Letting the boom rip, unexplained payments, and the secret of drones

FOIreland looks at the latest storied disclosed under Freedom of Information

Another day, another Euro: journalists keep digging away at the background to the present harsh economic climate in Ireland. In the Irish Times, Mary Minihan looked at how in 2000, then Finance Minister Charlie McCreevy warned of the consequences for the economy if growth was not kept in check: 'the Irish economy is heading for trouble if the boom is let rip'. High spending demands from his cabinet colleagues were a major source of pressure for expansion.

Meanwhile the Irish Examiner revealed that European Central Bank president, Mario Draghi, believes their decision not to reveal documents on the Irish government's negotiations over promissory notes was in the public interest. Tom Felle of the University of Limerick is quoted as saying, "When it comes to public money the public interest should always fall on the side of disclosure".

Public spending continues to come under scrutiny. The Justice Minister's legal firm - from which he has ceased operating as a partner - has earned nearly €100,000 in fees from the Health and Safety Executive, according to the Irish Independent. The Times has a story on Met Éireann TV meteorologists paid an average of €21,000 on top of their salaries. Details of the payments were refused as 'personal data', but the newspaper 'has established the figures involved' - it doesn't specify how.

 An astonishing exclusive in irishhealth.com reveals that the Tallaght Hospital has been unable to account for why it paid five staff members a total of nearly €700,000 in earnings top-ups over a five year period. An investigation revealed there was no documentary evidence as to the rationale for the payments, and inconsistent recollections as to why they had been approved.

The Irish Independent has an environmental story - campaigners against a controversial water treatment plant in Ringsend, Dublin, have claimed that the designation of the local area as a site of special interest was under consideration before planning permission for the plant was given, according to an FOI request. And in a story asking whether politicians are keeping their promises to 'put the country first', the paper also reveals that senior cabinet members have been contacting the Education Minister to ask for constituents to be put on a scheme putting unemployed workers on higher education courses - though it points out that 'most of the representations did not garner positive responses'.

Finally, in a story about the market for drones, the Irish Times exposes a typical disparity between Freedom of Information legislation in Ireland and abroad. The Irish Aviation Authority, not subject to FOI, has revealed that eight drone licences have been issued, but declined to reveal to whom. The US Federal Aviation Authority, on the other hand, has disclosed details of all 81 applicants received - mostly law enforcement agencies and universities.

The Transparent State and Its Friends

A small country beset with clientelism, accusations of corruption, and bailed out banks - it's a familiar story, and not just an Irish one. In Austria, citizens are looking to improvements in Freedom of Information legislation to expose wrongdoing.

Florian Klenk is the editor of Falter ('butterfly'), a Vienna-based investigative magazine. In a recent article on his blog, he writes about 'the Transparent State and its Enemies'. Irish readers will find something familiar about it.

The magazine asked the Justice Ministry for a copy of a report by former chief corruption prosecutor; after a six month wait, it has just been refused. The author, Walter Geyer, had no objection to its release. It was just about legal loopholes in the anti-corruption laws, and staff shortages in his department. But Justice Minister Beatrix Karl decided it could not be released because it was an 'internal' report on 'ongoing processes'. This is the same minister, he notes, who has just spent over €70,000 on public relations consultancy.

He gives a number of similar examples: news reporter Kurt Kuch wanted access to a study of educational standards in schools. This was refused because it was covered by 'professional secrecy'; unofficially, they have been told that the teachers union did not want it released. Journalist Georg Holzer wanted to know  how much the state government of Carinthia was spending on advertising. This was refused, and although the Administrative Court decided he could have the information in December, he's still waiting. When Falter asked how much a member of the former cabinet staff was now earning as a ministerial adviser, he got the same response: professional secrecy.

This kind of case was what caused Kuch, Holzer and others to join forces to create a new movement: transparenzgesetz.at. Transparenzgesetz means 'transparency law', and that's what they are campaigning for. They have already gathered almost 7,000 signatures for an online petition to create a new law. Although Austria has a law requiring federal bodies to provide information, there is also a constitutional duty of secrecy for public officials.

The proposed new law would be based on the Hamburg Transparency Law, passed last year after controversial cost overruns on the building of a public concert hall. It makes disclosure mandatory, requiring the state government to publish an information register of all public data. This covers commercial semi-state bodies as well as state ones.

Whether such a law will get passed in Austria remains to be seen. But if it does, yet another country will leapfrog over Ireland's freedom of information law.

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 thestory.ie 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?

News roundup - fast tracking, low taxing, the embassy flagpole and taking money from kids

The latest stories uncovered by FOI legislation in Ireland, north and south

The continuing effects of the 2009 economic collapse made up a major element in the latest batch of revelations from the press:

The Irish Independent revealed that of 114 former ministers entitled to the state's generous pension arrangements, just seven had made use of a scheme to allow them to surrender part of the payments. Widely considered extravagant in view of the current economic conditions, pensions are payable, in some cases, from age 50. Those taking the full amount include former Taoisigh Bertie Ahern (who had given up some of his payment while still serving as a TD) and Brian Cowen. Meanwhile, the paper reports that current Minister of Social Protection, Joan Burton, was told she was 'taking money from children's mouths' by a mother affected by child benefit cuts, in one of several emails and letters disclosed under the Act.

Accusations of the kind of clientelism widely considered to have helped create the present situation continue to be aired. According to the Independent, Taoiseach Enda Kenny found time to lobby officials to get student grants fast-tracked for his constituents. His close ally, Health Minister James O'Reilly, is having to explain why his department fast-tracked hospital upgrades in the constituencies of two cabinet colleagues (one of them Brendan Howlin, responsible for the proposed 'restoration' of Freedom of Information legislation), who promptly announced them to constituents even before the Health and Safety Executive had been informed. Another Reilly controversy rumbles on as Irishhealth.com reported that the Minister had been censured for failing to answer Dail questions on the issue of a primary care centre situated, at the last moment, in his contituency.

Health records have proved another issue where FOI is involved, according to the Irish Times.  Failing to produce records under the Act was just one element in a 'wall of silence' a family faced from Tallaght hospital, in the case of the death of a 61-year old painter which resulted in the payment of a six-figure sum after a court case lasting more than seven years. The paper points out that, while records of the deceased can be accessed through FOI (data protection rights end at death), in the absence of release instructions from the patient, the Health and Safety Executive has to decide in each case whether disclosure is in the public interest.

The Times also discovered, using FOI, that errors in drafting led to the publication of incorrect information in a government-issued booklet on the children's rights referendum; and in another economy-related story, it disclosed that the American Chamber of Commerce has lobbied the Irish government to ensure that top executives should pay no more than 25% of their income in tax. Finally, it failed to mention FOI law at all in reporting that twelve companies had been disqualified from the government's JobBridge internship programme.The names companies were not named, it said, 'for data protection reasons'. (Data protection laws apply only to individuals)

The Irish Examiner discovered that money from the Irish foreign aid budget had been spent on replacing an embassy flagpole and fixing an ambassador's swimming pool, and broadcaster RTE reported that 128 prisoners are at large from the Republic's open prisons, including one sentenced for murder.

North of the border, on the other hand. All is quiet - under FOI at least, with only one story to report. Website The Detail reports on inequalities in punishments for benefit fraud in the province - with one person getting just 200 hours community service for falsely claiming £87,000, while a teenager was sent to prison for illegally claiming £91 in Jobseeker's Office.

Three steps forward, two steps back: Ireland's proposed new Freedom of Information Act

Last August, the Irish government published its proposals for a new Freedom of Information Act. Does it live up to its promise to restore the law to what it was? 

Background

Ireland's original Freedom of Information Act 1997 was introduced by the governing coalition of Fine Gael, Labour, and Democratic Left. It provided a right to access records of public bodies, both for people's personal information and material of general interest. Requesters could be charged a fee for searching, retrieving and copying the records. If a request was refused, the requester could ask for a review of the decision and then appeal to the Information Commissioner. The Act provided for a number of exemptions to disclosure, for categories such as confidentiality, personal data, commercial sensitivity, and national security. Requests had to be in writing, had to mention the Act, and be made to the 'head' of the body concerned.

In 2003, the re-elected Fianna Fáil / Progressive Democrats government introduced an amended Act which made a number of changes; although people still had the right to see their own records, access to other kinds of information was curtailed in a number of ways. An existing restriction on records of government decision-making was widened, made mandatory, and extended from five years to ten; refusals of records on the ‘deliberative processes of a public body’ were excluded from the possibility of appeal; refusal of some kinds of information on some aspects of defence, intelligence matters, and international relations was also made mandatory. Requesters were also prevented from seeing records of costings prepared of parties’ budget proposals, and briefing papers for parliamentary questions.

The most significant change, however, was the introduction of new charges. Ireland was already the only European country that charged for search and retrieval; now it became the only one to charge simply for making a request. The new fee regime not only demanded €15 to ask for information, but requesters dissatisfied with the response from a public body had to pay it €75 to review its decision and a further €150 to appeal to the Information Commissioner. Information that had previously cost nothing to access could now require an outlay of €240.

As this assessment by the Information Commissioner makes clear, the effect on requests was dramatic: non-personal requests fell by 75%, review requests were halved, and appeals to the Commissioner fell to around a third of what they had been; they never returned to their original level. The introduction of Fees, the Commissioner commented, "seems to suggest that the people are seen as adversaries and nothing more than lip-service is being paid to the principles of open, fair and accountable government".

Before long, the 2003 became a national embarrassment, and example of how not to do FOI. A British parliamentary committee, reviewing the recent introduction of their own legislation, set themselves firmly against any charge for enquiries, observing that, "It would be highly regrettable if the effect of any new fees regulations was to reduce the benefits of FOI, particularly since we have the opportunity to learn from overseas experience. ... The [Irish] Information Commissioner told us that he was 'concerned about the Irish experience, where the fees were increased, and that had (had) a very obvious chilling effect on the uses to which the Act was being put'."

(An excellent summary of the background to the Acts can be found in this paper by Tom Felle and Maura Adshead of the University of Limerick.)

A chance to reverse the changes

For eight years, with Fianna Fáil remaining in power and unwilling to admit that their changes had had any negative effect, there was no prospect of a reversal. Only after the party's catastrophic defeat in the 2011 election did the opportunity to amend the situation arise. Fine Gael and Labour, once again governing in coalition, had made clear manifesto commitments to change the law. Fine Gael promised to reverse the changes but spoke of a 'nominal charging mechanism' while Labour said they would restore it to what it had been before it was 'filleted' and promised to extend it to new bodies. Following the election, the parties'  Programme for Government  adopted the Labour language: the Act would be restored to what it had been before it was 'under[m]ined'.

In 2012, with no apparent movement from the government, Dail deputies introduced Private Member's Bills which proposed reforms, including the extension of the Act to cover the National Asset Management Agency (NAMA - Ireland's 'bad bank' set up after the 2009 financial crisis). Fianna Fáil's Sean Fleming, complaining of excessive search and retrieval costs - a complaint backed by other deputies - proposed a 'cap' of €500. The Government's response was to take over this Bill with a promise to re-introduce it in 2013 incorporating, its own proposals. The details of the proposed new law were published in August 2012 and recently presented by the relevant minister, Brendan Howlin, to the Oireachtas Joint Committee on Finance, Public Expenditure and Reform. [The Oireachtas includes both the Dail (lower house) and Seanad (upper house)]

The New Proposals

The general scheme of the proposed bill is available here on the Oireachtas website, along with a Government briefing note.

Key elements of the proposals:

• Most of the legal restrictions of the 2003 Act will be removed - though records of ministerial briefings will not be covered;
• The ten year limit on records of government discussions will be restored to five years;
• New bodies, including NAMA and related institutions, will be included, though with specific exceptions with regard to details of potential investors, European Central Bank secrecy statutes, and the remuneration of individuals;
• Instead of being listed in the Act, new bodies can be added by the Minister through a Statutory Instrument;
• Non-statutory bodies, including NGOs which receive a large proportion of their income from government, can be included;
• 'Commercial' state bodies will not be covered to protect their commercial interests;
• The Garda Siochana (police force) will be included for the first time, but only for administrative functions, not operational issues, and with strong safeguards on security issues;
• On the suggestion of the Information Commissioner, a greater specification of the right to refuse 'frivolous and vexatious' requests;
• Tampering with records will be an offence;
• Vocational Education Committees, responsible for secondary education, will now be covered, but in such a way to prevent the compilation of school league tables.
• Fees for making a request are retained but there are reductions in the charge for review and appeal.

A Timid Affair

All in all, this is a very timid affair. A reasonable assessment would be: three steps forward, two steps back.

There is one very positive element: the inclusion of bodies which recieve a substantial amount of funding from the government. This apparently is likely to include NGOs, including those which distribute Irish Aid overseas. The issue of extending FOI to non-state bodies which receive public money has been an issue in the British parliament and in Scotland, although it is as yet unclear what bodies will be included; there seems to be an emphasis on NGOs and voluntary organizations as opposed to commercial ones.

Overall, however, these proposals will be a disappointment to anyone who wants to see Freedom of Information in Ireland not only restored to what it was, but envisioned as an up-to-date piece of legislation for the twenty-first century.

Although many of the restrictions of the 2003 Act have been removed, the fees regime has only been toned down, not abolished. It will still cost €15 to ask the government a question, and if a public body proves obstructive, a review and appeal will cost a further €80 in total.

The charging of fees not only sends a negative signal about the government's commitment to reform - and the issue was easily the 2003 restriction that had the most practical consequences - but it also severely limits requests in a number of ways. A requester wanting to gather information from a number of bodies will still face multiple fees. Asking for policies relating to hospitals, for example, would involve requests to 5 Health and Safety Executive organisations and 23 voluntary hospitals: that's €420. If any refuse, there could be multiple costs for review and appeal. Because a fee can only be paid by cheque or postal order, it's very difficult to make a request from outside the state - contrary to the practice in most modern FOI laws - effectively excluding the Irish diaspora from asking questions. And if a request turns up intriguing results - which they often do - any follow on enquiry will involve a new charge.

All of this runs entirely contrary to modern trends in Freedom of Information. Apart from Germany, no other country in Europe makes any charge for FOI requests except in a few circumstances. Europe's newer democracies, as they have adopted Freedom of Information laws, take the absence of fees as standard. Journalist and blogger Gavin Sheridan, speaking at a conference in Serbia last year, tweeted:

 "*Everyone* from the Balkans is *shocked* that in Ireland we have to pay for requests and appeals. An alien concept to them." 

There is no proposal to reform the charge for search and retrieval - which may result in as much as one in three requests to central government departments being abandoned - except for the possible setting of a cap of €500, surely too much for most people.

There are strong indications in these proposals that the government lacks the courage of its convictions. Why, for instance, will the Gardai be subject to FOI only for administrative, and not operational, matters? Why will commercial semi-state bodies be excluded?. On the surface, this may seem sensible: of course the law should not allow people access to information that would hinder criminal investigations, say, or provide commercial data of public enterprises to their competitors. But the law already allows for this: there are exemptions covering both of these and which ought to be perfectly adequate. Exclusion means claims of this sort are not open to challenge: an obvious invitation to abuse.

This act retains a very old-fashioned approach to requests. It is necessary to write, enclosing a cheque, to the head of a public body. This may seem reasonable, but it's actually retrograde - an example of outdated thinking. Not only because modern citizens expect to be able to engage services online, but also because it preserves the idea of Freedom of Information as a sort of special favour provided by the state to the citizen. Under the British and Scottish Freedom of Information Acts, there is no necessity to write to a specific person, and no need to cite the Act. What this means is that everybody working in an organization has to be aware of how the law works and has to be prepared to treat every enquiry as an FOI request if necessary: in this way, the principle of the law becomes embedded in the culture of the organization - an important change.

Poverty of Ambition

Above all, these proposals suggest a disappointing poverty of ambition. Freedom of Information is important, and it really is not expensive - it costs as little as €2.4 million to answer all the requests received. The Minister, Brendan Howlin, seems confused about what exactly he wants. Speaking to the Oireachtas Joint Committee - here is a transcript of the discussion - he reminded the members that he was a member of the goverment that brought in the original bill, and called it 'bedrock legislation which underpins public access to the way the people’s business is done'. He talked of wanting 'to reverse the restrictions put in place in 2003 and to extend the Act to the widest possible definition of public bodies and also to non-public bodies significantly funded from the public purse.' He claims to have based the proposals on 'an examination of best international practice,' and of wanting to see Ireland's Freedom of Information regime 'restored to the top tier of legal frameworks internationally' and 'to ensure the culture and practice of secrecy in public bodies is set aside for good and replaced with a basic legal presumption that the public has a right to know.'

When it comes to the details, however, there is very little sign of real passion for transparency. This is certainly not going to take Ireland into the top tier - this is a bargain basement law. The Information Commissioner, suggesting ways of reforming the law, observes: 'of the seven jurisdictions with similar FOI legislation to Ireland, none charged a fee for 'internal review' while only one, Ontario, charged a fee for appeal to the Information Commissioner. In the case of Ontario this fee was set at €15.60 for non-personal information.' The minister still insists on a figure three times as much.  'We are not so unique that we do not look at Sweden, Canada or New Zealand to see how they operate practically,' he says. But he shows no sign of noticing how they differently they do things.

What is behind this timidity? Money, in part: 'To abolish fees and impose a reasonable search administrative cost would be dangerous because the cost of that would be prohibitive.  We have to be careful what we ask for.' Although he says he is open to suggestions about fees and invited the committee to let him know their views, he fears the effects of freedom on the populace:

'There are people who stay up late at night submitting numbers of freedom of information requests on their computers, which often overwhelms systems.'

He gives no evidence of these nocturnal pests, but he clearly believes they exist. As a former FOI officer in a regime without request fees, I saw no sign of organizations being overwhelmed. There were a few persistent enquiries: but no sign of the mythical late night requesters. Besides, many requests can be made under the Access to Environmental Information regulations, for which there is no fee.

A fee-free regime would certainly lead to an increase in requests. The decline after the introduction of the 2003 Act suggests this would be at least two or three times the current level, while the number of requests to the Northern Ireland government, twice as many for a population one-third as large - implies it could be as much as six times as many. But if transparency is so vital, it's surely worth paying for. The minister seems to think Freedom of Information should be free.

But there's more than money behind this. There are signs that still, deeply-seated in the psyche of the Irish public administration, there is a fear of the unknown and a readiness to hide behind secrets. The minister admits he has had to fight to persuade some to come out in the open:

"We have pushed it as far as we can in terms of areas that traditionally fought off any efforts to include them in the freedom of information regime. I refer for example to the financial sector, ... organisations such as the Garda Síochána are reluctant to enter this territory at all.  It regards any trespass into this territory as being almost dangerous."

This no doubt explains the unwillingness to submit these fragile flowers to the horrors of the unwashed citizenry asking questions. But again, these fears are little grounded in reality. My FOI colleagues in Scottish Water and the Grampian Police (not exactly shrinking violets) had only standard exemptions to rely on in withholding information they felt would threaten to disclose details of criminal investigations or commercial interests, and found them perfectly adequate. Northern Ireland Water is subject to the full FOI Act, so why will the new Irish Water need to be specially protected? The simple answer is, it doesn't. Somebody just needs their hand held.

I am pleased to say that a number of members of the Joint Committee made the case not only for getting rid of fees, but for greater coverage of public bodies as well. There were a number who raised evidence, from their own experience, of bodies with little enthusiasm for transparency:

While in some cases requests may be refused for reasons of national security, I believe officials, who are not fully committed to FOI, are using this as an excuse.  (Deputy Sean Fleming)

Bus Éireann, for example, refused to give me passenger numbers.  It was making some very important changes and was extraordinarily unhelpful.  It refused to give me basic information by hiding behind commercial sensitivity.  It is absolute nonsense but it was able to hide behind it.   (Deputy Stephen Donnelly)

Regulatory bodies seem to have acquired a status that allows them to make decisions that cause serious damage to customers.  I refer the customers of airports and energy companies, for example.  These bodies operate in a secret world.  The relevant parent Departments have long since given up trying to control them. (Senator Sean Barrett)

A perfect example is the recent story about the wiping of penalty points for motorists, including some high-profile figures. When pressed as to whether this was a case that could be investigated via the new FOI arrangements, the minister seemed to suggest that, as administrative matters, they could. But a careful look at the proposed legislation shows that 'administrative' is defined as ‘a finance, human resource or procurement matter.’ That sounds very much as if, with operational matters out of bounds, some well known people may be in a position to speed out of the range of the law.


If this governing coalition remains in power through another election, which is very possible, it is hardly likely they will want to return to this law with a more liberal frame of mind. Fianna Fail, still the most probable alternative government, is in denial about the damage their 2003 legislation does. There is no realistic alternative: this is the last chance of a meaningful reform of Freedom of Information in Ireland for a decade, perhaps a generation. Ireland deserves better.

Bed blockers, hospital food, and the cost of a testicle - news roundup

Latest stories from Ireland turned up by FOI requests:

The Belfast Telegraph used FOI to disclose that nearly 19,000 days were spent in Northern Ireland hospital beds by healthy patients - so called 'bed blockers'.

The Irish Examiner attempted to find out how much the Health and Safety Executive spends on overheads in hospital food budgets - but were met with a demand for 'search and retrieval' fees of over €500 to get the information. The same newspaper revealed that an unnamed body funded by the HSE and tasked with aiding frontline services has suffered 'serious fraud' in the past three years.

Meanwhile, the Irish Times reveals that property owners in the Republic are much less likely to have their houses repossessed than in Northern Ireland. Other disclosures include the detail that compensation paid to Garda Siochana (police force) included over €140,000 for loss of a testicle, and that one barrister was paid €450,000 in 22 months by the office of the Director of Public Prosecutions.

The Irish Independent writes about the letters cabinet ministers have sent to local authorites on behalf of their constituents. Numbering almost a thousand since the government took office, the letters show issues from requests for social housing and action on anti-social behaviour to complaints about rodent infestations and help in obtaining new front doors.

Finally, the Londonderry Sentinel discovered, using Freedom of Information legislation, that Universities minister Dr Stephen Farry visited Derry City twice between the beginning of 2012 and Halloween. (Evidently not a busy news day in Derry, then).

Bargain basement transparency

One criticism of Freedom of Information is that it costs a lot of money? But does it? 

Reading through the transcript of the meeting of the Oireachtas Joint Committee on Finance, Public Expenditure and Reform from 10 January, which discussed the Irish Republic's proposed new Freedom of Information Bill, I found the following interesting detail:

Brendan Howlin (Minister for Public Expenditure and Reform): In 2011, the totality of fees divided by the number of actual FOI requests which were non-personal generated an average charge of €23. The actual cost - these are not absolute figures - of providing that information was €640 per request.

The amount of fees charged is not a new revelation, it's in the Information Commissioner's Annual Report.  But the cost of requests is one I've not seen before. It sounds like quite a lot of money (and since public bodies can charge €20 per hour for looking for the information, it suggests the average amount of time finding it is 32  hours, which is scarcely plausible). But look again.

These requests only apply to non-personal requests, which are equivalent to the sort of FOI requests covered by laws in other countries such as the UK (the Irish FOI Act allows people to request information held on themselves, and these represent about 70% of the total; there is no charge for these). 

One benefit of having fees for requests is that you can count the exact number of them. The total amount of fees charged (for making a request, finding the information, and reviews and appeals) was €87,439; an average charge of €23 implies 3,801 requests. If the cost per enquiry was €640, this gives us a total cost of non-personal FOI requests:

€ 2,432,640.

Even for a small country like Ireland, that's peanuts. Almost the entire cost of FOI requests for a year could have been met by meeting EU regulations for septic tanks. 

So when politicians say increasing use of FOI would 'overwhelm' the civil service, it's worth bearing this figure in mind.