Introduction

Freedom of information (FOI) is a relatively new field of study among modern democracies, yet it is essential in assessing government transparency. According to the Macmillan Dictionary (2019), freedom of information is ‘the right to see official information kept by governments and other institutions.’ This topic is becoming salient due to the information revolution, leaving citizens demanding increased transparency among governments and institutions. There are many benefits to FOI in democracies, including greater accountability, transparency, and a decrease in corruption. Trust in government is increased, as citizens are free to request information from public and private bodies. However, in some countries, making an FOI request is seen as resistance to government rule. Furthermore, as Hazell (2010) notes, there is no single way of assessing FOI, and thus, requests may be hard to categorize. Despite this, FOI policies and legislation have become ‘an accepted part of the democratic landscape’ (Hazell, 2010, p.352), gaining increasing recognition in the courts and among international bodies, such as the European Union. FOI is designed to make politicians “answerable” (Schedler et al., 1999, p.14) to citizens, meaning government performance and political participation should become more productive. While ‘scholarship on transparency and freedom of information (FOI) conveys an overwhelmingly “political” narrative’ (Michener and Worthy, 2018, p.476), most uses of FOI are not for political means. Due to the increasing salience of FOI, policies are needed to ensure best practice. While several countries have FOI legislation, ‘academics have noted that sometimes FOI laws do not work very effectively, sometimes existing only in name’ (Chari, 2016, p.44).

Ireland and FOI

This statement will be examined using FOI policies in Ireland as a case study. Ireland was one of the first democracies to adopt FOI policies, in the form of the Freedom of Information Act 1997. The introduction of this Act ‘was a watershed moment in the development of modern Ireland’ (Felle and Adshead, 2010, p.11). Furthermore, FOI in Ireland is well-documented, with the legislation being continuously reviewed and updated. However, as FOI was phased in over five years in Ireland, numerous obstacles occurred. For example, fees for FOI requests were introduced, cutting the number of requests by almost 50% (Hazell and Worthy, 2010, p. 353). The central FOI policies in Ireland are extracted from this Act, yet some public bodies have been reluctant to these policies, and others have suffered from FOI fatigue due to a lack of resources (Irish Information Commissioner, 2008). It has been difficult to fully evaluate the effectiveness of FOI policy implementation due to the recent reforms of policy, as well as numerous government scandals. This essay will look at the Code of Practice, Central Policy Unit, and Quarterly Disclosure Log and attempt to explain their effectiveness within Irish society, despite government scandals.

Code of Practice

Under the FOI Act 2014 and the Central Policy Unit (CPU), a Code of Practice was established to ensure FOI was carried out effectively in Ireland. The Code’s main objectives are to promote best practice to public bodies, inform public institutions of their responsibilities under the FOI Act, to ease the administrative burden of FOI by ensuring requests are dealt with efficiently and providing an ‘appropriate oversight and accountability framework of public bodies’ performance in compliance with the Code’ (Code of Practice, 2014). As FOI became prominent in Ireland, there was a need for the CPU to produce these notices, as the influx of requests was so great. However, The Code of Practice acknowledged that ‘the overriding challenge faced by public bodies in delivering the required level of service is staffing constraints’ (Code of Practice, 2014). Despite this, no solutions have yet been put forward to deal with this problem. In assessing Ireland’s FOI progress, Chari found that the Code ‘serves as a strong foundation to
strengthen the FOI legislation’ (Chari, 2016, p.8). Yet, more work is needed in terms of the active publication of information and the development of a ‘legislative footprint’ (Chari, 2016, p.8). While the Code seemed to be a powerful policy tool, the government has failed to make progress in alleviating any of its pitfalls. They have debated continuously about the issues of reducing request costs and bringing ‘high-profile exclusions within remit’ (Chari, 2016, p.43). Positively, the Code has made numerous inroads in defining what Cabinet records are, including government communications in the remit of requests and attempting to publish Cabinet records
within five to ten years, as well as remaining locally focused and problem driven. There is debate around the extent to which each body adheres to this Code and the FOI Act, especially when it comes to the processing of information requests.

Information Requests

It is in the Quarterly Disclosure Log, where government departments display their handling of information requests. Under the FOI Act 2014, all bodies must produce this log, including ‘details of the types of requests received under FOI since January 2016 and the decisions made by the body in response to those requests’ (Department of Defence, 2019). This attempts to make the Irish government more transparent and provide citizens with easier access to FOI. Under this policy, logs are supposed to be published online by each government department. Upon analysis of the Quarter 2 (April to June 2018) logs, it is clear that not every department is up to date in providing these logs. The Departments of Defence, an Taoiseach, Health and Communications, Climate Action, and the Environment are the only departments that have their logs easily accessible online. Even though they are available, they have omitted information and are not in chronological order, making them harder to examine. While the FOI Act (2014) ‘confers a statutory right on all members of the public to seek access to information held by FOI bodies… including information relating to oneself’, very few do so.

In 2018, thirty-five requests were made by the public to the Department of Communications, Climate Action, and the Environment, yet not one was fully granted, with many being withdrawn or going unanswered (Department of Communications, Climate Action, and Environment, 2018). Although this policy is aimed at encouraging citizen participation, citizen requests often go unanswered. While the Department of An Taoiseach refused no FOI requests in this period, few requests were fully granted. Requests which were fully granted tended to refer to the ‘National Development Plan and Project 2040’, both of which highlight the positive work the department is doing. In contrast, those that were only partly granted often referred to minutes of important meetings and An Taoiseach’s diaries. It appears that while the government is making individual efforts with this policy, they do not wish to grant citizens access to too much information. The Department of Health refused requests made by the Oireachtas eight times and failed to record all outcomes of FOI requests. Logically, all departments were reluctant to grant access to information such as the number of employees sacked or communications between high profile politicians and businessmen. Some requests were made by business groups, NGOs, and the public, with the most significant number of requests coming from journalists. This is in line with the prominence of the media, particularly in exposing government scandals. Every department was happy to release information which portrayed it in a positive light, yet requests which tended to be outrightly refused referred to significant talking points at the time. For example, ‘any internal records between the Department of Health and the HSE, regarding Cervical Check and/or any cancer screening programmes’ (Department of Health, 2019) and ‘Correspondence between Facebook Ireland Limited and the Department relating to Facebook’s response to Cambridge Analytica’ (Department of Communications, Climate Action and the Environment, 2018) were refused by their respective departments. While these issues proved to be controversial at the time, in order to ensure full government transparency, it is vital that citizens are fully aware of these topics and that individual departments live up to the FOI policy of the disclosure log, which they are failing to do at present.

FOI Policies and Scandals

FOI policies in Ireland have proven to be only somewhat useful. Requests which have been granted by some departments have, however, led to the exposure of numerous government scandals, which have shocked the nation. Such scandals include a letter to Kylie Minogue, travel expenses, the Public Service Card, and the Maurice McCabe scandal. It can be hard to measure the effectiveness of FOI policies in Ireland due to the outbreak of these events, some of which are ongoing. This reduces government trust and calls FOI into question. While the FOI Act has helped these scandals come to light, it displays the government’s lack of adherence to FOI policies and specific implementation weaknesses. Leo Varadkar’ twice blocked the freedom of information request from The Irish Mail on Sunday’ (Zhou, 2019) for his letter to Kylie Minogue to be released, after writing to the singer in advance of her Dublin concert. He stated that it did not relate to matters of the Taoiseach’s role as head of government. This reluctance to publicize the letter may be an indicator that government officials are cautious of FOI insofar as it may present them in a negative
light. FOI has highlighted the incompetence of government officials time and time again, disclosing that ministers claimed more than €800,000 in mileage, travel and subsistence expenses’ since taking office (Duncan, 2013), which led to the resignation of the speaker of the Dáil in October 2009 (Hazell and Worthy, 2010, p.356).

Furthermore, the Department of Social Protection refused to release reports under Section 29(1) of the FOI Act, which states that ‘FOI requests may be refused if the release of records would be contrary to the public interest’ (McDermott, 2019). The definition of public interest in FOI legislation has been called into question as many are unaware of what it signifies, and it is often used as a scapegoat for bodies refusing to release information. Following numerous recent court rulings about FOI appeals, where information requested was not disclosed under certain exemptions, journalist Gavin Sheridan stated ‘”The [FOI]Act is now –, and I use this word carefully – dead.’” (The Law Society of Ireland Gazette, 2019). It is not just the courts that struggle to see the effectiveness of FOI policies. Former Garda whistleblower Maurice McCabe and his family underwent severe trauma after waiting over five years to receive a copy of the freedom of information file that revealed the errors that led to ‘false allegations of sexual abuse’ against him (Murray, 2018). FOI legislation was in place to protect the McCabe family, yet the correct procedure and best practice were not followed. Much of this FOI criticism comes from journalists, and one must question whether these critiques are purely
due to their failings to gain information for stories. Regardless of this, it is difficult to ignore the weaknesses of FOI policy implementation in recent scandals. However, despite these criticisms, FOI policies have managed to highlight various scandals and government failings over previous years, many of which would have remained secret without certain individuals or groups making FOI requests.

Conclusion

Former Senator Liam Fitzgerald declared that “This Freedom OF Information Bill is a shambles” (McDermott, 2019), and he may have been right to question the reliability of FOI. While Ireland is a country which is quite open about the publication of FOI policies and legislation, its effectiveness of implementation must be questioned. The extent to which FOI policies are competent is debated, mainly due to apparent government inaction on specific issues, often leading to nationwide scandals. The FOI Act has
undergone various amendments in attempts to increase accountability and encourage more citizen participation, although citizens are less likely to make FOI requests due to the costs involved and lack of response from individual departments. While the Code of Practice and Quarterly Disclosure Log have made advancements in FOI in Ireland, they are far from effect. Further research is needed in examining private bodies comparing Ireland to other countries. While FOI policies do exist in Ireland, they must be upheld and carried out effectively in order to protect citizens and ensure a more transparent government.

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