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?
