Reform of the 30-year rule on release of State papers is a contemporary need
Ireland’s law relating to the release of State papers requires reform. Irish papers are released only when they are 30 years old. This period has always been excessive, but developments in the United Kingdom have given calls for reform a contemporary relevance.
In 2013, Britain decided to reduce the limit for the release of its State papers to 20 years. Records are being released twice-yearly until 2022, when the 20-year rule becomes fully operational.
This gives rise to a danger of the public being provided with a potentially one-sided account of matters of mutual interest between Ireland and the UK. The release of British State papers so far ahead of the comparable Irish papers means that the approach and strategy of the British may be considered in a vacuum, without access to the papers setting out the Irish position.
Ireland’s rules concerning the release documents should be brought into line with those in the UK. Irish papers should be made available after 20 years, while maintaining certain safeguards concerning confidentiality.
This is not simply an argument for historians. The events which occurred more than 20, but less than 30, years ago are recent enough to have contemporary political significance. They will continue to do so during the coming decades.
Files covering the Good Friday Agreement will be released by Britain in 2021, but not by Ireland until 2029 unless Irish laws are changed. Issues such as the peace process and the Sellafield nuclear fuel re-processing plant are but two cases where the opinions of today may be shaped by the release of information from the 1980s and 1990s. The public needs to have access to Irish government papers regarding Anglo-Irish affairs, without delay.
The issue of State papers occurs in a broader context. There is a general desire for more open government and for administration to be carried on more publicly. There is a case for more information to be provided to the electorate, rather than simply releasing papers.
The call for greater freedom of information also covers the desire to see government records made available much earlier. This is in the interests of transparency and accountability, especially in circumstances where technological developments mean information is generally available to people more rapidly.
Under a 30-year rule politicians and officials can rest assured that information about their deliberations will remain buried until long after their retirement. A less restrictive information regime would help such politicians understand that they will be open not just to the judgment of history, but potentially to analysis while they remain in public office. While there may be some disadvantages to such a degree of openness, the benefits would outweigh the drawbacks. Modern voters expect to be treated as intelligent adults and do not accept that they should be protected from the details of how they are governed.
The argument for greater freedom of information can be made with even more force concerning the need for access to information on environmental and health and safety issues. This may be described as a request for facts, rather than necessarily a request for records. This is particularly true in the case of records concerning Sellafield and other health and safety issues.
Appropriate safeguards designed to maintain confidentiality need to be retained in a reformed system for the release of State documents or information. Currently, the National Archives Act 1986 stipulates that records will not be released if:
1. they are required or in regular use by a Department;
2. their release would be contrary to the public interest;
3. their release would constitute a breach of statutory duty, or of good faith; or
4. their release would cause distress or danger to living persons.
Those restrictions go beyond what is appropriate in a modern context. The National Archives Act should be amended to provide for an independent review board which would assess assertions by the State that any particular papers should be withheld. The review board should have the power to determine whether or not to uphold such a claim.
Ireland now operates one of Europe’s less liberal systems of access to official records. The perception of secrecy in government has the potential to breed public cynicism. Reform would result in a more mature, open and accountable democracy and might help restore trust between politicians and the people which has disintegrated in recent years. While no single measure can restore that trust, an important step would be to introduce openness into the deliberative process which leads to policy decisions.
Jim O’Callaghan, SC is a Fianna Fáil member of Dublin City Council for Rathmines/Rathgar and Legal Adviser to the party’s front bench.