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Government insists new FOI bill does not intend to 'uninvent computers'

Transparency activists have raised concerns about a provision in the new Freedom of Information Bill but the government has insisted their interpretation of the bill is not what the proposed legislation intends.

Image: Files stacking up in a messy order via Shutterstock

THE DEPARTMENT OF Public Expenditure and Reform (DPER) has insisted that it is not the intention of the new Freedom of Information legislation to limit requests for large quantities of data following concerns raised about the bill by transparency activists.

Solicitor Simon McGarr claimed this week in a blog post that the government is trying to “uninvent computers” with the new FOI Bill which is due to become law before the end of the year.

He said that section 17 (4) (b) of the bill will require officials in public bodies who are handling FOI requests to deal with database queries in the same way in which they would deal with queries related to printed files, thus potentially limiting the amount of time and effort these officials can devote to extracting information.

The relevant section states: “The FOI body shall take reasonable steps to search for and extract the records to which the request relates, having due regard to the steps that would be considered reasonable if the records were held in paper format.”

The explanatory memo with the bill says that bodies coming under FOI are “required to take reasonable steps to search for and extract such data (analogous to the steps that would be considered reasonable if such a record was held in paper form)”.

McGarr claimed that this section, as well as the bill’s explanatory memo, appeared to limit the quantity of data that FOI officials can extract from databases as this must be comparable to how they would handle a query if they were searching physical documents.

McGarr said in a further post that ‘data-dumps’ such as all details of all expenditure by the Department of the Taoiseach would not be possible under the new law.

Not creating new records

But DPER said that the intention of this section is to ensure that the extraction of records from a database under an FOI “does not constitute the creation of new records.”

“The new section 17(4) of the Bill recognises that we have moved from a paper-based environment to an ICT-based one and makes fully clear that records in a database may be accessed provided no manipulation to the data is required in order to produce the record,” a spokesperson said in an emailed statement.

In the lengthy statement, they added: “The [current FOI] Act, similar to Acts in other jurisdictions, does not provide that in the event records are not already in existence, they should be created by public bodies whether through manipulation or analysis of data held, or otherwise.”

“Indeed it [the proposed bill] goes further that (sic) the current Act in that it provides that FOI bodies should take all reasonable steps to extract electronic records from a database and that the extraction of records from a database and providing them does not constitute ‘the creation of new records’ in the FOI context.

“Instead it sets out that the extraction of records from a database would be akin to searching through paper-based files and extracting records from such files.

“The provision ensures that a request for the electronic equivalent of a schedule of files would not be denied for the reason that the record does not exist.”

“It is regrettable that the Government’s attempts to clarify the right of access to electronic records is being interpreted as some sort of new restriction instead of widening the scope of access as it does.”

Wording matters

But McGarr insisted despite this response that the wording in the bill is not good and that whatever the government’s intention all that matters is the wording of the legislation.

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“I have read the bill they have published,” he said. “It’s what they have published which is relevant and not what their intention is. That [DPER's response to his concerns] is a description of what they intended to do. I can’t dispute that, all I can do is look at the bill they have published.”

Journalist and transparency advocate Gavin Sheridan said he was concerned that the government is “trying to impose constraints on obtaining data” with section 17 (4) (b) of the bill and said this was against the government’s transparency agenda.

“It seems like it is an anti-data provision. I don’t think you can amend it, it needs to be removed from the bill,” he said, adding that the section did not appear in any draft versions of the legislation.

The Department of Public Expenditure and Reform added that under the new bill a public servant’s full travel and subsistence claims could be released under FOI as someone could search a system under a name and print off records before compiling them as one record.

This would not constitute a new record whereas some public bodies have argued in the past, under current law, that it would be a new record and therefore refused the request for such information.

Giving another example, the Department said: “If a requester sought all emails from one person to another between 1 and 5 May concerning official information, this would be information which could be accessed using a simple search process and downloading relevant records and under the Bill public bodies would be required to provide this.”

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Hugh O'Connell

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