You will be familiar with the phrase "that's for me to know and you to find out". When I first heard it I confess I did not understand it. However, I quickly learned to grasp its meaning when I began as a solicitor to act for clients involved in dealings with public bodies.

This paper addresses some issues that relate to the commencement and conduct of public law litigation following the implementation of the Freedom of Information Act 1997. By public law litigation I mean Court proceedings involving public bodies and relating to the performance of their duties towards individuals or groups of individuals affected by their actions.

This paper reflects the views of a solicitor in private practice. My experience is based on representing groups or individuals in conflict with public bodies. These conflict areas have ranged from asserting rights of employees in certain types of government or public service to housing entitlements to children's rights vis a vis Health Boards and Government departments and the Courts to the operation of planning and environmental authorities to Constitutional controversies. Of the latter, the most spectacular was the Crotty case restraining the government from ratifying the Single European Act without first consulting the people of Ireland. It has been a characteristic of defendants in this type of controversy to be both defensive as to their decision-making basis and to possess an unshakeable conviction that the Applicant is a crank.

In these circumstances it is perhaps not surprising that extracting information to assist the Applicant or his or her advisors in assessing their legal position is not always easy to obtain. Even where it can be sought the facilities are often inadequate; trying to inspect a planning file of any size can be a real adventure. Finding where the missing bits are hiding, balancing everything on your knees in a busy corridor, trying to dictate notes because the photocopier is not working, and so on.

If newspaper reports are to be believed this attitude of official obstructionism is alive and well in the Eastern Health Board. According to last week's Sunday Tribune they object to releasing patient records to patients entitled to them under the Act as and from next week. They justify this by saying the patients might be motivated by a wish to sue them. I understand that the Information Commissioner has indicated that a person's motivation - presumed or real - is no basis for refusing their request. We entrust public bodies with hugely important powers affecting every aspect of our lives including the health and well-being of ourselves and our children. Sometimes it seems they forget that. They meanwhile trust us with nothing in case they might incriminate themselves.

The existing rules

The Applicant is frequently therefore left to rely on the existing rules of court, particularly those dealing with what are called interrogatories, Discovery and inspection.

These rules are set out in Order 31 of the Rules of the Superior Courts. There is a big problem here: these Rules can only be invoked after Court action is underway. Not before. There is another big problem: Discovery is a hugely tedious and time-consuming process. Someone has to personally ensure that every page of every document of any possible relevance to the case is found even where they may no longer have possession of it. Every document must then be listed item by item on Affidavit. The other side may then seek to inspect everything in person. All the time the costs are running up. Lawyers flourish.

When advising a person whether or not their legal entitlements have been withheld from them or whether their legal rights have been infringed by a public body one is faced with a particular difficulty. Public bodies are in general presumed by the Courts to behave properly. The onus therefore is very much on the Applicant to prove that they have been wronged. The onus is not on the public body to show that it acted properly.

Judicial Review

Public law litigation is generally conducted by way of Judicial Review proceedings. The nature of these proceedings requires the Applicant to set out their case in written form at the outset of the Court process. The reasons for the Applicant's belief that they have been wronged must be set out together with the grounds on which those reasons are based. The Courts have made it clear that Judicial Review is essentially as its name implies a review by the Judiciary. It is a review confined however to the decision-making process rather than an enquiry into the merits of the decision itself. The Courts have repeatedly made it clear that they do not see it as their function to substitute their judgement for the judgment of authorised decision makers carrying out public functions of an administrative or even quasi judicial nature. An example of the extent of the burden this places on Applicants can be seen from the Radio Tara Mast case - O'Keeffe -v- An Bord Pleanála.

At this point it is helpful to contrast the Judicial Review procedure with the very different procedure by way of Plenary Summons. This procedure would be used, for example, in civil disputes such as actions for negligence or damages for other civil wrongs. In these cases the proceedings commence by way of written summons which contains very little of the substance of the arguments to be advanced by the Plaintiff. The Court Rules governing plenary cases require a certain amount of information to be furnished as the proceedings continue through periods that can often stretch over several months and into years. The Plaintiff may even supplement this material or at least amplify it at the eventual hearing within certain limits. Contrast the threshold to be crossed at the very beginning of a Judicial Review case. As Chief Justice Finlay said in G. -v- Director of Public Prosecutions:
 

"An Applicant must satisfy the court in a prima facie manner by the facts set out in the affidavit and submissions made in support of his application of the following matters:

(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a statable ground for the form of relief sought by judicial review.

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.

(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in Order 83., r.21(1) or that the Court is satisfied that there is a good reason for extending this time limit....

(e) That the only effective remedy on the facts established by the applicant, which the Applicant would obtain would be an order by way of judicial review or, if there be an alternate remedy, that the application by way of judicial review is, on the facts of the case, a more appropriate method of procedure."

The need to front-load your work in public law litigation brings into very sharp focus the value of having information on tap quickly.

Otherwise the aggrieved person has an acute dilemma. Have they enough information to support their case and thus to justify commencing proceedings? Can they hope to beef-up the available evidence by relying on the Court Rules for interrogatories, Discovery and inspection? Can they take the financial risks of full-blown Court proceedings without knowing the full extent of the evidence that may emerge from the files in the hands of the body under scrutiny?

To the extent that the Freedom of Information Act gives a way out of this dilemma it will be welcomed by Applicants and their advisors.

Benefits of the Act

Under the Act information which may be obtained can be elicited without first embarking on litigation. It must be provided relatively promptly and inexpensively. People can act for themselves. They do not need lawyers. A further perhaps little known benefit of the Act is that information properly obtainable under it is not subject to the restrictions on the use to which it can be put that would apply to information obtained, for example, under the Discovery process. Under discovery the information can only be used for the purpose of the proceedings underway. It is potentially a contempt of Court for any party to make use of information obtained under discovery for any other purpose. Thus regardless of the public benefit that might flow from public disclosure of the information if the proceedings do not continue to a point where the evidence comes into the public domain, the material may remain suppressed. No such restriction applies to information released under the Act.

The Act imposes duties on public bodies to publish a written guide to their structure, their functions and the categories of information which they hold. They are required to make public any internal guidelines used in decision-making. Mary Johnson of the Free Legal Advice Centres identifies one good example of this in practice by noting that the Department of Social Welfare is required by law to publish guidelines in relation to payment of rent allowance. These types of provisions are new and create legal entitlements in their own right.

Conclusion

The obligation to make certain information public on request improves to a certain extent on the existing Court procedure of discovery. It can be invoked without first mounting expensive and possibly risky legal proceedings. The use of the information gleaned is not restricted in the way that information given under the discovery procedure is restricted.

The new entitlements will not replace the discovery procedure in the conduct of litigation. They may lead to a reduction in the level of litigation by making it clear that certain information has to be divulged on request whether or not proceedings are contemplated or are in existence. The giving of information itself may make litigation unnecessary. Going further back, the knowledge on the part of public officials that the files may be opened should help to ensure that fair procedures will be followed. That in itself should reduce the risk of litigation.

It is likely that where litigation does ensue the moving party will still generally seek discovery if only to ensure that all of the information furnished under the Act is verified on Affidavit as being complete. Having it on Affidavit means that it has to be right - otherwise the official is at risk of "attachment" for contempt of Court. In any event the scope of the discovery procedure may often be greater than the scope of the Act. For this reason alone discovery will continue to be an essential tool in much public law casework.

In a more general sense the is considerable work done within public bodies to train staff in the implications of this Act and in its implementation will, one hopes, bring about an attitude change. A move towards recognition at official level that information is to be seen as the property of the public or of an individual member of the public and not solely the private property of the body possessing it should in time lead to a healthier relationship between all concerned. Most reasonable people have a dread of litigation. More and more people in business are solving commercial disputes using alternative dispute resolution methods. Often these are quicker, cheaper and less confrontational. Courts should be a very last resort - not the first resort as it becomes at present if information is withheld.

The need to launch proceedings for Judicial Review in order to get access to information actually provokes confrontation. Then everyone hides behind the lawyers and watches the costs go through the roof. Often the problem that was at the root of the conflict is quickly submerged, sometimes never to resurface. How much more satisfactory it would be for both sides if a more open exchange can take place based on a full understanding by both sides of all the relevant facts and methods grounding the decision under question. If implemented in a fair-minded spirit freedom of information may in time promote freedom from litigation.