IV. Governance issues
In relation to electoral records, the Electoral Amendment Act 2001 makes specific provision for the establishment of an edited electoral register similar to a system already deployed in the United Kingdom. Local authorities must now prepare two versions of the electoral register, a full one that can only be used for electoral and statutory purposes, and an edited version that will contain the names and addresses of those who have indicated their willingness to be contracted by commercial entities.1 It is an offence to use information from the edited register for any purpose other than an electoral or statutory purpose.2
Voting is a right for all those 18 years or older, but is not obligatory.3 In February 2002, the government allowed the use of electronic voting to be tested in public elections. An Interim Report of the Commission on Electronic Voting, dated 29 April 2004, rejected the use of direct recording electronic (DRE) voting machines in the upcoming elections.4 The report states that "publication of ballot results in full…can in theory...allow voters to identify themselves in a context of corruption or intimidation,"5 which could undermine the integrity of an election. This e-voting technology report led to the decision to abandon electronic voting in Ireland for the June 2004 EU elections.6 Voting machines were once again not used in the 2007 parliamentary elections. After a period of uncertainty as to the future of electronic voting, in 2009 the decision was taken to scrap the electronic voting system7 and dispose of the voting machines.
The Freedom of Information Acts 1997 and 2003 create a presumption that the public can access documents created by government agencies and requires that government agencies make internal information on their rules and activities available. The Office of the Information Commissioner enforces the Act. The 2003 amendments to the legislation were widely criticised by the opposition, press, and, indirectly, by the Ombudsman. The amendments resulted in more central control over information and the restriction of all information, instead of just a subset. Specifically, the amendment: doubled the time restriction on government records, regardless of content; introduced processing fees on information requests under the Act; broadened the definition of "government" under the Act; increased government exemptions to information requests; and granted ministers the ability to suppress information release, without appeal, by another ministry or public body. However, Emily O'Reilly, current Ombudsman and Information Commissioner, is an outspoken critic of the amendments to the FOI Act. Ms. O'Reilly, a well-respected journalist, is the first replacement commissioner since the office was created. The Commissioner publishes an annual report describing her activities in the previous year, and reports are available on the Commissioner's website.8
In a review of the operation of the amending legislation issued in June 2004, Ms. O'Reilly found that overall use of the Act had fallen by 50 percent while requests for non-personal information fell by 75 percent. In relation to journalists using the FOI Act, there had been an 83 percent drop in requests. The fees structure introduced by the amendment can largely be blamed for this sharp decline. The Information Commissioner has called for a reappraisal of the fees, which can amount to €240 when retrieval, internal appeal, and appeal to the Information Commissioner are considered.9
Ms O’Reilly has often criticised the scope of the FOI Acts on the basis that it is too limited and that the acts should be extended to cover institutions such as the Central Bank, the Financial Services Regulatory Authority of Ireland, National Asset Management Agency, and the National Treasury Management Agency.10 Journalists accounted for 15 percent of the requests submitted, requests to the Department of Finance increased by 131 percent and requests to the Department of Enterprise, Trade, and Employment grew by 37 percent.11
In its June 1998 Report on "Privacy, Surveillance and the Interception of Communications,"12 the Law Reform Commission recommended legislation to make illegal the invasion of a person's privacy through secret filming, taping and eavesdropping, and the publication of information received from such surveillance.
Non-government organisations' advocacy work
The manner of the passage into law of the Criminal Justice (Terrorist Offences) Act 2005, which introduced a three-year period of data retention for telephone traffic and location details, was heavily criticised by civil rights groups. In particular, despite the length of time the government had to publish legislation on the issue and despite repeated promises of dedicated legislation, the provisions were inserted as a last-minute amendment into a largely unrelated bill.13
The Irish online civil rights group Digital Rights Ireland (DRI) commenced a High Court action against the Irish Government in 2006, challenging the Criminal Justice (Terrorist Offences) Act 2005, on the basis of Irish and European Law.14
In May 2010, the High Court decided that DRI's challenge should be referred to the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union.15 As of the end of July 2010, the High Court has not published the questions to be referred to the ECJ.
(See more details under the "Data retention" section.)
On 10 December 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.16 On 8 December 1989, Ireland ratified the International Covenant on Civil and Political Rights.17
Ireland is a member of the Council of Europe (CoE) and has signed and ratified the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108).18 It has also signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms.19 Ireland has incorporated the Convention into domestic law by way of the European Convention on Human Rights Act 2003. In February 2002, Ireland signed the CoE Convention on Cybercrime.20 In 2007, Ireland signed the CoE Conventions against Trafficking in Human Beings21 and on the Protection of Children against Sexual Exploitation and Sexual Abuse.22 In 2008, the Convention on Prevention of Terrorism was signed.23 Ireland is also a member of the Organisation for Economic Cooperation and Development (OECD) and has adopted the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.
- 1. Section 4.
- 2. Section 13A, Electoral Act 1992 as inserted by section 4, Electoral Amendment Act 2001.
- 3. CIA Country Fact Book, January 1, 2004, available at http://www.cia.gov/cia/publications/factbook/.
- 4. Interim Report of the [Ireland] Commission on Electronic Voting on the Secrecy, Accuracy and Testing of the Chosen Electronic Voting System, 29 April 2004, available at http://www.cev.ie/htm/report/V02.pdf.
- 5. Id.
- 6. Mark Hennessy & Mark Brennock, "E-voting Abandoned for Elections in June," The Irish Times, 1 May 2004, available at http://www.irishtimes.com/newspaper/frontpage/2004/0501/1083224453260.html.
- 7. "Electronic Voting System to Be Scrapped", RTÉ News, 23 April 2009, available at http://www.rte.ie/news/2009/0423/evoting.html.
- 8. Freedom of Information Commissioner Annual Reports, available at http://www.oic.gov.ie/en/MediaandSpeeches/PressReleases/Archive/.
- 9. Review of the Operation of the Freedom of Information (Amendment) Act 2003, available at http://www.oic.gov.ie/en/Publications/SpecialReports/InvestigationsCompl....
- 10. Paul Cullen, "Requests for Information on Rise, Says Ombudsman," The Irish Times, 29 April 2009, http://www.irishtimes.com/newspaper/ireland/2009/0429/1224245598316.html.
- 11. Id.
- 12. 1998 Report on "Privacy, Surveillance and the Interception of Communications (LRC 57 -1998), available at http://www.lawreform.ie/publications/data/lrc99/lrc_99.html.
- 13. Karlin Lillington, "McDowell's Sneaky Data Law Heralds Surveillance State," The Irish Times, 25 March 2005.
- 14. Digital Rights Ireland, "Data Retention - Advocate General Recommends Irish Government Challenge Should Be Rejected", 28 October 2008 http://www.digitalrights.ie/2008/10/14/data-retention-advocate-general-r....
- 15. Digital Rights Ireland Ltd. v. Minister for Communication, Marine and Natural Resources and others (unreported, High Court, McKechnie J., 5 May 2010), available at http://www.scribd.com/doc/30950035/Data-Retention-Challenge-Judgment-re-....
- 16. The Declaration was ratified through a proclamation by the General Assembly on 10 December 1948 with a count of 48 votes to none with only 8 abstentions. See Universal Declaration of Human Rights, 10 December 1948, available at http://www.un.org/Overview/rights.html.
- 17. International Covenant on Civil and Political Rights, 16 December 1966, available at http://www2.ohchr.org/English/law/ccpr.htm.
- 18. Signed 18 December 1986; enacted 25 May 1990; entered into force 1st August 1990.
- 19. Signed 11 November 1950; enacted 25 February 1953; entered into force 3 September 1953.
- 20. Signed 28 February 2002.
- 21. Council of Europe Convention on Action against Trafficking in Human Beings, CETS No.: 197, available at http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=197&CL=ENG, signed 13 April 2007.
- 22. Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, CETS No.: 201, available at http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=201&CL=ENG, signed 25 October 2007.
- 23. Council of Europe Convention on the Prevention of Terrorism, CETS No.: 196, available at http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=196&CL=ENG, signed 3 October 2008