What next for Freedom of Information?
In the wake of Simon Coveney's message-deleting scandal, Cork FOI expert and transparency activist Gavin Sheridan is wary of calls to reform the legislation.
While Simon Coveney is still breathing a minor sigh of relief over the defeated Sinn Féin vote of no confidence that got nowhere near sinking him this week, there’s still the highly troubling matter of the Cork South Central man’s deletion of messages relating to the Zappone appointment, and, even more troubling, Mícheál Martin’s vacillating response to the matter.
If you’ve been following the story, it may not have been with the same fervour as I.
Overall, the general sense from the public is that this is an FOI story, and that means it’s a story that only journalists and the odd nerd is really interested in. A storm in an America’s Cup, if you will.
But Freedom of Information (FOI) is not just for journalists.
In fact, Gavin Sheridan is quick to point out, it’s based on the principle that transparency is necessary to the healthy functioning of a democracy, and is grounded in our individual rights.
“Access to information is a fundamental right under article 10 of the European Charter on freedom of expression, because the European courts consider that your right to access information is part of your freedom of expression rights,” Gavin says.
“How can you freely express yourself, if the State has an informational monopoly over you? You’re at a disadvantage, and that can affect your freedom of expression.”
Gavin Sheridan is Cork’s resident FOI expert: he lives in Midleton, and to say that he knows FOI better than most would be an understatement. The UCC graduate, journalist and early adopter of the blogosphere with Gavinsblog.com has, amongst many other things, co-founded transparency not-for-profit Right To Know and associated FOI-based news platform TheStory.ie, as well as KildareStreet.com, the incredibly useful Dáil archive.
He’s a fellow Substacker too:
He’s also a long-standing transparency advocate, who has, alongside Right To Know co-director Ken Foxe, taken many FOI-related cases to the High Court and Supreme Court, including some with large political ramifications.
Gavin tells me that, while Simon Coveney’s actions in deleting messages relating to Zappone’s stalled appointment as UN Special Envoy for Something Madey-Uppy were certainly wrong, they are embedded in a lack of clarity around the systems in place in Ireland when it comes to managing, restoring and deleting records.
“Him making arbitrary decisions about deleting certain things and not deleting others is a problem,” Gavin says. ”Is that a problem of his creation? No, it’s just how things have been for decades. There’s a larger issue there around how bureaucracy functions and how FOI intersects with that.”
The public’s records, not his records.
“It’s not necessarily of his own making, but he should be more responsible about understanding that records created in the fulfilment of his duties are the public’s records, not his records.”
The ABCs of FOI
You will have seen several stories here on Tripe + Drisheen containing information revealed by using FOI legislation. UCC’s purchase of live animals for experimentation, glyphosate spraying programmes by Cork County Council and most recently, the OPW’s communications with Bandon Angling Club have all been accessed using FOI or its big sister AIE, Access to Information on the Environment.
Essentially, the Freedom of Information Act allows anyone to ask to see records held by public bodies and publicly funded bodies. It is of course useful to journalists, but is designed for us all.
All a person has to do is use the correct wording and seek the right records, and they should be able to have the public body send them the information they are asking for.
The work-related records including -yes, Simon - exchanges on messaging services of people who work for those bodies can all be searched and disclosed under FOI.
FOI is not all-powerful and there are several kinds of information which are exempt and some of these are common-sense: you can’t see someone else’s personal information, because then we’d live in a world where your nosy neighbour could suddenly decide that they want to see your medical records. You can’t see Garda information on investigations and case files. You can’t see commercial information on private businesses. If you want to know all of the exemptions, read the act.
And of course there is lots of information already held publicly: local authority planning files, Arts Council funding rounds, tenders, lobbying records. But for everything else, there’s FOI and AIE.
If you get refused access to the information, you can seek an internal review of that decision, and if you still don’t like that, you can appeal to the Information Commissioner (OIC).
If you’re interested in making requests, Gavin’s colleague Ken Foxe regularly updates an excellent beginner’s guide to using and understanding FOI.
NUIG’s Tom Felle also writes excellent FOI commentary.
Your own personal information
Ok, I can see it may be hard to get riled up about your right to see how much a local authority has spent on footpaths.
You just may not love that stuff as much as I do.
But maybe you’ve seen the 2006 German film The Lives of Others, which concludes in post-wall Berlin, with playwright Georg Dreyman visiting the archive and asking to see all the information the Stasi had accumulated on him, and being presented with carts and carts of records: transcripts of intimate moments with his girlfriend, logs of his every movement in his own home, dating back years.
Accessing our own information is a part of our most fundamental human agency as citizens under various forms of State.
When Germany passed the Stasi Records Act in 1991, upon which the fictional Dreyman’s moment is based, it was an attempt to return this agency to East Germans who had lived under the brutal gaze of the panopticon for decades.
Surveillance, much like incarceration, is a form of violence perpetrated by the State.
As Foucault put it in describing his panopticon,
“He is seen, but he does not see; he is an object of information, never a subject in communication.”
“The FOI act was brought in not only for you or I to use to request records like how much was spent on stuff, it was also built around a GDPR-type system as in, ‘I want to request my own records under the FOI act’ as opposed to under the Data Protection Act as it was at the time,” Gavin says.
But it’s better to seek personal records under Data Subject Access Records (SAR), he says: “If I’m seeking my own records, I should use SAR and I shouldn’t have to seek them under FOI. SAR under GDPR gives you far greater rights because it’s under European regulations, so if you’re looking for your own records, don’t use FOI. Just use the SAR system.”
Yet confusion abounds: even this week, the Department of Children, Equality, Disability, Integration and Youth (DCEDIY) have been compounding their treatment of Mother and Baby home survivors by refusing to release health records under SAR and writing letters of an unnecessarily imperious tone telling the women to apply under FOI instead.
FOI reform?
When Leo Varadkar, responding to Coveney’s message-deleting incident, announced this week that Ireland’s FOI system needed to be reviewed, he seemed unaware that Minister for Public Expenditure and Reform Michael McGrath had already announced a review of FOI in June of this year.
When politicians start calling for a review of how FOI works, it makes Gavin antsy: he’s worried that it means that the reintroduction of initial fees will be touted.
“When the Department for Public Expenditure and Reform says something like, ‘we think the act is working really well but we want to review it,’ you start to wonder why they want to review it and what the issue is,” Gavin says with a shrug.
“We suspect that the reforms that are being considered now may involve how to shift the public’s perception towards looking at the cost of FOI requests.”
Making people pay for FOI requests has a chilling effect on how much the legislation is used, for obvious reasons.
Journalists may submit a lot of FOIs. Some may be freelancers like me, who would have to pay from their own pocket. But there’s also an equality of access issue here: it may seem quite obvious to anyone who’s ever been short of cash, but making people pay for FOI creates a barrier to access to information, disproportionately amongst certain groups of people who may be inclined to suffer poverty.
We’ve been here before.
When Labour’s Eithne Fitzgerald first introduced FOI legislation, enacted during the Rainbow Coalition Government in 1997, Ireland was taking a bold and progressive step towards democratic transparency; Sweden had had such laws since the 18th century, and then the US introduced their own standalone FOIA in 1966, but Ireland had followed the example of Australia and New Zealand, and had been in part motivated, let's face it, by the kind of cowboy politics - quite literally - that led to the Beef Tribunal.
The thinking was that corruption in public life could be diminished, and could become less of a cost burden on the state, with the oversight of the public. But this was an enormous step for a State that had been founded with secrecy at its core.
Under the 1997 legislation, FOI was free.
And this, Gavin says, is how it should be in a State that functions with transparency at its core.
“We see it as a normal way of running a country,'“ he says, “that these FOI requests are not somehow separate from the administration of the State; they are part of the administration of the State.”
“I think it’s interesting that FOI has become an issue the past couple of weeks because of the story about Coveney and Varadkar. The deeper cultural problems that exist in the public sector around attitudes to transparency and cultural secrecy are not getting better. That’s not to say they’re getting worse, but it was never that good in the first place, particularly from the 2003 reform onwards, when they introduced fees.”
It was costly to administer FOI requests, Charlie McCreevy would argue as Minister for Finance after General Election 2002.
“More or less immediately after the election, in the first cabinet meeting after the election, and I know this because I FOIed it,” Gavin says with a grin, “first thing on the agenda was, how are we going to stop this FOI thing, which had been going on at that stage for five years.”
“At the time, the civil service’s attitude was that there was a cost associated with administering the FOI regime, so we need to administer a charge.”
A €15 fee was introduced, and large fees to seek an internal review or appeal to the OIC. The effect was crippling, Gavin recalls.
“When I started doing FOIs at the Examiner in 2009, the €15 fee was an issue,” he says. “And it’s not just the fee: it’s the chequebook, the postal order, the envelope, the stamp. Maybe if you’re a journalist and you’re getting paid to do it it’s not such an issue, but if you’re just Joe Public and you just want to exert your right to access information, a punitive barrier is being put in place to prevent you from asking questions.”
On top of that, the €15 fee was actually costing the State money; the administration and cash-handling costs generated by the fees amounted to more that €15 per FOI.
“So the benefit to the exchequer was actually minus money,” Gavin says.
“There are multiple problems with fee regimes. Number one, do they make money? Probably not. Number two, are they a blocker? Yes. Number three, do they actually create an impediment to you exercising your rights? Yes. And are they sometimes used by public bodies to put you off? Yes.”
Fortunately, thanks in part to the work of Gavin, Ken Foxe and others who campaigned and then were involved in a review of FOI, our Freedom of Information Act 2014 abolished that initial €15 fee and substantially reduced fees for reviewing and appealing decisions.
So if an FOI review is underway, what reform would Gavin like to see?
It’s complicated
The system could be streamlined and made more user-friendly, Gavin believes.
“You now have four parallel regimes in place,” Gavin says. “FOI, AIE, GDPR and another one called RPSI. You file the request, but you have to specify which one you’re using, which is the wrong way round.”
“The fact that you have to specify the magic words for your request to be processed is crazy. You should just be able email in and say, ‘I’m seeing pollution in my local forest down the road and I want to know what the council is doing about it, I’d like all records related to that.’ And then the council should say, ‘ah, an environmental request.’”
FOI in the WhatsApp era
While the Coveney blip may have highlighted that we are now dealing with new technologies, Gavin says it does not point to flaws or required updates in FOI legislation, but to a workplace culture and to a lack of records management procedure as much as anything else.
“FOI is fit for purpose if the civil service is willing,” Gavin says. “Records management is massive in any bureaucracy, and we have hundreds of entities covered by FOI now. But how they are managed is pretty similar across all; you’ve got email databases, typically Microsoft Exchange, financial management systems, you’ve got people with laptops and computers on their desks that are storing information, you’ve got Microsoft Word on those machines, you’ve got folders containing things and network drives containing everything else.”
“Things are arguably more efficiently managed now because they are stored digitally. It’s not like stuff is inside filing cabinets any more. There might be a records management issue, but there’s also a resistance to a new style of FOI within the public sector.”
What the Coveney story has exposed, Gavin says, is “poor processes, which is very boring to the public, in a way: poor workflow management inside public bodies is not the most exciting thing in the world, but when a request goes in, how seriously is it being taken by the FOI officer in question, when it goes to a deciding officer how seriously are they taking it? How seriously are they taking their responsibilities for doing the search and retrieval process and what’s the penalty for not doing it correctly? Because there’s essentially no penalty. So what happens is a situation where you file a request and cross your fingers that the professionalism in the public body in question is second to none.”
And in my experience, it often isn’t.
Protectionism and conflict of interest.
When I wrote the OPW story on the Bandon Flood Relief Scheme recently, I had to seek an internal review, and in it, I had to point out that the decision-making, most especially because I was using AIE, had to be done on presumption in favour of release.
More and more, I am finding FOI departments who seem to be operating on the basis of trying not to release information.
This is made very seriously problematic in small organisations where the FOI officer might also double as press officer: in an ideal world, FOI decisions are not made on the basis of the potential damage done to the organisation if released, which is how many organisations seem currently to be operating. To say there’s a culture of protectionism within the civil service is an understatement.
Decisions should be being made on the basis of the act alone. Even in larger organisations, there can be the sense that the FOI officer is operating within a workplace culture where they are considering far more than the scope of the FOI act. Add to that the fact that when an internal review takes place, it’s someone the original returning officer works alongside, and it’s hard to factor out human nature and workplace culture here.
So severe are these issues that I sometimes wonder if there’s an argument for an entirely dedicated FOI unit responsible for administering FOI across all public bodies: an external entity that comes in when a request is made. If record-holding were streamlined, this is not outside the realms of the possible, but it would, of course, take a government profoundly dedicated to notions of transparency to achieve.
When it comes to Gavin’s points regarding crossing your fingers and hoping for the professionalism of public bodies and also on the lack of penalties for public servants breaching FOI law, an emerging story regarding the administration of arts money is underway in the music sector, where First Music Contact (FMC), the popular music organisation funded by the Arts Council, found itself administering the Irish Music Industry Covid-19 Emergency Relief Fund last year and receiving FOI requests, possibly for the first time:
The MISP group, a transparency group who, paradoxically, operate anonymously, told me via a Twitter DM that they don’t believe FMC will be prosecuted for tampering with documents that had been FOIed, which is a clear offence under the FOI Act.
Education, education, education
If we had a genuine, ingrained culture of transparency, Gavin argues, the proper use of Freedom of Information legislation would actually be being promoted and taught.
But the problem is, at the moment, no-one has that role, even though it seems like a natural fit for the Office of the Information Commissioner.
“In Scotland, I met the person who works for the Information Commissioner whose job is to promote the use of the act, to promote good practice within public bodies and so on,” Gavin says. “The Irish Information Commissioner doesn’t have that job and doesn’t seem to want that role; it’s just never existed.”
“We’ve tried to do some of that through social media: Ken tweets a lot about it. But to me, that should not be up to civic society itself to train and inform the public on it. The State itself has an interest, I think, to tell the public about their fundamental rights, to promote the use of these pieces of legislation and improving how they process these requests coming in as well.”
In my other job as media lecturer, I taught until recently on a BA programme where in one module, an assignment I set for my third year students was to send a Freedom of Information request. I would also normally take them through an FOI process I was undertaking, showing them email exchanges and returns.
But if we want to foster a genuine culture of transparency in public bodies, we need to start even younger, I would argue.
The Transition Years of today are the FOI officers of tomorrow, as my newly coined and extremely catchy phrase goes. Create a culture where it is a matter of course that FOI is a part of our democracy, something we all have recourse to, and a culture where everyone who works in public office not only knows this, but accepts it as the norm.
To Gavin, any reform that is coming down the line will be reflected in the usage of FOI into the future: unlike after 2003, is the legislation being used copiously and correctly? If so, he says, it’s working as it should.
“Implementation comes from engagement with the requesting public, which should be growing,” he says. “The number of requests and the number of people requesting should be growing in a healthy democracy, in my view. And costs be damned. The costs will pay for themselves, in exposing misspending and in the public better understanding how public money is being spent.”