In a democracy, citizens delegate certain powers to governments, and the term ‘freedom of information’ has a comforting ring to it. It suggests that the public have a right to access information about what governments are up to behind closed doors, particularly when proposals and actions that affect them directly are being planned. If you are of an optimistic disposition, you might even expect public bodies to behave proactively in publishing information and not to wait until it is dragged out of them, bit by bit, by formal requests.
Here in Ireland we have a Freedom of Information Act that came into effect in 2014. It opens with a grand statement of principle: ‘An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies’. The act applies mainly to government departments, local authorities and health boards, referred to as ‘FOI bodies’.
FOI bodies are exhorted to strive to achieve greater openness in order to promote transparency, strengthen accountability and improve decision making by facilitating more effective participation by the public in consultations relating to their activities. Under the FOI Act, members of the public can formally apply for access to specific information that the FOI body holds. The application can either be granted or can be refused. If refused, there is an appeals procedure that ultimately ends in the High Court.
There are two main grounds for refusing access to information (FOI Sections 29 and 30). The first concerns what are termed the ‘deliberations of FOI bodies’ (ie, quite literally, if you are trying to find out what they are up to!). The second concerns the ‘functions and negotiations of FOI bodies’ (ie, if you want to find out how they arrive at decisions and what information and analysis they are using).
It will not take you long to realise that these two grounds will be pounced on and used by FOI bodies to try to prevent the release of any internal information.
West-on-Track
I can illustrate how the FOI process works in practice by using two examples of which I have knowledge. The first was an FOI request made to the Department of Transport in 2021, arising out of an effort by West-On-Track to seek unpublished statistical data that had been used in the infamous EY Report, commissioned and paid for by the Department.
The EY report had rubbished the restoration of the Western Rail Corridor from Athenry to Claremorris. EY, a private consultancy firm working for the Department, refused access to the information requested without giving any justification, and the data sought was not made available.
So, all an FOI body has to do in order to avoid FOI disclosures is to engage a private consultancy firm, at enormous expense, to carry out the work.
Murrisk greenway
The second FOI request was made very recently by the Belclare to Murrisk land-owners group that are opposed the construction of a cycle track (or ‘greenway’) on the slopes of Croagh Patrick that could involve CPOs on their land.
Specifically, the request was for access to the so called ‘Multi-Criteria Assessment (MCA)’ that had been prepared by Mayo County Council National Roads Office and used to justify what was curiously termed the MCC’s ‘emerging preferred Option 2’ – namely a TII-compliant tarmacked cycle track constructed along the pristine mountainside rather than an alternative enhanced road-based track. MCA is a standard methodology that is mandatory when making decisions where multiple criteria (or objectives) need to be considered in order to rank or choose between alternatives.
The refusal to grant access to the MCA was a classic example of the invocation by a public body of the two FOI refusal grounds mentioned above (Sections 29 and 30).
The MCA was claimed by MCC to be part of their ‘deliberations’ and of their ‘functions and negotiations’, and therefore an exempt FOI document. Furthermore, they asserted, the requested MCA was a mere draft and was constantly being revised.
The MCC decision was summarised as follows:
‘We are satisfied that the draft document in question relates to an active assessment, investigation, and evaluation process, and therefore contains matter relating to ongoing deliberative processes of the Council regarding a significant decision that the body proposes to make. As such, we are further satisfied that the granting of the request at this time would be contrary to the public interest.’
Council’s FOI refusal
Three observations immediately spring to mind.
First, FOI Sections 29 and 30 also state that a refusal may not be appropriate if the requested document is being used for the purpose of ‘making decisions, determinations or recommendations’ or in a case where the public interest would be better served by granting than by refusing the FOI request.
Second, the claim that a document is a ‘draft’ can always be used in bad faith as an excuse to prevent its publication until it is too late.
Third, Mayo County Council has already been obliged to refund €1.2 million to the Department of Rural and Community Development because of mismanaged ‘greenway’ money. If that is their idea of the public interest, you have to wonder what it is they are trying to hide this time.
John Bradley is a former ESRI professor and has published on the island economy of Ireland, EU development policy, industrial strategy and economic modelling.
OPINION: Foiling FOI requests is blocking citizens’ right to know
6
1
20.04.2024
In a democracy, citizens delegate certain powers to governments, and the term ‘freedom of information’ has a comforting ring to it. It suggests that the public have a right to access information about what governments are up to behind closed doors, particularly when proposals and actions that affect them directly are being planned. If you are of an optimistic disposition, you might even expect public bodies to behave proactively in publishing information and not to wait until it is dragged out of them, bit by bit, by formal requests.
Here in Ireland we have a Freedom of Information Act that came into effect in 2014. It opens with a grand statement of principle: ‘An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies’. The act applies mainly to government departments, local authorities and health boards, referred to as ‘FOI bodies’.
FOI bodies are exhorted to strive to achieve greater openness in order to promote transparency, strengthen accountability and improve decision making by facilitating more effective participation by the public in consultations relating to their activities. Under the FOI Act, members of the public can formally apply for access to specific information that the FOI body holds. The application can either be........
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