Irish FOI bill concerns must be tackled

29 November 2013

By Maeve McDonagh

McDonagh is Professor of Law at UCC. She is also the author of Freedom of Information Law 2nd ed This article was originally published Nov. 25 in the Irish Examiner.

The Freedom of Information Bill 2013 currently at committee stage in the Oireachtas is to be welcomed in terms of its reversal of many of the 2003 amendments, the effect of which had been to seriously curtail the FOI regime.

In particular, the restoration of the Cabinet records and deliberative processes exemption provisions to their pre-2003 state contributes significantly to strengthening the legislation.

Also welcome is the fact that the scope of legislation has as its starting point that all public bodies are covered by it. The reduction of fees for the bringing of appeals is also noteworthy, though the fact that they have not been completely abolished remains a source of concern. While the provisions of the 2013 bill concerning fees for FOI requests have been the focus of much recent criticism, other aspects of the bill also give rise to concern.

Although it establishes as a general rule that all public bodies are covered, the reality is somewhat different. In the first place, the bill contains a long list of bodies which are entirely excluded from its scope. These include a range of State-sponsored bodies such as the ESB, Irish Water, Bord Gáis, Bord na Mona, Coillte, Tourism Ireland, the airport and aviation authorities, the port and harbour companies, and Waterways Ireland.

While arguments may be made that State-owned organisations operating in a commercial environment must be protected against disclosure of information that could be commercially damaging to them, such arguments weaken significantly when the organisation operates as a monopoly.

The exclusion of Irish Water is particularly difficult to justify since the management of our water was previously subject to scrutiny under FOI by virtue of its handling by individual local authorities which are covered by the FOI Act.

The act provides significant protection against the disclosure of sensitive information by way of a range of exemptions so that the inclusion of state-sponsored bodies within the scope of the act does not mean that all of their records would automatically be thrown open to all and sundry.

A range of other State bodies are only partially included. Most notably, An Garda Siochána is included only in respect of administrative records relating to human resources, finance or procurement matters. This means that information relating to matters such as the penalty point controversy or the activities uncovered by the Morris Tribunal would remain outside the scope of the act. This is seriously out of kilter with the approach in other jurisdictions.

In Britain, for example, the police are wholly within the scope of the FOI legislation. Again sensitive law enforcement information held by the gardaí could be withheld under the law enforcement exemption.

Many of the main players in the management of our national finances, such as the Central Bank, Nama and the NTMA are partially excluded. While these bodies clearly need the space to conduct business on behalf of the State, in the most advantageous manner possible, a lack of information about their activities could be detrimental to the public interest. One particular aspect of the partial exclusion of the NTMA stands out. That agency is excluded from the scope of the bill insofar as it relates to records “concerning the terms and conditions on which a person holds a position as a member of staff of that agency, other than when that information is contained in records in summary or collective form such that individuals cannot be identified from that record“.

This provision could remove from the scope of FOI information relating to remuneration paid to staff members of the NTMA. It is interesting to note in this context that in 2010, the then information commissioner, Emily O’Reilly, ordered the disclosure of the salary paid to the former head of the NTMA. The basis of this decision was what the commissioner referred to as “the strong public interest in public bodies demonstrating their accountability for the use of public funds by release of information about a person’s remuneration which is met from such public funds“. Such a decision would be impossible if this bill is passed.

Another feature that is open to question is that it gives the minister for public expenditure and reform, rather than the information commissioner, the last word in terms of deciding whether or not a body comes within the definition of public bodies covered by FOI. It is notable that the exemption relating to security, defence, and international relations has not been fully restored to its pre-2003 state. Put simply, the original version of this exemption only applied where disclosure of information was shown to have an adverse effect on security, defence, and international relations.

The exemption of information shown to have an adverse effect on security, defence, and international relations was greatly extended in 2003 to cover a number of categories of information, regardless of whether or not their disclosure would have any adverse effect. The question of harm was therefore left out of the equation.

Rather than reverse this broadening of the scope of the exemption, the 2013 bill to a great extent leaves the 2003 amendments intact.

An illustration of the effect of this approach is to be found in the exemption of records relating to negotiations between Ireland and other states. Whereas under the original act such information could only be withheld where its disclosure would have an adverse effect on international relations, the bill renders the exemption of such material automatic regardless of the harm, if any, that might result from its disclosure.

While it is clear that a genuine effort has been made to undo the damage caused by the 2003 amendments, the bill as currently formulated contains a number of shortcomings which should be addressed, even at this late stage.

Many of the difficulties with the bill could have been prevented had the wide-ranging and complex issues around the operation of our FOI law been the subject of a review involving all interested parties prior to the publication of the bill. Such reviews have been carried out in recent years in a range of other jurisdictions such as the UK, Australia, and Canada.

After 15 years of operation, a thorough and considered review of Irish FOI legislation is long overdue.

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