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Is there a ceiling on access to information? Alamy Stock Photo
SeriesThe FOI Files
A politician went looking for submissions made under a public consultation and got nothing
How a Senator’s FOI requests fell short on exempted development.
The FOI Files is a series from our team at The Journal Investigates. Each week, one of our investigative journalists brings you inside the fight for information that we’re all entitled to. They’ll share their documents, their stories – and tips on how to take the journey for yourself.
This week’s file is from the Acting Editor of The Journal Investigates, Noel Baker.
See here for The Journal Investigates’ most recent investigations.
JOURNALISTS ARE ALL too used to getting knocked back when they go looking for information. But what if a member of the Oireachtas gets a refusal when they are looking for information, particularly on a subject they are voting on, and which they firmly believe to be central to the legislation passing through Leinster House?
This is what recently occurred to Senator Victor Boyhan, as he went seeking access to the approximately 900 submissions made to a Department of Housing-commissioned public consultation process on exempted development.
It involved requests for data, an FOI submission, an appeal and now a further appeal to the Office of the Information Commissioner – and in the meantime the legislation to which the public consultation submissions related has continued its way through the Oireachtas.
The way the process has played out has left Boyhan with a few questions.
Arrested development
Let’s go back to the beginning. Exempted development is a category of building work or a change of use that doesn’t need formal planning permission from your local council. This could relate to sheds, garages, solar panels, even housing extensions, but even though formal planning permission isn’t required, there are still guidelines and limits in place.
In July 2025, the Department of Housing launched a month-long public consultation process on exempted development. The process closed on 26 August last year. So far, so normal.
However, in July of this year the Department announced that new regulations regarding the Planning and Development (Exempted Development (Act of 2000)) would come into force.
What’s the big deal? Well, according to Boyhan, pre-legislative scrutiny of these regulations – which should have factored in the public submissions – was ‘guillotined’ by the government, meaning the proposed regulations were pushed through the Oireachtas.
The Senator – a childhood friend of Irish football legend Paul McGrath – submitted a Freedom of Information request seeking access to the approximately 900 submissions made under the public consultation. Such submissions are generally subject to FOI.
However, Boyhan’s FOI request was refused under Section 29 (1) A of the FOI Act, which refers to a record forming part of a deliberative process. Boyhan appealed this decision, but his appeal was also rejected.
As it turns out, it was refused for a different reason: Section 15(1)(f) of the Act, under which the body holding the record has already planned to publish it within the next six weeks. Regular readers may recall me having a moan about this aspect of the Act last month.
Boyhan has now lodged an appeal with the Office of the Information Commissioner (OIC). In the letter to the OIC, he refers to how the explanation offered for refusal of the appeal was different to that offered in the initial FOI application.
“In order for public consultations to be meaningful and not meaningless, politicians and industry professionals must have access to the full content of submissions so we can make informed decisions based on all stakeholders’ views and experiences,” he said.
“Submissions closed almost a year ago. They cannot be withheld as key decisions are being made.
“The whole idea of representative democracy is that the public delegate political decision-making to representatives who act on their behalf. I am being prevented from making the best decision on behalf of my constituents who are City and County Councillors, because I do not have access to the information required.”
Mind your PQs
It does seem remarkable that a member of Seanad Éireann can’t access this information when all too often people – including journalists – are seeking their assistance in getting information.
We all know the timeframes at play with an FOI request, so oftentimes it’s quicker to see if a Parliamentary Question (PQ) can be lodged instead. Yet here is an instance where people voting on an issue arguably can’t access the related information.
We asked the Department to explain why the submissions to the public consultation simply couldn’t be provided to anyone who wanted them, or – failing that – to people entrusted to vote on the issue without having seen it.
Responding to questions from The Journal Investigates on this particular issue, the Department of Housing said the different reasons provided for refusal of the initial FOI submission and the appeal made sense because of the timing of both.
“The position on ‘Deliberative process’ is set out in Section 29 of the Freedom of Information Act 2014, and is qualified by a public interest test,” a spokesperson for the Department said.
“In compliance with the legislation, in this case the deliberative process was considered to run until the revised Regulations were approved by the Oireachtas and signed by the Minister.
“The date of the approval by the Oireachtas was 16 July and the Regs were signed by the Minister on the same day.
“The internal appeal was processed after this date, and it is for this reason that the deliberative process ground was no longer considered to be relevant to the appeal.”
“They rammed it through”
Boyhan told us that he had been contacted by a number of people who made submissions under the public consultation process.
“They are shocked,” he said. “They had something to offer in relation to me seeking to amend the legislation.”
“[The government] waived the pre-legislative scrutiny in relation to this legislation. Nothing was holding it up, they rammed it through.”
He said he had asked Housing Minister James Browne and the Secretary General of the Department to intervene, so far to no avail.
“This is also about how to improve the public consultation process going forward. There was no pre-legislative scrutiny – had we got that some of this would have been teased out in that.”
The argument is that this isn’t a great look. A report will be launched at some point in the coming weeks outlining, at least in part, those public consultation submissions. But in Boyhan’s view, the horse hasn’t just already bolted, it’s rode off into the sunset.
As Boyhan wrote to the OIC: “It is a sad state of affairs, when a member of parliament is repeatedly denied information essential to do his job to the point that he now has to go to the Office of the Information Commissioner to rectify the situation.”
For its part, the Department said submissions made under this consultation were treated the same as any other submissions received in response to a departmental public consultation and that FOI requests received on this topic were processed in accordance with the legislation.
A spokesperson for the Department said: “Around 900 submissions were received in relation to this consultation, which is a significant volume of responses. These records require a certain amount of processing before they can be published.”
Ultimately we will be able to comb through them – the Department said it was committed to publishing all the submissions before 30 September.
If you have a burning FOI question about how to get certain records or why your request was refused, you can get in touch with our team at investigates@thejournal.ie. The Journal Investigates team will be back with another instalment of The FOI Files next Tuesday.
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