We are delighted to welcome this guest post by Jennifer Kavanagh. Jennifer is a Lecturer in Law at Waterford Institute of Technology and a PhD candidate at Trinity College Dublin.
This blog seeks to assess the nature of information and expression rights in Ireland, the impact on the nature of the citizen as implied by the Constitution and the importance of access in the interpretation of democracy.
Over the past fortnight the position and philosophy of freedom of information in Ireland has come under the spotlight. It could be argued that the rasion d’etre for freedom of information has been undermined by viewing it as a revenue raising exercise and a financially punitive means of reducing access to information. Recent times have seen a debate over the scope of information subject to access and the fees for such access. However, one argument that has not entered into the evaluation of the current Freedom of Information Bill 2013 is the constitutional position of the citizen, the nature of freedom of expression and the need to access government information in a democracy.
The European Convention as per Article 10 expressly references the connection between information and expression by jointly protecting them in the construction of the right to expression. The importance of the receipt of information and the ability to express opinions are constructed as complimentary aims.
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public parity and regardless of frontiers.
Through the interpretation of Article 10 the information right applies to government information.
When the Irish Constitution is reviewed for information and expression rights, the situation becomes murkier and less explicit. Under the terms of Article 40.6.1(i) the political speech right article makes specific reference to the ‘rightful liberty of expression’ as including the right to ‘criticise government policy’. When read in conjunction with Article 6.1, which terms the citizens as the final arbiters of government policy, it can be argued that the framers of the constitution envisaged a more engaged form of representative democracy than today. As stated by Hogan J in Doherty v. Referendum Commission,
It may thus be said, adapting freely the words of Holmes, that the theory of popular sovereignty for which Griffith argued and Pearse fought and Collins died and de Valera spoke and Hearne drafted and Henchy wrote and Walsh decided has become our own constitutional cornerstone
Even though the Doherty case was in relation to balance speech in a referendum setting, the sentiments regarding Articles 6.1 and 40.6.1(i) in Doherty illustrate the need for access to information in a democracy.
The Constitution trusts in the power of argument and debate and reasoned discussion and, again, the informed citizenry of which I spoke, who will discharge their civic responsibility to inform themselves in their own interests, that of their neighbors and that of their country.
The Cullen v. Toibin judgment may also indicate that there is a limited unenumerated right to official information.
It was not until the promulgation of the Freedom of Information Act 1997 that a concrete legislative right was placed in the hands of the citizen to access information, both personal and in the public interest.
The 2003 Act made regressive steps regarding access rights, the most controversial of which related to upfront fees for access regarding public information queries. This position seems set to remain in the current Freedom of Information Bill 2013. Even though vociferous comment has been made regarding the proposed fee structure, the consideration of the constitutional and human rights dimension of the debate has not been heard. The current level of the debate in Ireland focuses on the chilling effect of fees, especially the framework that was championed by the current Minister for Public Reform until it was sidelined two weeks ago in a rather public climb-down.
The rights discourse surrounding the ability of citizens to access government information has been sidelined. Indeed, the application of fees to accessing public interest information would reasonably create a chilling effect on the amount of information sought. Yet, the application of fees to requests for such information could be interpreted as impeding the rightful liberty of expression to ‘criticise government policy’ as indicated under the provisions of Article 40.6.1(i).
The recognition of freedom of information as a human right, in line with Article 10, as part of the Irish Constitution would establish the right to information as a powerful tool against the concepts of information asymmetry, legal corruption and influence selling which has been consistently highlighted in many international reports on corruption and transparency.
It is important to remember that freedom of information is not just about accessing government information but regularising the citizen – government relationship. Fostering the amount of democratic supervision, which the citizens themselves may carry out, and moderating the influence of perceived ‘insiders’ in the corridors of power can improve this relationship. Therefore the Constitutional Convention should be strongly urged to consider this as part of the summary of other amendments that may be deemed necessary to modernise the Constitution.
In conclusion, with the importance of an adequate right to access, the human rights aspect of freedom of information has to be included in any further consideration of this issue. The link between official information and the democratic relationship between politicians and citizens needs to be placed as a cornerstone of political reform and not as a means of revenue creation for the State.
 Article 10.1 European Convention on Human Rights
 Doherty v. Referendum Commission  IEHC 211, paragraph 23