We have a right to information, it is not a luxury
The FOI fee regime imposes a huge administrative and cost burden on all involved, writes Gavin Sheridan
Published 20/04/2014 | 02:30
'We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government," proclaimed the Coalition's Programme for Government, after it came to power on a platform of reform in 2011.
Of all the promises the Government has broken, this stands out as one of the most egregious.
The simple truth is this: access to information will continue to be restricted as much as it was under the Fianna Fail regime that filleted the Freedom of Information (FOI) Act in the first place.
The Minister for Public Expenditure and Reform Brendan Howlin has made much political hay out of his reform agenda – and FOI is one of the centrepieces of that reform. In a recent speech about the FOI Bill – which is currently making its way through the Oireachtas – Howlin sought to emphasise some of the admittedly positive aspects of the Bill, while also seeking to downplay the hugely negative components.
The fundamental issue at the core of the negativity is the punitive fees imposed on citizens (and journalists) for submitting FOI requests. This issue came to the fore in November when Howlin was forced into a tactical retreat on one new and late amendment to the Bill that would charge citizens multiple times for requests that contain multiple discrete elements. That retreat is now over, it seems, and the Government again seems firmly committed to the concept.
So what, you might ask, is wrong with charging for FOI requests and appeals? Well, the Government and its spindoctors tend to try to tackle this question in two main ways.
First, they argue that accepting and processing FOI requests costs money. And that the State must seek to recoup some of this cost by charging people for access.
Second, it's argued that the State must "manage demand" for information, and that fees act as a filter that ensures all requests are legitimate and genuine, as opposed to frivolous or vexatious ones from bored citizens seeking all sorts of random information.
It is also argued that charging for FOI requests is internationally accepted, and Ireland is not at all unusual in this regard.
Of course, when you dig a little deeper, these arguments hold no water.
Citizens are charged €15 for every request. This fee was introduced in 2003, and the Government promised to remove it. It has not done so. This charge must be processed by the State, and in 2011 it charged citizens over €51,000 for information requests. But how much does it cost the State to process these charges?
When Howlin was asked this, he had no idea. Because no one has ever checked and no cost/benefit analysis was carried out. But in all likelihood the €15 fee is consumed by administering the fee itself, if not more. It costs at least €15 or more to process €15 fees. So the fee regime is probably costing money. An Irish solution to an Irish problem.
When this is pointed out, the second argument is rolled out: fees act as a disincentive to citizens who might, sitting in their pyjamas on their laptops, do nothing else but throw in all sorts of spurious requests that tie public servants up in knots and prevent them from getting on with the real work of running the State.
Firstly, one person's spurious request is another person's legitimate concern. Secondly, the current Act already contains standard provisions – like many FOI laws around the world – to allow for the refusal of vexatious, voluminous or frivolous requests. Thirdly, answering FOI requests is part of the real work of running the State, except it's still considered here as some sort of additional luxury we can ill afford.
And when these points are made, the third argument is often rolled out – well, other countries charge too. And yes, other countries do charge. About 15 out of 95 countries with FOI laws charge.
But Ireland is the only country in the European Union to charge. Ireland's upfront charge – the one that makes us no money – is among the highest in the world. And so many countries don't charge at all – our neighbours in Britain, Serbia, Albania, Azerbaijan, Bulgaria, Chile, Nigeria, Romania, Rwanda, Ukraine, Indonesia and Thailand, for example. It's a shame we can't seem to join them in the pantheon of countries that allow citizens to ask for information from their governments for free. I guess Ireland must be different.
So I would encourage anyone to do the following experiment: Find a UK public authority subject to the UK's FOI law. It might be a Northern Ireland body like the PSNI, or a central authority like Her Majesty's Treasury, or the Houses of Parliament in London.
Find the FOI section of its website. Find the email address, and send a request for information. Ask a question – perhaps "How much did you spend on trips to Ireland in 2013?". Wait for your reply – often it's less than 20 working days to get it – and many UK bodies are a joy to deal with. And no, they don't even ask if you're Irish or British – or if you pay taxes in the UK or not. And all you need to do is give your name – no postal address required. And there's no charge. They just answer.
Now try that same experiment in our little country.
If you manage to find the FOI section on the website of some Irish public bodies you'll be doing well. But let's say you do. You will arrive at a page explaining how to submit your FOI request.
You might be interested in how your local council seems to be spending an awful lot of money on some project or other (you do pay property taxes and soon water charges, so it might be nice to know how your money is being spent), or you read something in the paper that prompted you to wonder what the details behind a policy decision are, and you'd like to inform yourself of it and, you know, participate in our so-called democracy.
You will arrive at a page that outlines your right to information. "Please send your request to the following postal address, enclosing your cheque or postal order for €15", will be the stock phrase you see. No cash accepted.
Now, do you have ink in your printer? Draft up that request on your computer. Have you run out of paper? Do you have stamps? Did you remember where those envelopes are? Do you even have a chequebook anymore? No? Off to the Post Office to purchase a postal order. Doesn't it charge tax on cheques and charge for postal orders too?
If you've got past all of those, you're all set to send your request. Now find a postbox and away you go. Couldn't be easier, right?
Some time later a letter arrives in the post, despite your request that they email you. They've registered the letter, so not only did it cost them money and time to process the cheque you sent, but they've gone to the extra expense to register the response. They've assessed your request, but it's going to take at least five hours' work to search for and retrieve the records you sought. That will be €20.95 per hour, or €104.75. The request will fail unless you pay a deposit towards the fee. Grudgingly, you agree to pay. Where's that chequebook again? Envelopes and a stamp.
Some weeks pass, and some documents arrive. You excitedly open the letter (despite again seeking to communicate by email). Some documents have been released,
but unfortunately some of what you asked for is "commercially sensitive". Nonsense, you think, that can't be right. You decide to appeal.
Do you still have the chequebook handy? It costs €75 to appeal to a more senior member of staff (the new Bill proposes to reduce this to €30). Envelope, stamp, cheque, paper, ink. Wait four weeks. If your appeal is unsuccessful, you won't get that €75 back. If you win, you don't get it back either.
Your appeal is rejected, and again they reply by post.
But you believe their rationale for refusing is still flawed, and you resolve to appeal to the Information Commissioner, the body charged with independently assessing FOI refusals. Log on to its website, get your credit card out, pay €150 (planned to be reduced to €50).
Now wait. But because of the chronic under resourcing of the Information Commissioner's office, it won't be able to address your appeal for up to two years.
Two years pass. Elections come and go. The world moves on. You get on with your life. What was it you asked for again?
Last year I asked Mr Howlin how he could justify the retention of the FOI fee regime, since it imposes a huge administrative and cost burden on both the requester and the public body handling the request. It's not simply the €15 fee and appeals fees, I said, it's the huge barrier those fees create, it's the cost of handling fees, it's the stream of letters and cheques, envelopes and stamps. Removing the fee would solve all of this – we could, God forbid, be more like the UK.
He laughed at me and said "sure, aren't you keeping An Post going?".
Yes, that's where we're at.
Access to information is a fundamental right. It is not a trivial sideshow. Again and again, our right to access information is being tied to our rights to freedom of expression, particularly at the European Court of Human Rights. And you can see the court's logic: how can we have fundamental rights to freedom of expression, without the freedom to seek, receive and impart information?
Or to put it another way: When you hear a politician utter the words "let's have an open and honest debate", think about what that means in practice. Who holds the information monopoly in that so-called debate? Can there be a debate when one side holds all the cards?
Charging citizens for FOI stymies your right to inform yourself. Fees discourage citizens from scrutinising their Government. And yes, when fees are removed, the number of requests might rise, but what price democracy?
Should we charge people to vote too?
Other countries, the vast majority, in fact, seem to cope just fine with allowing their citizens free access to information. How are we any different? Other countries have been through economic crises too, but they didn't use that as a justification to impose fees for exercising fundamental rights.
As citizens, we vote for politicians to represent us every five years – the process of consenting to be governed. But consent, unless it is informed, is meaningless. So when a politician arrives at your door seeking your vote and makes claims or promises, and he or she is informed of the issues at play, and you are not, how can you make informed decisions on polling day? And if the politician makes promises based on information he or she has, but you don't?
In short, governments hold the information monopoly, and citizens are all too often left in the dark. The FOI Act was supposed to address this – it is clearly failing, and the new Bill doesn't address the fundamental issue of freeing up your right to know.
In the past number of months, scandals involving everything from charity organisations to An Garda Siochana have been front page news. The issues at hand always come back to simple concepts; transparency, accountability and access to information.
Unless a new culture of openness and access to information comes, then we are doomed to a never-ending saga of more scandals, ever more public distrust, more failed investigations and tribunals and yet more waste of public money.