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NUJ warns of FOI threat in Ireland

30 May 2019

Michael Foley

A decision by an Irish high court judge appears to have undermined the presumption of disclosure, considered central to any effective freedom of information legislation. 

The judge, Justice Garrett Simons found that the information commissioner, Peter Tyndall, was wrong to assume a ‘presumption in favour of disclosure’ in a case challenging the information commissioner’s own ruling.

Journalists, politicians, legal experts and transparency campaigners have raised concerns that if Justice Simons’ decision is allowed to stand it would undermine the whole basis of freedom of information, which, of course, is based on a presumption of disclosure.

The office of the information commissioner confirmed an appeal will be taken by the commissioner. The issue was discussed at the last NUJ ethics council meeting. 

The case before the court last month concerned a FoI request from the Irish public service broadcaster, RTÉ, which sought details of a loan provided to University College, Cork, by the European Investment Bank (EIB).

The university refused and RTÉ made a successful appeal to the information commissioner to access the records. When the university challenged the commissioner’s ruling in court, the judge said the commissioner had been wrong to take a presumption of disclosure as the starting point of the appeal. 

The issue arose when a journalist at RTÉ made the request as part of an ‘RTÉ investigation into universities spending and corporate governance. The university claimed the disclosure would prejudice the competitive position of a private third party, namely, the EIB and would have implications for the university as to who would be willing to partner with it in the future. Part of RTÉ’s argument was that the EIB is not a normal third party and is not in competition with commercial banks. 

Journalists and transparency activists were appalled at the decision and it was suggested by one investigative journalist that the decision effectively meant freedom of information legislation was effectively dead.

The fear is the ruling will undermine the principle that FoI means the onus is always on public bodies to prove why information should be refused. It is also feared that it could widen the use of rejection of disclosure due to commercial sensitivity.

Irish freedom of information legislation has a chequered history. It dates back to the 1997 act, which was enacted following a campaign by a number of NUJ members and other trade unionists who organised a campaigning body called, ‘Let In The Light’. 

While many politicians were opposed to the legislation a reforming labour party minister, Eithne FitzGerald, guided the legislation through. She made it clear at the time that the purpose of the act was precisely to change Ireland’s culture of secrecy to one of openness, and reverse the presumption of secrecy for one of disclosure.

The act was subsequently amended to introduce fees for non-personal requests; a massive blow to journalists. It also introduced restrictions on the kind of information that could be requested. The amended legislation was severely criticised as being contrary to the public’s right to know and made it almost impossible for journalists to access information in the public interest.

A new act in 2014 removed the fees and widened the organisations included so it covered all public bodies and so made it an effective journalistic tool and is used constantly by journalists.

Michael Foley is the vice-chair of the ethics council where he represents the Republic of Ireland.

Tags: , freedom of information, freedom of information act, foi, foi act, foi requests, ireland, court reporting, courts, ethics, ethics council