Ireland and Freedom of information
01 March 1997
The Irish Freedom of Information Act (1997) was passed by the parliament on 10 April 1997 after considerable lobbying from the Irish Council of the National Union of Journalists. It is largely based on legislation in Australia and New Zealand which, like Ireland, observe British-style common law judicial practices. It has received a fairly warm welcome from the NUJ. However journalists stress that it is only the first step towards openness in one of Europe's most bureaucratic states and that there is still one serious flaw in the Act.
Principle of openness
The Act states that its purpose is to enable individuals to obtain access, to the greatest extent possible consistent with the public interest and the right of privacy, to information in the possession of public bodies. It states that every person has a right to and shall, on request therefore be offered access to any record held by a public body, subject to certain exceptions. It imposes a responsibility on public bodies to give reasonable access to those seeking information and to provide a reference book explaining how to obtain records.
In the case of a refusal to grant information, the Act provides an independent review process which is weighted in favour of openness. This process will be overseen by an Information Commissioner, who may annul a decision to refuse access. Such a decision shall be presumed not to have been justified unless the head [of the government department] concerned shows to the satisfaction of the Commissioner that the decision was justified.
When reviewing a decision to refuse access, all relevant information must be provided to the Commissioner by the body concerned. The Commissioner has the authority to require information from any person, to enter any premises occupied by a public body and to examine any record found there.
The Commissioner has additional powers to review openness procedures in public bodies, and must provide a yearly report and may publish a report on any investigation in the public interest or in the interest of any person. The Commissioner also has powers to regulate fees charged for providing information and to refuse frivolous or vexatious requests for information.
A head of department who receives a request for information must decide whether to divulge it as soon as possible but not more that four weeks after the request.
Exemptions
There are specific restrictions on access to information about the decisions of the government [ie: the senior ministers acting together in cabinet].
Statements made at government meetings must be exempted from the openness procedures, according to the Act. Ministerial proposals and advice to the government in recorded form may be released or withheld. But these restrictions do not apply to factual information, technical advice or reports on the performance of public bodies. In any case, all government [cabinet] information (except statements made during government meetings) is open for release after five years.
As long as the restrictions apply, the government is permitted to refuse to disclose whether the document exists or not. When the request is for information about state security, defence, international relations or Northern Ireland and concerns intelligence, military tactics or operations, subversion or confidential diplomatic matters; the minister responsible may issue an exemption certificate preventing access. In this case, the review process involving the Information Commissioner is short-circuited. The Commissioner is not permitted to view the document concerned or rule upon the matter. In such cases the government is also permitted to refuse to disclose whether the document exists or not.
However, there remains a means by which the requester can challenge such secrecy certificates in the High Court. The Act states that they may only be issued when the matter is of sufficient sensitivity or seriousness to justify [the mi