Freedom of Information in Ireland: changing of the guard

4 March 2014

By Tony Lowes

Lowes is a Director of Friends of the Irish Environment

In what is a serious blow to Freedom of Information in Ireland, the newly appointed Information Commission and Ombudsman Peter Tyndall has withdrawn his predecessor’s appeal to the Supreme Court against a High Court judgment that the constitutional right to cabinet confidentiality can not be superseded by rights under European law.

Under European law, any emission to the environment can not be exempted from the access to information legislation for any reason – not ‘commercial sensitivity’ or ‘internal communications’ or even ‘cabinet confidentially’. Requests for information often fall to many such exemptions. But if the information concerns ‘emissions to the environment’, that information must be released.

Thus barrister and Green Party activist Gary Fitzgerald must have felt he was on strong ground when in 2008 he sought documents about Ireland’s CO2 emissions, one of them a cabinet meeting minute relating to greenhouse gas emissions. Indeed, when he appealed the Government’s refusal to release the documents to the Information Commissioner, Commissioner Emily O’Reilly – now EU Ombudsman – agreed they should be released in a landmark 2008 decision.

The Government, however, took the Information Commissioner to the High Court, which ruled in June 2010 that the Constitution – which protects proceedings of the cabinet from public scrutiny – trumped EU law. O’Reilly appealed to the Supreme Court, where the decision – described by one expert as ‘questionable in EU law’ – could be debated at the highest level and if necessary referred to the European Court of Justice for its views. Scheduled to be heard this year, this prospect has been dashed by the withdrawal of the case by Peter Tyndall, the new Commissioner.

‘Strongly’ of the view that the appeal would not succeed, the Commissioner admitted that he was aware the case raised issues ‘which went beyond the single question of access to the single document sought’. He was, however ‘cognisant of the severe financial constraints within which this office is obliged to operate’. His office would also admit that the current Government is increasingly unhappy with its separate agencies fighting in public.

It is to be hoped that Emily O’Reilly’s legacy will not be so easily overcome on April 7, when the Supreme Court is due to hear the Government’s appeal against her ruling that the National Assets Management Agency [NAMA] which took over failed property companies after the economic crash in 2008, is a public authority subject to Access to Information. As Welsh Ombudsman, Peter Tyndall, an Irishman and ex head of the Welsh Arts Council, spoke widely and wrote a number of articles emphasising the importance of extending the Ombudsman’s remit to Public service delivery by private sector organisations.

‘In a public service landscape where the distinction in delivery between public and private sectors becomes increasingly blurred, it is important that people’s access to redress is not inadvertently denied.’ He cited the issue of ‘those people who, for example, pay for their own social care in private care homes as well as those people who have their care paid for by the State.’

Such ideas may not fall on fertile ground here. ‘If there is one thing I regret’, Emily O’Reilly told the Irish Times last month after her new EU appointment, ‘it is that asylum, immigration and prisons are still outside any independent complaint-handling watchdog.’

Public outcry recently led to the inclusion of the newly established Irish Water under FoI but the new FoI Act going through the Irish Parliament at the moment continues to exclude 37 public bodies – from the largest landowners, Coilte (forestry) and Bord na Mona (the bogs) – through the postal system, Tourism Ireland, the Food Safety Promotion Board, the bus companies, the airport, harbour and port authorities, and the National Lottery.

Ironically, Bord na Mona has now withdrawn its appeal against the ruling by the Information Commissioner that they are a public body subject to Access to Information, leaving the organisation open to request under the EU Access to Information on the Environment Directive but not under national the national legislation, the Freedom of Information Act.

Endemic Delays Seen

Even so, with a large number of bodies now coming under FoI under the new legislation,  the delays that were previous characterised as ‘unacceptable’ in the last Annual Report are now threatening to bring the whole system to a standstill.

Only 18% of the cases dealt with under FoI were decided within the legal timeframe in 2012. Even after a year, some cases have yet to be assigned to an investigator. Staff are shared with the Ombudsman for Local Government’s office, which funds the Commissioner. No matter how right you are, justice delayed can be justice denied. Information provided years after the actions make redress almost impossible.

There was some anger in the Information Commissioners’ office when the first Aarhus Convention National Implementation Report was recently released by the Department of the Environment. It breezily dismissed any concerns of chronic under funding by saying that the Information Commissioner was entitled to seek any necessary funds from the Minister for Public Expenditure and Reform.

The Ombudsman had indeed made repeated such requests – and 5 new staff had been appointed to cover the additional duties in the revised FoI legislation – but they are still chasing their tails. No funds have ever been provided for the outside expertise necessary to deal with the increasing number of legal challenges, or the demands that these place on core staff members.

And while the case closure rate may be going up, the number of cases coming in the door is rising faster and it is expected that the 2013 annual report will show a worsening situation.

Aarhus Convention No White Knight

Nor has the Aarhus Convention proved to be the White Knight that many had hoped. Designed by NGOs under the auspices of the United Nation’s – and Ireland’s – Jeremy Waites, the convention promised better access to information, participation, and access to justice.

Ireland was the last European member state to ratify the convention, claiming difficulties in bringing legislation into line. This didn’t stop climate sceptic Pat Swords, who was first into the ring claiming that the EU had not properly supervised Ireland’s public participation in its renewable energy programme, thus bringing Ireland under scrutiny through the back door.

Swords claimed that the EU – who had signed the Convention and created a binding Directive in 2004 – failed to ensure that a Strategic Environmental Assessment [SEA] was done with open citizen participation before setting out a plan that massively grant aided wind energy, distorting the market. Indeed, the Aarhus Compliance Committee ruled in his favour in 2012, but neither Ireland nor the EU has made any attempt to rectify the situation. The Committee simply ruled that if any amendments are made to the Plan – which has seen Ireland’s sensitive uplands host a multitude of wind turbines as high as 156 metres against strong local opposition – this will be subject to SEA.

This is little comfort to those facing turbines in their previously unspoiled uplands as Local Authorities (whose powers include zoning) like County Kerry rezone more land as suitable for wind farms. In a time when Local Authorities are seeing little development and hence little income from development levies, these wind farms offer significant income. Swords is now raising funds to bring a case to the European Court of Justice challenging the subsequent use of EU funding for wind power in Ireland.

The Information Commissioner’s office was not the only Government agency that took issue with what has been characterised as the Minister for the Environment’s ‘self serving’ first Aarhus Convention National Implementation Report. Writing two weeks ago on the new University College Cork’s website, Dr. Aine Ryall, the country’s leading expert on European environmental law, drew attention to a consultation submission to the Report made by the Department of Justice.

This pointed out that many court decisions are in fact delivered ex-tempore – without written judgments – and that this was particularly true when it came to the awarding of costs – a crucial element of the Aarhus convention injunction that  access to justice may not be ‘prohibitively expensive’.

The Department of Justice wrote: ‘In cases where the court does not deliver a considered, written judgment the decision of the court is recorded in a court order which is available only to the parties to the case.’

‘It follows from this unambiguous statement’, Ryall writes, ‘that ex tempore court decisions, where there is no written judgment, are not publicly accessible. This state of affairs is a clear breach of the express requirement in Article 9(4) that court decisions in Aarhus cases must be publicly accessible.’

The Convention promised access to justice at a cost that is ‘not prohibitive’ but we are denied the right to see how this is being addressed by the Irish Courts.

Ironically, the Minister for Finance appointed Emily O’Reilly, an outspoken and astute newspaperwoman, to be Information Commissioner in 2003 to assuage the public outrage over the draconian restrictions he brought in to the 1998 Freedom of Information legislation, a much-praised model for its time. O’Reilly did much to help clarify and advance Ireland’s torturous journey towards a transparent society. Will her successor have the mettle to do the same?

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