“THIS FREEDOM OF Information Bill is a shambles,” Liam Fitzgerald exclaimed in the Seanad, an early critic of a piece of legislation that had yet to be enacted.

Moments before, the Fianna Fáil senator was lambasting the State examinations section of the Department of Education, which continually invoked the Official Secrets Act to withhold records relating to appeals from students who had appealed their exam results.

He hit out at the “undemocratic wall of silence” within the Department, adding that while ministers were paying lip service to transparency through proposed Freedom of Information (FOI) laws, a culture of secrecy still permeated at government level.

And unless concerted efforts were made to change this culture within government departments, Fitzgerald warned, the new legislation would be meaningless.

Three different iterations of the Freedom of Information Act have been enacted in the years since, which have given citizens access to records held by public bodies (unless they fall under one of a number of exemptions).

In recent years, the Act has played a part in the Maurice McCabe saga, controversy over the Public Services Card, and – perhaps more trivially – news of the Taoiseach’s use of an official letterhead to write a fan letter to Kylie Minogue.

But despite some successes, critics continue to accuse public bodies of building walls of silence, while bodies themselves are increasingly constrained by the resources available to them to deal with requests.

As concerns about transparency grow, Ireland’s Freedom of Information laws appear to be at a pivotal juncture.

What is FOI?

As names for pieces of legislation go, the Freedom of Information Act is quite straightforward in explaining what it does.

Under the Act, members of the public have the right to access information held by a wide array of public bodies.

Any member of the public can use the Act to access records created by a public bodies, government departments and officials, or local authorities in the course of their duties, as well as information held by these bodies which relate to them personally.

Individuals can also use the Act to have information about themselves edited by a public body if it is incorrect, incomplete, or misleading, but FOI is mostly used for obtaining records.

The application of the Act is balanced between the public interest, under which records are disclosed, and a right to privacy, which can see records redacted or withheld.

To help ensure a right to privacy, the Act contains a long list of exemptions which outline specific circumstances under which the requested information may not be released.

These include things like a threat to the security of the State if the records are released, the disclosure of records that might be legally privileged, the potential that the information contained within certain records was obtained in confidence, or if the records that have been requested simply don’t exist.

Broadly speaking, the Act ensures public accountability through transparency, as privacy expert Elizabeth Farries of the Irish Council for Civil Liberties (ICCL) explains.

“Public access to information which the government holds ensures that checks and balances are in place,” she tells TheJournal.ie.

“This in turn ensures rights are being respected and that government agencies are accountable.”

Rights ‘eroded’

But Farries points out that this is not always the case, saying that the ICCL has experienced difficulties in recent years in accessing information about subjects that “the public rightfully deserves the answers to”.

In 2018, the group asked the Department of Social Protection for access to an interim report by the Data Protection Commissioner on the legality of the Public Services Card.

The Department refused to release the report under five sections of the Act, one of which was Section 29(1), which states that FOI requests may be refused if the release of records would be contrary to the public interest.

“We still don’t know what that interest is,” Farries says.

Freedom of Information legislation should mandate disclosures of this kind, because the public has a right to know.

That ICCL has appealed the decision to the Office of the Information Commissioner, something which is allowed under FOI if a requester is unhappy with a body’s decision-making process.

The group isn’t alone in being frustrated by the seemingly liberal use of exemptions in the Act to prevent the disclosure of records.

Last month, Noteworthy revealed that the state had refused to release details of ministers’ pensions because the Department of Public Expenditure and Reform judged that their right to privacy “outweighs the public interest”.

The refusal evoked another of Liam Fitzgerald’s criticisms of the then Freedom of Information Bill in 1996, when he told the Seanad that access to information should “start at the top with the Taoiseach and Government Ministers”.

It also led Ken Foxe, the author of the story and director of the transparency group Right to Know, to opine that the public’s “longstanding right to information” about public expenditure was being eroded.

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Court rulings

Meanwhile, others have suggested that a number of court rulings from this year have threatened the foundations upon which Ireland’s FOI legislation was enacted.

In April, the High Court found that the Information Commissioner was incorrect to direct University College Cork to release records to RTÉ about a loan it had been provided.

In his ruling, Mr Justice Garrett Simons found that the Commissioner was wrong to presume that the records sought by RTÉ should have been disclosed – which is traditionally the starting point of any appeal dealt with by the Commissioner.

Significantly, the judge cited a previous ruling in the Court of Appeal, which had been brought against the Commissioner by the Minister for Communications Energy and Natural Resources.

In that case, journalist Gavin Sheridan had sought the release of information relating to a contract issued by the Minister for managing fibre optic networks across Ireland.

Sheridan’s request for information had been rejected by the Minister, and he subsequently made a successful appeal to the Information Commissioner.

But Mr Justice George Birmingham ruled that the Commissioner had approached Sheridan’s appeal incorrectly by presuming the records should have been disclosed.

A spokesman for the Office of the Information Commission recently confirmed that the Commissioner intends to appeal both rulings to the Supreme Court.

But commenting after the UCC ruling, Sheridan claimed that it put the Freedom of Information Act “in serious jeopardy”.

“Presumption is no longer in favour of disclosure,” he said. “The Act is now – and I use this word carefully – dead.”

The National Union of Journalists also said that journalists and transparency activists were “appalled” at the decision.

Michael Foley of the union’s ethics council warned that it could lead to more refusals for reasons of commercial sensitivity, even when that may not be valid.

“The fear is the ruling will undermine the principle that FOI means the onus is always on public bodies to prove why information should be refused,” he said.

Data controller

In another decision last week, the Supreme Court ruled that the Minister for Health did not have to give a man access to record of an interview he had given to retired judge Thomas C Smyth, who had been asked to review allegations of sexual abuse against retired surgeon Michael Shine.

The court found that although the records were held by the Department, they had been created by Smyth and were therefore controlled by him.

The ruling had implications for one of the conditions of the original 1997 Act, which offered “access to any record held by a public body”.

Fred Logue, a solicitor who specialises in information law, explains that the ruling has inadvertently made the retired judge a data controller.

That means Smyth will now have to process data requests from anyone who wants to access records created by him in the course of his review, whether he wants to or not.

Said Logue:

[Former Health minister] Mary Harney commissioned the review, and anyone should assume that the State would own the records and not the individual who was commissioned to conduct it.

I can’t imagine that there was ever any intention that would be the case.

Inadequate resources

Logue added that while it is too early to say how far-reaching all of these rulings are, they act as further limitations towards the release of records because they give public bodies another reason to prevent the disclosure of records.

In many cases, civil servants – who generally process FOI requests in addition to their full-time roles – may also lack the knowledge and experience to apply the Act properly.

In a practical sense, it can often be easier not to release certain records than to accidentally release records whose release may be questioned or lead to controversy.

Crucially, the 2014 Act introduced two key aspects to the application of FOI in Ireland: the extension of the Act to cover all public bodies, and the removal of a €15 up-front fee which was previously required to make FOI requests.

The result has been a 67% jump in the number of requests submitted in the years since, which Information Commissioner Peter Tyndall has hailed as “a significant and positive impact”.

However, in his annual report on FOI requests last year, Tyndall said that his office is facing a significant challenge to ensure that public bodies are adequately resourced to meet this upswing in demand for information.

Civil servants’ training

There is, however, cause for optimism.

Tyndall’s review showed that 51% of all requests to public bodies in 2017 were granted in full, with another 23% part-granted – meaning that almost three in every four requests that year led to a disclosure of records in some manner.

Politicians, meanwhile, are watching how this year’s court rulings have threatened FOI, with Sinn Féin’s Pearse Doherty in particular telling TheJournal.ie that he would table legislation to amend the Act to favour more disclosure if necessary.

And earlier this year, the Office of Government Procurement issued a €400,000 tender for a company to train 600 civil servants in applying parts of the Act, including sections dealing with confidential and commercially sensitive information.

While Logue hopes that this will reverse “some of the decay” – which he partly blames on under-resourcing following the economic downturn – he also suggests the volume of requests would reduce if bodies routinely put more information in the public domain.

“Bodies could say in advance what kind of information will be published, like ministerial pensions used to be, which would mean that people won’t have to put in FOI requests to access them,” he says.

But whether public bodies would welcome a move towards such a level of transparency remains to be seen, particularly if the Supreme Court ultimately rules against the Information Commissioner.

Twenty two years after he bemoaned the culture of secrecy within government departments, it may be that Liam Fitzgerald was to question the reliability of Ireland’s Freedom of Information laws.