Friday, 15 February 2013

Why journalists use hotmail, how we're all related to the minister, and requesters in pyjamas: highlights of #FOI15

There’s nothing quite like meeting people who share your obsession. So I was pleased to be one of around 80 people – journalists, academics, FOI officers and campaigners – who gathered on Monday in the University of Limerick for a conference on The Right To Know: Examining 15 years of the Freedom of Information Act in Ireland.

We began with a British perspective, from Ian Redhead of the Association of Chief Police Officers (ACPO). With a Central Referral Unit handling data from 43 Chief Constables, they receive a very large number of requests and have trained over 300 staff per year in the principles of FOI. After years of growth, he sees requests reaching a plateau, implying that worries about the burden being unsustainable are misguided. Requests, he said, were ‘remarkably insignificant’ in terms of costing. For his organization, the major problem was that they shared data widely with other organizations, such as local government (‘we do big data’) and this creates new headaches: who actually holds the data? Who is responsible for its release?

Nat O’Connor (@tasc_natoconnor) of the TASC think-tank looked at FOI in a democratic society. With €44 billion of public expenditure, the cost of FOI is tiny, but vital, because it is a guarantee of our fundamental rights. The constitution guarantees the right of free expression – including criticism of Government policy. But, he pointed out, “you can only criticise government policy if you know what it is”. He contrasted the strict era of the Official Secrets Act of 1963 with the modern world of mashups and crowdsourcing; he pointed out that no up to date state directory exists; and emphasised the importance of standards in records management. Bad record keeping and lack of transparency lead to bad decisions.

Jennifer Kavanagh (@quiatimet) of Waterford Institute of Technology spoke about ‘The Right to Know and National Security in Ireland’. She looked at the proposed reforms to the act, which include replacing the blanket restriction on national security issues with a ‘harm test’. But the regime which allows ministers to certify that certain kinds of records cannot be disclosed is negative – there is no independent review process for these. This may be unconstitutional and will very likely be challenged in the courts but, she pointed out, previous case law has showed ‘undue deference’ to the executive in these kinds of cases. The courts need to assert their independence.

A speech by the Norwegian ambassador reminded us that Freedom of Information has its roots in Scandinavia – and of course his country charges no fees for access.

Minister Howlin speaks to a bunch of microphones.
Then the Public Expenditure and Reform Minister, Brendan Howlin, rose to speak. After describing the ‘omertà-like’ tradition of secrecy that used to exist in government, he spoke about his proposals to reform and extend the existing law, which he insisted were ‘a work in progress’. Over 70 additional bodies would be brought under the new Act, which would bring about the recovery of Ireland’s reputation and be ‘in the top tier of international frameworks for facilitating access to official information.’

But he had little encouragement on the one issue keeping Ireland out of the top tier – the charging of fees for requests: if public bodies were not able to handle the surge of requests that would result from their abolition, this would impact on the credibility of Ireland’s FOI regime. And with public service jobs being cut back by 30,000, there’s no chance of extra resources. All he was prepared to offer was ‘a short, focused and targeted operational review of FOI’ to produce a Code of Best Practice; this would involve a public consultation exercise. While he insisted that he had an open mind on the subject, it was clear that, although fees for review and appeal would be reduced, charging for information is still very much part of the plan. Significantly, there was no sign even of a long-term commitment on abolition.

Conor Ryan (@conor_w_ryan), Investigative correspondent with the Irish Examiner and author of ‘Stallions and Power- The Scandals of the Irish National Stud’ then spoke about how FOI exemptions worked, in practice, as roadblocks for journalists, and of an extending gap between the expectation and the reality. “The interpretation of the Act,” he said, “is killing its spirit”. He referred to FOI officers feeling they had a lack of legal cover that stopped them releasing information they wanted to. Lack of clear guidelines and definitions meant that exemptions on personal data, commercial interest and the deliberative process were often used overcautiously, with information redacted that was already in the public domain.

Then we heard from Mark Mulqueen (@MarkMulqueen), Head of Communications for the Houses of the Oireachtas (Parliament). His perspective was the opposite to Conor Ryan: this was the public service view of how journalists treat FOI. (He later tweeted that he had offered ‘a gentle critique of the media use of FOI/ general info’) Misleading information had been published, he said, on lunches and expenses, despite errors being pointed out. In fact, a lot of information published under FOI was actually already in the public domain, and journalists still claim it as an exclusive. And he provided an answer to a question that puzzled me in my days as an FOI officer: why do journalists, from prestigious newspapers, send in requests using a hotmail account rather than their work email? The answer – which is obvious, come to think of it – is that they want to protect their ‘information asset’ – from their employers, presumably.

John Carroll (@johnjcarroll), special adviser at the Department of Transport, offered a similar view, but with a twist. A political appointee, he had been on Minister Leo Vardkar’s staff when in opposition, and had used FOI to gather information. Now he found himself facing requests, he had a different perspective. He produced some figures on media usage. It was less than he expected: “it’s not driving masses of newsprint”. About one story a week comes from FOI. Top journalistic users are the Irish Times, Irish Independent, Irish Examiner, and the Irish Daily Mail. About half the requests were on expenditure, nearly a third on internal documents and correspondence, and a fifth on decision-making practices. There were, he complained, too many ‘contextless stories’.

After lunch, the main speaker was Emily O’Reilly, Ireland’s Information Commissioner. Her talk was on “FOI in Ireland: Lessons Learned”. She talked about the evolution of FOI in Ireland, and like Nat O’Connor, she looked back to the Official Secrets Act of 1963. She described the successes of the Act, as well as the ‘lurch back to the past’ which resulted from the 2003 amendments. The government’s current proposals, she said, would go a long way to restore the original act. There were some positive new elements. It would pave the way towards Irish signature of the Council of Europe Convention on Access to Official Documents [NB: this may be optimistic, since the Convention appears not to support request fees]. But she still has concerns. Although the Gardaí would be subject to the Act as regards administrative measures, they would be specifically excluded from her normal right to entry of a public body’s premises. Excluding operational matters, rather than having them covered by the standard exemptions, would prevent proper oversight and failed to see the strong protection the Act already has – an example, she said, of “fear and timidity”. It’s not there to do harm, she insisted – we live in an information age, and it’s part of the zeitgeist: ‘a strong, evolving and unstoppable impulse towards openness’.

Richard Dowling (@richardowling), RTE’s North East Correspondent and author of "Secrets of the State and How to Get Them", continued the issue of the state’s obsession with secrecy. The proposed change to cover the Gardaí was too narrow, especially compared to how similar forces were covered in other countries. He highlighted a tendency to narrow legislation when it became inconvenient: so when FOI compelled disclosure of information held by the Medical Bureau of Road Safety, the government amended the law to ensure that only administrative records would in future be subject to the law. Similarly, an amendment to the Access to Environmental Information Regulations was introduced to ensure information would be refused if it would not be disclosed under the Freedom of Information Act. “Who benefits?”  he asked, “do we get better governance?”

There followed two more specialised papers. Solicitor Sean O’Reilly looked at the problem of whistleblowing and the criminalisation of public interest disclosure. He examined recent cases in the European Court of Human Rights and their ramifications for Irish law. Although quite technical, the broad conclusion seemed to be that, as long as the law did not contain an absolute ban on disclosure, provided an official appropriate channel for concerns to be aired, and allowed for external review, whistleblowers stood a high chance of being prosecuted. What is still unclear is whether the person’s motive was a factor.

Damian McCallig (@DamienMcC_dli) from the School of Law at NUI Galway then spoke on a topical subject – what rights next of kin have to see the records of deceased people. (This is under Freedom of Information law, not Data Protection, which ceases on death) He went through the changes that have taken place in recent years, from a general assumption that the next of kin should have access to a more complex view today which sees the wishes of the deceased, to the extent that they can be assessed, as of prime importance. (One interesting point is that the legal definition of next of kin has very precise hierarchy and includes, at the bottom of the list, the Minister of Finance. This appears to mean that, technically, we’re all relations of Michael Noonan.) Damian ended by emphasising the importance, wherever possible, of recording the intentions of the information subject before they die.

By this stage, the conference was drawing to a close and the remaining two speakers had to compress their presentations to fit. Gavin Sheridan (@gavinsblog) of outlined his own experiences in using FOI to extract information from government departments - and sometimes sending out requests in his pyjamas. He noted that charge estimates for search and retrieval seemed to be increasing of late, and a great inconsistency between different departments in how they respond to requests.

Finally, Tom Felle (@tomfelle), a former journalist who now lectures at the University, and with Maura Adshead was responsible for organising the conference, presented a paper on FOI and the Irish Parliamentary System. Apologising for having to severely curtail his presentation, he looked at how the historical foundation of the state, as a very fragile democracy, led to a centralised and secretive administration.

"Cabinet decisions were recorded without mention of descent or disagreement, early Cabinet handbooks recommended burning papers not needed again, and sealing documents in special envelopes using wax."

This culture continued in subsequent years, with the 1939 Emergency Powers Act only being lifted in 1994. What really made a difference was the exposure of Irish Civil servants to a different way of working when they attended meetings in what was then the European Economic Community, as Ireland joined in 1973: attitudes were dramatically changed. The cult of secrecy was gradually weakened. The publication in 1992 of the report of the Beef Tribunal propelled change, by pointing out that had misleading answers not been given to Dáil questions in the first place, the whole thing could have been avoided. Since the Act was introduced, members have used it extensively – and effectively – but the existence of fees is still seen as a disincentive.

As so often at conferences, some of the most interesting details came up in the informal final discussion that followed. There were several voices supporting the importance of good records management, and Gavin and I had a chance to discuss the practicalities of requests with some government FOI officers who had come along. Apart from the fact that Gavin’s name is now notorious among civil service staff, we learnt some very useful information about the pressures on Irish FOI officers, the lack of training and the rapid turnover of staff, and the difficulties in applying a ‘vexatiousness’ exemption. I also gained a possible answer to why such a high number of requests are abandoned at an early stage – it’s because, I was told, they are often answered outside the terms of the act when otherwise they would be a few days overdue.

All in all, this was an excellent conference, with a wide variety of inputs and some interesting discussions – it was only a pity that we didn’t have more time for audience participation. Who knows what we will be discussing in another 15 years?

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