhound Board (2013a) FOI decision letter to Conor Ryan, 30 September. Personal correspondence Irish Greyhound Board (2013b) Press statement. Via email, 21 October Keena, Colm (2003) The Ansbacher Conspiracy. Dublin: Gill and MacMillan Kelly, Fiach and Gallagher, Conor (2014) ‘Callely sentenced to five months in prison’ The Irish Times, 28 July McDonagh, Maeve (2010) ‘The impact of freedom of information on Irish local government’ in Richard A. Chapman and Michael Hunt (eds) Freedom of Information: Local Government and Accountability. Aldershot: Ashgate McManus, Bridget (2012) Letter to Public Accounts Committee from Bridget McManus, Secretary General, Department of Education and Skills, 16 January. Internal correspondence Market Research Bureau of Ireland [MRBI] (1987) Eire Inniu, an MRBI Perspective on Irish Society Today. Dublin: Market Research Bureau of Ireland Meaney, Phil (2013) Statement as chairman of the Irish Greyhound Board. Via email, 1 November Moore, Chris (1994) ‘Suffer little children’ Counterpoint (UTV), first broadcast 14 October Murray, Niall (2008) ‘The truth is out there: Is it being found? An examination of the use of the Freedom of Information law by Irish journalists’. Unpublished thesis, Dublin Institute of Technology Office of the Information Commissioner (1999a) Annual Report of the Information Commissioner, 1998. Dublin:  Government Publications Stationery Office Office of the Information Commissioner (1999b) ‘Mr Richard Oakley and the Office of the Houses of the Oireachtas’ [99/168], 27 July Office of the Information Commissioner (1999–2014) Annual Reports of the Information Commissioner 1998–2013. Dublin:  Government Publications Stationery Office Office of the Information Commissioner (2002) ‘Mr X and the Department of Education’ [02/0240], 19 August Office of the Information Commissioner (2003) ‘Mr Enda Kenny versus the Department of Education’ [03/0693], 25 May Office of the Information Commissioner (2004) Review of the Operation of the Freedom of Information (Amendment) Act 2003. Dublin:  Government Publications Stationery Office Office of the Information Commissioner (2010) ‘The Sunday Times, Dublin and the Health Service Executive’ [09/0191], 12 March 2010

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Office of the Information Commissioner (2012) ‘Gavin Sheridan and the Industrial Development Agency’ [11/0092], 11 December Office of the Information Commissioner (2014) Annual Report of the Information Commissioner, 2013. Dublin: Government Publications Stationery Office Oireachtas Éireann (2003) Dáil Debates, Vol. 563/847–863, 23–27 March 2003. Dublin: Government Publications Stationery Office Oireachtas Éireann (2013) ‘Dáil Debates:  Freedom of Information Bill 2013, Committee Stage’, Select Committee on Public Expenditure and Reform, 13 November O’Keeffe, Susan (1991) ‘Money for Nothing’ World in Action (ITV), first broadcast 13 May O’Reilly, Emily (2006) Speech at the launch of the Diploma in Management of Modern Public Service Delivery, delivered to the Institute of Public Administration, 20 June O’Reilly, Emily (2013) ‘Address to Oireachtas Select Committee on Public Expenditure  and Reform’, 5 June, available at www.oireachtas.ie/parliament/ media/­committees/finance/Opening-Statement--Information-Commissioner5-June-2103.docx (accessed 10 August 2014) Press Ombudsman (2012) ‘Statement of The Press Ombudsman in “Bev Cotton and the Irish Examiner” ’ Irish Examiner, 17 August Reynolds, Albert (2009) My Autobiography. Dublin: Transworld Ireland Ryan, Conor (2012a) Office of the Information Commissioner, FOI [2012/007] decision letter, 20 December. Personal correspondence. Ryan, Conor (2012b) Department of Agriculture, Food and the Marine, FOI [12/088] decision letter, 12 June. Personal correspondence Ryan, Conor (2012c) Department of Transport Tourism and Sport, FOI [2012/0070] decision letter, 20 November. Personal correspondence Ryan, Conor (2012d) Department of Education FOI [2012/348] decision letter, 19 November. Personal correspondence Ryan, Conor (2012e) ‘A lesson in inefficiency’ Irish Examiner, 6 February Ryan, Conor (2013a) Institute of Technology Tralee, FOI decision letter, 4 September. Personal correspondence Ryan, Conor (2013b) ‘Greyhound board directors claim €91k expenses’ Irish Examiner, 2 November, available at www.irishexaminer.com/ireland/ greyhound-board-directors-claim-91k-expenses-248297.html (accessed 19 March 2015) Ryan, Conor (2013c) ‘No records made at ministers’ meetings with greyhound chief ’ Irish Examiner, 18 November Ryan, Conor (2013d) ‘Court battles over sinking of unlicenced ferry’ Irish Examiner, 4 February Ryan, Conor (2014a) Cork City Council, FOI 11/14 decision letter, 14 June. Personal correspondence

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Ryan, Conor (2014b) ‘The privacy of public money: How councils keep costly errors secret’ Irish Examiner, 22 May. Available at:  www.irishexaminer. com/viewpoints/analysis/the-privacy-of-public-money--how-councilskeep-costly-errors-secret-269433.html (accessed 19 March 2015) Ryan, Conor (2014c) Cork County Council, FOI 14/015 decision letter, 28 April. Personal correspondence Ryan, Conor (2014d) Cork County Council, FOI 14/015 internal review decision letter, 9 June. Personal correspondence Ryan, Conor (2014e) Email correspondence with Office of the Information Commissioner, 25 March. Personal correspondence Ryan, Conor (2014f) Irish Greyhound Board, FOI decision letter delivered by email, 30 September Smyth, Sam (1997) Thanks a Million Big Fella. Dublin: Blackwater Press Supreme Court (2005) ‘Sheedy vs the Information Commissioner’ 21.R.272[2005] Supreme Court (2011) ‘Rotunda vs the Information Commissioner’ IESC/26[2011]

7 A glass half-full or half-empty? Citizens’ experiences with FOI Tom Felle and Gavin Sheridan

Introduction Ireland’s first Freedom of Information (FOI) Act lays down explicitly that ‘every person has a right to, and shall on request therefore, be offered access to any record held by a public body and the right so conferred is referred to in this Act as a right of access’ (Freedom of Information Act 1997, s 6). The long title of the original Act describes the legislation as ‘An Act to enable members of the public to obtain access, to the greatest extent possible and consistent with the public interest and the right to privacy, to information in the possession of public bodies, and to have personal information relating to them in the possession of public bodies corrected’. The legislation, therefore, has always been explicitly designed for the benefit of all. It is noteworthy, too, that the right of access to personal information, and to have that information corrected, is explicitly mentioned in the long title of the Act (Freedom of Information Act 1997). Similar sentiments are expressed in the 2014 Act. In addition, the 2014 legislation includes specific provisions that public bodies must have regard to when considering a request under the Act, including the need to achieve greater openness and to ‘promote the principle of transparency’ (Freedom of Information Act 2014, 11(3)(a)); the need to strengthen accountability and improve the quality of decision-making (11(3)(b)); and the need to ‘inform scrutiny, discussion, comment and review by the public of the activities of public bodies’ (11(3)(c)). Any person (there is no distinction between a requester and a ‘citizen’) is entitled to make a request to a civil or public service body, requesting access to documents held by that body. In the case of personal information, that person is entitled to view all documents held (or receive a copy), and have information that is incorrect changed on request. That ‘right’ of access to personal records

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in dealt with in Section 6 of the original Act, and Section 11 of the 2014 legislation. This right to access information is not confined to personal records, but extends to all records held by a public body, with some exemptions. Records held by public bodies before the introduction of the legislation are only releasable in certain circumstances; however, Section 6(5)(b) (11(5)(b) of the 2014 Act) gives a right of access to personal records no matter when they were created. That same section places a duty on public bodies to assist persons to get access to documents, and a duty to assist persons with a disability to use the Act (though this ‘duty’ is not detailed explicitly). Section 17 of the 1997 legislation grants the right to any person to have information concerning them that is held by a public body changed or deleted if it is misleading, incomplete or incorrect. The section specifics that a person may request in writing for such information to be altered so as to make it ‘complete, correct or not misleading’ (17(1) (i)); to add a statement to the record to specify that the information held by the public body is incomplete, incorrect or misleading (17(1)(ii); or to request that the information be deleted (17(1)(iii)). Identical provisions are included in the 2014 Act (Section 9). The 2003 Amendment Act made significant changes to the legislation, rowing back access to Cabinet documents and introducing fees for requests. However, no changes were made that impacted on requests to personal information, and no charges were introduced for appeals or reviews to the Information Commissioner for personal requests.

Making a request under FOI Details of how to make a request under the legislation are provided under Section 11 of the 2014 Act (originally Section 7 of the 1997 Act). To make a request, a requester must put that request in writing and state that they are making a request under the FOI Act. They should give enough information to the public body so as to make it clear what it is they are requesting, and specify the preferred form of access (i.e. photocopies or to inspect records in person). Initially public bodies only accepted requests via post, but with the advent of electronic communication in the early 2000s, public bodies began accepting requests via email, though there is no explicit definition in the legislation as to how requests should be made, except that the request must be in writing (Freedom of Information Act 2014, s 12(1)). A requester is entitled under the legislation to receive a response to their request within four weeks – though the legislation does allow for exceptions in certain circumstances – either granting access to the documents requested, or else giving grounds for refusal (13(1) (a–d)). Decision-makers are also required to detail the cost of access to documents – for photocopying or search and retrieval charges, in cases where such charges are levied; however, FOI decision-makers may exercise their discretion over whether or not to charge on a number of grounds (13(2)(c)). A requester is

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entitled to appeal refused access (21(2)), and if dissatisfied with the outcome of the appeal, request a review by the Information Commissioner (22(2)). A range of exemptions are included in the 1997 Act (Sections 19–32), but these largely had no impact on requests for personal information, except Section 28 which provided for explicit exemptions on the release of personal information to third parties. Similar exemptions are included in the 2014 legislation (Sections 28–41), with personal information covered by Section 37. Consent can be granted in writing to a third party to access personal information by the person to whom the information relates (37(2)(b)); for statistical purposes (37(2)(c)); in cases where a person was informed before giving a public body personal information that the information may be disclosed (37(2)(d)); or to prevent serious or imminent danger to the health or life or an individual (37(2)(e)). Provision is also made under this section for the non-disclosure of information where, in the opinion of a decision-maker, release might be prejudicial to the requester’s physical or mental health (37(3)). This is limited to medical and psychiatric records and social work reports. Section 37(8) also grants access to personal records to family members of deceased persons, and to the parents and guardians of minors. There was no provision under the original legislation for access to documents on behalf of other family members, such as a parent or grandparent, or a sibling, though provision for certain classes of person – including family members with special needs or physical disabilities, and the next of kin of a deceased person (or the administrator of their estate)  – was made via a Statutory Instrument (SI 1999/47), though this has caused difficulty (see later in this chapter). A number of other ‘harm’ tests are included, which may be used to refuse access to records, but by and large the provisions for access to personal information are overwhelmingly in favour of release.

The Information Commissioner: citizens’ champion? It is notable that the very first review completed by the Information Commissioner concerned access to personal information. The decision concerned Mr AAY and the then Department of Social, Community and Family Affairs. Mr AAY was an applicant who requested access to a letter from an anonymous informant that alleged he was working while in receipt of a social welfare benefit. The department investigated the allegation but ruled it was unfounded. The requester had asked for a copy of the letter under the FOI Act. The department refused, arguing that release might in future discourage others from reporting wrongdoing, and that handwriting might identify the anonymous informant. The Information Commissioner ruled that the public interest in the department being able to detect and eliminate abuse of the social welfare system outweighed the right of the requester to access. It was an important decision, for the first time testing

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access and privacy provisions within the legislation (Office of the Information Commissioner, 1999). Another early decision concerned an employee of the Revenue Commissioners, who sought access to his personnel file, including previous job evaluation reports that might form the basis of decisions on future promotions, but was refused. The Information Commissioner ruled the requester had a right of access to his file (Office of the Information Commissioner, 1998a). A similar case concerned a retired Army Lt Colonel who sought access to his personnel file including performance appraisals, which were given in confidence. The Information Commissioner again ruled the retired officer was entitled to access to his file (Office of the Information Commissioner, 1998b). A further early decision by the Information Commissioner concerned a requester who had failed a job interview for a post of clerical officer in the Civil Service. The requester asked for copies of the interview notes taken by the board, but the Civil Service and Local Appointments Commissioners refused on the grounds that the interview board had a reasonable expectation of confidentiality when conducting their work, and would be unlikely to serve in future if their notes were to be made available to candidates. The Information Commissioner ruled that the requester had the right to see the notes (Office of the Information Commissioner, 1998c). There were quite a number of such requests, and rulings by the Information Commissioner, in the first years of operation of the legislation. While these are important decisions, many decisions to grant access to documents were made on first receipt by public bodies receiving the requests. A large number of requests for access to personal social welfare files were made by requesters to the Department of Social Protection, and were granted in full. Similarly, farmers who requested access to files held by the Department of Agriculture were granted without need for appeal (Felle, 2015). Following some early Information Commissioner rulings, access to personnel files requested by serving civil and public servants, as well as to notes from interviews and promotions, were also routinely released. In many cases these files included the reason for refusal of a social welfare benefit or a grant, or reasons for failure to be appointed or promoted in the case of job interviews and promotion rounds. This was information that requesters may not otherwise have been able to get prior to the introduction of the legislation. In cases where information was incorrect, requesters were entitled to have it changed or deleted. This, arguably, brought about a major transformation in relations between the State and ordinary citizens. The importance of the Information Commissioner’s office in this regard is notable. A number of early rulings by the first Commissioner, Kevin Murphy, in which requesters were given access to personal records following appeals to his Office, established a standard to be expected by citizens early on and, arguably, had a significant influence on changing the culture from ‘official secrecy’ to one

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of openness and transparency with regard to the right to access personal information, and to the relationship betwen the citizen and the State. As previously noted, not all rulings were in favour of requesters, but the fact that an independent Office had the power to overrule departments of state – and other public bodies – to order the release of documents was in itself significant, given the deeply ingrained secrecy in Irish bureaucracy (see Adshead, Chapter 2). This, as FitzGerald (see Chapter 8) has noted, was heavily influenced by the Australian model, which provides for an independent arbritator for ordinary citizens. While transparency in decision-making by public bodies was an obvious consequence, anecdotally at least it is arguable that the legislation also had a consequence of improving decision-making by the public bodies’ staff. One of the aims of the original legislation (see O’Connor, Chapter 1, and FitzGerald, Chapter 8) was that the Act would lead to better decision-making. Indeed this is explicitly expressed in the 2014 Act. Decisions to award, refuse or withdraw a social welfare benefit or agricultural grant should be made on a consistent basis, and in accordance with rules. It is arguable that the introduction of the legislation has helped ensure consistency in the decision-making process as a result of the likelihood that the reasons for a decision are now available to the person it affects. Likewise, decisions on employment or promotion in the public service, for example, should be based on merit and not biased by personal feelings towards one candidate over another. The FOI Act has contributed to more transparency in this system by giving access to personnel files and to interview notes. The spirit of the legislation has also filtered through government departments and other public bodies, with the result that many requests for access to information are now routinely processed outside of FOI (see Carroll, Chapter 8). Interview notes for public service jobs are now routinely released on request to interviewees without recourse to FOI requests, as are hospital records and personnel files. Access to Leaving Certificate and university exam scripts are automatically granted to those who sat the exams (Felle, 2015). That culture of openness and transparency can be seen, for example, in the routine release of hospital and nursing home inspection reports by the Health Information and Quality Authority (HIQA).1 It is arguable that this transparent approach ensures public confidence in the system, and is explicitly referred to in the 2014 legislation (Section 11(3)(a–c)).

Citizens’ use of FOI Collated figures from annual reports of the Information Commissioner show that in its first fifteen years of operation, almost 140,000 of the more than 200,000 requests under the Act have been for access to personal records. Some 75 per cent of all requests under the Act have either been granted in full, or part granted (Office of the Information Commissioner, 1999–2014). As Table  7.1

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A glass half-full or half-empty Table 7.1  FOI requests to all public bodies – personal records Number

Percentage

Personal

139,642

66

Non-personal

 69,561

33

Mixed

 2,701

 1

Total

211,159

Number of FOI requests

Source: Office of the Information Commissioner, 2000–2013

60,000 50,000 40,000 30,000 20,000 10,000 0 HSE

Civil Voluntary service hospitals departments

Local authorities

Other bodies

Thirdlevel institutions

Personal

56,628

42,997

26,250

6,351

3,369

2,932

Non-personal

6,890

30,877

3,794

18,191

6,189

3,577

207

682

297

557

770

170

Mixed

Figure 7.1  FOI requests by public body, 2000–2013a Source: Office of the Information Commissioner, 2000–2013 a Full details for years 1998 and 1999 were not collated, so are not available.

demonstrates, almost two-thirds of all requests made under FOI were for access to personal records under the Act. Documents relating to the health information of individuals has been most requested under the legislation (see Figures 7.1 and 7.2). Civil service departments have received the most requests under FOI, with the departments of Health, Social Protection and Education topping the list; however, the Health Service Executive (HSE) has had the most requests for personal information under FOI (56,628) – almost 89 per cent of all requests received. Voluntary hospitals have also received a significant volume of requests for personal records. As noted previously, 75 per cent of all requests made under the Act are either granted in full or in part. This, by any measure, is a significant number. Some 25,292 requests were refused between 2001 and 2013, and just under one in ten

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Percentage

Tom Felle and Gavin Sheridan 100.00 90.00 80.00 70.00 60.00 50.00 40.00 30.00 20.00 10.00 0.00 Civil Third service level departments institutions

Voluntary hospitals

HSE

Personal

86.60

88.86

57.64

Non-personal

12.52

10.81

41.39

Mixed

0.98

0.32

0.91

Other bodies

Local authorities

43.90

32.62

25.30

53.56

59.92

72.48

2.55

7.46

2.22

Figure  7.2  Percentage of personal, non-personal and mixed request by public body, 2000–2013a Source: Office of the Information Commissioner, 2000–2013 a Details for years 1998 and 1999 are not available.

requests has been withdrawn. It is reasonable to posit that a number of requesters who withdrew their requests did so because they received the information they sought outside the terms of FOI. Clients of public bodies have made at least 40 per cent of all requests lodged since the Act was first introduced in 1998. The number is likely higher, however, since this category was not counted separately until 2004. There was a noticeable decline in requests from the ‘other’ category from 2004 onward (previously it had included clients of public bodies); however, the number of requests from clients has increased steadily. These requests are almost entirely for access to personal records. Staff of public bodies made up 5 per cent of all requests, seeking access to personal information. There was a noticeable decline in requests from staff of public bodies from 2004 onward (following the introduction of the 2003 Amendment Act). Given, however, that access to personal records remained free, this cannot account for the decline. It is more likely that cultural change towards a policy of openness has meant that access to personal records is now routinely available on request, so recourse to FOI is no longer required. Tables 7.2 and 7.3 include details of grants and refusals, as well as the main categories of requesters. The Information Commissioner received some 5,214 appeals in its first fifteen years of operation. This represents less than 5 per cent of the total number of requests. Almost two-thirds of all FOI requests made between 2000 and

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A glass half-full or half-empty Table 7.2  FOI requests submitted to all public bodies, 2001–2013a Number

Percentage

Granted

105,048

54

Part-granted

 40,895

21

Refused

 25,292

13

Transferred

 3,186

 2

Withdrawn

 18,226

10

Source: Office of the Information Commissioner, 2001–2013 a   Not all FOI requests are included as statistics for years 1998–2000 are not available.

2013 were for personal records. However, just less than half of all appeals to the Information Commissioner’s office concerned access to personal records. This would suggest that access to personal records is granted more frequently, and is less contentious, than accessing non-personal documents. Given the limited grounds for refusal of access to personal records, and the considerable exclusions for non-personal records, this would seem reasonable. In almost two out of five cases, the Commissioner has affirmed the decision of the public body. Just 3 per cent of decisions were annulled, with decisions on a further 9 per cent varied. A settlement was reached in one in six cases, though details of settlements are not published. Almost three in ten cases lodged with the Commissioner’s office were withdrawn. Appeals to the Information Commissioner’s office peaked in 2003, with 728 appeals, dropping significantly since then, to a low of 200 in 2012 and 258 in 2013. The 2003 Amendment Act introduced a €150 fee for seeking a review by the Information Commissioner of a decision by a public body to refuse access to records, so it reasonable to suggest the reduction was as a result of this charge (see Tables 7.4 and 7.5).

Examining citizen use of FOI In the following sections we outline citizens’ use of FOI for personal and non-personal requests. In the case of personal requests, sampling members of the public who may have used the FOI Act to make a personal request, a number of difficulties arise. First, while statistics from reports of the Information Commissioner between 1998 and 2013 suggest the number of personal requests made under the Act to be approximately 140,000 (Office of the Information Commissioner, 1999–2014), there is no way of knowing if that means 140,000 people have made such requests, or if a lower number than that have made multiple requests. Second, getting access to lists and collating them in order to eliminate multiple requesters would be logistically extremely difficult and well outside the scope

newgenrtpdf

Table 7.3  Source of requests to public bodies, 2000–2013a Journalists

Business

Oireachtas

Staff

Clients

Others

Year total

1998 1999 2000

2,548

1,286

187

1,035

2001

3,123

1,271

201

2002

2,103

1,839

148

2003

2,346

1,736

2004

870

2005 2006 2007

8,649

 13,705

1,021

9,812

 15,428

1,178

11,928

 17,196

366

937

13,058

 18,443

964

110

927

5,769

3,957

 12,597

962

817

129

707

6,048

5,952

 14,616

1,187

848

115

546

6,268

2,840

 11,804

885

653

73

550

6,446

2,097

 10,704

2008

1,848

724

157

607

7,217

2,119

 12,672

2009

2,163

791

110

438

8,358

2,430

 14,290

2010

2,156

950

144

618

8,687

2,694

 15,249

2011

1,737

903

52

356

10,876

2,593

 16,517

2012

2,399

941

129

463

13,104

1,937

 18,973

2013

1,843

786

54

569

13,822

1,911

 18,985

Total

26,170

14,509

1,975

9,952

86,595

71,977

211,178

12

7

1

5

41

 34

Percentage

Source: Office of the Information Commissioner, 2000–2013 a  Statistics are not available for years 1998 and 1999. ‘Clients’ of public bodies, the main source of personal requests, were not recorded separately from ‘other’ requests until 2004, so the figure for ‘clients’ is somewhat lower than might be expected. As a corollary the figure for ‘other’ is higher than might be expected.

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A glass half-full or half-empty Table 7.4  Appeals to the Information Commissioner – personal records Number

Percentage

Personal

2,665

49

Non-personal

2,154

40

619

11

Mixed

Source: Office of the Information Commissioner, 2000–2013

Table 7.5  Decisions of the Information Commissioner Number

Percentage

Affirmed

1,988

38

Annulled

166

3

Varied

470

9

Discontinued

206

4

Settlement

836

16

Withdrawn

1,457

28

91

2

Invalid Total

5,214

Source: Office of the Information Commissioner, 2000–2013

of this request, as well as potentially impossible because of privacy legislation. Third, unlike other groups that may have membership or loose associations, no such groups or loose association exists that could be sampled in this case. Given the aforementioned restrictions, a hybrid method of snowball sampling was deployed in an effort to reach potential respondents who have used the Act to seek access to personal records. Social media was deployed to identify potential participants, with a request published via Twitter for people who had used the FOI Act to make a personal request to get in touch (Felle, 2014). The initial tweet was published on 23 February 2014 and was re-published on 24 February 2014. It was re-tweeted 36 times. A total of 41 potential respondents were then identified and formally asked to participate in the study. Of that number, 13 withdrew or did not respond, and 28 participated in interviews. Answers to questions were coded and key themes identified. Findings are outlined below. The limitations of snowball sampling are well documented (see, for example, Becker, 1963; McCarville, 2002; Salganik and Heckathorn, 2003: 6). A  key weakness in deploying this method is that the sample is very unlikely to be representative. It is therefore impossible to make definitive conclusions,

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though general tentative conclusions can be drawn, which can lead to the formation of hypotheses for further research (Burnham et al., 2008: 107–108). Twitter was chosen because it is a mass communication tool, and allowed quick and easy access to a large pool of people, some of whom may be potential respondents. This was seen as advantageous. The disadvantage of using social media such as Twitter is that the potential base of respondents to any research is largely limited to those who are engaged on social media. It is also impossible to be accurate as to the number of people who may have become aware of the research as a result of this use of social media due to a number of factors, including the number of people who were actively engaged on Twitter on the days in question; the number of those who read the initial and re-published tweets; the number of ‘re-tweets’; where the initial tweets were re-published; and so on. This research is therefore biased towards a likely technologically literate population, and potentially excludes those who may not have access to, or may not be familiar with, technology. Typically this cohort may include older people and those from lower socioeconomic backgrounds. In the case of non-personal FOI requests, we looked to the experiences of Gavin Sheridan, Innovation Director at Storyful.com and a specialist in data journalism, open data work in Ireland and the uses of data-mining non-personal FOI requests for public information purposes. He gives a personal view of his experiences using non-personal FOI requests and points to some of the shortcomings of the system.

Personal FOI requests The largest block of users of the FOI Act in Ireland has been ordinary requesters seeking access to personal information. As previously noted, more than 200,000 requests were made under FOI in the first fifteen years of the Act, and some 140,000 of these were for access to personal records (Office of the Information Commissioner, 1999–2014). FitzGerald (see Chapter 8) notes that the legislation has led to a significant flow of information to private citizens and the public at large. While it is impossible to be definitive as to the percentage of the population that has used the FOI Act – given there may be multiple and frequent users among that number – the figure suggests that the legislation has not been used significantly by ordinary members of the public. Research on the use of the legislation by personal requesters in the United Kingdom and India shows that personal requesters were among the highest users of the legislation, followed by journalists, though the number of citizens using the Act for personal reasons remained small as a percentage of the population, and the public at largely remained largely unaware of the legislation (Hazell and Worthy, 2010:  356; Roberts, 2010: 925). Scotland has had better rates of public understanding of

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A glass half-full or half-empty Table 7.6  Knowledge of FOI and advice received (percentage) None

Poor

Knowledge of FOI prior to making request

39

50

Awareness of right to make a request for information under FOI

29

Level of assistance received from FOI officer in making request

3.5

Some

Good

Excellent

3.5

3.5

3.5

46.5

10.5

10.5

3.5

10.5

32.5

46.5

7

FOI – one reason for Scotland’s success was a series of television ads promoting the legislation early on in the life of FOI (Scotland) Act (Shepherd et al., 2009). Understanding and awareness of FOI Despite these positive figures, results from research show a deep mistrust of public bodies by requesters, and little understanding of or familiarity with rights to see personal files held by public bodies. Some 89 per cent of respondents said they had either no familiarity or little familiarity with the FOI Act prior to making a request to access personal information. While the Act requires public bodies to assist people in making requests, respondents in a large majority of cases said they felt unaided by public bodies in making requests. Three-quarters of respondents said that prior to making a request, they were not aware or had little awareness of their right to seek access to personal records under the terms of the FOI Act. Just 10 per cent said they were informed of this right by a public body – in all but one case, this was by the HSE or a public hospital. In qualitative interviewing, a number of respondents commented that they found public bodies ‘unhelpful’ or ‘extremely unhelpful’ in accessing personal information prior to making a request under FOI. When asked about the level of assistance received from the public body’s FOI officer the reverse is the case, with a majority saying they received ‘good’ or ‘excellent’ assistance from FOI officers (see Table 7.6). In contrast, in Scotland more than 80 per cent of the public claimed awareness of the legislation, while nine out of ten said it was an important way to hold public bodies to account for their spending decisions, according to 2011 research (Dunion, 2012). Respondents said they were alerted to the existence of their right to do so by a public representative (in 30 per cent of cases); an advocacy group (21 per cent); Citizens Advice Bureau (18 per cent); or the Legal Aid Board or other legal advice service (7 per cent). A further 10 per cent said they became aware of the legislation and/or were assisted in making a request by a family member, work colleague, friend or neighbour. Just 4 per cent of respondents said they

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used the Internet, library or other public office to seek access to information regarding their rights to seek documents under FOI. The overwhelming majority – 93 per cent – of respondents said they made a request only once. Reasons for making requests Respondents gave a variety of reasons for using the legislation; however, grouped thematically: • 57 per cent said they made a request for access to documents because they were a client of a public body and were seeking access to their personal records; • 10.5 per cent said they were a member of staff of a public body and sought access to their personnel files, or notes of interview/promotion, or other personal files held by a public body that related to them; • 3.5 per cent of respondents made a request on behalf of a family member. In relation to the figures for clients above, a large majority said they used the FOI Act to seek access to personal records held by a public body because they had applied and been turned down for a benefit or service; or because they were in a dispute about a benefit, service or other issue with a public body. Of these, almost all said they had had protracted communication – via meetings and written correspondence  – concerning a service, benefit or issue prior to making a request, but that it had either not been resolved or had stalled. Many respondents noted they felt there was little or no communication from the civil or public service body concerned prior to making a request under FOI. A number commented that they felt ‘very dissatisfied’, ‘fed up’ and ‘at my wits’ end’ by the protracted delay in seeking finality to their issue. Respondents who indicated they were staff of a public body appeared to have a less acrimonious relationship with their employers. Three-quarters said they wished to inspect their personnel record for employment-related reasons including promotion, annual performance reviews, transfer or disciplinary matters. Experiences of using FOI Table 7.7 demonstrates that more than half of respondents were satisfied with the assistance received from the public body’s FOI officer when seeking access to records. This is in stark contrast with the negative feelings of respondents to communication from public bodies prior to making a request under FOI. Some respondents expressed frustration at delays in processing requests – in particular from the HSE and public hospitals; however, this was not a significant concern for a majority of respondents. Some 61 per cent of all respondents said their request was processed within four weeks; while a further 17 per cent

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A glass half-full or half-empty Table 7.7  Attitudes and satisfaction with FOI process (percentage) Dissatisfied

Dissatisfied

Neither satisfied nor dissatisfied

Satisfied

Very satisfied

Satisfaction with assistance received from FOI officer

4

11

32

46

7

Satisfaction with time taken to process request

14

29

25

28

4

Satisfaction with communication received from public body while request was being processed

7

18

39

25

11

Satisfaction with outcome of request

4

4

32

50

10

said their request was processed within eight weeks; 10.5 per cent said their request was processed within three months; 7 per cent said their request was processed within six months. In a number of cases where respondents indicated that a response took longer than eight weeks, most said they had been told by the public body their request would be processed outside of FOI, so they had formally withdrawn their request. Of respondents who made a request to a Civil Service department, county council or third-level college/university, 89 per cent said they received a decision within four weeks. That figure dropped to 66 per cent for respondents who made a request to the HSE or a public hospital. Despite the lack of knowledge surrounding using the legislation, initial frustrations at having to make a request and, in some cases, delays in responses, a significant majority of respondents – almost 60 per cent – said they were ‘satisfied’ or ‘very satisfied’ with the outcome of their FOI Act request. This is likely because 71 per cent had their request granted in full or in part. The results of respondents’ requests are as follows: • 61 per cent had their request(s) granted in full; • 14 per cent had their request part-granted;

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• 10.5 per cent had their request denied (or invalid); • 14.5 per cent withdrew their request (request dealt with outside of FOI). There is a disparity between the number who are satisfied or very satisfied with the outcome and the number who had their requests granted in full or in part (75 per cent). This may be accounted for by delays in processing requests; by a perceived lack of communication; or by failure to receive advice from the public body. It is also reasonable to posit that the negative experiences of respondents prior to making requests may have impacted on their satisfaction with the FOI process in some cases. A number noted that they either received communication on the benefit or service they were seeking as a result of making an FOI request, or that the issue was resolved as a result of making the FOI request. While the FOI Act was not designed to influence decisions on benefits or services, it appeared in some cases that the legislation was having an unintended consequence of doing so. One respondent, who had dealings on behalf of a family member with the HSE, articulated the views of many other respondents, pointing out that many of the questions and concerns they had regarding a service they required of the HSE were not answered by officials, but documents released under FOI following protracted rounds of communication contained answers they sought: We didn’t even get an acknowledgment of an appeal we made on [issue E]. We originally applied for … [service E] from the HSE and we weren’t satisfied with the response. When we appealed we didn’t even get an acknowledgment letter. Within two weeks of making a request for access to documents under the Freedom of Information Act we were contacted [by officials in the HSE] who told us our case was being reviewed. When we got the FOI request back it looked like nothing had happened at all in our case until we made the FOI request … The documents we received explained everything, we didn’t know what was going on, we felt like victims but the FOI demystified the process for us … What was most frustrating is that our questions were noted and answered via internal questions from one official to another, but this was never communicated to us.

The HSE and public hospitals, while slow to process requests according to respondents, are actively more helpful in advising requesters of their rights and in offering access to records outside the terms of FOI. All respondents who identified they had made a request to a public hospital – and were advised of their right to do so by the public hospital – said they were advised that the information could also be requested (and would be granted) outside the terms of FOI. One respondent who had dealings with a public hospital said she requested documents under FOI, but was granted access outside of FOI.

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We didn’t have any argument about a service  – our case was very straightforward. We were emigrating and needed hospital records for our two sons, and other medical files. The communication from [hospital A] was excellent but the delays weren’t. It took nearly six months to get the boys’ files – because bits and pieces were all over the place. There wasn’t a centralised computer system with all the documents and X rays and CT scans, they were all stored in different places.

The issue of access to records on behalf of a family member was raised as an issue for some respondents seeking access to medical records of relatives, or personnel records held by public bodies, as the Act does not explicitly provide for access to these records in all cases, and respondents have had very different experiences. One respondent explained that a family member, who worked for a public body, died by suicide and the family (the dead person’s siblings) sought access to medical records: When [person’s name] died we were all numbed, it was completely out of the blue. We all wanted to try to piece together what happened. We knew he was seeing a counsellor and had complained of being bullied at work, but were told we had no rights to [person’s name] personnel records. [Hospital name] bent over backwards to help us but the [public body] wouldn’t even talk to us. It made getting closure impossible.

Lessons learned As the results of interviews with requesters has shown, ordinary citizens who have interactions with public bodies have in most cases a low level of understanding of their right to access personal information. Requesters also felt they were largely unaided by public bodies in seeking information, though FOI officers were helpful once a requester is ‘in the system’. This is a cause for concern. A significant majority of citizens who have used the legislation to access personal information feel they received full and complete access to documents they requested and were surprised and satisfied with the outcome of their FOI request. It is noteworthy also that FOI appears to be having unintended consequences in relation to decision-making by public bodies, as noted by respondents who reported that making a request resulted in further communication, or a decision, on a benefit or service. Delays to responding to requests for information aside, access to personal information held by the State is now a pro forma matter, and the ‘spirit’ of the legislation has introduced significant cultural change within public bodies. In many cases, routine access to personal information requests is now granted, or dealt with outside of FOI. It is also the case that granting access to personal records, as noted by respondents, is an assurance that they are not being ‘victimised’, and demystifies the bureaucratic system for others. This is to be welcomed.

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Non-personal FOI requests In Ireland, using FOI for non-personal requests is difficult and time-consuming. The time and effort involved in requesting information, and in the case of a refusal appealing to higher authorities, is prohibitively time-consuming. On paper the Freedom of Information Act 1997 has many good elements to it. Aside from the negative 2003 amendments, the Act itself contains well-formulated provisions for access to information, and includes the concept of the independent arbiter – the Office of the Information Commissioner. This is something that many countries lack but which Ireland has had since the outset. But after fifteen years, the Act – and more importantly its implementation – is, anecdotally at least, not what was envisaged when it was introduced in 1998. The new Freedom of Information Act 2014 addressed some of these problems, but overall it does not offer the solutions required to address a cultural aversion to openness. The barriers to making non-personal requests are significant. The €15 fee introduced in 2003 presented a significant barrier to entry, one that citizens generally don’t get past. Most of the non-personal requests made are by journalists, politicians and NGOs. The number of citizens making requests is dismally small. And who could blame them? Every request requires envelopes, stamps, cheques, a printer, printer ink – many of which people either do not have, or cannot afford. The decline in non-personal requests after the introduction of fees in 2003 – they more than halved – proves the effect. People stop requesting information when punitive barriers are put in place. But even with the removal of the €15 fee in the 2014 Act, hugely significant barriers remain. Fees for internal review and appeal to the Office of the Information Commissioner (OIC) have been retained, but are being lowered, while ceilings for fees for search and retrieval of records are being imposed. These actions will likely lead to a shift in how the Act is implemented, a trend we are already beginning to see. Over the past five years I have made almost 200 non-personal FOI requests to a variety of public bodies. This effort was funded by the public, who kindly donated money to cover the costs of requests and appeals. Over time a pattern has emerged as to how those requests were handled – and this is the system that prevails today. This pattern is likely to be further reinforced by the changes in the new legislation. One of the first methods we developed at thestory.ie was in relation to obtaining databases under the Act. As the Act allows for the requesting of digital records we began requesting ‘datadumps’ or exports of entire databases to spreadsheet formats such as Excel file extension (XLS) or comma separated value (CSV)  – so they can be easily imported for analysis. The first database obtained was all expenses claimed from the Department of Arts, Sport and Tourism. This was followed by similar requests to a dozen other state bodies. The

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case was initially appealed to the Information Commissioner, but the reasons for refusal were rejected by the Commissioner and a settlement was reached. This particular method, along with querying email databases for keywords and phrases, appears to have so rattled the public sector that the new Act contains a specific section addressing it – Section 17(4). This introduces new concepts on whether queries can be carried out at all, and that such requests must be ‘reasonable’, with discretion being given to the FOI officers as to what this means. The only purpose I can see for this section is to block requests for data using any of the query-based techniques thestory.ie had developed. This section will become a part of the new FOI regime, and further protect public bodies from scrutiny. Another pattern that emerged as we pursued more sophisticated requests was the concept of splitting requests, or what later became known as the ‘multi-faceted request’. As the €15 fee created an arbitrary block on requests, we developed a routine for requesting several items per request in order to maximise the amount of information obtained for each request  – something that we felt obliged to do given our funds were publicly donated. In November 2013, the Government inserted a new section to the FOI Bill at Committee Stage stating that when a non-personal request is submitted that contains more than one request to more than one section of a public body, the request may be split into components costing €15 each. This became known as the ‘multi-faceted fee’. The insertion of the section – while later abandoned – was evidence of the culture predominating in both the Department of Public Expenditure and Reform, and in the wider Civil Service. Access to information was not a right, but something that must be punitively charged for. And if citizens had the temerity to use what was essentially a workaround, legislation would be drafted to prevent it and impose additional charges. It is important to recognise this in the context of the implementation of the law both in the past and under the new FOI Act. The reverse course on the application fee does not represent any fundamental shift in culture. The other element at play when pursuing your rights of access to information ultimately rests with the OIC. Chronically under-resourced and under-staffed (see Tyndall, Chapter 8), the Office often tries its best to resolve access to information issues, but through lack of will or lack of resources, or quite possibly Civil Service culture, the OIC consistently fails to enforce the public’s right to know. And one of the main problems with this situation is that this is known to public bodies. In my experience, it appears that an increasingly utilised tactic is for clearly spurious exemptions to be applied to requests in the full knowledge that the internal review fee will dissuade most people from appealing. Internal reviews are then rubber-stamping exercises that again force the payment of an additional fee, which then goes to the Information Commissioner. But the other factor at issue here is not cost, but time. Public bodies who simply do not wish to engage with a particular request, or indeed requester,

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can simply reject requests and push it to the Information Commissioner, possibly in the full knowledge that their refusals are groundless. An appeal to the Information Commissioner could take between one and sometimes three years to process, so ultimately information delayed is all too often information denied. This process is often replicated under the parallel Access to Information on the Environment (AIE) Regulations, where either requests are spuriously rejected for not being ‘environmental information’ or the body itself denies that it is a public authority subject to those regulations. This leads to lengthy and expensive appeals processes  – a case in point being our request for information from the National Asset Management Agency in 2010, which ultimately led to a Supreme Court hearing in 2014 on the issue of the definition of a public authority. The lengthy processes are well known to civil servants who simply might want to kick the can down the road. And it gets worse. Even if your appeal gets to the Information Commissioner, and even if that appeal is relatively quick (wait times are falling but still can take two years), you still also have to grapple with an under-resourced appeals process. This process was recently evidenced in Westwood Club v. The Information Commissioner in the High Court ([2014] IEHC 375). Judge Cross didn’t hold back on how the Information Commissioner handled the appeal. He said the Commissioner had failed categorically to adequately handle the appeal, specifying that the OIC had failed to properly analyse the issue of confidentiality (Freedom of Information Act 1997, s 27) in the appeal, failed to properly analyse the issue of the control Bray Town Council had over Westwood, and that the OIC’s reliance on its own preliminary view was ‘clearly tainted by illegality’. It seems clear that an under-resourced OIC is leading to both inordinate delays that make a mockery of the Act and to poor decision-making generally. Lack of resources also leads to an inability to enforce other aspects of the legislation:  for example, public authorities are obliged to have and to update every three years their Section 16/17 reference books – however, organisations as large as the HSE still don’t have one, after more than nine years being subject to the Act. Another problem posed for non-personal requesters is a potential loss of power for the OIC  – and ultimately a loss of some of its independent decision-making abilities. The new Act contains a new and ostensibly positive definition of public authority, bringing a range of new bodies under the FOI regime (see Tyndall, Chapter 8). However, under Section 6(7) the Information Commissioner will not have the final say on disputes as to whether certain bodies fall under the Act or not – that say will rest with the minister of the day. Ultimately, while the Act says many types of organisations will be public authorities, it will, in the end, rest with the minister, not the Information Commissioner or the courts, to decide (as is the case under the AIE Regulations).

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Sections 6(5) and 6(9) of the 2014 Act also severely water down the public authority definition. This means that, unfortunately, should a future minister be less than enamoured with transparency, they could deem that new or controversial bodies would no longer be subject to scrutiny. Many semi-State companies are not subject to the Act due to unspecified ‘commercially sensitive’ reasons. So where does all of this leave non-personal FOI requesters in 2014? It leaves us with an essentially broken system. The problems are multi-faceted, and include: • a culture of secrecy that has not changed, and in fact was reinforced by the 2003 Amendment Act; • fees for appeals that act as a constraint on the right of citizens to scrutinise public authorities; • tactics including obfuscation and deliberate delays to avoid the FOI process entirely; • court decisions that have redefined the meaning of ‘held’ so as to render the Act almost meaningless (The Minister for Health v. The Information Commissioner [2014] IEHC 231);2 • changes to legislation that make it even more difficult to efficiently extract digital information from public authorities; • changes to search and retrieval fees that shift discretion in favour of FOI officers, further allowing fees obfuscation and delay; • ministers who keep secret personal diaries to avoid FOI (McInerney, 2014); • civil servants who start applying non-existing future laws to their FOI processes (Ryan, 2014); • appeals processes with the Information Commissioner that are so lengthy as to make them meaningless; • a chronic under-resourcing of the OIC, which serves the interests of the government and Civil Service, not those of citizens; and • a lack of support for FOI officers or civil servants who do work towards more transparency. In short, Ireland is a long way from achieving an access to information regime that compares at all well to best practices internationally. Fees, delays and culture are serving to undermine the public’s right to know, and the secrecy that pervades inevitably leads to poorer decision-making and maladministration, and ultimately creates conditions that allows corruption rather than openness.

Conclusion The overview of how we might understand the genesis and evolution of FOI legislation in government provided by Chapter  1 points to two alternative

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conceptualisations of what FOI should achieve. On the one hand, FOI may be more narrowly conceived of as an administrative reform that enables citizens to access the administration. In this conception, FOI is about enabling citizens to access their personal files held by public bodies, so as to ensure that citizens are treated fairly by the state and by state services. On the other hand, FOI may be much more broadly conceived of as a foundational part of a move towards more open government. In this conception, the intention is to shift the culture of governmental decision-making and state bureaucracy to a disposition where they happily acknowledge citizens’ absolute rights to access information that explains the operation and rationale of public decision-making and subsequent policies. The evidence from this chapter suggests that the Irish FOI regime is making a good degree of progress towards the former version of FOI, but falling well short of the latter.

Notes 1 See, for example, the HIQA website, www.hiqa.ie, which includes reports of various hospitals, nursing homes and other institutions. 2 For a discussion, see A&L Goodbody, 2014.

References A&L Goodbody (2014) ‘High Court records were “not held” for FOI purposes’, 15 July 2014, available at www.algoodbody.ie/insightspublications/ high_court_rules_records_were_not_held_for_foi_purposes (accessed 10 August 2014) Becker, Howard (1963) Outsiders:  Study in the Sociology of Deviance. New York: Free Press Burnham, Peter, Gilland Lutz, Karin, Grant, Wyn and Layton-Henry, Zig (2008) Research Methods in Politics. Basingstoke: Palgrave Macmillan. Dunion, Kevin (2012) Informing the Future: The State of Freedom of Information in Scotland, Scottish Information Commissioner special report 2012. St Andrews: Office of the Scottish Information Commissioner Felle, Tom (2014) (@tomfelle) ‘Have you used the Irish FOI Act to make a personal request? I want to talk to you for a study. tomfelle [at] gmail [dot] com RTs appreciated’, 24 February 2014, 12:44 p.m. Tweet. Felle, Tom (2015) ‘Freedom of information and access to personal documents in Ireland:  A  case of David versus Goliath in citizen state relationships?’ Limerick:  University of Limerick Working Papers on Politics and Public Administration, 2015/1 Government of Ireland (1997) Freedom of Information Act 1997. Dublin: Government Publications Stationery Office

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Government of Ireland (1999) Statutory Instrument 47/1999. Dublin: Government Publication Stationery Office Government of Ireland (2013) Freedom of Information (Amendment) Act 2003. Dublin: Government Publications Stationery Office Government of Ireland (2014) Freedom of Information Act 2014. Dublin: Government Publications Stationery Office Hazell, Robert and Worthy, Ben (2010) ‘Assessing the performance of freedom of information’ Government Information Quarterly 27/4: 352–359 High Court (2014) Judgment in ‘The Minister for Health vs The Information Commissioner’ [2014] IEHC 231, available at www.bailii.org/ie/cases/ IEHC/2014/H231.html (accessed 17 March 2015) High Court (2014) Judgment in ‘Westwood Club vs The Information Commissioner’, [2014] IEHC 375, available at www.courts.ie/Judgments. nsf/09859e7a3f34669680256ef3004a27de/b1e31b80da8accbc80257d2d004 f46a8?OpenDocument (accessed 17 August 2014) McCarville, P. (2002) ‘Second generation Irish identity in Birmingham’. Unpublished thesis, University of Warwick McInerney, Sarah (2014) ‘Rabbitte foils FOI by hiding his meetings’ Sunday Times, 12 June Office of the Information Commissioner (1998) ‘Lt Col (Retd) AAD and the Defence Forces’ [98/021], 25 September Office of the Information Commissioner (1998) ‘Mr AAE and the Offices of the Revenue Commissioners’ [98/026], 25 September Office of the Information Commissioner (1998) ‘Mr AAF and the Offices of the Civil and Local Appointments Commissioners’ [98/020], 12 October Office of the Information Commissioner (1999) ‘Mr AAY and the Department of Social, Community and Family Affairs’ [98/103], 28 January Office of the Information Commissioner (1999–2014) Annual Report of the Information Commissioner 1998–2013. Dublin:  Government Publications Stationery Office Roberts, Alasdair (2010) ‘A great revolutionary law:  The first four years of India’s Right to Information Act’ Public Administration Review 70/6: 925–933 Ryan, Conor (2014) ‘The privacy of public money:  How councils kept costly errors secret’ Irish Examiner, 22 May Salganik, Matthew and Heckathorn, Douglas (2003) ‘Sampling and estimation in hidden populations using respondent-driven sampling’ Sociological Methodology 34: 193–239 Shepherd, E., Stevenson, A. and Flinn, A. (2009) ‘The impact of freedom of information on records management and record use in local government: A literature review’ Journal of the Society of Archivists 30/2: 227–248

8 Reflections on freedom of information: past, present and future Eithne FitzGerald, John Carroll and Peter Tyndall

Introduction In this chapter we bring together a variety of expertise on Ireland’s experience with freedom of information. First, Eithne FitzGerald, the original Freedom of Information (FOI) Act’s ministerial sponsor and champion, explains what was intended and hoped for when the legislation was first introduced, and gives a critical reflection as to what was achieved. Second, John Carroll, a political adviser and public policy official, details his experience with use of the legislation, as a political tool in Opposition and, later, in government, in receipt of FOI requests. Finally, the Information Commissioner and Ombudsman, Peter Tyndall, gives his impression of what FOI legislation has achieved to date and the challenges remaining for an effective FOI regime in the future.

Eithne FitzGerald Ending the culture of secrecy: what we wanted to achieve when we introduced the original FOI legislation The Freedom of Information Act 1997 had two key objectives  – to open the workings of government and the public service to public scrutiny, and to give individuals access to information on the key issues affecting them personally. We wanted to overturn the culture of secrecy embodied in the Official Secrets Act, to improve governance and accountability on policy and to empower citizens in their dealings with the state. The long title of the Act, similar to the purpose clause in Australian legislation, set out the presumption in favour of openness, ‘to enable members of the public to obtain access, to the greatest extent possible, consistent with the public interest and the right to privacy, to information in the

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possession of public bodies’ (Freedom of Information Act 1997). This reversed the presumption of official secrecy set out in the Official Secrets Act, under which release of any material, however innocuous, was forbidden. In its first fifteen years of operation, from 1998 to 2013, more than 200,000 FOI requests were made, 70 per cent of which were granted in full and 20 per cent in part. Three-quarters of these were requests for personal information, people looking for information about themselves held on public file. In spite of the slowdown in requests, which followed from the restrictions of the 2003 Amendment Act, the legislation has led to a significant flow of information to private citizens and the public at large. The practice of official secrecy as the default has clearly ended, although fifteen years on, the cultural transformation is not yet complete. The Toland review of the Department of Justice and Equality (2014) found that the department had ‘a closed secretive and silo driven culture’, which went beyond the sensitive areas of security and policing and permeated the department as a whole. Open government is about an adult relationship between those who govern and the governed, fostering open debate on issues of importance, where the rationale for policy decisions is put clearly on the table. Promoting a culture of openness doesn’t happen by itself; it requires drive and leadership. A Central Policy Unit on Freedom of Information was established in the Department of Finance in 1997, staffed initially by the personnel who had worked on the original Act in the then Office of the Tánaiste. This unit engaged in a proactive strategy, first to prepare for commencement in April 1998, and then to drive implementation. A range of networks and user groups were set up to share learning; however, over time, some of this effort appears to have faded.1 When we started work on preparation of the FOI Act, we had the benefit of about a dozen years of experience of similar legislation operating in Canada, Australia and New Zealand – countries that, like ourselves, were common-law jurisdictions, and had evolved from the Westminster model of government. Each of these countries had legislated for freedom of information around 1982. What we heard from these countries was that a change in culture from the default of secrecy to the default of openness took time – of the order of five to seven years after FOI took effect. However, undoubtedly before such a change was fully accomplished in Ireland, the introduction of the 2003 Amendment Act sent a reverse signal. In late 2002, a group of middle-ranking civil servants drew up an outline Action Plan on Compliance with Freedom of Information. Their report argued that the most important factor in ensuring genuine openness was the support of senior management, a proactive approach to release of information and a ‘why not release’ attitude. This was closely followed, however, by the rolling back of the Act, sending the strong message that support for freedom of information from the top was at best lukewarm.

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Improving decision-making An important side effect we hoped for was to improve governance and accountability. Where decisions, and the rationale for them, are likely to come into the public domain in the very near future, in principle that should lead to better-quality decision-making. There is an incentive for those whose work is liable to come under immediate public scrutiny to go about their business in a fair, competent and thorough way. A proposal that is well-researched and well-argued, and where the pros and cons have been teased out thoroughly, is less likely to result in failure than policy that is shallowly researched or made on the hoof. Papers emerging in relation to the decision of December 2003 to introduce decentralisation of major chunks of government show how little homework preceded what have turned out to be really poor decisions. One of the most expensive single public policy decisions taken, outside of the bank guarantee, was the implementation of the recommendation of the Benchmarking Body in 2002 to award public sector pay increases averaging 8.9 per cent, at a recurring cost of €1bn a year. There was no evidence given in its report that would justify the recommendations made in relation to individual groups or grades. And the work of the Benchmarking Body was deliberately kept outside of the FOI process. The public would have expected that the watchdog of the public finances, the Department of Finance, would have taken a keen interest in the arguments underlying the case for such a significant increase in public expenditure. However, the contrary turned out to be the case. I asked, under the FOI Act, for the papers relating to the decision not to designate the Benchmarking Body under the Act, as well as for details of background research conducted by the body. The papers were illuminating. A senior official argued that ‘it would be undesirable in an industrial relations and pay determination context that any party should seek to look behind the published reports, reasonings and findings of the bodies’. ‘Any party’ clearly included the Department of Finance itself. In a further memo, the same official went on to argue that it would be inappropriate for the records of the Body to revert to the department at any subsequent date (where, as records held by the department, they would be open to disclosure under FOI). In other words, the department did not want to know, either at the time or in the future, the reasoning behind proposals to spend an extra €1bn a year of public money. Policy failure The existence of FOI did not, however, prevent the occurrence of some of the largest policy failures in the history of the State – light-touch banking regulation, a massive property bubble, failure to anticipate and plan for possible catastrophic banking failure and the introduction of the blanket bank guarantee. A practice of staying off record to avoid creating material that could be subject to FOI has led to some demonstrably poor decisions. However, the absence of

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paperwork now leaves those who made such poor decisions with little defence to offer. In 2003, a group known as the High Level Review Group, comprising departmental secretaries general, reported on the operation of the FOI Act. It is interesting to look at the advice in relation to FOI and the deliberative process given by the then head of the Department of Finance’s Central Policy Unit to their department’s representative on the High Level Group, cautioning against diluting the provisions of the original Act: There is a regular difficulty that people complain about FOI without being able to come up with hard evidence as to what the particular problem is or how it can be addressed in a meaningful way. In developing approaches to address any agreed problems/issues we should not assume that the answers need necessarily be legislative … For example, it is insufficient to say there is a problem with S20 (the deliberative process exemption) without hearing of particular cases where the deliberative process can be considered to have been constrained in some way. Even where we might have some sympathy with a general argument that a particular exemption is problematic (e.g. that the openness created by FOI has a chilling effect on the deliberative process), any attempt to address such a perceived problem has to be assessed having regard to its effect on transparency. In the Civil Service context where the natural tendency and traditional culture was at the other end of openness and transparency, we would need to weigh very carefully the arguments for changing the current arrangements. As we know, it is easy to make the general argument that the ‘premature’ release of records is affecting the quality of decision-making; but does this stand-up? Greater transparency may certainly be more inconvenient but does it really affect (in a negative way) the ultimate quality of policy development or decision-making? (Department of Finance, 2003)

Where poor decisions and their consequences have now come to light, in many cases as a result of FOI requests, this has led to some important reforms. Poor governance, extravagant expenses and a culture of entitlement in FÁS, which were exposed in the public domain as a result of FOI requests, led not only to resignations and to the demise of FÁS, but more lastingly to the creation of the Code of Practice for the Governance of State Bodies. A free press, with open and questioning media, is an essential bulwark of any democracy. Whether the rationale is to inform the public, or to sell papers or advertising, the traditional media of press, radio and television, supplemented in more recent times by social media, constitute a key channel for citizens to learn about the business of government, and how policy is made and implemented. FOI has been a major source of media stories and, in turn, of public debate. As one journalist put it: ‘The Freedom of Information Act gets beyond [the] spin. The legislation – assuming of course everyone is being honest and is recorded accurately – allows the applicant access to the undiluted and

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unadulterated source material. And that’s what makes it so valuable for journalists’ (Wall, 2002). There has been a heavy media focus on politicians’ and public service expenses. While the aggregate sums may be small, abuse of expenses exposes abuse of public trust. This public scrutiny has led to significant tightening up of expenses regimes and a lowering of expense rates, and has also claimed a few scalps along the way. In spending terms, a much more significant story uncovered by FOI was the scale of the costs of the planned Abbotstown stadium, the ‘Bertie Bowl’, which ultimately led to the cancellation of the project. Under FOI we also learned how a £4 shelf company got the swimming pool contract at Abbotstown. FOI also uncovered details of the deal done between a departing Minister for Education and the religious orders capping the compensation they would be liable for in respect of institutional abuse. We have learned the list of bodies getting charitable status for tax purposes, which included some strange ones. We have learned that only 3 per cent of teachers are inspected every year, leading to the prospect of a lifetime spent in teaching without ever being inspected. Some departments have chosen to respond to a series of regular requests by deciding to proactively publish certain categories of information. The Houses of the Oireachtas now routinely publish details of members’ expenses. Reports of the Tax Strategy Group, the deliberations that preceded the Budget and the Finance Bill, are published routinely, and add significantly to our understanding of the issues at stake. The Irish Government Economic and Evaluation Service has established a website (www.igees.gov.ie) on which it publishes staff papers that evaluate and appraise policy options. Empowering citizens in their dealings with the state The second key focus of the Act was to empower citizens in their dealings with the state. In the first instance, the Act gave a right to people to access personal information about themselves, and to seek to correct personal information where it was inaccurate. While these parallel to a degree some equivalent rights under data protection laws, there has been extensive use of FOI for personal information. About 150,000 requests for personal information have been made in the first fifteen years since FOI came into force, forming three out of every four FOI requests. An important group of such requests came from people who spent time in residential institutions as children, looking for information covering their time there. All of us have myriad dealings with the state. We send our children to state-funded schools, we go to state-funded hospitals, we pay taxes, we receive child benefit or state pensions, we may apply for planning permission, or a REPS grant for our farm. Those who are most economically vulnerable are those who tend to have the most extensive dealings with the public service – council tenants, those on welfare, medical card holders, asylum seekers, homeless people.

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Sections 16 and 18 were interlinked provisions of the 1997 Act, designed to reinforce fair and transparent decision-making by public bodies in their dealings with individuals, and to demystify why such decisions were made. Section 16 provides for publication of guidelines and rules that are used to decide individual cases: for example, guidelines under which Community Welfare Officers would make decisions. Section 18 provides for individuals to be given reasons for decisions affecting them, which could then be tied back to the specific rules or guidance covering the scheme in question. One of the issues I came across a lot in my years as a public representative was ‘retrospective rent arrears’. On an annual basis, the local authority would collect information on the family income and composition, in order to update its calculations on differential rent. Some weeks later a letter would follow informing the tenant they were now, say, €200 in arrears, and would they pay up forthwith. The tenant who had been paying the requested rent on the button every week would understandably be bewildered as to how they could have got into arrears. Unless people can see the rules, and understand how they are applied in their own case, the state and its organs will be seen as arbitrary powers. Being made to explain the reasons for decisions is a good way to ensure officials get those decisions right, or correct them speedily if an error has occurred. The 2014 Freedom of Information Bill originally proposed to abolish Section 16 altogether, and replace it with a more limited ‘Code of Practice’. Following significant public concern at the dilution of what I saw as a key feature of the original Act, the Government decided to row back and ensure that the new provisions would encompass the same material as were required to be published under the original Section 16. Another important protection for vulnerable people is the requirement to publish reports on inspection of nursing homes and centres for people with disabilities. Nursing home reports were first released on foot of an FOI request, and now this has become standard policy. The 1997 FOI Act also specifically addressed the question of how information can be accessed by people with disabilities, and provides that records be given in suitable formats to accommodate a person’s specific requirements. This foreshadowed a wider requirement on public bodies set out in the Disability Act 2005 to provide material in appropriate formats where so requested by a person with a disability. Finally, we saw an accessible appeals system as being a core piece of the FOI architecture. An appeals system that would uphold the core principles of the Act would be the best guarantee that decisions of first instance would be correct. In particular, the Information Commissioner would have a key role in relation to the Act’s provisions on non-mandatory exemptions: where the public interest in disclosure outweighs the public interest in non-release must be evaluated. Many countries with strong FOI traditions  – Sweden since 1766, the United States since 1966 – use the courts as their appeals mechanism. We felt that in our

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system, and with our particular culture, recourse to the courts as the primary avenue of appeal would prove expensive, slow and ineffective, and could let primary decision-making off the hook. Similarly, we discarded the Administrative Appeal Tribunal model found in some Australian states. The Information Commissioner model found in New Zealand and in Queensland was the path we chose, and with power to make binding decisions. We also rejected combining the office with that of Data Protection Commissioner, as that primary role is focused on protection of privacy and minimising disclosure, instead combining the office with that of Ombudsman. The system has served us well, with a high calibre of independent-minded Information Commissioners who have upheld both the letter and the spirit of the law. In spite of the setback in 2003, FOI is now an indelible feature of the Irish political and administrative system. The public expects accountability and transparency to be an automatic feature wherever there is public money involved. The principle that public information belongs to the public is now broadly accepted in Irish society. In its first fifteen years, FOI has let in a lot of light.

John Carroll Contemporary use of FOI: an insider’s view When we think about the media and FOI, we think about how journalists use FOI as a tool to generate stories: how they get information and overcome the obstacles put in their way by shadowy civil servants and so on. We forget that the provisions of FOI are not there to fill newspaper column inches but rather are a public good, an expensive one at that, which exists to hold the executive to account and ensure good governance. Unlike most contributors to this book, I have had the opportunity to see first-hand both sides of the FOI coin. Since 2007, I have worked first as a parliamentary assistant to an Opposition spokesperson and, subsequent to the general election in 2011, as a policy adviser to a government minister. Both positions are political roles and have given me vantage points from which to see the opportunities – and the costs – associated with FOI. Based on my own experience working for an Opposition spokesperson, FOI is a powerful tool used by Opposition politicians to hold the executive of the day to account. It is a much-utilised tool. During the last years of Fianna Fáil’s fourteen years of government, it was a very effective instrument in highlighting wasteful public spending and poor corporate governance, as was the case with FÁS. Less noticeably to the media and public eye, it is also an extremely useful instrument for providing general briefings for Opposition spokespeople to get a grasp on what a government department or minister is up to. Since coming to work in a government department in 2011, I have had the opportunity to see the volume and diversity of FOI requests that come in, and

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the information subsequently released. It is eye-opening to see the work that goes into complying with even the most innocuous of FOI requests, and the numbers of officials involved in responding to them. Therefore, the practice in the Department of Transport, Tourism and Sport of proactively publishing as much information about ministerial expenses, departmental expenditure, public appointments and so forth on the department’s website greatly reduces the workload for officials and needs to be emulated across government. Having had the opportunity to see both sides of the FOI coin, my enthusiasm and support for FOI has not diminished. Yet I am conscious that this is not a mainstream view of those who work under its provisions. To illustrate this, three years ago, soon after taking up my current role, a civil servant of considerable experience and a model of public service arrived in my office with a two-page photocopy from former UK Prime Minister Tony Blair’s autobiography with a section highlighted: Where was my Sir Humphrey when I needed him? We had legislated in the first throes of power. How could you, knowing what you know, have allowed us to do such a thing so utterly undermining of sensible government? Some people might find this shocking. Oh he wants secret government; he wants to hide the foul misdeeds of the politicians and keep from ‘the people’ their right to know what is being done in their name. The truth is that the FOI Act isn’t used for the most part, by the ‘people’. It is used by journalists … The information is neither sought because the journalist is curious to know, nor given to bestow knowledge on ‘the people’. It’s used as a weapon. But another and much more important reason why it is a dangerous Act is that governments … need to be able to debate, discuss and decide issues with a reasonable level of confidentiality  … In every system that goes down this path what happens is that people watch what they put in writing and talk without committing it to paper. It’s a thoroughly bad way of analysing complex issues. (Blair, 2010: 516–517)

The arguments put forward by Blair were to some extent those repeated by the official. It is certainly true that in the three years since I took up this appointment, I  have seen plenty of evidence of this chilling effect when it comes to officials putting pen to paper. To a large extent, it seems to be born from a peculiar viewpoint among civil servants. There seems to be a belief that, if it were to emerge that there was more than one option available to a department or minister in dealing with a particular issue, the whole world would collapse in upon itself. But that was not the main criticism of FOI in the Irish context. Rather, it was the view that a huge amount of time and effort was being wasted answering FOI requests from journalists that had little public value and were essentially trawling exercises. In particular there was the view that the stories that arise from such queries were oftentimes trivial in the context of the effort that went into answering them.

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In contrast, that other great source of information on government activities, the Parliamentary Question (PQ), rarely attracts such negative commentary. For example, during the course of 2012 there were more than 56,000 PQs to members of government asked in Dáil Éireann. According to the Oireachtas, the level of questioning in the Dáil is significantly higher than other parliaments, with an average of 248 PQs tabled per member compared to 41 in other parliaments (Houses of the Oireachtas Commission, 2013: 14). Answering these PQs is much more demanding on the time of officials and puts a lot more information into the public domain than FOI ever will or could even aspire to do. Yet it is mainstreamed into the workflow of officials and while there are occasional grumblings about PQs, those complaints are largely about one or two TDs and their rather vague and random questions, rather than the system itself. As we look back at more than a decade-and-a-half of FOI in operation in Ireland, we must consider how we can move from a position where FOI is seen by a significant proportion of public servants as an annoying nuisance and a hindrance on good government. And change that to one where it is seen as the bedrock of sound governance. The simple fact is that as long as a significant element of those who are subject to FOI are unconvinced of its merits, then there will always be elements seeking to undermine it and row it back. Politicians come and go, the reforming zeal fades and the only consistency that can be found over time is the influence of the Civil Service. The greatest challenge facing FOI campaigners is not issues around the new FOI Act but rather how to create an environment whereby future legislation curtailing access to information, such as the 2003 Amendment Act introduced by Charlie McCreevey, is unimaginable. There will always be those that prefer darkness to light, but what needs to be created is a dynamic that while FOI may not be loved by all, it is respected and regarded as an important part of public service life. While FOI campaigners believe that is a universally regarded and obvious truth, the challenge is to instil these values more widely and in particular among those who operate under the FOI Act’s provisions. In seeking to instil these values more widely, there are roles for those in political office, leadership roles in the public service and also for the media. For politicians, it is to strengthen the FOI legislation, a process that is well under way, and seek to create the environment where its value is understood and appreciated across the political system. FOI cannot be something that politicians only think is important when they are in opposition. For the managers of the public service, their role should be that of leadership. There needs to be a commitment to the publication of information, expenditure reports, audits and so forth online, in an easily accessible fashion, and that that is the default and first option, not the last. The question should not be whether to make a document available, or to publish a commissioned report, but rather why would you not? Furthermore, there needs to be a broader acceptance that occasionally

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there will be a divergence of opinion on key issues and that rather than this heralding the arrival of the rapture, it is something positive and is to be encouraged. There are encouraging signs in this regard but the challenge is to ensure that this is replicated across the public service and is not the result of the drive of a small number of people. The challenges for those groups of people are largely clear and obvious to us all and are dealt with elsewhere within this book. However, it is the role of the last group, the media, that interests me most and has received surprisingly little consideration in discussions on FOI. While FOI is of course open to us all, the media are the primary conduit by which the broader intent of the Act is vindicated. As such the relationship between the state’s bureaucracy and the media receives plenty of thought, principally from the perspective of the media as utilisers of the provisions of FOI. FOI is seen as a tool in the arsenal of the investigative journalist and little other thought is given to it. However, the role of the media in framing views on FOI is under-considered, at least in the Irish context. It is important to consider how the media’s utilisation of FOI as a content creator impacts on how those who comply with it, perceive it and treat it. In an effort to examine what type of FOI-generated material would result in a published new story in the Irish media, I examined all articles from four main Irish daily newspapers, The Irish Times, Irish Independent, Irish Examiner and the Irish Daily Mail, during a nine-month period in 2012. Using LexisNexis, I  identified those stories that made specific mention of relying upon records released under FOI for the story’s information. I refined this by looking only at those articles where the information was first published and sought for that newspaper. Articles that were following on from information published in a different newspaper previously or were based on FOI material sought by an external body were excluded. Where a newspaper got a number of articles out of the same FOI, it was counted as one. There are limitations to this approach. It is focused solely on the print media and in particular on the ‘quality’ dailies, and therefore ignores the utilisation of FOI by Sunday newspapers, by magazines, radio and TV current affairs shows and also by the online media. Yet despite the much-commented decline of the print media, daily newspapers still dominate the Irish political landscape and remain the main generators of ‘new’ news, at least when it comes to politics and the coverage of the state. This approach also relies on it being reported in an article that the material came from FOI and that being truthful. Furthermore, it gives no regard to the gravity of the information released and the amount of follow-up stories being generated. In total, across more than 940 editions of those four newspapers during this period, there were 124 different news stories based on documentation released under the provisions of the Freedom of Information Act. Between the four newspapers, the breakdown was fairly even. The Irish Times accounted for 30

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per cent of such stories, the Irish Daily Mail 25 per cent, the Irish Examiner 22 per cent, with the Irish Independent accounting for 20 per cent. The remaining 4 per cent were shared stories between the newspapers, the result of one particularly industrious freelancer. On average, slightly less than one news story a week appears as a result of journalistic usage of FOI in each of those papers. While acknowledging that the Sunday newspapers, the online media as well as the television and radio sectors are not included in this cursory analysis, this finding is somewhat surprising. While these bald numbers tell us little about the impact of such stories, there were far fewer stories than one might expect. It is interesting that despite all the attention heaped upon the Act, it is not driving masses of newsprint. If we move now to the next question, what type of material is deemed worthy of coverage in the daily news media? This proved a more challenging methodological issue than I originally expected. My original intent was to examine how many of the stories were concerned with showing how the state operated and how power was exercised. However, defining this is in any robust fashion proved difficult, although my estimates would suggest that less than 20 per cent of the published stories fell into this category. After considering a number of approaches I decided to examine how many of the stories that came from FOI requests were primarily concerned with government expenditure as against other information contained within the documents. It emerged that 51 per cent of stories were primarily focused on highlighting government expenditure and related matters. This limited categorisation is clearly imperfect, yet it does allow a clear picture to develop of the purpose FOI serves for the Irish daily print media. Given the times we live in and the meta-narrative that has dominated Irish life during the crisis, the focus on expenditure-related matters is hardly surprising. Indeed, the ultimate political demise of John O’Donoghue as Ceann Comhairle was on the back of these types of FOIs by Ken Foxe, then of the Irish Daily Mail. Yet when you delve into these expenditure-type stories, you get a clear sense of the frustrations felt by public servants at such FOI requests. Not because they are the target of such stories, as the civil servants themselves rarely are. Rather, it is the seeming triviality of many of the resulting column inches. For every major story exposing wasteful expenditure, there are many other stories that reported starkly on costs or salaries but provide no broad context around the issues to enable proper understanding of the matter. A striking example of this was an Irish Daily Mail page one story revealing that RTE spent €3.4m and employed forty-one staff in its archive section (Ferry, 2012). The manner in which this story was presented was that these figures were truly shocking, yet nowhere in the article did it seek to address the issue of what the costs are in similar public-sector broadcasting organisations and whether €3.4m in cost and forty-one staff was excessive, just right or extreme

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under-staffing. Far from being the exception, this was the norm across the print media when publishing these types of stories. It is difficult to form a coherent and logical argument against FOI provisions when those provisions are being used to highlight wasteful spending, show poor or ill-informed decision-making or expose wrongdoing. Yet that is only a small element of what the Act is used for, at least based on this review of the Irish media. Instead it is used to bring information into the public domain that is not especially enlightening, is oftentimes trivial, is generally presented context-less and  – it can be argued  – hinders rather than informs public debate. The media lives and dies by the vagaries of public consumption habits, and their sole commercial responsibility is to deliver what their consumers want. This is certainly true, but it is sometimes forgotten that a well-functioning FOI regime does not exist for the purposes of filling newspaper column inches. Rather it is a public good that has costs attached to it but which are deemed worthy because of the broader benefits to society. It is certainly true that the costs imposed by such a regime pale in comparison with the alternatives. A well-functioning FOI regime ensures that the wilder flights of fancy and policy decisions that officials and politicians would like to carry out cannot happen because of the glare of public light. That benefit is immeasurable and that is the view that I subscribe to. Yet where there is a failure at present in Ireland is in the fact that there is a significant body of opinion that does not see the benefits accruing from the FOI Act as being of greater value than the costs being imposed by it. It is easy to blame officialdom for that, and to argue that there is a malign culture of secrecy in operation that is seeking to curtail the good intent behind the Act. There is certainly truth in that from elements of the public service, but it is also important to appreciate the context in which these views are formed and created. There is a responsibility for journalists and their editors to realise that there is a duty upon them to use FOI in a manner that vindicates its intent and purpose and not trivialise it. In a competitive commercial world, this will present challenges. But without appropriate journalistic standards being applied, and being demanded, then the lobby that prefers to operate in darkness rather than in light will have a significant ally.

Peter Tyndall What the legacy of FOI has been in Ireland, and where it goes from here As Ireland starts to engage in the Open Government Partnership, and with new legislation on the stocks at the time of writing, it is clear that we are about to enter into a new phase of FOI and it is apposite to consider how we have arrived at our current juncture. In considering the legacy of FOI, I want to briefly consider

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the history and operation of the regime, and also to identify areas where further enhancement is possible. FOI is very much part of the society in which we now live – every day there are media reports based on information obtained through FOI requests. There is an expectation that FOI will allow us to seek access to information about public bodies and publicly funded entities. This was seen in the case of Irish Water, which was fast-tracked into the FOI regime because of legitimate public interest. As we are now accustomed to the notion that the work of public inspectorates or regulators should be published as a matter of course, or at least be available by way of individual FOI requests, it is easy to lose sight of the significance of this still new level of transparency. There are numerous areas in which information is now made available as a matter of course as a result of earlier decisions of the Information Commissioner. Individuals also have a means of access to a wide range of information held by public bodies about themselves – and have the option of having this information corrected if it is wrong. Typically, the objectives of a well-functioning FOI regime include: • bringing transparency to government decision-making and discouraging corruption; • helping to hold government to account; • informing the public about government; • improving the quality of decision-making by public bodies; • acting as a check on the exercise of power by government and its agencies; • promoting citizen participation. The 1997 Act was predicated on the notion of what serves the public interest. The Long Title of the Act says that it is intended: to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise that right.

The introduction of the FOI Act represented a major change in culture and approach for public bodies in relation to the information held by them. Prior to FOI, the Official Secrets Act provided for minimal access to information and created a public administration that saw nothing but danger in any attempt to release its control over information. The FOI Act provided for a right of access by members of the public to records held by public bodies, the right to have

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information held about them corrected or updated where necessary and the right to be given reasons for decisions, taken by public bodies, that affect them. The Act also introduced a requirement for public bodies to publish certain information, including information about their rules and procedures. The radical nature of the FOI Act was recognised in the courts at an early stage. Mr Justice McKechnie, in Deely v. The Information Commissioner [2001] IEHC 91, commented in relation to the FOI Act that ‘its passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies’. He went on to say that the ‘purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public’. Mr Justice McKechnie further described FOI as ‘on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy’. Subsequently, the Supreme Court endorsed these views, with Mr Justice Fennelly commenting (in his minority judgment in Sheedy v. The Information Commissioner & Ors. [2005] IESC 35): the passing of the Freedom of Information Act constituted a legislative development of major significance, the Oireachtas took a considered and deliberate step which dramatically alter[ed] the administrative assumptions and culture of centuries … replac[ing] the presumption of secrecy with one of openness … [and] open[ing] up the workings of government and administration to scrutiny.

2003 Amendment Act: changes to 1997 Act The 2003 Act seriously curtailed the 1997 Act, representing a major step back from the commitment to openness, transparency and accountability, which were key factors in the 1997 legislation. It has been suggested that the primary urge to amend arose from the fact that some Cabinet records potentially would have become available under the FOI Act from 21 April 2003. Some of the more significant changes were as follows: • it restricted the potential right of access to records of government to those records created more than ten years before receipt of the request as opposed to five years as provided for in the 1997 Act; • communications between ministers relating to a matter before government were now fully protected; • the definition of government was extended to include committees of officials; • secretaries general of government departments were empowered to certify that particular records form part of the deliberative process of a government department, effectively putting such records beyond the scope of FOI;

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• very significant changes were also made in the case of records relating to state security, defence and international relations. There is now a mandatory class exemption for records that concern security, defence or international relations of the State or matters relating to Northern Ireland, thereby eliminating the need for a public body to identify a specific harm caused by release of the particular record; • finally, the change with most repercussions for the average user of the FOI Act was the provision enabling the Minister for Finance to prescribe fees for the making of a request for access to non-personal records and for any subsequent application for internal review and/or review by the Information Commissioner. The impact of the ‘up-front’ fees was very significant, with a significant drop in usage as a result of the fees being introduced. In particular, there was a big decrease in requests from journalists. In 2001, 20 per cent (or 3,123) requests were from journalists. By 2007, 8 per cent (or 885) were from the same source, having fallen even more in 2004 and 2005. Notwithstanding the changes that the 2003 Amendment Act introduced, the FOI regime has made a significant difference in many aspects of the provision of public services. Public spending: Decisions of the Information Commissioner have played a major role in gaining acceptance for the fact that wherever public money is spent, there must be the greatest possible degree of openness and accountability in how those funds are spent. Examples include decisions on Oireachtas members’ expenses, public procurement and tendering, and financial settlements with employees. Recruitment procedures for public jobs: In 1998 the Commissioner observed that he had dealt with a number of reviews where access was denied to interview notes and other material relating to the requester’s participation in interviews or competitions for public service jobs… A common theme running through most such cases is the inability of the candidate to understand why he/she was not successful. This often leads to a suspicion that the result was unfair; that there was an element of bias, whether conscious or not, in the selection procedure or that a mistake has been made. (Office of the Information Commissioner, 1999)

The decisions of the Information Commissioner led to significant change in public appointments. It is now common practice for candidates to be informed of the selection criteria, including marking scheme and shortlisting criteria, and of their own individual marks. Another related area is that of employment references. As a result of decisions of the Information Commissioner, public recruitment bodies, when making requests for references, make it clear that the reference is potentially releasable under the FOI Act.

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Inspection reports: As a direct result of FOI, and following decisions of the Information Commissioner, the operations of many inspectorates and regulatory bodies are now open to the public generally either by way of automatic publication of reports on websites or by way of release of the information under the FOI Act. Particular examples include inspections of nursing homes, childcare facilities, primary and secondary schools. Nursing homes: In dealing with these cases, the then Information Commissioner took the view that, while the release of a critical inspection report could have negative implications for the nursing home operator, any commercial disadvantage would generally be outweighed by the public interest served in having such inspection reports available to the public. The cases dealt with by the Commissioner suggested a lack of consistency in approach in terms of frequency of inspection, prior notice and extent of inspection, follow-up in the event of unsatisfactory standards and general communications with nursing homes in relation to inspections. One important decision concluded that: there is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation. There is, also, a significant public interest in the public knowing how health boards respond to, and investigate, complaints made to them by members of the public in relation to specific nursing homes. (Office of the Information Commissioner, 2004)

School inspection reports: This decision reflected the same broad principle as in other areas that the public has the right to know the findings of a public inspectorate on an area of significant interest and importance. Another area in which this principle operates is in education. One decision dealt with the refusal to release primary school inspection reports. The Commissioner found that the information should be released. The decision was ultimately overturned by the Supreme Court and the initial refusal of the Department upheld. Interestingly, on the day the Supreme Court judgment was delivered, the Minister for Education announced her intention to publish school inspection reports and the first of these was published in June 2006. The present position is more or less in line with the position of the Information Commissioner at the time. Where do we go from here? At the time of writing there are a number of proposals for updating and enhancing the operation of FOI. The comments that follow incorporate my view of the extent to which those proposals may or may not help to create a system for ensuring openness and transparency to enable citizens to understand the workings of government and public bodies to ensure proper democratic accountability and confidence in the working of our democracy. These remarks are framed

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on the proposals as they stand at the time of writing. Inevitably, there will be changes subsequently that may impact upon my considerations. The Programme for Government, Government for National Recovery 2011–2016, contains a commitment to restore the FOI Act to what it was before the 2003 amendments and to extend its remit to other public bodies: We will legislate to restore the Freedom of Information Act to what it was …, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions. We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered. (Government of Ireland, 2011)

I welcome this commitment, as I think it is vital that we move away from the regressive provisions of the 2003 Amendment Act and restore the statutory provisions to provide for the level of access envisaged in the thinking behind the original Act of 1997, thinking that is set out elsewhere in this book. While acknowledging the changes, including reversing restrictions on access to government records and reducing FOI fees, there are further steps that would need to be taken to restore the legislation to its pre-2003 state, such as fully repealing the expansion of exemption for certain records containing information relating to security, defence and international relations. I also welcome the extension of FOI to approximately 100 additional bodies, including the Central Bank of Ireland, NAMA, the NTMA, An Garda Síochána, the Education and Training Boards (formerly VECs), the Office of the Refugee Applications Commissioner and the Refugee Applications, although there are significant variances in the degree of access. For example, only the administrative records of the Gardaí are subject to FOI. While any extension of the remit of FOI is welcome, I  think we need to be more holistic in how we view our primary statutory mechanism for ensuring openness and transparency. In that, I mean we should have such openness in situ for all public services (my emphasis) rather than limiting ourselves to the confines of the public sector. For example, operation of waste-collection services has in recent times been transferred from the public to the private sector. While I have no issue with the mechanisms our administration may choose to deliver its services, an activity such as waste collection remains a public service irrespective of whether your bins are emptied by a public or a private body. Therefore, in my view the same level of scrutiny should apply to that service as is the case for other publicly provided services. Accordingly, I would like to see the FOI Act, and other independent oversight mechanisms, apply equally to all public services irrespective of the funding or organisational nature of the providers of such services.

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The abolition of fees in the 2014 FOI Act is welcome. I  also believe it is essential that the FOI function is adequately resourced within public bodies. In her Annual Report for 2012, my predecessor highlighted a growing concern that many public bodies do not have an adequately resourced FOI function and the priority afforded to the administration of FOI matters by many public bodies appeared to have reduced as resources diminished and demands for greater efficiencies increased. I  am concerned that many public bodies are failing to ensure that the administration of the FOI process, as a statutory function, is afforded as much weight as any other statutory function. Unfortunately, my Office has faced similar resource challenges arising from the severe economic climate. Inevitably, any long delays in my Office act as an impediment to people getting access to the information to which they are entitled. Accordingly, I have welcomed the opportunity to have additional staffing and have introduced streamlined processes with a view to improving turnaround times. However, I  am not confident that the increased resources and improved efficiency will themselves be sufficient in light of the increased demand that will arise from the changes. Has the FOI regime achieved or surpassed expectations? Because of the concentration on the shortcomings, people often underplay the impact of FOI, but overall, access to information has been transformed and this has had a major impact on public debate. There has been a huge change in thinking by public bodies and this has contributed significantly to greater openness and transparency. The press and media generally have made extensive use of this access to challenge and inform. The 1997 Act marked a big step forward but the 2003 Act was a significant step backwards. The new legislation will go a long way to restoring the lost access, as well as extending FOI beyond its original scope. There was an initial big commitment to training and implementation but this has fallen away in recent times, partly because of the financial crisis and generally because some reduction is to be expected as the regime becomes embedded. Getting the most out of the new legislation will require commitment to training and resourcing of the FOI function in public bodies, especially those newly affected by FOI. I welcome the very positive engagement there has been with the Department of Public Expenditure and Reform regarding the legislation, and the very significant government commitment to enhancing the FOI regime. In conclusion, I believe that FOI has transformed public life and delivered on many of its promises. However, there is scope for even more openness in the future and for improvements to the administration of FOI to make it more effective. Finally, I believe that there is still some way to go in eliminating the remaining opposition to openness in some public bodies and developing a culture of transparency that can enhance our governance and help to rebuild faith in our institutions.

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Notes 1 According to minutes of meetings on the foi.gov.ie website, the Business Advisory group last met in 2003, the Citizens’ Advisory group has met just once since 2003 and the FOI Users’ network and the Interdepartmental Working Group appear to have last met in 2006. The local authority and HSE networks appear to have been better sustained.

References Blair, Tony (2010) A Journey. London: Hutchinson Department of Finance (2002) Action Plan on Compliance with Freedom of Information, available at http://foi.gov.ie/wp/files/2010/09/foi-compliance. pdf (accessed 9 August 2014) Department of Finance (2003) ‘High Level Working Group papers’, Record no. 14, email 27 June 2002, released 2003 under Freedom of Information Act to Eithne FitzGerald Department of Justice and Equality (2014) ‘Independent Review Group on the Department of Justice and Equality’, available at www.justice.ie/en/JELR/ Pages/ind_review (accessed 15 August 2014) Ferry, Declan (2012) ‘Call for major reform over unit’s €34m budget despite €60m deficit’ Irish Daily Mail, 31 December 2012 Government of Ireland (2005) Disability Act 2005. Dublin:  Government Publication Sales Office Government of Ireland (1997) Freedom of Information Act 1997. Dublin: Government Publication Sales Office Government of Ireland (2011) Government for National Recovery 2011–2016. Dublin: Government Publication Sales Office High Court (2001) ‘Deely vs The Information Commissioner’ [2001] IEHC 91 Houses of the Oireachtas Commission (2013) Annual Report 2012, available at www.oireachtas.ie/parliament/media/about/annualreports/Annual-Report2012-English.pdf (accessed 22 March 2014) Office of the Information Commissioner (1999) Annual Report of the Information Commissioner 1998. Dublin: Government Publications Stationery Office Office of the Information Commissioner (2004) ‘Mr X versus the South Eastern Health Board’ [02/0533], 16 February Supreme Court (2005) ‘Sheedy vs the Information Commissioner’ 21.R.272 [2005] Wall, Martin (2002) Speech to Department of Finance conference on Freedom of Information Act

9 Conclusions Maura Adshead, Tom Felle and Nat O’Connor

In the first chapter of this book, Nat O’Connor surveyed the international and comparative context within which we should situate our understanding of Ireland’s introduction of Freedom of Information (FOI) legislation. This overview revealed two key insights:  first, that there is plenty of well-established and long-standing international experience with freedom of information; and second, that this experience shows that FOI may be conceived of more narrowly, as administrative reform, or more broadly, as a foundation for the development of more open and transparent government. It is clear, then, that Ireland is not taking some punt in the dark with FOI: any doubts or queries that we have about the implementation of FOI are likely answered by pre-existing experiences elsewhere. Moreover, it seems that the preponderance of this existing experience tends to view FOI legislation not as an end in itself (though this is a useful and worthy step forward for citizens’ relations with the state), but as an important – though by no means singular  – tool for good governance. Within this wider international context, Ireland’s development of FOI could be considered tardy. This delay is explained, if not excused, by the particular historical context of the State’s foundation, including the British colonial legacy and the strong influence of the Catholic Church, which are outlined in Chapter 2. This makes plain that, whether we use a narrow or broad definition of FOI, the social, institutional and political set-up of the Irish state was antithetical to either. It is in this context that when the Freedom of Information Act was passed on 21 April 1997, and came into effect a year to the day later, on 21 April 1998, it was considered ‘ground breaking legislation’ because one of its primary aims was to change the culture of secrecy that had existed in Ireland, and to empower citizens (Foley, 1999: 62). Senator Brendan Ryan, who had introduced the 1988 Bill, described the Act as being of ‘huge constitutional importance … a magnificent

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revolutionary piece of legislation’ and reflecting a ‘political determination that administrative guile would not be allowed to undermine the spirit of openness’ (Ryan, 1999: 1). As FitzGerald notes in her contribution in Chapter 8, the original FOI Act marked a clear intention to change the culture of Irish government and possibly even its politics. Reverses to FOI, marked by the 2003 Amendment Act, suggest that this cultural change was not completely fulfilled and that the costs of FOI – administratively, financially and politically – were considered an adequate rationale for the legislative reverses in the 2003 amendment. The most recent Act pushes another attempt at political change, but all experience to date suggests that the political force of that push is essential to ensure change. Here we outline what we feel the various chapters in this book have contributed to our understanding of these issues, which we might loosely bracket together as culture, cost and change. We also include a detailed discussion of the cost of administring FOI requests by public bodies. We set this in context against the benefits of the legislation in terms of the less tangible contribution it makes to making institutions more accountable and transparent. The potential savings to the Exchequer as a result of FOI are difficult to quantify.

FOI and political culture: still a culture of secrecy? For the founders of this State, perhaps because of its violent birth and its colonial heritage, open and transparent government was not a priority. Quite the reverse: the new Free State was all about control. Power and decision-making was vested within Cabinet and, compared to many other parliaments, the Dáil was weak. Ministerial authority was supreme and civil servants were not encouraged to use their initiative. A quick succession of other significant challenges to the State – which with quiet understatement we commonly refer to as the ‘Emergency’ and ‘the Troubles’ – supported this attitude to government. A culture of private, and secret, government developed. There was, as it has been described elsewhere, a ‘vow of omerta-like’ dedication to protecting the State’s secrets. The Official Secrets Act, reintroduced in 1963, made it a crime for any civil servant to reveal anything, no matter how trivial. The result was a political system that, though still robustly democratic on a worldwide comparison, was inherently centralised and incredibly secretive. Commenting on the original Act, the current Labour Party leader and Tánaiste, Joan Burton, suggested that when FOI was introduced in Ireland in 1997, the country was ‘coming out of a culture of secrecy’ and that it was a time when ‘there was a demand from the public and civil society for increased accountability in government’ (Felle and Adshead, 2009). The historical context discussed in Chapter 2 illustrates the extremely high level of secrecy that Ireland was moving away from, and, if this is the bar, then Burton was correct in

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identifing a move towards more openness in government. If we are comparing the level of governmental secrecy that pertained in Ireland in the 1930s with that which exists today, then we can claim some success. The legislation, despite a number of criticisms, was broadly successful and praised internationally. As FitzGerald’s contribution points out in Chapter 8, there were a number of significant and positive shifts. Those within the Civil Service at the time recall a real sense of excitement and change with the passage of the Act. For a State that just a few years earlier had enthusiastically pursued journalists who had published government leaks, this was a significant cultural shift. It is hard to believe now, but up until 1997 the expenses claimed by a TD, or a patient’s hospital records, or one’s Leaving Certificate scripts were ‘secrets’. Now, inspection reports of nursing homes and crèches, attempts by ministers to canvas for their constituencies and decisions on public spending are all released as a matter of routine. More than any other piece of legislation, the FOI Act has helped to change our political culture  – for the better. Carroll’s description of changes in the Department of Transport (Chapter  8) and Mulqueen’s detailing the routinised informational improvements and open access to information about the Houses of the Oireachtas (Chapter 5) provide ample evidence for this. The legislation’s greatest achievement is probably least spoken of: the impact it has had on relations between citizen and the State. A succession of decisions by the Information Commissioner detailed by Felle and Sheridan (Chapter 7) has ensured that citizens have an entitlement to personal records held by the State. Reasons for refusals of medical cards or entitlement to social welfare benefits are now routinely forwarded in writing to those the decisions impact on, ensuring decision-making is not just open and transparent, but is based on correct interpretation of legislation and policies. Documents that form the basis of those decisions are subject to release under FOI. This is equally the case across the civil and public service, and in government decision-making on issues from minor procurement choices to lobbying by vested interests on Budget measures. Arguably, then, the impact has been positive on the quality of decision-making in State institutions because of FOI requirements impinging on the work of civil servants when dealing with citizens. Still, however, in relation to other aspects of public service, the impact of the Act was limited. Important organs of state such as the police (An Garda Síochána) remained excluded from the provisions of the 1997 legislation, as did the Central Bank, the Financial Regulator and many other public service bodies. These original exemptions are perhaps evidence that the Irish State’s concept of openness, while a big improvement on previous prevailing ideas earlier in the State’s history (Chapter 2), still fall well short by international comparison – an argument that is clearly made by Kavanagh when she looks at the legal basis for keeping state secrets (Chapter 3). The legacy that this has left in terms of public accountability

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for our policing is discussed in detail by Dowling in Chapter 4. Notwithstanding the extension and amendments in the 2014 Act, the insights provided by Kavanagh and Dowling, in Chapters 3 and 4 respectively, clearly suggest that the culture of state secrecy has not been entirely overcome. Moreover, the personal experiences relayed by Ryan and Sheridan, in Chapters 6 and 7, clearly suggest that the necessary training and centralised resourcing to ensure effective and timely access to FOI are largely absent. Without effective implementation the FOI Act remains a toothless tool for open government. Notwithstanding these shortcomings, however, we can point to significant achievements for FOI in Ireland, which cannot but challenge the entrenched culture of secrecy that the legislation is designed to tackle. The 1997 Act did lead to a number of exposés of government maladministration by both members of the media and by legislators. Chapter  6 details a number of these successes. Other examples include the indemnity granted to the Catholic Church by the then minister, Micheal Woods, against financial claims for sexual abuse by clerics, which left the State liable for hundreds of millions of euro in damages, uncovered by The Irish Times (Hennessy, 2003), and the Leas Cross nursing home inspection reports and health PPARS controversy uncovered by Opposition parties (O’Brien and Holland, 2003). In this case, FOI exposed the misjudgements and failure of regulation that led to the registration of these nursing homes in the first place. FOI requests gave access to Health Board inspectors’ reports that recommended against the registration of Leas Cross nursing home six years before the scandal broke. Fine Gael TD Fergus O’Dowd was named Magill Magazine TD of the Year in 2006 for his uncovering of allegations of sub-standard living conditions for elderly people in nursing homes in nursing home inspection reports using the FOI Act (O’Brien, 2006). Additionally, the misuse of funds within the State’s employment agency FÁS was revealed through FOI (Ross, 2008), as was the handling of a Government attempt to appoint a former Supreme Court Judge to the European Investment Bank, despite his having resigned from the court in controversial circumstances (McKenna, 2000); the management of public hospitals was put under scrutiny by FOI requests into the extent of MRSA infection (Sheehan, 2007), and FOI revealed the uneven availability of patient data across the public maternity hospitals (McAvoy et al., 2006). Altogether, as Kearney (1999:  10)  notes, the philosophy behind the 1997 Act was that a government that was more open to public scrutiny would be more accountable, and in this respect it has been broadly successful. In 2005, the Group of States Against Corruption (GRECO) report welcomed the 1997 Act and noted the importance of ‘transparency of public administration as an important factor for the prevention of corruption as well as for general confidence in the administration’ (GRECO, 2005: 25–26). But, it is reasonable to ask ‘at

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what cost to the public purse?’ In the following section we attempt a cost–benefit analysis of FOI in an attempt to assess its value for (taxpayers’) money.

Costing FOI: what price good governance? It has been argued by, for example, the former British Prime Minister Tony Blair (2010: 516–517) that a Freedom of Information Act is not worth the cost. This, we argue, is false, but it could be an infectious belief, so it is worth refuting it in detail. The argument that FOI costs too much is disingenuous, because it seeks to reduce public administration to a simple bookkeeping exercise, of balancing direct annual costs against revenue. Any serious account must include the estimated savings that are generated through preventing errors and wrongdoing. The various tribunals and claims against the State have shown that prevention is not just better than cure; it is much cheaper than the costs of investigations and compensation – the Morris Tribunal, as Dowling (Chapter 4) has noted, cost the State nearly €100m between legal costs and compensations payments. As Ryan (Chapter 6) notes, reportage by journalists since the Act was first introduced has included countless exposés of departmental overspending, maladministration and, indeed, occasional corruption in public bodies. While, thankfully, incidents of political corruption in Ireland are limited by international comparison, there have been a number of incidents reported on by the media as a result of FOI Act requests. One of the most notable was an investigation by the former Western Editor of the Irish Independent, Brian McDonald, who reported that a former Fianna Fáil councillor had €7,000 worth of work completed on his land, and billed by a contractor to the local council. He was convicted of a number of charges, though the convictions were later quashed following an appeal (McDonald, 2007). Indeed, the former Information Commissioner, Emily O’Reilly, suggested that if nothing else, FOI ‘keeps government honest’ (Felle and Adshead, 2009). Trust and public confidence in public bodies are also significantly increased as a result of transparency and openness. As Felle (Chapter 7) notes, the 2014 FOI Act explicitly references the need for public bodies to be open and transparent in their dealings with the public, so as to en/sure public confidence, strengthen accountability and improve the quality of decision-making in public bodies. A report by the Department of Public Expenditure and Reform on the reform of fees prior to the enactment of the 2014 FOI Act also noted that freedom of information, while placing a significant administrative burden on public bodies, also brought significant benefits in terms of openness, transparency and accountability of public bodies (2014: 2, 7, 18). A 2014 UK parliamentary report on the operational effectiveness of the United Kingdom’s FOI Act noted that while FOI imposes costs, it also creates savings when the inappropriate use

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of public funds is uncovered – or where fear of disclosure prevents the waste of public money (Houses of Parliament, 2012). With similar political and bureaucratic cultures, there is every reason to argue that the same savings have been achieved here. Cost of FOI Estimates for the average cost of processing a request in Ireland have varied. In 2008 the then Taoiseach, Bertie Ahern, estimated the initial cost at €425, but said it could have increased to as much as €600 by 2008 (Oireachtas Éireann, 2008); however, Mr Ahern offered no evidence to support this claim. The aforementioned report by the Department of Public Expenditure and Reform (2014: 2) repeated the €600 figure, but again no evidence was included in the report to substantiate this claim. While it is impossible to be definitive, the figure seems at the upper end of the scale in terms of the cost of processing a request. It is likely that while, on occasions, some requests do require significant search and retrieval time (and consequent labour costs for public bodies), it is also the case that some requests are relatively easily answered, and cost far less to administer. A number of factors are also likely to have decreased – rather than increased as Ahern suggested  – the average cost of processing FOI requests, including improvements in record-keeping, administrative changes towards a culture of openness to accommodate FOI, and electronic rather than manual searching with the advent of greater computerisation of public bodies’ files and e-government since 1998. To put this in perspective, the British newspaper the Daily Telegraph carried out a cost–benefit analysis of the United Kingdom’s FOI Act on individual government departments, compared to other departmental spending. It estimated the cost at about €375,000 (STG£300,000) per department per year. It found that FOI costs about the same to administer as the cost of running ministerial cars, and actually cost less than the design of the London Olympics logo (Flyn, 2012). A UK parliamentary report estimated that, on average, it takes 7.95 hours and costs €367 (£293) to answer a request, with the caveat that a small minority of requests accounted for a significant amount of time, thereby pushing up the average cost substantially (Houses of Parliament, 2012). A 2010 survey of local government by University College London’s Constitution Unit estimated the cost of FOI for local government at £31.6m that year, and that civil servants spent 1.2 million hours responding to nearly 200,000 requests – an average of six hours per request, and at a median cost of €198 (£158) (Bourke et al., 2011). It is not clear, therefore, why the former Taoiseach’s, and the Department of Public Expenditure and Reform’s, estimate for Irish public bodies is considerably more. If we take the two UK research studies as a basis for analysis: local authorities took an average of six hours to deal with a request, while central government

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took on average 7.95 hours  – a reasonable compromise might be an average of seven hours per request, in terms of time to answer an FOI request. The Department of Public Expenditure and Reform report notes that the €20.95 search and retrieval fee underestimated the actual administrative cost of search and retrieval (in terms of pay) by up to 50 per cent (2014: 2). This would mean that, at an estimated €42 an hour, and at an average cost of €600 per request, the amount of time (on average) spent on a request by Irish public bodies is a little less than fifteen hours – almost double the financial cost and the person hours of the UK FOI system. Using figures for requests per year, we estimate a likely cost of FOI for public bodies – both in terms of person hours, and in terms of financial cost. Table 9.1 details the number of requests received per year by public body, while Table 9.2 demonstrates the cost of FOI for public bodies, for person hours, at the higher UK central government estimate (€367) and upper Irish (€600) estimates. Putting all these figures together, the cost of FOI in terms of a total number of person hours is 3.167 million for the years 2000–2013 – about 226,000 hours per year for all public bodies, and about 74,000 hours per year for Civil Service departments. Based on the Irish €600 per hour cost of administering a request, the total cost of administering the 211,159 FOI requests made during the years 2000–2013 would be €126m. The average per year cost is just over €9m; and for central government departments is just under €3.2m, or €213,000 per department per year, assuming an equal distribution of requests per year, and an equal distribution of associated time in processing requests (though this is, of course, not the case, the figure serves as an example). Putting this in context, the cost of FOI as a proportion of the cost of the total State budget (Department of Finance, 2013):

Total voted and non-voted expenditure 2012:

€49.564bn

Average cost of FOI/yr:

€9.049m

Cost of FOI as a percentage of total budget:

0.018%

The aforementioned UK parliamentary study estimated the cost of FOI as a percentage of total government spending at between 0.0016% (central government) and 0.028% (NHS) (Houses of Parliament, 2012) – so the total estimated percentage figure for Ireland is not significantly different. It is arguable, therefore, that the cost of FOI (even at the higher estimate) is neither significantly out of proportion to the United Kingdom, nor in and of itself an enormous sum in the context of annual State spending.

newgenrtpdf

Table 9.1  Number of FOI requests received per year by public bodya,b Year

Local authorities

HSE

Voluntary hospitals, mental health services

Civil service depts

Third-level educational institutions

Other public bodies

Total

1998 1999 2000

2,398

2,307

1,344

7,656

2001

2,809

2,660

1,414

8,099

446

2002

2,861

3,303

1,452

7,499

891

1,190

17,196

2003

2,668

4,237

1,841

7,560

750

1,387

18,443

2004

1,481

3,519

1,663

4,664

517

741

12,597

2005

1,311

3,895

1,784

6,455

486

685

14,616

2006

1,371

4,007

1,673

3,680

480

583

11,804

2007

1,300

3,955

1,780

2,645

439

585

10,704

2008

1,517

4,231

1,988

3,588

488

852

12,672

2009

1,657

4,788

2,496

3,908

494

943

14,290

2010

1,510

5,404

2,834

4,213

398

878

15,249

2011

1,436

6,141

2,891

4,599

432

880

16,517

2012

1,528

7,469

3,597

5,010

432

845

18,953

13,705 15,428

2013

1,252

7,809

3,554

5,016

426

759

18,985

Total

25,099

63,725

30,311

74,592

6,679

10,328

211,159

Source: Office of the Information Commissioner, 2000–2013 a   Figures for years 1998 and 1999 are not available. b  Reference years for third-level institutions and other public bodies are 2000–2013, and 2001–2013 respectively, as figures for 1998–2000 and 1998–2001 respectively are not available.

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Table 9.2  Estimated cost of FOI by public body, 2000–2013a,b Local authorities

Total requests Person hrs x15

25,099

HSE

Voluntary hospitals, mental health services 63,725

30,311

Civil service depts

74,592

Third-level educational institutions 6,679

Other public bodies

Total

10,328

211,159

376,485

955,875

454,665

1,118,880

100,185

154,920

3,167,385

UK (€367)

€9,211,333

€23,387,075

€11,124,137

€27,375,264

€2,451,193

€3,790,376

€77,495,353

Irish (€600)

€15,059,400

€38,235,000

€18,186,600

€44,755,200

€4,007,400

€6,196,800

€126,695,400

€1,075,671

€2,731,071

€1,299,043

€3,196,800

€516,400

€9,049,671

Avg €/yr

€308,261.54

  Figures for years 1998 and 1999 are not available.  Reference years for third level institutions and other public bodies are 2000–2013, and 2001–2013 respectively, as figures for 1998–2000 and 1998–2001 respectively are not available.

a

b

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Table 9.3  Net fees collected for FOI requests, 2004–2013 Year

Net fees collected (€)

2004

77,401.66

2005

78,309.17

2006

80,986.94

2007

73,519.31

2008

99,765.99

2009

117,762.64

2010

94,861.00

2011

87,439.00

2012

99,022.44

2013

95,193.98

Total

904,262.13

Source: Office of the Information Commissioner, 2004–2013

Income from FOI The fee regime introduced in the 2003 Amendment Act – introducing up-front charges for requests – has been much criticised by a number of contributors, including Dowling (Chapter  4), Ryan (Chapter  6) and Sheridan (Chapter  7). Details of fees collected by public bodies (including search and retrieval charges) are shown in Table 9.3. Fees almost exclusively relate to charges for FOI requests (€15), though charges are also levied for search and retrieval costs (€20.95 per hour), photocopying, fees for internal appeal (€75) or review to the Information Commissioner (€150). Many of these charges have been abolished or substantially reduced in the 2014 legislation. In total, €904,000 was collected by the State – an average of €90,000 a year – in fee income from FOI. It is clear that at €90,000 a year, income from FOI fees between 2004 and 2013 was extremely low. In that context, the value for money of the fee regime between 2004 and 2013 was questionable. It added an extra administrative cost and, it is arguable, created a tangible barrier to people making requests and added little to cost recovery. It must be acknowledged that FOI does come at an administrative cost to public bodies. An FOI regime that places an undue burden on public bodies will never be successful because it will never create buy-in from the civil and public servants required to administer the Act, if it means a significant extra workload for officials. An FOI regime that is prohibitively expensive to administer is also of no value to taxpayers – if processing FOI requests diverts resources away from other important functions. The Department of Public Expenditure and Reform has noted (particularly in the context of civil and public service

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recruitment freezes) that any large increase in non-personal requests would ‘impact adversely on the capacity of public bodies to carry out other statutory responsibilities’ (2014: 3–7). It is also reasonable to expect the State to ask users of the legislation to make some contribution to the cost of administering requests under FOI, especially in circumstances where complex requests for non-personal information put a strain on the resources of public bodies, so long as there are reasonable safeguards and public interest overrides in place to ensure that public bodies are not allowed to hide behind a fee regime to prevent release of important information. This is not unusual by international standards (Bourke et al., 2011). The reasons behind the introduction of the €15 fee in 2003 included efforts to recoup some administrative costs, and because the absence of an up-front application fee had ‘facilitated “trawls” through the records of Government Departments, often by journalists, which was not in keeping with the original objectives and spirit of the Act, had little or no public benefit, and diverted administrative resources away from other priorities’ (Department of Public Expenditure and Reform, 2014). What is important is the balance to be struck between seeking to recoup costs and the value to the State in terms of democratic accountability, openness and transparency. As Table 9.2 demonstrates, up-front fees for requests did little to aid cost recovery. In fact, since fees don’t recoup costs, they arguably only increased the total financial burden on taxpayers by adding even more cost in terms of the administrative time used to process cheques. In that context, the abolition of up-front fees for requests in the 2014 Act was a welcome move. The reduction, though not removal, of fees for internal appeals and review by the Information Commissioner in the 2014 Act is regrettable. As Ryan and Sheridan (Chapters 6 and 7) note, such charges, as well as major inconsistencies in the decision-making process by public bodies, the lack of a system of precedent (most likely because of the collapse of networks and training for public bodies, as FitzGerald, Chapter 8, notes), and significant delays in decision-making by the Information Commissioner impacted on the Act’s usefulness as an accountability measure between 2003 and 2014. Charges for appeal and review in the 2014 Act may also deter legitimate public interest appeals, and likewise limit the Act’s usefulness in holding public bodies to account. Benefit of FOI An alternative method of providing (retrospectively) open government is the tribunal of investigation. The Comptroller and Auditor General estimates that the cost of three tribunals set up since 1990 are likely to cost the taxpayer in the region of €336–366m by the time they conclude their work (re Mahon, Morris and Moriarty tribunals; Comptroller and Auditor General, 2008). These costs

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represent multiples of the annual cost of FOI and yet only apply to the specific areas under investigation. The greater offset against the cost of FOI is of course the prevention of major and minor mistakes by public bodies. It is logically impossible to calculate the cost of a mistake that was prevented. However, the examples listed by Ryan (Chapter 6) and Sheridan (Chapter 7) illustrate some (and only some) of the savings to the taxpayer through FOI. Equally, the discussion by Dowling (Chapter 4) regarding the erosion of public trust, and the need for openness in the operations of An Garda Síochána, points to the importance of ‘public confidence’, which, though hard to quantify in terms of financial cost, is nevertheless vital in terms of public trust in the State’s police force. Sports Campus Ireland is an example of a project where FOI requests played a role in bringing its costs to public attention and, in part, to an end. It is reasonable to suggest that the taxpayer benefited from FOI, and the savings are substantial. For example, the final projected cost was €1.1bn for the stadium that was never built (which had soared from an initial planned cost of €280m). This was money saved, in part, by FOI (Glennon, 2002). Electronic voting machines cost the taxpayer up to €60m, despite only being used in three constituencies for a trial run. This is not money that FOI saved, as it was spent. But it can be argued that the continued probing and FOI requests into these machines forced the Government to, belatedly, abandon a costly project that saved the sum of nearly €1m per year that was being spent for secure storage (Melia and Byrne, 2012). A special tax rate given for land development from 2000 to 2009 cost the Exchequer in the region of €800m. This special tax treatment fuelled a housing and construction bubble, leaving a legacy of high mortgages, negative equity and a vast surplus of empty housing across the country. RTE reports that the facts about the special tax rate ‘emerged’ in December 2009 (RTE News, 22 January 2010). With more open government it is highly likely that this kind of thing would have emerged much sooner and been subject to more objective scrutiny for its value for money. These cases illustrate that the costs to the public from extravagant or poorly audited decisions made by government can cost hundreds of millions of euro. The annual cost of FOI pales into relative insignificance in comparison. If the influence of FOI can claim even a tenth of the €1.1bn saved by not building the ill-advised national stadium (i.e. €110m), it has almost paid for the entire cost of FOI since 1998. In addition to the above cases that illustrate the money saved for the taxpayer, thousands of individuals have also benefited on a personal level. For many of them, an FOI request has helped resolve some important concern in their personal dealings with the State (see Felle, Chapter 7). In many cases, FOI can help clear up an error in administration or provide an individual with the assurance that their case was treated fairly. More extreme examples include

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those who were in state residential care and who suffered physical and/or sexual abuse. Access to their records is an important part of their gaining ownership and empowerment in their dealings with the State. While this may not generate a monetary benefit for the taxpayer, it seems obvious that it is right to have open government for the sake of accountability for people who suffered due to the State’s failures. Of course, freedom of information is not morally justified by saving money or generating economic growth. It is justified independently by the strong ethical and democratic arguments that recognise the value of open government. Nevertheless, on any kind of reasonable estimate, freedom of information is also well worth the money.

FOI: the litmus test for political change? Would the world be a better place today if the Watergate scandal had never erupted into popular consciousness? That is, would it have been better if the people never knew that the US President was involved in an elaborate cover-up of a break-in to the Opposition party’s headquarters and the tapping of phones? The use of ‘gate’ words (such as ‘Lawyergate’, ‘Pardongate’) has become part of the language of politics used to describe any kind of scandal in the United States and elsewhere. But the original sin that spawned this legacy was secrecy. Freedom of information is designed to tackle government secrecy and help move us towards more open government. Open government is not just about corruption or illegal activity, but is also concerned with exposing decisions that are driven by vested interests or simply uncovering decisions that are not very sensible when viewed from a different perspective. These so-called ‘white elephant’ projects occur in every state, wherever over-ambitious or egotistical ministers seek to create a lasting legacy to their time in office by ordering something to be built or some other major project, which ultimately costs far more than planned and drains a disproportionate amount of taxpayers’ money away from core public services. Citizens in Montreal, for example, spent thirty years paying off the $1.5bn debt that resulted from hosting the Olympic Games in 1976 (Newton, 2012). The mayor of Montreal at the time had boasted that the Games would be the first auto-financed Olympics. Another example is the infamous Millenium Dome in London, designed to cost €50m (£43m), but ending up costing more than €730 (£600m), and was eventually sold for €1.25 (£1) (Tobin, 2012). In some cases, the misdeeds are more sinister, involving inappropriate business connections between contractors and politicians, if not outright bribery. In Ireland, candidate white elephants include: the chronic under-specification of the M50 and its interchanges, which led to much more expensive work being carried out to add extra lanes and upgrade the roundabouts into interchanges;

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electronic voting machines; Sports Campus Ireland’s national stadium, which never materialised; the ‘ghost’ housing estates across the country where tax incentives, poor planning and reckless lending led to a massive over-supply of houses in places where they were not wanted, and under-supply in others. The list could go on. With a fully functional FOI regime, such potential ‘white elephants’ come under much more scrutiny from the outset. Many pairs of eyes are certainly better than one when it comes to such projects, and the public includes many competent experts who will give their time to the civic act of making sure poor decisions don’t waste public money. Some politicians resist open government as an encroachment on ‘their’ role in making decisions or monitoring public policy. But in fact it requires a certain level of arrogance on the behalf of politicians to think that public access to official information is about them at all. As O’Connor demonstrated in Chapter 1, for some democracies with a long history of FOI, there is nothing more naturally democratic than all citizens having access to the maximum amount of information about decisions made in their name and with their money. As O’Connor’s chapter also demonstrated, however, this idea of FOI reflects a broad conceptualisation of FOI as a foundation for open government: not simply an administrative arrangement to ensure citizens’ access to information about them held by the State. Throughout this book, we have seen that the Irish state encompasses a wide variety of approaches to FOI, which range from narrow to broad. And the consequence of this uneven interpretation of FOI has been uneven implementation. Chapters  2 (Adshead) and 8 (FitzGerald, Carroll and Tyndall) illustrate the broader intent that guided the first Freedom of Information Act in 1997. The 1997 Act was part of a raft of legislation presented by the then Rainbow Government designed to shed light on the workings of government, and make the Irish state more transparent. Following six years of operation, the Fianna Fáil–Progressive Democrat Government introduced an Amendment Act in 2003 that severely curtailed the scope of the original Act. The 2003 amendments introduced new provisions to protect many government documents and correspondence between ministers from release; it introduced fees for requests, and larger fees of up to €150 for appeals of decisions (Freedom of Information (Amendment Act) 2003, s  14; SI 2003/264, s  3). Commenting on the 2003 Amendment Act, Tánaiste and Labour Party leader, Joan Burton, described how the ‘Sir Humphrey’-like secretaries general of several government departments had ‘paraded before a Dáil committee to deride freedom of information’ and that, in consequence, the original act was ‘gutted’ (Felle and Adshead, 2009): I remember in the 2003 Amendment Act all of the ‘Sir Humphreys’ came in, the Secretary Generals of various Government departments led by the Secretary General to the Government came in and very pleasantly and very plausibly said

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freedom of information had to be restricted because basically they couldn’t operate, you got the impression people were afraid to make a note in case some pernickety person picked it up and was wondering what a little scrawl or tick on a file by a minister or by a senior civil servant meant. (Ibid.)

At that time, the then Finance Minister Charlie McCreevy described the legislation as necessary, saying: ‘The processes of government are too important for the real public interest of our society to allow them to be undermined [by FOI]’ (Oireachtas Éireann, 2003). That legislation, though it was not explicitly admitted, was specifically designed to remove Cabinet decision-making and correspondence between ministers from public scrutiny. It included wide-ranging exemptions under which access to documents could be refused; introduced a fee regime for making requests; and legislated for a wide-ranging blanket ban on the release of government documents. The legislation rowed back on many of the original principles of the 1997 Act and ushered in a more narrowly bureaucratic interpretation of FOI. At this point, after six years of operation, the legislation had had some important impacts (see Chapters 5, 7 and 8), but arguably some cultural practices within a Civil Service more comfortable with the Official Secrets Act were slow to change (see Chapters 4 and 6). With the amendment of the original FOI Act, the Fianna Fáil–Progressive Democrat administration enabled a political cultural drift away from the original Act’s principles and back towards a more politically pragmatic view of ‘open government’. The enthusiasm for change was gone and the administrative system responded to the political cues that it was given. Much anecdotal evidence suggests that following the Act’s amendment, FOI requests were typically viewed on a scale somewhere between mild annoyance and open disdain: the strides that had been made towards open government slowed to a crawl. Instead of opening up government, the amending legislation put a limit on openness. Internationally, the Council of Europe’s anti-corruption arm, the Group of States against Corruption (GRECO), criticised the Irish government for introducing fees for FOI requests (2005:  25–26). In this context the 2005 GRECO report on Ireland, adopted by the Council of Europe in December 2005, is noteworthy. It criticises the new fees regime, introduced in the 2003 Amendment Act, saying the fee rules ‘could prevent the public from requesting information and/or appealing a decision not to give out information. Above all, the fee system … sends a negative signal to the public, which is to some extent in contradiction with the general principles of the right to access to official information’, and recommended the Government should ‘reconsider the system of fees’ for FOI requests (ibid.). The Organisation for Economic Co-operation and Development (OECD), in a report on the Irish public service, also recommended dropping up-front fees for requests. It

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said: ‘The government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free … While user charges may limit frivolous requests (and thereby reduce burdens on the Public Service), they also serve as a disincentive to greater openness’ (OECD Public Management Review, 2007: 7). In the years that followed, Ireland’s Celtic Tiger roared, fuelled in the main by cheap credit from banks that benefited from light-touch regulation. It wasn’t until the crash came that questions about that regulation began to emerge. By 2011, Ireland’s economy had all but collapsed; the country required International Monetary Fund assistance and entered a bailout programme. Many commentators now questioned the basis upon which financial decisions at government level were made, and why regulation of the banking and financial industry had not been more robust. It is impossible to say what impact the 2003 Amendment Act had; however, it is reasonable to posit that had Ireland had a more open and transparent system of government decision-making, especially in relation to economic matters, at least some of the catastrophic consequences may have been avoided. A  worrying revelation for Ireland’s democracy was when FOI requests showed that the Government was aware of worsening public finances before a general election but did not reveal this information until afterwards (Minihan, 2014). This inappropriate abuse of the Government’s power to keep secrets showed contempt for voters. Throughout the ups and downs of Ireland’s experience with open government, the media’s use of FOI continued, though many journalists became frustrated (see Chapter 6), complaining that requests for information were pointless, as documentation on which important decisions were made was either outside the scope of the legislation (see Chapter 4), or else didn’t exist at all (Chapter 7). There were accusations that civil servants were using Post-it notes, Gmail and text messaging – or avoiding writing anything down at all – to avoid scrutiny by the media (Felle and Adshead, 2009). Nevertheless, the media became intensive users of the legislation. TDs’ expenses, unpublished reports and various internal memos were released under FOI and used for exposés and exclusives – some good and some bad. The section above details some of the important public interest journalism that was conducted, including healthcare investigations and public spending probes. Yet, as Mulqueen and Carroll point out in Chapters 5 and 8, there was also a good dose of ill-thought-out sensationalist hyperbole about the usual costs of political and democratic administration. There is much evidence to suggest that Irish political culture as a whole did not treat FOI with the maturity that other states with longer experience do. The normal gestation process of government decision-making very often required civil servants to produce ‘pro and con’ lists, offering counter-advice to ministers, or position papers that included an opposing view to ensure ministers

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were fully briefed before making an important decision on a particular policy issue. These often proved explosive ammunition for Opposition parties, and the media, who quickly seized on them. Headlines often followed proclaiming knowledge of ‘secret warnings’ that ministers had ignored, and often suggesting to political insiders that many journalists do not have a detailed (or even any) knowledge of the internal processes of government (see Chapters  5 and 8). More often than not, Opposition TDs were happy to take the opportunity to score political points. Once more, there is much evidence, from all sides, to suggest that FOI in Ireland did not lead to mature, democratic debate and discussion as a means of improving public policy. Arguably, the failure of some members of the media to provide context to articles published as a result of FOI requests was a significant factor in convincing the Fianna Fáil–Progressive Democrat Government in office in the early 2000s that the legislation was damaging their ability to conduct government business. There were also accusations of journalists going on ‘fishing expeditions’ in making serial requests for information, which had to be processed at considerable financial cost to departments of State. This not only caused considerable annoyance to both senior civil servants and members of the then governing parties, but it also led the then government to conclude that some in the media (and Opposition parties) were selectively using FOI documents for their own political ends. It was unfortunate, though perhaps inevitable, then, that the Act itself became intensely politicised. Still, however, as the section above demonstrates, the benefits of FOI still considerably outweigh the costs. And it was perhaps with this in mind that the newly elected Fine Gael–Labour Government, and Minister Brendan Howlin, agreed in its Programme for Government in 2011 to restore FOI and committed itself to openness at the heart of government. That new legislation restored a presumption of access and placed openness and transparency again at the heart of government. It also placed An Garda Síochána, the Central Bank and a number of other agencies inside the scope of FOI for the first time; though clearly, as Kavanagh, Dowling, Ryan and Sheridan point out, the Act still falls short of international best practice in key areas. Notwithstanding the limits, however, FOI has still been extremely important in Ireland. For the victims of child sexual abuse in State and Church institutions, survivors have been able to see their own files and know what was written about them. Access to these files has also been important for the legal process of compensation for survivors. Taken as a whole, society benefits greatly from the fact that this process is happening, even though much of the detail may (rightly) be kept private to the survivors. Though it is obviously difficult and upsetting for many of the survivors to revisit the past, access to their files has given them some sense of empowerment in documenting what happened to them. In accessing their files, survivors can prove to the world that their stories

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are real and can show what really happened behind a veil of secrecy that hundreds of people worked to maintain. In its effect, although it is structured very differently, this process is akin to the truth and reconciliation work done in South Africa to allow society to acknowledge wrongdoing, make reparations where possible and move forward. The fact, however, that the information obtained under FOI was kept secret, whether about the quality standards of nursing homes or information about institutions where children were abused, points to the continuation of the strong political culture that still supports secrecy in the Irish State, and helps to explain why those who did know about these incidences did not speak out. Information on abuse was clearly available to the Department of Education for years before abuse in institutions ended. A culture of secrecy, combined with a lack of protection for whistle-blowers, made a bad situation worse through delays and inaction. It is in this context that FOI may act to provide an important  – but by no means singular  – safeguard alongside bodies such as parliament and the Comptroller and Auditor General, and other legislative safeguards against the inappropriate or illegal activity by public bodies or in the use of public resources. If there is one thing, however, that all of the contributors to this book agree upon, it is that if FOI is to work effectively in Ireland, much more change is required than the passing of a legislative Act.

References Blair, Tony (2010) A Journey. London: Hutchinson Bourke, Gabrielle, Amos, Jim, Worthy, Ben and Katzaros, Jennifer (2011) FOIA 2000 and Local Government in 2010: The Experience of Local Authorities in England. London:  University College London Constitution Unit. Available at www.ucl.ac.uk/constitution-unit/research/foi/foi-and-local-government/ 2010-foi-officers-survey.pdf (accessed 20 August 2014) Comptroller and Auditor General (2008) Special Report 63: Tribunals of Inquiry December 2008. Dublin: Government Publications Stationery Office Department of Finance (2013) Finance Accounts 2012. Dublin:  Government Publications Stationery Office Department of Public Expenditure and Reform (2014) Proposals for Reform of FOI fees. Dublin: FOI Central Policy Unit, Department of Public Expenditure and Reform Felle, Tom and Adshead, Maura (2009) ‘Democracy and the Right to Know:  10  years of Freedom of Information in Ireland’ Limerick Papers in Politics and Public Administration 4, University of Limerick Flyn, Cal (2012) ‘What price freedom (of information)’ Daily Telegraph, 22 March

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Foley, Michael (1997) ‘Openness to replace public service secrecy under new information law’ The Irish Times, 12 April Foley, Michael (1999) ‘What the Freedom of Information Act does not provide: A journalist’s view’ in Joseph Donnelly and Mary Doyle (eds) Freedom of Information: Philosophy and Implementation. Dublin: Blackhall Publishing Glennon, Chris (2002) ‘€1bn puts paid to dream of Bertie Bowl’ Irish Independent, 1 February 2002 Government of Ireland (1963) Official Secrets Act 1963. Dublin: Government Publications Stationery Office Government of Ireland (2003) Freedom of Information (Amendment) Act 2003. Dublin: Government Publications Stationery Office. Government of Ireland (2003) Statutory Instrument 264 2003. Dublin: Government Publications Stationery Office Group of States Against Corruption (GRECO) (2005) Evaluation Round Compliance Report on Ireland 9E. Strasbourg: Council of Europe Hennessy, Mark (2003) ‘Did the State answer the church’s prayers?’ The Irish Times, 12 February Houses of Parliament (2012) Report on Post-Legislative Scrutiny of the Freedom of Information Act, 2000. London:  House of Commons Select Justice Committee, 2 July 2012, available at www.publications.parliament.uk/pa/ cm201213/cmselect/cmjust/96/9602.htm (accessed 20 August 2014) Kearney, Gerry (1999) ‘The Freedom of Information Act 1997: Philosophy, implementation and impact’ in Joseph Donnelly and Mary Doyle (eds) Freedom of Information: Philosophy and Implementation. Dublin: Blackhall Publishing McAvoy, Helen, Sturley, Jennifer, Burke, Sara and Balanda, Kevin (2006) Unequal at Birth: Inequalities in the Occurrence of Low Birth Weight Babies in Ireland. Dublin: Institute of Public Health McDonald, Brian (2007) ‘Fraudster councilor to cast Seanad vote in jail’ Irish Independent, 5 July McKenna, Gene (2000) ‘Opposition to challenge O’Flaherty appointment’ Irish Independent, 22 May 2000 Melia, Paul and Byrne, Luke (2012) ‘€54m voting machines scrapped for €9 each’ Irish Independent, 29 June 2012 Minihan, Mary (2014) ‘TOP SECRET Memorandum for Government Economic and Budgetary Strategy 2004–2006’, F43/1/03 Department of Finance internal document, released under FOI. Displayed in ‘ “Secret” record warned period of exceptional economic growth was over’ The Irish Times, 1 July. Newton, Paula (2012) ‘Olympics worth the price tag? The Montreal legacy’ CNN online, 20 July, available at http://edition.cnn.com/2012/07/19/world/ canada-montreal-olympic-legacy/index.html (accessed 21 August 2014) O’Brien, Carl and Holland, Kitty (2003) ‘Inspection of nursing homes shown to be inadequate’ The Irish Times, 2 August

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O’Brien, Paul (2006) ‘Donaldson Survivor of the Year award a black twist’ Irish Examiner, 5 April OECD Public Management Review (2007) Ireland: Towards an Integrated Public Service. Paris: Organisation for Economic Co-operation and Development Oireachtas Éireann (2003) Dáil Debates, Vol. 563/856, 25 March 2003. Dublin: Government Publications Stationery Office Oireachtas Éireann (2008) Dáil Debates, Vol. 647/812, 28 February 2008. Dublin: Government Publications Stationery Office Ross, Shane (2008) ‘FÁS:  The €20m a week quango’ Sunday Independent, 13 July 2008 RTE News (2009) ‘Developers benefited from special tax rate’, 2 December RTE News (2009) ‘Developers’ tax rate cost Exchequer €800m’, 22 January, available at www.rte.ie/news/2010/0122/126670-revenue (accessed 16 March 2015) Ryan, Brendan (1999) ‘Building a society of free information’ in Joseph Donnelly and Mary Doyle (eds) Freedom of Information:  Philosophy and Implementation. Dublin: Blackhall Sheehan, Maeve (2007) ‘MRSA bug in Wexford revealed’ Sunday Independent, 10 June 2007 Tobin, Lucy (2012) ‘Millennium Dome:  White elephant that learned to fly’ Independent, 20 September

Index

Abbotstown stadium 148 Access to Information on the Environment (AIE) Directive of the EU 39–41, 140 access to records 89–91, 107–108, 124–127, 137, 156–157, 175 accountability 86, 175 Action Plan on Compliance with Freedom of Information (2002) 145 Adams, Gerry 39 Adshead, Maura ix, 2, 4 Ahern, Bertie 34, 76, 104, 168 appeals mechanisms against freedom of information decisions 16, 149–150 Arnold, Bruce 53 audit reports 109–111 Australia 39, 58, 80–81, 126, 145 Banisar, D. 9 Beef Tribunal (1991–94) 40–41, 45, 103 Benchmarking Body (for public sector pay) 146 Bill of Rights (US) 6 Birkinshaw, Patrick 69 Blair, Tony 151, 167 Bon Secours orphanage 45 Broadcasting Act (1960) 39 Browne, Vincent 96 Bruton, John 41 Burton, Joan 164–165, 176–177 Byrne, Gay 71 Cabinet papers 21–22, 36, 43, 61–62, 157 Callely, Ivor 104 Callinan, Martin 70–71 Canada 145 Carroll, John ix, 4, 22, 150–155, 178 Catholic Church 35–38, 44–46, 81, 163, 166

‘Celtic Tiger’ era xvi, xix, 178 censorship 37–39 Central Policy Unit on Freedom of Information (Ministry of Finance) 145 certificates issued by ministers prohibiting ­disclosure xviii, 22–23, 55–56, 61–64, 74, 79 child abuse and child protection 28, 44, 81, 103, 179 Churchill, Winston 87 Chydenius, Anders 6 citizen oversight of public bodies 72 citizens’ use of freedom of information 4, 24–27, 89–90, 126–132, 138 civil service traditions 35–36, 55, 63, 165 Cloyne Report (2011) 44 codes of practice on freedom of information xvii, 102, 105, 111–113, 118 on governance of state bodies 147 Coliver, Sandra 52 colonial legacy in Ireland 35, 163 commercial sensitivity xviii, 141 communications, political 91–94 Connolly, Eileen 20 Conroy, Noel 70 conservatism, political and social 34 Constitution, Irish 54–55 Cooke, Pat 56 Cork County Council 110–111, 116 Cork Institute of Technology 111 corruption in Irish public life 102–103, 167 costs of freedom of information 167–175, 179 Council of Europe 8–11, 177 Courts Service 42 Cowen, Brian 15, 44

184 The Daily Telegraph 168 decision-making processes, effect of freedom of information on 126, 137, 146–147, 165 deletion of information from records 123 democracy and democratisation 11, 35, 89, 176 imperfections in 87 Department of Justice 42–43, 55, 71, 74, 81, 145 De Rossa, Proinsias 12 De Valera, Éamon 38 Disability Act (2005) 149 Doherty, Sean 54, 69 Dooley, Seamus 108 Dowling, Richard ix, 3, 76, 165–166, 174 Doyle, John 39 Dunion, Kevin 43, 106 Dunne, Ben 103 Dunphy, Eamon 102–103 Emergency Powers Act (1939) 38–39 empowerment of the public 94–95, 148–150, 163, 175, 179 engagement of the public with politics 88–90, 94, 98 European Centre for Parliamentary Research and Documentation 88 European Convention on Human Rights (1950) 8, 54–55 European Union (EU) 10–11, 39–42, 140 exemptions from freedom of information xviii, 4, 17–20, 72–80, 109–112, 124, 139, 160, 165, 177 expenses of parliamentarians 85, 107, 112–115, 148 Farrell, Brian 36 fees for freedom of information requests xvi, 15, 26, 33, 80, 105–106, 111, 117, 129, 138–139, 158, 161, 172–173, 177–178 Felle, Tom x, 4, 165, 167 Fennelly J. 157 financial regulation xix Finland 9 Finucane, Pat 79 ‘fishing expeditions’ 179

index FitzGerald, Eithne x, 4, 12, 32, 39, 41, 126, 132, 144–150, 164–165 Flanagan, Charlie 45 FOI Civil Service Users’ Network 42 Foley, Michael 104 Foras Áiseanna Saothair (FAS) 150, 166 Fox, Ronan 109 Foxe, Ken 105–108, 154 France 7 Franks, Lord 78 freedom of expression and free speech 7–11, 53–54 freedom of information benefits gained from 27–29, 173–175, 179 and decision-making processes 29, 38, 126 difference made by 158, 161, 165–166, 179 evolution in Ireland 11–16 importance of 1 and legitimate secrecy 16–18, 52–57 legacy of 155–156 narrow and broad approaches to 2, 4–5, 142, 163, 176 number of public bodies covered by 18–20 as part of a broader change in attitude 86 related to current policy-making 15–16 seen either as administrative reform or as integral to democracy 15 understanding and awareness of 90–91, 133–134, 137 use made of 4, 24–27, 89–90, 126–132, 138 Freedom of Information Act (1997) xv, xviii, 12, 16, 18, 32, 56–65, 72, 87, 102, 104, 122–124, 138, 144–145, 159–161, 163–166, 176, 178 Freedom of Information (Amendment) Act (2003) xv, xviii, 13, 16, 18, 23, 33, 39–40, 43, 46, 59–65, 68, 104–105, 117, 123, 129, 145, 152, 157–161, 164, 172, 176–178 Freedom of Information Act (2014) xvi–xix, 19–20, 53, 62–65, 68–69, 72–74, 81, 105, 111, 118, 122–126, 138–141, 149, 160–161, 164–167, 172 freedom of information requests 129–141 costs of processing 168–169, 171

185

index experience in the use of 134–137 making of 123–124 non-personal 138–141 number of cases 95–96, 129–130, 170 personal 132–137 reasons for 134 released via Twitter 131 success rates for 127–128, 145 Gageby, Douglas 38 An Garda Síochána 3, 19–20, 33, 45, 68–81, 160, 165, 174, 179 compared with police services abroad 76–81 misconduct by 70–72 Garvin, Tom 35, 45–46 global financial crisis xvi, 178 government, definition of xviii Group of States Against Corruption (GRECO) 166, 177 Hamilton, Liam 40 ‘harm’ tests 62–65, 124 Haughey, Charles 38, 40, 69–70, 103 Heywood, Andrew 33–34 Higgins, Michael D. 39 High Level Review Group (2002–03) 32, 42, 147 Horgan, John 104 hospitals, information from 136 Houses of the Oireachtas 3–4, 85–100 commitment to freedom of information 87–88 communications strategy for 91–94, 98–99 education about 90–97 Members’ absence from the chambers 91 Office and Library of 85–86 promotion of public trust in 88–90 Howlin, Brendan xvi, 33, 106, 179 human rights 54–55, 60 Hussain, Abid 60 Industrial Development Agency (IDA) 113 infant deaths 45–46 Information Commissioner, Irish xvii–xix, 4, 19, 22–25, 32–41, 59, 62–65, 72–75, 79, 85, 87, 104–117, 124–131, 138–140, 149–150, 158–161, 165, 173

inspection reports 159 institutional norms 2 intelligence services 74, 78 international best practice on freedom of information 60–65 International Covenant on Civil and ­Political Rights (ICCPR) 7–10, 54 international trends in freedom of ­information 6–11 Irish Council for Civil Liberties 12 The Irish Examiner 117 Irish Free State government 34–37, 164 Irish Government Economic and ­Evaluation Service (IGEES) 148 Irish Greyhound Board (IGB) 115–116 The Irish Independent 96–97 The Irish Times 97 Irish Water 156 Islamic extremism 76 Jobs, Steve 77 Johannesburg Principles 52–53, 60–63 journalistic investigations xvi, 4, 26, 86, 97, 104–106, 150, 153, 179 Kavanagh, Catherine 34 Kavanagh, Jennifer x, 2, 165–166 Kearney, Gerry 166 Kearns, Nicholas 109 Keating, Anthony 37–38 Kennedy, Geraldine 53–54 Kenny, Enda 44, 76, 109 Kerry Babies case 70 Kissane, Bill 35 Leas Cross nursing home 166 Lincoln, Abraham 68 local government 168 local newspapers 106 Lowry, Michael 103 McCreevy, Charlie xv, 16, 43, 106, 117, 152, 177 McDonald, Brian 167 McGonagle, Marie 55, 62 McKechnie J. 157 McQuaid, John Charles 37 Mac Stiofain, Sean 39

186 Maher case (1970) 64 Mandela, Nelson 77 manuals explaining the rules of public ­bodies 20–21, 157 media, the coverage of Parliament by 93–94 need for change in 100 role in disseminating information to and educating the public about parliament 95–99, 153 trust in 103 M50 motorway 175 Millennium Dome, London 175 Ministers and Secretaries Act (1924) 35–36 mobile media, use of 93 Montesquieu, C. L. 34 Montreal Olympics (1976) 175 Moore, Chris 103 Morris Tribunal (2002–8) 70, 167 ‘mosaic effect’ from piecing together ­documents 59 Mulqueen, Mark x, 3, 90, 93–96, 165, 178 ‘multi-faceted’ requests for information 105–106, 139 Murphy, Kevin 32, 125 national security 2–3, 16, 22, 52–54, 60–64, 68–70, 78–79 balanced approach to 63–64 National Treasury Management Agency (NTMA) 19–20, 69 New Zealand 145, 150 newsworthiness 107–108 nursing homes, reports on 28, 149, 159, 166 O’Brien, Conor Cruise 54 O’Brien, Jane 103 O’Connor, Nat x, 2, 4–5, 163, 176 O’Donoghue, John 104, 107, 154 O’Dowd, Fergus 166 O’Halpin, Eunan 35 O’Higgins, Kevin 35 O’Keefe, Susan 103 O’Kelly, Kevin 39 O’Malley, Dessie 40 O’Neill, Onora 89–90, 98 O’Reilly, Emily 23, 32, 43, 72, 75, 105–108, 167 Oakley, Richard 114

index Offences Against the State Acts (1939–88) 53, 56, 63, 73 Official Secrets Act (1963) 17, 38, 55–57, 61–65, 144–145, 156, 164, 177 Oireachtas, the see Houses of the ­Oireachtas Ombudsman, Irish 41 online parliamentary education 93 open government 14–15, 57–58, 142, 145, 164–165, 175–179 seen as a cure-all 97–98 Open Government Partnership (OGP) initiative 33, 155 openness, culture of 126, 128 Organisation for Economic Co-operation and Development (OECD) 177–178 Parliament of the Irish Republic see Houses of the Oireachtas parliamentary questions (PQs) 20, 152 penalty points for speeding 70–71 personal freedom of information requests 24–26, 132–137 personal information 113–117, 122–129, 145, 148, 165 Pettit, Philip 7 phone tapping 53–54, 69–71 plain English, use of 93 Police Service of Northern Ireland (PSNI) 72 policing see An Garda Síochána policy decisions 155 policy failures 146–148 political culture 2, 33–35, 42, 45–46, 78, 164–165, 178, 180 populism 46 precedent 108–109, 117, 173 privacy, right to 53–54 privatised functions xix ‘programmes for government’ 58, 63, 179 provincial press 106 public bodies citizen oversight of 72 definition of 140–141 publication of information about rules and procedures 20–21, 157 public confidence in institutions 13–14, 21, 88–90

187

index public interest, the 2–4, 27–28, 52–53, 59–63, 149 definition of 59 ‘public interest’ tests xviii–xix, 15, 41, 75, 78–80 public opinion 93 public spending, control of 28–29, 86, 158, 176 publication schemes for official records xvii Purcell, Brian 71 Quadhafi, Muammar 77 Rabbitte, Pat 76 recruitment procedure for public appointments 158 redactions 116 rent arrears 149 Reynolds, Albert 44, 103 Robinson, Mary 41 Ryan, Aidan 69 Ryan, Brendan 12 Ryan, Conor xi, 4, 163–167, 173–174 satisfaction with freedom of information regime 134–136 Savile, Jimmy 79 scandals, political 12, 28, 40, 44–45, 103, 166, 175 school inspection reports 159 Scotland 43, 106, 132–133 secrecy culture of 29, 55, 58, 63, 144, 155, 163–166, 180 legitimate need for 16–18, 52–57 Select Committee on Legislation and Security 56–57, 64 sensitive information xviii, 59, 72–74 see also commercial sensitivity Shatter, Alan 71 Sheridan, Gavin xi, 4, 105, 112–113, 132, 165–166, 173–174 Smithwick, Peter 70, 81 Smyth, Brendan 103 Smyth, Sam 103 Snell, Rick 20 snowball sampling 131–132 social media 131–132

Sports Campus Ireland 28–29, 174–176 state secrecy, need for 16–18 see also­ Official Secrets Act Stevens, Sir John 79 ‘sunshine’ laws 9 Sweden 6, 9, 17 tax rates and incentives 174, 176 Taylor, Cliff 103 television coverage of Parliament 93 ‘thestory.ie’ 138–139 de Tocqueville, Alexis 34 Toland Report (2014) 42–43, 55, 71, 145 transparency, principle of 86, 90, 92, 98–99, 122, 125–126, 149, 156, 161, 166–167, 178–179 tribunals of investigation 173–174 ‘the Troubles’ in Northern Ireland 39, 53, 102–103, 164 trust in institutions 3, 99, 133, 167 Tuam Babies inquiry (2014) 45–46 Twitter 131–132 Tyndall, Peter xi, 4, 32, 74, 155–161 understanding of freedom of information 90–91, 133–134, 137 of Parliament’s role 89–95, 99 United Kingdom (UK) 11, 74, 78–80, 89–90, 167–169 United Nations (UN) 7–8, 11, 54, 60 United States (US) 6–11, 34, 76–78 Universal Declaration of Human Rights (UDHR) 7, 54 Upcher, James 20 voting machines 174–176 Walsh, Dermot 71 Watergate affair 175 Westwood Club case (2014) 140 ‘white elephant’ projects 175–176 Woods, Michael 166 working papers of government 21–22 World Values Survey 13–14 Worthy, Benjamin 20 Youthreach Centre, Cork 116

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