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'A crisis in FOI': How Zapponegate highlighted crucial flaws in Ireland's transparency legislation

The latest controversy has raised concerns among journalists and transparency activists.

THE FREEDOM OF Information (FOI) Act returned to the spotlight last week amid the re-emergence of the controversy surrounding the since-abandoned appointment of Katherine Zappone to a part-time role at the UN.

The government was accused by the opposition of bringing the transparency legislation “into disrepute” after Foreign Affairs Minister Simon Coveney admitted that he had deleted texts – which may have been subject to FOI – relating to the appointment.

There were further concerns when Tánaiste Leo Varadkar released text messages between the pair later in the week, prompting confusion among reporters and politicians who had previously sought the texts under FOI but were told they did not exist.

The messages should have been released under FOI legislation, and Varadkar subsequently apologised that this did not happen, saying he was on “annual leave” and was not contacted to share them when the requests were being processed.

The Department of Foreign Affairs also published 111 documents pertaining to the planned appointment of Zappone yesterday, and Coveney is set to appear before an Oireachtas Committee today to answer more questions about the controversy.

Journalists, transparency campaigners and opposition TDs have all decried the latest developments in the long-running controversy surrounding Zappone’s appointment, holding them up as further examples of Ireland’s broken FOI system.

Critics have long-accused public bodies of misapplying the legislation and making it increasingly difficult for citizens to access information under FOI.

Sinn Féin TD Mairéad Farrell yesterday said there is currently a “crisis in FOI” and called on the government to fix the problem, describing the Act as “fundamental to democracy, media and activism”.

Others have raised concerns that an upcoming review of the Act will make problems with the legislation even worse, and suggested that regulators are simply powerless to deal with potential breaches of FOI like those seen in the past week. 

So how can the problems be fixed? And what lessons can be learned from the Zapponegate affair?

Straightforward legislation

As names for pieces of legislation go, the Freedom of Information Act is straightforward in explaining what it does.

Under the Act, members of the public have the right to access information held by a wide array of public bodies.

Any member of the public can use the Act to access records created by a public bodies, government departments and officials, or local authorities in the course of their duties, as well as information held by these bodies which relate to them personally.

Individuals can also use the Act to have information about themselves edited by a public body if it is incorrect, incomplete, or misleading, but FOI is mostly used for obtaining records.

The application of the Act is balanced between the public interest, under which records are disclosed, and a right to privacy, which can see records redacted or withheld.

To help ensure a right to privacy, the Act contains a long list of exemptions which outline specific circumstances under which the requested information may not be released.

These include things like a threat to the security of the State if the records are released, the disclosure of records that might be legally privileged, the potential that the information contained within certain records was obtained in confidence, or if the records that have been requested are deemed not to exist.

Broadly speaking, the Act is supposed to ensure public accountability through transparency – but as events last week showed, this is not always the case.

Citizens and journalists have repeatedly cited issues engaging with public bodies to obtain records in a timely or efficient manner, and often complain that their requests have been rejected for spurious reasons.  

Journalist Ken Foxe, who is also director of the transparency group Right to Know, explains that there are virtually no consequences for public bodies who don’t adhere to the legislation as they’re supposed to.

“Arguably, the least cooperative, most unhelpful and least transparent public body actually has a built-in advantage, because if they keep being that way, then people stop making requests,” he says.

“They end up doing much less work if they just make it so awkward that a lot of people turn away. It’s almost incentivised to engage in bad practice.”

Cultural problems

Others have suggested that although the Act itself may be working, part of the problem may be down to attitudes within government.

Labour TD Brendan Howlin, who was Minister for Public Expenditure and Reform when the FOI Act was last updated in 2014, tells The Journal that while he believes the legislation is still “robust”, there are wider issues within government in applying it.

“You have to change culture as well as law,” he says.

“That means changing the culture to ensure that public businesses is done in a transparent way, and to give people genuine access to the way decision-making happens. 

“I don’t think that the reform side of the Department of Public Expenditure and Reform has been maintained in recent years. I think we need to revitalise that, and there has to be very clear guidelines from the department on FOI that everyone can comply with.”

Problems may also derive from the workload on civil servants who process FOI requests on behalf of public bodies, almost all of whom perform other functions as part of their roles.

In 2014, an update to the Act removed the €15 application fee for non-personal requests so that submitting an FOI is free of charge.

While this has led to an increase in the number of FOI requests made, a senior civil servant told a Department of Public Expenditure and Reform event in July that this had placed an increased burden on staff.

The same event heard that the number of FOI requests made to public bodies had doubled since 2014, and that some civil servants were struggling with the increased workload.

Review announced

Amid ongoing concerns about the legislation from both members of the public and civil servants, Minister for Public Expenditure and Reform Michael McGrath announced a review of the FOI Act earlier this year.

Irish Secretary of the National Union of Journalists, Séamus Dooley, noted that the series of events involving Coveney and Varadkar last week highlighted the urgent need for such a review.

“The casual attitude to texts and phone messages is deeply worrying,” he said.

“It suggests that there is a profound lack of awareness of the fundamental principles of FOI. FOI is about an ethos of government and if senior political figures think it is acceptable to delete texts that’s a significant problem.”

Dooley also suggested that the Information Commissioner – essentially Ireland’s ombudsman for FOI – should have a role investigating the revelations by Coveney in particular that he deleted text messages from his official phone.

Ken Foxe of Right to Know similarly called for the commissioner to be more vocal on the issue, suggesting that part of the fundamental problem with FOI was how the commissioner operates.

“The only time the commissioner gets involved is after a person has sought a review and paid €80 to do so,” he says.

“It leaves this whole kind of muddled area where public bodies are just refusing requests all the time, failing to declare records, and just dealing with requests very badly.

“For the last week, the entire country has been talking about the retention of records, if you’re allowed to delete them, is it illegal, etc. And yet the only person who can decide that, we’ve heard absolutely nothing from them. To me that is not a good scenario.”

A statement issued on Thursday by the Office of the Information Commissioner said the commissioner has no role in examining the records management practices of public bodies or in directing public bodies to manage records in a specific way. 

Such questions may be left to the Oireachtas Foreign Affairs Committee when Coveney appears before it later this morning.

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