Author: Gavin Sheridan

Now that the Government’s intention to proceed with the current fee regime seems clear (and indeed add new fee provisions) we should give our view on what his happening to FOI in Ireland. And unfortunately what we outline below is not an April Fool’s joke.

Back in 2009, TheStory.ie was established by myself and Mark Coughlan. We started this website for a few reasons, but one of the main ones was to obtain information from the Irish government in a systematic way using tools like the Freedom of Information Act (FOI).

We felt that FOI was being used in a very specific and narrow way, and in general was being used by journalists but not by the general public. We also felt that the implementation of the law was generally poor, largely because of the 2003 amendment to that law, and in general on how it is perceived by the people handling the requests. We committed to doing FOI in a new better way, and to publish any information we received on here.

Just after our first blog post, you, our readers asked to help with our effort. To that end you donated money to the cause, in order to fund our FOI requests – which is often an expensive and time consuming process (thanks to Ireland having FOI fees, and those fees being the highest in the world).

We used that money over the subsequent years to make requests, make appeals, pay for search and retrieval – and we’ve been quite successful. We argued the public’s case for transparency in NAMA at the High Court using AIE (a bit like FOI), and won (twice). We set precedents around the public interest override on personal information and on Cabinet records. In 5 years we sent over 200 requests, just in Ireland. We obtained never before seen documents from the ECB, and forced them to justify to the EU Ombudsman their refusal to release the Trichet/Lenihan letter. We used the US FOI Act, the British one, the European one, the ECB’s one and the Irish one.

During that time, the Fianna Fail administration fell. A new government was elected with promises of reform. One such proposal was to “restore the FOI Act” to it’s pre 2003 state. This was an indication that fees might be removed. But we were sceptical. And we were right – the promise was empty. A draft Bill appeared, then a pre-legislative process (in which we engaged extensively), then a full Bill appeared. Then a sneaky amendment appeared at Committee Stage that had never been mentioned before. And now we are at Report Stage, on the brink of passing a new law.

TheStory.ie for 4 years has used certain tactics in its FOI requests. These tactics have been developed because of how the current law operates and because of how poorly it’s implemented. These tactics and skills have, over that time, been passed on to other journalists, readers and citizens alike via blog posts and training to hundreds of people in person, over 1,000 subscribers and through more than 400,000 unique visits.

But now things are changing. Pretty much every method we developed to obtain access to information from government over the past 4 years are being legislated against.

We are somewhat flattered that the Government is probably drafting laws that target us – but we are also deeply concerned. Who benefits? The public certainly do not. Why would a government draft sections of a law to specifically target tactics used by a small blog?

Let’s go through two of these:

1. Multi-faceted requests

Because we were being charged €15 for every request, and because we were receiving donations from our readers, we were obliged to get as much information for every request as possible. This meant asking for multiple things in each request. This is called getting value for money. It would be remiss of us not to do this. Sounds reasonable, right?

The State’s reaction to us using this tactic has been categorical. An amendment to Section 12 of the Bill was drafted in secret, the wording of which had never appeared in any drafts in almost a year of pre-legislative scrutiny (in which we were involved). It was introduced at Committee Stage several months after the pre-legislative phase and months after the draft Bill was published. Here it was:

This is the State legislating against a tactic we at thestory.ie had successfully used and promoted for 4 years. And we only used it because of the unjustified €15 fee. If there was no fee, there would be no multi-faceted requests. Why did it appear so late in the process? Who proposed it? Who benefits from it? Who lobbied for it? Why was no one told about its drafting? What purpose does it serve? Does it serve the public interest?

Or is it an attempt by the State to prevent access to information, by blocking a workaround to the unjustified, and likely illegal, fee regime? We think it is, and have good reason to believe so, based on information we have seen. We also believe the multifaceted “issue” has been inflated to justify the addition of Section 12 (9).

2. Access to databases

In 2009 at the height of the John O’Donoghue scandal we sent our first request for a database. Not just parts of a database, but a whole one. And we wanted in a format like Excel. A request was sent to the Department of Arts, Sport and Tourism seeking the expense claims of everyone at the Department since the inception of the database – what is referred to as a datadump. We were refused, and spent over €200 of your money appealing that refusal.

Once it got to the Information Commissioner we reached a settlement with the Department and the data was released as asked. This was one of the first times an entire dataset was released, and with this knowledge we obtained dozens more databases, usually spending data, from several other public bodies, and made the entirety available online. This amount of State spending had never appeared online before in such detail or in such amounts. The data from An Garda Siochana and the HSE alone totalled nearly half a billion euro. We were trying to establish a precedent that any citizen could obtain raw data from a public authority.

When the FOI Bill was published last summer, Section 17 (4) appeared and again this had not come up during the pre-legislative phase. It came out of the blue when the Bill was published. Sound familiar?

Simon McGarr over at TuppEd pointed out the ridiculousness of the Section, as drafted:

(4) Where an FOI request relates to data which are contained in more than one record
held on an electronic device by the FOI body concerned—
(a) the FOI body shall not be required to take any step that involves the creation of
anything for the purpose of searching for, or extracting, records that did not exist
at the time of the making of the FOI request,
(b) subject to paragraph (a), the FOI body shall take reasonable steps to search for
and extract the records to which the request relates, having due regard to the steps
that would be considered reasonable if the records were held in paper format, and
whether or not such steps result in the creation of a new record,
(c) if the reasonable steps referred to in paragraph (b) result in the creation of a new
record, that record shall, for the purposes of considering whether or not such new
record should be disclosed in response to the request, be deemed to have been
created on the date of receipt of the FOI request,
(d) subject to this subsection, an FOI body is not required by this Act to take any
steps by way of manipulation, analysis, compilation or other processing of any
such records, or any data contained in records, held by the body.

Out of sheer embarrassment the State subsequently removed some elements of this Section – the bits that refer to “paper”. But the rest remain.

Again, a tactic we had repeatedly and successfully used over the past 4 years was being legislated against. This new provision, taken to its logical conclusion, prevents the type of requests we have been doing. And again we know it is probably us being targeted because we are among the only ones using the tactic (others using the tactic were journalists we shared knowledge with). Who drafted the section? Who does it benefit? Why was it drafted? What purpose does it serve? Who lobbied for it?

So in summary:

1. Try to get around upfront FOI fees by asking for more than one item in each request. Effectively outlawed.
2. Try to ask for databases as a method of getting more data from one request. Effectively outlawed.
3. Try to ask for email data using Outlook Exchange queries. Effectively outlawed.
4. Try to get more information using digital methods. Give more discretion to FOI officers to charge more.
5. Try to appeal unjustified decisions to the Information Commissioner. Multiplication of fees due to affects of 1).
6. Try to be an engaged citizen, interested in transparency. Do something. Legislated against.
7. Try to obtain information efficiently, be reasonable. Get horrendous search and retrieval estimates.

The media’s ability to scrutinise things like State spending and the rights to freedom of expression of the people of Ireland are being legislated against, and secrecy is prevailing.

Minister Howlin and others will say we’re being alarmist. But they would say that wouldn’t they?

They’re the ones legislating against the tactics we’ve been using.

Welcome to Ireland in 2014.