Hostname: page-component-586b7cd67f-dlnhk Total loading time: 0 Render date: 2024-11-24T12:31:52.883Z Has data issue: false hasContentIssue false
  • English
  • Français

FOI in Ireland and Europe: Progress and Regression

Published online by Cambridge University Press:  28 February 2019

Maeve McDonagh
Get access Rights & Permissions [Opens in a new window]

Extract

There has been a high level of activity in the development of standards concerning access to public sector information in Europe in recent years. At domestic level, freedom of information (FOI) legislation has been introduced to the overwhelming majority of member states of the European Union and to a number of former Eastern bloc countries. Freedom of Information has also increased its impact at supra national level, both in terms of progress towards the development by international bodies such as the European Union and the Council of Europe of FOI norms for their Member States and with respect to the opening up of access to documents of the international institutions themselves. There is, however, considerable variation in the content and scope of the various FOI measures introduced. The aim of this paper is to assess the scope and operation of two contrasting examples of recently introduced or proposed FOI measures, namely the Irish FOI Act and the proposed Regulation on Access to Documents of the European Institutions. The overall theme of the paper is that strong FOI measures are needed to combat the tendency toward secrecy in public administration in Europe but that even where access measures are relatively strong in their formulation, their effectiveness can be limited through under-funding or more direct interference with the operation of the access scheme.

Type
Articles
Information
International Journal of Legal Information , Volume 29 , Issue 2 , Summer 2001 , pp. 256 - 271
Copyright
Copyright © 2001 by the International Association of Law Libraries 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Most recently access laws have been introduced at state level in Germany (Brandenburg (1998), Berlin (1999) and Schleswig-Holstein (2000)). In the UK the FOI Bill has been passed by the House of Commons and is currently being considered by House of Lords.Google Scholar

2 FOI Acts have been introduced in the Czech Republic and in Latvia while draft FOI laws are being considered in Bulgaria, Georgia and Moldova.Google Scholar

3 The Directive on Freedom of Access to Information on the Environment (Directive 90/313/EEC) established a framework for access to environmental information held by public authorities of the member states. In July 2000 the Commission adopted a proposal for a new Directive on access to environmental information aimed at strengthening the access rights granted under Directive 90/313/EEC.Google Scholar

4 The Council of Europe is currently working on a legal instrument aimed at conferring a right of access to information of the public authorities of member states.Google Scholar

5 See below.Google Scholar

6 These provisions impose obligations on public bodies to publish information concerning inter alia their structures and functions, the types of records they hold, and the rules, procedures and guidelines used by them in arriving at decisions: ss.15 & 16.Google Scholar

7 Section 17 of the Act confers a right of amendment of personal information where it is incorrect, misleading or incomplete.Google Scholar

8 The Act introduces for the first time in Irish law a statutory right to be given reasons for administrative decisions which affect one.Google Scholar

9 There are three stages to the appeals system: the first involves internal review of the original decision, the second consists of the bringing of an appeal to the Information Commissioner, an independent office established under the Act. The Commissioner has the power to order release of records. Finally, an appeal may be brought against the Commissioner's decision to the High Court on a point of law.Google Scholar

10 s. 6(5).Google Scholar

11 There are 12 main exemption provisions, many of which encompass a number of grounds of exemption. They cover records relating to the cabinet; deliberative processes; functions and negotiations of public bodies; parliament, court and legal professional privilege; law enforcement and public safety; security, defence and international relations; information obtained in confidence; commercially sensitive information, personal information, research and natural resources; financial and economic interests of the sate and public bodies; and existing legislative restrictions on disclosure.Google Scholar

12 Figures supplied by the FOI Central Policy Unit, Department of Finance.Google Scholar

13 See Hazell, R. Freedom of Information In Australia, Canada and New Zealand: Report to the Cabinet Office, Canberra, 1993.Google Scholar

14 There were 117 stories based on records to which access was obtained under the FOI Act in one national newspaper (The Irish Times) over a 12 month period up to September 2000.Google Scholar

15 Annual Report of the Information Commissioner, 1999 available at the Commissioner's website at www.irlgove.ie/oic.Google Scholar

16 Re Mr AAY and the Department of Social, Community and Family Affairs, Information Commissioner, unreported, 28/01/1999, Case No.98103; Re Henry Ford & Son Ltd and Office of Public Works.Google Scholar

17 Re Henry Ford & Son Ltd and Office of Public Works; Re Sunday Tribune and the Office of the Houses of the Oireachtas, Information Commissioner, unreported, 27/7/1999, Case No.99168.Google Scholar

18 Re Mr. Martin Wall, The Sunday Tribune and the Department of Health and Children, Information Commissioner, unreported, 31/3/1999, Case No. 98078.Google Scholar

19 Re Ms ABT, Mr ABU and the North Eastern Health Board, Information Commissioner, unreported, 21/12/1999, Case No.99347.Google Scholar

20 Ibid.Google Scholar

21 Re Ms ABY and the Department of Education and Science Information Commissioner, unreported, 6/7/2000, Case No. 98169.Google Scholar

22 Ibid.Google Scholar

23 Re Mr AAK and the Department of Agriculture and Food, Information Commissioner, unreported, 9/11/1998, Case No. 98032; Re Messrs AAU and the Department of Agriculture and Food, Information Commissioner, unreported, 14/01/1999, Case No. 98086, Re Mr AAY and Department of Social, Community and Family Affairs Information Commissioner, unreported, 28/1/1999, Case No. 98103.Google Scholar

24 Re Ms ABY and the Department of Education and Science Information Commissioner, unreported, 6/7/2000, Case No. 98169; Re Mr ABL and the North Western Health Board, Information Commissioner, unreported, 3/12/1999, Case No. 99273.Google Scholar

25 Re Mr Richard Oakley, The Sunday Tribune newspaper and the Office of the Houses of the Oireachtas Information Commissioner, unreported, 27/7/1999, Case No. 99168.Google Scholar

26 s. 34(3).Google Scholar

27 Examples of such political backlash could be found in the states of Victoria and Queensland in Australia.Google Scholar

28 Review of Administrative and Procedural Arrangements Governing FOI Report by the FOI Civil Service Users’ Network, December 1999.Google Scholar

29 See report of the meeting entitled OIC guidance note in relation to sections 20, 21 and 26 of the FOI Act published on the Information Commissioner's website at ww.irlgov.ie/oic/228e_3c2.htm.Google Scholar

30 s. 33(2).Google Scholar

31 Proposal for a Regulation of the European Parliament, and of the Council regarding public access to European Parliament, Council and Commission documents, COM(2000) 30 final/2.Google Scholar

32 93/730/EC, [1993] OJ L340/41.Google Scholar

33 Respectively [1993] OJ L340/43 and [1994] OJ L46/58.Google Scholar

34 Parliament Decision on public access to Documents 10 July 1997, [1997] OJ L263/27.Google Scholar

35 Case C-58/94 Netherlands v Council [1996] ECR I-2169; Case T-105/95 WWF v Commission [1997] ECR II-313; Carvel and Guardian Newspapers v Council [1995] ECR 11–2765; Interporc Im- und Export v Commission [1998] ECR II-231 (Interporc I); Case T-174/95 Svenska Journalistförbundet v Council [1988] ECR II-2289; Case T-14/98 Hautala v Council, unreported, judgment of 19 July 1999; Case T-83/96 Van der Wal v Commission [1998] ECR II-545; Case T-610/97 Carlsen and others v Council [1998] ECR II-485; Case T-188/97 Rothmans International v Commission, unreported, judgment of the 19 July 1999; Case T-309/97 Bavarian Lager Com Ltd v Commission, unreported, judgment of 14 October 1999; Case T-106/99 Meyer v Commission, unreported, order of 27 October 1999; Case T-92/98 Interporc Im- und Export v Commission, unreported, judgment of 7 December 1999 (Interproc II); Case C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission, unreported, judgment of 11 January 200; Case T-199/98 Kuijer v Council, unreported, judgment of 6 April 2000.Google Scholar

36 Netherlands v Council, ibid., Van der Wal, ibid.Google Scholar

37 WWF v Commission, op. cit., above, n. 33; Interporc Im- und Export v Commission (Interporc I), op. cit., above, n. 33; Hautala v Council, op. cit., above, n. 33.Google Scholar

38 See Curtin, D. “Citizens’ Fundamental Right of Access to EU Information: An Evolving Digital Passepartout?” 37 Common Market Law Review (2000), 7; Öberg, U “Recent Developments in Public Access to Documents held by European Community Institutions” (1998) 74 FOI Review 22.Google Scholar

39 See for example: Ireland: Freedom of Information Act 1997, ss. 15 & 16; Australia: Freedom of Information Act 1982 (Cth), Part II; Canada: Access to Information Act R.S.C., 1985, s. 5; New Zealand: Official Information Act, 1982, Part III, U.S.: Freedom of Information Act, 1966, Section 552(a)(1).Google Scholar

40 Curtin argues however that since Article 1 of the Treaty of the European Union refers to open decision-making as being one of the objects and purposes of the Treaty, all institutions, organs and other bodies operating within the framework of activity of the European Union are subject to this principle. This, she suggests, implies that the internal access rules of such bodies should be interpreted in the light of the new Treaty based emphasis on open decision-making: Curtin, op. cit., above, n. 36, Pp. 28–29.Google Scholar

41 Article 2(1).Google Scholar

42 Article 3(a).Google Scholar

43 Article 4 provides as follows: “The institutions shall refuse access to documents where disclosure could significantly undermine the protection of:Google Scholar

(a) the public interest and in particular: public security, defence and international relations, relations between and/or with the Member States or Community or non-Community institutions, financial or economic interests, monetary stability, the stability of the Community's legal order, court proceedings, inspections, investigations and audits, infringement proceedings, including the preparatory stages thereof, the effective functioning of the institutions;Google Scholar

(b) privacy and the individual, and in particular: personal files, information, opinions and assessments given in confidence with a view to recruitments or appointments, an individual's personal details or document containing information such as medical secrets which, if disclosed, might constitute an infringement of privacy or facilitate such an infringement;Google Scholar

(c) commercial and industrial secrecy or the economic interests of a specific natural or legal person and in particular: business and commercial secrets, intellectual and industrial property, industrial, financial, banking and commercial information, including information relating to business relations or contracts, information on costs and tenders in connection with award procedures;Google Scholar

(d) confidentiality as requested by the third party that supplied the document or the information, or as required by the legislation of the member State.”Google Scholar

44 Carvel v E.U. Council, op. cit., above, n. 33, at Para. 65.Google Scholar

45 WWF v Commission, op. cit., above, n. 33; Interporc Im- und Export v Commission (Interporc I), op. cit., above, n. 33.Google Scholar

46 COM(1998) 585.Google Scholar

47 Ibid., p. 1, n. 3.Google Scholar