My Fight for Irish Freedom (of Information)

31 January 2011

By Rodney Breen

This article was posted Jan. 25 on Mr. Breen’s blog “Life as it Happens.” It is reprinted with permission.

There are many things that are wrong in Ireland, and secrecy is one of them. Here’s a very simple example: the 1997 Irish Freedom of Information Act preceded the British one by three years (the Scottish legislation was passed 2 years later but came into effect at the same time and is virtually identical). But in 2003 the new Fianna Fáil government amended it to introduce charges. The immediate result was a fall in enquiries from around 18,000 to around 12,000; after falling further the total has crept back up to over 14,000. By comparison, the BBC alone received over 1,500 enquiries in 2008.

The basic charge for an enquiry may not seem very high – just €15, while the British model is essentially cost-free – but the difference is vital and damaging. There are three important ways in which it severely diminishes the effect of the law. Firstly, it prevents comparisons being drawn between organisations and makes it much more difficult to compile information that is not centrally held. In Britain, many of the most productive responses have come from requesters willing to go through the tedious process of sending off multiple requests and putting the information together: finding out how much local councils spend on websites, for instance, or what NHS trusts spend on chaplains. At €15 a pop, this sort of enquiry would be too expensive for all but the most wealthy and determined requester in Ireland.

Secondly, the most interesting information often emerges after a process of toing and froing. Where there is no clear precedent for a particular question, organisations tend to err on the side of caution and withold the material. The requester has to ask for a review, and finally the Information Commissioner gets to decide what the law actually requires. This is where the charges really kick in: under the law as it exists in Britain, these processes are free; in Ireland a review costs €75 and a referral to the Commissioner a further €150. Again, only someone with determination and fairly deep pockets is likely to persist.

Finally, organisations can charge €20.95 an hour for finding and retrieving the documents – in Britain, this is either free or costed so low that up to a certain point bodies frequently find it cheaper not to charge at all. Only when the work involved is considerable are they able to decline on the grounds of cost. In Ireland, this not only adds further to the cost of an enquiry, it also encourages poor record keeping in a climate where records management has often been shamefully undervalued. (Many years ago I used to work in the Public Record Office of Ireland, which had burnt down in 1922, destroying some of the country’s most important archival heritage. Just across the street, somebody had built a factory – a match factory, as it happened, which caught fire from time to time. Nobody seemed to think this was odd.)

Has this contributed to the nation’s current problems? Not directly – although the unusual degree of secrecy over house sale prices probably contributed to the property bubble, and is confusing the state of the market now. And some journalists have used the act to uncover some disturbing developments in the Celtic Tiger era. But the attitude of the government appears not to have changed: the Act, even in its present muzzled form, is ‘a waste of resources‘, according to the current (not for much longer) Taoiseach. Excluded from the workings of the Act is NAMA, which is supposed to be overseeing the nation’s financial emergence from the crisis. (‘Exclusion of NAMA will damage trust, says the Information Commissioner’)

The problem here is not so much that an effective Freedom of Information Act would have revealed more of the shady goings-on in the country, as that the climate of secrecy that has so long ruled in Ireland is one that encourages cronyism to exist. This is a deficit in Irish democracy which has all too often gone unnoticed – political language in Ireland has always been far more about freedom than about openness. Yet as Nat O’Connor of the think-tank TASC has pointed out,

Ireland is one of the world’s ten oldest democracies, yet it lags behind all of the others in terms of open and transparent government and policy-making. … In most cases, government documents are “late, incomplete, or unavailable”. This puts the Oireachtas [legislature] closer to the experience of parliaments in authoritarian countries rather than modern democracies. (The Role of Access to Information in Ireland’s Democracy, 2010)

This culture has existed for as long as the state and has had wide social implications. A major part of the scandals that erupted in recent years over the role of the Catholic Church reflects this same damaging secrecy that allowed disturbing behaviour that would only be disclosed years later: what the 2009 Ryan Commission would describe as the ‘deferential and submissive attitude’ (what economists call ‘regulatory capture’) of the Department of Education and the police towards the religious congregations.

So far, both Fine Gael and Labour – likely to be the parties forming the next government – have promised to reverse the limitations placed on the Act.

The Fine Gael proposals are for a new Freedom of Information Act which will reverse most of the restrictions but will retain ‘a nominal charging mechanism’. The only effect of charging is to discourage requests, since as another TASC paper has shown, even the existing charges cover only 1.6 per cent of the cost of responding to enquiries. Labour on the other hand promises to restore the law to what it was and extend it to all statutory bodies.

Whether those promises survive the pressures of government remains to be seen. In the meantime, it seems, only our rivers run free.

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