Oireachtas Joint and Select Committees
Wednesday, 13 November 2013
Committee on Finance, Public Expenditure and Reform: Select Sub-Committee on Public Expenditure and Reform
Freedom of Information Bill 2013: Committee Stage (Resumed)
I move amendment No. 33:
We had made a lot of progress last night on substantial matters contained in the Bill before we reached this amendment. This is very important legislation in that it seeks to restore the freedom of information legislative regime in this country, make it fit for purpose, take on board the advice we have received from the Information Commissioner and others since significant amendments were made to the original legislation in 2003.
In page 27, to delete lines 33 and 34 and substitute the following:“(9) (a) Where a request to an FOI body under subsection (1) is made up of 2 or more parts seeking separate and distinct information relating to functions and responsibilities carried out by different functional areas of the FOI body, the head of the FOI body concerned shall treat each part of the request as a separate FOI request. The requester shall be required to pay a further fee for each separate request under this paragraph, or the requester shall pay the fee for whichever request or requests he or she may specify or modify the request so that no further fee is payable.
(b) A head shall assist or offer to assist the requester concerned in amending the request so that it no longer comprises more than one request.”.
There are several principles captured by the legislation: the establishing of several key statutory principles governing the operation of FOI legislation, all of which incorporate international best practice; creating a legal presumption that official records requested will be released; strongly promoting the proactive release of official information by public bodies; and requiring public bodies to draw requesters' attention to the scope to obtain records other than through FOI legislation. The freedom of information legislation is important, but I hope we are moving towards a different type of regime where we have open data.
I made some commitments at the open government partnership, OGP, in London some time ago to indicate that our objective was to move towards an open data regime. There are logistical and technical issues, but there should be a presumption that the default position is that information is in the public domain. I will be relaunching my own departmental website shortly with more data on it, including all invoices and so on. That is part of the regime we are working towards. However, couched within this is the issue of reforming the FOI regime. I said last night that I thanked the members of the committee for undertaking a lot of detailed analysis of the legislation and their thoughtful report. The Chairman mentioned last night that he was not overwhelmed by the interest garnered by the report once it was published, but it certainly was important work and is instructive in terms of what we want to do and what is being proposed.
The one point of contention from the very beginning was whether there should be a charge system for accessing information. I have indicated from the very beginning of this process that in the current climate I think that would be reasonable. It should be remembered that it has been, in some shape or another, a feature of the FOI system in this country from the very beginning. While the 1997 Act did not contain an up-front charge, there was a retrieval fee system that imposed a charge in recognition of the actual cost involved in the retrieval of information.
I thank all Deputies for their contributions on this net issue. We had a long debate on the fees issue at the outset of Committee Stage yesterday. I am conscious that it is a very small subset of what overall I regard as acknowledged progressive legislation, but it is an important one. I have listened very carefully to everything that has been said. In my response I made clear the Government's decision, following a very careful examination and taking into account the observations provided in the committee's pre-legislative scrutiny report, to maintain the FOI application fee, while providing for a significant reduction in the fees for internal review and any appeal that may be made to the Information Commissioner. The €15 fee was not a particular hurdle, but the higher charges for internal appeals or going to the Information Commissioner were. I am making proposals to provide for very substantial reductions in these fees.
As I said yesterday, there were a number of important considerations that informed the Government's decision-making, including the principle that there should be a charge, recognising the often significant and real cost of processing requests for non-personal information. Of course, requests for personal information which comprise the bulk of FOI requests will remain free of charge.
I heard clearly the views expressed by a number of members that there should be no application fees or no fees of any kind for standard freedom of information requests. I have indicated that in principle I broadly share that perspective, but there are realities that I must address, including the State's current fiscal position, the substantial reduction in public sector numbers, including Civil Service numbers, and the pressures in these circumstances on our administrative system in providing priority public services. The conclusion that the Government drew on the issue of FOI application fees was, therefore, that maintenance of the fee was required for the time being to ensure the administrative system would have the capacity to effectively and efficiently manage the demand.
This is a reality recognised in other countries. In that regard, I have noted the information reported in today's newspapers indicating that one in five of 94 countries with FOI laws in place have FOI application fees. This is broadly the same percentage as applies to the OECD countries. The right to information international rankings of national legal frameworks for FOI report that, in addition to Ireland, OECD member countries with FOI application fees include Canada, Switzerland, Japan, Portugal, the Czech Republic, Turkey and Israel.
I have listened carefully to the concerns expressed by members of the committee which were articulated clearly and well yesterday about the specific proposals contained in the Bill to unpackage entirely separate and unrelated issues included in a single FOI application and apply a separate charge for each. If we accept the principle that there should be an individual charge which I have said from the beginning I am proposing should remain - there is an up-front charge of €15 - we really have to follow through and acknowledge that it is not possible to simply bolt on completely separate and extraneous matters and bundle them together as one request. That undermines the principle of the fee system. If the fee system is to be used, this will be a requirement.
I have listened carefully to the views of members of the committee but also to what has been written in the past few days. There is a genuine fear that the actual amendment I put forward will not be interpreted in that way, in other words, that, somehow, requests for subsets of the same issue would be individually charged for. That is not the intention of the Government; it is not my intention, nor is it the intention of the legislation. Where there are separate, clearly unrelated issues bundled together, they should be disaggregated. However, where there is a very long set of questions on the same issue - as long as one likes - that is one issue, one request. That is the way I intend it to be and that is the way I have explained it to be. However, it is clear from much of the public comment on the proposal that there is confusion and a misinterpretation of the provision I have set out and its objective. Today I read one article, a dislodged article because I had written an op-ed piece on freedom of information which was not carried, but the alternative piece which was carried referred to fees runnimg to thousands of euro. There are a lot of €15 fees in a sum running to thousands of euro, even with search and retrieval fees and so on. That is not the intention, nor will it be the consequence of what I am suggesting. Such estimates are based on a wrong interpretation of the intention of the legislation.
It is very important that the very great leap on freedom of information in Ireland which is being advanced by the Bill is not overshadowed by unnecessary uncertainty or lack of clarity on what is a simple and straightforward intention. An FOI request on a single issue or related issues requires the payment of one single fee. Where multiple unrelated requests are received, of which I provided examples for the committee yesterday - I can provide further examples today because they come in all the time - the principle of charging for a FOI request must apply. It is incumbent on me to take full account of the level of concern that the application of the legislative provision would in practice go much further than I have intended in a situation where there is such a sea-change in the legislative provision set out by me. While I firmly believe that will not be the case, I am committed to having the legal drafting of the provision reviewed and refined to ensure there can be no doubt, no uncertainty and no misinterpretation by anyone who subsequently reads the Bill, such as an information officer or agent or applicant, about the objective I have put to the committee. I hope that is crystal clear. A single up-front fee of €15 is required to capture as long an FOI request as is required on the same issue, but where there are separate, clearly distinct issues, they will be treated as such.
My priority is to ensure the final provision, as enacted by the Oireachtas, will not support unreasonable concerns that the cost of freedom of information requests in Ireland is unaffordable, through requiring a single fee to be paid for entirely separate and unrelated FOI requests.
I have given some consideration to the views expressed by colleagues and, with my officials, re-examined the text of amendment No. 33. On a simple, plain English reading, I am confident that it will achieve the purpose I have set out. Nevertheless, I acknowledge that there are genuine concerns that the provision might be used by some on the administrative side of the house to implement a charging system that is not intended. To that end, with the permission of the committee, I propose to withdraw the amendment and, in co-operation with my officials, devise a form of wording to take it beyond confusion, doubt or misinterpretation that what I have set out is what I intend to be achieved. We have already begun working on it with the Parliamentary Counsel; had we been able to do so, I would have brought forward the revised amendment today. I ask members to facilitate me to that end, with the objective of continuing our discussion on Report Stage.
I also acknowledge that some people hold the view that there should, on principle, be no fee regime. It is a perfectly legitimate point of view. However, I put it to the committee that if we accept that a contribution of €15 for a distinct application is reasonable, we cannot allow that provision to be circumvented by bolting entirely separate, extraneous and distinct matters onto the same FOI request.