Last Thursday 30 March, PAI hosted a half-day conference on the present challenges in Freedom of Information. The conference looked at FOI requests from multiple angles: that of the requester, that of the FOI officer, and that of the Office of the Information Commissioner.

Minister for Public Expenditure and Reform, Paschal Donohoe TD, delivered the keynote speech on the morning.

He noted that Freedom of Information legislation in Ireland, “like all legislation, is either evolving or is going to evolve”.

The impact of a hard Brexit is expected to cause ripples through society. Following the formal decision made by Minister May to trigger Article 50, the Government will have many tough decisions to make, and “no doubt that many of the decisions will be subject to FOI requests in order to understand the processes [they] are involved in.”

The Minister noted that other changes were coming down the line – including those caused by the commencement of the GDPR in May 2018.

The Minister stressed the importance of the FOI legislation, especially considering the recent Irish context:

“The awful economic crisis has had a decisive effect in the trust citizens have for the institutes that govern them.” A recent survey showed that Irish citizens have the sixth highest expectation of services delivered. However, only 28% of citizens have trust in the Government. While the measure of trust in Government has very slowly increased since 2013, the fact that we are only ahead of the European average by 1 percentage point offers no solace.

He said of a well-managed FOI process, “It’s needed and it’s appropriate. It is to enable members of public to gain access … to information held by public bodies”.

FOI is not only valuable in increasing public trust. From a legislative prospective, the value of the legislation is marked; it improves the contestability of policy advice.

A new Bill is making its way through the Oireachtas at the moment, and is expected to enter into Committee Stage in April. The Public Sector Standards Bill 2015[i] will make changes in the way public business is conducted. It will look at the processes of data transfer between governments, across borders. This will allow data to be more widely-used. This is bolstered by the Open Data Initiative[ii].

New legislative features of 2014’s updated FOI Act expanded the selection of public bodies subject to FOI requests to nearly 600 organisations. Other changes implemented with the introduction of the 2014 Act included: up-front fees being eliminated; this has caused a significant change in the volume of requests received – a trebling of the number in the last number of years.

Regrettably, said the Minister, there have been issues of misgovernment in the past. These incidents should be exposed, examined and used as a basis for better, evidence-based policy with transparency at its heart. The FOI legislation we have is in place to enable that kind of debate and scrutiny.

“We need uncomfortable discussions – that’s the way a mature democracy should tackle issues, to make sure misgovernment does not happen.”

You can listen to a full podcast of the Minister’s speech here.


Roisin Connolly, an investigator with the Office of the Information Commissioner and Ombudsman (OIC) spoke next.

Roisin summed up a common experience for those involved in FOI: “We get so bogged down in the day to day, we can forget the function of the legislation.”

The elimination of upfront fees contributed to an overall rise in the number of requests received by organisations. However, the OIC only see less than 2% of all FOI requests made. The majority of requests are dealt with FOI offices at FOI bodies, a credit to those FOI officers.

According to Ms Connolly, a large part of making things easier, for everyone in the process, lies in quality decision making. To do this, you must first clarify the request

She advised FOI officers, where a requester reverts to request more information, officers should “treat requests for further information as a separate request. Requesters then have full right of appeal”. Where any doubt is involved, “contacting and assisting the requester is not only recommended, it’s mandatory”.

Roisin provided the delegates with some figures:

  • 40% of all applications received by the OIC had a deemed refusal at one stage;
  • Just under 30% had a deemed refusal at both stages.

If denying at one or both stages, the Commissioner requires the FOI body to make that position known to the requester.

Including a schedule of documents concerned under the request can help expedite the whole process. This is especially true in cases of part-release of documents. Requesters may be happy not to appeal a decision if it is clear that the document they need has not been released, even if some have not.

She noted that a “lack of clarity undermines the trust of FOI requesters in the process.”

She further noted that if a public body frequently received requests for the same information, it may be in that organisation’s best interests to publish and make that information freely available to the public, thus cutting down on the overall amount of request to be processed by the FOI officers.

You can listen to Roisin’s presentation here.


Ken Foxe, lecturer at DIT and freelance journalist, spoke after Roisin.

He said, from a journalist’s perspective, “FOI law is still full of exemptions. We see them cropping up constantly, misused, and applied even where precedent has already been set.”

While new time limits were enacted in the most recent legislation, the time it takes to have an FOI request returned can be up to four months. “Even four months is an incredibly long time in media. The story might well have no currency anymore.”

However, FOI requests can often be the source behind many news stories. It is not uncommon to see “found in FOI documents” or “discovered through an FOI request” at the beginning of news articles.

Mind must be paid to the fact that the legislation was overhauled “against the backdrop of tribunals, inquiries, corruption”. By making information easier to access, we could “eradicate the cache of ‘revealed after FOI request’, and remove its newsworthiness”.

Mr Fox likened the current FOI cycle to that of the chicken and egg: is it transparency, or is it the level of dysfunction that precedes FOI legislation?

Without FOI, we would have a culture of journalism by grace and favour.

“Without it, journalists must rely on human behaviour. If you write negatively on a organisation, you’re closing those lines of communications. Then, wrongdoing must be reported by whistleblowers, at which stage the damage could be catastrophic.”

He finished his presentation on the questions: why are certain bodies exempt from the legislation, and whose interest does it serve?

You can listen to Ken’s full presentation here.


Paul Lavery of McCann FitzGerald was the final speaker in the first session.

He spoke about the inherent contradictory interests in FOI – personal privacy, right to information, and security, to name but a few. How do you look at all interests and come to a conclusion?

He said, “If you apply exemptions too widely, you end up with a poor FOI Act.” However, there are cases where exemptions should be applied.

The concept of an FOI exemption comes into play when confidentiality or prejudicial information is involved; where private sector organisations are involved; in tenders, where costing is involved; where information gives one a competitive advantage over competitors and the release of that information would lessen that advantage.

Also, the right to privacy for special classes of people, such as whistleblowers, is important to manage.

In cases where these issues conflict with FOI, there is one main question to be asked: what interest should prevail?

There are, at present, statutory confidentiality provisions. Paul complimented the OIC’s Guidelines on the application of these provisions. In legislation, there are “two similar but different provisions”.

Section 35(1)(a) provides four steps for determining confidential info.

Section 35(1)(b) provides for the “breach of confidence test”.[iii]

Finally, Paul noted that “mutual understanding is a key point in FOI … 20 years later, private organisations should be aware of the possibility that any information they release to a public body could be subject to an FOI release.”

His advice, based on this, would be to include information about your FOI-able body to any private sector organisation with whom you do business to make them aware of what is required of them, and the information that is exchanged.

If there is information that is unsuitable for FOI release, confidentiality should be formally confirmed. “People should be aware, at this stage, that confidentiality should be observed.”

You can listen to Paul’s full presentation here.


The late morning session began with a panel of FOI professionals, with questions from the floor.

Mark Bohan of the Central Policy Unit in the Department of Public Expenditure and Reform noted that there is a helpdesk available for FOI officers in need of advice or with questions.[iv] In order to aid those working in FOI of case law that concerns the legislation and its application, the Office of the Information Commissioners maintains a “Decisions” section on their website[v].

The panel spoke at length about the FOI process and the importance of understanding your role within it. Ideally, “FOI would be everybody’s job. The FOI officer would manage the collection of data and the Data Protection officer would be the decision-maker.

Mary Orford, formerly of ComReg, encouraged those present to join an FOI network – “most of the support, assistance and guidance” came from the network she was a part of.

You can listen to a podcast of the panel discussion here.


Daniel McConnell, political editor of the Irish Examiner, spoke after the panel.

His experience of the FOI Act, he said, was one of frustration. He believes that FOI in Ireland is “a broken system”, from the perspective of the requester.

This is often due to what he called “over-zealous use of the exemptions”. By way of example, he outlined his personal experience with a part-release of documentation. After a €36m bailout of CIE by the Department of Transport, Tourism and Sport, he was granted a part-release of the documents regarding the matter. However, of the 37 documents on the schedule, only one was released – a press release he was already in possession of.

There can be inconsistency is how the Act is applied. There are often blanket refusals on tenuous grounds – as is seen in NAMA’s struggle to be left out of FOI legislation. Mr McConnell was clear on his opinion of this: “this is not the Act working”.

A self-confessed “Serial requester”, submitting roughly 300 requests a year, he found that it can often be a long process, which can hinder the dialogue surrounding an issue. “If we don’t deal with these issues quickly, there is no point.”

You can listen to Daniel’s full presentation here.


Annette Hogan, also of McCann FitzGerald was the last to speak in the afternoon.

She spoke at length about balancing personal interest and public interest.

FOI usually excludes personal information. This is not the case with regards personal data for staff in public bodies, except in issues of misconduct or judges expenses etc. While being FOI’d, you may refuse to confirm or deny the existence of a record if, by doing so, you would reveal personal information. This is especially important, again, in cases of whistleblowing.

She also spoke about the blanket exception for information covered under both legal professional privilege and litigation privilege. Defining what is and is not privileged information can make this process much easier.

You can listen to Annette’s full presentation here.



[i] Can be found on the Oireachtas website. Available here.

[ii] For more information about the Open Data Initiative, see the Department of Public Expenditure and Reform website. Available here.

[iii] Section 35 of the Freedom of Information Act 2014 can be found here.

[iv] Information can be found on the Freedom of Information website, found here.

[v] “Decisions” section on the OIC website can be found here.

More about the speakers

Paschal Donohoe is the Minister for Public Expenditure and Reform. Prior to this appointment he served, from July 2014-May 2016, as the Minister for Transport, Tourism and Sport. He has also held the position of Minister for European Affairs at the Department of An Taoiseach and the Department of Foreign Affairs from July 2013-July 2014. The Minister was formerly the Chair of Ireland’s Future in Europe Oireachtas Sub-Committee, as well as a member of the Public Accounts Committee.

Roisin Connolly has worked as an investigator in the Office of the Information Commissioner from 1998 to 2004 and from 2012 to date. She has been involved in the conduct of reviews of decisions made by FOI bodies and in the drafting and publication of a series of guidance notes on the interpretation and application of the FOI Act by the Commissioner.

Ken is an assistant lecturer at Dublin Institute of Technology in the School of Media. He also worked as a freelance journalist and consultant specialising in Freedom of Information, data journalism, and investigative reporting. He worked for two years with the RTÉ Investigations Unit, where he helped establish the unit’s website and also worked on long-term television projects and major online data projects: ( Ken is the author of two books, Snouts in the Trough: Politicians and their expenses and Revenge, a true crime book. He is a winner of the TV3 Story of the Year Award for 2009 following a series of stories that led to the resignation of Ceann Comhairle John O’Donoghue. A long-running series of articles that same year regarding expenses led to major changes in the way politicians were paid allowances.

Paul Lavery is the head of McCann FitzGerald’s Technology & Innovation Group and advises on a wide range of information technology, intellectual property, data protection, confidentiality and freedom of information issues. In the area of freedom of information, Paul regularly acts for public bodies and private entities. He advises public bodies in respect of their compliance obligations in connection with the Freedom of Information Acts in dealing with access requests, advising on applicable exemptions and dealing with appeals to the Information Commissioner.

Mary Orford started her career as a librarian and worked for 21 years in both public and academic libraries. In January 2000 she joined ComReg, (Commission for Communications Regulation) as project manager for the implementation of Freedom of Information legislation. Post implementation, Mary remained for a further 10 years as FOI Officer with responsibility for administering the FOI process, FOI decision making and delivering staff training. During her tenure in ComReg, Mary was awarded Learner of the Year in 2007 by IITD and Student of the Year, Diploma in the Management of Modern Public Service Delivery in 2008 by the Institute of Public Administration. Mary is now retired but continues to deliver FOI training with Public Affairs Ireland.

Mark Bohan represents the Government Reform Office in the Department of Public Expenditure and Reform. Mark has responsibility for the FOI Central Policy Unit and was previously the FOI Officer in the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs. The FOI Central Policy Unit is responsible, in consultation with public bodies and working with the FOI networks, for ensuring that the policy and legislative framework for FOI supports the effective operation of FOI in public bodies.

Frances Kiernan is a First Secretary at the Department of Foreign Affairs and Trade. She has been FOI Manager for the Department since 2015. She has previously served as Deputy Head of Mission at the Embassy of Ireland to Norway and as Third Secretary at the Embassy to Belgium. She holds a Masters in Public Management and a BA (Moderatorship) in Economics and Business Studies.

Daniel McConnell is the Political Editor of the Irish Examiner and a best-selling author. Before that, he worked for almost a decade with Independent News and Media where he was employed in a number of roles including Group Political Correspondent and Chief Reporter (Sunday Independent). He previously worked with the Irish Times and the Sunday Times. He is the current Justice Media Award daily newspaper Journalist of the Year. His latest book, Hell at the Gates, which he co-authored was a number one bestseller. He previously co-authored the Sunday Times Good Schools Guide in 2006. He holds a Masters in Journalism from Dublin City University and a Bachelor of Arts degree (History and Politics) from University College Dublin.

Annette Hogan is a partner with McCann FitzGerald and specialises in data protection and freedom of information. Annette has a Masters Degree in Information Technology Law and advises a wide range of clients on information technology, outsourcing and intellectual property matters. Annette has particular expertise in relation to leading edge business transformation projects having drafted and negotiated the contractual framework for a number of key clients in this area. Annette also specialises in data protection, freedom of information, access to information on the environment, and confidentiality matters, as well as advising a number of high-profile technology clients on the legal implications of transacting online and related consumer protection issues.