This guide is designed to be read by members of the public or journalists looking to dip their toes into the world of Freedom of Information (FOI) in Ireland.
FOI in Ireland allows anyone to access records held by public bodies. This guide explains your rights.
It is not designed to be an authoritative guide to FOI, a history book, or an academic text – it is simply a useful introduction to the first steps, the language, and the things you need to know before you start.
It deliberately simplifies what are sometimes far more complicated issues.
- If you find this guide useful, my book Shining a Light: Information Access in Ireland offers a much more detailed, practical approach to getting results from FOI. Buy it here.
Now, a very quick history lesson!
HISTORY
Freedom of Information has been one of the great democratising forces in Irish society.
Ireland had since independence remained a fiercely secretive state and the introduction of the first FOI Act in 1997 was an attempt (in the famous slogan of the time) at ‘letting the light in’.
The new legislation effectively made all public records public.
But – and there is always a but in Ireland – it came with exemptions, and lots of them.
These exemptions were meant to be, again using the vocabulary of the time, simply yield signs, rather than stop signs.
As Minister Eithne Fitzgerald told the Seanad: “They permit information to be withheld, but do not oblige or require it to be withheld.”
The reality has, as anybody who uses the law will testify, been very different and the exemptions have instead become the road blocks by which requests are often frustrated.
The original FOI Act was gutted in 2003 by the Fianna Fáil government of the day.
Famously, Finance Minister Charlie McCreevy – who introduced the legislation – did not even attend the final debate on it, instead choosing to go to the races at Cheltenham.
There were many damaging changes wrought in the new act but perhaps the most negative was the introduction of a €15 upfront fee for requests.
That might not sound like much and it wasn’t so bad for larger media outlets, who still made use of FOI and could afford to pay the fees.
For others, especially members of the public, freelance reporters, regional journalists and so on – the fee was a significant impediment, particularly for anything more than occasional requests.
Thanks in no small part to a campaign by Gavin Sheridan of Right to Know, those fees were removed when the new Freedom of Information Act was introduced in 2014.
It was the most significant change by far and it is with that new act in mind that this guide is written.
MAIN POINTS
There are three main points to get your head around when it comes to FOI requests:
- Wording of requests is of critical importance.
- The main mistake is asking questions. Public bodies do not have to answer questions.
- FOI in Ireland is about records that already exist – and you figuring out how to identify them.
HOW TO MAKE A FREEDOM OF INFORMATION REQUEST
On multiple government websites, you will see things like FOI forms, instructions on how a request must be phrased, suggestions that they need to be put in the post and so on.
This is all rubbish.
No request needs to say anything more than the following:
Dear Sir/Madam, Under the FOI Act 2014, I am seeking the following:
- Whatever you are looking for goes here. Keep it general if you don’t know exactly what you’re looking for. Be quite focused if you do.
I would prefer to receive this information electronically, preferably in its original formatting.
Yours,
XYZ
WHAT BODIES ARE INCLUDED
The vast majority of public bodies are subject to Freedom of Information requests, except those listed here (mainly commercial semi-states but check AIE request section further down for more on how to get around this).
Many bodies have been brought under the FOI Act since 2014 including the likes of the gardaí, Nama, and many others.
Importantly, any newly created public body now automatically falls under FOI unless it is specifically exempted when created.
If an organisation has only recently been added, it may mean that records are not available as far back into the past as might be the case with others.
For public bodies that have been under the FOI Act since the word go, requests cover the period as far back as the original introduction of the legislation in 1998.
You can use foi.gov.ie to see what bodies are included.
RIGHTS OF APPEAL
If your request is refused, you have a right of appeal.
The first step is internal review and it costs €30. This is carried out by the same people who made the decision in the first place, except this time by a more senior member of staff.
The experience of requesters would be that success rates can be low here but it all depends on the public body and how bad the original decision was.
The next step is an appeal to the Office of the Information Commissioner and it costs €50.
This second appeal will certainly take months, and in some cases – if contentious legal issues are involved – could take much longer.
There is another separate scenario where internal review and appeal do not cost anything.
This is where a public body fails to answer your request within the twenty working days allowed without giving you any reason.
This is called a deemed refusal and any time you have heard nothing at around the fifth or sixth week of a request, you should at least look for an update.
If you feel you’re not getting anywhere, you can seek an internal review for free.
If the same public body again fails to deal with your request for internal review within the fifteen working days allowed, you can appeal to the Information Commissioner at no cost on the basis that it was a deemed refusal at both stages.
This is a more common experience than you might think and the public bodies who engage in this are listed in the annual report of the Information Commissioner (though nothing is ever done).
WHY DO REQUESTS GET REFUSED?
As mentioned already, Ireland’s Freedom of Information law came with some very large caveats in the form of exemptions.
When you read all of them, you could be forgiven for wondering how anything is ever actually released into the public domain.
They make up Section 28 to 41 of the Act and you can find them here.
The main exemptions you will inevitably come across are:
- Commercially sensitive: used widely and often incorrectly.
- Personal information: used widely and sometimes incorrectly.
- Deliberations of FOI bodies: in very simple terms, this means that while an organisation is still making up its mind about something important, records can be exempt. Once the decision is made, it’s usually fair game. Used very widely and very often incorrectly. This is probably the one you will run into most.
- Information obtained in confidence, which requires much more than arbitrarily deciding something is confidential.
- Security, defence, international relations, law enforcement and public safety. Self-explanatory.
- Meetings of the government: basically memos, aide memoires, briefings and so on that were prepared specifically for Cabinet meetings.
If you believe a decision has been made incorrectly, there are a few major resources at your disposal if you want to appeal and plan to rely on previous cases.
The first is the website of the Information Commissioner where you can find previous decisions.
The second is the book Freedom of Information Law by Maeve McDonagh, which you will find in any good library or can buy (although it is €285).
Probably the best option is to look at the guidance notes published by the Information Commissioner; similar less useful notes are made available by the Central Policy Unit of the Department of Public Expenditure.
THINGS TO BEAR IN MIND
Sometimes information is released under FOI that should not be. So occasionally it can be worth submitting a request that you think might be refused.
At the very least, you might get a schedule of the records that you are being refused access to.
This schedule is a list of the records that are considered relevant to your request. It is considered best practice for public bodies to provide one of these in answering a request. Unfortunately, in practice, many don’t, especially when refusing access to records.
From the schedule, you might be able to build a picture or timeline of what happened or find a few names of people to contact or speak to.
KEY THINGS TO REMEMBER
The first five hours of search and retrieval are free.
Try if you can to keep that in mind when framing your requests. Keep them manageable.
Requests for huge amounts of material can either attract large fees or be rejected outright on the basis that they are simply too big and likely to interfere with a public body’s work.
Public bodies are however, obliged to give you an opportunity to refine your request to make it smaller.
Common ways of doing this might be to reduce the amount of time you want to look at.
DOCUMENT BLEED
As mentioned already, the single biggest mistake people make is in asking questions.
FOI in Ireland is not about asking questions – we look for the records that actually exist.
To do that, we have to try and understand how departments and public bodies work and how they think.
If we don’t know how they work, do we know somebody who could explain it to us?
If we don’t, try and imagine how people within an organisation communicate? And remember that most large organisations talk to themselves using very similar patterns.
Why and how do they create records? When do they write emails, memos, letters, reports, submissions, god forbid send a fax?
NOT A PRESS QUERY
So above all, this is not a standard press query (or question).
It is about trying to predict what records exist and getting your hands on them.
Think of the things that interest you and ask yourself how often the real question of why actually ever gets answered?
Every decision that is ever made – or not made – benefits somebody in some way. Who is it?
If Freedom of Information requests can do anything, it is to give us a better understanding of the why in decisions that are made.
FOI LOGS
Lots of government departments and other public bodies publish a list of the requests that they receive.
If you read them, you can see what is generating useful material and what is not.
If an FOI request worked with one government department, perhaps it might work with others?
Many requests are not made by journalists, and oftentimes useful information – sought by members of the public, legal firms, and so on, never actually sees the real light of the day.
ACCESS TO ENVIRONMENTAL INFORMATION
The main alternative to FOI is through requests under the AIE (Access to Information on the Environment) regulations.
The big advantage of these in the pre-2014 FOI Act world was that they were free. So that advantage is gone now although internal review is still free.
Also famously, the definition of what constituted a public body/authority was much less clear-cut than under FOI especially when it came to the likes of Nama.
Through Right to Know, we tested whether the AIE Regulations can apply to the Office of the President and the Council of State, both of which are exempt under FOI law (we ultimately lost this case).
However, it does certainly apply to commercial semi-states like Coillte, Bórd na Móna, Dublin’s airport authority, and Bus Éireann.
In theory, the definition of environmental information is supposed to be very broad but in the Irish experience it has often been interpreted very narrowly by public bodies.
It does have its advantages, but the appeal process to the Commissioner for Environmental Information is even slower than with FOI.
Requests need only say the following: “Under the AIE Regulations, I am seeking the following …”
So what is environmental information?
Here’s what’s included:
1/ Any info on the state of elements of the environment: air, atmosphere, water, soil, land, landscape, natural sites, biodiversity, pollution, and so on.
2/ Things that affect the environment: energy, noise, radiation, waste.
3/ Administrative measures that can affect the environment: policies, laws, plans.
4/ Reports on implementation of environmental legislation.
5/ Cost-benefit or other economic analyses of measures.
6/ State of human health and safety: food, buildings, cultural sites.
Some other advantages of AIE include the fact that information relating to climate change and greenhouse gas emissions can sometimes be accessed even where impossible under FOI.
WOBBING OR REQUEST FOR EU INFORMATION
Looking for information from the EU Commission and other EU bodies is criminally underused in Ireland and much easier than you would think.
For requests to the EU Commission, follow the link:
For requests to the EU Parliament, this is the link:
https://www.secure.europarl.europa.eu/RegistreWeb/requestdoc/secured/form.htm?language=EN
For requests to the Council of the European Union, this is the link:
https://www.consilium.europa.eu/en/general-secretariat/corporate-policies/transparency/
And if you’re unhappy with a decision you get in your request for EU records, then you can always go to the Ombudsman.
You can find out more about how to do that here: https://www.ombudsman.europa.eu/en/make-a-complaint
For a list of all the relevant EU bodies, you can find them here:
http://www.asktheeu.org/en/body/list/all
A quick note to say that if you use the above AsktheEU service, details of your request will be published online as it goes through the process. That may not suit everybody’s needs if for instance they want to keep their research hidden until a story is ready.
Similarly, if you use the WhatDoTheyKnow service for requests in the UK, your request will be posted online as it moves along.
Again, that may not suit everybody. One quick note on FOI requests in the United Kingdom – you are allowed to ask questions.
If you want to make requests in other countries around the world, this incredibly useful page from the Global Investigative Journalism Network will point you in the right direction:
PERSONAL DATA REQUESTS
At Right to Know, we get lots of emails from people asking about seeking personal information.
This is one area we don’t involve ourselves in too much – because obviously we cannot access other people’s personal data and so it does not crop up in our work.
If you are looking for such records, there are really two options.
The first is GDPR – of which you have no doubt heard plenty – and a key benefit is that it applies not just with public bodies, but other private and commercial organisations.
It also applies to all the main state agencies – the HSE, the Department of Employment Affairs, individual hospitals, An Garda, and so on.
Making a request is easy. The first step is to find the point of contact or data protection officer to send your request to.
This person’s email address can normally be found on their website, or with a quick phone call to their offices.
You should say that you are making a request under Article 15 of the GDPR for a copy of any records they hold concerning you. This page from the Data Protection Commissioner is helpful.
One important thing to keep in mind is that you will have to provide evidence of your identity, an important step to safeguard your data.
Using FOI
Lots of people still use FOI to request their own personal information as much out of habit as anything else. There are other reasons as well.
Through FOI, you can access a broader range of records and it is a simple matter of sending a request saying ‘Under the FOI Act, I am seeking the following …’
If a hospital treated you when you are sick; you could access not just your own records but other documents that might tell you about overcrowding there that day.
It can also be useful for things that aren’t really personal information but might feel personal, if say speed bumps were installed on your road.
The same would go for all other environmental issues in your area like air pollution, rubbish, anti-social activity, and so on.
Requests relating to deceased relatives or the vulnerable
A really key advantage of FOI is when accessing records relating to a deceased loved one or a person who is incapacitated.
This might crop up where a person has died in hospital or a nursing home, and you have unanswered questions about what happened.
Equally, it could apply if a person was in permanent care but did not have the capacity to make decisions for themselves.
If you made it this far, thank you for reading.
If you have any questions or suggestions, let me know.
- If you find this guide useful, my book Shining a Light: Information Access in Ireland offers a much more detailed, practical approach to getting results from FOI. Buy it here.