7 Ways the Irish Government is Taking Your Freedom of Information Away

In 2011, when Irish voters turfed out their government after the chaos of the banking collapse, one of the pledges the incoming parties made was to restore the country's Freedom of Information Law. But what they are proposing is not a restoration - and now they're going to weaken it even more.

Leinster House, home of Ireland's legislature.(picture: Cian Ginty)

Last Wednesday, 6 November, Ireland's Department of Public Expenditure and Reform published an eight-page document. It was a list of proposed amendments to the new Freedom of Information (FOI) Bill. And it was a bombshell that left campaigners reeling. One remarked, "If passed, Freedom of Information is dead".

If you care about openness in Irish political life, you might as well know what you're not getting - and  what you're about to lose. Here are seven ways they're taking your Freedom of Information away.

1. Not getting rid of charges

Want to ask a public body a question? That will be €15 please. Unlike any other country in Europe, Ireland charges a fee to make a request under the Freedom of Information Act.

This was not always the case: charges were only introduced when the Act was amended in 2003. Nobody really disputes why this was done: to discourage requests. And it worked. The number of FOI enquiries fell by half.

The new government elected in 2011 after the Banking fiasco made a pledge to the nation: to reverse the Law to what it had been before it was 'undermined'.

Which meant, obviously, getting rid of charges. But they seem to have concluded that undermining isn't really a big deal. They've decided to keep the €15 fee.

You might think €15 is not that much: after all, answering your request will cost something. But this is information the taxpayer has already paid for. And it probably costs more than €15 to process your cheque in the first place. The only purpose of charging is to stop you from asking impertinent questions.

And if you want to find out things even the government doesn't know - because it's not collected centrally - you will need a thick wallet. If you wanted to gather data from health boards and hospitals in any part of the UK - including Northern Ireland - it would cost you exactly £0.00. But in Ireland, a request to the 5 Health and Safety Executive organisations and 23 voluntary hospitals would set you back €420.

And that's if they play nice...

2. Not making appeals free

A lot of people who ask FOI questions get put off very easily with a refusal. But anyone with experience of FOI will be familiar with the game of Transparency Tennis. It works like this.

Round 1: You ask a public authority for information they don't want to give you. They give you some information, and refuse the rest.

Round 2: You write back to them, asking for an internal review. They think about it and disclose a bit more information, but withhold the rest.

Round 3: You write to the Information Commissioner (or whatever the role is called in your jurisdiction) and ask them to investigate.

Round 4: The Information Commissioner writes to the organisation insisting they give you the information and, eventually, rather reluctantly, they comply.

The system ensures that you will get the information you are legally entitled to. All you need is persistence, and patience.

And in Ireland, money.

Asking an organisation to review their decision, and then going to the Information Commissioner, costs you nothing in most countries. In Ireland it is €75 for the first and €150 for the second. The government has said they will reduce this - but it will still set you back €80 to get information that's yours by right.

And if each of those HSE organisations and health boards wants to dig their heels in? That would be €2,240 ...

3. Not supporting the Information Commissioner

Even if you have enough money to play Transparency Tennis, in Ireland you'll need a lot more patience than in other countries.

The Scottish Information Commissioner's office set out to complete their cases in an average of 20 weeks. They managed 15.9.

The Irish Information Commissioner, starved of funding, struggles to complete cases in years, let alone weeks.   Less than one in five cases are completed within the Scottish average. Well over a third are still outstanding after a year. One case was opened  on 3 December 2008 - and decided on 13 December 2012. That's over four years later.

This kind of delay makes a nonsense of Freedom of Information. Any public body which does not want to provide information knows - especially if the requester is a journalist working to a deadline - that by the time they evenually have to provide an answer, the information will be out of date. Why bother to reply, when you can make people wait?

4. Not making the Information Commissioner subject to FOI

The job of Information Commissioner is absolutely essential to make the system work. She's there to defend the interests of people like you and me,  and make sure authorities don't abuse their position. Which makes it all the more important that we can see that the Commissioner is doing a good job, and acting fairly.

Does the Irish Information Commisioner make the right decisions? I don't know. And I can't find out.

In England, and in Scotland, all decisions of the relevant Commissioner are published online. This makes it possible to see how decisions are being made, and confirm that the Commissioner is acting fairly, and reasonably. But in Ireland, most decision notices are not published. It's up to the Commissioner to decide whether to publish them or not, and why. And even when they do, sometimes they refuse to reveal which public body they're talking about.

And if you think of asking for them under the Freedom of Information Act, forget it. Bizarrely, one thing you can't access under the Act - unlike in England or Scotland - is the Commissioner's case files.

Probably the Commissioner does a good job - she's just been appointed European Ombudsman. But really, who knows? Not me or you.

5. Being Afraid of the Police

When speaking about the plans for the Bill to a Dail Committee, the Minister in charge of FOI - Brendan Howlin - made an astonishing admission:

"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."

 The CIA, the FBI, and the London Metropolitan Police are all subject to Freedom of Information. What special secrets do the Gardai have that these organisations do not have? Even the Police Service of Northern Ireland publishes a helpful log of what it has disclosed. But  the Minister is wary of trespassing on the territory of the Garda Síochána.

Well, fair enough. It's not like we're paying them. Oh, wait. We are.

The new Bill proposes to extend FOI to the Gardai - but only for 'administrative' functions - not operational ones. It seems that, even though the FOI Act, like its counterparts in other countries, has perfectly good safeguards to prevent harmful disclosures, it's more than the Minister's job is worth to trespass on Garda territory. Don't expect to find out anything about penalty points, for instance.


So far, you might think none of these is a big deal. They've all been around for a while, and they're not exactly new.

But then, there was 6 November. That's when it really turned bad.

As David Farrell of University College Dublin points out, the amendments published last week came very late in the process: 'Introducing these changes just before Committee stage makes it all but impossible to roll them back, and any attempt to block it in the Dáil can be easily dealt with.'

Farrell called these amendments 'a cynical move' that 'will make FOI prohibitively expensive and therefore, in large part, unworkable.'

6. Charging a fee for each question

If introducing fees was a punch in the face for FOI, this is the double whammy.

When faced with charges for requests, some journalists did not give in so easily. They found a (sort of) way around the problem: multifaceted requests. As Gavin Sheridan of The Story.ie explains, by submitting one request with several questions to a public body, they could ask for a variety of information with just a single €15 fee. 

Now the government is proposing - at the last moment - to charge for each question. As Gavin says, 'This would kill most requests this blog has ever sent. It would also kill most requests by journalists who are trying to maximise the amount of information they can get for the unjustified €15 fee in the first place. The €15 fee created multifaceted requests.'

'Almost every single one of my recent FOI requests,' says Conor Ryan, investigative reporter for the Irish Examiner, 'would have been gutted by the proposed amendment.'

What the government are proposing would seriously hamper proper journalism in Ireland. Why would they do that?

7. Charging you for looking for the information they're not giving you

One other thing that hampers Freedom of Information in Ireland is the existence of search and retrieval fees. Most countries don't have them. Germany does, with a maximum of €800. But in Ireland, you can be charged the full cost of finding the information you've already paid for. One Dail deputy abandoned an enquiry when he was told it would cost €1200. Another department charged €15,000.

Now the government is proposing to include the cost of determining whether they have the records, extracting them, getting the information from them, and preparing a list of them. There is no question of a cap. This virtually incentivises bad records management.

Unless, of course, you are asking for information about the environment. In that case, because the law emanates from Brussels and not the government, it cannot be changed - requests under the Access to Environmental Information Regulations are free (except for copying costs).

All in all, as Gavin Sheridan points out, these changes would turn the FOI clock back to before the original Act in 1997. At this stage in the legislative process, it seems highly likely these amendments will pass. And Ireland will be left with a Freedom of Information Act that belongs to the past.

Ireland is a country of secrets. There are lots of things we don't know - except we do.

The opposite of openness is not secrecy: it's gossip. Everything that went wrong in Ireland in the past decades - child sex abuse, corruption, political violence, bad banks - was known about, by lots of people and talked about behind closed doors. The dogs in the street knew. But not officially.

We can get our dirty secrets out in the open, discuss them, and do something about them. Or we can gossip.

Is that what people really want?

And if not, what are you going to do about it?

http://www.whoismytd.com/ Most TDs and Senators respond to letters, not emails.

Cost of a stamp: 60 cent. Cost of saving Transparency in your country: Priceless.

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.

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.

News Roundup #4

Katherine Donnelly: New frontiers are opening up in drive to lure foreign students
FOI request reveals that the highest number of international students in the Republic's third-level sector is University College Dublin, with 2,620 bringing in over €30 million. Total international students in Irish colleges amount to 32,000.

(My former colleagues in Scotland will no doubt wince at the statement that "Ireland is up against giants such as Australia, Canada and the US in seeking to lure them." It seems their efforts have gone unnoticed ...)

Shortall accused Reilly over second list
Documents obtained by the Irish Times under FOI show that then minister of state Róisín Shortall confronted Minister of Health James Reilly over changes to the list of primary health care centres which included two new centres in his own constituency. 

Pat Finucane murder pistol handed back to British Army by RUC
A bit of cross-border FOI - using the UK's Freedom of Information Act, RTE reporter Richard Dowling obtained from the Police Service of Northern Ireland (PSNI) a copy of a formerly secret chapter of the Stevens Report into the death of solicitor Pat Finucane at the hands of Loyalist paramilitaries. This showed that the gun used, which originated with the British Army, was handed back to them despite its status as evidence. Writing on the RTE website, Dowling points out that this request would not have been possible in the Republic as the Garda Siochana are still outside the remit of FOI in Ireland.

North and South

Ireland, North and South, is subject to two different Freedom of Information regimes. Here's a summary of the differences.

The Law

FOI Legislation in the Republic of Ireland

FOI Legislation in Northern Ireland

The Republic's FOI law is older: it came into effect in 1998 and was amended in 2003. The law that applies in Northern Ireland is the same one as in England and Wales (the law in Scotland is slightly different), which came into effect in 2005.

Coverage

In the South, the law includes a right to personal information; in the North, personal information requests are dealt with under the Data Protection Act instead.

Requests

In the South, requests have to refer to the Act, and be made to the head of the organization; in the North, any request to a public authority can be considered as an FOI request.

Scope

The legislation in the Republic covers records; in the North, the legislation covers information contained within records - sometimes used as a non-too subtle way of holding back information. The Act in the North is also retrospective - it covers records from all periods - whereas in the South it covers only records produced after 1998 (except personal data).

Authorities

The Southern legislation covers a narrower range of public authorities than the North. For instance, schools are not covered, whereas under the British Act they are.

Fees

A very big difference here. In the South, a fee must be paid for anything other than personal information requests, and there are additional fees for a review request and an appeal to the Information Commissioner. In Northern Ireland, all parts of the process are free. The existence of costs, especially for appeals, is a major disincentive to enforcing the Act.

There are other differences, and some interesting similarities - for instance, the British legislation has an exemption for royal correspondence, while the Irish legislation has a similar exemption for the President's correspondence. If I come across any other important differences, I will mention them in this blog.