Report: PAI’s Freedom of Information Conference 2017

Last Thursday 30 March, PAI hosted a half-day conference on the present challenges in Freedom of Information. The conference looked at FOI requests from multiple angles: that of the requester, that of the FOI officer, and that of the Office of the Information Commissioner.

Minister for Public Expenditure and Reform, Paschal Donohoe TD, delivered the keynote speech on the morning.

He noted that Freedom of Information legislation in Ireland, “like all legislation, is either evolving or is going to evolve”.

The impact of a hard Brexit is expected to cause ripples through society. Following the formal decision made by Minister May to trigger Article 50, the Government will have many tough decisions to make, and “no doubt that many of the decisions will be subject to FOI requests in order to understand the processes [they] are involved in.”

The Minister noted that other changes were coming down the line – including those caused by the commencement of the GDPR in May 2018.

The Minister stressed the importance of the FOI legislation, especially considering the recent Irish context:

“The awful economic crisis has had a decisive effect in the trust citizens have for the institutes that govern them.” A recent survey showed that Irish citizens have the sixth highest expectation of services delivered. However, only 28% of citizens have trust in the Government. While the measure of trust in Government has very slowly increased since 2013, the fact that we are only ahead of the European average by 1 percentage point offers no solace.

He said of a well-managed FOI process, “It’s needed and it’s appropriate. It is to enable members of public to gain access … to information held by public bodies”.

FOI is not only valuable in increasing public trust. From a legislative prospective, the value of the legislation is marked; it improves the contestability of policy advice.

A new Bill is making its way through the Oireachtas at the moment, and is expected to enter into Committee Stage in April. The Public Sector Standards Bill 2015^[i] will make changes in the way public business is conducted. It will look at the processes of data transfer between governments, across borders. This will allow data to be more widely-used. This is bolstered by the Open Data Initiative^[ii].

New legislative features of 2014’s updated FOI Act expanded the selection of public bodies subject to FOI requests to nearly 600 organisations. Other changes implemented with the introduction of the 2014 Act included: up-front fees being eliminated; this has caused a significant change in the volume of requests received – a trebling of the number in the last number of years.

Regrettably, said the Minister, there have been issues of misgovernment in the past. These incidents should be exposed, examined and used as a basis for better, evidence-based policy with transparency at its heart. The FOI legislation we have is in place to enable that kind of debate and scrutiny.

“We need uncomfortable discussions – that’s the way a mature democracy should tackle issues, to make sure misgovernment does not happen.”

You can listen to a full podcast of the Minister’s speech here.

 

Roisin Connolly, an investigator with the Office of the Information Commissioner and Ombudsman (OIC) spoke next.

Roisin summed up a common experience for those involved in FOI: “We get so bogged down in the day to day, we can forget the function of the legislation.”

The elimination of upfront fees contributed to an overall rise in the number of requests received by organisations. However, the OIC only see less than 2% of all FOI requests made. The majority of requests are dealt with FOI offices at FOI bodies, a credit to those FOI officers.

According to Ms Connolly, a large part of making things easier, for everyone in the process, lies in quality decision making. To do this, you must first clarify the request

She advised FOI officers, where a requester reverts to request more information, officers should “treat requests for further information as a separate request. Requesters then have full right of appeal”. Where any doubt is involved, “contacting and assisting the requester is not only recommended, it’s mandatory”.

Roisin provided the delegates with some figures:

• 40% of all applications received by the OIC had a deemed refusal at one stage;
• Just under 30% had a deemed refusal at both stages.

If denying at one or both stages, the Commissioner requires the FOI body to make that position known to the requester.

Including a schedule of documents concerned under the request can help expedite the whole process. This is especially true in cases of part-release of documents. Requesters may be happy not to appeal a decision if it is clear that the document they need has not been released, even if some have not.

She noted that a “lack of clarity undermines the trust of FOI requesters in the process.”

She further noted that if a public body frequently received requests for the same information, it may be in that organisation’s best interests to publish and make that information freely available to the public, thus cutting down on the overall amount of request to be processed by the FOI officers.

You can listen to Roisin’s presentation here.

 

Ken Foxe, lecturer at DIT and freelance journalist, spoke after Roisin.

He said, from a journalist’s perspective, “FOI law is still full of exemptions. We see them cropping up constantly, misused, and applied even where precedent has already been set.”

While new time limits were enacted in the most recent legislation, the time it takes to have an FOI request returned can be up to four months. “Even four months is an incredibly long time in media. The story might well have no currency anymore.”

However, FOI requests can often be the source behind many news stories. It is not uncommon to see “found in FOI documents” or “discovered through an FOI request” at the beginning of news articles.

Mind must be paid to the fact that the legislation was overhauled “against the backdrop of tribunals, inquiries, corruption”. By making information easier to access, we could “eradicate the cache of ‘revealed after FOI request’, and remove its newsworthiness”.

Mr Fox likened the current FOI cycle to that of the chicken and egg: is it transparency, or is it the level of dysfunction that precedes FOI legislation?

Without FOI, we would have a culture of journalism by grace and favour.

“Without it, journalists must rely on human behaviour. If you write negatively on a organisation, you’re closing those lines of communications. Then, wrongdoing must be reported by whistleblowers, at which stage the damage could be catastrophic.”

He finished his presentation on the questions: why are certain bodies exempt from the legislation, and whose interest does it serve?

You can listen to Ken’s full presentation here.

 

Paul Lavery of McCann FitzGerald was the final speaker in the first session.

He spoke about the inherent contradictory interests in FOI – personal privacy, right to information, and security, to name but a few. How do you look at all interests and come to a conclusion?

He said, “If you apply exemptions too widely, you end up with a poor FOI Act.” However, there are cases where exemptions should be applied.

The concept of an FOI exemption comes into play when confidentiality or prejudicial information is involved; where private sector organisations are involved; in tenders, where costing is involved; where information gives one a competitive advantage over competitors and the release of that information would lessen that advantage.

Also, the right to privacy for special classes of people, such as whistleblowers, is important to manage.

In cases where these issues conflict with FOI, there is one main question to be asked: what interest should prevail?

There are, at present, statutory confidentiality provisions. Paul complimented the OIC’s Guidelines on the application of these provisions. In legislation, there are “two similar but different provisions”.

Section 35(1)(a) provides four steps for determining confidential info.

Section 35(1)(b) provides for the “breach of confidence test”.^[iii]

Finally, Paul noted that “mutual understanding is a key point in FOI … 20 years later, private organisations should be aware of the possibility that any information they release to a public body could be subject to an FOI release.”

His advice, based on this, would be to include information about your FOI-able body to any private sector organisation with whom you do business to make them aware of what is required of them, and the information that is exchanged.

If there is information that is unsuitable for FOI release, confidentiality should be formally confirmed. “People should be aware, at this stage, that confidentiality should be observed.”

You can listen to Paul’s full presentation here.

 

The late morning session began with a panel of FOI professionals, with questions from the floor.

Mark Bohan of the Central Policy Unit in the Department of Public Expenditure and Reform noted that there is a helpdesk available for FOI officers in need of advice or with questions.^[iv] In order to aid those working in FOI of case law that concerns the legislation and its application, the Office of the Information Commissioners maintains a “Decisions” section on their website^[v].

The panel spoke at length about the FOI process and the importance of understanding your role within it. Ideally, “FOI would be everybody’s job. The FOI officer would manage the collection of data and the Data Protection officer would be the decision-maker.

Mary Orford, formerly of ComReg, encouraged those present to join an FOI network – “most of the support, assistance and guidance” came from the network she was a part of.

You can listen to a podcast of the panel discussion here.

 

Daniel McConnell, political editor of the Irish Examiner, spoke after the panel.

His experience of the FOI Act, he said, was one of frustration. He believes that FOI in Ireland is “a broken system”, from the perspective of the requester.

This is often due to what he called “over-zealous use of the exemptions”. By way of example, he outlined his personal experience with a part-release of documentation. After a €36m bailout of CIE by the Department of Transport, Tourism and Sport, he was granted a part-release of the documents regarding the matter. However, of the 37 documents on the schedule, only one was released – a press release he was already in possession of.

There can be inconsistency is how the Act is applied. There are often blanket refusals on tenuous grounds – as is seen in NAMA’s struggle to be left out of FOI legislation. Mr McConnell was clear on his opinion of this: “this is not the Act working”.

A self-confessed “Serial requester”, submitting roughly 300 requests a year, he found that it can often be a long process, which can hinder the dialogue surrounding an issue. “If we don’t deal with these issues quickly, there is no point.”

You can listen to Daniel’s full presentation here.

 

Annette Hogan, also of McCann FitzGerald was the last to speak in the afternoon.

She spoke at length about balancing personal interest and public interest.

FOI usually excludes personal information. This is not the case with regards personal data for staff in public bodies, except in issues of misconduct or judges expenses etc. While being FOI’d, you may refuse to confirm or deny the existence of a record if, by doing so, you would reveal personal information. This is especially important, again, in cases of whistleblowing.

She also spoke about the blanket exception for information covered under both legal professional privilege and litigation privilege. Defining what is and is not privileged information can make this process much easier.

You can listen to Annette’s full presentation here.

 

Notes

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^[i] Can be found on the Oireachtas website. Available here.

^[ii] For more information about the Open Data Initiative, see the Department of Public Expenditure and Reform website. Available here.

^[iii] Section 35 of the Freedom of Information Act 2014 can be found here.

^[iv] Information can be found on the Freedom of Information website, found here.

^[v] “Decisions” section on the OIC website can be found here.