I thank the committee for giving us the opportunity to highlight what we consider to be the most important issues arising from the heads of the Bill. NNI represents 16 national and 25 local and regional newspapers and has canvassed the views and experiences of editors and journalists who have used the Freedom of Information, FOI, Acts to investigate matters that are in the public interest and about which the public have a right to know. We do so on the basis as set out in international human rights treaties. We situate our arguments in the context of international standards on FOI, drafted under the auspices of Article 19 in London and endorsed by the UN special rapporteur on freedom of opinion and expression and the Organization of American States, OAS, special rapporteur on freedom of expression.
To summaries our views, I would like to draw attention to the following provisions of some of the nine principles for FOI. Principle 1 is maximum disclosure. This principle includes the provision that public bodies include executive, legislative and judicial branches of the state, as well as public corporations and publicly-funded bodies. NNI welcomes the inclusion of additional public bodies indicated under head 1 and the Schedule but we strongly urge the committee to consider extending the range of bodies included in the Act further to commercial semi-State bodies, as indicated in our submission. My colleagues will elaborate on this. Members may have read the piece in the latest edition of The Sunday Times written by Mark Tighe, who is on my right, which focused on Irish Water and the need to include it in the Act. In addition, we urge that consideration also be given to bringing quasi-judicial entities, such as the Personal Injuries Assessment Board, under the Act.
Principle 2 is obligation to publish. This principle includes the provisions that public bodies should proactively publish and disseminate information, as well as responding to requests. The volume of information published proactively should increase over time, despite resource limitations. NNI argues regarding heads 8, 9, 14 and 34 that public bodies should be encouraged to publish and disseminate information proactively, rather than waiting for FOI requests. We argue in our submission that by proactively publishing information ahead of FOI requests, both the public and public bodies themselves will benefit greatly. For the public, a great deal of information will thus be made available routinely and save the time and expense of making FOI requests in many cases, while for the public bodies concerned, it will save the time and use of resources needed to process FOI requests, especially as sometimes a considerable number of them may seek the same or related information.
Principle 3 is the promotion of open government. This principle includes the following provisions: public officials should be trained; incentives should be provided; annual reports documenting progress should be published; and public bodies should promote better maintenance of records. NNI makes the case for the training and retraining of staff dealing with FOI requests. Under head 15, training will be essential for new bodies being brought under the Act. For bodies currently under the Act, training in the changes proposed to be brought in will be required as well as refresher training in not only the letter of the law but also the spirit of openness and the presumption in favour of openness the law espouses.
On the issue of incentives as referred to under this principle, journalists have reported many delays and failures to meet the four-week period stipulated in the Act and have suggested that there should be incentives to meet the prescribed deadlines. It has been brought to our attention also that, in practice, a number of bodies do not make accessible on their websites up-to-date section 15 and 16 manuals. For example, the HSE provides no such reference booklet, while the Department of Finance has not updated its section 15 and 16 documents since 2004. A date should be set for the provision and updating of section 15 and 16 manuals in accordance with the new Bill, when enacted.
Regarding the manner in which records are supplied, journalists report that copies of electronic databases are often provided in PDF format which, in turn, can lead to mistakes in the analysis of the record, as the record must be restored to electronic format for proper interpretation. There is no valid reason in many cases that a database, or part thereof, could not be copied and provided to a requester in electronic format as allowed for under the legislation. This would simplify the process for the granting body and cut down on printing costs.
Principle 4 is limited scope of exceptions. This principle includes the provision that exceptions to the right to information should be clear, narrow and subject to strict "harm" and "public interest" tests. NNI welcomes the removal of measures that were added to the range of exceptions and exemptions in 2003 but believes that the exemption for parliamentary briefings-draft parliamentary question, PQ, replies under head 24 should be removed. This would not adversely impact on accountability of Ministers to the Dáil and there is a significant public interest in this material and the manner in which it has been provided to the Dáil.
Journalists also report that time and time again, while requests are being partially approved, many documents within those requests are often withheld under exemptions allowed in the Act. For example, in one instance a schedule of documents came back, along with a pile of redacted documents, and all that remained intact was the finalised press statement. Some examples will be given later. Providing exemptions that are "clear, narrow and subject to strict 'harm' and 'public interest' tests", as per the international principles, should help to address this pressing problem.
We urge in this regard that further consideration be given to the extremely wide range of exemptions envisaged in respect of some of the new bodies coming under the Act, such as the NTMA and NAMA, as set out in the Schedule. We have instanced some of these in our submission, such as records relating to whether developers are complying with their business plans, disciplinary matters and levels of remuneration within NAMA, and the rate of return on individual developments sold by the agency – all of which are a matter of growing public interest.
Principle 5 is the process to facilitate access and it includes the provision that requests for information should be processed rapidly and fairly. We have referred in our submission to constant delays experienced by journalists – often, they say, with a "like it or lump it; appeal it if you like" attitude on the part of officials. However, in reality, appealing is a lengthy and costly process and journalists, who are working within time constraints on stories, are often forced to abandon such requests because of the red tape involved. This culture of resistance to releasing records experienced by journalists needs to be addressed through training and so forth. We have mentioned the possibility of providing incentives to officials to meet the deadlines, rather than the extended period from four to eight weeks provided as an exception in the Act becoming the norm. We have also suggested a requirement or policy to publish online or otherwise make provision for general public access, after or within a reasonable period, to FOI records previously released in response to individual requests. This would be in keeping with the spirit of the Act and make for a good management system for records.
Principle 6 is costs. This principle includes the provision that individuals should not be deterred from making requests for information by excessive costs.
With regard to fees under head 47, the NNI takes the view that the up-front €15 fee should be removed and that review and appeal fees, if charged, should be refunded in instances where the request for information has eventually been released having been proven to be in the public interest.
It is of concern that journalists report the onerous fees structure actively used by State agencies and Departments is a deterrent. Given the pressures on news organisations, often an editorial call is made not to proceed in the absence of any guarantee one will obtain information. The international principles, while not ruling out fees, note that experience in a number of countries suggests access costs are not an effective means of offsetting the costs of a freedom of information regime. They go on to say however, that search and retrieval fees should be waived or significantly reduced for requests for personal information or for requests in the public interest, which should be presumed where the purpose of the request is connected with publication.
The biggest problem with fees is inconsistency. Journalists have detailed their experience on this and other aspects of fees and I will give a few examples. Journalists have stated there is absolutely no consistency and one Department will reply for free while another will charge hundreds of euro. A journalist made a simple freedom of information request for which the Department of Justice and Equality attempted to charge €5,116.83. Naturally this stops the flow of information dead in its tracks. The standard rate is €20.95 per hour for search and retrieval fees. The agency or Department in question estimates the number of hours work involved in a request and then issues a bill, of which one must pay 50% up-front without even knowing whether any documents exist. At one stage a particular journalist was able to get every complaint issued against taxi drivers in Dublin over a 12 month period for €15, but now only figures on how many complaints are made with a sample of ten is provided. How is the journalist to know these are not the ten least controversial incidents? A story by an Irish journalist in Ireland was published based on a freedom of information request to the UK Department of Health. This was done at no cost and with minimum of fuss. One well-worded e-mail was sent and a month later the journalist had the information sought.
It is also of concern that if a freedom of information request is rejected the cost of any appeal falls upon the applicant regardless of the outcome. If I make a freedom of information request which is rejected and then successfully I appeal I am liable for the cost of the appeal even if the public body was wrong to force me to appeal in the first place.
While it may be argued that €15 is not an overly burdensome fee, in truth, its presence has certainly acted as a barrier to journalists submitting requests. What is more controversial is when additional search and retrieval fees are demanded for a request to be processed. In recent months bills of several hundred euro have been handed to us to finalise requests, and in some cases bills of several thousand euro have been received.
The NNI welcomes the proposed changes to the existing freedom of information regime but urges the committee to give some thought to the concerns and difficulties we have expressed. I am joined by three very senior journalists who are very familiar with the Act and work with it. They are very familiar with the issues they confront in making freedom of information requests.
