* first 7 months of operation only.

** first 8 months of operation only.

Source of Australian figures: Annual Report of the Information Commissioner of Western Australia 1993-1994. Irish figures supplied by FOI Central Policy Unit, Department of Finance.

The number of requests under the Irish Act is similar to the figure for the first year of operation of Australian federal FOI Act. Bearing in mind that the Australian Act, unlike our own, had retrospective effect, the Irish figure is relatively high. The Australian figure has grown in the past 15 years to a level of approximately 35,000 requests per year and I believe we should expect at least the same level of requests once the Act has matured.

The level of requests for access to non-personal information running at approximately 50% of the total is higher than that at federal level in Australia (c.10%) and Canada (20%). Given the very limited retrospective effect of the Act, the number of non-personal requests is surprisingly high. It will be interesting to see whether this trend continues as more non-personal records come within the scope of the Act as a result of the passage of time.

In terms of the identity of the requesters, journalists have shown themselves to be very active users of the FOI Act coming in at 22% of requests. This is relatively high by international standards. Business use of the FOI Act is quite low at approximately 14% in comparison to the c.85% of business requests in the US. The remainder of the requesters are made up of 7% Oireachtas members, 15% staff requests and 41% others. The level of interest in FOI on the part of journalists is perhaps not surprising given recent events in Irish public life such as the Beef Tribunal, the hepatitis C scandal and other matters. The number of requests submitted by lawyers is not isolated in the statistics so it is not clear to what extent the business users are made up of lawyers.

• Information Commissioner’s decisions

The Information Commissioner has issued a small number of decisions to date (32 formal decisions were delivered up to the end of March). One interesting feature of these decisions is that about 2/3rds of them relate to personal information. This is despite the fact that only 50% of the initial requests relate to personal information.

Why does the Commissioner’s workload favour personal matters? One explanation for this may be that journalists and others engaged in making non-personal FOI requests may not have the same desire to follow through on FOI requests as individuals who seek personal information. The Commissioner may also have decided to deal with personal information appears first because they tend to be relatively uncontroversial.

In the case of non-personal information, very few substantive decisions have been handed down. Nonetheless some preliminary comments can be made. The Commissioner has considered the scope of the confidentiality exemption (s.26) in a number of cases² and has, in my view, adopted the correct approach by refusing to accept arguments that information had been provided to public bodies in confidence in the absence of clear evidence to that effect. He has also issued an important decision on the issue of commercial confidentiality (s.27)³ which is likely to have a significant impact in promoting transparency in the area of public service tendering. This decision also contains important findings with respect to the operation of the public interest test which are crucial to the operation of the Act.

It is to be regretted that in a small minority of cases the Commissioner has been unable to adhere to the 4 month time limit set out in the Act⁴ . While I realise that the Commissioner is not legally bound to adhere to this time limit, delay in issuing his decisions will surely make it difficult for him to castigate public bodies for similar delays. In particular, there is some evidence to the effect that public bodies tend to delay their decisions until their 28 days limit is about to expire even though the Act requires in the first instance that decisions be made “as soon as may be”⁵. Evidence for this is largely anecdotal but I was able to substantiate it in relation to matters in which the Commissioner has issued decisions since he has generally recorded all the relevant dates. Given that these are likely to be the “hard” cases, it suggests that public bodies may be deliberately delaying making decisions.

• Scope of the Act

Given that the Act has been in force for a year and has not given rise to major problems, serious consideration should be given to redressing the main shortcoming of the Act, namely it limited scope.

Many important bodies are excluded from the scope of the Act: for example the Gardaí, schools, Universities, VECs, Fás, Bórd Fáilte and Enterprise Ireland not to mention commercial state-sponsored bodies.

In addition, a number of bodies established by legislation introduced after the passing of the Act have not been included within the scope of the FOI Act, for example:
Court Services⁶, the Western Development Commission⁷, the National Disability Authority⁸, newly established educational bodies (the National Qualifications Authority; Further Education and Training Awards Council; Higher Education and Training Awards Council)⁹, the Telecommunications Infrastructure Board¹⁰, and bodies established under the British-Irish Agreement Bill (Waterways Ireland; The Food Safety Promotion Board; The Trade & Business Body; The Special EU Programmes Body; An Foras Teanga; The Foyle, Carlingford & Irish Lights Commission)¹¹. Interestingly in the case of the latter bodies, both the Ombudsman Act and the Data Protection Act but not the FOI Act have been applied to them by the Bill under which they are established.

It is not always easy to ascertain which new bodies come within the scope of the FOI Act. In the case of the only newly established body which I found had been included within the scope of the Act, namely the Commission for Electricity Regulation, its inclusion was effected by means of a provision of the Electricity Regulation Bill 1999 which provides that this body is to be included in the relevant schedule of the FOI Act. The problem is that the application of the Act to that body can only be deduced from looking up the Electricity Regulation Act/Bill. If the extension of the scope of the Act is to be dealt with in this piecemeal fashion, it will be very difficult for a potential user to gain an overall view of the application of the Act.

The narrowness and the uncertainty of the scope of the Act could be addressed by adopting the approach used in Australia where the FOI Act covers all government agencies apart from those expressly excluded. This means that new bodies automatically come within the scope of the Act.

• Secrecy provisions

The FOI Act was supposed to overturn the presumption of secrecy established under the Official Secrets Act (OSA). Certain aspects of the Act call the sincerity of that promise into question.

In the first place, the FOI Act does not purport to repeal the OSA. Instead it ensures that public servants do not fall foul of the OSA merely as a result of disclosing information under the FOI Act¹². This protection applies only in respect of disclosures authorised by the FOI Act. In all other respects the OSA remains intact. This means that the OSA can continue to be used in the case of disclosures of information to which the FOI Act does not apply for example pre-April 1998 or records of bodies other than those to which the FOI Act applies. Clearly this falls a long way short of turning the OSA on its head which was what was promised at the time of the introduction of the Act.

The relationship between the FOI Act and restrictions on disclosure of information in other legislation also gives rise to concern. The FOI Act overrides only those secrecy provisions of other legislation which are expressly set out in Schedule III of the Act, leaving all other statutory restrictions on disclosure intact¹³. There is no list in the FOI Act of such restrictions on disclosure making it very difficult for the citizen to know exactly what legislative restrictions on disclosure are in force. This is the opposite approach to that adopted in Australia and Canada, where the only prohibitions on disclosure which survive the enactment of their FOI Acts are those expressly listed in their FOI Acts.

The Irish Act includes a provision under which a joint committee of the Houses of the Oireachtas may be required to carry out of a review of all secrecy provisions to see whether they should be retained¹⁴. Each Minister is required to furnish the committee with a written report setting out the secrecy provisions of enactments relevant to his or her area of responsibility giving the Minister’s views as to whether they should be retained. These reports were required to be furnished to the committee within 12 months of the commencement of the Act¹⁵. The Joint Committee on Finance and the Public Service was designated as the relevant committee only on the 30^th of March. So far none of the reports have been furnished to the committee. I am however aware that the preparation of these reports is in train. No time limit for the completion of its review is however imposed on the Committee by the Act leaving one to conclude that this is not seen as an urgent matter.

In conclusion, the Act as it stands can be said to be working reasonably well but until the issues of the range of public bodies covered by the Act and the secrecy provisions of other enactments are addressed it will be a case of

“Some freedom for some information”