Tag: FOI

International NGOs call on Ireland to #abolishFOIfees

Access Info Europe and the Centre For Law and Democracy have called on the Irish government to abolish FOI fees entirely. In an open letter written to Public Expenditure and Reform Minister Brendan Howlin, Helen Darbishire from Access Info and Toby Mendel from the Centre for Law and Demcoracy wrote:

Various arguments have been put forward to justify charging up-front fees simply for making requests, none of which can be justified by reference to either international standards or comparative law and practice. Charging up-front fees for information requests violates international standards. It is clearly unacceptable to charge people to exercise a fundamental right. This is reflected in the Council of Europe Convention on Access to Official Documents, which expressly prohibits up-front charges for requests (Article 7(1)). Indeed, the drafters of that Convention considered and specifically
rejected a request from Ireland to allow for such charges.

Furthermore, charging up-front fees is out of step with other countries. Ireland is the only country in Europe to have mandatory up front charges for all FOI requests. The only other country which permits such charges is Malta, but these are not routinely applied. Even counting Malta, only 5% of 39 European countries and 16 of 95 countries worldwide (17%) charge fees, something campaigners in many of these countries are working to abolish. The problem is exacerbated by the high level of the Irish fee which, at €15, is higher than the fee charged in any other country that we are aware of.

They continue:

International standards also govern the fees that may be charged for satisfying a request. The UN Human Rights Committee has indicated that in no circumstances may fees be charged which would “constitute an unreasonable impediment to access to information” (2011 General Comment on Article 19, para. 19). The Council of Europe Convention only permits a fee to be charged “for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document” (Article 7(2)). In other words, only photocopying and postage charges are permitted.

And…

Arguments justifying the charging of costs other than photocopying and postage charges are flawed on three grounds.

First, information held by public authorities belongs to the public, having been created with taxpayers’ money.

Second, the cost of responding to requests is heavily correlated with the efficiency of public bodies’ record management systems. It is not appropriate to pass this on to members of the public exercising their right to know, which effectively rewards poor record management practices.

Third, charging high fees exerts a significant chilling effect on making requests, and there are strong public interest arguments against this, due to the significant benefits which flow from transparency. These include enabling democratic public oversight over government activity, identifying inefficiency, waste and corruption, contributing to better decision- making, and fostering greater public participation in and ownership of development activities, all of which result in savings to government, even if this is hard to quantify. Opening up government information has also been shown to make an important contribution to economic growth in knowledge-based economies, based on entrepreneurial reuse of public data. There is also 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.

Read the full letter here.

Rabbitte on FOI: "…the information we want you to have – at a price – act"

We understand that in the cut and thrust of politics and public relations, the next stage in this process will be to paint opponents as irrational, crazy people who don’t know what they’re talking about. Such is the PR cycle, and spin is an essential part of what government does. This is precisely what’s happening now.

This blog has long held the view that we believe only what politicians do, not what they say. This is because they often change their minds. We said when the new government was elected in March 2011 that we had some doubts about whether it would proceed with the changes to the FOI Act they promised. That promise included the removal of upfront FOI fees entirely.

Our cynicism was proven correct. The government reneged on that promise. Therefore it would be logical for us now not to believe a single word that Minister Howlin, or any other Minister says, in relation to FOI reform. Only believe what they do.

We also want to remind Minister Pat Rabbitte what he said ten years ago. This was the Pat Rabbitte in opposition, not the Pat Rabbitte in government. Here is what Rabbitte said in 2003 (emphasis ours):

I do not intend to go over that ground again in detail, but I want to pick up on one or two points in the Bill. One of those is the proposed up-front fee for making freedom of information requests, which was brushed off by colleagues on the Government benches as a minor matter. It is not a minor matter. It is abundantly clear that the fee is primarily intended to discourage requests being made in the first instance; that is the point of it. Moreover, it will also alter the practice of providing information outside the Act. There will now be an incentive to tell the citizen to submit a formal request and pay the fee, rather than simply [1442] releasing information which should be in the public domain anyway. The term “freedom of information” will be a hollow one. The Act should, perhaps, be renamed “the information we want you to have, at a price, Act”.

We entirely agree with his position.

So what’s changed? People often refer to the process of saying one thing in opposition, and the opposite when in government, as “going native”. The Minister has claimed decreased resources being a factor. But we’ve nailed that canard already when it comes to upfront fees, so what’s the real reason?

Your guess is as good as ours.

Abolish FOI fees now.

Latest Government spin released – a country analysis

As we expected, the Government has reacted to today’s media coverage of FOI and gone on the offensive. Yesterday included an embarrassing incident between the Department of Public Expenditure and Reform and internationally recognised experts on the rights to freedom of expression and access to information, ARTICLE 19.

Morning Ireland discussed it this morning (listen here), but suffice to say, ARTICLE 19 are strong opponents of the current and planned fee regime – “a violation of international law” doesn’t get much stronger.

To our amazement the Department had cited Article 19 as a source to justify fees.

The money quote:

“ARTICLE 19 understands that the Government of Ireland has issued a press release justifying the expansion of stringent fees on Freedom of Information Act requests by referring to the ARTICLE 19 Model Freedom of Information Law, developed in 1999. This justification represents a fundamental misunderstanding of both the Model Law and international law.

ARTICLE 19 strongly opposes the current Irish policy allowing for imposition of fees for making requests as well as the pending bill before the Dail to expand fees by allowing requests to be split and charged for each facet. We believe that it violates international law by placing unreasonable restrictions on the right of all persons to access information held by government bodies.

We note that following the adoption of the controversial amendments in 2003, the number of requests for non-personal information plummeted. This shows that the imposition of fees has had a profound affect on the right to information in Ireland.

The Irish Government position does not accurately reflect the text of the Model Law…”

It goes on:

We also note that this position is supported by the UN Human Rights Committee in General Comment 34 on Article 19 which states that “Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information.” Further, the Council of Europe Convention on Access to Official Documents states “A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document.” –

Anyways, the latest spin to emanate from the government was released earlier. Here’s the full release. But don’t jump to that link just yet – it’s so full of fanciful inaccuracies and misleading statements (surprise surprise), your head may explode.

But what we do want to thank the Government for though is compiling a list of countries that don’t charge for FOI upfront, among other things. Beware the Government’s list is oddly constructed – don’t let those green and red boxes fool you.

Let’s try this instead, by using the Government’s own data to help show you how patently ridiculous the Government’s claims are. And all we’re doing here is re-writing the Government’s own list in a new way, by listing all countries with no upfront fees. We’ve left out cases where there’s dispute, fees are or might be charged, or there’s a lack of clarity (or there’s no FOI law).

Let’s start with our EU neighbours

Estonia – no upfront fees
Slovenia – no upfront fees
Austria – no upfront fees
UK – no upfront fees
Sweden – no upfront fees
Bulgaria – no upfront fees
Hungary – no upfront fees
Norway – no upfront fees
Netherlands – no upfront fees
Romania – no upfront fees
Latvia – no upfront fees
Slovakia – no upfront fees
France – no upfront fees
Lithuania – no upfront fees
Denmark – no upfront fees
Greece – no upfront fees
Poland – no upfront fees
Italy – no upfront fees
Belgium – no upfront fees
Germany – no upfront fees
Croatia – no upfront fees
Finland – no upfront fees
Cyprus – left out

Now let’s move a little outside the European Union – these, say the Government, are also countries that don’t charge:

Serbia – no upfront fees (and rated the best FOI law in the world)
Georgia – no upfront fees
Russia – no upfront fees
Armenia – no upfront fees
Tunisia – no upfront fees
Montenegro – no upfront fees
Jordan – no upfront fees
Ukraine – no upfront fees
Azerbaijan – no upfront fees
Macedonia – no upfront fees
Moldova – no upfront fees
Kosvovo – no upfront fees
Kyrgyzstan – no upfront fees
Bosnia – no upfront fees

And a little further afield, where things take an interesting turn by comparison to us:

Colombia – no upfront fees
Rwanda – no upfront fees
Angola – no upfront fees
Panama – no upfront fees
Nepal – no upfront fees
Yemen – no upfront fees
Brazil – no upfront fees
Bangladesh – no upfront fees
Nicaragua – no upfront fees
Mexico – no upfront fees
Liberia – no upfront fees
Dominican Republic – no upfront fees
Guinea – no upfront fees
Cook Islands – no upfront fees
China – no upfront fees
Honduras – no upfront fees
Guatemala – no upfront fees
Peru – no upfront fees
Belize – no upfront fees
Jamaica – no upfront fees
Nigeria – no upfront fees
Uruguay – no upfront fees
Ecuador – no upfront fees
Mongolia – no upfront fees
Australia – no upfront fees

IRELAND – €15 to ask. €75 to appeal. €150 to appeal to the Commissioner. (The gov plans to reduce the last two, but eliminate none, and multiply the €15 depending on what you ask for. And don’t forget the €20.95 an hour search and retrieval fee once you’ve paid)

There’s your “international best practice” right there. Clearly we are not like any of these countries, we are a very special case, where we just can’t survive unless we charge citizens to exercise their rights.

More on this later…

Did the government promise to abolish upfront fees for FOI? Yes it did!

Did the government promise to abolish upfront fees for FOI?

This is an important question but one that seems to have generated confusion. For example:

 

If the government did promise to abolish upfront fees then its proposed amendment to the Freedom of Information Bill which seeks to maintain upfront fees and to increase fees for initial requests constitutes a complete about turn by the government and a clear breach of its promise to the public when it was elected in 2011.

It is worth recalling that before 2003 upfront fees were not charged for initial FOI requests, internal appeals or for appeals to the Information Commissioner. In 2003, however, the FF/PD administration introduced upfront fees by inserting Section 47(6A) into the Freedom of Information Act. At the time this was considered to represent a significant undermining of the effectiveness of the Freedom of Information regime in Ireland. The Information Commissioner herself pointed out that the introduction of upfront fees led to a significant drop in requests and appeals, particularly from journalists.

So what did the government actually promise in relation to FOI upfront fees?

The programme for government states the following (page 19 emphasis added):

We will radically overhaul the way Irish politics and Government work. The failures of the political system over the past decade were a key contributor to the financial crisis and the system
must now learn those lessons urgently.

Government is too centralised and unaccountable. We believe that there must also be a real shift in power from the State to the citizen.

We will legislate on the issue of cabinet confidentiality.

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

So the government promised to restore the FOI Act to what it was before the 2003 amendment. This could not be clearer. It is impossible to read this other than a promise and a commitment by the Irish government to  undo the amendments made in 2003 including the amendment whichh inserted Section 47(6A) and introduced upfront fees for the first time.

It doesn’t matter that we are constrained economically – we were similarly constrained in 2011 when the program for government was published. Similarly it doesn’t matter that the upfront fee is only a small fraction of the costs of FOI administration or that it violates the newly discovered principle of one issue – one fee. The government made an unqualified promise to the people and it should stick to it.

 

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.

National and International NGOs oppose FOI fees

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.

Department of Public Expenditure & Reform plays fast and loose with the facts on FOI

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.

Minister Howlin's crazy briefing note on fees

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:


Why amendment to charge for multi-part FOI requests was not last minute

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.