2004 freedominfo.org Global Survey Results - Ireland
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

The Freedom of Information Act was approved in 1997 and went into effect in April 1998. (1) 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."

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 around 400. (2) It has committed to extend the application to nearly all bodies by 2005. The Act does not apply to the Garda Síochána (police). 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. The argument, however, can be made in a limited way for law-enforcement records.

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.

The Freedom of Information (Amendment) Act was adopted in April 2003. (3) The amendment extends the time before Cabinet Documents are available from five years to ten years and expands the coverage of the exemption; allows public servants to issue unappealable certificates that deliberative processes are ongoing to prevent access and weakens the public interest test; weakens the harm test for security, defence and international relations; and allows 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. The Commissioner was critical about the changes and new fees noting that "the charges could act as a financial disincentive" of which, "the scale of charges may distort the level playing field." (4) The Department of Communications also began to publish the name and address of every foi requestor on its web site along with the response, which has been criticized by the media as an effort to stop the use of FOI for investigative reporting and by the Data Protection Commissioner and civil liberties groups as threatening privacy. (5)

The Office of the Information Commissioner oversees and enforces the Act. Decisions of the Commissioner are binding and can be appealed only on a point of law. (6) In 2002 the Commissioner, who is also the Ombudsman, agreed to hear 585 appeals (4 percent of all requests). The Commissioner issued 226 formal decisions, affirming the decision of the government body in 73 percent of the cases. The Minister of Justice issued two certificates in 2002 to prevent release of sensitive information. A new commissioner, Ms Emily O'Reilly, was appointed in 2003 to replace Mr Kevin Murphy, who retired.

Inside the government, the FOI Central Policy Unit (CPU) in the Department of Finance coordinates the Act. (7) 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.

There were 17,200 requests made in 2002, an increase of 11 percent from 2001 and 35 percent from 2000. (8) 46 percent of all requests were granted in full and 21 in part. 19 percent were denied in full, an increase from 15 percent in 2001. Over half were by individuals asking for their personal information.

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. (9) There is an "access gap" between 1998 when the FOI went into effect and those documents covered under the Archives Act for the next 25 years. (10)

The Official Secrets Act 1963, which is based on UK Official Secrets Act 1911 remains in force and criminalizes the unauthorized release of information. (11) The government has proposed a new bill, the Garda Siochana Bill 2003, that would impose penalties of €30,000 fines and five years jail time on current or former Garda employees who "without lawful authority disclosing information about a person or body which came to his/her knowledge by virtue of their office."

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. (12)

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. (13) It is overseen by the Data Protection Commissioner. Individuals will be now able to demand their records under either the DPA or the FOIA with slightly different requirements. (14)

Notes

1. Freedom of Information Act, 1997, http://www.finance.gov.ie/viewdoc.asp?DocID=837. For a comprehensive overview, see McDonagh, Freedom of Information in Ireland (Sweet and Marwell, 1998), and McDonagh, "Freedom of Information in Ireland: Five Years On," (September 22, 2003) at http://www.freedominfo.org/reports/ireland.htm.

2. See http://www.finance.gov.ie/viewdoc.asp?DocID=936

3. Freedom of Information (Amendment) Act 2003, Number 9 of 2003. http://www.gov.ie/bills28/acts/2003/a903.pdf

4. See Press Release issued by the Information Commissioner on 1 July 2003.

5. See FOI Log. http://www.dcmnr.gov.ie/display.asp?pg=326

6. Homepage: http://www.irlgov.ie/oic/

7. Homepage: http://www.finance.gov.ie/viewdoc.asp?m=p&fn=%2Fdocuments%2Ffoi%2Ffoi%2Ehtm

8. Fifth Report by the Minister for Finance on Freedom of Information, 1 January - December 2002, August 2003. http://www.finance.gov.ie/documents/foi/FOI5THREPORT.pdf

9. National Archives Act 1986. http://www.nationalarchives.ie/about/reports/NAA1986.pdf

10. See McDonagh, Freedom of Information in Ireland (Sweet and Marwell, 1998), chapter 20.

11. Official Secrets Act, 1963. http://www.irishstatutebook.ie/1963_1.html

12. European Communities Act, 1972 (Access to Information on the Environment) Regulations 1998. S.I. No 125/1998.

13. Compendium of both Data Protection Acts. http://www.dataprotection.ie/documents/legal/CompendiumAct.pdf

14. Homepage: http://www.dataprivacy.ie/