Last August, the Irish government published its proposals for a new Freedom of Information Act. Does it live up to its promise to restore the law to what it was?
BackgroundIreland's original Freedom of Information Act 1997 was introduced by the governing coalition of Fine Gael, Labour, and Democratic Left. It provided a right to access records of public bodies, both for people's personal information and material of general interest. Requesters could be charged a fee for searching, retrieving and copying the records. If a request was refused, the requester could ask for a review of the decision and then appeal to the Information Commissioner. The Act provided for a number of exemptions to disclosure, for categories such as confidentiality, personal data, commercial sensitivity, and national security. Requests had to be in writing, had to mention the Act, and be made to the 'head' of the body concerned.
In 2003, the re-elected Fianna Fáil / Progressive Democrats government introduced an amended Act which made a number of changes; although people still had the right to see their own records, access to other kinds of information was curtailed in a number of ways. An existing restriction on records of government decision-making was widened, made mandatory, and extended from five years to ten; refusals of records on the ‘deliberative processes of a public body’ were excluded from the possibility of appeal; refusal of some kinds of information on some aspects of defence, intelligence matters, and international relations was also made mandatory. Requesters were also prevented from seeing records of costings prepared of parties’ budget proposals, and briefing papers for parliamentary questions.
The most significant change, however, was the introduction of new charges. Ireland was already the only European country that charged for search and retrieval; now it became the only one to charge simply for making a request. The new fee regime not only demanded €15 to ask for information, but requesters dissatisfied with the response from a public body had to pay it €75 to review its decision and a further €150 to appeal to the Information Commissioner. Information that had previously cost nothing to access could now require an outlay of €240.
As this assessment by the Information Commissioner makes clear, the effect on requests was dramatic: non-personal requests fell by 75%, review requests were halved, and appeals to the Commissioner fell to around a third of what they had been; they never returned to their original level. The introduction of Fees, the Commissioner commented, "seems to suggest that the people are seen as adversaries and nothing more than lip-service is being paid to the principles of open, fair and accountable government".
Before long, the 2003 became a national embarrassment, and example of how not to do FOI. A British parliamentary committee, reviewing the recent introduction of their own legislation, set themselves firmly against any charge for enquiries, observing that, "It would be highly regrettable if the effect of any new fees regulations was to reduce the benefits of FOI, particularly since we have the opportunity to learn from overseas experience. ... The [Irish] Information Commissioner told us that he was 'concerned about the Irish experience, where the fees were increased, and that had (had) a very obvious chilling effect on the uses to which the Act was being put'."
(An excellent summary of the background to the Acts can be found in this paper by Tom Felle and Maura Adshead of the University of Limerick.)
A chance to reverse the changesFor eight years, with Fianna Fáil remaining in power and unwilling to admit that their changes had had any negative effect, there was no prospect of a reversal. Only after the party's catastrophic defeat in the 2011 election did the opportunity to amend the situation arise. Fine Gael and Labour, once again governing in coalition, had made clear manifesto commitments to change the law. Fine Gael promised to reverse the changes but spoke of a 'nominal charging mechanism' while Labour said they would restore it to what it had been before it was 'filleted' and promised to extend it to new bodies. Following the election, the parties' Programme for Government adopted the Labour language: the Act would be restored to what it had been before it was 'under[m]ined'.
In 2012, with no apparent movement from the government, Dail deputies introduced Private Member's Bills which proposed reforms, including the extension of the Act to cover the National Asset Management Agency (NAMA - Ireland's 'bad bank' set up after the 2009 financial crisis). Fianna Fáil's Sean Fleming, complaining of excessive search and retrieval costs - a complaint backed by other deputies - proposed a 'cap' of €500. The Government's response was to take over this Bill with a promise to re-introduce it in 2013 incorporating, its own proposals. The details of the proposed new law were published in August 2012 and recently presented by the relevant minister, Brendan Howlin, to the Oireachtas Joint Committee on Finance, Public Expenditure and Reform. [The Oireachtas includes both the Dail (lower house) and Seanad (upper house)]
The New ProposalsThe general scheme of the proposed bill is available here on the Oireachtas website, along with a Government briefing note.
Key elements of the proposals:
- Most of the legal restrictions of the 2003 Act will be removed - though records of ministerial briefings will not be covered;
- The ten year limit on records of government discussions will be restored to five years;
- New bodies, including NAMA and related institutions, will be included, though with specific exceptions with regard to details of potential investors, European Central Bank secrecy statutes, and the remuneration of individuals;
- Instead of being listed in the Act, new bodies can be added by the Minister through a Statutory Instrument;
- Non-statutory bodies, including NGOs which receive a large proportion of their income from government, can be included;
- 'Commercial' state bodies will not be covered to protect their commercial interests;
- The Garda Siochana (police force) will be included for the first time, but only for administrative functions, not operational issues, and with strong safeguards on security issues;
- On the suggestion of the Information Commissioner, a greater specification of the right to refuse 'frivolous and vexatious' requests;
- Tampering with records will be an offence;
- Vocational Education Committees, responsible for secondary education, will now be covered, but in such a way to prevent the compilation of school league tables.
- Fees for making a request are retained but there are reductions in the charge for review and appeal.
A Timid AffairAll in all, this is a very timid affair. A reasonable assessment would be: three steps forward, two steps back.
There is one very positive element: the inclusion of bodies which recieve a substantial amount of funding from the government. This apparently is likely to include NGOs, including those which distribute Irish Aid overseas. The issue of extending FOI to non-state bodies which receive public money has been an issue in the British parliament and in Scotland, although it is as yet unclear what bodies will be included; there seems to be an emphasis on NGOs and voluntary organizations as opposed to commercial ones.
Overall, however, these proposals will be a disappointment to anyone who wants to see Freedom of Information in Ireland not only restored to what it was, but envisioned as an up-to-date piece of legislation for the twenty-first century.
Although many of the restrictions of the 2003 Act have been removed, the fees regime has only been toned down, not abolished. It will still cost €15 to ask the government a question, and if a public body proves obstructive, a review and appeal will cost a further €80 in total.
The charging of fees not only sends a negative signal about the government's commitment to reform - and the issue was easily the 2003 restriction that had the most practical consequences - but it also severely limits requests in a number of ways. A requester wanting to gather information from a number of bodies will still face multiple fees. Asking for policies relating to hospitals, for example, would involve requests to 5 Health and Safety Executive organisations and 23 voluntary hospitals: that's €420. If any refuse, there could be multiple costs for review and appeal. Because a fee can only be paid by cheque or postal order, it's very difficult to make a request from outside the state - contrary to the practice in most modern FOI laws - effectively excluding the Irish diaspora from asking questions. And if a request turns up intriguing results - which they often do - any follow on enquiry will involve a new charge.
All of this runs entirely contrary to modern trends in Freedom of Information. Apart from Germany, no other country in Europe makes any charge for FOI requests except in a few circumstances. Europe's newer democracies, as they have adopted Freedom of Information laws, take the absence of fees as standard. Journalist and blogger Gavin Sheridan, speaking at a conference in Serbia last year, tweeted:
"*Everyone* from the Balkans is *shocked* that in Ireland we have to pay for requests and appeals. An alien concept to them."
There is no proposal to reform the charge for search and retrieval - which may result in as much as one in three requests to central government departments being abandoned - except for the possible setting of a cap of €500, surely too much for most people.
There are strong indications in these proposals that the government lacks the courage of its convictions. Why, for instance, will the Gardai be subject to FOI only for administrative, and not operational, matters? Why will commercial semi-state bodies be excluded?. On the surface, this may seem sensible: of course the law should not allow people access to information that would hinder criminal investigations, say, or provide commercial data of public enterprises to their competitors. But the law already allows for this: there are exemptions covering both of these and which ought to be perfectly adequate. Exclusion means claims of this sort are not open to challenge: an obvious invitation to abuse.
This act retains a very old-fashioned approach to requests. It is necessary to write, enclosing a cheque, to the head of a public body. This may seem reasonable, but it's actually retrograde - an example of outdated thinking. Not only because modern citizens expect to be able to engage services online, but also because it preserves the idea of Freedom of Information as a sort of special favour provided by the state to the citizen. Under the British and Scottish Freedom of Information Acts, there is no necessity to write to a specific person, and no need to cite the Act. What this means is that everybody working in an organization has to be aware of how the law works and has to be prepared to treat every enquiry as an FOI request if necessary: in this way, the principle of the law becomes embedded in the culture of the organization - an important change.
Poverty of AmbitionAbove all, these proposals suggest a disappointing poverty of ambition. Freedom of Information is important, and it really is not expensive - it costs as little as €2.4 million to answer all the requests received. The Minister, Brendan Howlin, seems confused about what exactly he wants. Speaking to the Oireachtas Joint Committee - here is a transcript of the discussion - he reminded the members that he was a member of the goverment that brought in the original bill, and called it 'bedrock legislation which underpins public access to the way the people’s business is done'. He talked of wanting 'to reverse the restrictions put in place in 2003 and to extend the Act to the widest possible definition of public bodies and also to non-public bodies significantly funded from the public purse.' He claims to have based the proposals on 'an examination of best international practice,' and of wanting to see Ireland's Freedom of Information regime 'restored to the top tier of legal frameworks internationally' and 'to ensure the culture and practice of secrecy in public bodies is set aside for good and replaced with a basic legal presumption that the public has a right to know.'
When it comes to the details, however, there is very little sign of real passion for transparency. This is certainly not going to take Ireland into the top tier - this is a bargain basement law. The Information Commissioner, suggesting ways of reforming the law, observes: 'of the seven jurisdictions with similar FOI legislation to Ireland, none charged a fee for 'internal review' while only one, Ontario, charged a fee for appeal to the Information Commissioner. In the case of Ontario this fee was set at €15.60 for non-personal information.' The minister still insists on a figure three times as much. 'We are not so unique that we do not look at Sweden, Canada or New Zealand to see how they operate practically,' he says. But he shows no sign of noticing how they differently they do things.
What is behind this timidity? Money, in part: 'To abolish fees and impose a reasonable search administrative cost would be dangerous because the cost of that would be prohibitive. We have to be careful what we ask for.' Although he says he is open to suggestions about fees and invited the committee to let him know their views, he fears the effects of freedom on the populace:
'There are people who stay up late at night submitting numbers of freedom of information requests on their computers, which often overwhelms systems.'
He gives no evidence of these nocturnal pests, but he clearly believes they exist. As a former FOI officer in a regime without request fees, I saw no sign of organizations being overwhelmed. There were a few persistent enquiries: but no sign of the mythical late night requesters. Besides, many requests can be made under the Access to Environmental Information regulations, for which there is no fee.
A fee-free regime would certainly lead to an increase in requests. The decline after the introduction of the 2003 Act suggests this would be at least two or three times the current level, while the number of requests to the Northern Ireland government, twice as many for a population one-third as large - implies it could be as much as six times as many. But if transparency is so vital, it's surely worth paying for. The minister seems to think Freedom of Information should be free.
But there's more than money behind this. There are signs that still, deeply-seated in the psyche of the Irish public administration, there is a fear of the unknown and a readiness to hide behind secrets. The minister admits he has had to fight to persuade some to come out in the open:
"We have pushed it as far as we can in terms of areas that traditionally fought off any efforts to include them in the freedom of information regime. I refer for example to the financial sector, ... organisations such as the Garda Síochána are reluctant to enter this territory at all. It regards any trespass into this territory as being almost dangerous."This no doubt explains the unwillingness to submit these fragile flowers to the horrors of the unwashed citizenry asking questions. But again, these fears are little grounded in reality. My FOI colleagues in Scottish Water and the Grampian Police (not exactly shrinking violets) had only standard exemptions to rely on in withholding information they felt would threaten to disclose details of criminal investigations or commercial interests, and found them perfectly adequate. Northern Ireland Water is subject to the full FOI Act, so why will the new Irish Water need to be specially protected? The simple answer is, it doesn't. Somebody just needs their hand held.
I am pleased to say that a number of members of the Joint Committee made the case not only for getting rid of fees, but for greater coverage of public bodies as well. There were a number who raised evidence, from their own experience, of bodies with little enthusiasm for transparency:
While in some cases requests may be refused for reasons of national security, I believe officials, who are not fully committed to FOI, are using this as an excuse. (Deputy Sean Fleming)A perfect example is the recent story about the wiping of penalty points for motorists, including some high-profile figures. When pressed as to whether this was a case that could be investigated via the new FOI arrangements, the minister seemed to suggest that, as administrative matters, they could. But a careful look at the proposed legislation shows that 'administrative' is defined as ‘a finance, human resource or procurement matter.’ That sounds very much as if, with operational matters out of bounds, some well known people may be in a position to speed out of the range of the law.
Bus Éireann, for example, refused to give me passenger numbers. It was making some very important changes and was extraordinarily unhelpful. It refused to give me basic information by hiding behind commercial sensitivity. It is absolute nonsense but it was able to hide behind it. (Deputy Stephen Donnelly)
Regulatory bodies seem to have acquired a status that allows them to make decisions that cause serious damage to customers. I refer the customers of airports and energy companies, for example. These bodies operate in a secret world. The relevant parent Departments have long since given up trying to control them. (Senator Sean Barrett)
If this governing coalition remains in power through another election, which is very possible, it is hardly likely they will want to return to this law with a more liberal frame of mind. Fianna Fail, still the most probable alternative government, is in denial about the damage their 2003 legislation does. There is no realistic alternative: this is the last chance of a meaningful reform of Freedom of Information in Ireland for a decade, perhaps a generation. Ireland deserves better.