NUJ submission to the Joint Committee on Finance, Public Expenditure and Reform relating to the Freedom of Information Bill, 1 February 2013.
We would appreciate the opportunity to make a presentation to the committee and are available to elaborate on the points raised in this brief submission.
At the outset we would acknowledge the positive changes envisaged in the Bill.
The NUJ has a long record of campaigning for open government and worked over many years for the enactment of a Freedom of Information Act in Ireland.
As Maeve McDonagh noted in her seminal work Freedom of Information Law (Thompson Round Hall, 2006,) the passing of the Freedom of Information Act, 1997 “in many ways marked a milestone in the history of Irish democracy”.
The preoccupation with secrecy which characterised the culture of government since the foundation of the State was in many ways a legacy of the British administration.
It is significant that the Freedom of Information (Amendment) Act 2003 was rooted in the report of the High Level Review Group which consisted of five Secretaries General. The group did not consult with the Information Commissioner and there was no public consultation process.
The failure to consult with the Information Commissioner, with the government appointed Citizens’ Advisory Group on FOI, on which the NUJ was represented, and with key stakeholders, including frequent users of the Act, reflected an apparent resentment at the highest level at the success of the 1997 Act.
The review was an inauspicious way of marking the 5th anniversary of the enactment of the legislation and in many ways marked a return to the Westminster style culture of secrecy.
The Freedom of Information (Amendment) Act 2003 was introduced with virtually no regard for the concerns expressed by the Information Commissioner in the commentary The Application and Operation of Certain Provisions of the Freedom of Information Act, 1997.
The Minister for Finance and the Public Service failed to take account of the recommendations of the Joint Select Committee on Finance and the Public Service save in relation to one issue, provisions in relation to retrospective access to personal information. That committee, under the chairmanship of Deputy Sean Fleming held public hearings which allowed representative organisations and frequent users of the Act to record their concerns.
The Minister for Finance and the Public Service, Mr McCreevy, ignored the concerns of those who gave evidence to the committee and effectively ignored the committee.
In the period since the enactment of the Freedom of Information (Amendment) Act 2003 the fears of those who opposed the dismantling of the original Act have been realised.
We welcomed the commitment in the Programme for Government to repeal the amendments and therefore welcome the new provisions contained in the Draft Heads of the General Scheme.
Towards an ethos of open government:
The NUJ commends the Minister for Public Expenditure and Reform on the presentation of the draft and is in broad agreement with the provisions. It is proposed to make some specific comments and to then deal with the one issue which we believe is not adequately addressed.
In welcoming the original Freedom of Information Act the NUJ expressed dismay at the exclusion of An Garda Siochana from the scope of the Act. The blanket exclusions in relation to Northern Ireland were also a cause of concern. We therefore welcome, in particular, the extension of the Act to cover An Garda Siochana.
We also welcome the extension of the the Act to cover VECs but regret that this has taken such a long time. It is ironic that inclusion of VECs should have had to await significant structural changes.
Head 6.1 Extension of Freedom of Information:
1.1 The extension of Freedom of Information to all public bodies will in future be achieved through the insertion of a general definitional provision designed to capture all public bodies.
The proposal to replace the current method of scheduling bodies subject to Freedom of Information Act individually by name under the Act makes administrative sense and will lead to a more efficient FOI regime.
This is a welcome amendment and makes sense from an administrative viewpoint. Significantly it avoids delays in the application of the Act to new or restructured bodies.
1.2 We note that any new exemptions under the Act will be explicitly listed in relation to the individual public body concerned in a Schedule to the Act and will be subject to repeal by Ministerial Order.
While the Minister has emphasised the importance of maintaining “strict standards of commercial confidentiality in relation to the public financial bodies to safeguard the financial and economic interests of the State” we would warn against potential abuse of the need for confidentiality as a means of preventing the release of information in the public interest.
Application and Retrospection Date:
It is accepted that there is need for a lead-in time post-enactment of the legislation to allow public bodies to prepare for the introduction of Freedom of Information. However it is important that the lead-in time should not be excessive and that adequate resources are provided for the training of staff.
Head 6. 9:
We welcome the decision to include provisions aimed at improving the operation of the Act based on the Information Commissioner’s commentary of March 2007.
The 2003 Act limited the potential for access to records relating to services provided by a commercial state body or a private body under a contract for services to a public body.
We warmly welcome the decision to repeal this amendment.
The NUJ was especially concerned at the strengthening of the deliberative process exemption in 2003.
This allowed Secretaries General to issue a certificate to the effect that the deliberative processes are ongoing – effectively shutting off all avenues for access to information.
As noted by Mr Howlin the effect of the granting of such secrecy certificate is that access to records concerning the process must be refused with no appeal possible. The public interest protection was weakened in that under the original Act, access to a record concerning deliberative processes could only be refused if its disclosure could be shown by the public body concerned to be contrary to the public interest. This was changed to allow for refusal unless in the opinion of the head of the public body concerned the public interest would, on balance, be better served by granting than by refusing access. It is proposed to repeal these amendments.
There is no evidence that the quality of public administration was enhanced by these provisions nor is there any evidence that the original Act undermined the work of government or the public service and we are glad that the changes are being reversed.
As noted the 2003 Act introduced a mandatory exemption for categories of records relating to security, defence international relations and Northern Ireland.
The effect of which was that such records could not be released irrespective of whether their release was in the public interest. There was an implied assumption that the release of any such records would be contrary to the public interest and could be injurious to the State.
We welcome the decision to narrow the scope of the mandatory exemptions relating to certain diplomatic and defence records and to restore a harm test.
The removal of the absolute exemption for records relating to the tactics, strategy or operations of the Defence Forces and certain diplomatic communications and the provision of a harm test represents a more balanced approach.
The 2003 Act excluded records relating to the costing of a public body of a proposal of a political party and records relating to parliamentary briefing for all parliamentary questions.
The NUJ opposed this exclusion and we welcome the fact that the exemption is to be removed.
We also opposed the exemption relating to parliamentary briefing /draft PQ replies and do not understand why this exclusion is being retained.
We do not accept the contention that removing the exemption “would create a significant potential for adversely affecting the standing and importance of these vital forms of direct accountability of ministers to the Dáil.”
Ministers are advised by public servants and advisors and it is difficult to see how access to draft answers or advice would not be in the public interest or injurious to the public good.
The power included in the Act in 2003 to allow the charging of application, review and appeal fees for non-personal requests will be retained. Fees for internal review are being reduced from €75 to €30 and fees for appeal to the Information Commissioner are being reduced from €150 to €50.
The issue of fees is one of the major areas of concern for the NUJ.
We note and welcome the government’s intention to reform the Fees system introduced by Mr McCreevy in 2003. The Information Commissioner has repeatedly warned that this has had a chilling effect, reducing the use of the Act by journalists and thereby reducing its positive effects for the general public. In particular, she has advised against ‘up-front’ fees.
In her 2005 report she noted that requests from journalists dropped to 6.5% of all requests, “an all-time low” (in 2001 this figure was 20%). In subsequent years journalistic usage has risen slightly to 10% of total requests in 2011 and the Commissioner pays tribute in each of her reports to the work done by journalists in spite of the 2003 changes. But the FoI Act remains an underused resource and she continues to argue for changes. The NUJ entirely agrees with the Commissioner on this point.
Media companies have been under particularly strong downward financial pressures in recent years and the high costs of FoI requests have tended to deter investigations in the public interest.
Moreover, these charges have put the Freedom of Information Act entirely beyond the means of freelance journalists, who might not have access to expenses provided by media companies. The same is true for student journalists who require training in this vital tool.
However positive the proposal to reduce internal review fees and those for appeals to the Commissioner may be, they still leave in place almost insurmountable problems for freelances, students and even small media companies.
The NUJ believes that transparency should be a key component of public administration in a democracy.
As a matter of principle requests under the Freedom of Information Act should not be the subject of a charge. If a charge is deemed necessary a small administrative charge should be imposed, it should be set at a level which is not designed or likely to act as a deterrent to use of the Act.
The potential savings are minuscule when compared to the sums lost through the absence of genuine freedom of information.
As noted by Dr Nat O’Connor in his TASC discussion paper An Economic Argument for Stronger FoI Laws in Ireland, July 2010, FoI costs in 2009 amounted to just 0.012% of total government spending. The costs of imprisoning information behind a rigid fees system will almost certainly be a lot more. The bill for the Tribunals alone is in the hundreds of millions.
The actual income to the state from these fees seems quite inconsequential. For example, the Information Commissioner’s office records the net amount received in 2011 was €5,350.
As the Commissioner points out, the adoption by senior civil servants of a pro-FoI mind-set would actually save money.
Annual requests for routine information under the Freedom of Information Act could be eliminated if, as a matter of course, information was readily available on websites, including the Houses of the Oireachtas.
Putting more information on their websites would reduce the numbers of FOI requests. Also a general presumption in favour of requests (subject to the necessary restrictions) would “avoid the need for the public body to expend increasingly scarce resources by engaging a second officer in an internal appeals process” and the extra costs of a referral to her office.
The NUJ believes that any fees system should be based on the principle of the public interest.
In that spirit we propose:
• that the upfront €15 fee be removed and
• that, in situations where the request for information has served the public interest, fees should be waived. This reflects a similar principle at operation in the higher courts where fees for constitutional actions which have served the public interest are borne by the exchequer
• disputes as to whether an information request met the public interest test could be adjudicated upon by the Information Commissioner.
Many institutions involved in journalism education have noted that training in use of FOI legislation has been inhibited by the cost of FOI requests and appeals.
Consideration should be given to exemptions for requests made by students for the purpose of training in use of the FOI Act.
Both parties in the present government have strongly advocated a return to the principles announced in 1997. The NUJ believes that many of our current difficulties stem from abandoning those principles and that forthright action is required for real reform.
The Freedom of Information Act 1997 excluded the Office of the President of Ireland from the provisions of the Act.
There has been no public debate on the exclusion of the office of President. This stems from deference to the office of President and recognition of the Constitutional role of the President.
Given the evolution of the office the NUJ would favour extension of the Act to the Office of President, with appropriate safeguards exempting meetings of the Council of State.