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Freedom of Information Act 2013- Nessa Childers amendments to Draft Legislation

News item

Tuesday 12 Nov 2013

For attention of the Chairman, Select Sub-Committee on Public Expenditure and Reform, Houses of Oireachtas, Leinster House, Kildare Street.

12th November 2013

Freedom of Information Act 2013- Amendments to Draft Legislation

Dear Deputy Lynch,

While I welcome the governments’ initiative to reform the Freedom of Information Act I am deeply concerned that there are elements within the proposed amendments which are contrary to the spirit of the commitment made within the Programme for Government:

 “We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions. We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered”.

 

The 2013 Freedom of Information Bill grants this Government an opportunity to demonstrate a sincere commitment to openness and transparency- an ideology which is also reflected within the European Parliament:

Openness enables citizens to participate more closely in the decision making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.”

Regulation 1049/2001EC regarding public access to European Parliament, Council and Commission documents.

 

As an elected representative I have made a number of non-personal Freedom of Information requests and have on each and every occasion paid fees in the knowledge that Ireland is the only EU member state which requires an initial €15.00 application fee.

In 2007 the OECD recommended that the Government should reduce barriers to public information by making all requests under the 1997 Freedom of Information Act free- acknowledging that while charges may reduce the number of frivolous requests, they are also a disincentive to greater openness.

It is the rhetoric surrounding the submission of vexatious or frivolous requests and imposition of an initial fee as a deterrent mechanism which is most arbitrary.  Fees should not be used a mechanism for controlling the volume of Freedom of Information requests- those that are unreasonable for a number of reasons may be legitimately rejected under the Act.  The payment of the initial €15.00 fee saw a decrease in the number of Freedom of Information Applications and created a barrier to the process prior to consideration of eligibility causing a genuine obstacle to citizens wishing to make genuine inquiries

The proposed amendment in Section 12 (9a and 9b) also causes concern. Multi-faceted requests can facilitate openness and transparency through the provision of context.  Furthermore one multi-faceted request rather than multiple requests can be responded to in a co-ordinated manner, reducing the search and retrieval work to be undertaken by an officer, and the subsequent costs to the individual requester.

I am also concerned about the certain elements within Section 27 of the Amendments relating to fees and charges. Non-Personal Freedom of Information Requests can cost considerably more that the initial €15.00 fee due to the volume of data/ documentation being requested.

Ideologically, I do not believe that fees and charges should be applied in the first instance- they act as yet another blockage to freedom of access to information.   The disparity of fees quoted at different times within the same Body, and from different Bodies requires forensic exploration and substantiation- the reality is that citizens are routinely requested to pay prohibitively high fees for document research and retrieval work.  I have personally found the Freedom of Information Officers that I have engaged with to be extremely helpful but extremely challenged at times, not necessarily for the volume of information being sought but rather from difficulties in collating source data and documentation which has been archived in a manner which does not lend its self to easy subsequent dissemination.

Unfortunately Section 27 (3) reinforces this- now not only is a fee to be applied for the actual search and retrieval work, but the citizen must also pay additional costs for determining whether the Body actually holds the required information, the citizen must pay for the extraction of this information and other material not relevant to the request, and pay for the preparation of a schedule specifying the records for consideration for release.   Citizens will now pay more money to organisations who take longer to find information as a result of the inadequacies within their internal archival practices, or as is now often the case, pay increasingly high costs for an electronic file which may take seconds to identify and forward.

While rhetoric also exists that it is the taxpaying citizen who must be spared this expense, it is worth remembering that each of us as citizens is entitled to access information- not just those who can afford to do so.  The discovery of uncomfortable truths can lead to actual efficiencies for our decision makers while also allowing us as a society to engage and challenge.

The solutions being offered within the cited amendments are attempting to resolve issues born from the introduction of the fees in the first instance.   A price should not be put on openness, transparency and the freedom to access information- it is priceless.

Your consideration is greatly appreciated.

Nessa Childers MEP

ASP 11G 215, Rue Weirtz 60, 1047 Brussels, Belgium