Category: FOIs

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.

In a series of statements, multiple NGOs today outlined their opposition both to the new fee components of the FOI Bill 2013, and the entire idea of upfront FOI fees.

Access Info Europe

One of the top access to information NGOs in Europe, Access Info Europe said that charging any upfront fee was the opposite of international best practice:

No other country in the European Union or the wider European region charges just for making a request for information.

“The standard is clear: there can be no charge made for exercising the fundamental right to ask for information from public bodies,” said Helen Darbishire, Executive Director of Access Info Europe.

The social and economic benefits of government transparency are huge. They include increased efficiency which in turn leads to reduction of costs. Sometimes an FOI request can expose corruption or waste and help point to areas where savings can be made. CSOs engage in policy development, journalists write stories, entrepreneurs develop businesses reusing government data. This is in addition to the importance in a democracy of the public knowing what its government is doing, something which it is impossible to put a price tag on.

The European Court of Human Rights has recognised that access to information is a fundamental right linked to the right to freedom of expression. The UN Human Rights Committee has confirmed this.

“We don’t charge people for exercising other rights, for example, the right to vote” added Darbishire, noting that many democratic processes are expensive, which is precisely why the public pays taxes. “To charge a fee for FOI requests is unacceptable double taxation” she added.

Transparency International Ireland

In a detailed statement, including:

‘There is no economic case for FOI fees. The argument that FOI costs too much to administer ignores the reality that the information revealed by use of FOI in the public interest over the past decades has saved the taxpayers millions,’ said TI Ireland’s Research Manager, Nuala Haughey.

‘Ireland is unique in Europe and virtually the world in charging up-front application fees for FOI in the first place. The current government promised to restore the damage done to FOI by the last administration but has failed to fully live up to this Programme for Government pledge. These latest and last minute proposals only add insult to injury and undermine the government’s wider commitments to open government.’

Open Knowledge Foundation (OKFN) Ireland

In a lengthy statement, including:

Charging for FOI requests, charges for multifaceted requests, and charging for ‘search and retrieval’ of the information present a barrier to citizens, limiting their rights, and prohibiting their ability to inform themselves about public policy. Inhibiting scrutiny will result in the non-disclosure of what should be public information. It is in the interest of everyone to increase participation and remove barriers to information which effects us all.

We call on the government to:

• Remove fees for all FOI requests and appeals.
• Allow multi-faceted FOI requests without additional charge.
• Remove fees charged for search and retrieval of information to fulfil FOI requests.

The lead Department for FOI in Ireland, the Department of Public Expenditure and Reform has issued a press statement outlining its position on the late-stage amendments to the FOI Bill. Unfortunately we don’t get an explanation of why many additions came so late in the process. Indeed, we don’t get much of anything besides some bullet points.

But one bullet point in particular on the fees issue struck us as a bit nonsensical. The Department said:

– FOI fees are an accepted feature of FOI legislation in several OECD countries -international best practice standards acknowledge the principle that countries can choose to levy a contribution towards the cost of providing FOI.

Really? That’s the first we’ve heard of it. Maybe the Department is talking about the concept of fees generally, and not the concept of upfront FOI fees that Ireland specialises in? Some countries do charge for the process of searching for and retrieving information. But only Ireland, Canada and Israel charge upfront for requests.

But citing “OECD members” struck us as odd too. According to the Department’s own website the OECD recommended that Ireland abolish upfront FOI fees in a 2008 Public Management Review. The report says:

The Freedom of Information (Amendment) Act of 2003 introduced up-front fees for requests and appeals (there are no charges for requests in relation to personal information) which seems to have reduced the number of information requests and which has de facto limited the impact of the original Act. In the interest of social cohesion and trust in government, greater efficiency and the fight against corruption and greater transparency should be an ongoing objective even if it can sometimes be uncomfortable and/or costly. The government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free and extend its reach to a wider range of state agencies, such as Vocational Education Committees (VECs). While user charges may limit frivolous requests (and therefore reduce burdens on the Public Service), they also serve as a disincentive to greater openness.

But the OECD is not the first international group to recommend the abolition of fees. The Council of Europe (CoE) through the Group of States against corruption (GRECO) recommended in its 2008 compliance report on Ireland (and not for the first time) consider abolishing upfront fees. Money quote:

With the adoption of the Freedom of Information Act and the connected modernisation process of public administration the Irish authorities provided for a more transparent administration and these moves were accordingly considered important by GRECO, as indicated in the Evaluation Report. However, the introduction of “up-front fees” in 2003 goes in the opposite direction…. GRECO very much regrets that the authorities have not come to a conclusion to abolish the “up front fees” and that it appears that the opinion of the Information Commissioner – who is responsible for keeping the Freedom of Information Act under review – has not been adhered to.

Does the “international best practice” argument hold water? Quite simply, no. In fact the Department has itself been told by international organisations that we’re out of line with the norm.

Last week it was agreed that Israel is reducing its fees, meaning that Ireland will have the glory of having the most expensive FOI regime in the world. Of course Ireland is in a very small group of 3 countries (Canada being the other) out of nearly 100 countries that charges citizens upfront for FOI requests.

International best practice – you’re having a laugh.

As part of an FOI request where we sought all briefing papers used by Minister Howlin and his staff at an Oireachtas Finance committee meeting earlier this year, we obtained this briefing note prepared for the Minister.

The note outlines the convoluted logic behind the Department’s thinking on FOI fees. Despite all evidence to the contrary, the Department continues to believe that fees solve problems, instead of creating them. As we pointed out in our submission to the same committee, charging fees is lazy. When the UK examined this issue in 2012 they reached perfectly rational positions such as:

The introduction of application fees would mean that those who explicitly relied on their statutory rights would pay, whereas those who sought information without invoking, or in ignorance of, their rights would not. This would create a two-­tier system.”

and the UK Information Commissioner:

“It is a bit rich to have public authorities saying, “We are assailed by unreasonable freedom of information requests”, when they do not have an adequate publication scheme, they have not got their act together in terms of records management and have a rotten website and so on. There are things that you can do before you ever get to charging.”

and the UK government:

“…charging for FOI requests would have an adverse impact on transparency and would
undermine the objectives of the Act…. a charge would be expensive to administer and
may result in increasing, rather than reducing, burdens on public authorities. This is
particularly the case where a nominal charge, rather than a much higher full­cost
recovery charge, is being considered.”

But in Ireland we have this:

Subsidies? All of a sudden the State is a champion of saving the taxpayer money. Funny that. Since the Act was introduced millions of euros of waste was uncovered, mainly by journalists. Remember FAS? FOI. Remember John O’Donoghue’s outrageous expenses? FOI. How much money is saved by transparency? Lots. And how much future waste has been averted because of the FOI Act? Probably levels well above all fees or costs for FOIs ever.

But the logic here is that the taxpayer is subsidising, well, taxpayers. Countries cost money to run. Democracy is messy. Access to information is a right and it is not within the gift of political regimes to add it or take it away on a whim whenever they feel like it – it is a fundamental right.

As for the figures cited, well where do you start?

Let’s take one.

Total FOI fees collected in 2011: €87,439.
Total cost of the website for EU2013.ie: €244,741 (as detailed by this blog)

Cost of administering the fee regime (processing cheques etc)? We have no idea because no one did a cost/benefit analysis (but it’s most likely costing more to administer upfront fees than the fees themselves bring in).

Here is the full briefing note, in all its contorted glory:

One of the most significant last-minute amendments to the FOI Bill 2013 is charging multiple times for what are known as multi-part or “multifaceted” requests.

What is a multi-faceted request?

This blog has used multifaceted requests in order to maximise the amount of information that can be obtained for the unjustifiable €15 charge. We have also demonstrated that technique to dozens of journalists in most of the national papers in Ireland and journalists working for RTE and TV3 over the past 3 years. Partly because of this activity, FOI officers began expressing concern at the number of new multi-faceted requests they were receiving.

An example of a multifaceted request which I did earlier this year to the Department of Public Expenditure and Reform was:

1) All papers prepared for and used at an Oireachtas committee meeting on January 10, 2013.

2) The appointments diary of the Secretary General of the Department since inception.

3) All communications or circulars issued to FOI officers in 2012. This should include minutes or records relating to any meeting involving three or more FOI officers in the possession of the Department, for 2011 and 2012.

4) A datadump, copy/export of, all expenses claimed by all staff as per the JD Edwards database in use by the Department, since inception. I request this data be released in an open, accessible format – CSV/XLS/XLSX.

5) A datadump of all Purchase Orders of any amount by the Department. I am aware that POs of €20,000 or above are on your website, however I am seeking POs of €19,999 or below.

Under the current regime this request cost €15 upfront – before you get to search and retrieval. Under the new costs regime it will cost upwards of €75, depending on how many divisions the request is split into. Let’s round it down to a 5 part request going to 4 divisions – €60. Or 4 times the current cost.

Did charging for multifaceted requests appear in the draft heads or the main Bill when published?

No. Nowhere. It didn’t come up in any of the much vaunted pre-legislative scrutiny (and as David Farrell points out, this makes a mockery of pre-legislative processes). It didn’t appear in the draft heads last year. It didn’t appear in the FOI Bill 2013 published earlier this year. It was put into a list of amendments at the very end of the legislative process.

As we have pointed out, cynics might suggest this is an attempt to get stuff people won’t like in at the last minute. We are cynics. The reason we are is that we know multifaceted requests were becoming an issue of concern to FOI officers as far back as July 2012. How do we know? We FOId it.

This email sent in July 2012 from DPER to a list of FOI officers in all the main line departments asks them to fill in a survey to see how the growth of multifaceted requests was “causing difficulties”.

So it was clear in Summer 2012 that the Department drafting the legislation was a) aware of the growth of multifaceted requests and b) wanted to find out from FOI officers how many they were getting. They got the results of the survey, but the charging for multifaceted requests never made it into the draft FOI bill later that summer. Nor did it make it into the main bill published earlier this year.

It arrived last week, out of the blue. And the solution to solve this multifaceted request problem was clear: charge for everything.

But aren’t multifaceted requests a strain on resources for public bodies?

When we started this blog we stated that since we were using the donations of the public to fund our FOI requests, we must seek maximum return for each €15 request. To do so we ensured that all requests were multifaceted.

If there was no €15 fee, we would not be doing multifaceted requests – we simply wouldn’t need to. The strain on resources is caused by the €15 fee, not by over zealous requesters.

What’s the solution?

Remove the fees.

It’s a long time coming.

Readers may recall that back in 2010, FAS closed their internal bulletin board after staff had been “posting nasty messages on the internal notice board about Rody Molloy, the deposed director-general”, according to then Senator Shane Ross.

In the article, Ross noted:

At least one fun-loving outsider tried to break into the staff intranet board. According to FAS, “an external internet blog posted the internal address of the bulletin board pages and sought access”. FAS proudly declares that it became aware of the attempted breach and stopped the rot.

This was not entirely true. What had actually happened was that this blog was being discussed, and linked to, from the FAS internal bulletin board. We saw it in our referral traffic, as this blog post outlines. We never attempted to “break into” it.

Of course what we actually did was request from FAS a copy of the bulletin board under FOI. Our request was phrased thusly:

1) All briefing documents related to the appearance by FAS staff, or their representatives, at the Public Accounts Committee hearings of February 2010.

2) A ‘datadump’ (MySQL export) of the entirety of the internal PHP bulletin board located at this address:

http://intra.fasoffice.com/phpbb/

3) A screengrab of the entire thread at http://intra.fasoffice.com/phpbb/viewtopic.php?t=11270. This will likely be in .jpeg format, or multiple jpegs, depending on the length of the thread.

4) A ‘datadump’ of the entirety of the Agency’s CORE database inasmuch as such data relates to expenses claimed.

FAS refused our request citing various sections including the not oft used ‘frivolous/vexatious’ component of Section 10. In their refusal to release the database, FAS used some rather spurious reasoning. They made an odd distinction between records and “official” records (no such distinction exists) and even accused us of not having the public interest at heart. Bless. In fact it’s worth reading the ‘rationale’, if you could call it that, in full:

My view is that this request has been made in order to undermine the work of FÁS and its staff and to add fuel to the ongoing media attention that FÁS have found itself in. It is reasonable to expect that FÁS staff have many views on the events that have taken place and it is also reasonable that FÁS staff should have some facility in which to air their views. This facility is the FÁS bulletin board. I do not consider it is unreasonable that such a facility be in place. Staff should be able to use this facility to express those views. The bulletin board is a very important communications tool for colleagues to assist each other with queries of a work nature in an informal environment. It provides instant access to answers that might otherwise take time, all done in an effort to provide an efficient and effective service to FÁS clients. Questions are raised and answered informally as this is the purpose of the bulletin board. It is also a communications tool for colleagues to debate issues among each other, work related and otherwise.

My opinion is that this request has not been made with the best interests of the public at heart. The rights provided by the FOI Act must not be abused by public bodies and in turn must not be abused by members of the public. I am satisfied that the request amounts to an abuse of the right of access and that it is made for a purpose other than to obtain access. In my opinion, all internal staff bulletin boards will cease to exist if it is widely known that they are available under the FOI act, an act that was set up to ensure transparency in public bodies relating to official information. I do not consider that it is necessary to show transparency in this area as the information cannot be deemed ‘official information’. There is no public interest in releasing this bulletin board. I do understand that the bulletin board might be ‘of interest’ to the public but there is a clear distinction between ‘of interest’ to the public and ‘in the public interest’ and it is very important not to confuse the two. In my opinion there is no public interest in the release of comments attributed to FÁS staff in relation to a variety of topics other than a general curiosity. The release of the comments would not assist the public in their understanding of the processes of government in any way.

The release and publication of the FÁS bulletin board would have many effects, that is to undermine the staff of the public body, to cause undue attention to FÁS and to highlight FÁS in a negative way for the amusement or entertainment of others. None of this is consistent with the ‘spirit’ of the FOI Act. I am therefore of the firm belief that this request is frivolous and vexatious.

The case was then appealed to the Information Commissioner, who thanks to a large backlog, has just issued a decision (in full below). The decision of FAS has been annulled and the Commissioner has directed the release of most of the data, bar some small exemptions. The sections of the Act tackled were Section 10 (1) (e), Section 26 (1) (a) (Information obtained in confidence) and Section 28 (Personal Information). In relation to the vexatious section, the Commissioner noted:

Helpfully, the Commissioner has provided some guidance on how purported vexatious requests should be handled:

It was found that my request was not even close to the above:

Here is the full decision:

Back in June, Paul Cullen at the Irish Times wrote a couple of stories about how autism services funds were being spent.

No posts unfilled in area that got autism funds
All €300,000 from autism fund spent in Reilly’s heartland

Money quote:

All the money so far provided from a funding boost for autism services announced by Minister for Health James Reilly last year has been spent on cutting waiting lists for children with the condition in his political heartland in north Dublin…

The documents used for this FOI, related to emails about autism services are published here: