A Beginner’s Guide to FOI

THE ABSOLUTE BEGINNER’S GUIDE TO FOI

This guide is designed to be read by members of the public or journalists looking to dip their toes into the world of Freedom of Information in Ireland.

It is not designed to be an authoritative guide to FOI, a history book, or an academic text … it is simply a useful introduction to the first steps, the language, and the things you need to know before you start.

It deliberately simplifies what are sometimes far more complicated issues.

This is also a work in progress. Any mistakes or errors will be corrected and suggestions on additional material to include are more than welcome at ken.foxe@gmail.com.

But first a very quick history lesson.

HISTORY

Freedom of Information has been one of the great democratising forces in Irish society.

Ireland had since independence remained a fiercely secretive state and the introduction of the first FOI Act in 1997 was an attempt (in the famous slogan of the time) at “letting the light in”.

The new legislation effectively made all public records public.

But (and there is always a but in Ireland) it came with exemptions, and lots of them.

These exemptions were meant to be, again using the vocabulary of the time, simply yield signs, rather than stop signs.

As Eithne Fitzgerald told the Seanad: “They permit information to be withheld, but do not oblige or require it to be withheld.”

The reality has, as anybody who uses the law will testify, been very different and the exemptions have instead become the road blocks by which requests are frustrated.

The original FOI Act was gutted in 2003 by the Fianna Fáil government of the day.

Famously, Finance Minister Charlie McCreevy – who introduced the legislation – did not even attend the final debate on it, instead choosing to attend the races at Cheltenham.

There were many damaging changes wrought in the new act but perhaps the most negative was the introduction of a €15 upfront fee for requests.

That might not sound like much and it wasn’t for larger media outlets, who still made use of FOI and could afford to pay the fees.

For others, especially members of the public, freelance reporters, regional journalists and so on – the fee was a significant impediment, particularly for anything more than occasional requests.

Thanks in no small part to a campaign by Gavin Sheridan of Right to Know, those fees were removed when the new Freedom of Information Act was introduced in 2014.

It was the most significant change by far and it is with that new act in mind that this guide is written.

MAIN POINTS

There are three main points to get your head around when it comes to FOI requests:

  • Wording of requests is of critical importance.
  • The main mistake is asking questions.
  • FOI in Ireland is not about answering questions – it is about the records that actually exist.

HOW TO WORD YOUR REQUEST

On multiple government websites, you will see things like FOI forms, instructions on how a request must be phrased, suggestions that they need to be put in the post and so on.

This is all rubbish.

No request needs to say anything more than the following:

Dear Sir/Madam, Under the FOI Act 2014, I am seeking the following:

  • Whatever you are looking for goes here. Keep it general if you don’t know exactly what you’re looking for. Be quite focused if you do.

I would prefer to receive this information electronically, preferably in its original formatting.

Yours,

XYZ

The reason we should ask for records electronically is because the reality is that this is the way they are stored.

It also then makes it far easier for us to search them, share them, and of course is helpful if we plan to upload them later for other people to see (as we should).

Another useful new element of the new act is that we can now request files in their original formatting.

This is very useful when government departments decide to print out a spreadsheet, then photocopy it, then scan it, and then turn it into a PDF that a computer can now no longer read. And yes, this does still happen.

So that poorly photocopied scan they sent you of an Excel sheet – tell them you want the original file and they have to oblige.

WHAT BODIES ARE INCLUDED

The vast majority of public bodies are subject to Freedom of Information requests, except for the Office of the President, and a few other exceptions.

Many bodies have been brought under the FOI Act since 2014 including the likes of the gardai, Nama, and many others.

Importantly, any newly created public body now automatically falls under FOI unless it is specifically exempted when created.

If an organisation has only recently been added, it may mean that records are not available as far back into the past as might be the case with others.

For public bodies that have been under the FOI Act since the word go, requests cover the period as far back as 1997.

You can use foi.gov.ie to see what bodies are included. There are hundreds, some of which will be very familiar, some not so much.

Some of them get thousands of requests every year, some of them get hardly any at all.

Most public bodies will have a section of their website given over to FOI and an email address to which requests can be sent.

If the internet fails you, then you can always pick up the phone and ask for the contact email.

RIGHTS OF APPEAL

If your request is refused, you have a right of appeal.

The first step is internal review and it costs €30. This is carried out by the same people who made the decision in the first place, except this time by a more senior member of staff. The experience of requesters would be that these, more often than not, fail.

The next step is an appeal to the Office of the Information Commissioner and it costs €50.

This second appeal will certainly take months, and in some cases – if contentious legal issues are involved – could take much longer.

There is another separate scenario where internal review and appeal do not cost anything.

This is where a public body fails to answer your request within the four weeks allowed without giving you any reason.

This is called a deemed refusal and any time you have heard nothing at around the fifth or sixth week of a request, you should look for an update.

If you feel you’re not getting anywhere, you can seek an internal review for free.

If the same public body again fails to deal with your request for internal review within the time allowed, you can appeal to the Information Commissioner at no cost on the basis that it was a deemed refusal at both stages.

This is a more common experience than you might think and the prime offenders last year were the Department of Justice, the HSE, Tusla, and perhaps most disgracefully RTÉ (when they demand transparency from others).

WHY DO REQUESTS GET REFUSED?

As mentioned already, Ireland’s Freedom of Information law came with some very large caveats in the form of exemptions.

When you read all of them, you could be forgiven for wondering how anything is ever actually released into the public domain.

They make up Section 28 to 41 of the Act and you can find them here.

People sometimes get frustrated with the FOI process because they look for records that are very obviously exempt.

For instance, the gardai refuse most requests they get because people repeatedly ask for material relating to operational day to day policing.

Most of the time their refusals are justified because the FOI Act only applies to gardai where it concerns administrative records relating to human resources, finance, or procurement.

So if you ask for crime information – you won’t get it.

Whether the Act should apply more widely to the gardai is a separate debate (and yes, of course it should).

The same thing applies to RTÉ, which also benefits from exemptions that don’t apply elsewhere particularly around the news gathering process.

There is no great use in complaining about a lack of transparency if you have not at least tried to familiarise yourself with the law.

The main exemptions you will inevitably come across are:

  • Commercially sensitive: used widely and often incorrectly.
  • Personal information: used widely and more often correctly.
  • Deliberations of FOI bodies: in very simple terms, this means that while an organisation is still making up its mind about something, records can be exempt. Once the decision is made, it’s usually fair game. Used very widely and very often incorrectly. This is probably the most abused exemption.
  • Security, defence, international relations, law enforcement and public safety. Self-explanatory.
  • Meetings of the government: basically memos, briefings etc prepared for Cabinet meetings.

If you believe a decision has been made incorrectly, there are two major resources at your disposal if you want to appeal and plan to rely on previous cases.

The first is the website of the Information Commissioner where you can find previous decisions.

The second, and more useful, is the book Freedom of Information Law by Maeve McDonagh, which you will find in the library or can buy (although it is €285).

PERSISTENCE

With all of that out of the way, the trick with Freedom of Information is to be persistent.

As you begin, your success rate for getting useful information will inevitably start low but improve over time.

Try not to get disheartened by it; that is what a lot of people do – so try to be one of the people who sticks with it.

You can only learn about this process by making mistakes. And the cost of making such a mistake is a few minutes of your time and not even the €15 fee there used to be.

THINGS TO BEAR IN MIND

Sometimes information is released under FOI that should not be. So occasionally it can be worth submitting a request that you think might be refused.

At the very least, you might get a schedule of the records that you are being refused access to.

From that, you might be able to build a picture or timeline of what happened or find a few names of people to contact or speak to.

Be aware that the quality of service varies enormously from organisation to organisation.

Requesters report positive experiences with the likes of the Department of Public Expenditure, Finance, Education, the Oireachtas, the Revenue Commissioners, and many others.

On the other side, people have consistently negative experiences with the Department of Justice, the HSE, Tusla and others.

Most government departments will at least do what is required, some much more quickly than others.

There is no real point getting annoyed with the public bodies that fail to deal with requests properly.

They are named every year in the annual report of the Information Commissioner and have not mended their ways so far.

Your angry email or phone call is unlikely to rectify the problem so if you do feel passionately about it, contact the minister responsible.

KEY THINGS TO REMEMBER

The first five hours of search and retrieval are free.

Try if you can to keep that in mind when framing your requests. Keep them manageable.

Requests for huge amounts of material can either attract large fees or be rejected outright on the basis that they are simply too big.

Public bodies are however, obliged to give you an opportunity to refine your request to make it smaller.

Common ways of doing this might be to reduce the amount of time you want to look at.

For example, if your original request is for five years of records, perhaps there’s a three or six month period in those five years that might yield most of the information you need.

Public bodies are not obliged to create new records for you.

They only have to release records that already exist. Sometimes, they will create a new table, list, or similar for their own convenience but they are not obliged to.

Freedom of Information requests are not and will never become the be-all and end-all of what these public bodies do.

Try not to bombard them with multiple requests at the same time, be understanding when people look for extensions for valid reasons.

Above all, be willing to talk to the FOI officers, explain to them exactly what it is you are looking for.

It is in both of your interests that each request is as targeted and refined as it can be.

DOCUMENT BLEED

As mentioned already, the single biggest mistake people make is in asking questions.

FOI in Ireland is not about asking questions – we look for the records that actually exist.

To do that, we have to try and understand how departments and public bodies work and how they think.

If we don’t know how they work – do we know somebody who could explain it to us?

If we don’t, try and imagine how people within an organisation communicate? And remember that most large organisations talk to themselves using very similar patterns.

Why and how do they create records? When do they write emails, memos, letters, reports, submissions, god forbid send a fax?

A meeting takes place

What records exist? Are there minutes of the meeting? Were people provided with briefing notes in advance? Was there an agenda? Did somebody give a PowerPoint presentation? Did somebody jot down handwritten notes? Was there an email chain afterwards to discuss the meeting, agree to the minutes?

A minister makes a decision

Civil servants prepare a memo for their attention. In advance of that, there are emails discussing what should go in that memo. There might be communications with other relevant departments and state bodies looking for their input. Are there representations from politicians, lobby groups, members of the public? The memo gets written up – the minister either signs off or doesn’t. Perhaps, they look for more information.

A foreign junket

The mistake that people used to make was they would make the requests too general – “all costs of such and such a trip”. Many years ago, I asked all government departments about the cost of St Patrick’s Day – helpfully, the Government Press Office came back to say they would collate the material into tables. It had zero impact.

Paradoxically, it is the small details that have the greater impact: copies of the actual invoices, the actual receipts and so on – insist on them.

Look for copies of emails in preparation for the trip, its organisation, anything that happened after the event. Make sure to get copies of the itineraries.

Politicians often complain that journalists are obsessed with expenses and foreign travel. Here’s my response to that.

NOT A PRESS QUERY

So above all, this is not a standard press query.

It is about trying to predict what records exist and getting your hands on them.

Think of the things that interest you and ask yourself how often the real question of why actually ever gets answered?

Every decision that is ever made – or not made – benefits somebody in some way. Who is it?

If Freedom of Information requests can do anything, it is to give us a better understanding of why decisions are made, and who benefitted.

FOI LOGS

Lots of government departments and other public bodies helpfully publish a list of the requests that they receive.

If you read them, you can see what is generating useful material and what is not.

If an FOI request worked with one government department, perhaps it might work with others?

Many requests are not made by journalists, and oftentimes useful information – sought by members of the public, legal firms, and so on, never actually sees the real light of the day.

Some example logs can be found below. There are lots more, including Finance, the Taoiseach’s department, the Central Bank, and so on:

If the public body that you are interested in doesn’t publish these logs – you can submit an FOI request looking for the log.

We can also seek a re-release of any FOI request that has been previously submitted.

If they insist you need to submit a new request, they are incorrect. That material is already in the public domain and should be treated as such.

ADAPTING TO CHANGE

Remember that public bodies are constantly adapting in response to FOI.

There is ample evidence of this. Pat Rabbitte publicly admitted keeping a parallel diary, the use of “sticky” notes that can be removed from files in the event of a request has also been reported.

So public bodies may attempt to hide their tracks, or change the way they do things.

Remember though how difficult it is to do anything without leaving an electronic footprint and we know for example that text messages sent via WhatsApp have already been released as part of at least one FOI request.

Keep this in mind if a request you submit yields no records when a year previously it yielded lots.

ALTERNATIVES TO FOI

The main – and really only – alternative to FOI is via requests under the AIE (Access to Information on the Environment) regulations.

The big advantage of these in the pre-2014 FOI Act world was that they were free. So that advantage is gone now although internal review is still free.

Also famously, the definition of what constituted a public body was much less clear-cut than under FOI especially when it came to the likes of Nama.

Through Right to Know, we are also testing whether the AIE Regulations can apply to the Office of the President and the Council of State, both of which are exempt under FOI law.

In theory, the definition of environmental information is supposed to be very broad but in the Irish experience it has been interpreted very narrowly by public bodies.

It does have its advantages, but the appeal process to the Commissioner for Environmental Information is even slower than with FOI.

WOBBING

Looking for information from the EU Commission and other EU bodies is criminally underused in Ireland and much easier than you would think.

For requests to the EU Commission, follow the link:

https://ec.europa.eu/transparency/regdoc/

For requests to the EU Parliament, this is the link:

https://www.secure.europarl.europa.eu/RegistreWeb/requestdoc/secured/form.htm?language=EN

For a list of all the relevant EU bodies, you can find them here:

http://www.asktheeu.org/en/body/list/all

A quick note to say that if you use the AsktheEU service, details of your request will be published online as it goes through the process. That may not suit everybody’s needs if for instance they want to keep their research hidden until their story is ready.

Similarly, if you use the WhatDoTheyKnow service for requests in the UK, your request will be posted online as it moves along.

Again, that may not suit everybody. One quick note on FOI requests in the United Kingdom – you are allowed to ask questions.

If you made it this far, thank you for reading.

If you have any questions or suggestions, let me know.