Author: Gavin Sheridan

FOI reform – what is proposed?

Two of the more significant changes made by Fianna Fail to the FOI Act in 2003 were: the introduction of charges for FOI requests and appeals, and the lengthening of the five year rule to ten years under Section 19 of the Act, among others. Indeed the latter proved particularly controversial at the time because the five years were set to begin to expire in 2003. Though government records including Cabinet records began to become available in 2008.

But having reneged on the promise over removing the fees, what is the Government now proposing to make good on? They’ve given us some details in advance of the legislation being published. So here is what we know:

1) The prescriptive list of bodies subject to the Act is to go. Instead will come a broad definition of what a public body is, perhaps akin to the AIE legislation (though what that wording itself means is going through the High Court in relation to NAMA vs the Commissioner for Environmental Information).

2) Any new exemptions will be listed in a schedule with the Act in relation to certain public bodies. This can be added to via Ministerial Order rather than amendment.

3) Non-statutory bodies that the Minister chooses to fall under FOI and don’t fall under the public body definition in 1) will be listed in a separate schedule.

4) It is not proposed that the Freedom of Information Act will be extended to commercial state bodies – other than where they provide services on behalf of public bodies. This means that CIE, Bord Gais, the ESB, Bord Na Mona and others will remain outside FOI. The stated reason for this is commercial sensitivities – a rather spurious reason given Section 27 of the Act.

5) There will be a lead-in time before new bodies come under FOI, to allow them prepare for the change. The retrospective nature of access to non-personal records will depend on the body concerned.

And now for individual Sections:

Section 6 (11) (b)
This is a repeal of a section added in 2003. It *seems* technical in nature.

Section 19 Meetings of the Government
The Minister seems to be proposing either to amend or repeal this portion – (3) (b) refers to the 10 year period after which Government records can be obtained. The Minister wants to bring it back to five years, as per the 1997 legislation. This is partially fulfilling the promise to restore FOI to the pre 2003 position.

Section 20 Deliberations of public bodies
In 2003 this section was strengthened by allowing the use of certificates to say the deliberate process was ongoing. This meant that no appeal was possible in relation to the records sought. The proposal is the repeal the amendments made in 2003.

Section 24 Security, defence and international relations
The proposal is to narrow the scope of mandatory exemptions (often used in relation to Northern Ireland related records) and also to restore the harm test that existed in the 1997 legislation. The note says: “The absolute exemption for records relating to the
tactics, strategy or operations of the Defence Forces and certain diplomatic communications will be removed and made subject to a harm test. The mandatory exemption will remain for highly sensitive confidential communications relating for example to negotiations between States.” It will be extended to the Defence Forces, it appears via 2) above.

Section 46 Restriction of Act
The proposal here seems to only related to (d) (a) “a record held by a public body relating to the costing, assessment or consideration of any proposal of a political party carried out for or on behalf of that party”. The proposal is to repeal, which should mean (I think) that the position where written promises made to independent TDs while a coalition is being formed will now be subject to the Act.

Section 47 Fees
This section will remain (specifically (6)(a)), and the Minister will retain the power to increase or decrease fees via Ministerial Order. It is proposed the fees will be changed via Ministerial Order/SI, and not by amendment. The Minister has chosen to retain the €15 upfront fee for non-personal requests, while reducing internal review to €30 and appeal to the commissioner to €50.

The Beef Tribunal report

Besides filing lots of FOI and AIE requests, thestory.ie is always interested in important reports. Some are harder to find than others. In the past we have published the (almost forgotten) Ansbacher Report in its entirety, the Glackin Report (final), which until it was published digitally here was only available in certain libraries. The Beef Tribunal was always on the list and today I can publish the report in (almost) its entirety. There about 19 pages left to scan.

I’ve published it over here in three parts. You can also download the full thing by expanding your view and clicking on ‘download original PDF’. I hope the digitisation of the report helps future students of history, students of corruption, academics and of course journalists.

Minister for Finance diary 1999

As part of an ongoing process. This is the appointments diary for Finance Minister Charlie McCreevy for 1999. It contains a number of interesting meetings, including two with Treasury Holdings, one with Jerry Conlan and one with Michael Fingleton.



The FOI process – a note of praise

It isn’t often here at thestory.ie that we feel in a position to praise a government body for how they handle an FOI request.

All too often there’s something odd about the search and retrieval fee, or the request comes in right at the end (or after) the 20 day period by which requests should be replied to. Or you ask for something in digital format and you get hundreds of printed pages in the post, sent by registered mail (crazily swallowing up a large portion of the €15 fee you paid in the first place). Or the FOI officer misapplies an exemption, or misinterprets their responsibilities, fails to apply a public interest test, fails to give a schedule of records or… I could go on.

Too often a system that’s supposed to be about transparency and openness, active citzenship, open government and all that good stuff, ends up becoming adversarial – a battle of wills between a requester and an administration that all too often sees access to information as a chore rather than as something that benefits us all, citizens and public bodies alike.

So credit where it’s due.

I sent a request two weeks ago to the Department of the Environment. To my astonishment I received two elements of my request back long before the working 20 days were up (This is how it’s supposed to work, often there seems to be sit-out-the-20-days policy, regardless of whether the information is ready). In the three years I’ve been doing FOIs, this is a rare event.

Not alone that, I got it all digitally by email, as requested, including a schedule of records and what exemptions were applied. This was quickly followed by the next element of the request from a different division, with similar results. A third element of the request was then carefully handled in terms of seeking to explain a difficulty with a portion of my request and suggesting an alternative path.

This is how FOI is supposed to work. If there were an FOI gold star for DECLG, I’d give it.

So to the FOI officers, including Mary Boothman and Noel Prunty, and all the good people at the Department of the Environment – cheers! 🙂

Minister for Environment diary 2012

Part of an ongoing process. This is the appointments diary of Environment Minister Phil Hogan from 2012. Some entries were deleted as they related to Parliamentary matters (s.22) and personal information of parties other than the requester (s.28)



Previously:

Minister for Environment Diary 2011
Minister for Environment Diary 2010
Minister for Environment Diary 2009
Minister for Environment Diary 1998

Minister for Environment diary 2011

Part of an ongoing process. This is the appointments diary of Environment Minister Phil Hogan from when he became Minister in March 2011 to December 2011. Some entries were deleted as they related to Parliamentary matters (s.22) and personal information of parties other than the requester (s.28)



Government reneges on FOI promises

Freedom of information is central to our modern concept of a functioning democracy. Charging a fee for freedom of information flies in the face of that concept and is outrageous.

So said current Social Protection Minister Joan Burton back in 2003. I couldn’t agree more. But now the government of which she is a part is reneging on promises to restore the FOI Act to pre the 2003 amendment.

Readers will recall that back in March 2011 I blogged about the programme for government which committed the new government to the following reforms:

We will legislate to restore the Freedom of Information Act to what it was before it was undermined 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.

At the time I expressed some doubt, adding that it is only worth believing what politicians do, not what they say.

Last month I returned to the question, and asked why, if the government was so committed to reform, had they not simply got rid of the fees and added more bodies using Ministerial Orders rather than an amendment (or do one first and then the other).

Well we seem to have our answer. My doubts and cynicism were proven correct. The government won’t be restoring the FOI Act to what it was before. Politicians and broken promises, who’d have thought?

We learned yesterday that the punitive €15 for requests is to remain, the internal review will decline to €30 from €75 and appeals to the Information Commissioner will decline from €150 to €50. These are all punitive charges and none should exist, but worst of all is the €15, which acts as a barrier to putting requests in in the first instance. It leaves Irish citizens in the rather ridiculous position of being able to request information from the UK for free (they don’t charge), despite us not being citizens of that country, but in our country we must pay for our own information.

And just to refresh our memories, what exactly have our politicians been saying about this FOI reform since the inception of the new government:

Brendan Howlin, March 15 2011:

We will restore freedom of information provisions

Brendan Howlin, March 31, 2011

We will restore the Freedom of Information Act to what it was before it was filleted by the previous Government, and we will extend it to other bodies substantially funded by the public purse

Brendan Howlin, September 22, 2011

…an amendment to the Freedom of Information Act to restore the position that existed prior to the enactment of recent changes

Brendan Howlin, April 19 2012

A freedom of information (amendment) Bill will also be introduced this year. I have circulated my initial thoughts on that Bill to the Government. My objective is to undo the harm done by the Freedom of Information (Amendment) Act 2003

Brendan Howlin, June 6 2012

The restoration and extension of Freedom of Information (FOI) aims, in line with the Programme for Government commitment, to reverse the substantive restrictions to FOI introduced in 2003 and to extend FOI to all public bodies

Enda Kenny, March 15 2011

We will legislate to restore the previous position in regard to the Freedom of Information Act and we will extend the remit of that Act and of the Ombudsman Act

Enda Kenny, September 14, 2011

That is what the Freedom of Information Act was introduced for by the Fine Gael-Labour Government in previous years. We will make changes to it in due course because the Deputy’s crowd tried to restrict it even further.

Or let’s go back a little further. Back in 2003 Enda Kenny said the following in relation to the impending FOI amendment:

“There has been no consultation with those who use the Act; 23% of FOI requests come from journalists bu the NUJ has not been consulted.”

Sounds familiar. Or in February 2003:

“Fine Gael will commit itself, when in Government, to restoring the position to that set out in the 1997 Act”

And going back to Joan Burton in 2003:

“International evidence clearly demonstrates that such charges are a deterrent to public access to government documents”

The current Information Commissioner, who appears to have gone along with the proposal to keep the €15 fee, said in 2003 that the fees would be a “massive disincentive” to members of the public. She said:

“these recent developments may have long-term negative effects for accountability”

In the UK, the Commons just recently completed a review of their FOI Act, and rejected the notion of imposing fees saying that the drawbacks of fees outweigh the benefits.

I will say this: the €15 punitive fee must be removed. To all the readers of this blog, politicians, civil servants and journalists included, this fee must be removed. And if the government refuses to remove it, we must force them to remove it.

NAMA case first day

The Irish Times reports today on the stuff that happened in the High Court yesterday (though references to Freedom of Information are confusing, the case is not concerned with the FOI Act, but is about access to information generally).

The case will get underway again this morning but I wanted to make a couple of observations on what happened yesterday.

First, Brian Murray SC (representing NAMA) repeatedly emphasised that if my and the Commissioner’s reading of the legislation was correct, it would have (in suitably dark tones) bring “a whole swathe” of bodies under the Access to Information on the Environment (AIE) regime. He even listed bodies “like the Central Bank” which could be subject to such onerous requests. (The Central Bank is in fact already under the AIE regime), or, horror of horrors, bodies in the semi-State sector (CIE, Bord Gais and the ESB are already in fact covered by the AIE regime) or even the DPP (which may fall under the judicial bodies exemption), but even if it did, imagine a public body like the DPP having to answer AIE requests? Terrible stuff.

Much of the argument centered on what “includes” or “ambiguous” means and how the legislation should be interpreted. Niamh Hyland, for the Commissioner, used mine and Fred’s logical construction that public authority means X and includes Y, where X is the list of bodies in a) to c) and Y is the list of bodies in (i) to (vii) and that the legislation should be interpreted as the Commissioner outlined in her decision.