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The unpredictable drip of freedom of Information. Understaffed new Information Commissioner withdraws appeal as Aarhus convention flouted.

By Tony  Lowes


‘Governments treat the information in their possession as a resource, to be doled out in amounts as they see fit, either copious flows or mean little trickles. I noted that ultimately, it is the Government that controls the tap –

Emily O’Reilly, Information Commissioner 2003-13’


In   a serious blow to Freedom of Information in Ireland, the newly appointed Information Commissioner and Ombudsman Peter Tyndall has withdrawn his predecessor’s appeal against a High Court judgment that the constitutional right to cabinet confidentiality can not be superseded by rights under EU.


Under EU law, no emission to the environment can be exempted from the access to information legislation for any reason – not “commercial sensitivity” or “internal communications” or even “cabinet confidentially”. Requests for information often fall to many such exemptions. But if the information concerns “emissions to the environment”, that information must be released.


Nevertheless in 2008 when Emily O’Reilly overturned the government’s decision not to release a cabinet minute relating to greenhouse gas emissions the Government took her to the High Court, which ruled in June 2010 that the Constitution trumped EU law. O’Reilly appealed to the Supreme Court, where the decision – described by one expert as “questionable in EU law” – could be debated at the highest level and if necessary referred to the European Court of Justice for its views. Scheduled to be heard this year, this prospect has been dashed by the new Commissioner’s withdrawal.


Strangely but “strongly” of the view that the appeal would not succeed, the Commissioner admitted that he was aware the case raised issues “which went beyond the single question of access to the single document sought”. He was, however “cognisant of the severe financial constraints within which this office is obliged to operate”. His office also admits that the current Government is increasingly unhappy with its separate agencies fighting in public.


It is to be hoped that  more fibre is on display  on April 7, when the Supreme Court is due to hear the Government’s appeal against O’Reilly’s ruling that NAMA is a public authority subject to Access to Information legislation, in a case brought by Gavin Sheridan. As Welsh Ombudsman, Peter Tyndall, a Trinity graduate and ex head of the Welsh Arts Council, spoke widely and wrote a number of articles emphasising the importance of extending the Ombudsman’s remit to public-service delivery by private-sector organisations “since the distinction  in  delivery…becomes increasingly blurred”.


Public outcry may have led to the inclusion of Irish Water but the FoI Act continues to exclude 37 public bodies – from the largest landowners, Coillte and Bord na Mona – through An Post, Tourism Ireland, the Food Safety Promotion Board, the bus companies, the airport, harbour and port authorities, and the National Lottery.


Even so, with a large number of bodies now coming under FoI under the new legislation,  the delays that were characterised as “unacceptable” in the last Annual Report are now threatening to bring the whole system to a standstill.


Only 18% of the cases dealt with under FoI were decided within the legal timeframe in 2012. No matter how right you are, justice delayed can be justice denied.


There was some anger in the Information Commissioner’s office when the first Aarhus Convention National Implementation Report was released last month by Phil Hogan’s Department of the Environment. It breezily dismissed any concerns of chronic under-funding by saying that the Information Commissioner was entitled to seek any necessary funds from the Minister for Public Expenditure and Reform.


The Ombudsman had made repeated such requests – and 5 new staff have been appointed to address the new legislation – but while the case closure rate is going up, the number of cases is rising faster.


Nor has the Aarhus convention proved to be the white knight that many had hoped. Designed by NGOs under the auspices of the United Nations – led by Irishman Jeremy Waites – the convention promised better access to information, participation, and justice.

UCC’s Dr Aine Ryall drew attention to a submission to Hogan’s Aarhus Report made by the Department of Justice: “In cases where the court does not deliver a considered, written judgment the decision of the court is recorded in a court order which is available only to the parties to the case”.

She pointed out that many court decisions are in fact delivered ex tempore and that this was usually true when it came to the awarding of costs – a crucial element of the Aarhus convention.

“It follows from this unambiguous statement”, Ryall wrote, “that ex tempore court decisions, where there is no written judgment, are not publicly accessible. This state of affairs is a clear breach of the express requirement in Article 9(4) that court decisions in Aarhus cases must be publicly accessible”.

The Convention promised access to justice at a cost that is “not prohibitive” but we are denied the right to see how this has been addressed by the courts.


Emily O’Reilly did much to advance Ireland’s tortuous journey towards transparency. Will her successor have the bottle to do the same?


Tony Lowes is a Director of Friends of the Irish Environment