On Howlin, FOI reform and facts

We were very interested to read a blog post/speech by Public Expenditure & Reform Minister Brendan Howlin yesterday. It contains some very curious statements, and we assume the blog post was not actually written by Howlin (we’d be happy to find out), but rather by recently appointed press officer(s).

The post refers indirectly to this blog and to me, somewhat unflatteringly.

Indeed, on This Week on RTE Radio at the end of last year, two prominent FOI experts essentially found nothing positive to say about the new Freedom of Information Act in the course of an extended discussion on the Act.

Of course, a propensity to criticise often seems inherent in such opinion formers – given the perfectly understandable need to continue to sustain and promote their causes.

I don’t think anyone in political life – certainly no-one in political life for the length of time I have – would expect plaudits to replace the usual brickbats on such a contentious issue as FOI.

Anyways I’ll keep this brief. But before you start, keep this in mind: In 2011 after coming to power, the Government promised to restore the FOI Act – this would mean abolishing FOI fees altogether. This promise was and is broken. Appeal fees remain.

Anyways: the claim in the speech is centred on this statement:

“…what is disappointing is the degree to which the real story at the heart of the FOI reforms is at risk of being lost… This is a story which even in broad brush strokes exemplifies real democratic reform in action:-“

To which we say: rubbish. Let’s take each point in turn:

Claim 1.The publication of the Government’s policy proposals for consultation and pre-legislative scrutiny which allowed a broad range of stakeholders feed in their views on how the legislation could be strengthened which were an important influence on the subsequent drafting of the Bill.

1. We were one of the stakeholders. We made submissions to the Oireachtas committee, in writing and in person. We also attended some of the hearings, or livetweeted the proceedings. In general the process was pointless. Civil society people came in, submissions were made, the committee wrote a report. I can’t see much of what the committee recommended (and in some places it contradicted itself) actually made it into the Bill. Of course I’d be happy if someone could point this out to me.

Claim 2: The very positive and constructive debate in the Oireachtas largely on a non-partisan and cross-party basis on the detailed provisions of the legislation and the important amendments that flowed from this examination of the Bill.

2. Again. I can’t see much that happened here either. Can you point us to some good examples? The most controversial elements of the Bill – the definition of data, the retention of fees, the definition of public authority, were kept the same throughout.

Claim 3: The establishment of an expert external group involving FOI advocates and FOI experts to advise on the practical measures to improve the operation of our FOI regime. The subsequent Code of Practice for FOI for public bodies drew heavily on this group’s recommendations.

Yea, we were on that external group too. We chatted several times and wrote a report (we didn’t ask for, get or want any money for this work). Whether the actual Code of Practice will be implemented remains to be seen.

Claim 4: The engagement with civil society representatives through the Open Government Partnership (OGP) process on the case for change in relation to fees and the concrete result which followed.

This is an interesting claim and one that requires more explanation.

It glosses over how the fee issue became an issue at all. That an amendment to increase fees was inserted in November 2013 at committee stage, that it was never mentioned for the previous 18 months despite the Department carrying out a survey on the issue in 2012, that it did not appear in the draft heads of bill or in the Bill itself (making a complete mockery of all the vaunted pre-legislative scrutiny processes mentioned earlier). Or that over 3 days that Department and the Minister were ridiculed by civil society (including us) for relying on a) faulty research to justify fees b) subjected to criticism by several international NGOs c) that the premise for fees being retained was false and d) that the fees were probably illegal. And that the Minister was then forced through sheer embarrassment to withdraw the amendment.

No doubt the Department felt that this amendment could be simply added, and it wouldn’t be noticed. The insertion of that amendment paints a truer picture of the real intentions of mandarins than any press statement or speech by Howlin ever could.

That the Government spent 3 days putting out erroneous (if not outright bogus) press statements, and where Ministers, including the Taoiseach, ridiculed us as essentially “crazies” for attacking the increase in fees also represents a more accurate picture of how this really happened.

Is this an example of “real democratic reform in action”, as Howlin claims?

If you count broken promises and underhanded tactics to undermine the Bill entirely by increasing fees, and then u-turning on that issue when it becomes politically difficult, then yes, it is a perfect example of democratic reform in action.