IF DEMOCRACY DIES in darkness, its death is tortuously slow.
Nine months after the demise of Irish transparency was first heralded, we are still waiting for the lights to go out.
This week, the Supreme Court heard the latest appeal in a years-long legal fight over how exactly Ireland’s Freedom of Information (FOI) laws should be applied.
An outcome is not expected for a number of months. But although the pace seems glacial, the final result will be significant when it arrives.
One outcome could offer a reprieve to those seeking to know more about the relationship between State bodies and private entities.
The other could arguably dismantle Ireland’s FOI Act, removing a presumption that citizens are entitled to information that State bodies hold, and the important need for bodies to justify withholding such information if they choose to do so.
The principles of presumption and justification were central to arguments on both sides during the two-day hearing in Ireland’s highest courtroom this week.
Those principles will need to be upheld if the Act, which was introduced in 1997 to give citizens a legal right to access information held by public bodies about their functions, is to remain an effective piece of legislation, according to the Information Commissioner who brought the case.
It’s a matter which counsel for the office described in court as an issue of “systemic importance” because public bodies could otherwise simply tell citizens: “I don’t have to tell you.”
The legal teams on the opposite benches said they fear commercial entities being warned off working for the State because of sensitive details about their business being made public.
Two cases for ‘commercial sensitivity’
The case centres on an appeal of two earlier rulings in the Court of Appeal and the High Court from last year, both of which related to how the FOI Act is applied.
The first involved an attempt by journalist Gavin Sheridan to obtain a copy of a contract between the Department for Communications and the firm e-Nasc Éireann Teoranta (eNet) to manage the State’s fibre-optic broadband network.
The second related to efforts by RTÉ to obtain details of a loan provided to University College Cork (UCC) by the European Investment Bank (EIB).
Both bodies initially refused to release the records on the grounds of commercial sensitivity, something which they are allowed to do under Section 36 of the Act.
The Department told Sheridan it had a duty of confidence to the private interests of eNet, with the Minister saying release of the contract under FOI could “totally undermine” the company’s business.
Meanwhile, UCC told RTÉ that disclosing details of its loan could have resulted in a financial loss to the EIB, as well as prevent firms like the bank to give it loans in future.
But both decisions were later overturned following appeals to the Commissioner, who carries out independent reviews of the decisions taken by public bodies in relation to FOI requests.
During the course of these reviews, the public bodies concerned are required to justify the decisions they make to the Commissioner, who operates under the presumption that records should be disclosed unless there is a good reason not to do so.
But when Tyndall’s rulings were challenged in court by the Minister for Communications and UCC, separate judges ruled that he was wrong to do this.
Both rulings caused alarm among politicians, legal experts and campaigners, including Sheridan, who decried that the High Court decision was a fatal blow to Ireland’s FOI legislation.
Act could be undermined
For those making FOI requests, the presumption of disclosure is hugely important, because it is the essence that the FOI Act is built on. The Act reads:
Every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body and the right so conferred is referred to in this Act as the right of access.
But an existential problem for the Act arose in light of last year’s ruling that the Commissioner can no longer presume records should be disclosed.
During the appeal process, a requester is invited to explain to the Commissioner why a body should release a record, while the public body is invited to explain why it should not.
Without the presumption of disclosure, it was argued that there is no onus on a public body to justify its decision to refuse an FOI request, because the release of records is no longer the automatic outcome.
As counsel for the Commissioner, Nuala Butler SC explained to the Supreme Court: “There would be nothing to stop the head saying ‘I don’t have to tell you’.”
Theoretically, a request could just lie unresolved in limbo if there is no onus for a body to disclose its records without explaining why.
If a requester doesn’t know why their request has been refused, they don’t know if they have grounds for an appeal. And without this explanation, the Commissioner could not make a decision on whether records should be released.
‘No application’ without justification
Currently, the only thing preventing the release of records are the exemptions contained within the Act, which must be given to a requester when the disclosure of records is refused.
These exemptions range from straightforward things like the non-existence of the records requested, or there being so many records identified within the scope of a request that processing them would interfere with the day-to-day functions of a public body.
But other exemptions require a decision-maker to apply subjective reasoning, such as whether a record’s release could affect the commercial interests of a third-party firm.
Much of the Supreme Court hearing dealt with legal arguments about where the line between public and such private interests lies.
Counsel for the Minister warned that private firms such as eNet could be “scared” from dealing with State bodies in future if public interest trumped those of private parties.
On the Commissioner’s side, Butler argued that eNet’s management of a state asset trumped its commercial interests, and that UCC had not identified during the appeals process what information would commercially harm the university if it was released.
The commercial sensitivity exemption is further complicated by the fact that it contains its own ‘non-application’ clause – that is, that the exemption may not apply, even if a public body deems it is valid.
Under the Act, a record can be released if, despite being commercially sensitive, a public body is of the opinion that it is in the public interest to disclose it.
Once again, the line between public and private interests applies. How significant must the public interest be for this ‘non-application’ to come into play?
Suggestions mooted in the court this week included non-application could apply where there was evidence of corrupt payments towards third parties, or of companies’ “nefarious” activities.
That task would fall to civil servants – who generally process FOI requests in addition to their full-time roles – raising questions about the reasonableness of asking or expecting them to identify corruption, as well apply the Act correctly.
Such practicalities may define whether the FOI Act will continue in its current form, and whether complete transparency is even really achievable.
A ruling in the Supreme Court case is not expected for a number of months. Until then, we remain in the dark about the future of FOI, even though the lights are still on.
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