TheStory.ie

The CJEU has issued a very interesting judgment (Case C‑486/12) in the context of the Data Protection regime.

A dispute arose when a Dutch public authority wished to charge €12.80 to a person for seeking information about themselves under the Dutch Data Protection law. The person in question refused to pay the fee and appealed to court (and as an aside they also attempted to FOI their data instead). The Dutch court then sought to refer some questions to the CJEU, namely:

1. Does the provision of access [to data] (pursuant to Article 79(2) of the Wet GBA) constitute compliance with the obligation [to communicate] data undergoing processing as referred to in the second indent of Article 12(a) of Directive [95/46/EC]?

2. Does Article 12(a) of [that directive] preclude the levying of fees in respect of the communication, by means of a transcript from the municipal database, of the personal data undergoing processing?

3. If Question 2 is to be answered in the negative: is the levying of the present fee excessive [for the purposes of] Article 12(a) of [that directive]?’

The court’s ruling is particularly interesting in light of Ireland’s strange and unusual regime of charging for FOI requests, and whether that might be an infringement of the European Convention of Human Rights (or indeed the Charter). It also should impact how Ireland charges citizens for Data Protection requests themselves (€6.35). The court found:

29. In view of the importance – highlighted in recitals 2 and 10 in the preamble to Directive 95/46 – of protecting privacy, emphasised in the case-law of the Court (see Rijkeboer, paragraph 47 and the case-law cited) and enshrined in Article 8 of the Charter, the fees which may be levied under Article 12(a) of the directive may not be fixed at a level likely to constitute an obstacle to the exercise of the right of access guaranteed by that provision.

Here a direction connection is made between fees and the Charter of Fundamental Rights as enshrined in the European Treaties. It goes on:

30. It should be held that, for the purposes of applying Article 12(a) of Directive 95/46, where a national public authority levies a fee on an individual exercising the right to access personal data relating to him, the level of that fee should not exceed the cost of communicating such data. That upper limit does not prevent the Member States from fixing such fees at a lower level in order to ensure that all individuals retain an effective right to access such data.

This is similar to the regime that exists under the Aarhus Convention. In other words, no upfront fees, or search and retrieval fees, may apply to requests. In essence this means that no fees should now be charged for requests under the Data Protection Act. We have sought a response from the Irish Data Protection Commissioner, but imagine Ireland must legislate in light of this judgment.

As for FOI, I believe this further strengthens the case that FOI request charges in Ireland are illegal.

Access Info Europe and the Centre For Law and Democracy have called on the Irish government to abolish FOI fees entirely. In an open letter written to Public Expenditure and Reform Minister Brendan Howlin, Helen Darbishire from Access Info and Toby Mendel from the Centre for Law and Demcoracy wrote:

Various arguments have been put forward to justify charging up-front fees simply for making requests, none of which can be justified by reference to either international standards or comparative law and practice. Charging up-front fees for information requests violates international standards. It is clearly unacceptable to charge people to exercise a fundamental right. This is reflected in the Council of Europe Convention on Access to Official Documents, which expressly prohibits up-front charges for requests (Article 7(1)). Indeed, the drafters of that Convention considered and specifically
rejected a request from Ireland to allow for such charges.

Furthermore, charging up-front fees is out of step with other countries. Ireland is the only country in Europe to have mandatory up front charges for all FOI requests. The only other country which permits such charges is Malta, but these are not routinely applied. Even counting Malta, only 5% of 39 European countries and 16 of 95 countries worldwide (17%) charge fees, something campaigners in many of these countries are working to abolish. The problem is exacerbated by the high level of the Irish fee which, at €15, is higher than the fee charged in any other country that we are aware of.

They continue:

International standards also govern the fees that may be charged for satisfying a request. The UN Human Rights Committee has indicated that in no circumstances may fees be charged which would “constitute an unreasonable impediment to access to information” (2011 General Comment on Article 19, para. 19). The Council of Europe Convention only permits a fee to be charged “for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document” (Article 7(2)). In other words, only photocopying and postage charges are permitted.

And…

Arguments justifying the charging of costs other than photocopying and postage charges are flawed on three grounds.

First, information held by public authorities belongs to the public, having been created with taxpayers’ money.

Second, the cost of responding to requests is heavily correlated with the efficiency of public bodies’ record management systems. It is not appropriate to pass this on to members of the public exercising their right to know, which effectively rewards poor record management practices.

Third, charging high fees exerts a significant chilling effect on making requests, and there are strong public interest arguments against this, due to the significant benefits which flow from transparency. These include enabling democratic public oversight over government activity, identifying inefficiency, waste and corruption, contributing to better decision- making, and fostering greater public participation in and ownership of development activities, all of which result in savings to government, even if this is hard to quantify. Opening up government information has also been shown to make an important contribution to economic growth in knowledge-based economies, based on entrepreneurial reuse of public data. There is also 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.

Read the full letter here.

I’ve collected some of the best tweets from last week here: Any more suggestions let me know

We understand that in the cut and thrust of politics and public relations, the next stage in this process will be to paint opponents as irrational, crazy people who don’t know what they’re talking about. Such is the PR cycle, and spin is an essential part of what government does. This is precisely what’s happening now.

This blog has long held the view that we believe only what politicians do, not what they say. This is because they often change their minds. We said when the new government was elected in March 2011 that we had some doubts about whether it would proceed with the changes to the FOI Act they promised. That promise included the removal of upfront FOI fees entirely.

Our cynicism was proven correct. The government reneged on that promise. Therefore it would be logical for us now not to believe a single word that Minister Howlin, or any other Minister says, in relation to FOI reform. Only believe what they do.

We also want to remind Minister Pat Rabbitte what he said ten years ago. This was the Pat Rabbitte in opposition, not the Pat Rabbitte in government. Here is what Rabbitte said in 2003 (emphasis ours):

I do not intend to go over that ground again in detail, but I want to pick up on one or two points in the Bill. One of those is the proposed up-front fee for making freedom of information requests, which was brushed off by colleagues on the Government benches as a minor matter. It is not a minor matter. It is abundantly clear that the fee is primarily intended to discourage requests being made in the first instance; that is the point of it. Moreover, it will also alter the practice of providing information outside the Act. There will now be an incentive to tell the citizen to submit a formal request and pay the fee, rather than simply [1442] releasing information which should be in the public domain anyway. The term “freedom of information” will be a hollow one. The Act should, perhaps, be renamed “the information we want you to have, at a price, Act”.

We entirely agree with his position.

So what’s changed? People often refer to the process of saying one thing in opposition, and the opposite when in government, as “going native”. The Minister has claimed decreased resources being a factor. But we’ve nailed that canard already when it comes to upfront fees, so what’s the real reason?

Your guess is as good as ours.

Abolish FOI fees now.

As we expected, the Government has reacted to today’s media coverage of FOI and gone on the offensive. Yesterday included an embarrassing incident between the Department of Public Expenditure and Reform and internationally recognised experts on the rights to freedom of expression and access to information, ARTICLE 19.

Morning Ireland discussed it this morning (listen here), but suffice to say, ARTICLE 19 are strong opponents of the current and planned fee regime – “a violation of international law” doesn’t get much stronger.

To our amazement the Department had cited Article 19 as a source to justify fees.

The money quote:

“ARTICLE 19 understands that the Government of Ireland has issued a press release justifying the expansion of stringent fees on Freedom of Information Act requests by referring to the ARTICLE 19 Model Freedom of Information Law, developed in 1999. This justification represents a fundamental misunderstanding of both the Model Law and international law.

ARTICLE 19 strongly opposes the current Irish policy allowing for imposition of fees for making requests as well as the pending bill before the Dail to expand fees by allowing requests to be split and charged for each facet. We believe that it violates international law by placing unreasonable restrictions on the right of all persons to access information held by government bodies.

We note that following the adoption of the controversial amendments in 2003, the number of requests for non-personal information plummeted. This shows that the imposition of fees has had a profound affect on the right to information in Ireland.

The Irish Government position does not accurately reflect the text of the Model Law…”

It goes on:

We also note that this position is supported by the UN Human Rights Committee in General Comment 34 on Article 19 which states that “Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information.” Further, the Council of Europe Convention on Access to Official Documents states “A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document.” –

Anyways, the latest spin to emanate from the government was released earlier. Here’s the full release. But don’t jump to that link just yet – it’s so full of fanciful inaccuracies and misleading statements (surprise surprise), your head may explode.

But what we do want to thank the Government for though is compiling a list of countries that don’t charge for FOI upfront, among other things. Beware the Government’s list is oddly constructed – don’t let those green and red boxes fool you.

Let’s try this instead, by using the Government’s own data to help show you how patently ridiculous the Government’s claims are. And all we’re doing here is re-writing the Government’s own list in a new way, by listing all countries with no upfront fees. We’ve left out cases where there’s dispute, fees are or might be charged, or there’s a lack of clarity (or there’s no FOI law).

Let’s start with our EU neighbours

Estonia – no upfront fees
Slovenia – no upfront fees
Austria – no upfront fees
UK – no upfront fees
Sweden – no upfront fees
Bulgaria – no upfront fees
Hungary – no upfront fees
Norway – no upfront fees
Netherlands – no upfront fees
Romania – no upfront fees
Latvia – no upfront fees
Slovakia – no upfront fees
France – no upfront fees
Lithuania – no upfront fees
Denmark – no upfront fees
Greece – no upfront fees
Poland – no upfront fees
Italy – no upfront fees
Belgium – no upfront fees
Germany – no upfront fees
Croatia – no upfront fees
Finland – no upfront fees
Cyprus – left out

Now let’s move a little outside the European Union – these, say the Government, are also countries that don’t charge:

Serbia – no upfront fees (and rated the best FOI law in the world)
Georgia – no upfront fees
Russia – no upfront fees
Armenia – no upfront fees
Tunisia – no upfront fees
Montenegro – no upfront fees
Jordan – no upfront fees
Ukraine – no upfront fees
Azerbaijan – no upfront fees
Macedonia – no upfront fees
Moldova – no upfront fees
Kosvovo – no upfront fees
Kyrgyzstan – no upfront fees
Bosnia – no upfront fees

And a little further afield, where things take an interesting turn by comparison to us:

Colombia – no upfront fees
Rwanda – no upfront fees
Angola – no upfront fees
Panama – no upfront fees
Nepal – no upfront fees
Yemen – no upfront fees
Brazil – no upfront fees
Bangladesh – no upfront fees
Nicaragua – no upfront fees
Mexico – no upfront fees
Liberia – no upfront fees
Dominican Republic – no upfront fees
Guinea – no upfront fees
Cook Islands – no upfront fees
China – no upfront fees
Honduras – no upfront fees
Guatemala – no upfront fees
Peru – no upfront fees
Belize – no upfront fees
Jamaica – no upfront fees
Nigeria – no upfront fees
Uruguay – no upfront fees
Ecuador – no upfront fees
Mongolia – no upfront fees
Australia – no upfront fees

IRELAND – €15 to ask. €75 to appeal. €150 to appeal to the Commissioner. (The gov plans to reduce the last two, but eliminate none, and multiply the €15 depending on what you ask for. And don’t forget the €20.95 an hour search and retrieval fee once you’ve paid)

There’s your “international best practice” right there. Clearly we are not like any of these countries, we are a very special case, where we just can’t survive unless we charge citizens to exercise their rights.

More on this later…