FoI fees are an attack on modern democracy
Society benefits from open access to information – any attempt to restrict this access curbs our basic human rights
“When upfront fees were first introduced in 2003, the number of requests fell by almost one-third, demonstrating that upfront fees are a strong deterrent to those wishing to make requests.”
The United States Freedom of Information Act, made law in 1966, states: “our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends upon the consent of the governed”. Such consent, it continues, “is not meaningful unless it is informed consent”.
All FoI Acts internationally are similarly framed. Their objectives include: better informing citizens about how their country operates; allowing citizens to scrutinise decisions made on their behalf; informing citizens of how taxes are spent; and allowing citizens to participate in the decision-making process.
Since our original FoI Act was passed in 1997, international law has moved on significantly. Increasingly, access to information is not seen simply through the narrow lens of citizens seeking information from their government and governments handing it over.
The most recent example was earlier this year, when the European Court of Human Rights found that Serbia had violated the fundamental right to freedom of expression of the Youth Initiative for Human Rights, a Serbian NGO, by denying it access to information gathered by the Serbian intelligence services.
The court found Youth Initiative’s right to freedom of expression had been infringed as it “. . . was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate, [and] there has been an interference with its right to freedom of expression”.
Under article 10 of the European Convention of Human Rights, the right to freedom of expression is fundamental and includes the right to receive and impart information without interference by public authority. In its judgment, the court clearly tied a right of access to information held by public bodies with the fundamental right of freedom of expression.
So where does this leave Ireland?
When upfront fees were first introduced in 2003, the number of requests fell by almost one-third, demonstrating that upfront fees are a strong deterrent to those wishing to make requests. The price of appealing decisions to the Information Commissioner also became onerous. While the Government has said it will reconsider one element of the amendment, it remains that the Bill further embeds the fee regime. This moves Ireland further away from international norms.
For example, on November 12th, The Irish Times reported that international freedom of expression NGO Article 19 (whose first executive director was Irishman Kevin Boyle) issued a statement on the issue of charging €15 for Irish people to submit FoI requests. It said the fee “violates international law by placing unreasonable restrictions on the right of all persons to access information held by government bodies”.
It is natural and right for citizens – and indeed journalists, acting in the important watchdog role consistently recognised by the European Court of Human Rights – to seek to maximise the return of information for the unjust fee. So called “multifaceted” requests, where someone asks for multiple records from different parts of a public body at the same time, are a result of the €15 fee, and if the €15 fee was removed such requests would cease.
Despite his promise to reconsider fees for multifaceted requests, Minister for Public Expenditure and Reform Brendan Howlin has not changed his view that a €15 fee will be applied to each “issue” in a request – who decides what an “issue” is, or how officials will define it, remains to be seen. Ultimately though, the whole idea of an upfront fee is wrong.