#foi15: the right to know


Conference schedule

Monday, February 11, 2013

Pavilion Complex, University of Limerick north campus

9am:              Registration, Millstream Building Common Room Floor 1


9:30am          Session One: The State and FOI

Plenary 1        Ian Readhead Director of Information, Association of Chief Police Officers UK

                       Nat O’Connor, TASC

                       Jennifer Kavanagh, WIT

                       His Excellency Roald Naess, Ambassador of Norway to Ireland


11am             Coffee


11:20am        Ministerial Address Brendan Howlin TD, Minister for Public Enterprise and Reform

                      Welcome, Prof Don Barry, President, University of Limerick


11:40am        Session 2: FOI use 1998-2013

                      Tom Felle, University of Limerick                      

                      Mark Mulqueen, Houses of the Oireachtas                   

                      John Carroll, Department of Transport                     

                      Conor Ryan, Irish Examiner

                      Gavin Sheridan, thestory.ie


 1:10pm         Lunch


2:30pm         Session 3: FOI in Ireland: Lessons learned 

Plenary 2      Emily O’Reilly, Ombudsman and Information Commissioner

                     Richard Dowling, RTE

                     Sean O’Reilly, UCC

                     Damien McCallig, NUI Galway


4pm              Summing up and open discussion:

                     Eithne Fitzgerald, Head of Policy and Research, National Disability Authority

                     Minister of State that introduced the original legislation


4:30pm        Close

examining 15 years of the Freedom of Information Act in Ireland



    & abstracts

Where’s the Harm in That? The Right to Know and National Security in Ireland

Jennifer Kavanagh

Since the initial introduction of Freedom of Information (FOI) in Ireland in 1997 act, subsequent amendment in 2003 and now total reform in 2012, the issue of access to information pertaining to national security has been a contentious issue. The protection such information has been shaped by the challenges that the emerging state faced from violence designed to overthrow the authority of the state. However the result is a level of national security protection in a neutral country comparable to that of a NATO member state.

The blanket restriction on issues of national security restrictions are to be removed as part of the Bill and replaced with a ‘harm test’.  The objective of the reform was to ‘achieve a more proportionate approach balancing the public interest in promoting appropriate access to official information and safeguarding essential national interests.’ However, does the proposed reform adhere to the International norms set down in the Johannesburg Principals? The harm test, reaffirmed by the draft bill, may still fall foul of Principal 1.2 where any restriction for national security reasons must have a ‘genuine purpose and demonstrable effect of protecting a legitimate national security interest.’

Therefore, this paper seeks to set out the philosophical and constitutional parameters in which the restriction operates; both nationally and international. Assess the impact of the changes on the International norms of FOI, and whether the new bill will succeed in creating an efficient environment of oversight and open government?

Jennifer Kavanagh is a Law Lecturer in Waterford Institute of Technology and a Ph.D. Candidate in the School of Law in Trinity College. Her research is on the use of restrictions on freedom of expression in the political process both in Ireland and abroad. She is a member of Irish Political Studies Association, the Irish Association of Law Teachers and the Society of Legal Scholars. She is a regular contributor to the PSAI website politicalreform.ie and has appeared on Tonight with Vincent Browne programme on TV3 as a legal and political commentator.

Second guessing the intentions of the deceased under the quasi-succession right to information

Damien McCallig

Since the enactment of Ireland’s Freedom of Information legislation, the criteria to be applied in assessing whether the personal information of a deceased person may be released have been transformed.  Initially, release to certain classes of requester, including a spouse and next of kin, was automatic and unqualified; however, fears that this practice unreasonably encroached upon the rights and interests of others, including the decedent’s right to privacy, led to a change in the law.  This paper examines recent decisions of the Information Commissioner and court judgments relating to requests for access to the personal information of deceased persons.  Taking the decedent as the primary focus, this paper asks what are the underlying rights and interests that the personal information exemption in the Irish Freedom of Information Act seeks to protect and considers whether such a legislative scheme is best suited to deal with these issues.  This paper argues that the Freedom of Information legislation, while striving to protect a decedent’s privacy, has created a mechanism for family members, including a spouse and next of kin, to access personal information of a decedent, while providing for refusal in certain circumstances.  However, due to weaknesses and inconsistencies in the regulatory framework and governance of public sector information this quasi-succession right to information is dependent on decision makers second guessing the intentions of the deceased.  If such a succession scheme is desirable, then the best person to decide if such access should be permitted, and to whom, is the subject of the information himself or herself.  An approach that involves recording the intentions of the deceased while still alive is recommended.

Damien McCallig is a Ph.D. candidate at the School of Law, National University of Ireland, Galway.  His research, which is funded by the Irish Research Council, is entitled The Law of Digital Remains: Reconciling the dignity and interests of the deceased with those of the living.  He is currently the module coordinator for Internet Regulation and Governance on the LL.M. in Law, Technology and Governance at NUIG and regularly contributes to IRIS – Legal Observations of the European Audiovisual Observatory, which addresses many of the cutting-edge issues in the media and communications fields.

How public access to information should be part and parcel of how we imagine democratic government should work.

Nat O’Connor

We would not consider Ireland to be democratic if we had no rights other than to vote every few years, even if the electoral process provided us with some information about what candidates would do once elected. We rightly expect to be able to talk freely about government policy at all times, and to openly declare its failings. We expect to be able to meet with like-minded people and to make demands of Government and our representatives. And we expect to interact directly with and influence public bodies as they go about implementing public policy. In other words, democracy is only meaningful if we have a series of political rights that are enforced. Central to our ability to participate is access to information about what our elected representatives and public officials are doing in our name and with our money. This paper will discuss the broader democratic system in which freedom to information interacts with parliamentary questions, administrative record-keeping, official secrets, and other ways in which information is made available (or denied) to people living in Ireland, and therefore the extent to which the overall availability of information promotes (or constricts) democracy in Ireland.”

Nat O’Connor is Director of TASC (independent, progressive think-tank) since January 2011. Nat has a PhD in political science from Trinity College Dublin (on public access to information as part of democracy) and an MA in political science and social policy from the University of Dundee, Scotland. Before joining TASC in 2009, Nat led the research team in the Homeless Agency for three and a half years. Nat has also worked as a consultant to local government on reporting of service indicators, and has lectured in NUI Maynooth, Trinity College Dublin, All Hallows College and DCU. More information about TASC can be found on www.tasc.ie

Expenses, Expenses & More Expenses? - The Irish Print Media & Freedom of Information


John Carroll

Freedom of Information campaigners regularly frame the debate on FOI as one about the rights of the individual and as a civil liberty concern. However, it is a power that is rarely used by a private citizen going about their daily business. Rather, it is through the media and the utilisation of the FOI provisions by journalists, campaigners and politicians that the public good is served by FOI. However, within the Irish context there has been relatively little consideration given to the manner in which the media utilise these provisions.


Therefore, this paper seeks to examine the manner in which the media have utilised these powers and to what ends. This will be done by an in-depth examination of FOI related reportage in Irish print media over the past eighteen months. Arising from this examination of the utilisation of the FOI provisions, this paper will consider the trends in tone and content of this reportage and asks what the implications of these trends are on public officials and for future reform of the FOI Acts.

John Carroll is currently employed as a Policy Adviser to Minister Leo Varadkar TD at the Department of Transport, Tourism and Sport. He holds a BA in History and a MA in International Relations. He has a strong interest in political reform measures, particularly those that relate to the role of the Oireachtas in government and legislation. He is attending the conference in a personal capacity.

Freedom of speech and the criminalisation of public interest disclosure

By Sean O’Reilly

The focus of this presentation is the compatibility of legislation which has on its face the potential to criminalise disclosures of information in the possession of the State made in the public interest, with the human right to free expression as enshrined in the Article 10 of the ECHR.  In the present political and economic climate there is an ever growing recognition of the value of public interest motivated whistle blowing in exposing failings in the institutions of the State and in building a more open and democratic society.  Against a backdrop of competing public interests in protecting State secrets and creating a robust legal framework which facilitates public interest whistle blowing, the European Court of Human Rights has been called upon to adjudicate on the compatibility of official secrets rules which criminalise whistle-blowing purported to have been carried on in the public interest and the right to freedom of expression.

This presentation will consider the manner in which the Court has sought to strike an appropriate and workable balance between these cherished values in cases such as Stoll v Switzerland (2008) 47 E.H.R.R. 59 and Guja v Moldova (2011) 53 E.H.R.R. 16 (decisions of the Grand Chamber). The presentation will examine the ramifications of this jurisprudence for Irish administrative practice and the role for the criminal law as a deterrent to disclosure. It will consider the broader lessons which our legislature and public bodies must learn from this line of case law and its implications for the framing of effective whistle blowing legislation in this jurisdiction in the future.

Seán O’Reilly BCL (Hons), LLM (Hons, NUI), PhD candidate (UCC) is a solicitor in the Corporate and Commercial Department of Ronan Daly Jermyn solicitors in Cork, one of Ireland’s leading commercial law firms and previously worked as a research assistant to Paul Sreenan Senior Counsel. He is also presently studying for his PhD in University College Cork (an institution from which he graduated first in his class) under the supervision of Dr Áine Ryall. The focus of his research is the private enforcement of EU law in the Irish courts and his published work has been cited with approval by the High Court.  Seán also lectures in contract law and intellectual property law in Griffith College Cork.

The regular and unnecessary roadblocks: Freedom of Information decisions from a journalist’s perspective

By Conor Ryan

The lack of consensus and explicit guidance on three critical exemptions built into the Freedom of Information Act has thwarted its potential. It has meant ad hoc interpretations of what is personal information; commercially sensitive data and the deliberative process are routinely arrived at by decision makers.

The result has been a confusion of concepts and an increasing tendency to refuse rather than to release.

Even among decision makers who are inclined to permit access there appears to be a reluctance to take a risk in the absence of legislative cover by way of accessible precedent or definitive guidance. The paper will examine the problems caused by the interpretation of these three exemptions through the experience of various decisions arrived at by public bodies. Within these, the unofficial start point appears to be that if a document relates to an identifiable person, a commercial transaction or an ongoing process it will be refused or heavily redacted. And, from a journalist’s perspective, the length of the appeals process ultimately leads to a negotiated, but unacceptable, compromise with freedom of information officers. 

Conor Ryan is the Investigative Correspondent with the Irish Examiner and engages extensively with the Freedom of Information Act and the Access to Information on the Environment Directive. Prior to taking on this role he worked as a political correspondent and in 2008 he spent six months covering the election of Barack Obama from campaign stops across America. He has been in journalism for 11 years working for the Irish Examiner, Tallaght Echo, as a freelance reporter and with Clare FM. Following lengthy investigations in 2010 his book Stallions and Power, The Scandals of the Irish National Stud was published.

Brendan Howlin is Minister for Public Expenditure and Reform and is a TD for Wexford. He served as Leas-Cheann Comhairle in the 30th Dáil. He previously held Cabinet posts including Minister for Health (1993-94) and Minister for the Environment (1994-97) and has been a member of Dáil Éireann since 1987. He served as a member of Seanad Eireann between 1982 and 1987. He is a member of the Labour Party and has previously served as a party spokesperson in number of portfolios. He is a former deputy leader of the Labour Party.

Roald Naess is Norwegian Ambassador to Ireland. He was appointed Ambassador in 2011, and was previously Ambassador to the Islamic Republic of Iran. A career diplomat, he has served as Ambassador and Senior Adviser at a number of portfolio areas in the Norwegian Ministry of Foreign Affairs. He  has also served as counsellor in the Norwegian Permanent Mission to the UN in Geneva as well as a number of other UN diplomatic roles. He holds a graduate degree in political science from the University of Oslo; a qualification in journalism from the Norwegian School of Journalism and briefly worked as a freelance journalist.

Emily O’Reilly is Ombudsman and Information Commissioner. was appointed in 2003 and re-appointed in 2009. As Ombudsman, Ms O’Reilly is also an ex-officio member of the Standards in Public Office Commission, the Referendum Commission, the Constituency Commission and the Commission for Public Service Appointments. In May 2007 she was assigned the additional role of Commissioner for Environmental Information. She is a former journalist and   author whose roles included many years as a political correspondent with prominent print and broadcasting media. She is a native of Tullamore, Co Offaly and is married with five children.

Eithne Fitzgerald is Head of Policy and Research with the National Disability Authority. as Minister of State introduced the Freedom of Information Act which was passed in 1997. She is an economist who has worked in the civil service, the voluntary sector, and as a university lecturer in social policy. She now works in the public service, as Head of Policy and Research with the National Disability Authority. She was a TD between 1992 and 1997 and was Minister of State in the Office of the Tanaiste; the Department of Finance; and the Department of Enterprise, Trade and Employment.

Ian Readhead is Director of Information with the Association of Chief Police Officers, UK. LL.B. joined Hampshire Constabulary at the age of 16 as a cadet. His successive ranks in the Police Service have a strong operational background. He was appointed Assistant Chief Constable in 1995 and Deputy Chief Constable in 2000.  Mr Readhead led for the Association of Chief Police Officers on a number of portfolio areas including communications, FOI, data protection, procurement and mobile data. He retired from Hampshire Constabulary in September 2008 and immediately took up his new role as the ACPO’s Director of Information.

Plenary and guest speakers

Session panelists

(Still) a very secret service?

By Richard Dowling

Balancing the right to know and law enforcement is, in my experience, never straightforward. In most countries with Freedom of Information legislation the police force is subject to it – but not here.  That is going to change sometime in the future as the Government has included An Garda Siochana in the proposed Freedom of Information Bill 2012.

This paper will examine and question that proposed extension to see how effective it will really be. It seems many parts of the organisation will be exempt in their entirety from the scope of FOI regardless of content.  Why is this and how does this compare to similar jurisdictions where the police are subject to FOI? Are these restrictions necessary to protect the State and life or are they signs of reluctance to accept openness Recent FOI decisions regarding gardai and crime will also be examined to see what they show about the State’s approach to releasing such information and what it might mean for the future.

* Richard Dowling is the North East Correspondent for RTE News and is a regular user of the Freedom of Information Act. He is also the author of the book ‘Secrets of the State and How to Get Them’ which is aimed both at demystifying the Act as well as encouraging more people to use it. He has also a regular user of FOI legislation in the UK and America to access information of public interest – particularly in relation to law and law enforcement because these areas are still outside the remit of the Act here. Most recently he has been engaged in a four year legal battle with the Police Service of Northern Ireland to obtain previously unpublished chapters of the Stevens 3 report which investigated collusion between security forces and loyalists in the murder of solicitor, Pat Finucane.

Media coverage of the Oireachtas and the Freedom of Information Act

By Mark Mulqueen

This paper will focus on how FOI impacts on the media’s coverage of Leinster House and how that in turn helps shape public understanding and perception of the parliament. At the core this three-way relationship is the matter of trust. He will draw on recent research into public perception of the Houses of the Oireachtas and public dependency on an increasingly wide range of media to inform itself of the parliamentary and political process. In doing so, his paper will seek to place the use of FOI in the context of the media’s role in framing the public’s relationship with its democratic institutions and will conclude by summarising what the Oireachtas is doing to manage this reality more effectively.        

Mark Mulqueen was appointed the first Head of Communications for the Houses of the Oireachtas in 2007. He has responsibility for the design and implementation of the national parliaments communications strategy, incorporating media, web, social media, broadcasting, education and outreach, visitor experience, public events, public information  and publishing. Prior to this he was the CEO of the Irish Film Institute. He holds a Masters Degree in Political Communication from Dublin City University.

Three years of FOI requests and sharing the results online

By Gavin Sheridan

Since 2009 thestory.ie has sent over 100 FOI requests trying to obtain all sorts of information. One focus was obtaining databases. Why do this in your spare time, how difficult is it and should we have to ask for these types of databases at all? In a personal reflection on the use of FOI, this presentation will discuss why FOI has many positive democratic benefits, but the idea that Irish government the civil and public service are entirely open, and that FOI provides for this, is incorrect as evidenced by usage of the Act. 

Gavin Sheridan is a blogger and journalist from Cork, Ireland. He specialises in access to information and data journalism. He co-founded thestory.ie in 2009, a blog dedicated to obtaining and publishing government data. He writes freelance for newspapers such as the Sunday Times and Sunday Independent. He has taken several successful Information Commissioner appeals under both FOI and Access to Information on the Environment (AIE) regulations.

The Freedom of Information Act and the Irish Parliamentary System

By Tom Felle

Freedom of information is important because it makes government open, transparent and accountable. The philosophy behind such legislation is that citizens have a right to know how and why decisions are made by government in their name. The Irish state’s colonial heritage and violent birth contributed to the highly secretive and centralised nature of bureaucracy and government. Modernisation occurred for a variety of reasons during the late 1980s and 1990s, making the state more open, accountable, and transparent and legislation to introduce FOI was part of that wave of modernisation.

This paper sets out the approach of successive governments to openness in Irish democracy and analyses the development of FOI legislation in Ireland.

Examining the results of surveys from members of the Irish parliament, this paper quantifies the usage habits and views of parliamentarians. The introduction of FOI modernised Irish government by making it more open, transparent and accountable, thereby improving the quality of Irish democracy, however the 2003 amending legislation rowed back on that modernisation somewhat.

* Tom Felle is a Lecturer in Journalism and New Media and director of the University of Limerick’s BA Journalism and New Media programme. Previously, he worked as a reporter and correspondent for the Irish Independent from 2000 to 2006. He has worked internationally for a number of media organisations in Europe, Australia and the Middle East. In 2002-2004 he was deputy editor of the Irish Echo in Sydney and in 2006-2007 he was Bureau Chief of the Lebanon News Agency in Beirut. He has contributed to a number of broadcasting organisations including the BBC, SBS television (Australia), Newstalk, Today FM, RTE and TV3. His research interests include open government and freedom of information, media and democracy, and data journalism.