Ireland and the Freedom of Information Act

FOI@15

Maura Adshead, Tom Felle

• Publisher: Manchester University Press
• Year: 2015
• ISBN:
  9781784996550
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Freedom
• Index: Politics & International Relations

The introduction of FOI in Ireland was a watershed moment in Irish democracy. It gave citizens a right to know, and abolished eighty years of official secrecy that had existed since the foundation of the State. As the new 2014 FOI Act is extended to the gardaí and the Central Bank for the first time, this book critically examines the important contribution the legislation has made to the opening up of Irish democracy and society. The book includes important contributions from the Ombudsman and Information Commissioner Peter Tyndall, former minister Eithne FitzGerald and RTE journalist Richard Dowling. It will be a core text for students of politics and public administration, journalism, media and communications and law; and will be an important reference for policy makers and civil and public servants.

1

International trends in freedom of information

Nat O’Connor

Introduction

The historical starting point for discussing freedom of information in relation to modern democratic states is in Sweden in 1766. During a period of parliamentary rule, a new government passed an access to official information law. This law has been interpreted as an act of realpolitik because it simply permitted the new government to access the documents of the previous incumbents. Yet, this explanation is incomplete as the Freedom of the Press and the Right of Access to Public Records Act was wide-ranging and incorporated free press and public access elements that went far beyond the narrowly instrumentalist purpose of a government ensuring that it could access official documents for itself. An alternative interpretation of the law is that the law’s originator, a Finnish clergyman named Anders Chydenius (Finland was under Swedish rule at the time), was heavily influenced by Chinese administrative reforms of the seventh century and, in the context of Enlightenment thinking, sought to deepen democratic governance in Sweden (Lamble, 2002). Although democratic rule was interrupted in Sweden, the constitutional principle of Offentlighetsprincipen (public access) has remained one of the central pillars of the Swedish Constitution and has influenced the development of democracy in neighbouring countries (ibid.).

By 1789, similar principles were to be found in the United States’ Bill of Rights. Although, initially, these ‘rights’ stemmed from a concrete desire to explicitly curtail the power of the central government, their general language and wide-ranging influence requires them to be seen as ideological. In terms of information, the focus in the Bill of Rights is on press freedom, and freedom of speech more generally, as the mechanism to safeguard liberties. The United States’ Constitution has been highly influential in the establishment of democratic rule in other countries and many constitutions have been modelled on elements of the US Constitution. The crucial limitation of the freedom of information aspect of the US Constitution is that it focuses exclusively on freedom of speech and the press.¹ It does not safeguard the freedom to seek or access official information, merely to publicly disseminate existing knowledge and opinion. The discourse of freedom of speech is decisively limited without such safeguards, as freedom of expression logically relies on prior access to information in order to be meaningful as a genuine safeguard of liberty.

Freedom of opinion and speech was similarly protected in Articles 10 and 11 of the French Déclaration des droits de l’Homme et du citoyen in 1789. Additionally, public access to official documents about taxation and other matters was explicitly enshrined in Articles 14 and 15. The explicit nature of Articles 14 and 15 is evidence that reinforces the claim that proponents of democracy in the Enlightenment period were conscious of the vital importance of public access to official information. It also serves as an example of a much stronger level of accountability being sought of public officials. The Déclaration is explicitly recalled in the current French Constitution (1958), showing the enduring influence of the values and principles it upholds. Pettit argues that a public right to explanations about official decision-making is a basic tenet of civic republicanism (Pettit, 1997: 188).

Following the Enlightenment, there was little significant discourse on freedom of information again until the aftermath of the Second World War resulted in a series of international institutions designed to promote human rights and to prevent war. The United Nations is the archetype of these bodies and the Universal Declaration of Human Rights (UDHR) is perhaps the quintessential ideological document that underpins many modern conceptions of democracy. Article 19 reiterates freedom of opinion and expression as human rights and also includes the right ‘to seek’ information, although it falls short of including any right of access to official information.

It is interesting to compare the more open language used in Article 19 of the UDHR in 1948 with the set of restrictions and limits included in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) of 1966. In the latter, public order, public morality and individuals’ reputations are all cited as reasons to limit freedom of expression. Article 19 is the most heavily qualified of all the articles of the UDHR that were put into the ICCPR. The extent of specific limits in this article is perhaps evidence of the complexity in translating values relating to freedom of information into balanced, judiciable principles (see Chapter 3). That freedom of expression needs to be regulated to prevent abuses appears reasonable, but the focus on what constitutes ‘reasonable’ freedom of expression seems to have overshadowed the more important question of what access to official information is necessary to provide protection and promotion of democracy.

One of the early acts of the United Nations was focused on exactly that question. In 1948, the UN held a Freedom of Information Conference. The conference supported the principle that the public should have access to government documentation in order to safeguard legitimate, democratic forms of government around the world. However, proposals to pass a specific resolution were blocked by Western countries who argued that any such resolution that permitted state interference in freedom of information could be used to regulate and curtail freedom of the press (Romulo, 1948). Nevertheless, the holding of the conference so early in the United Nations’ history provides support for the claim that issues of freedom of information were close to the core of the human rights ideology being developed by the UN project.

The Council of Europe was founded on similar ideals to those of the United Nations. The European Convention on Human Rights (1950) was more binding than the UDHR, and in Article 10 it enshrines freedom of speech and press in similar, restricted language to that later used in the ICCPR. Nevertheless, it represents an attempt to enshrine values in broadly applicable language as part of an attempt to spell out the ground rules for democratic rule (Council of Europe, 1950). Freedom of information, in the sense of public access to government documents, has appeared in several of the Council of Europe’s recommendations to its members. Key recommendations were Recommendation No R. (81) 19 in 1981 and Recommendation Rec. (2002) 2 in 2002.

The 1981 recommendation spells out clear support for freedom of information in eight points:

i Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities.

ii Effective and appropriate means shall be provided to ensure access to information.

iii Access to information shall not be refused on the ground that the requesting person has not a specific interest in the matter.

iv Access to information shall be provided on the basis of equality.

v The foregoing principles shall apply subject only to such limitations and restrictions as are necessary in a democratic society for the protection of legitimate public interests (such as national security, public safety, public order, the economic well-being of the country, the prevention of crime, or for preventing the disclosure of information received in confidence), and for the protection of privacy and other legitimate private interests, having, however, due regard to the specific interest of an individual in information held by the public authorities which concerns him personally.

vi Any request for information shall be decided upon within a reasonable time.

vii A public authority refusing access to information shall give the reasons on which the refusal is based, according to law or practice.

viii Any refusal of information shall be subject to review on request.

The preamble to the 2002 recommendation makes clear the connection between freedom of information and democracy and reinforces the 1981 recommendation by suggesting that legislation be put in place to clarify exactly what records are not accessible through freedom of information.

Alongside the wide-ranging establishment of these general principles, the first freedom of information (FOI) legislation in the twentieth century was passed in Sweden in 1949. This was followed by Finland in 1951. However, the most influential piece of legislation of this type was the United States’ Freedom of Information Act (FOIA) of 1966. On the one hand, the FOIA was a development of previous American administrative laws since the 1950s and simply increased public access to federal documents (Cain et al., 2003). From this perspective, the law was primarily administrative in origin and purpose. But the political context for the introduction of the FOIA was also important. Introduced at the end of the Civil Rights movement period, when in many sections of the population public confidence in politics was at a low ebb, FOIA gave genuine, open public access to official documents, which it was hoped would increase public confidence in the legitimacy of government. To do this, FOIA had to be genuine and to strongly guarantee transparency as a core principle of the United States’ democratic system, rather than merely open up one or two new channels to access some official documents. FOI legislation (often called ‘sunshine’ laws) rapidly spread through each of the fifty states of the union. Later, the Privacy Act of 1974 was a similar tool giving the citizen right of access to public records in which he/she is named, and to sue the government for the non-release of official records where access is not restricted by the personal privacy elements of this Act. Also, the Government in the Sunshine Act of 1976 required meetings of public agencies to be open for public observation. In the wake of Watergate, these were important pieces of legislation that gave the public significantly increased access to the inside workings of their democratic institutions.

From 1966, the existence of FOI legislation in the United States was a strong influence on other countries to include public access to official information as one of the core elements of democratic rule. Banisar (2013) counts ninety-nine countries or jurisdictions as having some form of public right to access official information. Similarly, the global network freedominfo.org (2012) presents a consensus list of ninety-three countries. European states that have introduced FOI legislation in the twentieth century include: Sweden (1949); Finland (1951); Denmark (1964); Norway (1970); France (1978); Netherlands (1978); Austria (1987); Spain (1992); Portugal (1993); Belgium (1994); Ireland (1997); Latvia (1998); Czech Republic (1999); Estonia (2000); Lithuania (2000); Slovakia (2000); United Kingdom (2000); Poland (2001); Slovenia (2003); Germany (2005); and Hungary (2005). Other states that have adopted FOI include: Australia (1992); New Zealand (1992); Canada (1993); Israel (1998); Japan (1999); India (2000); South Africa (2000); and Turkey (2004). Many other countries have introduced constitutional and/or legal provisions about public rights to access official documents, but some of these are more symbolic than others (Banisar, 2002).

Article 255 of the Treaty Establishing the European Community has given citizens and residents of Member States the right to access European Parliament, Council and Commission documents since 1957. This rule applies to the operation of the European institutions themselves and sets an example for Member States. In 1990 the European Union went further with the Directive 90/313/EEC on Environmental Information. This directive obliged all Member States to grant their citizens and residents access to state documentation on specific information on environmental pollution and related matters. The requirement to ratify this directive and to operate a public access institution has thus entered the administrative experience of each member state. This is ...