If the government did promise to abolish upfront fees then its proposed amendment to the Freedom of Information Bill which seeks to maintain upfront fees and to increase fees for initial requests constitutes a complete about turn by the government and a clear breach of its promise to the public when it was elected in 2011.
It is worth recalling that before 2003 upfront fees were not charged for initial FOI requests, internal appeals or for appeals to the Information Commissioner. In 2003, however, the FF/PD administration introduced upfront fees by inserting Section 47(6A) into the Freedom of Information Act. At the time this was considered to represent a significant undermining of the effectiveness of the Freedom of Information regime in Ireland. The Information Commissioner herself pointed out that the introduction of upfront fees led to a significant drop in requests and appeals, particularly from journalists.
So what did the government actually promise in relation to FOI upfront fees?
We will radically overhaul the way Irish politics and Government work. The failures of the political system over the past decade were a key contributor to the financial crisis and the system
must now learn those lessons urgently.
Government is too centralised and unaccountable. We believe that there must also be a real shift in power from the State to the citizen.
We will legislate on the issue of cabinet confidentiality.
We will legislate to restore the Freedom of Information Act to what it was before it was underined by the outgoing Government, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions.
We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered.
So the government promised to restore the FOI Act to what it was before the 2003 amendment. This could not be clearer. It is impossible to read this other than a promise and a commitment by the Irish government to undo the amendments made in 2003 including the amendment whichh inserted Section 47(6A) and introduced upfront fees for the first time.
It doesn’t matter that we are constrained economically – we were similarly constrained in 2011 when the program for government was published. Similarly it doesn’t matter that the upfront fee is only a small fraction of the costs of FOI administration or that it violates the newly discovered principle of one issue – one fee. The government made an unqualified promise to the people and it should stick to it.
We’d like to welcome Rodney Breen with a guest post for TheStory.ie:
In all the kerfuffle about the watering down of FOI, not many people have asked the simple but obvious question: why?
Actually, I think we all suspect we know why: the government doesn’t want people asking so many questions. But could there be an other, more reasonable explanation?
If there is they’re struggling to explain what it is. The government press release cited by Gavin here explains that “For FOI to work effectively each issue should be treated separately but some requests raise a number of unrelated issues within a single request.”
This is true, but not a problem. I’ve been an FOI officer. You get different questions in the same request, you send each one to the relevant person: you simply treat them as different requests. This is a simple administrative process. Approaching this with legislation would be insane.
The Department press release explains, “It is undermining of the fee per issue principle that several unrelated matters can be asked by way of a single request.”
This is interesting. The history of the fee per issue principle seems to go back to November 11, 2013, the day the press release was released. A Google search for the term produces just 4 results, all from yesterday. Nobody has ever mentioned it before, at any time, anywhere. It has no previous existence.
However, without having consulted anybody else, the Department has decided that the fee per issue principle is a thing, and a principle worth fighting for, in the name of the Law.
So what is this “fee per issue principle”? Well, obviously that anyone who asks for information on an issue should not get it for free. If you think about it, it makes sense. If you pay a fee for a request on an issue, and add a couple of questions about other issues, you are effectively getting the answers to those for free. And apparently this is a bad thing. But why?
I suppose you could argue that it’s unfair. If Paddy submits an FOI request about Education Policy, and adds a question about school closures, it’s unfair to Mary, whose FOI about school closures is costing her €15 while Paddy gets his for nothing.
If that’s what they’re thinking of, I am quite happy to say, on Mary’s behalf, and on behalf of all of us, “no, really, it’s fine. Let Paddy have his question, we’re not bothered.’
But I don’t think that’s the reason. Because, obviously, it would be completely stupid.
What else? The press release says “it is reasonable to require a small contribution to be made to the cost of information retrieval.” But this makes no sense, because there is a separate charge for retrieving the information.
What does this leave us with? It’s not a charge for retrieval, it’s not unfair, and the amount of money it brings in will be tiny. If it means, say, 200 extra FOI fees a year, that would bring in €3000. Putting the amendments in the legislation has probably cost ten times that. That would be a shocking waste of public money.
The best rational explanation is the Government simply really does want fewer questions asked. They haven’t made any attempt to conceal the fact that they see that as a desirable outcome. But it’s just possible that someone in government really does think that the fee per issue principle is worth defending even though it will cost far more than it could possibly raise.
“It’s not the money, it’s the principle”.
If that’s the sort of thinking that governs in Ireland, we have never needed FOI more than today.
In a series of statements, multiple NGOs today outlined their opposition both to the new fee components of the FOI Bill 2013, and the entire idea of upfront FOI fees.
No other country in the European Union or the wider European region charges just for making a request for information.
“The standard is clear: there can be no charge made for exercising the fundamental right to ask for information from public bodies,” said Helen Darbishire, Executive Director of Access Info Europe.
The social and economic benefits of government transparency are huge. They include increased efficiency which in turn leads to reduction of costs. Sometimes an FOI request can expose corruption or waste and help point to areas where savings can be made. CSOs engage in policy development, journalists write stories, entrepreneurs develop businesses reusing government data. This is in addition to the importance in a democracy of the public knowing what its government is doing, something which it is impossible to put a price tag on.
The European Court of Human Rights has recognised that access to information is a fundamental right linked to the right to freedom of expression. The UN Human Rights Committee has confirmed this.
“We don’t charge people for exercising other rights, for example, the right to vote” added Darbishire, noting that many democratic processes are expensive, which is precisely why the public pays taxes. “To charge a fee for FOI requests is unacceptable double taxation” she added.
‘There is no economic case for FOI fees. The argument that FOI costs too much to administer ignores the reality that the information revealed by use of FOI in the public interest over the past decades has saved the taxpayers millions,’ said TI Ireland’s Research Manager, Nuala Haughey.
‘Ireland is unique in Europe and virtually the world in charging up-front application fees for FOI in the first place. The current government promised to restore the damage done to FOI by the last administration but has failed to fully live up to this Programme for Government pledge. These latest and last minute proposals only add insult to injury and undermine the government’s wider commitments to open government.’
Charging for FOI requests, charges for multifaceted requests, and charging for ‘search and retrieval’ of the information present a barrier to citizens, limiting their rights, and prohibiting their ability to inform themselves about public policy. Inhibiting scrutiny will result in the non-disclosure of what should be public information. It is in the interest of everyone to increase participation and remove barriers to information which effects us all.
We call on the government to:
Remove fees for all FOI requests and appeals.
Allow multi-faceted FOI requests without additional charge.
Remove fees charged for search and retrieval of information to fulfil FOI requests.
The lead Department for FOI in Ireland, the Department of Public Expenditure and Reform has issued a press statement outlining its position on the late-stage amendments to the FOI Bill. Unfortunately we don’t get an explanation of why many additions came so late in the process. Indeed, we don’t get much of anything besides some bullet points.
But one bullet point in particular on the fees issue struck us as a bit nonsensical. The Department said:
– FOI fees are an accepted feature of FOI legislation in several OECD countries -international best practice standards acknowledge the principle that countries can choose to levy a contribution towards the cost of providing FOI.
Really? That’s the first we’ve heard of it. Maybe the Department is talking about the concept of fees generally, and not the concept of upfront FOI fees that Ireland specialises in? Some countries do charge for the process of searching for and retrieving information. But only Ireland, Canada and Israel charge upfront for requests.
But citing “OECD members” struck us as odd too. According to the Department’s own website the OECD recommended that Ireland abolish upfront FOI fees in a 2008 Public Management Review. The report says:
The Freedom of Information (Amendment) Act of 2003 introduced up-front fees for requests and appeals (there are no charges for requests in relation to personal information) which seems to have reduced the number of information requests and which has de facto limited the impact of the original Act. In the interest of social cohesion and trust in government, greater efficiency and the fight against corruption and greater transparency should be an ongoing objective even if it can sometimes be uncomfortable and/or costly. The government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free and extend its reach to a wider range of state agencies, such as Vocational Education Committees (VECs). While user charges may limit frivolous requests (and therefore reduce burdens on the Public Service), they also serve as a disincentive to greater openness.
But the OECD is not the first international group to recommend the abolition of fees. The Council of Europe (CoE) through the Group of States against corruption (GRECO) recommended in its 2008 compliance report on Ireland (and not for the first time) consider abolishing upfront fees. Money quote:
With the adoption of the Freedom of Information Act and the connected modernisation process of public administration the Irish authorities provided for a more transparent administration and these moves were accordingly considered important by GRECO, as indicated in the Evaluation Report. However, the introduction of “up-front fees” in 2003 goes in the opposite direction…. GRECO very much regrets that the authorities have not come to a conclusion to abolish the “up front fees” and that it appears that the opinion of the Information Commissioner – who is responsible for keeping the Freedom of Information Act under review – has not been adhered to.
Does the “international best practice” argument hold water? Quite simply, no. In fact the Department has itself been told by international organisations that we’re out of line with the norm.
Last week it was agreed that Israel is reducing its fees, meaning that Ireland will have the glory of having the most expensive FOI regime in the world. Of course Ireland is in a very small group of 3 countries (Canada being the other) out of nearly 100 countries that charges citizens upfront for FOI requests.
International best practice – you’re having a laugh.
As part of an FOI request where we sought all briefing papers used by Minister Howlin and his staff at an Oireachtas Finance committee meeting earlier this year, we obtained this briefing note prepared for the Minister.
The note outlines the convoluted logic behind the Department’s thinking on FOI fees. Despite all evidence to the contrary, the Department continues to believe that fees solve problems, instead of creating them. As we pointed out in our submission to the same committee, charging fees is lazy. When the UK examined this issue in 2012 they reached perfectly rational positions such as:
The introduction of application fees would mean that those who explicitly relied on their statutory rights would pay, whereas those who sought information without invoking, or in ignorance of, their rights would not. This would create a two-tier system.”
and the UK Information Commissioner:
“It is a bit rich to have public authorities saying, “We are assailed by unreasonable freedom of information requests”, when they do not have an adequate publication scheme, they have not got their act together in terms of records management and have a rotten website and so on. There are things that you can do before you ever get to charging.”
“…charging for FOI requests would have an adverse impact on transparency and would
undermine the objectives of the Act…. a charge would be expensive to administer and
may result in increasing, rather than reducing, burdens on public authorities. This is
particularly the case where a nominal charge, rather than a much higher fullcost
recovery charge, is being considered.”
But in Ireland we have this:
Subsidies? All of a sudden the State is a champion of saving the taxpayer money. Funny that. Since the Act was introduced millions of euros of waste was uncovered, mainly by journalists. Remember FAS? FOI. Remember John O’Donoghue’s outrageous expenses? FOI. How much money is saved by transparency? Lots. And how much future waste has been averted because of the FOI Act? Probably levels well above all fees or costs for FOIs ever.
But the logic here is that the taxpayer is subsidising, well, taxpayers. Countries cost money to run. Democracy is messy. Access to information is a right and it is not within the gift of political regimes to add it or take it away on a whim whenever they feel like it – it is a fundamental right.
As for the figures cited, well where do you start?
Cost of administering the fee regime (processing cheques etc)? We have no idea because no one did a cost/benefit analysis (but it’s most likely costing more to administer upfront fees than the fees themselves bring in).
Here is the full briefing note, in all its contorted glory:
One of the most significant last-minute amendments to the FOI Bill 2013 is charging multiple times for what are known as multi-part or “multifaceted” requests.
What is a multi-faceted request?
This blog has used multifaceted requests in order to maximise the amount of information that can be obtained for the unjustifiable €15 charge. We have also demonstrated that technique to dozens of journalists in most of the national papers in Ireland and journalists working for RTE and TV3 over the past 3 years. Partly because of this activity, FOI officers began expressing concern at the number of new multi-faceted requests they were receiving.
An example of a multifaceted request which I did earlier this year to the Department of Public Expenditure and Reform was:
1) All papers prepared for and used at an Oireachtas committee meeting on January 10, 2013.
2) The appointments diary of the Secretary General of the Department since inception.
3) All communications or circulars issued to FOI officers in 2012. This should include minutes or records relating to any meeting involving three or more FOI officers in the possession of the Department, for 2011 and 2012.
4) A datadump, copy/export of, all expenses claimed by all staff as per the JD Edwards database in use by the Department, since inception. I request this data be released in an open, accessible format – CSV/XLS/XLSX.
5) A datadump of all Purchase Orders of any amount by the Department. I am aware that POs of €20,000 or above are on your website, however I am seeking POs of €19,999 or below.
Under the current regime this request cost €15 upfront – before you get to search and retrieval. Under the new costs regime it will cost upwards of €75, depending on how many divisions the request is split into. Let’s round it down to a 5 part request going to 4 divisions – €60. Or 4 times the current cost.
Did charging for multifaceted requests appear in the draft heads or the main Bill when published?
No. Nowhere. It didn’t come up in any of the much vaunted pre-legislative scrutiny (and as David Farrell points out, this makes a mockery of pre-legislative processes). It didn’t appear in the draft heads last year. It didn’t appear in the FOI Bill 2013 published earlier this year. It was put into a list of amendments at the very end of the legislative process.
As we have pointed out, cynics might suggest this is an attempt to get stuff people won’t like in at the last minute. We are cynics. The reason we are is that we know multifaceted requests were becoming an issue of concern to FOI officers as far back as July 2012. How do we know? We FOId it.
This email sent in July 2012 from DPER to a list of FOI officers in all the main line departments asks them to fill in a survey to see how the growth of multifaceted requests was “causing difficulties”.
So it was clear in Summer 2012 that the Department drafting the legislation was a) aware of the growth of multifaceted requests and b) wanted to find out from FOI officers how many they were getting. They got the results of the survey, but the charging for multifaceted requests never made it into the draft FOI bill later that summer. Nor did it make it into the main bill published earlier this year.
It arrived last week, out of the blue. And the solution to solve this multifaceted request problem was clear: charge for everything.
But aren’t multifaceted requests a strain on resources for public bodies?
When we started this blog we stated that since we were using the donations of the public to fund our FOI requests, we must seek maximum return for each €15 request. To do so we ensured that all requests were multifaceted.
If there was no €15 fee, we would not be doing multifaceted requests – we simply wouldn’t need to. The strain on resources is caused by the €15 fee, not by over zealous requesters.
We’ve had sight of new amendments to the FOI Bill 2013 proposed by the Department of Public Expenditure and Reform.
We will be blunt: if passed, Freedom of Information is dead.
TheStory.ie will, in all likelihood, cease all FOI requests. And we will not seek funding from the public to support an immoral, cynical, unjustified and probably illegal FOI fee regime. We will not pay for information that the public already pays for. We will not support a system that perpetuates an outrageous infringement of citizen rights. The legislation was gutted in 2003 and it is being gutted again. More generally the number of requests from journalists from all news organisations in Ireland will fall as a result of these amendments, and the resulting efforts to shine a light on the administration of the State will certainly deteriorate. And secrecy will prevail.
Minister Howlin will likely say “but we’re bringing more bodies than ever before into the FOI regime”. Great Minister, but we won’t have the ability or resources to FOI them. But then I think you already know that. If Mr Howlin was being honest in his so-called reform, he would simply repeal the legislation entirely and be done with it. Open data will be plugged – but open data regimes only release information the Government wants to release.
This blog was started 4 years ago with the pro bono objective of maximising the rights of citizens and journalists to access information from official sources. Within our rights to access information we used the now well known FOI Act 1997/2003, the Access to Information on the Environment Regulations 2007/2011, the UK FOI act, the United States FOIA 5 USC § 552, and the EU’s Regulation 1049/2001.
During that time we submitted over 200 access to information requests, funded by you to the tune of thousands of euro, while also arguing that the fee regime was wrong. As time went on we developed new techniques for seeking data rather than paper, techniques to obtain large amounts of information with a single request, included billions of euro of previously undisclosed public expenditure. We became known for the techniques we were using, and have trained journalists in Ireland on using those techniques, along with training journalists in Serbia, Croatia, Hungary and Spain. The data and documents we obtained made headlines in almost every Irish newspaper, often in many newspapers at the same time. When you see documents like Ireland’s application for a bailout, it was this blog that got it.
We also scanned and made publicly available for the first time historic but important documents. These included the Beef Tribunal Report (almost 1,000 pages), the Glackin Report, and many others.
When those bodies appealed to the High Court we made lengthy submissions throughout the process arguing that they were in fact public authorities. We created legal precedent around the implementation of the AIE Regulations in National Asset Management Agency -v- Commissioner for Environmental Information [2013] IEHC 86, when the High Court agreed that NAMA was in fact a public authority. When NAMA sought a stay on that judgment pending a Supreme Court appeal, we argued (among other things) before the court that such a stay if granted would be a breach of the State’s obligations under the Aarhus Convention by breaching our right to a timely judicial process. The court agreed, and NAMA appealed that to the Supreme Court. Just three weeks ago we asked the Supreme Court for an expedited listing in the case, which was also granted.
All efforts on this case were those of just two citizens, Fred Logue and me, acting in our spare time to try and vindicate ours – and the public’s – right to access information. These are rights we believe are enshrined in our rights to freedom of expression via the European Convention on Human Rights.
Back in July we promised you we would keep an eye on the passage of the FOI Bill 2013. Before that, we made detailed submissions to the Oireachtas Finance committee, both in person and in writing about the original FOI heads of bill. We also participated with the Department of Public Expenditure and Reform (DPER) in an external working group in an effort to make the FOI process (not the law itself) better.
Today we had a look at new amendments DPER proposes to make to the Bill. They are nothing short of staggering. In some ways we are going so far back that we might as well not have an FOI Act in the first place.
First is the changes to Section 12:
This provision kills all requests containing a request for more than one record from more than one division within a public authority. It’s also a proxy fee increase. If you ask for four things from different divisions of the same body, your request fee jumps from €15 to €60. 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.
This provision basically means that you can be charged anything for, well, anything. It gives discretion to officials to charge for moving a mouse or typing on a keyboard. If a public body wishes it, this will kill most FOI requests.
Is this the end of FOI in Ireland, should these amendments pass? Effectively, yes.
And why, you might ask, are all these new and significant amendments appearing now, just before Committee Stage? A cynic would suggest these changes were well considered in advance and are being introduced at the end of the process in order to sneak them in. But we’re not cynical, are we?
Here’s the full list of proposed amendments from DPER:
Courts.ie is a pretty difficult website to navigate. As government-type websites go, it probably has more information than you might expect. There is lots of room for improvement though. Apparently, in line with guidance from the Data Protection Commissioner, Courts.ie blocks Google from indexing its website. This relates to the so-called “right to be forgotten”.
However, access to information rights are not limited to access to government documents via FOI or AIE, they also extend to courts documents. In Ireland the system is positively Victorian.
A quick examination of the Courts Robots.txt file tells us how the indexing works. Robots.txt is the file that tells search engines what they can and can’t index. Here’s the Courts one:
User-agent: *
Disallow: /legaldiary.nsf/
User-agent: *
Disallow: /judgments.nsf/
User-agent: *
Disallow: /LegalDiary.NSF/
Which basically tells Google to feck off from the legal diary and judgments. The text that appears in these pages won’t appear on Google search results. This makes tracking Courts.ie all the more difficult, but also all the more essential, particularly for journalists.
For example:
These cases, filed on October 21, apparently involving IBRC (formerly Anglo Irish Bank) board members Alan Dukes and Mike Aynsley vs Independent News & Media, look to be of some news interest.
Tracking court filings is one of the basics of journalism, it’s a shame the Courts website doesn’t make it easier.
In another turn of events relevant to Aarhus Convention and access to information nerds, today Chief Justice Susan Denham granted an expedited listing for NAMA vs Office of the Commissioner for Environmental Information (OCEI).
The AIE request in the matter was sent by me in early 2010, and 44 months later the issue at hand – whether NAMA is a public authority for the purposes of the Regulations – is still not answered. We argued that such a delay was at odds with the Aarhus Convention’s requirement for a timely judicial process. For its part, counsel for NAMA Brian Murray SC made similar arguments, saying that NAMA had a significant interest in the case and the timeliness of the process was at issue. NAMA applied for an expedited listing – in a slight change of tack from previous hearings. In a submission made in the Supreme Court case earlier this year, we put it to the court that NAMA had in fact frustrated the process by taking a narrow view of the initial request (as the High Court had determined) and had acted in bad faith.
Chief Justice Denham said that the case would be heard in this term (before Christmas) if a date became available, but failing that it would be early in the new term – most likely January or February of 2014. Increasingly the Aarhus Convention is being noted in Irish court cases, and we emphasised in our submission that the Aarhus Convention was essentially being breached due to the delays in this case.
This is the submission we handed to the Chief Justice this morning outlining arguments in relation to delays relevant to Aarhus cases.
This comes from an anonymous Twitter account – @QuinnAnglo – so all the usual provisos apply.
The tweeter in question claims this document to be the Statement of Affairs of IBRC before the liquidation of the company in February 2013. It includes a list of creditors (though not depositors – as Noonan intervened on that one).
The Statement of Affairs was handed over to the Department of Finance recently and took some 8 months to produce. Some hedge funds are investigating if the bank’s insolvency was contrived and are considering taking legal action.
The account has been mentioning it to various journalists on Twitter:
