The
Freedom
of Information Act was approved in 1997 and went into
effect in April 1998. The Act creates a broad presumption
that the public can access all information held by government
bodies describing itself in the title as "An act 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."(1)
•
Undernourished people (% of total population),
2000/03: N/A
•
Population with sustainable access to an improved
water source (%), 2002: N/A
Source:
UN Development Program, Human Development Reports
Data
Under
the Act, any person can request any record held by a public
body. The Act lists the government departments and bodies
it covers. The Minister of Finance can by regulation add
more bodies and has been slowly expanding the scope of the
legislation to new organizations, now numbering almost 500.(2)
The Act does not apply to the Garda Síochána
(police) and a number of other bodies including the Health
and Safety Authority (secretly introduced as an amendment
in 2005), the Central Bank, Financial Services Authority,
Irish Financial Services Regulatory Authority, and National
Treasury Management Agency. Government bodies must respond
within four weeks and justify why information is withheld.
It also requires that agencies provide a written explanation
to individuals of decisions that affect their interests.
The
Act only applies to documents created after April 1998,
unless they contain personal information or are necessary
to understand other documents covered under the Act.
There
are a number of exemptions and exclusions with different
harm and public-interest tests. Records can be withheld
if they relate to: the deliberative process unless the public
interest is better served by releasing the document; cases
where the release of information would prejudice the effectiveness
of investigations or audits or the performance of government
functions and negotiations unless the public interest is
better served by releasing the documents; or cases where
disclosure would prejudice law enforcement, security, defense
and international affairs. Documents must be withheld where
they relate to ministerial Cabinet meetings with an exception
for certain records related to a decision made over ten
years before the request or those that contain factual information
relating to a decision of the government; contempt of court
and parliamentary proceedings; legal professional privilege;
information obtained in confidence; commercially sensitive
information and personal information, or where (with certain
exceptions) disclosure is prohibited or authorized by other
legislation.
There
is a public-interest test for records obtained in confidence
or those containing personal or commercially sensitive information.
But the public-interest argument cannot be made for records
related to defense or international relations. There is
a limited public interest argument for law-enforcement records.
There
is a right of internal appeal. There is also a right of
external appeal to the Office
of the Information Commissioner who also oversees and
enforces the Act.(2) Decisions of the Commissioner
are binding and can be appealed only on a point of law.
In 2005 the Commissioner, who is also the Ombudsman, received
360 appeals (2 percent of requests, down from 6 percent
in 2003) and agreed to hear 285 of them (down from 333 in
2004). The Commissioner reviewed 447 cases and issued 272
formal decisions, affirming the decision of the government
body in 75 percent of the cases, varied the decision in
18 percent and annulled it in 6.6 percent. Another 44 cases
(10 percent of cases) were settled.
There
have been over a dozen decisions by the High Court and two
decisions by the Supreme Court.(3) The
Minister of Justice issued no new certificates in 2003 or
2004 to prevent release of sensitive information.
Public
bodies are required to publish information relating to their
structure, functions, duties, descriptions of records, and
the internal rules, procedures, practices, guidelines, and
interpretations of the agency.
Inside
the government, the FOI Central Policy Unit (CPU) in the
Department
of Finance coordinates the Act.(4)
The CPU chairs several working and advisory groups and promotes
and trains staff on the Act. It also recommends which government
bodies the Act ought to cover in the future.
The
Freedom of Information (Amendment) Act was adopted in April
2003.(5) The amendment extended the time
for withholding of Cabinet Documents from five years to
ten years and expanded the coverage of the exemption; allowed
public servants to issue unappealable certificates saying
that deliberative processes are ongoing to prevent access
and weakened the public interest test; weakened the harm
test for security, defence and international relations;
and allowed the government to impose fees for requests and
appeals. The government announced in June 2003 that it was
imposing a new fee structure based in the amendment - €15
for requests, €75 for internal reviews and €150
for reviews to the Information Commissioner.
There
were 14,616 requests in 2005, up 14 percent from 2004, but
still lower than the 18,400 requests made in 2003 before
the amendments.(6) 43 percent of all requests
were granted in full, 26 percent in part and 15 percent
were denied in full. Four percent were subject to an internal
review. 76 percent of all requests were from individuals
asking for their personal information and 6.5 percent were
from journalists (down from 20 percent in 2001). 13 percent
requests were dealt with outside of FOI. From 1998 though
2003, bodies received over 93,000 requests.
The
Information Commissioner issued a report in June 2004 finding
that since the introduction of fees the overall usage of
the Act declined over 50 percent and requests for non-personal
information declined by 75 percent.(7)
The review also found that journalists (down 83 percent)
and businesses (down 53 percent) were substantially less
likely to use the act. The Council of Europe GRECO committee
was critical of the changes and recommended changes in its
2005 review of corruption efforts in Ireland:
[T]he
described 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, as provided for in
the Freedom of Information Act. The GET therefore recommends
to reconsider the system of fees for requests for access
to official information according to the Freedom of Information
Act as well as with regard to the available review and
appeal procedures in this respect.(8)
Many
government departments have began to publish details on
their web sites of all requests and responses which was
criticized by the media as an effort to stop the use of
FOI for investigative reporting. The Department of Communications
also began to publish the name and address of every requestor
on its web site. The Data Protection Commissioner ruled
in 2003 that bodies could publish the names of FOI requestors
who were acting in their professional capacity as journalists
or as employees of a company but not the names of individuals
asking for their own records or those whose professions
could not be determined.(9)
Under
the National Archives Act, records that are over 30 years
old must be transferred to the National Archives and be
made available to the public.(10) There
is an "access gap" between 1998 when the FOI went
into effect and those documents covered under the Archives
Act.(11) Some major bodies such as the
Department of Health have been failing to transfer their
records long after legally required.(12)
The
Official Secrets Act 1963, which is based on the UK
Official Secrets Act 1911, remains in force and criminalizes
the unauthorized release of information.(13)
Minister for Justice Michael McDowell was criticized in
December 2005 for leaking information from Garda intelligence
files about the director of the Centre for Public Inquiry
to a funder and a newspaper.
Ireland
signed the Aarhus Convention in June 1998 but has not ratified
it. The Access to Information on the Environment Regulations,
1998 implement the 1992 EU Directive on access to environmental
information.(14) Ireland was required
to implement the EU Directive 2003/4/EC by 15 February 2005
but as of March 2006 had not done so.
A
Statutory
Instrument was adopted in June 2005 to implement the
EU Directive on the re-use and commercial exploitation of
public sector information (2003/98/EC).(15)
Individuals
can obtain records containing personal information about
themselves held by public and private bodies under the Data
Protection Act 1988 which was updated in 2003 by the
Data Protection (Amendment) Act to extend to manual files.(16)
It is overseen by the Data
Protection Commissioner.(17)
11
JANUARY 2004
IRELAND: Businesses Account for 9 percent of FOI Requests The
Sunday Business Post (Ireland)
reports that businesses accounted for 9 per cent of requests
made under the Freedom of Information Act since 1998.
In
particular, the statistics show that there has been a large
volume of requests from businesses for FOI statistics from
health boards and local authorities.
One
of the areas in which businesses have used the legislation
is in relation to obtaining information about doing business
with the government.
Dr
Maeve McDonagh, a senior law lecturer at University College
Cork, has found that the approach taken by the Information
Commissioner, in relation to the disclosure of information
about public contracts, has taken account of the stage at
which access is sought and the type of information concerned.
23
DECEMBER 2003
IRELAND : Number of FOI Requests Drop
Since Introduction of Fees The
Irish Times reports that use of the Freedom of Information
Act has fallen sharply since the Government started charging
fees for requests for records.
The
figures show the request rate falling by up to 70 per cent
in some major Government Departments since the introduction
of a €15 fee in July. Requests to all but one Department
fell when figures from July until the middle of December
are compared with those embracing July until the end of
December last year.
The
new regime, under which some of those seeking records have
been levied search and retrieval fees running to hundreds
of euro, followed a new series of restrictions on the level
of information available under the Act.
8
OCTOBER 2003
IRELAND: Requests Under FOIA Drop by More than 50 Percent RTE
Newsreports
that recent figures released by the Government of Ireland
show an average drop of 53% in requests made under the Freedom
of Information Act since the beginning of the year. The
Irish FOIA was amended in April, restricting the information
available, and in July, charges were levied on requests.
6
AUGUST 2003
IRELAND: Official says Government Strangling FOIA The
Irish Examiner reports that certain government officials
feel the Government went against its own recommendations
when it drew up the regulations introducing fees for freedom
of information requests and says the coalition is "strangling"
the Act.
Deputy
Kenny from Fine Gael, citing a a letter to the Department
of Finance, in which the Director General of the Office
of the Information Commissioner expressed his unhappiness
about the way the new FOIA regulations were made.
There
was no advance consultation with the Information Commissioner,
despite the fact that appeals to the Commissioner will now
cost €150. "This latest revelation is yet another
indication that the FF/PD Government is intent on strangling
the operation of the Freedom of Information Act.
The
total number of FOI requests for all departments in the
three months following the enactment of the curtailed FOI
Act was down 29% from the previous three months dropping
to 1,767 request from 2,498.
1
JULY 2003
IRELAND: Opposition Attacks Introduction of FeesIreland:
Opposition Attacks Introduction of Fees Ireland
on-line reports that opposition politicians and the
National Union of Journalists have expressed their outrage
following the recent announcement that requests under the
Freedom of Information Act will cost €15 each from
July 7.
Finance
Minister Charlie McCreevy also announced yesterday that
appeals against FoI refusals would cost up to €150
each.
Meanwhile,
RTE
News reports that the Information Commissioner Emily
O'Reilly, has warned that the new fees for appealing decisions
under the Freedom of Information Act could act as a 'financial
disincentive' to people exercising their right of appeal.
In
a statement, the Information Commissioner said the scale
of charges may distort the level playing field provided
for in the Act, and runs counter to the Long Title of the
Act which says its purpose is to enable members of the public
to obtain access to information to the greatest extent possible.
3
JUNE 2003
IRELAND: New Ombudsman and Information Commissioner for
Ireland The
Irish Times reports that new Ombudsman and Information
Commissioner for Ireland, Ms. Emily O'Reilly will begin
her new post today. Ms. O' Reilly noted that she would closely
monitor the operation of the recently restricted Freedom
of Information Act to ensure it is not used to bring unjustified
secrecy to government and the public service.
In
particular, she said, she will scrutinize the behavior of
secretaries-general who have now been given the power to
issue certificates withholding information on certain matters
because a "deliberative process" is under way.
1
MARCH 2003 IRELAND:
Minister Says FOI Law "Corrodes Process of Government" The
Irish Examiner reports today that Justice Minister Michael
McDowell, while defending plans to keep official
documents and records secret for 10 years rather than five,
indicated that the country's Freedom of Information
Act has had a "huge negative effect" on government.
“We live in a democracy where
some processes have to be done in privacy,” said McDowell.
Under
the plan Cabinet records would only be available for viewing
after 10 years, rather than the current five-year period.
Communications between ministers on matters relating to
Government business would also be protected.
The
Government was recently accused by civil liberties groups
and opposition parties of encouraging a culture of secrecy
by proposing amendments to the Act.
5
FEBRUARY 2003 IRELAND:
ICCL Seeks Details on FOIA Amendments The
Irish Times reports that the Irish Council on Civil
Liberties (ICCL), in response to reports that the Government
was planning to introduce amendments to the Irish Freedom
of Information Act (FOIA), has called on the Government
to clarify its plans to amend the FOIA.
The
ICCL has stated that "any step to dilute the legislation
would row back on the great progress that had been made
in making Irish society more open in recent years."
13
JANUARY 2003
IRELAND : OIC Updates FOI Website
In a move signaling greater openness, Ireland has extended
its Freedom
Of Information Act to a number of public bodies. The
extensions were added to the Office of the Information Commissioner's
website
today.
25
NOVEMBER 2002
IRELAND Public to Get Access to Cabinet Files After Five
Years Official
government documents previously made public only after a
lapse of 30 years are to be accessible in the future after
a five-year period reports The Irish Times.
The
dramatic change in the time limit for access to sensitive
Cabinet papers comes under a provision of the Freedom Of
Information (FOI) Act.
Up
to now, secret Government documents have only been released
after 30 years under existing provisions but under Section
19 of the Act, details of decisions taken by the Government
five years before can be requested and released.
When
Section 19 of the FOI Act kicks into place, the level of
access to confidential government material will be unprecedented
among Western democracies. In most other countries the material
is regarded as secret for periods of between 10 and 30 years.
7.
Office of the Information Commissioner, Annual Report
2005. See also Seventh Report by the Minister for Finance
on Freedom of Information, January - December 2004, August
2005.
8.
Office of the Information Commission, Review of the
Operation of the Freedom of Information (Amendment) Act
2003, June 2004.
9.
GRECO, Second Evaluation Round - Evaluation Report on
Ireland, December 2005.
10.
Ireland Data Protection Commissioner, Appendix 2, Annual
Report 2003.
1)
Voice and Accountability: 1.30
2) Political Instability and Violence: 1.22
3) Government Effectiveness: 1.48
4) Regulatory Burden: 1.63
5) Rule of Law: 1.62
6) Control of Corruption: 1.61
