Opinion

The Government Doesn't Take the Freedom of Information Act Seriously

Sam Tranum portrait
Sam Tranum

Sam Tranum is deputy editor of Dublin Inquirer. He's been a newspaper reporter, a newspaper editor, an assistant professor of journalism, an author and a book editor, among other things. You can follow him @samtranum.

During the media storm early this year about the Ireland 2040 campaign, I submitted a request to the Department of the Taoiseach under the Freedom of Information Act, for records related to that campaign.

The department’s responses to that request over the months that followed led me to suspect that the government does not take that law seriously. And what it did in the end convinced me that this is the case.

I submitted my FOI request on 24 February. I was one of many who had the same idea, and also submitted FOI requests at this time.

On 26 February, the department responded to me, saying “A final decision on your request would normally be sent to you within 4 weeks”. The law says that the department “shall” send me a decision “as soon as may be, but not later than 4 weeks, after the receipt of the FOI request”.

Weeks passed and then, on 21 March, I got another email from the department, this one saying it needed more time. The law says they can take an extension “not exceeding a period of 4 weeks”; they said they were taking 20 days, which is basically the same thing, and that I could “now expect to receive your decision by 27/4/18”.

On 27 March, the department published records online that related to parts of my request. However, when the appointed day in April came around for it to send me a decision on the rest of the records I’d asked for, there was no word.

I emailed to ask where my decision was. Rachael O’Donoghue of the Taoiseach’s Strategic Communications Unit called me and explained that they were too busy to comply with the law by responding within the required time period. I waited until 11 May for a decision and then filed an appeal for an “internal review” of my case.

In response, I got an email from Medbh Killilea, whose LinkedIn profile listed her as the “unit coordinator” of the SCU: “We have every intention of releasing the requested records and do apologise for the delay in response. The unit is currently working through a very large backlog of FoIs.”

Increasingly, public bodies like the Department of the Taoiseach don’t bother to follow the FOI law, according the Office of the Information Commissioner’s 2017 annual report.

If a public body fails to issue a response within the time limit, this is a “deemed refusal” of the FOI request. Back in 2013, 13 percent “of all applications accepted by my Office were recorded as deemed refused at both [request and appeal] stages”, Information Commissioner Peter Tyndall says in his report.

“In my 2016 Report, I noted that it was the worst year on record in terms of the number of deemed refusals by public bodies. It is with some dismay, therefore, that I must report on the fact that matters have gone from bad to worse,” Tyndall’s report says. The figure rose in 2017 to 29 percent.

If the government itself ignores the law when it’s inconvenient, can the rest of us do that too? I’m in a big hurry, garda, so I had to break that red light. I was very busy, Revenue, so I didn’t have time to file my tax returns. Sure, that’ll work.

Friday Evening Spin

In any case, the Department of the Taoiseach ignored the law and released the first tranche of the records that I and other journalists had requested at a time of its choosing: Friday 25 May at 5:15pm.

Releasing unflattering information on a Friday evening is a time-honoured trick used by spin doctors to try to beat the news cycle. In this case, it was especially effective because, on that Friday evening, Ireland was voting in the referendum on the 8th Amendment.

This is a point that several TDs raised in the Dáil on 30 May with Varadkar, who responded that: “All requests received in my Department are processed by designated officials in accordance with the FOI Acts.”

Sinn Féin TD Mary Lou McDonald asked: “Was Friday chosen as the release date for these documents because of the inevitable distraction of the media focus on the referendum?”

Varadkar said that whatever happened wasn’t his fault: “[…] the long-standing practice adopted by the Department and by successive taoisigh, including me, is that the political head of the Department has no role in processing freedom of information requests or determining the timing of the release of information on foot of such requests.”

But he said he thought the documents that his department had released made it and him look pretty good, so “If I had been given a say in the matter, I would have had these documents released on a slow news day so that they would have received more coverage.”

Fianna Fáil TD Micheál Martin asked: “Who knew about the timing of the release of these documents?”

Varadkar replied: “I do not know who knew. I did not know. I honestly do not know who knew. I guarantee the Deputy that I was much too busy with the referendum.“

Well, I know who knew. Clearly the staff at the Taoiseach’s Strategic Communications Unit knew, because they were emailing with me about it – though they might not have been the ones who made the decision.

They finally released the remainder of the documents I’d asked for the day after this discussion in the Dáil: Thursday 31 May, at 7:07pm. That’s a long way past the 27 April deadline.

(I wrote another column today about some of what was in the documents. You can read that here.)

 

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