Monday, 14 January 2013

How Many FOI requests are abandoned on cost grounds?

How many Freedom of Information requests in the Republic of Ireland are abandoned because of excessive costs of search and retrieval? In Civil Service requests, it might be as much as one in three.

Sometimes the biggest obstacle to Freedom of Information is not the stuff public bodies try to hold back; sometimes it’s the information nobody thought to ask in the first place.

Take, for instance, a simple question: how many Freedom of Information enquiries in the Republic of Ireland never get answered because it would cost too much to find the records and collect them together?

To anyone with a passing knowledge of the Act, its major weaknesses are the €15 fee for making a request, and the fact that so many agencies – such as NAMA and the Garda Síochána – are not covered. But for many people using it to access public information, the most frustrating element is the charge for ‘search and retrieval’. Agencies, which charge €20.95 per hour to extract the information, are supposed to present requesters with an estimate of the cost of doing so, allowing them to abandon the enquiry if they are not willing to pay.

This is the point where many good enquiries stop. Members of the Dáil and Senate have complained about being presented with large cost estimates for getting answers:

Deputy Sean Fleming: The Department of Justice and Equality charged a fee of €15,000 in one case, which is extreme. … Last Christmas, I submitted a freedom of information request to seek information on a matter announced by the Minister for Finance, Deputy Noonan, in the budget. I was told it would cost me €1,200 in search and retrieval fees. I abandoned the request. We do not know in how many cases something similar has happened. Some people are given such figures, yet the Minister once replied that the highest fee he charged for search and retrieval in 2011 was €83. He did not mention the €1,200 he charged me and that caused me to withdraw my request.

Deputy Shane Ross: Once, when I went looking for information on FÁS, the difficulty in getting that information, even though FÁS was subject to the Freedom of Information Act, was extraordinary. The obstructions put in the way were extraordinary and most difficult to counteract. My memory of this is clear. I received an anonymous tip-off of where to look and what to look for. I admit this shows a lack of journalistic skills on my part. I approached FÁS and asked for the information. The organisation put every possible obstacle in the way. I am open to correction but, from memory, initially the organisation said that for the particular questions asked — relating to details about what took place in Florida and the junkets being run for the benefit of staff and directors — the process would cost me €1,000 or something equivalent. 

Clearly, this is a huge disincentive to asking for information. It is out of line with other jurisdictions, many of which do not make such a charge. In the United Kingdom, search and retrieval is costed at £20 an hour, but it can only be charged if the total exceeds £450 (in central government, £600). In Scotland, the hourly cost is £15, meaning that information which takes less than 40 hours to collect is provided free.

Where these figures are exceeded, the public authority does not actually need to do the work – it can simply refuse on cost grounds, and usually do. Most people find that a fair arrangement: you can get a certain amount of work for free, and above that it’s up to the organization whether they are willing to provide the information for payment.

Under the Irish system, the meter can start running straight away (in practice, many public bodies only charge above a certain level). Requesters are at the mercy not only of the estimates produced by the authority (which can be appealed, for a fee, to the Information Commissioner) but also to the quality of its records management: if the filing system is bad, the enquirer pays more.

Clearly, this is not ideal. How many enquiries are prevented in this way? Nobody collects these statistics. But the Information Commissioner’s Annual Report provides a clue.

According to the 2011 report, of the 16,472 requests dealt with by public bodies, some 1,661 were ‘withdrawn or handled outside FOI’. That’s 10%. For Civil Service Departments, the percentage was 16%. No explanation is given, but overwhelmingly these are likely to be requests withdrawn for reasons of cost estimates.

If you compare this to the Departments of the Northern Ireland Civil Service, which operate under the UK Freedom of Information Act, the result is striking. In 2011, of 3,240 requests received, just 80 were withdrawn, mainly for reasons of costs. That’s just 2%. Which suggests that perhaps as many as 1,300 of the enquiries withdrawn in the Republic would have been answered under the legislation in place in Northern Ireland.

And one more point: Irish Civil Service Departments responded to 3,499 requests in 2011. But only 1,506 of these involved non-personal information; the rest were requests by people for their personal data, which can only be charged for if they involve ‘a significant number of records’. It’s likely the 16% of withdrawn requests, a total of around 560, were mainly non-personal. Which means the proportion of such requests withdrawn could be as many as one in three.

There are various ways to get around this. Deputy Sean Fleming, in 2012, suggested a ‘cap’ of €500 on such charges. That makes some sense. But how many citizens, in these days of financial stringency, can afford to fork out that sort of money?

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