Rodney Breen – TheStory.ie

It's Not the Money, It's the Principle

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.

777 days and waiting … OFMDFM in no hurry to answer FOIs

Northern Ireland’s Office of the First Minister and Deputy First Minister (OFMDFM) record on Freedom of Information turns out to be a lot worse than the public have been aware of – with one request still unanswered after 777 days.

The Department hit the headlines last July when a requester was made wait 320 days for a reply. But figures just disclosed under FOI show the real picture is far worse, with five requests from 2011 still without a proper response and a further three which went without a reply for over two years.

The longest outstanding request is one from March 2011, a media enquiry about ‘Expenditure for Account Codes 2009/10’, which so far is lying unanswered for 26 months – a whopping total of 777 days. Another media enquiry, on credit card expenditure, is waiting for a response since July 2011 (674 days). A public request for titles of departmental files should have been answered 638 days ago, and media requests about ‘Correspondence between First Minister & named individual’ (594 days) and ministerial drivers (586 days) are also unanswered.

Among the ten which took more than a year – mostly answered within the last few weeks – were ones on Appointment of Consultant / NI Water Review Team (763 days), NI Travel Expenses (721 days), Properties outside Northern Ireland (742 days), and Ministerial Briefs (638 days). There were also three requests about Special Advisors, two of which were from a public representative.

In total, there were 97 requests in 2011 alone which were not answered in time. There is of course no guarantee that the responses, once provided, were adequate. Yet some of these ought in principle have been easy to respond to quickly, even with a refusal.

These new revelations will increase concerns that the Department, which was the subject of one fifth of all complaints to the Information Commissioner about Northern Ireland government departments, and which has been monitored by the Commissioner’s Office over its poor performance in responding, is failing to take Freedom of Information seriously.

Speaking to the Northern Ireland Assembly last year, Deputy First Minister Martin McGuinness insisted that his department ‘compares favourably with that of other jurisdictions’. With the Commissioner’s monitoring report due any day now, transparency advocates will be watching with great concern to see whether the OFMDFM shows any signs of a real commitment to change.

Most of this information is available in the Department’s response to a Freedom of Information request at WhatDoTheyKnow.com.

Decisions, Decisions

Thestory.ie would like to welcome a guest post from Rodney Breen of foireland.blogspot.ie

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There’s theory, and then there’s reality. In 2004, I was working for a British university, preparing the staff for the Freedom of Information Act due to come into effect on the following 1st January. One question people regularly asked was this: how much do we have to reveal about our contracts? Value for money seemed to require maximum disclosure. But how would our commercial relationships survive if we told the public anything they wanted to know?

The Lord Chancellor’s office, which introduced the new Law, provided guidance on how they thought it should work. So did the Information Commissioner, who would monitor its operation. The problem was, it was all theoretical. What we needed to know was how it would be interpreted in a real case.

Eventually, somebody appealed to the Information Commissioner for a decision. The Tate Gallery had commissioned an artist to produce a piece of work. Someone asked how much it had cost; the Gallery refused, saying it would damage their ability to negotiate contracts. The Commissioner looked at the evidence and concluded it would not. We had our answer: total amounts of contracts, at least, should be public.

For the professional FOI officer, and for the serious requester, Decision Notices are a hugely important resource. They show how the law is interpreted in real life cases. It’s the difference between looking at a car in the brochure and taking it for a spin. The UK Information Commissioner publishes all decisions shortly after they are completed. So does the Scottish Commissioner, who also publishes a list of cases currently under review.

When I began looking at how Freedom of Information works in Ireland, one of the first things I did was look for decision notices. To my astonishment, there were very few: the Irish Information Commissioner publishes only a selection of decisions. With fewer appeals because of the high fees, the result is a much smaller base of information to draw on. The Scottish Commissioner has published 1,568 decisions in just over eight years; in Ireland, after fifteen years, we have just 435.

I contacted the Commissioner’s Office to ask why. It took some time to get a reply:

Decisions are published on the website on a quarterly basis. The reason being that most decisions are category 1 and usually do not contain anything of significant value. At the end of each quarter the senior investigator will review all decisions made within the time period and decide which ones to publish. All Category 2 and 3 decisions are published. … The vast majority of decisions are Category 1. No Category 3 decisions were made in 2011, or 2012 thus far.

I pressed them to explain what the difference was between Categories 1, 2 and 3. Finally, I got an answer:

An internal system of rating decisions and identifying key decisions has operated in OIC for a number of years.

3 rating is a key decision which is identified as having high value and interest because it sets an important precedent, or clarification of the Commissioner’s stance on a provision of the Act, and/or breaks new ground.

2 rating is a decision of importance because of legal research carried out, or an issue discussed, which had not received in-depth treatment heretofore, or involving examination of records having significant public interest whilst not necessarily departing from the Commissioner’s published position on the issues arising.

1 (the majority of decisions) rating is a decision which broadly follows the Commissioner’s previous findings on the exemption(s) at issue and which is of interest primarily to the parties involved.

To me, this seems completely wrong.

It seems to be entirely down to the Commissioner’s staff to decide whether they are of interest. How can they tell? The experience of Freedom of Information tells us that what public bodies think are of interest is often very different from what people actually want to know.

It is absolutely extraordinary that an organization devoted to transparency seems so uninterested in disclosing its own workings. If we can’t see their decisions, can we be confident they are getting it right? Notices allow us to see that the Commissioner works in a fair and rational manner.

Decisions that don’t set a precedent can be just as important as those that do. If public bodies make the same mistakes, we may never know because the decisions won’t be published. Seeing the full range of decisions gives us a picture of how they are performing, and which ones perform best.

We need to see all the decisions made, on our behalf, by the Commissioner. Uploading all the unpublished ones could hardly take more than a couple of days. They should be published immediately and routinely. We also need them as PDFs, so they can be easily downloaded and studied.

I will be writing to the Information Commissioner shortly to ask for all decisions to be published, as a matter of urgency, and for all future decisions to be published as a matter of urgency. We’ll let you know how we get on.