Investigative reporting

What ever happened to the Irish Freedom of Information Act? – 2500 words.

“Press releases tell us when federal agencies do something right. But the freedom of information act lets us know when they do something wrong”

The above quote from Sen. Patrick Leahy is the perfect way of describing the relevance of a freedom of information act. Applied to any society, America, Europe, Asia or Africa it enforces the importance of this act.

I will look at Ireland’s Freedom of Information Act with reference to the initial introduction in 1998, the alterations in 2003 and where it is now. I will demonstrate this through responses from public bodies, along with a description of what the FOI Act is and how it works. I will also look at the advantages and disadvantages of the act, the obstacles faced when using the act and the importance of the act in society.

The Irish Freedom of Information Act was first established in 1997. Before the introduction of the Freedom of Information Act, the release of official information was governed by Section 4 of the Official Secrets Act, 1963 which prohibited the release of all official information unless “explicitly permitted”

According to this act “A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the state to communicate it”. This Official Secrets Act was obviously not the ideal situation for either journalists or the public at the time. Over time this became clear and the Archives act was introduced in 1986. Through this act it was possible to gain information of historical nature.

Although drafted in 1997 the Irish Freedom of Information Act didn’t come into effect until 21 April 1998. This FOI Act gives the public the right to access records help by both government and public bodies. Through the FOI act it is possible to access

- Any records containing your own personal information regardless on when the         information was created  or any records created after 21 April 1998.

When talking about records it is important to note that records are considered to be in the format of a hard copy paper document, a document stored electronically (on a computer), maps, plans, microfilm, audio-visual etc.

Applying for information through the FOI Act can be quite expensive if you don’t know exactly what you are looking for. A standard charge of €15 per application for records is standard unless the information directly relates to personal information about the applicant. A reduced fee of €10 is in place for medical cardholder applicants. It is also likely that the applicant may be charged for the search, retrieval and copying of records. Some of these additional fees are.

-       €20.95 per hour of search and retrieval.

-       €0.04 per sheet for a photocopy.

-       €10.16 for a cd containing copy documents.

Fee waivers occur in cases where the information received would lead to the assistance in understanding of an issue of national importance. All requests must be made to the public body that has the records. Public bodies make information available through the release of press releases, leaf-lets, publications and the Internet. For this reason the FOI is not relevant for accessing this information. It is instead for information that is not easily accessible including information from.

-       City/ County/ Town councils.

-       Bodies in the Third Level Health Sector.

-       Health Service Executive.

-       Providers of service to people with intellectual/ physical disability.

Described as ‘heralding the end of the culture of public service secrecy” the FOI Act was welcomed by all in 1998. Established by Labours Eitne Fitzgerald the act was said to be a  ‘radical departure” into a brave new world of public service openness and transparency.

However it was not long before this “perfect act” would suffer at the hands of the government. Just three years later in 2001 problems were already visible with requests for information taking an unsatisfactory amount of time and in many cases where information was refused no reason was given for the refusal. An investigation by Information Commissioner, Kevin Murphy suggested “public bodies should review the reasons given for refusing access to information, and the Department of Finance should arrange further training for public servants in this area”. By this stage up to 70% of all requests were being rejected and Mr. Murphy believed that the FOI Act still leaved “a lot to be desired”. In a speech by the Information Commissioner he stressed the importance of public bodies being able to avoid many potential complaints by being more proactive in releasing information and explaining their decisions. However problems aside Mr. Murphy believed that over all the system was operating satisfactorily and thanked the 280 bodies governed by the FOI. The previous year had seen a 19% increase in requests compared to the figures in 1999. This evidence emphasized the importance of the act. This procedure however was taking longer than the 3 months desired timescale with some requests taking up to a year. Could this potentially be a bigger problem than reported?

The following year saw the above problem escalate. Waiting times were out of control, which led the Information Commissioner to put a stop to new cases being put at the end of the existing waiting list from April 1 2002. With a backlog of older cases to get through the commissioner believed this was the most effective solution. Preferential treatment was to be given older cases whilst all new cases would be dealt with within a three-month period.

By 2003 we saw what could be considered by some as the ‘butchering’ of the FOI Act. Due to the above problems as well as a few more the government decided it was time to amend the act.  Being refused meetings with Taoiseach, Tanaiste and Minister of State, bodies like the NUJ has no say in these changes.

First rumblings of these changes came about in February 2003 by which stage few were surprised. The Act had already exposed the government as being “lying and manipulative” and freedom of information was clearly not in their favor. Examples of such exposure were seen that week in the Bloody Sunday enquiry when one of the British soldiers admitted to falsifying his claim that nail bombs had been thrown before they began fire on that day in 1972. At the time the soldiers were confident that such lies would not be exposed and that the truth would certainly not come out during their lifetime. Other such lies include a report that suggests that the government was first informed of clerical abuse in schools during the 1940’s but the government at the time “did not have the guts to take on the hierarchy”.

Carl O’Brien of The Examiner also used the FOI act to gain evidence to prove that Minister for Finance Charlie McCreevy lied in 2002 when he said that there was “no significant overruns projected and no cutbacks whatsoever are being planned secretly or otherwise”. Following this statement the government proceeded to make cut backs in the departments of health and justice.

Amongst the many changes to be made was the introduction of a request fee. According to Progressive Democrats TD Fiona O’Malley the freedom of information act would also limit access to personal information. However despite her reservations the Dun Laoghaire TD still decided to vote with the government on the bill stressing that she felt confident that her concerns would be addressed. Deputy O’Malley may have confidence but many other parties did not. The Green Party lashed out at the PDs for supporting such changes to the FOI Act accusing them of not protecting the rights of their citizens. The Green’s spokesperson Dan Boyle claimed the PDs were supposed to be a liberal party but this new move would improve the quality of democracy. He said, “Can they point to any measure in this bill that will improve citizens’ rights? They cannot, because they know their commitment to these rights is less than their commitment to being and remaining in government”.

Deputy O’Malley had concerns over how these changes would affect abuse victims. Colm O’Gorman, director of One in Four support group and The Irish Council of Civil Liberties echoed these concerns and lashed out at the government saying that the changes could severely affect victims. The proposed changes could result in victims being unable to access records that could validate their traumatic childhood experience. Mr Gorman illustrated an example of how this would affect a victim.

“Under the current legislation she might well be able to get access to health board files that will validate her memories and experiences. Then with appropriate support she can move through this experience and work towards recovery.

If the amendment is adopted this woman will not be allowed access such files, as they will not name her directly, but they may clearly contain information relevant to her.

We believe this woman has a right to such information and that it is such cases that powerfully demonstrate why a robust freedom of information process is essential,” Mr. O’Gorman said. Mr Herrick of the ICCL expressed similar concerns saying, “the current definition of personal information is material relating to an individual, but this will change so records will only be released if they contain personal information”. Sean Fleming of Fianna Fail also stressed that changes to the current legislation were vital.

Despite opposition at the time Taoiseach Bertie Ahern still believed that “The Freedom of Information Act was still one of the most liberal of its kind anywhere in the world”. In light of all the above criticism Finance Minister Charlie McCreevy insisted that “there is no change in the definition of a personal information in the Act and there is no intention to restrict the individuals rights to access information”.

During this time Emily O’Reily made her debut as Ombudsman and Information commissioner. Fine Gaels Enda Kenny believed that the legislation should be d

elayed until she gave her opinion on the matter.During this time other parties also posted their opposition with Sinn Fein wondering what the government wanted to hide and in the end 11 hours were granted for the debate but as Defence Minister Michael Smith noted “Opposition had wasted two-and-a-half hours”

In July of that same year in 2003 charges were brought in for all requests. As if the above changes hadn’t caused enough backlash for the government these charges were to bring to them a whole new world of drama and opposition. The charges which includ

e a €15 up front charge, an additional €75 charge for internal appeals and a fee of €150 to appeal decisions to the information commissioner caused chaos and won little support. NUJ secretary of the time Seamus Dooley said: “This is an outrageous attempt to thwart citizens from access to public information”.

Figures from that year suggested that the 14,000 requests made the previous year would bring in a revenue of €100,000. Director of The Irish Council of Civil Liberties Aisling Reidy said of the move: “It’s going to hit researchers and people in the voluntary community sector. “It will also put an incentive on people deciding on requests to refuse on the basis that less people will now be appealing.” Ms Reidy said the €150 fee for an appeal to the commissioner was quite appalling.

Labour Finance spokeswoman Joan Burton called for the charges to be reviewed immediately. “Minister McCreevy and this Government have wrecked all notions of transparency and openness in preventing easy and swift information to the people they represent. He must review these charges immediately and end this secretive approach to running the country,” she said.

Green Party finance spokesman Dan Boyle said the charges showed the intent behind the recent changes in the FOI Act. “If a Government department is un-cooperative then citizens could see themselves being asked to pay €240 for the privilege of knowing what their Government are doing.”

Eitne Fitzgerald the former Labour minister who introduced this Act also spoke out about her concerns saying; “When information is no longer free, freedom of information becomes a contradiction in terms. When I drew up the original act, I saw a strong accessible and independent appeal system as a key to overturning decades of the culture of secrecy. Now heavy charges will be an effective deterrent against appealing wrong decisions. These new charges attack the core principle of the right to information, with an independent process to uphold the right”.

By 2006 serious flaws in these new changes were highlighted. The Irish Examiner’s report on maternity health care was one such example of the difficulties facing applicants. The statistics in this case took 5 months to compile when ideally they should have taken just 60 days. Obviously the problems of waiting lists and delays first mentioned in 2002 had no gone away. In this case however the blame was directed away from the FOI and instead the IT systems were said to be at the centre of the problem. Hospitals in the midlands apparently have poor IT systems and this resulted in the delays in Portlaois and Mullingar. Joe Martin, general manager of acute hospital services in the HSE Midland area said, “What they have is very limited, so the information you’re getting has been collected on a manual basis”.

Whether the IT services were to blame or not the truth may never be known but to some this seems to be just another contributing excuse in the failure of the FOI.

By this stage the impact of the introduction of fees was also evident. FOI requests from journalists fell from 13 % of all requests in 2003 to just half of that in 2005. By 2007 the total number of requests made by public bodies had fallen by 36% from 2003. Figures released in 2008 show a further drop with 46% less applications than in 2003. Outraged by this Fine Gael accused the government of “harboring a culture of secrecy”.

These days there is no news on the FOI act good or bad. Has the act just vanished or have people just given up. Now is the time to question the act. Was it a good idea and if so what went wrong. It is a personal choice and depends on your beliefs. Should the government’s dealings be exposed? Programs such as Prime Time have done much work to expose wrong doings bringing the truth to the government. Recent reports in the Sunday Tribune show that the act is still alive and kicking exposing scandals such as Berties extraordinary  €13,000 expenditure on catering during a trip to South Africa costing the tax payer €250,000 have also been exposed as well as Mary Coughlan’s trade mission to the UAE last November with accommodation costing €900 a night.

Enterprise Ireland also spent €26,000 on flights to South Africa for its chief executive Frank Ryan, then Enterprise Minister Micheal Martin and three senior state officials.

These trips were considered as necessary expenditure for the respective departments and without the FOI Act the costs would have most certainly gone un-noticed

The freedom of information act has proved useful but the question should be is it useful enough. In times of an investigation is it really acceptable to wait weeks and pay such high fees for important information. Now that it has taken so long to get a freedom of information act I do not agree that it would be good to simply forget about it. The act provides factual information, which unlike gossip can be trusted.

Changes have to be made to the whole application procedure and even if that happens it is doubtful if the act will have the strength to fight back. What started off a welcome introduction into society has finished off as a miserable end for the act.

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