The Constitution Unit



International Focus




Perhaps it is because Ireland has an unusually clear and dominant understanding of its national history, or perhaps it is just something about the word freedom, but the Irish blogosphere frequently places freedom of information in a nationalist narrative. Journalist Wayne Doyle begins a post on freedom of information with the words, "Ever since the foundation of the state in 1922, when Ireland gained its independence from England"…. [1]. John Dorney begins his blog in the same vein, and goes on to trace the "far from open" attitude of the Irish state to the fact that the independent nation emerged in conditions of civil war. [2] And blogger "Rodney"'s post, "My fight for Irish freedom (of information)" closes by quoting a Sixties Republican ballad, which laments the fact that, in Northern Ireland, "Only the rivers run free".[3]

It is not immediately obvious what relevance the republican movement has to Irish freedom of information law. However, it is true that Irish citizens frequently say that they would like to access more nationalist information. John Dorney is just one of many Irish people who want a "clear picture of the turbulent years of 1969-70",[4]. During this period the Royal Ulster Constabulary and then the British army lost control of an area of Derry/Londonderry which lies close to the Irish border. The Taoiseach set up field hospitals near this area order during the famous Battle of the Bogside [5]- a fight between Northern Irish nationalists and the police, both of whom wanted control of the disputed "Free Derry" area. The hospitals were overtly political, and treated wounded nationalist who refused to go to the local NHS hospital because they believed it had links with the police. Ireland also sent troops to the border, who assisted women and children refugees who had fled the fighting in "Free Derry". Some nationalists expected the troops to cross the border [6], and there is a great deal of interest in the, partially secret, records which show how close Irish forces came to invading the United Kingdom.

Despite the dominance of nationalism in the public discussion of freedom of information, republicanism has not shaped this area of law in Ireland. Actually, the adoption of freedom of information law followed a more prosaic path, which resembles the route taken by nations such as Japan. The issue first came to prominence amidst concerns peculiar to Ireland - namely abortion. Later, concerns around government sleaze triggered the passage of freedom of information legislation. Five years after that, legislators realised the Act's impact and somewhat curtailed its use though application fees. Technology is taking FOI further, with Gavin Sheridan's blog The Story using FOI and crowdsourcing to promote transparency in public life.

The Birth of Irish Freedom of Information

In 1992 an Irish fourteen year old known as "X" was raped by her school friend's father. She subsequently discovered that she was pregnant, and wanted to terminate the pregnancy. Abortion is unlawful in Ireland via the Constitution [7], and consequently, X proposed to have an abortion in another country. But the state argued that it had a constitutional duty to prevent her from doing so. It was also obliged, it believed, to prevent any Irish person or institution from providing her with the contact details of any foreign abortion clinic - details which an Irish girl could not easily obtain in the days before internet use was widespread. There was great public sympathy for X's plight. As a consequence of this, two amendments to the Irish constitution were passed. One recognised the rights to freedom of travel. The other established a right to freedom of access to information about services lawful in foreign states.[9] The second amendment was a significant step, in that it recognised a constitutional right to information. But the right was merely negative. It conferred on the state no active duties, but merely stopped it from censoring certain material.

The development was, however, indicative of Irish politics' direction of travel. Concern about government secrecy was growing. The previous year a tribunal had been appointed to investigate corruption in the beef trade, including the suggestion that some politicians, and a small group of companies to whom they were close, had been abusing the EU export refunds scheme. The tribunal produced the following famous criticism:

'if the questions that were asked in the Dail [the Lower House of Parliament] were answered in the way they are answered here, there would be no necessity for this inquiry and an awful lot of time and money would have been saved.'[10]

Greater access to government information was an important issue in the general election of 1992. And the pressure to be more open only increased when the chosen government fell in 1994. The scandal which destroyed it involved the government delaying the extradition to Northern Ireland of a priest accused of child abuse. One key criticism was that the Attorney General's Office had refused to release appropriate information about the processing of the extradition request. [11]

The Irish Freedom of Information Act

A new government was formed, and a freedom of information bill was enacted in 1997. It came into force in 1998. The workings of the Act are fairly familiar. Unlike in Britain, in order for the question to be treated as a "freedom of information request" the requestor must refer to the Act. Thereafter the process is similar to our own. Public authorities must respond within four weeks, and if they decide not to disclose the information the requestor can appeal to an independent Information Commissioner. The Act also contains provisions which, in the UK, would be considered to come under the remit of data protection: They allow individuals to find out what information the state holds on them, and to amend it if it is incorrect. [12]


In 2003 the Freedom of Information Act was amended - an act of retrenchment that was designed to reduce the number of requests. Two key amendments were passed. The first introduced an upfront charge for requests (though personal information requests remain free). The second provided that certain cabinet documents, which would otherwise have been available for release five years after they were produced, should be embargoed for ten years- twice as long. [15]

The upfront charge is a fee of €15, or ten euros for holders of an Irish medical card, which is a means tested state benefit. The Constitution Unit's research shows that the fee seems initially to have had a dramatic effect on request numbers. Only half as many requests were made in the year after it was introduced as were made in the previous year. However, the annual number of requests has since returned to its previous level, suggesting that the fees' effect as a disincentive was only temporary. [16]

The state's introduction of a €10-15 upfront fee for requests is of great interest and has been much discussed. But more inhibiting may be the public authority's right to charge €20.95 euros /hour for the work involved in searching for and retrieving documents. Data concerning the implementation of this provision is extremely contradictory. John Dorney suggests that the average charge for answering a request is as high as €200 euros.[13] But Maeve Doherty, a University College Cork academic, says that, "In practice, Government agencies have tended to charge [these] fees in only a minority of cases". This is because, she says, they find the provisions about when fees should be waived "complex and confusing". [14]

An example of how the charges work in practice illustrates the financial commitment requesters must make to access information. When asking the Health Service Executive approximately what may be charged for a particular request in advance, the reply was "you will be notified of charges if applicable when the records which are the subject of your request have been reviewed". The original €15 upfront fee must be paid without the requester having knowledge of whether they could afford to purchase the information once it was located. This potentially disincentives requests, not just because initiating the request process may prove a waste of money, but also because people who are unlikely to be charged the 20.95 euro/hour may not know that the charge is sometimes waived for them.

The extension on the embargo of cabinet documents appears to have been politically motivated. The Irish Freedom of Information Act does not apply to documents produced before 1998. Consequently, five years after that, in 2003, when the relevant amendment was passed, the first Cabinet documents were about to cease to be exempt from release. Some members of the 1998 Cabinet had also been members of the government in 2003, potentially undermining collective responsibility.

The government however, reasoned the amendment was necessary to prevent the release of Cabinet documents which had the potential to destabilise the peace process in Northern Ireland. The peace process was certainly at a critical stage in 1998, when the relevant documents were produced, and remained fragile in 2003, when they might have been released. However, this justification for the amendment is curious, as documents containing information about the Northern Ireland peace process, and indeed the Troubles, were already exempt from the Act. [17]

In Ireland, as in the UK, the freedom of information requests which have been most discussed in the media are those which revealed the excessive expense claims made by politicians. The Irish expenses scandal was almost too similar to the British one to be worth recounting in detail. Widespread abuse of the system meant that excessive travel and food costs were routinely claimed as expenses. The speaker was forced to resign over the extravagance of his receipts.[18]And a minority of TDs (members of the Dáil) eventually criminally charged with false accounting.[19] If freedom means freedom from a greedy and alienated elite, then freedom of information requests have shown that, in London, and in Dublin, as well as in Belfast, "only the rivers run free".


[2] http://www.theirishstory.com/2010/07/25/a-short-history-of-freedom-of-in...

[3] http://www.lifeasithappens.com/blog/?p=62

[4] http://www.theirishstory.com/2010/07/25/a-short-history-of-freedom-of-information-in-independent-ireland/

[5] http://www.irishtimes.com/newspaper/opinion/2009/0831/1224253509841.html

[6] http://www.independent.ie/national-news/army-on-armageddon-alert-356829.html

[7] http://www.irishtimes.com/focus/abortion/issues/chronology.htm

[8] http://www.irishtimes.com/focus/abortion/issues/chronology.htm

[9] http://www.inishowennews.com/JackLynch.htm

[10] http://freedominfo.org/documents/ireland.pdf

[11] http://freedominfo.org/documents/ireland.pdf

[12] http://freedominfo.org/documents/ireland.pdf

[13] https://docs.google.com/document/d/1Q6gsBZ86UFF-mwxSLBhzPIB_Yhnd8OHHz-yw-6BfGPI/edit?authkey=CLa-4uUM&pli=1#

[14] http://freedominfo.org/documents/ireland.pdf

[15] http://freedominfo.org/documents/ireland.pdf

[16] http://www.ucl.ac.uk/constitution-unit/constitution-unit-news/210212

[17] http://freedominfo.org/documents/ireland.pdf

[18] http://order-order.com/2009/10/20/irish-speaker-resigns-in-expenses-scandal/

[19] http://www.irishcentral.com/news/Leading-Irish-politician-arrested-in-ex...