The minister for public expenditure may be back, to undermine Freedom of Information.

An edited version of this article appeared in Village magazine, December 2013-January 2014 edition

Brendan Howlin was refreshingly frank. Freedom of Information (FOI) legislation, he declared, “provided an irritant for many of us. We get irritated when there are requests to see expenses or who travelled where or what was spent on the Minister for Justice, Equality and Law Reform’s breakfast or the Taoiseach’s dinner.”

Brendan Howlin. Image © Faduda
Brendan Howlin. Image © Faduda

Criticising the FF/PD government’s planned up-front FOI fees in 2003, he said the irritant was “balanced by a searing light penetrating the way business is done. It has two fabulous benefits. It has transformed the way business is done, attacked old prejudices and required reasoned arguments for decisions.”

That was then. This is now.

In the decade between the introduction of FOI fees in Ireland and Brendan Howlin’s legislation to “restore FOI to what it was before it was undermined”, the minister had a change of heart. In early November, just before the bill went to committee stage, he introduced an amendment which would have taken the most expensive FOI fees regime in the world, and made it even more expensive.

It was not the first such bid to cripple the legislation. An earlier draft of the bill required civil servants to pretend that computer records were made of paper, and decide if a search was reasonable accordingly.

Howlin’s amendment led to an instant backlash, first online where journalist FOI activist Gavin Sheridan broke news of the proposals by tweeting the words “Head exploding. Seriously.”. Sheridan may be unique in Irish legislative history. In workshops with journalists over the years, he has popularised the multi-faceted request as a way to justify the cost of FOI stories to editors. A few hours later, on the evening of Friday 8 November, having digested the proposals, Sheridan blogged about them on The, a website dedicated to FOI requests.

Reactions followed immediately, from FOI activists, journalists, and academics. The following morning, the NUJ – which was holding its Irish Delegate Conference that day – issued a statement condemning the moves as a further undermining of FOI in Ireland. The Sunday Times wrote an editorial.

On Monday, the story gained further traction, when Matt Cooper ran a piece on the Last Word. An NUJ analysis of the savings as a result of FOI requests, compiled by Ken Foxe, was covered in the Guardian. Among the more colourful examples was the €2600 Michael Healy-Rae had to repay for hundreds of calls to the voting line of a reality show voting he appeared on.

Irish Examiner reporter Conor Ryan highlighted one request in 2011 which resulted in a repayment of €37,750 to the State. By comparison, all up-front fees in 2012 raised €59,166. National Newspaper of Ireland, the representative body for the industry, called for the abolition of fees. Gavin Sheridan appeared on the Vincent Browne programme on TV3. TDs across the political spectrum from Stephen Donnelly and Shane Ross to Sinn Féin’s Mary Lou McDonald condemned the proposal.

The department of public expenditure released a statement defending the amendment. It introduced for the first time the previously unheard-of concept of “the fee per issue principle”. It also claimed its fee structure reflected “international best practice”, prompting NGOs from Article 19 to Access Info Europe to respond that it was nothing of the kind. An Article 19 spokesperson appeared on Morning Ireland, explaining their view that the charges were “a violation of international law”.

The amendment was pushed through the committee stage, but then Howlin had second thoughts, and announced he was withdrawing it to “ensure there would be additional clarity about how multi-faceted requests would be dealt with”.

Gavin Sheridan points out that no other EU country charges an up-front fee, and the “multi-faceted requests” the minister find so troublesome exist only because of those fees, as an attempt to maximise the return on each €15 request. Not only that, but the cost of processing and lodging those €15 cheques consumes all the funds they raise.

Sheridan does not believe the fight for FOI is won. “The minister hasn’t said he has changed his mind,” he say. “He’s just clarifying it. This was attracting too much heat, not just at home but internationally, and they were about to announce the country’s exit from the bailout. It was a distraction, and they wanted to clear the decks.”