Over the past week there has been a flurry of discussion in Ireland over proposed amendments to the Freedom of Information Act here and has led to public reversal by the Minister responsible.
Freedom of access public information is a core principle in a liberal democracy and Ireland has in the past few years had a middling reputation in this arena. In fact, during the past general election both parties now forming the governing coalition made promises to reform Freedom to Information and to remove the restrictions placed by the previous government. There has been much valid consternation over Ireland’s continuing practise of charging a fee to make a request for information under the FOIA. Many argue that this is discriminatory, restrictive and reflective of a desire by the state to make information available in principle but inaccessible in practice. Earlier this year the Minister for Public Expenditure and Reform tabled new legislation which the department claimed would modernise approaches to FOI and lend greater transparency to the operation of government in Ireland. However, the Minister and his department have been roundly criticised for seeming to actually raise barriers to access and reverse earlier moves to make public information more accessible. Specific clauses in the proposed legislation seem to put new restrictions in place and in ambiguous descritpion make the entire process far more subjective and unwieldy. Essentially, as Gavin Sheridan has pointed out in The Story (http://thestory.ie/2013/11/08/killing-freedom-of-information-in-ireland/), people should object to paying for information they have already paid to collect. This article provides a great overview of the serious issues raised by the erosion of access that the proposals as currently proposed.
I was interested in raising an interesting counter argument however. As the discussion of the FOIA request fee was raised I was surprised to discover that only 3 nations currently charge a fee to file a request for information under FOI acts: Ireland of course, but Israel and Canada being the others. I was chagrined. Why is the nation of my birth, and a paragon of Openness in government (well that’s debatable but there are some amazing initiatives there right now and I applaud them highly) charging when most countries seemed to have accepted that information should be available freely to their citizens on request?
When I considered this (and not wanting to become an apologist for the Canadian government – many of whose recent decisions, such as making the census voluntary beggar belief and are not in harmony with my own values) I did want to make a counter case for FOI charges.
I believe that there is an important distinction between saying something is available and actually making it accessible. Simply legislating that people have the right to request public information is not the same as putting in place a mechanism to ensure they actually receive the information they are requesting in a timely fashion and in a form that they can use. To that end mere legislation only solves half the problem- and I would argue in the case of Canada, the charge actually performs and important function with regards to the rule of law and in especial establishment of a contract between the citizen and state. It is difficult to arrive at an appropriate charge structure, but it is clear that the minimal charge in Canada is actually renders the process straightforward and establishes a contractual agreement to provide a service and now in a perfectly transparent fashion. As was crystallised as an Action in Canada’s Action Plan for Open Government. All requests for Information are logged and publicly displayed on a website showing that they have been received and providing the requester and the general public with an way of holding the government to task on fulfilment. Without the development of the contract it can be argued that the citizen can pursue the government through the remedies identified in legislation but these are far more onerous, time consuming and difficult that being able to pursue for breach of contract law. Now, bearing in mind that I am not legally trained, many of these distinction may be lost on me, I think that at its basic level there is some justification for a nominal charge, not to discourage abuse (that’ll happen – its not always rational) but instead to actually bind the intent of the legislation with the legal provisions to actually deliver on that intent. This needs to move from the statute book to a legally enforceable contract and in Canada this seems to be the case.What think you Ireland?
