The Latest Threat to Freedom of Information

Freedom of information is an essential component in the balance between the rights of the individual and the State.

When it was first introduced in Ireland in 1997 it was pretty revolutionary, and a huge leap out of the dark.

Then in 2003 it was drastically curtailed, the detriment of the citizen (hint, that’s you .)

You may recall my reference to a glimmer of hope a little while back when I mentioned new legislation in this area in the form of an FOI Bill 2013 which promised to extend the scope of the legislation to all publicly funded bodies.

However, it now appears that late changes in the current draft Bill could result in a more restrictive FOI regime rather than a more open one.

Essentially the crux of the issue will come down to payments required for FOI requests. If State agencies are able to charge hefty upfront fees for requests this will make it uneconomical or unaffordable for many FOI requesters to pursue requests.

On the face of it the new bill does not purport to increase charges but two current amendments to the draft legislation are doing so indirectly.

The first involves an amendment which, if passed, will allow a State body to treat a request dealing with more than pieces of information as a separate request for each piece. This could involve in a very substantial fee for what previously would have been one request.

The second involves a discretionary right being given to State bodies to charge for search and retrieval pursuant to Freedom of Information requests.

Now, perhaps these charges might be capable of justification, except of course when you realise that we as taxpayers are paying for the creation and retention of all of this information in the first place.

FOI requests are vital to enable journalists and other commentators to hold our public bodies to account.

They are also an essential part of the investigation process when you find yourself a victim of negligence or wrongdoing by the State, such as in the case of victims of medical negligence.

The increase in charges that this FOI amendment is proposing is cynically purporting to give with one hand while in effect taking much more away with the other.

And don’t just take my word for it; have a read of this: “Killing Freedom of Information in Ireland”

In contentious business, a legal practitioner shall not charge any amount in respect of legal costs expressed as a percentage or proportion of any damages (or other moneys) that may become payable to his or her client or purport to set out the legal costs to be charged to a junior counsel as a specified percentage or proportion of the legal costs paid to a senior counsel. A legal practitioner shall not without the prior written agreement of his or her client deduct or appropriate any amount in respect of legal costs from the amount of any damages or moneys that become payable to the client in respect of legal services that the legal practitioner provided to the client.

Flor McCarthy is one of Ireland’s leading lawyers, certified by the Law Society of Ireland in Data Protection Practice. Flor has extensive expertise and hands-on practical experience in privacy, data protection and GDPR issues for marketers. He was chosen as Munster Solicitor of the Year at the Irish Law Awards in 2018.