GOVERNMENT MAKES IT MORE DIFFICULT FOR CITIZENS TO GET INFORMATION
Quiet changes that sabotage Freedom of Information and keep us in the dark
Irish Independent 21 Jan 2007
TEN years ago, Freedom of Information was introduced to end Ireland's culture of secrecy and to promote "open government". However, since then, as a result of sneaky amendments and last-minute law changes, the system has been largely sabotaged, to the point where it's not working.
Launched to much fanfare, and one of the last achievements of John Bruton's Rainbow government, the 1997 Freedom of Information Act sought to "replace the culture of secrecy within the public service with a culture ofopenness."
But a Sunday Independent investigation now shows that the system of Freedom of Information (FoI) is not only failing but failing badly. Applying for records under the Government's much-vaunted commitment to transparency and accountability has proved expensive and frustrating, to the point where fewer and fewer people are applying. It is now more difficult and more expensive to get information than ever before.
But why is FoI so important? Well, for example in the last 12 months alone, FoI has provided such big stories as the revelation that health board inspectors recommended against the registration of Leas Cross nursing home; the annual breakdown of TDs' expenses; many of the stories about MRSA; annual schools league tables, to name but a few. FoI also allows people access to reports or documents pertaining to themselves, which they did not have before.
Since its introduction in 1997, FOI quickly became popular with journalists and many members of the public, because it provided previously unheard-of access to the workings of government, both central and local, and many state agencies. Many 'sexy yarns' began to adorn the front pages of the newspapers, and time and time again the Government had to swallow hard as details of its failings were there for all to see.
But eventually, obviously sick of being forced by this new law to give out what was often highly embarrassing and controversial information, the Fianna Fail and Progressive Democrat Government set about reeling back the scope and impact of FoI.
In April 2003, new restrictive amendments were squeezed by the Government through Leinster House. Despite heavy criticism and pressure from opposition parties, the then finance minister, Charlie McCreevy, said that the changes were necessary. There was talk of legal challenges to the amendments at the time, but it came to nothing.
Crucially, as part of new amendments fees were introduced for the use of FoI. People requesting information now had to pay €15 in advance for non-personal information. Internal and external appeals of a decision on such a request cost €75 and €150.Medical card holders are given discounted rates.
Also introduced in the 2003 amendments was a series of non-disclosure clauses, which allowed huge tracts of information to be kept from entering the public domain. Among these was Section 53 of the 1998 Education Act, which prevents the release of information that would facilitate the compilation of league tables on schools' performance. A five-year moratorium is also imposed on draft strategy statements and ministerial directions emanating from Government departments. The immunity from disclosure of these decisions has been vigorously opposed by the Ombudsman and Information Commissioner, Emily O'Reilly. She said that her recommendations on the provisions had been broadly accepted by the Dail committee, which then did an apparent U-turn and supported ministers. Commenting on the changes in the FoI legislation, a spokeswoman for the Department of Finance said: "In general, the fees were designed to encourage a greater appreciation of the cost of administering the FoI Act by public bodies. The average cost of processing a single FoI request has been estimated at €420. The fees were not considered to be a deterrent to responsible use of the act."
However, it is now widely acknowledged that the introduction of fees has caused the number of applications to plummet. In 2002, the last full year without fees, 7,936 requests were made, compared to just over 3,000 in 2005.
The Information Commissioner has said that the most worrying aspect of this is the fall-off in requests from journalists. Ms O'Reilly told a conference before Christmas that in 2002, before fees were introduced there were 2,103 requests from journalists, compared to 963 in 2005.
O'Reilly said: "I would suggest that as a society we should be seeking to encourage greater levels of engagement with 'government' by members of the public. The figures show that since 2003 such engagement has declined dramatically.
"Before the fees, a journalist could simply rattle a request off from his desk, whereas now the additional red tape of getting the fee puts many of them off, as is proven in the drop-off in requests," Ms O'Reilly told the Sunday Independent this weekend.
According to O'Reilly, herself a former journalist, the message of the amendments has been that "people's FoI rights have been severely curtailed; the exercising of those rights has been made more difficult, and the Government is now less enthusiasticabout FoI than hitherto". In addition to the 2003 amendments, there have been several law changes to exclude agency reports which have, as a result of FoI, caused significant embarrassment for the Government.
One example of this came in the summer of 2005 when the dilapidated state of school buildings in some parts of the country was a hot political topic. The Health and Safety Authority (HSA) sent in inspectors to a number of schools to make sure that they were safe workplaces for teachers. Their findings - which the Sunday Independent obtained under the Freedom of Information Act - made headline news and embarrassed the Department of Education. Not long afterwards, in September 2005, the Government quietly passed legislation which ensured that those reports would never be published again.
When in 2006 we again applied for the HSA's inspection reports on schools, we were told we couldn't have them. The legislation resulted in the HSA's "investigative functions" no longer falling within the remit of the FoI Act. It put inspection reports on hospitals, nursing homes and other public buildings out of reach of the FoI too.
An email from the Department of Finance (which has overall responsibility for FoI matters) to the Sunday Independent said: "The HSA was subject to FoI in full, but in legislation passed last June . . . the Minister for ET&E [Enterprise, Trade and Employment] removed from FoI coverage the investigative functions of the HSA - ie, inspection reports on industrial etc, accidents/incidents . . . previously available under FoI are now excluded."
A Government spokeswoman said: "It is understood that most of the FoI requests received by the authority [HSA] prior to the exemption related to incidents investigated by the authority, a proportion of which were stillunder investigation or proceeding to prosecution at the time of the request. The potential for such information to come into the public domain at such a delicate time and prior to possible prosecutions was likely to be prejudicial to court proceedings."
However, while the reasons for removing the reports from FoI may have some validity, there is no doubt that the absence of such reports is to the advantage of a Government keen to limit the damage which such reports cause it.
There are numerous other anomalies in how the act is applied. The Health Service Executive (HSE) recently decided, on foot of a recommendation by the Ombudsman, to publish inspection reports on nursing homes. The Sunday Independent used the act to apply for the reports on four nursing homes that were at the centre of controversy late last year. The homes had been told not to admit any more patients. We wanted to get the reports to find out why.
Our requests were forwarded by the HSE to relevant area managers, who refused our request but for different reasons.
The east coast area of the HSE said we couldn't have the inspection reports because there were "broader community interests" at stake and releasing them could lead to "ill-informed conjecture". Other areas said we could not have the information because the inspection process was still in train.
On another occasion, the Sunday Independent sought inspection reports on hostels for asylum seekers from the Department of Justice. The department at first refused to release the reports because they were "commercially sensitive". Even after the Information Commissioner granted our appeal, the department initially refused; this time because it was simply too much work.
Emily O'Reilly has called for a full analysis to gauge the impact of the amendments. She said: "I think it is high time for the application of FoI to be looked at. It's clear it is not working as well as it should be . . . The changes have been so negative that many of them must now be reviewed, most of all the issue of fees." O'Reilly has also called for An Garda Siochana to be subject to FoI. In her strongest attack on the Government's stance on FoI, she said that of 26 Council of Europe states, including former eastern bloc countries such as war-torn Bosnia and Herzegovina and Moldova, Ireland is the only country to exclude police-related information from being made public.
"It may be argued that An Garda Siochana is currently undergoing major transformation and this is not the right time to make it amenable to the act. I would argue the opposite: FoI, along with the Garda Inspectorate and Garda Ombudsman Commission, should be seen as contributing to this overall transformation process."
The Government has said there is to be no roll-back on FoI before the election.
Daniel McConnell
Back to Top
Reporter released after 'disturbing' leak arrest
Irish Independent 22 feb 2007
THE arrest of former Evening Herald journalist Mick McCaffrey following publication of a leaked report highly critical of the gardai was last night described by the paper's editor as "deeply disturbing".
Stephen Rae described the arrest of Mr McCaffrey, who was released at about 7pm last night without charge after being questioned by gardai from the National Bureau of Criminal Investigation, as an "attack on press freedom".
Mr McCaffrey, who now works for the Sunday Tribune, was named in the Dail yesterday as the reporter arrested after he went to Harcourt Terrace garda station yesterday morning by arrangement.
His arrest follows a garda investigation into the Herald's publication last August of allegedly leaked details of the Birmingham Report into the case of Dean Lyons, who was wrongfully charged with the murder of two women at residential accommodation at Grangegorman psychiatric hospital in Dublin on March 6/7, 1997.
A detective sergeant was also arrested yesterday and questioned at Blackrock station by detectives. He too was released last night without charge and a file in relation to both men is to be sent to the DPP.
Gardai launched their investigation after the Evening Herald published its report three weeks before the report was officially published last September.
Mr Lyons was charged with the murder of Sylvia Sheilds (59) and Mary Callinan (61), who were stabbed to death in their beds in March 1997.
The charges were dropped seven months later and he died in England afterwards. Gardai later apologised to his family for charging an innocent man.
Mr McCaffrey had previously been interviewed by gardai in relation to the Evening Herald report.
Fine Gael justice spokesman Jim O'Keeffe said the arrest raised serious questions about the direction the country was going.
"If the arrest arose because of legitimate journalism activity in which he was involved, it does raise very serious questions."
"Minister McDowell has established a substantial reputation as a leaker of confidential matters so it seems strange that a journalist, part of whose job is to establish the facts, has been arrested."
Herald editor Mr Rae said the paper's former reporter had been arrested for no other reason than he had told the truth without fear or favour.
Interviewed on the RTE news, he said: "It is our duty as journalists to tell the truth. It is now a crime to tell the truth, to tell the facts."
He said Mr McCaffrey in his report had revealed details of what in the case of the Grangegorman killings had been "a shambolic Garda investigation".
He was also critical of Justice Minister Michael McDowell, who he said had complained to gardai when the Evening Herald had published its initial report last August.
National Union of Journalists Irish Secretary Seamus Dooley described the arrest as disturbing and somewhat alarming.
He said the Herald report published just three weeks before the official publication of the report posed no threat to the investigations carried out by George Birmingham.
He added: "It is particularly ironic that a journalist faces a possible five years in jail in the run up to a general election during which time every government minister and their spin doctor will be leaking like a sieve."
Eugene Moloney
See also
Public Inquiry.IE
Back to Top
