Sunday, 10 November 2013

7 Ways the Irish Government is Taking Your Freedom of Information Away

In 2011, when Irish voters turfed out their government after the chaos of the banking collapse, one of the pledges the incoming parties made was to restore the country's Freedom of Information Law. But what they are proposing is not a restoration - and now they're going to weaken it even more.

Leinster House, home of Ireland's legislature.(picture: Cian Ginty)

Last Wednesday, 6 November, Ireland's Department of Public Expenditure and Reform published an eight-page document. It was a list of proposed amendments to the new Freedom of Information (FOI) Bill. And it was a bombshell that left campaigners reeling. One remarked, "If passed, Freedom of Information is dead".

If you care about openness in Irish political life, you might as well know what you're not getting - and  what you're about to lose. Here are seven ways they're taking your Freedom of Information away.

1. Not getting rid of charges


Want to ask a public body a question? That will be €15 please. Unlike any other country in Europe, Ireland charges a fee to make a request under the Freedom of Information Act.

This was not always the case: charges were only introduced when the Act was amended in 2003. Nobody really disputes why this was done: to discourage requests. And it worked. The number of FOI enquiries fell by half.

The new government elected in 2011 after the Banking fiasco made a pledge to the nation: to reverse the Law to what it had been before it was 'undermined'.

Which meant, obviously, getting rid of charges. But they seem to have concluded that undermining isn't really a big deal. They've decided to keep the €15 fee.

You might think €15 is not that much: after all, answering your request will cost something. But this is information the taxpayer has already paid for. And it probably costs more than €15 to process your cheque in the first place. The only purpose of charging is to stop you from asking impertinent questions.

And if you want to find out things even the government doesn't know - because it's not collected centrally - you will need a thick wallet. If you wanted to gather data from health boards and hospitals in any part of the UK - including Northern Ireland - it would cost you exactly £0.00. But in Ireland, a request to the 5 Health and Safety Executive organisations and 23 voluntary hospitals would set you back €420.

And that's if they play nice...

2. Not making appeals free


A lot of people who ask FOI questions get put off very easily with a refusal. But anyone with experience of FOI will be familiar with the game of Transparency Tennis. It works like this.

Round 1: You ask a public authority for information they don't want to give you. They give you some information, and refuse the rest.

Round 2: You write back to them, asking for an internal review. They think about it and disclose a bit more information, but withhold the rest.

Round 3: You write to the Information Commissioner (or whatever the role is called in your jurisdiction) and ask them to investigate.

Round 4: The Information Commissioner writes to the organisation insisting they give you the information and, eventually, rather reluctantly, they comply.

The system ensures that you will get the information you are legally entitled to. All you need is persistence, and patience.

And in Ireland, money.

Asking an organisation to review their decision, and then going to the Information Commissioner, costs you nothing in most countries. In Ireland it is €75 for the first and €150 for the second. The government has said they will reduce this - but it will still set you back €80 to get information that's yours by right.

And if each of those HSE organisations and health boards wants to dig their heels in? That would be €2,240 ...

3. Not supporting the Information Commissioner


Even if you have enough money to play Transparency Tennis, in Ireland you'll need a lot more patience than in other countries.

The Scottish Information Commissioner's office set out to complete their cases in an average of 20 weeks. They managed 15.9.

The Irish Information Commissioner, starved of funding, struggles to complete cases in years, let alone weeks.   Less than one in five cases are completed within the Scottish average. Well over a third are still outstanding after a year. One case was opened  on 3 December 2008 - and decided on 13 December 2012. That's over four years later.

This kind of delay makes a nonsense of Freedom of Information. Any public body which does not want to provide information knows - especially if the requester is a journalist working to a deadline - that by the time they evenually have to provide an answer, the information will be out of date. Why bother to reply, when you can make people wait?


4. Not making the Information Commissioner subject to FOI


The job of Information Commissioner is absolutely essential to make the system work. She's there to defend the interests of people like you and me,  and make sure authorities don't abuse their position. Which makes it all the more important that we can see that the Commissioner is doing a good job, and acting fairly.

Does the Irish Information Commisioner make the right decisions? I don't know. And I can't find out.

In England, and in Scotland, all decisions of the relevant Commissioner are published online. This makes it possible to see how decisions are being made, and confirm that the Commissioner is acting fairly, and reasonably. But in Ireland, most decision notices are not published. It's up to the Commissioner to decide whether to publish them or not, and why. And even when they do, sometimes they refuse to reveal which public body they're talking about.

And if you think of asking for them under the Freedom of Information Act, forget it. Bizarrely, one thing you can't access under the Act - unlike in England or Scotland - is the Commissioner's case files.

Probably the Commissioner does a good job - she's just been appointed European Ombudsman. But really, who knows? Not me or you.



5. Being Afraid of the Police


When speaking about the plans for the Bill to a Dail Committee, the Minister in charge of FOI - Brendan Howlin - made an astonishing admission:

"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."
 The CIA, the FBI, and the London Metropolitan Police are all subject to Freedom of Information. What special secrets do the Gardai have that these organisations do not have? Even the Police Service of Northern Ireland publishes a helpful log of what it has disclosed. But  the Minister is wary of trespassing on the territory of the Garda Síochána.

Well, fair enough. It's not like we're paying them. Oh, wait. We are.

The new Bill proposes to extend FOI to the Gardai - but only for 'administrative' functions - not operational ones. It seems that, even though the FOI Act, like its counterparts in other countries, has perfectly good safeguards to prevent harmful disclosures, it's more than the Minister's job is worth to trespass on Garda territory. Don't expect to find out anything about penalty points, for instance.


So far, you might think none of these is a big deal. They've all been around for a while, and they're not exactly new.

But then, there was 6 November. That's when it really turned bad.

As David Farrell of University College Dublin points out, the amendments published last week came very late in the process: 'Introducing these changes just before Committee stage makes it all but impossible to roll them back, and any attempt to block it in the Dáil can be easily dealt with.'

Farrell called these amendments 'a cynical move' that 'will make FOI prohibitively expensive and therefore, in large part, unworkable.'

6. Charging a fee for each question

If introducing fees was a punch in the face for FOI, this is the double whammy.

When faced with charges for requests, some journalists did not give in so easily. They found a (sort of) way around the problem: multifaceted requests. As Gavin Sheridan of The Story.ie explains, by submitting one request with several questions to a public body, they could ask for a variety of information with just a single €15 fee. 

Now the government is proposing - at the last moment - to charge for each question. As Gavin says, 'This would kill most requests this blog has ever sent. It would also kill most requests by journalists who are trying to maximise the amount of information they can get for the unjustified €15 fee in the first place. The €15 fee created multifaceted requests.'

'Almost every single one of my recent FOI requests,' says Conor Ryan, investigative reporter for the Irish Examiner, 'would have been gutted by the proposed amendment.'

What the government are proposing would seriously hamper proper journalism in Ireland. Why would they do that?

7. Charging you for looking for the information they're not giving you

One other thing that hampers Freedom of Information in Ireland is the existence of search and retrieval fees. Most countries don't have them. Germany does, with a maximum of €800. But in Ireland, you can be charged the full cost of finding the information you've already paid for. One Dail deputy abandoned an enquiry when he was told it would cost €1200. Another department charged €15,000.

Now the government is proposing to include the cost of determining whether they have the records, extracting them, getting the information from them, and preparing a list of them. There is no question of a cap. This virtually incentivises bad records management.

Unless, of course, you are asking for information about the environment. In that case, because the law emanates from Brussels and not the government, it cannot be changed - requests under the Access to Environmental Information Regulations are free (except for copying costs).

All in all, as Gavin Sheridan points out, these changes would turn the FOI clock back to before the original Act in 1997. At this stage in the legislative process, it seems highly likely these amendments will pass. And Ireland will be left with a Freedom of Information Act that belongs to the past.

Ireland is a country of secrets. There are lots of things we don't know - except we do.

The opposite of openness is not secrecy: it's gossip. Everything that went wrong in Ireland in the past decades - child sex abuse, corruption, political violence, bad banks - was known about, by lots of people and talked about behind closed doors. The dogs in the street knew. But not officially.

We can get our dirty secrets out in the open, discuss them, and do something about them. Or we can gossip.

Is that what people really want?

And if not, what are you going to do about it?

http://www.whoismytd.com/ Most TDs and Senators respond to letters, not emails.

Cost of a stamp: 60 cent. Cost of saving Transparency in your country: Priceless.




4 comments:

  1. I'm not sure the delays at OIC are because the information Commissioner is starved of funding. Last year the Ombudsman's total voted expenditure was the highest ever, and 16% higher than 2012. The pay bill is also at a peak; a 4% increase over 2012, now €74,000 per head. The backlog problem seems to have more to do with productivity. In 2003 OIC carried out 728 reviews with fewer staff. Last year (2012) it was only 200, which continued a generally downward trend over the last nine years. In 2004 OIC completed 406 formal decisions; last year that had fallen to just 104.

    The previous Commissioner stated that the reviews were getting more complicated. Maybe that's the case, but you'd think that as the body of precedent and practice had developed up over the years, review handling would get quicker rather than slower.

    Two court judgements make things worse. The O'Caoimh judgement acts to encourage delay by public bodies in laying out their full case from the outset, and OIC seems to be quite receptive to new exemptions being raised later and serially. It then considers them serially also. An ECJ judgement (AIE - only) acts to encourage scatter gun behaviour by public bodies, by permitting the Commissioner to consider many factors for exemption. Though the factors may be insignificant singly, the judgement allows that they may be cumulated together and thus in aggregate to outweigh the public interest for release. So by submitting many factors for exemption and presenting them sequentially, a public body can delay the process quite long enough for any 'hazardous' information to lose its value. The lack of any mandatory time limit within the Act - to complete a review - makes it all possible.

    The post notes that the backlog at OIC is now a permanent and significant feature of the FOI process. It's true that some headway was made between 2003 and 2007, but since then OIC has consistently held about 200 reviews awaiting assignment. As they currently complete about 200 reviews per year, an average review could not expect to get a decision from OIC in much less than twelve months. The previous Commissioner noted this fundamental problem in her reports, but her annually renewed resolution to improve matters seems to have been ineffective. As the post highlights, OIC is itself secretive about how it processes it's work but doesn't appear to keep any easily accessible records that would help it to measure, and therefore improve, its performance.

    ReplyDelete
  2. PUBLIC MEETING

    Democracy Protection Campaign.

    S O S: Abolishing Freedom of Information In The Name of Freedom of Information.

    Abbey Hotel, Abbey St, Dublin, (opposite Arnots store) Wednesday 5th February, 7 pm.


    The core essence of democracy is accountability and the most effective instrument for making institutions accountable for the citizen, has been the Freedom of Information Act (FOI) 1997.

    Within weeks the 1997 FOI Act will be removed from the statute book.

    An unreported section of its proposed replacement, (FOI Bill 2013) extinguishes the current legal obligation on public bodies to make available to the public, information about themselves, including information regarding their procedures, guidelines, rules, precedents, etc for making decisions on entitlements and appeals against decisions. Sections 15 and 16 FOI Act 1997.

    The public bodies include, HSE, Bord Pleannala, institutes of education, social welfare, city and town councils, etc.

    Under a replacement section of the 2013 FOI Bill the public institutions -themselves- will decide what categories of information they will make available to the public. In addition, new powers are vested in the Minister to 'revise' such information if he or she "thinks fit." to do so.

    It is expected that all stages of the new bill will have passed through Dail and Seanad Eireann within the following 6 to 8 weeks, following which it will be codified into law.

    There is still time to retain what rights are enshrined for the citizens in sections 15 and 16 but the clock is ticking and the failure of media and opposition to notice or appreciate the gravity of this literal 'power grab' -in the name of FOI- has meant that government and the senior echelons of the civil service nearly have this over the line.

    "...if officials make public only what they want citizens to know, then publicity becomes a sham and accountability meaningless." Sissela, Bok Swedish philosopher.

    ReplyDelete
  3. PUBLIC MEETING

    Democracy Protection Campaign.

    S O S: Abolishing Freedom of Information In The Name of Freedom of Information.

    Abbey Hotel, Abbey St, Dublin, (opposite Arnots store) Wednesday 5th February, 7 pm.


    The core essence of democracy is accountability and the most effective instrument for making institutions accountable for the citizen, has been the Freedom of Information Act (FOI) 1997.

    Within weeks the 1997 FOI Act will be removed from the statute book.

    An unreported section of its proposed replacement, (FOI Bill 2013) extinguishes the current legal obligation on public bodies to make available to the public, information about themselves, including information regarding their procedures, guidelines, rules, precedents, etc for making decisions on entitlements and appeals against decisions. Sections 15 and 16 FOI Act 1997.

    The public bodies include, HSE, Bord Pleannala, institutes of education, social welfare, city and town councils, etc.

    Under a replacement section of the 2013 FOI Bill the public institutions -themselves- will decide what categories of information they will make available to the public. In addition, new powers are vested in the Minister to 'revise' such information if he or she "thinks fit." to do so.

    It is expected that all stages of the new bill will have passed through Dail and Seanad Eireann within the following 6 to 8 weeks, following which it will be codified into law.

    There is still time to retain what rights are enshrined for the citizens in sections 15 and 16 but the clock is ticking and the failure of media and opposition to notice or appreciate the gravity of this literal 'power grab' -in the name of FOI- has meant that government and the senior echelons of the civil service nearly have this over the line.

    "...if officials make public only what they want citizens to know, then publicity becomes a sham and accountability meaningless." Sissela, Bok Swedish philosopher.

    ReplyDelete