AIE: The FOI alternative you've probably never heard of

Most people have heard of the Freedom of Information Act, and how it can be used to open up the work of public bodies to public scrutiny. But if you've tried to get information under FOI, and been frustrated, here's another way of getting information that might just get you what you want.

What has the European Union ever done for us? Well, when it comes to access to information, we have two things to thank Europe for. One is Data Protection. The other is one you've probably never heard of.

Based on EU Directive 2003/4, the Access to Information on the Environment regulations (AIE) provide a way of getting information from public bodies that's completely separate from FOI. As European Union legislation, it has to be transposed by each country into their own laws. They can't just make up their own version: they have to follow the directive (though this doesn't stop them from trying, though). In this case, your right to information is guaranteed from Brussels.

Here's a simple example of why this makes a difference. When the UK Supreme Court finally confirmed that the letters to Ministers written by Prince Charles should be released, the government responded by changing the FOI Act to ensure future disclosures would be prevented: no more access to royal missives for the great unwashed.

But not so fast. The Prince is a landowner with a great interest in farming, buildings and environmental issues - and if he continues to write on such subjects, the public can ask about them under the UK form of the directive (Environmental Information Regulations, or EIR), because that's law that comes from Brussels, not Westminster.

What Can You Ask For?

The most important difference between AIE and FOI is that it only refers to the environment. You can't get any other sort of information using this. But 'environment' covers a very wide range of things: air, water, land, buildings and other structures, organisms, emissions, discharges, noise. And it's not just physical materials - it can relate to plans, policies or activities. That actually covers a lot: if the information you are looking for has a real impact on the environment, it may be accessible.

Incidentally, if you're looking for information in Northern Ireland, you have no choice but to use the regulations; environmental information is excluded from FOI. In the Republic, though, you have a choice of regimes. It's up to you which you use. You almost certainly won't be told that, though - ignorance of the system is amazingly common.

What Are The Advantages of AIE?

So the information you want is environmental. Why not just use FOI? There are several good reasons.

Range:
The AIE regulations cover information held by public authorities. Unlike FOI, the government cannot exclude bodies simply on the basis that they don't want them covered. So a range of organisations which are not accessible, or are only partly accessible, under the FOI Act because they are commercial bodies or have security information (such as NAMA, the Central Bank, and the Garda Siochana) are covered by the regulations.

Many of these bodies probably have little environmental information. But some certainly do - such as Coillte, Iarnrod Eireann, the Dun Laoghaire Harbour Company - and the only way to get information from them us using the regulations.

If you're not sure whether an organization is covered, there's no point doing a search on their home page. Many have no mention of the regulations, either because they don't know about them or really don't want to encourage questions. Some will go to extraordinary lengths to evade coverage - NAMA spent a small fortune in taxpayers' cash on a spurious claim not to be a public authority.

There's no absolutely clear cut definition of what a public authority is, but if it's an organization performing a public function, or a company operating or administering on behalf of the public, it's probably covered. The only clear exclusion is for the 'judicial and legislative functions' and even in this case, not all the work of the body may be excluded.

Cost:
It's a small point, but given that organisations sometimes fight tooth and nail to resist disclosing information, you can often save money by using AIE to get access. This arises because, if you need to appeal to the Information Commissioner to get your rights, under FOI you need to fork out €30 for an internal review first - which is highly likely to confirm the original refusal. Under AIE there's no charge for a review. You can then proceed to appeal to the Commissioner (which will still set you back €50, but it would be €75 under FOI).

Additionally, under AIE, authorities cannot charge you for searching for a document (unlike FOI, where they can charge if it costs them more than €101 and can refuse if it costs more than €700). They can charge a reasonable fee for copying and postage. This should not be a lot, especially if you ask for the information to be scanned and emailed. 

Time period
The FOI Act limits access to records before a certain time period (this differs according to the organization). Earlier records are not covered, and unless they've been transferred to the National Archives, this makes them inaccessible. No such restrictions exist under the regulations.

Exemptions
If you've provided a public authority with intimate personal details, or disclosed some information your business rivals would love to have, it's perfectly reasonable to expect this to be kept secret unless there's a very good reason to disclose it. Like FOI, the regulations allow for authorities to argue for withholding if it can be genuinely defended; these grounds are known as 'exceptions'. These are broadly similar to the 'exemptions' under the FOI Act; often - but not always - it's a little harder to refuse information under the regulations. And if you're asking about emissions into the environment, you cannot be refused at all.

What To Do Next

If you're looking for information that has a substantial bearing on the environment, you should be seriously considering AIE as an alternative to FOI. If you do, though, it's worth reading up carefully on the subject.

The most useful practical source of information is the Department of the Environment.

Making sure public authorities follow the rules is the job of the Commissioner for Environmental Information. This site contains decision notices which show how the process works - you can see how cases have been argued and decided. The Commissioner - who is actually the FOI Information Commissioner wearing a different hat - produces an annual report that's worth looking at.

Zilch, Nada, Bupkes - what happens when you get no response?

The Freedom of Information Act allows public bodies to refuse a request on certain grounds. If you make a request, you may be refused for any of these reasons. The refusal may be justified. But what if your request is not refused, but simply denied? Don't cry. It's not the end.

FOI: sometimes, it's a sprint. You submit a request, you get a quick response, it's finished. More often than not, though, it's a marathon: clarifications, internal reviews, appeal to the Information Commissioner, long wait, sometimes even court action. The experienced FOI requester knows the most important thing you need is patience.

But sometimes, you fall at the first hurdle. Sometimes, you wait and wait. And wait.

And there's nothing. Zilch, Nada, Bupkes. No response at all.

It's quite disconcerting, and if you're not used to FOI, it can be quite offputting to find an organisation has not even acknowledged your existence. Unfortunately, people unused to the FOI process sometimes leave it there, put off for good. And that's a pity.

Don't give up

The first thing to remember is, don't give up. The law says, very plainly, that you have the right to a response - even if it's a refusal. You should get an acknowledgement of your request within two weeks of its receipt.

If you've not heard anything within two weeks, you should take action. Firstly, to avoid any embarrassment, check that the message was actually sent. If it's an email, is it still sitting in your Outbox? If it's a letter, is it sitting around the house, waiting for a stamp?

Okay, once you're sure the message arrived, you need to get in touch with the public body. Remember the old rule: never assume there's a conspiracy when a cock-up is possible. The chances are it's never been actually noticed. It may be sitting in an unattended email account. It may have been deleted by a spam filter. It may have been sent to the wrong person, who has no clue that it needs a response. All of these things happen, innocently. Send a polite request to check that it's been received. This will usually be all that's needed.

Sometimes, especially with organisations who get very few requests, the person who gets it goes into a panic. They don't know how to respond, so they do nothing. A reminder should get them moving. Remind them (politely, of course) that if they don't respond in time, they're breaking the law.

What if you still get no response? Then it's time to get serious. If you have no reply at all within four weeks, this is 'deemed to be a refusal'. You can treat it as if they had refused your request. You have four weeks to request an 'internal review'. This means contacting the organisation again, telling them that you are taking their refusal to reply as a refusal of the request, and therefore you want them to review their action.

They then have to get their finger out.

What if they still don't reply? That's when you contact the Information Commissioner's office. Their job is to make sure public bodies do what they should. Contact them (within the following six months) to appeal against the failure to respond. Normally, there is a fee for an appeal - €50, or €15 if you've got a medical card. But as long as you've requested an internal review, and still got no response, no fee is payable.

The Commissioner should write to the public body demanding they respond. Almost always, this will be enough to get action. It doesn't put you straight back at the start line - you're at the internal review stage so if the response is not satisfactory, you can appeal again to the Commissioner (paying a fee, this time).

In short - never accept no response for a response. You have the right to a reply.

The Right To Be Wrong

The Right to Information in a democracy is a human right. But does it carry with it a degree of responsibility to support public officials - a Right To Be Wrong?

It’s the kind of story for which FOI was invented. The head of the government sends a senior civil servant to the home of the chief of the police force, late at night, to tell him he might not have the full support of the cabinet at the next day’s meeting. The message is clear – he ought to ‘consider his situation’.

The next morning he offers to resign, in three month’s time. The answer from the head of government is clear – he has to resign now. He agrees.

The news is announced. The head of government lets it be known that the police chief has not been sacked – only the full government could do that.

Some months later, a legal investigation reports on the affair, confirming that the chief of police’s decision to resign was entirely his own choice. Questioned about the case, the head of government expresses his surprise at the chief’s decision.

The general public, by five to one, say they don’t believe him.

What’s the truth? The public record should decide the matter. But there’s a problem. There is no public record. As the report puts it:

“It has been striking how little documentary evidence is available. Important decisions were not formally recorded and were communicated orally. Such work practices make it very difficult to identify what decisions were made, by whom and for what reasons.”

It’s almost as if people in government didn’t want the public to know what happened. 

The failure to record

Ireland's Freedom of Information Act 2014 confers a wide right of access to the general public to the records created in their name. But it doesn't make them create records. In a number of high profile political cases - such as the Banking Crisis of 2008 - the absence of written records has been identified as a major problem in identifying what went wrong.

That's probably not going to come as a surprise to Freedom of Information Officers. Ever since the law came into force, civil servants in every country have looked for ways to carry out business out of the sunshine: Private email accounts and Post-its, weird email retention rules. The experts may consider the 'chilling effect' of FOI a myth. But those of use who have worked in the public service know it happens: minutes written in a cryptic, uninformative way; documents rephrased to seem innocuous; or emails left unwritten in favour of a quick conversation in the corridor. (I confess, I've certainly done the last one).

For the civil service, it's a way of covering your back. But the long term consequences, as we've seen, can be a problem. Is it really just a case of public servants not doing their job?

The responsibility of power

Politicians are not the only ones who try to fit everything they do into a positive narrative. Their are other narratives, too. When the expense claims of former Defence Minister Alan Shatter were disclosed, much was made (on the front page of the Daily Star) of the fact that he had claimed €12 for a set of passport photos. Yet another case of wealthy individuals claiming petty amounts for personal items.

Except, as Deputy Shatter quickly pointed out, it wasn't. Travelling on an official visit to visit Irish troops in Lebanon, he was required to get an official visa, and was asked to get the pictures taken and submit an invoice. Now he was getting anti-Semitic abuse on social media.

Perhaps, for politicians, that's just part of the rough and tumble of the profession. Deputy Shatter is a major figure, a successful lawyer and well able to take care of himself. But what of the minor civil servant trying to handle a project which has not gone according to plan? What of the official working on a plan that might produce major improvements for the public - or might not? 

Is there a case for a corresponding right, along with the right of access to information, to make mistakes? Do we need to develop a willingness to allow public servants to get things wrong? After all, in the private sector, failure is taken for granted: nine out of ten startups fail, and only one in ten movies makes money, and yet they still make a profit. 

If we want good, innovative public services, do we not need to accept a Right to be Wrong?

Scheming for Information

In October, the final part of the Freedom of Information Act 2014 comes into force. That section provides for the introduction by each relevant body of a Publication Scheme. This is a little-known element of the law, but if you want to make good use of FOI, this is a very good place to begin. And right now (September 2015), you can even comment on what it should involve.

The basic idea of a publication scheme is that every public body should set out, in a specific document, a list of the kinds of information it holds. One idea behind this is to avoid people having to use FOI by proactively publishing information; but it also should make FOI requests more effective, by giving requesters a realistic idea of the kind of records held and the kind of information they can expect to find.

This replaces the 'Section 15 and Section 16 Reference Books' of the previous legislation with a provision very  similar to the UK FOI Acts. These don't seem to have been updated very often, whereas the Publication Scheme is supposed to be updated every three years.

My experience of Publication Schemes is that they're not as useful as they ought to be because most people aren't aware of them and tend to go direct to the FOI officer. But if you're looking for information about a specific organisation, the Publication Scheme is an excellent place to begin.

One way of making Publication Schemes work is to specify a model which everyone should follow. This makes sure the right information is included, and makes it possible to compare organisations with each other. Here's a good example of a Publication Scheme, from Robert Gordon University in Scotland.

Publication Schemes for Irish bodies don't come into force until October 2015. But there's still time to influence what they should include.

The Department of Public Expenditure and Reform has produced a draft model scheme for public bodies, along with some Guidance on Publication Schemes. If you want to comment on this, you have until close of business on Monday 21 September. Just send an email to cpu@per.gov.ie with the subject title Model Publication Scheme. (You don't have to be Irish - anyone with an interest in transparency can contribute).

Go on, you could make a difference.

A safe space for thinking - the Section 29 exemption

If you've had an FOI request rejected because the information covers the deliberations of public bodies, what does it mean? And is the rejection valid? FOIreland looks at the Section 29 exemption.

Most FOI laws accept that organisations need to be able to discuss their plans in privacy, without being harangued by the public: the concept of a 'safe space'. in the Freedom of Information Act 2014, this exemption is Section 29 - Deliberations of FOI Bodies. (In the 1997 Act, this was Section 20)

When decisions are being made, public bodies need to be able to consider a wide range of options, and be unafraid of including innovative or unpopular options. Arguably, if discussions are carried out in full public view, those involved may be discouraged from speaking freely. The UK equivalent of this exemption, applicable in Northern Ireland, talks of the danger of inhibiting the 'free and frank' provision of advice or exchange of views in 'the conduct of public affairs'. The Irish legislation is narrower, focusing only on the 'deliberative processes' (Section 30 refers to disclosures that might have an adverse effect on 'functions relating to management'), and specifies several kinds of information that are not included. 

(What follows are broad guidelines, not legal advice. It's worth checking the actual legislation if you're not clear.)

If you've had an FOI request rejected as exempt under Section 29, here are the questions you need to consider.

Is a deliberative process happening or going to happen?

There actually has to be a process of deliberation going on: the organisation has to be actively discussing something. It has to be more than just routine administration or procedure (preparation of a hospital's submission to an inquiry, for instance, has been judged not to count). Nor is it enough to merely have the possibility that something may be considered at some stage; there has to be a realistic prospect of it being considered, with a view to a decision being made. Not, "we may want to think about this sometime".

Is the process finished?

The Act refers to a decision the body 'proposes to make'. In other words, it only applies while the process is ongoing. If the decision is made, and finalised, the exemption is unlikely to apply. The only situations where it might is if the discussions are part of a continuing process, carried out on an ongoing basis. Even if the process is still ongoing, though, the exemption may not always apply.

What kinds of record are covered?

Subsection 2 specifies certain kind of record which are not covered: rules, procedures, guidelines, interpretations and precedents used; purely factual information; the reasons a decision has been made; a report on the performance, efficiency or effectiveness of a body (i.e. not just the one making the decision); and a specialist scientific or technical report 'not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme'. 

  

In the past, minutes of a meeting, even though they are a factual record, are not considered 'factual information', since they include opinions and comments. And school inspector reports have been found not to be scientific or technical reports. 

What harm would result from disclosure?

Just because the records are covered by this section, does not mean they should not be disclosed. Disclosure would have to be contrary to the public interest. In other words, there is a 'harm test' - the body has to be able to show a realistic expectation that publishing the information would cause real, specific, harm to the public interest. Public servants are paid to make tough decisions - has the body argued convincingly that they would be inhibited from doing so if the information was revealed? 

Would disclosure be in the public interest?

This section includes a public interest test: even if the information is covered by this exception, it should still be disclosed if it is in the public interest to do so. In fact this section is unusually forthright: the exemption only applies if it is positively against the public interest to disclose the information. 

The phrase 'public interest' here, as in the rest of the Act, means whatever is in the interests of the public to know: it's not just material the public wants to know about. If the disclosure would reveal incompetence, poor decision-making, or corrupt practices, the information should be revealed, even if the organisation is damaged by it.

What if your FOI has been rejected?

If you've had an FOI request rejected on the grounds of the Section 29 exemption, consider the questions above. Has the body made the case that disclosure would cause real harm, damaging to the public interest? Could the record be disclosed in part, with appropriate redactions? It might be worth your while to ask for an internal review (cost €30, or €10 if you have a medical card), and then (since few internal appeals result in a changed decision) to appeal to the Information Commissioner. Be prepared for a wait, though - the Commissioner can take as long as 3 years to decide! (Oh, and it will cost  you €50, or €15 if you have a medical card)

It may by now have occurred to you that if you're looking for information from a public body, and you expect them to put up a fight, you could get someone with a medical card to ask for you. We couldn't possibly comment.

More information

If you want to find out more about this, Richard Dowling's book Secrets of the State ... and how to get them is a very readable guide to getting information. Unfortunately, it's not up to date (it relates to the 1997-2003 Freedom of Information Act) but it's still worth a look.

For a comprehensive and up to date treatment, look at Maeve McDonagh's Freedom of Information Law (Third Edition). Look in a library though, as it's a law book and the price will make your eyes water. 

The government's FOI website includes some very useful information, including a guide to exemptions - this is aimed mainly at civil servants, which is helpful because this helps illustrate the process that has been gone through to come to your decision. 

You can search through the Information Commissioner's decisions on their website.  (But search for Section 20, because they're still working through decisions on the old Act, apparently) Also, they don't publish all decisions, just the ones they think are interesting. [Update: there's now a useful briefing note by the Commissioner's office - you can download it here.]

Northern Ireland

If the public body you are interested in is in Northern Ireland, your situation will be different. You will have been turned down under Section 36 (Prejudice to the Effective Conduct of Public Affairs). You won't have to pay appeal fees, and the response will probably be quicker, but the public interest test is slightly weaker and there's no assumption that the information will be accessible if the decision has already been made. 

The UK Information Commissioner provides a detailed and useful briefing on this exemption. 

Have the First Minister and Deputy First Minister fallen off the wagon again?

Last year, Northern Ireland's Office of the First Minister and Deputy First Minister  were doing so badly at Freedom of Information requests that the UK Information Commissioner's Office listed them as one of the agencies which were under special monitoring. So how did that work out? Not so well, it seems ...

In December 2012, FOIreland reported on the very poor state of responses to FOI requests by the Office of the First Minister and Deputy First Minister (OFMDFM) in Northern Ireland. Many requests were overdue, some for nearly a year.

Evidently, we weren't the only people who noticed this. Shortly after we reported, the UK Information Commissioner's Office (ICO) announced that they would be monitoring the OFMDFM to check their compliance.

That was in early 2013. So what happened? Here's a graph that shows the Office's quarterly responses by percentage answered on time / overdue. Can you spot the ICO's 3-month monitoring period?

Looks like the First Minister and Deputy First Minister were good boys for three months. But when the headmaster's back was turned, it was back to smoking behind the bike sheds ...

Six months of Freedom - July

What were Ireland's journalists doing for the last six months? Freedom of Information requests, that's what. We look at what they uncovered ...

JULY

July was all about biscuits, obesity, tax evasion - and Freedom of Information

Freedom of Information Act reform is welcome
Harry McGee in the Irish Times commented on the proposed new Freedom of Information Bill, optimistically: "Overall, there is a change of emphasis apparent in the Act, with a presumption towards release and a right of access to records. How successful that aim will be depends on the manner in which the legislation is interpreted".

Act of destroying a record to be an offence under new FoI Bill
The Irish Times pointed out that the Bill proposed to make destroying records an offence. Ombudsman Emily O’Reilly was quoted as saying the Bill was 'positive for transparency' but pointed out that Minister had to “fight quite a battle” with some public bodies to ensure that they were included. (Which, given the number of bodies excluded or only partially excluded, suggests he lost a lot of battles).

Ireland begins move towards joining global transparency plan
Transparency seemed to be the flavour of the moment, with Judith Crosbie in the Irish Times reporting on the government's plans to make the country more open and transparent by joining President Obama's Open Government Partnership. That was a long time ago, of course.

IMF praises and damns Ireland's state of fiscal transparency
A more skeptical view was expressed by economic commentator Michael Hennigan, founder and editor of the Finfacts website. Giving the mixed response from government departments to FOI requests, he suggested the IMF's commentary 'makes clear that the accounting systems currently in place are closer to the times of Queen Victoria than the computer age.' As a result, he says, 'there is no uniform set of accounting rule and procedures applying to government departments, extra-budgetary funds, semi-state bodies, local governments, and public corporations.'

Waiting list for nursing homes set to double
Down to the nitty-gritty, Paul Cullen in the Irish Times had a story about nursing home waiting lists: documents disclosed under FOI 'show that the department changed the rules of the scheme for a time earlier this year in spite of legal advice that it would be unconstitutional to do so'.


Head of elderly support group Alone urges home care regulation
Again in the Times, Pamela Duncan Irish Times wrote about complaints about care home staff disclosed under FOI: 'a threat by a home help that she would only shower a disabled stroke victim twice a week because she was “sick to death” with problems caused by the client while another involved a home help who left a bucket of urine in an older man’s room, and used soiled clothes to wash him'.

HSE forked out €116k to rent beds for the obese
Another health story, Clodagh Sheehy in the Herald revealed that '26 operations to reduce weight were carried out in 2011, a further 22 last year and 13 this year so far.'

Reilly forced health cover price hike
Finally the Irish Independent's Sarah McCabe revealed that controversial Minister for Health James Reilly had 'forced all the country's health insurers to hike charges following a request from the VHI and against the advice of the sector's watchdog'. This, she pointed out, 'resulted in an estimated 300,000 people on the cheaper health insurance policies paying more for their premiums.'

Accounts reveal Greyhound board did not properly tender for some contracts
Meanwhile, dogged investigative reporter Conor Ryan of the Irish Examiner revealed some shady-looking goings on in the greyhound racing business, with the Irish Greyhound Board admitting it failed to follow the rules for tendering. Despite the precarious position facing the company, he pointed out, 'in 2011 there was a 35% increase in the expenses claimed by members of its board, rising to €71,273 for its seven directors'.

Revenue inquiry on Irish clients of HSBC with Swiss accounts
In the first of two stories about income tax, Carl O'Brien of the Irish Times obtained internal Revenue briefing documents on investigations of Irish people with Swiss accounts in the HSBC Bank. 'An initial investigation into 33 account-holders with addresses in Ireland has resulted in settlements with 16 individuals worth more than €4 million.'

Undeclared rental income targeted in Revenue crackdown
The same day, Carl reported on Revenue briefings on undeclared income from landlords: 'Officials uncovered €42 million owed to the exchequer by landlords based on an audit of more than 700 property owners. The average yield per case was €56,000.'

Moloney and McIntyre seek access to British regiment’s war diaries
Also in the Irish Times in July, Gerry Moriarty wrote about the attempts of journalist Ed Moloney and former IRA prisoner Anthony McIntyre to use the UK Freedom of Information Act to cast light on the IRA murder of Jean McConville. In the kind of request that would not be possible in the South, they want to access the war diaries of the British Army’s First Gloucestershire Regiment who were operating in west Belfast between 1971 and 1973.

Boat for Hillary was Gilmore's priciest present
A more light-hearted report from Cormac Murphy in the Herald revealed the gifts given to official visitors to Dublin: Tom Cruise was presented with a copy of the €15 book A History Of Ireland In 100 Objects, while Hillary Clinton got a miniature three-person currach designed by ceramicist Clodagh Redden, costing €160. 


Meet the cookie monsters
Finally, behind the Murdoch paywall, Gary Meneely in Sun discovered how much the Irish government had been spending on refreshments and entertainments: €900k in two years, what the newspaper describes as 'shocking'.