Mick Wallace (Wexford, Independent) | Oireachtas source

On the surface, the apparent move in the proposed Bill to undo the draconian amendments made to the Freedom of Information Bill by the Fianna Fáil Party in 2003 represents an improvement in Ireland's freedom of information legislation. However, within the proposed Bill there are striking conditions that undermine its integrity and reveal that the apparent move of good faith, as professed by the Minister, is an illusion.

Among the welcome measures are a reduction in fees, the provision of access to Cabinet papers after five years instead of ten, that communications between Ministers are no longer de facto to be off limits to disclosure, while the scope of records covered by exemptions is to be narrowed. We also see the inclusion of a number of previously exempt statutory bodies under the Bill such as the Garda Síochána and the Central Bank. However, woven into the fabric of the Bill are conditions that make a mockery of these welcome moves. Furthermore, even if these measures were not undermined by the internal logic of the Bill, they would not go far enough to stay in keeping with the internationally understood spirit of the freedom of information movement, or for that matter with the proclaimed purpose of the Bill which states it is being enacted "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and other bodies in receipt of funding from the State".

On closer inspection, the Bill is not about transparency and openness; through a lack of definition and wildly liberal interpretations of the notions of "public interest" and "right to privacy", it manages to uphold a culture of secrecy and deception that seems to be inherent to modern Irish politics. We are facing a critical juncture. With the advent of new technologies that have a massive impact on how societies are informed, monitored and organise themselves, we see a massive international discussion about the role of government in people's lives, its relation to international capital and, ultimately, what a government would actually look like in a genuinely inclusive democratic state. Yesterday, at the European Parliament Committee on Civil Liberties, Justice and Home Affairs, Mr. Edward Snowden, referring to the vibrant discussion taking place worldwide, said: "We see brave executives remembering that if a public is prevented from knowing how they are being governed, the necessary result is that they are no longer self-governing. And we see the public reclaiming an equal seat at the table of government." A few of us had the opportunity to meet Mr. Julian Assange in the Ecuadorian embassy in London this summer, which was interesting to say the least. While the state seems keen to interfere and record the private correspondence of citizens, it seems more reluctant than ever for citizens to see or understand what it actually does.

Article 40.6.1.^.i of the Constitution maintains that the State guarantees liberty for the exercise of a citizen's rights to express freely their convictions and opinions, including criticism of Government policy, while highlighting the grave importance of the education of public opinion. With this in mind, it is fascinating to see how much of the proposed Bill reads like a veto of that enshrined right. In section 6(3) it states the Minister may, by order, declare any public body or any other body covered by it exempt from freedom of information, something the Minister has already done with the exclusion of, for example, An Post, Dublin Bus, CIE, ESB, the National Oil Reserves Agency, Tourism Ireland and VHI. Section 34(1) goes on to allow the Minister to declare any record exempt from disclosure, if asked to do so.

Another provision which has already been substantially fulfilled, with section 40(1)(a), among others, discloses a long list of exemptions that prohibit the people from understanding how the Government conducts its financial affairs. Great noise has been made about the inclusion of NAMA and the NTMA in the Bill, but then in Schedule 1(n) the Minister exempts almost all documents of interest that these bodies possess. The people are very interested in knowing how NAMA operates. They have every right to know how it operates. That might help them to understand some of the blatant inconsistencies in how it deals with different individuals.

Section 42(j) states the Bill does not apply to documents given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of proceedings in either House of the Oireachtas or any committee of either or both such Houses or any subcommittee of such a committee. This section essentially states the Government thinks lobbying, one of the most underhand activities in modern politics, should go unchecked. Running counter to what the Government desires, the truth is that policy making does not and should not take place in a vacuum. There is too much at stake and far too many people are affected by the Government's decisions. Accordingly, the activities of lobbyists and the lobbied should be transparent, in accordance with the public interest, as any reasonable person would interpret freedom of information.

The recommendations of the open government partnership with regard to lobbying are particularly interesting in this respect. It states that the regulation of lobbying Bill should be strengthened to ensure it regulates lobbyists and the public representatives and officials who are the subject of lobbying. The proposed Bill focuses on transparency on the part of lobbyists, but the lobbied - public bodies, public officials, and office holders - should also be subject to enhanced transparency requirements, including default publication of written submissions on public policy by lobbyists; an updated code of conduct for elected representatives and public servants at national and local level; publication of ministerial and advisory diaries; and requirements for all policies and legislation to include details of the organisations with which the Department or Minister has been in contact during the preparation of the proposal. It is almost laughable that if the Bill comes into force the first object of the regulation of lobbying Bill, which is to ensure there is an appropriate degree of transparency in the development of public policy, the preparation of legislation and public administration and decision-making, will effectively be null and void.

Although the reduction in fees is to be welcomed, a paper by TASC's Nat O'Connor has shown that the fees regime does not lead to any cost recovery and is in fact likely to add to the total administrative costs. If this is the case with the outgoing fees system, then the proposed fees structure makes even less sense and simultaneously reveals clearly the purpose of the fees, which is plainly and simply a tactic to discourage the public from using this invaluable service. Gordon Brown's comments in October 2007 are instructive on this point. He stated that when anything is provided without cost it risks being open to abuse. He also stated that his Government did not believe more restrictive rules on the cost limits of freedom of information requests were the way forward. He stated that the Government had dropped its restrictions proposal because of the risk such a proposal might have placed unacceptable barriers between the people and public information. He stated that public information does not belong to the Government but to the public on whose behalf government is conducted, and wherever possible this should be the guiding principle behind the implementation of the UK's Freedom of Information Act.

Since the publication of the Bill earlier this year, the Minister has portrayed himself as the great agent of the restoration of progressive freedom of information legislation in Ireland, and much of the Irish media has, for the most part, faithfully regurgitated this line. The truth is that the proposed Bill is riddled with get-out clauses which in effect undermine the championed moves towards improved transparency, accountability, and the citizen's right to know what happens in his or her name.

Under the proposed legislation there is simply too much of which the public will be kept in ignorance, but this is no earth-shattering surprise. This is the status quoin the relationship between power and truth. The 2005 Nobel laureate, Harold Pinter, reflected acutely on this failed marriage when he stated there are many truths which rebound off each other, challenge each other, and demand teasing out. He said:

Political language, as used by politicians, does not venture into any of this territory since the majority of politicians, on the evidence available to us, are interested not in truth but in power and in the maintenance of that power. To maintain that power it is essential that people remain in ignorance, that they live in ignorance of the truth, even the truth of their own lives. What surrounds us therefore is a vast tapestry of lies, upon which we feed.

Thomas Jefferson once stated that every day a citizen must be a participator in the government of affairs. The Bill in its present form effectively discourages and limits the scope of the Irish citizen's participation in our so-called democracy. Inscribed into the Bill is a consolidation of the secrecy of the State and how it operates. This represents a cowardliness on the part of the elected towards the electorate, and also an act of supreme arrogance by the Government. The information in question is the property of the citizens of the State. For the Government to be able to effectively pick and choose what, when and how the people of Ireland learn about what the elected Government does in their name flies in the face of any professed notions of inclusiveness, openness, and transparency - notions that should be the bedrock of any democracy worthy of the name.

If democracy in Ireland is to flourish, and the trust the Government has lost by repeatedly testing the patience of this country's citizens is to be restored, much more transparency, openness, and inclusion should scream from the Bill, but I am afraid it does not.

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