'Groundswell' needed to reform Freedom of Information

Ireland lags many countries in the openness and accountability of public institutions. Experts in Freedom of Information (FOI) identified the shortcomings of Ireland FOI Act, and measures that could improve access to public information. By Malachy Browne

Yesterday's hike in the yield on Irish 10-year bonds (to 6.9%, 4.7% higher than Germany), prompted Brian Cowen to address international bond brokers. He sought to reassure them with the following statement:

"We are trying in every way we can to be transparent and up front as to what the level of losses, ah, would be [in Anglo] so that people in the international investment community could see that Ireland is doing all it can."

This dedication to transparency was given on International Right to Know Day (whether Brian Cowen knew it or not). Around the time he was speaking, an event was being held by Transparency International to mark the day. Panelists at the event showed that, counter to Brian Cowen's remarks, the Irish government is not trying "in every way" to be transparent about the banking crisis. Finance Minister Brian Lenihan has deliberately removed the financial institutions central to the economic crisis from the FOI ambit.

He could make an order to bring any bank partly or wholly owned by the state under FOI's ambit. But instead, information is being intentionally concealed on Nama, the NTMA, the nationalised Anglo Irish Bank, and other state-owned banks - Allied Irish Bank (18% state-owned); Bank of Ireland (36%); EBS (full ownership) and Irish National Building Society (full ownership).

Information on the banks is presumably being concealed due to concerns about financial sensitivities (and because of lobbying by the Irish Banking Federation). But sensitive information is protected under FOI. The Act states that information on expenditure or borrowing, and state regulation or supervision of banks may be exempted from FOI if -

(a) access to the record could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy, or

(b) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature.

Exempting wholesale these institutions simply blocks Irish people from accessing other, non-sensitive information about the banks they own.

Take the (basket) case of Anglo. In 2008, then CEO of NTMA, Michael Somers had a "bankers' intuition" about Anglo's "odd" business practices. He refused to deposit funds with the bank before eventually relenting "under pressure" from Anglo representatives. Somers said in July this year that he "certainly had not" told anyone outside the NTMA of his concerns. Brendan McDonagh (also of NTMA) said on TV3 in September that he knew of Somers' reservations, but he too did not alert anyone.

There is no reason to doubt Somers or McDonagh, but what if someone else in NTMA raised these concerns with the Department of Finance? And if staff at Anglo expressed grievance at NTMA withholding deposits? Access to this and other such information is either censored or exceedingly difficult to obtain as a result of Brian Lenihan's deliberate exclusion of NTMA and Anglo from FOI. 

There is a political culture of denial about Anglo, an abrogation of responsibility. Others have suggested that it is inconceivable that the Department of Finance did not somehow become aware of Anglo's problems. Accessing information on the matter could either prove or disprove the fact, but it is made more difficult under current FOI restrictions.

It is reported that Brian Lenihan intends to devolve more Departmental responsibilities to NTMA. This will make less transparent more financial decisions that affect the country.

The need to reform

Speaking at yesterday's workshop, Eoin O'Dell, a lecturer of law at Trinity College Dublin said that the inability of FOI to operate in relation to the economic crisis demonstrates that Ireland's FOI Act is "not a particularly strong one". Many other flaws were outlined by O'Dell and the other two panelists - Sean Garvey (Senior Investigator, Office of the Information Commissioner) and Gavin Sherian (serial FOI applicant and co-founder of FOI website thestory.ie).

Eoin O'Dell appraised Ireland against the nine guidelines on freedom of information set out by UNESCO:

PRINCIPLE 1 Freedom of information legislation should be guided by the principle of maximum disclosure

The panel noted that while some civil servants are helpful in releasing information, many take a defensive approach and have a natural inclination to redact information or records. One panelist said that his one wish (concerning FOI!) was that public servants be more pragmatic with requests; rather than find reason to exempt information, they should decide on the basis of what the FOI Act was meant to do - that is put information into the public domain.

The panel also noted inconsistencies across departments and public bodies in the application of FOI.

PRINCIPLE 2 Public bodies should be under an obligation to publish key information

Apart from Office of the Information Commissioner, and the Comptrollor and Auditor General's annual report, this principle is not enforced. There is no obligation for statutory bodies to publish records. FOI requests must be submitted for information.

PRINCIPLE 3 Public bodies must actively promote open government

Eoin O'Dell said he had declined invitations to several meetings of public bodies because they were described to him as 'closed meetings'. Gavin Sheridan bemoaned the concealment in Ireland of Cabinet agendas for a period of 10 years. Comparatively, many other OECD countries publish Cabinet agendas in advance of meetings.

Eoin O'Dell said that preparing notes with an eye to FOI results in better presentation and structure of notes.

The exemption of the Central Applications Office and An Garda Siochana was also criticized; the Police Service was brought under Northern Ireland's FOI ambit since its establishment. Indeed Ireland is unique in exempting the entire police force from FOI.

PRINCIPLE 4 Exceptions should be clearly and narrowly drawn and subject to strict "harm" and "public interest" tests

FOIs may be rejected on voluminous or vexatious grounds, and information can be redacted from the records. As outlined above, some departments exempt documents and redact information wantonly. Others are more forthcoming. Sean Garvey of the Information Commissioner's Office said that it would be helpful if a standard in dealing with FOIs were applied across the civil service. 

PRINCIPLE 5 Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available

Gavin Sheridan (who also submits FOIs in the UK) said that the UK system is far more efficient than the Irish system which is fragmented.

Panelists were also bemused at why FOI data is delivered in hardcopy format when much of the recent records are stored and retrieved electronically.

PRINCIPLE 6 Individuals should not be deterred from making requests for information by excessive costs

The cost of FOI (increased as a result of the 2003 amendment to the 1997 Act), is clearly prohibitive. Sixty per cent fewer FOI requests were submitted following the 2003 review.

Gavin Sheridan outlined some of the barriers. One request he submitted to the Oireachtas was quoted at over €2,000 in search and retrieval fees; Gavin Sheridan re-requested the information in smaller units, eventually gathering it all for around €100.

He also cited an example where civil servants attempted to charge him for redaction of irrelevant information within the material he sought; the time to redact is not billable under the Act - only search and retrieval of information is billable.

He also cited the outmoded method for FOI payments: While submissions may be sent by email, the initial €15 payment must be made by cheque or draft and sent via An Post. Often the relevant body replies with a registered letter costing €5. Sheridan also criticized the appeal process which costs €75; even when an appeal is won, this amount is not reclaimed.

PRINCIPLE 7. Meetings of public bodies should be open to the public

PRINCIPLE 8. Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed

The panel said that they do not expect FOI to be reviewed under the current government.

PRINCIPLE 9. Individuals who release information on wrongdoing - whistleblowers - must be protected

There is no legal protection for whistleblowers. In the 2002-2007 term, Fianna Fail and the PDs decided not to introduce a Public Interest Disclosure Act that could protect whistleblowers.

Indeed, a Bill on Nama legally deliberately prohibits staff at the agency from blowing the whistle on questionable actions. Under the Bill, staff may not 'question or express an opinion on the merits of any policy of the Government or a minister'.

The panel also raised the issue of information that is deleted. It is illegal to delete information once it has been requested under FOI (though there are no safeguards against this or monitoring), but there is no obligation for a public body to retain all documents and records.

Concluding, the panel said that Ireland's FOI process is leagues behind other European and eastern European countries. The original Act was modelled on equivalent legislation in Canada, Australia and New Zealand, however the 2003 amendments made the process more restrictive and costly. The UK Act, modelled on Ireland's 1997 FOI Act, is more transparent than Ireland after the 2003 Act. Indeed, FOI requests fell by 60% after the 2003 amendments. In 2009, just 14,000 FOI requests were made.

The panel felt that a 'groundswell' of public support would be required to bring the necessary pressure on Brian Lenihan to reform FOI. But they conceded that this is unlikely given the low number of people using the Act. The media, Sean Garvey said, has shown indirectly how the Act can be used to good effect, but the media has not directly pursued FOI reform.

Yesterday's workshop was the first of a series of planned discussions organised by Transparency International (TI) on how to access public information. A would-be campaign for FOI reform would be strengthened if a set of defined and implementable recommendations for reform emerged from the series.


Freedom of Information Act 1997

FOI Amendment Act 2003