Irish FOI Proposals Still`Timid’

7 July 2014

By Richard Dowling

The following commentary is from RTÉ News. Rowling is the RTÉ North East Correspondent.

The decision of the Government to do a U-turn on the issue of upfront fees for FOI requests has been widely welcomed. It is a small but important step forward in making FOI more accessible to the citizens of Ireland.

However, some fees will remain. People wishing to appeal decisions by a public body will have to pay to do so; €30 for an appeal within an organisation and €50 to appeal a decision to the Information Commissioner. These are much reduced but experts are united on the fact they will still act as a deterrent to taking cases further. Their continued existence does not match the Coalition’s promise to return FOI to its original status.

One of the reasons fees were introduced and continue to exist is to deter excessive FOI requests. The claim continues to be repeated that it costs €600 to answer each FOI on average. This is simply not true. The actual cost is €425, according to a study carried out by the Constitution Unit of University College London in 2012.

The whole issue surrounding fees and now defunct plans to ban multiple requests were pretty much the sole focus of the media attention regarding the FOI 2013 Act. Unfortunately, that meant there was little or no public discussion of the contents of the Act itself. Maybe now that can happen because there is a lot that should be discussed.

There’s much to welcome in the new Act. For example, the exemption of Government records from FOI has been reduced back to five years, and there is to be a major increase in the number of public bodies that will be covered. Much has been made about the inclusion of bodies such as An Garda Síochána under FOI. However, a study I’ve done for an upcoming book on Freedom of Information shows that the legislation is incredibly weak regarding our police force when compared to other jurisdictions.

Only financial, procurement and human resource records from the gardaí will be subject to FOI here. Across the border in Northern Ireland, the Police Service of Northern Ireland is subject to a much more open and transparent FOI regime without harming their ability to tackle crime. In fact, despite the inclusion of the gardaí under the new Act, it will remain easier for Irish people to find out more about the work of their own police force by using FOI laws in other countries. Bizarre but unfortunately true.

There is no valid reason why FOI should be so weak regarding the gardaí. There are plenty of restrictions in the original legislation to prevent the release of sensitive, crime-related information. The core problem is the State seems not want to have to rely on the Information Commissioner to protect records they feel the citizens of Ireland should not have – regardless of the content.

Access to information about finance is also the other main issue that is wrapped in layers of restrictions under the new Act. While FOI will be extended to bodies such as NAMA and the NTMA, its scope will be incredibly restricted. The new 2013 Act lists a whole host of public bodies where the public will only have partial access to information, despite the fact there are several sections of the law that already prohibit the release of commercially sensitive information.

Indeed, there remains a wide range of State companies which are entirely outside the remit of FOI such as the Commissioner for Irish Lights, The Language Body, the Food Safety Promotion Board and the Private Security Agency. It’s the same for most commercial semi-State companies, such as all National Lottery, EirGrid, the VHI, Dublin Bus although its sister company Irish Rail as well as Irish Water are both subject to FOI.??It is important that State security and its finances are protected but the 2013 Act gives, in my view, excessive protections far beyond what are reasonable or necessary. They go much further, for example than those in the UK.

It is worth noting too that the 2013 Act contains a new restriction to keep the prying eyes of citizens away from further crucial information. The new legislation will exempt records which advise a public body on managing public infrastructure projects, including Public Private Partnerships which have proved controversial in the past. It would seem logical that the citizens should be able to access information relating to the spending of billions of euro on infrastructural programme. After all, it is one of the core elements of Freedom of Information acts that people can see how their Government is spending money. Well, not in Ireland it seems.

It is important to note also that there still remains tremendous scope for political interference in how the Act works. For example, if there is a disagreement over whether a particular part of a public body is subject to FOI, the relevant minister can make a binding decision. Relating to the release of Government records, the leader of each party which was in that administration will have to be consulted before any information can be released. Ministers will also retain the right to issue certificates which forbid the release of records relating to law enforcement or international relations.

New restrictions are also being introduced by the Government on the Information Commissioner. While an officer of the Commissioner can enter any public building to demand records if necessary, the Coalition have explicitly said they cannot enter a garda station or seek records without getting the permission of the Minister for Justice first. Without it, the Commissioner or officer cannot step inside a garda station to perform their duty.

There are positive elements to the new Act but there are also issues in it that should be highlighted. Now that the issue of fees has effectively been resolved perhaps that can now happen.

The new Act is undoubtedly a step forward but many will feel it is a timid step.

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