Does Open mean Accessible?

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?

30 thoughts on “Does Open mean Accessible?”

  1. It’s a tough one to come down on either side, Shawn.

    On one side, once can say that a charging structure avoids frivolous requests and, as you have said, legitimises the request and response as a sort of contract. The question begged is, of course, how we differentiate frivolous requests from those to be deemed as legitimate.

    On the other, we have a fee structure potentially meaning that the poor and underprivileged in our society cannot access data which their government has collected.

    I think it comes down to how one defines the importance of FOIA requests. If they’re defined as a “nice to have” part of a society, then a small fee with exceptions for those proven to be unable to pay makes sense.

    If, however, access to FOIA requests is defined a basic human right, then I think one has to admit that a fee to make such an enquiry is indefensible. It’s pretty tough to see these requests as anything other than such when, as Jennings points out, FOIA requests have been used to disseminate information on matters of such great national importance as the beef tribunal, Anglo & NAMA.

    1. I have to say FOI is a bit of a joke here. I don’t mind a small charge to cover the expense but what I do mind is that not all bodies are covered, that the government can in the middle of the night rush through law and not disclose all information, they can them hide behind these laws spouting commercial sensitivity

  2. Regarding the point where the government makes the information available in principle but not in practice makes me concerned about the certain “exclusions” that enable some bodies to keep information private. I agree that there must be a policy regarding the security of the state and other important factors but I feel that the exclusions should be more specific than are currently laid out in the bill. The power held by the central bank, industrial relations bodies, and the National Treasury Management Agency is too big to give them carte blanch to interpret the law without checks and balances.

  3. I have to agree that FOI is just a joke here. Seriously charge? Come
    on. I think it is becoming so ridiculous in these days to charge for any
    data being accessible. Ok let`s say that you must sign up to it and pay some
    amount to cover the expense but as Kevin mentioned what will be the guarantee
    that all bodies will be covered, and that all data will be accessible with
    no matter if it`s sensitive or not. But in the other hand I would even question
    which of those information, data is real. I do agree with Tony that definitely
    there should be a policy regarding the security and the date related to that
    state.

  4. yes, at first I would have definitely said that any charge is absolutely ridiculous “should object to paying for information they have already paid to collect. ” , this is nothing new, go to work everyday and then I get to give the government half of my money just for the privilege, but of course I get something in return (i’m just not sure what), and then with the money that I’m left with I am taxed on again just for spending it, or saving it! But you’re point on having a nominal charge to discourage abuse is valid, unfortunately our government is greedy and lazy (sorry I don’t sit on the fence), a small charge on the request of information would not be set aside to improve the FOI process and response times.

    1. Good idea…last night it took me one hour to get my comment posted…and since I tried about 20 times I wouldn’t be surprised if 20 copies of the same comment are going to appear in the next hours…

      1. what did you do! The only comment I can get published is the one above – just an issue with the blogs – I have lots of long and rambling nonsense to share with you all ….and just can’t post…?

          1. Dear Deborah,
            As you had commented on this blog previously three times, but had not included a link in those comments, DIsqus flagged for approval. These come to me to ensure that they are not spam because of the link. As I was traveling yesterday and without internet access when you pushed the publish button the first time it held it in the moderation queue. I approved it this morning.
            As Disqus bases its judgment of spam/not spam on prevuious approvals, it notes that you have actually used disqus 14 times in the past and 7 of those have been judged or marked as spam (not on this blog so I can’t see where those were from). You have an interesting online history – I would posit you probably were not aware that there were comments posted using your persona and marked as spam. I suspect I am personally a far more recognised spammer although never intentionally sending spam myself.
            Shawn

          2. Thanks Shawn. I tried to comment to another topic (the NFC one) few weeks ago and was having trouble (and my comment never appeared)…could that be when Disqus decided I was a spammer? It’s interesting that since then I managed to post other comments though (without embedded links to be honest)…So I guess I’ll see how it goes with other posts in the coming weeks…Thanks again!

  5. Elaine – no one will know the true cost until the request is completed! I’m guessing (and maybe being kind here) that Trinity has a more joined-up data model than the government behemoth? And if thats the case, then depending on the volume of FOI requests, there could be a dedicated person/team? You will probably save money/justify the new resource(s) in the long term?

    1. So the Government spends x amount of time fulfilling a FOI request and only when its completed, will the full price of it be known. That is not acceptable, the full price needs to be agreed to up front. What would stop people from refusing to pay for it if it was too expensive or they didn’t have the money. Its too late at that stage as the work is already done. As you mention a dedicated team/person could be in charge and calculate the full price as soon as its received. But we both know that will cost more time and money, and our government will not implement that.

      1. I know – the major elephant in the room is the inability to stand back and look the data model – and then scrap it and restart it!! By applying fees the govt is doing 2 things – 1. admitting that its a painful process to fulfil a request for info and 2. admitting that its a convoluted path – like that add on tv about walking home after a few pints! Thats how I imagine it must be trying to get any requests answered betimes!

  6. I think a private sector comparison can be made within the legal system, discovery. This is a very lucrative element of the legal process and you often here of a requests for information and thousands of documents being returned, giving great billing opportunities for lawyers on both sides and this is seen as a valid and necessary expense to the legal process.The charges being mooted here are nowhere near the scale of the charges for discovery yet I would assume its a similar effort for the supplied of the information. Even if the information is being prepared for general consumption it would have to be checked what is being published is not inadvertently breaching rights or confidentiality.

    Yet there is still a kick back/heated discussion from people in any charge for this (attack on democracy !!)

    http://www.irishtimes.com/news/politics/foi-fees-are-an-attack-on-modern-democracy-1.1597951

  7. I personally feel that there should be a
    small fixed charge applied for FOI requests. At first glance you might think
    why should I pay for information which is freely available but from reading on
    it is actually the service of gathering and presenting this information which
    justifies the payment.

    Maud’s point regarding not knowing the full
    payment until the information that has been gathered does make the whole process seem a bit
    ridiculous though. As with most things in Ireland nothing is straightforward or
    easy but an agreed initial fee would make the whole process more viable.

    If everyone knew the payment was put
    towards improving the system for storing the information and the service as a
    whole it might be easier to convince people who are against a payment. The
    other point which has been raised regarding filtering out genuine requests is
    also something which benefits charging for the information.

    1. I completely agree, FOI requests have saved taxpayers millions over the past decade by revealing overspending and financial risk and prompting action in response to these issues. In light of this it’s hard to argue that a fee is required to administer these requests but I think a minimal, token fee should be applied to prevent abuse. Freedom of Information is an essential tool for transparency in government. Any attempt to introduce unnecessary complications or prohibitive fees to the process is in effect resistence to transparency. It would be refreshing to see Ireland embrace the true meaning of open government and engage more citizens in policy making. I doubt there are many that would support the last minute amendments to our FOI regime.

  8. I would put forward the idea that maybe have a cap on information requests. Over a certain level of depth the fee kicks in, that way they can layer the fee to relate to the amount of work and organisation that it’s delivery requires.

    They could also group information into the most requested types or areas of query and have that information for free or for a lower fee. The more unusual or infrequent the request the higher the fee etc….

  9. One of the more topical issues mentioned in the Irish legislation
    is ‘providing a framework for the extension of FOI to non-publicbodies in
    receipt of significant funding from the Exchequer’.
    This might put a little focus on some private sector and charities that have no problem spending tax payers money on top-ups and bonuses
    On the fees, I think they should be applied. An FOI request strikes fear into any manager in the public service as it’s an unknown volume of work that needs to be carried out and often it gets priority over the day job. Elaine already made the point about the volume of work involved, for this reason I agree that more infromation should be readily available online. There’s always sensitive information that shouldn’t be made available but that’s only a tiny section of the overall data.
    As for Canada, it seems like they have struck the right balance when it comes to asking for fees and providing data in the right way

  10. Interesting debate here. A hot topic, but one in danger of suffering from the classic Gaussian smoothing we (Ireland, Europe, the World?) do so well. Let’s not lose focus on what actual changes these amendments bring with them, and the distinction between restriction, cost and rights.

    There’s a good concise post on the background of FOI in Ireland (including a new post on the home page about the recent proposed amendments) here: http://foireland.blogspot.co.uk/2013/01/three-steps-forward-two-steps-back.html

    On a slight tangent, but one very relevant when discussing electronic documentation,
    is the importance of open data classification in both public and private sectors. Surely classification is a tool that will support the significance of understanding, managing and storing documents, and one that can theoretically support in-depth FOI requests.

    Moreover, and more than ever the powers-that-be should be attempting to restore some level of faith in governmental reform and the democratic system. This would hopefully go some way towards realigning the wider passive opposition that currently exists, while encouraging a participatory public. I personally feel these FOI amendments to be somewhat lacklustre within the national/global context of FOI advancements.

    The goal, transparent inclusive governance. Or is that just an idyllic pipedream/likely political campaign message?

    Yours uncertainly,

    The positive pessimist.

  11. I think it would be fair to have a small fixed charge for FOI requests especially
    if it is used to underpin Quality of Service as is the case in Canada. It seems
    to me that one objective of the changes in the latest bill seems to be aimed making it prohibitively expensive to conduct trawling exercises. There was a story from some years back describing how a FOI request was made for copies of HSE pre-school
    inspection reports over a certain period. It took the HSE months to fulfill the request. I imagine the expense for this on the HSE side would have been huge. The latest bill proposed separate charges where the requests were made to different parts of the same
    organization. On the one hand this would seem to be fair putting more of the cost onto the requester. But these methods have also been used by parties such as The Story to uncover information that organizations would like to stay buried. Gavin Sheridan claims that this would have killed most requests made by The Story. It was reported that following the controversy the minister was retreating slightly but the split charges could stay in another form.
    I agree with Daire who suggested in his post that a general cap on fees would be a good idea but also that the cap and the fees could be appealed by either party to a committee or office that would oversee the process and also could strike out the fees say if a member of the public was not able to pay.

  12. In principle I don’t really have any objection to a small and capped fee. However I think that sometimes the difficulty in accessing the information or even simply knowing exactly where to get the information can make the gathering of information very time consuming and costly on the requester.
    It would be far better if a professional and independent body was appointed and all requests for information went through this body. For many citizens the thought of approaching governments for information can be very daunting and if the government or a government funded organisation is slow in releasing that information many would not have the wherewithal to actually pursue the body through the courts. This function should be the function of the independent body acting on behalf of the citizen. So that is to say that they would make the request, gather the information and deliver it to the client in a timely fashion and if the request of the information is not forthcoming in a format that is usable by the citizen or in a timely fashion the independent body should be charged with reporting and pursuing the relevant body. This then would be a service well worth paying for.

  13. Folks, an interesting update on this from over at thestory[dot]ie…a recent Dutch case in the European courts about the legality of a fee structure that might translate as a barrier to accessing information: take a read – http://thestory[dot]ie/2013/12/16/the-connection-between-fees-and-human-rights/
    It would be interesting to see a similar case brought here. As I said previously, I have no issue with a flat fee but am concerned this new fee structure will become unappealingly expensive.

  14. Shawn, you may be annoyed at Canada for charging for the information but it sounds like they have thought it through and set it up correctly, ensuring that all parties are contractually covered. Whereas, Ireland is probably charging a fee in the hope that it will deter people from looking for the information in the first place. The government should be forced to publish certain information on the internet for all to see then they wouldn’t have to charge a fee to provide the information. I especially don’t like that fact that, in some cases, you don’t know what the charge will be up front.

    Also other countries may provide the information freely but I still don’t think they are happy about it. For example, as reported in the attached article. “A US Navy official mistakenly forwarded an email to a local news reporter this week outlining the Navy’s method of avoiding the very Freedom of Information Act requests that reporter had filed.”

    These emails are probably common within organisations but no one has made the mistake of emailing them externally. Doh!!

    http://rt.com/usa/navy-foia-reporter-accident-294/

  15. I feel a nominal fee is insurance against misuse of the services but I also feel with a little research you’ll find there are a lot more than 3 nations that have no freedom of information not to mention the fee involved.
    We should be happy to be citizens of a first world country and accordingly your expected to contribute, to keep you in the way of life we are accustomed to. Yes we pay charges, fees and taxes but I would prefer to be doing this then living in a under developed country with no prospects and a lower a standard of living if we have to pay a nominal fee to have access to information restricted to a majority of the worlds population so be it.

  16. I agree that there should be a small charge, partially because even a small charge would deter “time wasters” (for want of a better description) and also because there can be a consderable amount of work involved in dealing with a FOI request, Software to ensure compliancy and fines for non-compliancy would indicate that there is not a lot “free” when it comes to Freedom of Information.

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