FoI fees are an attack on modern democracy

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.

Search and retrieval
And alongside the proposed change to fees is a new definition of the search and retrieval process. This gives officials enormous new discretion to charge an hourly rate (€20.95) for anything related to answering FoI requests. And who benefits from these changes? Certainly not the people. The only ones to benefit are the civil servants and public bodies dealing with the requests – the ones we pay for.

To make matters worse, in all likelihood, the €15 fee originally imposed in 2003 is less than the cost of collecting it. When asked earlier this year how much the fee regime cost to administer, Howlin simply said the department had never carried out such an analysis.

The Government will point to journalists, hungry for stories, consuming the resources of departments already under strain. But if we’re talking cost/benefit here, perhaps we could look at the benefits – and they’re not just monetary.

How much have we saved as a result of changes brought about by the exposure of mismanagement and misspending in Fás, and by consequence, other bodies? Nick Webb, the journalist who broke that Fás story with Shane Ross, has said the changes to the FoI Bill would have meant his story would not have come to light.

When challenged on the nonsensical fees, the Government will turn to another canard – the flood of requests that could be created by abolishing fees entirely. Between 1998 and 2003, there were no upfront fees – and the public service managed it. Today almost 100 other countries have no upfront fees (we are one of a handful that do), and those countries do not drown in a sea of requests.

And isn’t it odd that Irish citizens living, working and paying taxes here can send FoI requests to any public authority in the United Kingdom for free, yet must pay for the privilege here?

FoI is priceless: it forces the system to be more transparent; it forces public bodies to have efficient record management systems; it creates savings in all sorts of ways – along with all the benefits increased scrutiny of decision-making and transparency bring. This is international best practice. When countries from Nigeria to Bulgaria, Hungary to Serbia, Armenia to Rwanda, Russia to Tunisia and Jordan to Azerbaijan don't charge upfront for FoI requests, then why do we? This is why, in its 2008 review of the public service, the OECD recommended that Ireland remove upfront fees.

Freedom of press
But this is not just an issue of money – this is an issue of barriers to exercising fundamental rights. The freedom of the press – acting in its watchdog role to hold power to account (the work of many journalists working at this newspaper) – is being trampled on by FoI fees for 10 years.

The rights of citizens too, to ask questions such as where their motor or property tax is spent, or why the local council decided to sell land for below market value, are being infringed by FoI fees. Citizens should be free to request information, inform themselves of how the Government works or makes decisions – and with that truly vindicate their rights to freedom of expression. Because consent, unless it is informed, is undemocratic.

Gavin Sheridan is co-founder of
TheStory.ie