Killing Freedom of Information in Ireland

12 November 2013

By Gavin Sheridan

The article appeared on The Story blog, where comments are accruing.

We’ve had sight of new amendments to the FOI Bill 2013 proposed by the Department of Public Expenditure and Reform.

We will be blunt: if passed, Freedom of Information is dead. will, in all likelihood, cease all FOI requests. And we will not seek funding from the public to support an immoral, cynical, unjustified and probably illegal FOI fee regime. We will not pay for information that the public already pays for. We will not support a system that perpetuates an outrageous infringement of citizen rights. The legislation was gutted in 2003 and it is being gutted again. More generally the number of requests from journalists from all news organisations in Ireland will fall as a result of these amendments, and the resulting efforts to shine a light on the administration of the State will certainly deteriorate. And secrecy will prevail.

Minister Howlin will likely say “but we’re bringing more bodies than ever before into the FOI regime”. Great Minister, but we won’t have the ability or resources to FOI them. But then I think you already know that. If Mr Howlin was being honest in his so-called reform, he would simply repeal the legislation entirely and be done with it. Open data will be plugged – but open data regimes only release information the Government wants to release.

This blog was started 4 years ago with the pro bono objective of maximising the rights of citizens and journalists to access information from official sources. Within our rights to access information we used the now well known FOI Act 1997/2003, the Access to Information on the Environment Regulations 2007/2011, the UK FOI act, the United States FOIA 5 USC § 552, and the EU’s Regulation 1049/2001.

During that time we submitted over 200 access to information requests, funded by you to the tune of thousands of euro, while also arguing that the fee regime was wrong. As time went on we developed new techniques for seeking data rather than paper, techniques to obtain large amounts of information with a single request, included billions of euro of previously undisclosed public expenditure. We became known for the techniques we were using, and have trained journalists in Ireland on using those techniques, along with training journalists in Serbia, Croatia, Hungary and Spain. The data and documents we obtained made headlines in almost every Irish newspaper, often in many newspapers at the same time. When you see documents like Ireland’s application for a bailout, it was this blog that got it.

We also scanned and made publicly available for the first time historic but important documents. These included the Beef Tribunal Report (almost 1,000 pages), the Glackin Report, and many others.

We appealed decisions successfully, including important precedents on the balancing of the right to privacy with the public interest.

We sought information from Anglo Irish Bank and NAMA in 2010 under the AIE Regulations, and succeeded in arguing that both were public authorities under those Regulations with the Commissioner. (Gavin Sheridan and Anglo Irish Bank / Gavin Sheridan and the National Asset Management Agency).

When those bodies appealed to the High Court we made lengthy submissions throughout the process arguing that they were in fact public authorities. We created legal precedent around the implementation of the AIE Regulations in National Asset Management Agency -v- Commissioner for Environmental Information [2013] IEHC 86, when the High Court agreed that NAMA was in fact a public authority. When NAMA sought a stay on that judgment pending a Supreme Court appeal, we argued (among other things) before the court that such a stay if granted would be a breach of the State’s obligations under the Aarhus Convention by breaching our right to a timely judicial process. The court agreed, and NAMA appealed that to the Supreme Court. Just three weeks ago we asked the Supreme Court for an expedited listing in the case, which was also granted.

All efforts on this case were those of just two citizens, Fred Logue and me, acting in our spare time to try and vindicate ours – and the public’s – right to access information. These are rights we believe are enshrined in our rights to freedom of expression via the European Convention on Human Rights.

Back in July we promised you we would keep an eye on the passage of the FOI Bill 2013. Before that, we made detailed submissions to the Oireachtas Finance committee, both in person and in writing about the original FOI heads of bill. We also participated with the Department of Public Expenditure and Reform (DPER) in an external working group in an effort to make the FOI process (not the law itself) better.

Today we had a look at new amendments DPER proposes to make to the Bill. They are nothing short of staggering. In some ways we are going so far back that we might as well not have an FOI Act in the first place.

First is the changes to Section 12: Multifaceted requests block (p. 2)

This provision kills all requests containing a request for more than one record from more than one division within a public authority. It’s also a proxy fee increase. If you ask for four things from different divisions of the same body, your request fee jumps from €15 to €60. 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. New S&R (p. 4)

This provision basically means that you can be charged anything for, well, anything. It gives discretion to officials to charge for moving a mouse or typing on a keyboard. If a public body wishes it, this will kill most FOI requests.

Is this the end of FOI in Ireland, should these amendments pass? Effectively, yes.

And why, you might ask, are all these new and significant amendments appearing now, just before Committee Stage? A cynic would suggest these changes were well considered in advance and are being introduced at the end of the process in order to sneak them in. But we’re not cynical, are we?

Here’s the full list of proposed amendments from DPER:

FOI Bill amendments (Text)

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