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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)

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)

2004 freedominfo.org Global Survey Results - Ireland

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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 News reports 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.

Notes

1. Freedom of Information Act, 1997. 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," (22 September 2003) at http://www.freedominfo.org/documents/ireland.pdf

2. See http://www.foi.gov.ie/foi.nsf/WebPages/AllPublicBodiesCovered?OpenDocument

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

4. For copies of decisions, see http://www.oic.gov.ie/en/CourtJudgments/

5. Homepage: http://www.foi.gov.ie/

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

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.

11. National Archives Act 1986. http://www.nationalarchives.ie/PROI1867.html

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

13. 12-year gap in Department records, IrishHealth.com, 4 January 2006.

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

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

16. Statutory Instrument S.I. No. 279 of 2005, European Communities (Re-Use of Public Sector Information) Regulations 2005.

17. Compendium of both Data Protection Acts.

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

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