Category: Comment

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.

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.

Back in March 2011, just as the new government came in, I blogged about the programme for government.

…I trust not the words of politicians, but their actions. I will be closely watching how things are done, and indeed if necessary lobbying for greater transparency or changes to proposed legislation where I think such changes are flawed, or do not go far enough.

That scepticism, it turns out, was well placed. Now I take into account that no new government, no matter how well intentioned, can achieve legislative reform within the 14 months since March 2011. But could they have done more? Definitely.

Let’s take one example, which clearly is the focus of this blog, The Freedom of Information Act. The Programme for Government promised:

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.

Including:

We will amend the Official Secrets Act, retaining a criminal sanction only for breaches which involve a serious threat to the vital interests of the state.

The first thing the government set about doing was establishing the Department of Public Expenditure and Reform. This Department, headed by Brendan Howlin, would take over responsibility for the FOI Act from the Department of Finance. So let’s focus on the core promises of reform promised by Howlin:

We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government

We will extend its remit to other public bodies including the administrative side of the Garda Síochána

While I understand that some 14 months later the Minister has a Heads of Bill drafted (that he doesn’t seem to have consulted civil society on at all) it seems a bit odd we have waited this long. Now Mr Howlin might retort that he wants to bring substantial reform via an FOI amendment, and that takes time, and he may have a point. But there is also this. Both of the precise reforms he has mentioned, and has mentioned persistently in PQs since March 2011, could be achieved without amendment at all.

If Howlin wanted to remove the fees and reduce them to zero, all that is required is a signature. Back in 2003 when the fees were introduced it was done using a Statutory Instrument (SI 264/2003). All that is needed is:

1) Copy and paste SI 264/2003
2) Where a euro figure is mentioned change it to €0
3) Sign it

Job done.

Next on the prescribed bodies. What about:

1) Copy and paste any of the dozen or more SIs where the Minister has the power to add bodies as prescribed under the Act
2) Add a list of bodies such as the NTMA, the Central Bank, etc.
3) Sign it

Job done.

Total time taken, probably less than 10 minutes. Total time it’s taken thus far: 14 months. And of course once the 10 minutes are up, you could spend the next 15 months drafting a new Bill to radically improve FOI overall, or bring in other legislation that was promised, like amending or repealing the Official Secrets Act, or Whistleblowers and Lobbying legislation. (I do appreciate it is a little more complicated than this, but not much).

Back on March 8 journalist Chris Lowry wrote an article for the Irish Independent about Celtic Football Club. The article was an opinion piece about Rangers and Celtic, and how both need each other to survive. He concluded:

But actually, without Rangers, the whole house of cards could collapse. Celtic would be the hardest hit. What would point of them if their fans had no pantomime villain to boo?

What, come to think of it, would be the point of Scottish football?

Discuss.

The next day on March 9, IN&M minority shareholder Dermot Desmond (a long friend of this blog) sent a letter to then IN&M chief executive Gavin O’Reilly. In it he complained about the above mentioned article saying:

I was very disappointed to read the above article in the opinion section of the Irish Independent website yesterday. The high standards of journalism, that the IN&M claim to uphold, were clearly ignored when this article was published. It is frankly a disgusting piece of journalism that does a disservice to the IN&M Group. This type of gutter press is not what I would have expected from a company in which I have invested a substantial sum of money.

And concludes:

Mr Lowry’s article is not based on fact. Therefore, any response from you to the effect that “this is ‘fair comment”‘ simply will not stand up. I am calling on you to retract this opinion piece without delay and to issue an apology to both clubs. In the absence of a suitable apology, I will be recommending that Celtic FC make a formal complaint based on incitement to hatred.

Of course, as Mr Desmond admits, he is a significant shareholder in Celtic FC. After reading of Denis O’Brien’s spokesman James Morrissey’s letter to Karl Brophy, one has to wonder just how often current IN&M shareholders Dermot Desmond and Denis O’Brien (or people acting on their behalf) are sending letters like this to management, or indeed to individual journalists working at Independent Newspapers.

Thanks to a reader, here is Dermot Desmond’s letter, on the paper of IIU, his investment company:

I wonder what they chatted about? Mr Cowen’s diary entry for May 1, 2009: