Committee Reports > List of Committees > Joint > 2003 > Committee on Finance and the Public Service > Final Report - Hearings relating to the High Level Review Group on the Freedom of Information Act 1997

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JOINT OIREACHTAS COMMITTEE ON

FINANCE AND THE PUBLIC SERVICE

THURSDAY, 13^TH MARCH 2003

NUJ Delegation - 13^th March 2003

Mary Maher, Cathaoirleach, Irish Executive Council.

Séamus Dooley, Irish Secretary, National Union of Journalists.

Ronan Brady, Irish Executive Council.

Fergal Bowers, Editor, Irish Health.com

Richard Dowling, Journalist, RTE.

Opening Comments by Mary Maher, Cathaoirleach, Irish Executive Council

Cathaoirleach, Deputies, Senators.

The NUJ is grateful for the opportunity to address this committee on the report of the High Level Group on the operation of the Freedom of Information Act.

As Cathaoirleach of the IEC I welcome this opportunity although you will understand that we would have appreciated an earlier and more inclusive consultative process.

Freedom of Information is not just about empowering journalists but is about empowering citizens. The NUJ does not believe in special pleading for journalists in relation to Freedom of Information. We do have a special interest in Freedom of Information and clearly represent a significant number of users of the Act.

Our delegation is representative of journalists in the print and broadcast media.

Ronan Brady is a lecturer in Griffith College, Dublin and a freelance journalist. He has worked extensively as a consultant with the International Federation of Journalists.

Fergal Bowers is a journalists and author who specialises in health issues. He is Editor of irishhealth.com.

Richard Dowling is a journalist with RTE and has worked as an editor on Morning Ireland. Richard and Fergal are among the most effective users of FOI and both have practical experience of using the legislation.

Séamus Dooley is Irish Secretary of the NUJ. He is a former sub editor with the Irish Independent having previously served as Editor of the Roscommon Champion and he will present an outline of the NUJ’s position on the review.

INTRODUCTION

THE National Union of Journalists is a strong proponent of open and transparent government.

In using the Freedom of Information Act journalists exercise professionally the rights conferred on every citizen. It is significant that the Act neither discriminates against any class of user nor confers special privileges on any category of user.

The Freedom of Information Act 1997 was introduced following a detailed consultative process. The Act is predicated on the principle that citizens own public information and have a legal right to access to that information.

The NUJ is one of a number of organisations, which was consulted on the draft Bill. We were engaged in discussions with representatives of all political parties during the committee stages in both Houses of the Oireachtas. We acknowledge the co-operation, which we received from representatives of all parties, including Fianna Fáil and the Progressive Democrats.

In responding to the report of the High Level Review Group we would firstly like to put on record our disappointment at the modus operandi operated by the Group.

The failure to consult the established advisory groups was a missed opportunity.

The NUJ is represented on the Citizens’ Advisory Group along with the National Social Services Board, the Consumers Association of Ireland and Ms Maeve McDonagh of National University of Ireland, Galway.

The terms of reference of the group, as outlined at the inaugural meeting on August 4th 1998 by Mr Gerry Kearney, FOI Central Policy Unit, Department of Finance, are:

(1)To inform policy makers on issues arising in the implementation of FOI which need to be addressed.

(2)To secure the group members involvement in implementing FOI.

(3)To promote understanding of FOI itself.

The terms of reference of the Business Advisory Group are similar:

(1) To develop an awareness and understanding of FOI in the business community.

(2) To identify and address issues likely to arise for business.

(3) To produce a short guide on FOI for business users. (Minutes of Group July 6^th 1998).

The Citizens’ Advisory Group last met on April 19 2000. An NUJ request for an urgent meeting to consider the report of the High Level Group has been turned down.

The Business Advisory Group has not met since May 12 1999.

The Interdepartmental Group last met on January 26 2001 while the Public Service Users’ Network last met on May 17^th 2000.

We note that there was no process of public consultation and no process of consultation with the representative trade unions.

As a trade union which has been committed to the social partnership process we fail to see why the High Level Group, comprising of Secretaries General with a knowledge and appreciation of the partnership model should abandon the concept of prior consultation.

We have long believed that the strength of the current Act lies in the effective appeals system, applied with absolute impartiality by the Information Commissioner.

We wish to record our concern at the process whereby he was not included in the review in a manner reflective of his position.

The success of the Act to date has been due, in no small measure to the commitment of civil servants.

We note the comments of the Subgroup of the Interdepartmental Working Group on FOI in the Outline Plan on Compliance (Page 8) regarding the attitude of senior management to the operation of FOI:

“While the Subgroup recognised the importance of FOI units to the successful implementation of FOI by public bodies, it also recognised a number of other important factors. The subgroup felt that the most important single factor is the attitude of senior management…. The Subgroup considered that FOI Units and decision-makers take their lead from senior management and it is extremely difficult for such Units and decision-makers to implement FOI fully without support from senior management. This support needs to encourage a proactive approach to the release of information and a positive standpoint which asks the question on every occasion: ‘why can the records requested not be released?”

Where difficulties have arisen it is due to inadequate resources.

We recognise the value of a review and had anticipated that the review would be used as an opportunity to extend the parameters of the Act - in areas such as the inclusion of An Garda Siochána to grant to individual members of the force the same rights as other workers, including members of the Defence Forces.

The report of the High Level Review Group and the use of that report to justify amendments to the Act gives us cause for concern and in the time available to us we wish to pinpoint areas of key concern.

Journalists and the Act

The NUJ believes that the Freedom of Information Act has enhanced the democratic process and has shed light on the process of government.

There has been an understandable defensiveness on the part of politicians, especially in relation to the publication of expenses and allowances.

The public has a natural curiosity about politicians and their expenses but in time I suspect this will wear off. Greater clarity and explanations in the presentation of information would have been useful in the presentation of some information, notably at an early stage in the use of FOI.

Fewer stories about expenses and more imaginative use of the Act would be a welcome development. Ironically if the report of the High Level Group is implemented, through the proposed amendment, access to real policy issues will be denied leaving only access to this type of information.

Generally where confusion has arisen it was not because of the information released but because of inadequate explanatory material or because media organisations have failed to give adequate time and staffing resources for proper scrutiny of information.

The NUJ has organised a regional training seminar for journalists in the regional media but with the exception of the Irish Times and RTE none of the major media organisations have provided comprehensive training for staff. The provision of in-service training in the efficient use of the Act should be encouraged and we are disappointed in the lack of attention given to training by the High Level Group.

Usage of the Act by journalists is reflected in the Information Commissioners annual report: (See Appendix A)

Charging an additional flat fee for applications and appeals

The NUJ is strongly opposed to the introduction of a flat rate fee for FOI requests.

Individuals, charities, students, academics, public representatives, businesses, journalists and not-for-profit organisations will be discouraged from exercising their rights by having to pay a flat fee (to be decided by the Finance Minister) to make an application for non-personal records. They might then not even be told if records exist. They will then have to pay another fee if they have to appeal internally and another to appeal to the Information Commissioner.

The implications for freelance investigative journalists are of particular concern.

We are also concerned at the implications for smaller media organisations of a flat fee rate.

In a market dominated by a handful of media organisations any threat to diversity of information is of concern. Journalists work in the public interest and FOI requests benefit the public.

We note that there is no charge for personal information. While this is of course welcome to assume that private individuals are only interested in personal information is to misunderstand the role of the citizen in democracy and civic society.

If for example a €20 flat fee is set, it could then spiral to €60 if all or part of a request is refused just to get the Information Commissioner to examine a case. In addition they will have to pay, as is the existing case, €20.95 an hour for research/retrieval and copying at 4 cent a sheet. A typical journalist request can at present cost over €150. Failure to pay any fees on any request will debar you from making others until it is paid.

We are also submitting a cost benefit analysis by Mr Colm Murphy, Visting Lecturer in Journalism and Media Law, Dublin Institute of Technology and a member of the NUJ, which we would ask you to consider.

Cost analysis of the proposed changes to the Freedom of Information Act, 1997. (Freedom of Information Amendment Bill, 2003)

1. Charging an additional €20* flat application and appeal fee.

The net revenue gain by the state by charging the suggested €20 flat fee in addition to the existing €20.19 an hour and 4c per page fee, is estimated at €87,257. See next page for costing.

The calculations are based on usage patterns from 1998, when the act was introduced, to 2001. On average 53% of FOI requesters are for non-personal information. Thus in 2001 it would have meant that 6,195 applications would be charged a flat fee and 662 one or two appeal fees in addition.

* NOTE: It will be at the discretion of the Minister for Finance as to what the proposed flat fee will be. €20 is purely indicative.

2. Supreme Court appeal costs

A proposed new clause allows high court decisions on FOI cases to be appealed to the Supreme Court. This clause allows for the state to pay the costs of third parties if it can be proved the appeal was in the public interest.

This clause could impose a serious liability on the state. Experience over the past five years of FOI has shown that a high proportion of high court appeals are one of the 370 public bodies covered by the act challenging decisions of the Information Commissioner. Thus it is likely that the state will be paying the fees on both sides for these Supreme Court appeals. Thus, even a standard short Supreme Court case is likely to cost the state an estimated €50,000. Based on past experience, there could be two to three of these a year. Cost cannot be calculated.

3. Staff re-training

New staff training and manuals for public body decision makers in the 370 bodies covered by the act will be required. Staff training in FOI costs, on average, €200 a day. If each public body was to retrain only six officials at a half a day, that alone would come to €222,000.

1 Additional €20* flat fee application and appeal charge costing.

* NOTE: It will be at the discretion of the Minister for Finance as to what the fee will be, €20, is purely indicative.

Cabinet Papers

The NUJ does not accept that the High Level Group has made a justifiable case for amending Section 19 of the Act.

Section 19allows the Cabinet to release material after five years - under the Freedom of Information Act. It does not make it mandatory and Section 19 must not be viewed in isolation of the other sections of this Act-such as those protecting sensitive matters about Northern Ireland.

We note the political consensus on the proposal from 5 to 10 years but respectfully submit that no one has justified this change with concrete examples of how the process has been undermined since the enactment of the 1997 Act.

If, as suggested, civil servants or office holders are behaving differently because of the provisions of Section 19 then they are open to the accusation of attempting to frustrate the Act, itself an offence.

Frivolous and Vexatious Use

The Committee will be aware that under Section 10(e) of the Fol Act 1997, departments already have sufficient power to disregard “frivolous or vexatious” requests.

We share the view of the Information Commissioner that existing powers are adequate.

We would question why the current provisions have not been used on a regular basis if indeed, as the Group suggests, there is a genuine problem with inappropriate use of the Act. Much attention has been paid to one extreme case but it would be dangerous to amend legislation on the basis of the behaviour of one requestor.

Increased restrictions on individuals accessing their personal records.

We are concerned, as a trade union, that individuals, including staff of public bodies, may only be allowed access personal records containing personal information on them. This is defined in the Act as meaning information known only to them, their family or close friends. It is now envisaged that they should no longer be able to access records relating to them. This would mean that if a record relating to them is misleading they will have no chance of having it amended. There would be danger that this clause could be used to create “mirror” records on individuals that they know they cannot access.

Individuals would, in many cases, no longer be told if confidential information has been given to a public body about them. This is particularly dangerous if malicious or false information is being given and used against an individual.

Observations on Key Recommendations of the High Level Review Group

(1) ‘Shall’ instead of ‘May’: Sec 19.(1)

This section guarantees secrecy for cabinet discussions, in line with the Constitutional amendment on this subject. Sec 19 (1) also states that cabinet documents may be released, subject to the approval of former ministers and, of course, to the public interest. This option has very rarely been exercised. The Group notes calls from the Information Commissioner for “greater flexibility” in this regard. But it takes exactly the opposite direction, advocating the removal of this option.

It is notable that the Group takes a number of things for granted, without weighing up the alternatives. It is taken as axiomatic that the “protection of records of Cabinet, so that Ministers can express views freely in documents submitted to Cabinet in the knowledge that they will be treated as confidential for a reasonable period of time, is fundamental to the exercise of collective responsibility and to the effective functioning of Government”.

But this view is highly contentious. It actually confuses means with end. Collective responsibility is not a value in and of itself. It serves two higher purposes: consistency and accountability. Modern approaches to government hold that these can be arrived at by other means.

The Review Group believes that government ministers and senior civil servants are avoiding written briefings in favour of oral ones. Frightened of writing things down, they say what they once wrote. The results include extra-long cabinet meetings, bland euphemisms in correspondence between ministers and an absence of historical data for future generations.

But the Group’s remedies are based on a couple of unsafe conclusions. The first is that news about disagreements among ministers will overshadow the important issues about which they disagree. If this is true from time to time, it is only true because of the obsessive secrecy surrounding our form of cabinet government. Reporters only get a tiny keyhole glance at cabinet discussions, so insignificant details sometimes receive too much importance.

Of course, cabinet ministers always disagree with one another. Finance doesn’t want to fork out when education, health, etc come begging. But if these discussions were more open, then the reporters could concentrate on the significant and avoid the insignificant. Disagreements are normal, natural and a part of life. Why should politicians expect us to believe in a fairy-tale unity around the cabinet table?

The second is that cabinet secrecy and the monolithic unity of cabinet ministers are essential elements of our democratic system. The truth is the opposite. The traditions of cabinet government are elitist and Victorian. Modern ideas of government seek to place decision-making as close as possible to the electors themselves. By definition, greater freedom of information means more power for individual TDs and for the citizens. That is the direction Europe has taken with the principle of subsidiarity, under which decision-making is placed as close as possible to the electors themselves. Until recently, Ireland was in the vanguard of that movement.

(2) ‘Primarily’ instead of ‘Solely’ Section 19 (1) (c)

This recommendation is based on the same outmoded logic as its predecessor. But it is even more serious because it dangerously loosens terminology, allowing all sorts of material to be covered up. Once the principle of sole use is dispensed with, a very wide variety of documents might fall under this exemption, even if they never saw the cabinet table.

(3) Exemption for communications between ministers Section 19 (1) (c)

From the point of view of government accountability, this is the most dangerous recommendation of the High Level Review Group. It would end the opportunity to observe decision-making - an essential aspect of the democratic process in modern western European states. TDs and journalists are particularly concerned with this question because the public’s right to know how and why is as important as its right to vote.

(4) The Deliberative Process: ‘Rebalancing’ the public interest test. Section 20

Under Section 20 of the Freedom of Information Act 1997, a head of department may refuse an information request “if the matter concerned contains matter relating to the deliberative process”. This is a reasonable measure designed to allow bodies come to a decision without undue outside influence and to prevent the disclosure of partial (and therefore misleading) information. At present, it is rather overused.

However, for reasons they do not clearly state, the High Level Review Group says this protection is not sufficient. The writers believe that under the 1997 Act, records are required to be released “unless release could be shown to be contrary to the public interest”. This is debatable. The high proportion of refusals on the grounds of the deliberative process suggests that the Act has not been interpreted as liberally as they suggest. In any case, they want the phrase “on balance” introduced. They provide very little evidence or explanation for this view, nor do they explain the consequences of this vague addition.

APPENDIX A

Statistics - Table 3 FOI REQUESTS RECEIVED - ANALYSED BY REQUESTER TYPE

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TABLE 3(1)

FOI REQUESTS RECEIVED - ANALYSED BY REQUESTER TYPE (3)

(1) Figures supplied by the Central Policy Unit of the Department of Finance, the Civil Service Users’ Network, the National FOI Liaison Group for Health Boards, the Department of Health and Children and collated by the Office of the Information Commissioner.

(2) A further 1,505 requests had been received by public bodies but had not been dealt with by 31 December 1999 giving a total of 11,531 received by that date, (see Tables 2 & 3).

(3) There was a further 54 applications for review to the Information Commissioner under consideration on 31 December 1999

(4) This figure includes 96 requests made to Local Authorities by members of those authorities.

Statistics - Table 3

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IRISH COUNCIL for CIVIL LIBERTIES An Chomhairle um Chearta Daonna

Submission to Joint Oireachtas Committee on Finance and the Public Service

REPORT TO THE GOVERNMENT BY THE HIGH LEVEL REVIEW GROUP ON THE FOI ACT 1997

Wednesday 19^thMarch 2003

EXECUTIVE SUMMARY

•The ICCL believes that the Report of the High Level Review Group (HLRG) on the FOI Act undermines the fundamental principle that FOI legislation should be based on a presumption in favour of access to information and on the democratic right of individuals and the public to know how decisions that effect them are taken.

•Freedom of Information is a basic democratic right of the people to have information about decisions affecting their lives, and amendments to the FOI Act inevitably affect the rights of citizens. The main recommendations in the report will have a negative and detrimental impact on the rights of citizens, and to suggest that amendments based on the report do not change the rights of ordinary citizens is misleading.

•The Report of the High Level Review Group represents the views only of the senior civil servants tasked by the Government. As the report was not based on any consultation with the Information Commissioner, any independent experts, any citizen or public stakeholders, it does not reflect an inclusive, considered or balanced review of how the FOI Act may be improved to the benefit of all. To enact legislation based on the report without further consultation and input from the many stakeholders affected would be contrary to the principles of participatory democracy.

•The ICCL welcomes the detailed and considered commentary of the Information Commissioner on the Report and its implications on legislative change, and demands that full consideration be given to his report before any further steps are taken to amend the FOI Act.

•The ICCL notes that the HLRG contains many assertions as to the problems with the FOI Act, but provides no examples of how this has happened, or provided no empirical examples of how the current system has damaged the effectiveness of government. The ICCL opposes restrictions on the right to information in the absence of clear and justifiable evidence that there is harm being caused to the functioning of government, or to individuals by the operation of the Act.

•The ICCL strongly opposes the approach of the report to seek greater categories of exemptions to the FOI Act. The ICCL believes that a human rights compliant, and a pro freedom of information approach, is to start with the assumption that access to information should be permitted and then to identify specific harms to an individual or to the public good and interest which would result from disclosure of the content of a particular document.

•The recommendation to change the discretion of a Head of Department to refuse access to Cabinet records, to a mandatory refusal of access completely reverses the presumption in favour of access to documents. The creation of a regime where there is automatic refusal of a request with no regard to the type of record sought, no regard as to whether the information may already be in the public sphere, no regard to the public interest in having access to the record, or any harm caused by its release flies in the face of a culture of transparency and accountability.

•The recommendation to widen the type of record which could be automatically refused from records solely for the purpose of the transaction of Government business to records primarily for that purpose will again remove a category of documents out of the reach of citizens, without regard to the merits of the request. The interpretation that a record was created primarily for the purpose Government business can be used widely to exclude access to documents which are used for purposes other than Government meetings but may at some stage have been used in a government meeting.

•The imposition of a flat fee beyond a fee for the costs of information retrieval has direct, negative implications specifically for non-commercial users of the FOI Act-that is individual citizens and non-profit organisations that may represent the interests of citizens. Where charges for expenses incurred are permitted, and indeed significant fees are often charged for requests, the imposition of an additional fee for a request requires further justification. The HLRG makes clear that the recommendation to introduce a fee is indeed in part to have a deterrent effect. The ICCL believes that using costs as a deterrent factor is inappropriate, when there is the power to refuse frivolous and vexatious requests.

INTRODUCTION

The Irish Council for Civil Liberties (An Chomhairle um Chearta Daonna) is an independent non-governmental organisation that works to promote and defend human rights and civil liberties. It was founded in 1976 by, among others, Mary Robinson, Kader Asmal and Donal Barrington.

ICCL was the first body to campaign for freedom of information (hereinafter “FOI”) legislation in Ireland as far back as 1978 and was involved in consultations with Government leading up to the enactment of the Freedom of Information Act 1997. During that campaign the ICCL together with the Let in the Light Campaign set out a number of core principles which should form the heart of FOI legislation. Those principles included:

•A general presumption in favour of access to documents must lie at the heart of the legislation.

•Fees, if any, charged for access to documents must be set at a modest level, particularly in relation to requests for access to personal files, where they should be nominal.

•Exemptions from access to documents must be drafted as precisely as possible, particularly in the area of policy advice.

•Access may only be refused where there is a demonstrable, clear and present danger to acquired specified interests, the protection of which might reasonably be regarded as necessary for the maintenance of a democratic society, or necessary to the reasonable right to privacy of individual citizens. Where the disclosure of a document might threaten the public or an individual’s interests, as defined above, it should still be disclosed if the information which threatens these interests can be ‘blacked out’ or otherwise withheld.

•Detriment to the reputation of an elected official, of a department of government or of a political party interest is not a ground for refusal.

The ICCL believes that these principles were incorporated into the FOI Act 1997. It is the opinion of the ICCL that many of the recommendations in the Report to the Government by the High Level Review Group (hereinafter “HLRG”) undermine those principles and, if implemented as in the report, will have detrimental impact on the rights of citizens to information, currently enjoyed under legislation.

Freedom of Information as a democratic right

1.The FOI Act is an Act primarily for the benefit of individuals in society, and therefore recommendations to amend the Act, as are contained in the HLRG report, necessarily impact on the rights of ordinary citizens.

2.The FOI Act gives effect to a citizen’s right to know, receive and seek information about governmental decisions. It is also affords citizens a means of exacting accountability and transparency from their elected officials, and from public bodies. Although the FOI Act allows any one to exercise the right to information in a personal or individual capacity, the fact that the exercise of that right is often mediated through elected representatives, the media or representative organisations, does not detract from the basis that the operation of the Act is to benefit those individuals living in Ireland.

3.Article 19 of the International Covenant on Civil and Political Rights states that the right to freedom of expression shall include “the freedom to seek, receive and impart information”. Article 10 of the European Convention on Human Rights guarantees the right “to receive and impart information and ideas without interference by public authority” as part of the right of freedom of expression. The right to seek information and the obligation to provide information as part of the right to privacy, home and family life have all been developed in the cases such as Gaskin v UK¹; López Ostra v. Spain² and Guerra and Others v. Italy³. These cases all reflect the importance of access to information as a corollary of the vindication of other rights such as the right to privacy, to personal dignity, to respect for home and family life. This can include documents which relate to personal information, but also information of for example an environmental, planning, or health issue.

4.To suggest therefore that the FOI Act is primarily an Act that governs how government organises its affairs and not citizens rights is a fundamental misstatement of the purpose of the Act. To suggest that recommended changes to the FOI Act do not affect citizens rights flies in the face of the purpose and spirit of the Act. Changes to the scope, operation and cost to the requestor of FOI have direct, immediate and potentially far reaching implications for the rights of citizens.

The process by which the FOI Act should be reviewed

5.The ICCL recognizes that the FOI Act 1997 sets high standards in the area of freedom of information. It was drafted in line with best international standards in freedom of information, and is a piece of legislation which is widely used as a model for FOI legislation. It is a piece of legislation of which Ireland can be proud. However, the fact that in 1997 the government chose to adopt standards of best practice cannot now be used as a justification for down grading the standards afforded to citizens. Reference in the Report to the existence of more restrictive regimes cannot be taken as justification for adopting those models. Any restrictions on the current right to information, must be carefully considered, justified in terms of public interest necessity and be proportionate in the impact it has on citizen’s rights.

6.The ICCL wishes therefore to place on the record the extra-ordinary manner in which the HLRG was tasked to consider the operation of the Act and produced a report with recommendations which would in turn form the core of legislative amendments. The ICCL notes that the HLRG did not consult with the Information Commissioner, independent experts or any citizen’s organisations. It is also notable that even as a reflection of the experience of civil servants in complying with the act, the HLRG report is flawed in that it did not reflect consultation with the civil servant unions, the main group applying the act. The report of the Group was then forwarded to government and legislation drafted without any debate of the report. The legislation drafted not only built on some of the recommendations in the report but went further to roll back the FOI Act, and diminish the rights of individuals. The ICCL considers that the decision to amend the FOI in a secret and closed manner is an affront to the democratic and open principles of government which inform the FOI Act.

7.In this regard, while the report is welcome as a contribution to a review of the Act from a senior civil service perspective, it can certainly not be considered as a comprehensive or balanced analysis of the operation of the Act or of how the Act could be improved for the benefit of the public.

8.To limit and detract from the rights enjoyed by citizens without any consultation or input from the Information Commissioner, any citizen’s groups or any individual experts who might have protected or represented the rights of the individual, is an extraordinary sidelining of regard for democratic participation or rights. The Report should have been used to form the basis for open and inclusive consultation, if it was considered necessary to review the Act. As it stands it is not and cannot claim to be a balanced or considered assessment of the operation of the FOI Act, and certainly could not be said to represent the public interest when no element of the public was consulted on the report.

9.The test of whether the recommendations of the HLRG stand up to scrutiny would be to open them for debate with the possibility of those who would seek to endorse them in legislation defending the recommendations and arguing their merit.

10.The fact that this has not been done and that the recommendations in the report have been transposed into legislation to be forced through parliament lends weight to the argument that the recommendations in the report, represent only the interests of the parties to the report and of no other party.

11.As the FOI Act is about citizen’s rights. A review of that Act should therefore adhere to simple principles, key of which is that respect for the rights of citizens must take precedence over administrative convenience. Where there is a pressing public interest aim to be met that will result in the restriction of a right, then the way in which will be least restrictive on the right and still meet the public interest should be chosen.

12.The following questions should be asked of each of the recommendations which will restrict the current scope of the Act:

•Why is the restriction being sought? Is the purpose a pressing public interest?

•Is there evidence that the scope of the right currently enjoyed is impeding the attainment of the public interest aim?

•What way can the public interest be met that least impinges on the scope of the enjoyment of the right?

13.In the review of the FOI ACT the HLRG did not consider the FOI Act as a piece of rights legislation, and did not place the citizen’s rights at the heart of the review. This process was not conducted by the HLRG when issuing their recommendations.

Summary of Main Recommendations of HLRG

General Comments

1.The ICCL welcomes the acknowledgement that the introduction of FOI legislation has played an important role in promoting openness, transparency and accountability in Government and that internationally, freedom of information is recognised as an important contributor to good public administrative practice. The ICCL regrets therefore that much of the report is aimed at restricting the FOI Act and thereby clawing back the gains made in openness, transparency and accountability in Government.

2.The ICCL notes that throughout the report, assertions are made as to negative impacts of the Act on government administration, yet no examples of what those negative outcomes have been included. The report in general makes many recommendations on further restrictions, but offers no empirical justification as to why the restrictions are necessary.

3.The ICCL notes that the recommendations in the report weigh heavily in favour of increasing categories of documents to which access will be denied, rather than to reply on whether or not disclosure of the contents of a particular document would give rise to an identifiable and undesirable harm. This approach subverts the intent of FOI legislation which should be premised on a presumption of access. It also fails to place the right of the citizen to know as the starting point of consider whether to grant a request and then to balance that right against specified competing public interests.

4.The ICCL has read and reviewed the commentary of the Information Commissioner on the HLRG Report. As the independent office holder entrusted with overseeing the operation of the FOI, and the individual with the most direct experience of the operation of the FOI Act, the ICCL welcomes, supports and endorses the views of the Information Commissioner. The ICCL also recognises and welcomes the role that the Information Commissioner plays in representing the interest of the individuals who exercise their rights to seek information.

5.No review of the FOI Act should have even be contemplated by the HLRG, or by the government on the basis of its report, without full consultation with the Information Commissioner and full consideration given to his opinion and recommendations. This situation must be rectified immediately.

Records Prepared for Cabinet

6.The HLRG makes the self-evident statement that “ultimately it is in the public interest that the institution of Cabinet works well and effectively”. The HLRG then makes five recommendations that would create greater exemptions from the FOI Act for documents connected with the work of the Cabinet. The HRLG therefore draws a direct correlation between Cabinet working “well and effectively” and creating greater restrictions on transparency and access to information about Cabinet decisions. This suggestion that greater secrecy results in better government is in the view of the ICCL extra-ordinary, but regretfully the predominant approach throughout the report.

Section 19(1)

7.The HLRG recommend that “may” be replaced with “shall” in section 19 (1) of the FOI Act, rendering it mandatory for a Head of Department to refuse a request for a cabinet record. The ICCL believes that to change the presumption that access to cabinet records can be granted, to a regime of automatic refusal, irrespective of the merit of the request, or content of the document is unsustainable. This could be used to deny legitimate access to records of significant public interest or with individual implications, without any reference to specific cause of harm.

8.Contrary to the suggestion of the HLRG, the Information Commissioner notes that manner in which the Secretary Generals have chosen to given effect to section 19(1) is that there are situations in which decision makers appeared to feel obliged to refuse access to Government memoranda even through their contents had already been released in their entirety by way of press release.

9.The ICCL believes that these findings reflect a need for greater clarify on when access should be granted, with the clear emphasis on favouring access. Where the contents is already largely in the public domain, only exceptional compelling reasons should prevent its disclosure.

10.The ICCL recalls the words of the Information Commissioner:

“I am concerned that an exemption which is clearly intended to be applied with discretion is regarded, in practice, as mandatory. Further, the refusal of access to records whose contents are already largely in the public domain is not an encouragement to the creation of a more open public service. It appears to place the emphasis on finding the correct “technical” basis for refusal rather than making information available “to the greatest extent possible consistent with the public interest and the right to privacy”. Such a minimalist approach can easily spill over into the use of other exemptions resulting in an overly cautious approach to the release of other information.”

11.The evidence is therefore that the discretion is being used in an improperly narrow way and it should in fact allow greater access than is the present practice. The recommendation directly contradicts the Information Commissioner’s experience and the evidence.

12.The ICCL strongly opposes the recommendation and urges that the discretionary be maintained. Amendments to access should be encouraged to the greatest extent possible consistent with the public interest and the right to privacy.

Recommendation to replace the word solely with primarily in 19(1)(c)

13.The argument that the use of the word ‘solely’ creates unnecessary doubts as to the eligibility for exemption of certain Cabinet records is unconvincing. The recommendation in the HLRG is that this term be removed and replaced with provision that records that were also used for other purposes also be exempted, is in line with the approach of the HLRG to err on the side of exemption. This approach may be more convenient in the administration of government documents, but it does not advance the interests of the citizen. The Information Commissioner provides one clear example in the case of a policy paper prepared for the Interdepartmental Strategy Group on Employment and Unemployment which could under this recommendation have been refused, although under the current legislation access was granted. This recommendation opens the possibility for a document to be granted an exemption, simply because it was considered by the cabinet, although then used in other decision making processes which would have an impact on individuals.

14.The ICCL believes that power to refuse a document prepared solely for Cabinet is appropriate in light of the other grounds for exemptions where specific harm might be caused, is the appropriate balance to be struck and is not open to abuse.

Recommendation to exempt records of a “committee of officials”

15.The proposed amendment to section 19 is designed to exempt records of a “committee of officials” set up to assist the Government directly in relation to a particular matter.

16.In the view of the Information Commissioner, the proposed extension of the definition of government records would admit of the interpretation of the expression “Government” as used anywhere in section 19 as meaning a committee of officials, not one of whom is a member of the Government and, indeed, some or none of whom may be civil servants of the Government or the State. Moreover the recommendation grants immense power to a Secretary General to certify the records of a working group of experts as exempt, even where the records of the working group would impact on issues outside of the competence of the Secretary General.

17.The ICCL endorses the view of the Information Commissioner on this point and considers that the very wide powers of certification which are proposed for the Secretary Generals are inappropriate. Like the Information Commissioner, the ICCL would also expect there to be some justification as to why the current exemptions for cabinet records are not sufficient to protect the records of working groups, which are prepared solely for Cabinet consideration, or are submitted to Government by a Minister or the Attorney General. The ICCL favours the approach which evaluates whether the disclosure of the content of a document would lead to a specific harm, as oppose to granting exemptions to category of documents. The ICCL notes that the approach in New Zealand on access to cabinet records is to consider the harm that might flow from public disclosure of a particular document.

Communication between Ministers

18.The HLRG emphasises an important distinction between Ministers exercising their duties as administrative heads of Government Departments and as part of a collective decision making body, again recommending that correspondence relating to the latter function be exempt from the Act. Although the strength of this point is certainly open to question, even if one were to accept this reasoning, no thought appears to have been given as to how this distinction could be legislated for. In recommending that one category of Ministerial correspondence be exempted, the HLRG does not consider that any amendment to the existing Act might also result in other correspondence being exempted.

Period of protection of Cabinet Records

19.The analysis offered by the HLG on this central issue is interesting in that it asserts that the undesirability of a five-year time limit is self-evident.

“As experience is gained in the operation of the freedom of Information Act, it is evident that a five year moratorium on the release of papers is too short”

20.However, many interested parties have publicly stated that they do not accept that this is the case. Given the failure of the group to consult with opposition parties, many of whom have recent experience of serving in cabinet, the wider civil servant representative bodies, who have expressed satisfaction with the working of the act or even, most remarkably, the Information Commissioner, it is clear that the above statement can only be regarded as an asserted opinion rather than a conclusion based on any balanced consideration of the matter. There is also no analysis provided of why the exemptions with respect to the content of certain documents is not adequate protection for the government.

Factual Information

21.The HLRG’s recommendations in these related areas have, perhaps some of the greatest potential impact on the current workings of the FOI Act. Limiting what is considered ‘factual’, and therefore accessible material, to purely empirical or statistical data could greatly increase the categories of information that will be exempt from the Act. This change goes to the heart of the current statute and could well result in large areas of policy making being deemed outside the operation of the Act.

22.The fact that the HLRG look to the UK Act which is weaker in its standards of right to information, rather than examine whether this is a problem in other jurisdictions reflects the tendency to look to where the FOI Act could be levelled down.

Section 20

23.The recommendations to amend section 20 of the FOI Act open the way for a far broader definition of what constitutes a ‘deliberative process’. These recommendations could greatly increase the categories of information that will be exempt from the Act. While on one level the HLRG state that there should be some temporal limit on official consideration and advice on issues, their recommendation is that the public interest test be re-weighted. The ICCL considers that this rebalancing is inappropriate and against the ethos of the FOI Act. The presumption must be in the interest of the public having a right to information, and the burden on the person refusing a request to show that on balance the public interest is best served by not disclosing a document’s contents.

24.The amendments in practice in the proposed legislation provide that the a head of a department shall refuse a request where a Secretary General has issued a certificate stating that the record contains matter relating to the deliberate processes of a Department. There would be no appeal to the Information Commissioner or to the High Court against such a decision by a Secretary General. As the Information Commissioner pointed out, this would mean

(1) A Minister could not release a record under the FOI Act if the Secretary General of his/her Department or indeed the Secretary General of another Department issued a certificate in writing stating that the record contained matter relating to the deliberative processes of a Department.

(2) The same position would apply in the case of the Attorney General, the Comptroller and Auditor General, the Ombudsman, the Information Commissioner, the Civil Service and Local Appointments Commissioners, the Ceann Comhairle and the chief executives of the numerous public bodies covered by the FOI Act including County Managers.

25.The ICCL notes the many examples cited by the Information Commissioner where information granted now would be refused if these recommendations were to be accepted, or where he would previously have been able to review a refusal and would not now be able to do so. This has implications under the European Convention on Human Rights case law on the right to an effective remedy, and also the right of access to a body that will be able to adjudicate on refusal to grant information in certain circumstances. In the case of Gaskin v U.K the applicant had been refused access to files about his time in care of the social services. The refusal was made on grounds of public policy and was not reviewable. The fact that the refusal was not subject to review by an independent body was a core issue in the case which the applicant won.

Other measures

26.The ICCL objects to the further inclusion of recommendations from other bodies such as the CSNU and the Department of Finance in legislative amendment, without open consultation with the relevant bodies including the Information Commissioner. To the extent which this has already happened in the Freedom of Information (Amendment) Bill the ICCL calls for no further action to be taken without the appropriate consultation mechanisms being put in place.

27.The ICCL objects to the recommendation that upfront fees be imposed. The imposition of fees beyond those of the costs has direct negative implications specifically for non-commercial users of the FOI Act - that is individual citizens and non-profit organisations that may represent the interests of citizens. Where charges for expenses incurred are permitted, and indeed significant fees are often charged for requests, the imposition of an additional fee for a request requires further justification. The HLRG makes clear that the recommendation to introduce a fee is indeed in part to have a deterrent effect. The ICCL believes that using costs as a deterrent factor is inappropriate, when there is the power to refuse frivolous and vexatious requests. Where there is a disproportionate cost burden on a department as a result of the operation of the FOI Act, the evidence of that should be available as part of the discussions on review of the Act as a whole. The ICCL also notes that the amendment imposing a flat fee, exempts records which contain only personal information, therefore implying that records which contain personal information, but also other related information which may have direct implications for an individual’s rights may not be exempt.

28.The ICCL notes that the difficulties to which the HLRG assert have arisen in the field of international relations are not specified. The Information Commissioner has provided his evidence of experience to date and does not conclude that there has been damage to Ireland’s ability to function effectively under the current operation of the Act. The ICCL again notes that the assertion of the HLRG is again to encourage wider categories of exemption, rather then focus on the nature and likelihood of the harm which could flow from the release of certain documents. The ICCL believes that further consideration of this issue, including in particular the experience of the Information Commissioner, is necessary.

29.The ICCL notes that the Freedom of Information (Amendment) Bill 2003 also proposes to change the requests for personal information from records which relate to personal information to records which contain personal information is a clear narrowing of the definition of records to which an individual is currently allowed access although the records would contain relevant information. There is again a question as to whether this amendment would pass the test set out by the European Court of Human Rights in Gaskin v UK.

30.The ICCL finally notes that the report makes a number of other recommendations, including to initiate a system for more formal consultation between Departments on material to be released, early progress in significant programme of extensions of operation of the Act, the Continued development of FOI networks and Completion of review of operation of National Archives Act vis-à-vis the Freedom of Information Act. The ICCL has no comment to make in respect of these particular recommendations at this time.

Conclusion

1.The ICCL believes that the recommendations in the report of the HLRG will restrict the rights enjoyed by citizens.

2.The ICCL considers that the report, while of course fully valid as a contribution from one stakeholder, should in no way be considered a balanced or comprehensive review of the operation of the FOI Act. It should not form the basis of any legislative changes with out further consultation with other stakeholders.

3.The ICCL urges the Committee to reject the approach of the HLRG to seek further categories of exemptions for documents and to increase the restrictions on right of access to information. The ICCL urges the Committee to adopt an approach which presumes that there is a right to information as a starting point and then limits that right by reference to clear, justified instances which harm to the public interest or good could follow from disclosure.

4.The ICCL calls on the Committee to urge a wide ranging review of the Act and to look at ways in which the FOI Act may also be improved for citizens and individuals and not restricted to suit the administrative priorities.

Presentation to

The Joint Oireachtas Committee on Finance and the Public Service

From

The Wheel

On The Freedom of Information (Amendment) Bill

Summary

The Wheel is a resource centre and advocate for Irish Community and Voluntary organisations, serving over 3,750 groups in every country in the Republic of Ireland. One of its major programmes of work is assisting the development of the relationship between the State and the Community and Voluntary Sector. It is the view of The Wheel that, if passed into law as originally published in February 2003, The Freedom of Information (Amendment) Bill would significantly damage that relationship. This would be to the detriment of Government, citizens and citizens’ organisations.

Our Specific Concerns include:

1.This Bill materially undermines existing Government policy for State - Community and Voluntary Sector relationships, namely September 2000’s White Paper on Supporting Voluntary Activity. This White Paper has taken many years to develop, has won substantial backing from across the Community and Voluntary Sector and has significant benefits to Government, who, as recently as last October, re-affirmed their commitment to it.

2.Prescribing a fee for a request for information [as proposed in Section 26 of the Bill] will reduce Community and Voluntary organisations’ capacity for both advocacy and service delivery. Using price as a rationing mechanism will mean that less Community and Voluntary organisations will access information than is now the case. It represents a tax on civic action that will result in a transfer of funds from an already under-funded Community and Voluntary Sector to the State. By actively seeking to deter citizen action, this Bill seeks to curtail the legitimate democratic rights of citizens. It is particularly troubling that access to information about local or national services that vindicate one’s rights as a citizen should be subject to a blanket fee, as this will primarily deter the poor. This is a significant step back from the current situation as it formalises a separation between the quality of citizenship for the rich and that for the poor.

3.The addition to the categories of exemption to the Freedom of Information Act erodes the rights of citizens and citizens’ groups to engage fully in the democratic governance of this country. As a general principal, denial of access to a record should be based on a specific harm to an individual or the public interest that would arise from the release of that particular record.

In light of these concerns, The Wheel recommends:

1.That the Bill not be enacted in its current form and that a wide ranging review with full consultation with user groups including Community and Voluntary organisations, is conducted before the existing Act is amended.

2.That no additional fees be added to those already allowed for in the original Freedom of Information Act 1997.

3.That there should be no addition to the categories of exemption to the Freedom of Information Act 1997.

Introduction - The Wheel

The Wheel was established in 1999 to serve as a resource centre, support agency and advocate for Irish community and voluntary organisations. Since that time we have grown rapidly and now employ seven staff and serve over 3,750 organisations throughout Ireland. The Wheel is independent of Government or any political or religious organisations and is open to every Community and Voluntary group. These service users elect the Core Group (Board), which determines policy, and are continually consulted as to how The Wheel should develop to better meet their needs.

Unlike our counterparts in other territories, e.g. the Northern Ireland Council For Voluntary Action, we do not as of yet receive ongoing funding from the State. Although we have received some one-off State grants, the bulk of our funding to date has been from gifts from private individuals, companies and trusts. Amongst others, we have been fortunate to receive support from The Smurfit Foundation, Esat and The Atlantic Philanthropies.

The Wheel aims to increase the power and capacity of Community and Voluntary organisations to improve Irish society. Central to its work is a programme to help foster a better relationship between the State and the Community and Voluntary Sector. We keep our database of almost 6,000 individuals across the Sector informed about key developments in that relationship and provide the Secretariat to the Community and Voluntary representatives on the Implementation and Advisory Group for the Government’s September 2000 White Paper on Supporting Voluntary Activity.

1. This Bill materially undermines existing Government policy for State - Community and Voluntary Sector relationships

As the OECD report Citizens As Partners points out - “Information is the basis for all strengthening of government-citizen relations.” The Wheel is therefore extremely concerned that The Freedom of Information (Amendment) Bill would substantially undermine this White Paper on Supporting Voluntary Activity, Which is the Government’s existing policy on how it plans to develop its relationship with the Community and Voluntary sector.

In that White Paper, the Government acknowledged that “there is a need to create a participatory democracy where active citizenship is the norm,” that voluntary activity “is a vital element of democracy” and that “a strong democracy enhances and protects the capacity of citizens to participate.” Furthermore, the White Paper states, that “in the Government’s vision of society, the ability of the Community and Voluntary sector to provide channels for the active involvement and participation of citizens is fundamental.”

A core principle of the White Paper is openness and accountability in the relationship between the State and the Community and Voluntary Sector and a commitment to “provide access to, and to share, information relevant to the pursuit of shared objectives.” The White Paper specifically refers to the 1997 Freedom of Information Act as evidence that “the Government is committed to bringing about greater openness, accountability and transparency to our system of public administration.”

However, by significantly curtailing Irish citizen’s access to information, The Freedom of Information (Amendment) Bill will directly undermine the Government’s desire to “create a more participatory democracy where active citizenship is fostered” as expressed in the White Paper. This is for a number of reasons, most notably:

•Introducing a prescribed fee [as proposed in Section 26 of the Bill] for information-requests will deter individual citizen engagement with policymaking and directly disadvantage poorer citizens and citizens’ groups. The quality of one’s citizenship and capacity to participate will be more directly linked to income under this proposal than is currently the case. This is directly in conflict with The White Paper’s commitments to “focus on the needs of the most disadvantaged,” to “achieving equality of opportunity, access and treatment” and to ensuring that individuals and communities are “facilitated to speak about the problems affecting them and be part of the practical responses.”

•The implication of rationing enquiries from citizens by means of a prescribed fee is that these citizens represent some form of burdensome nuisance - not a resource to be valued. This undermines the White Paper’s statement that “the Government is committed to encouraging individual volunteering,” its acknowledgement of the role of the Community and Voluntary Sector in “inputting to policy-making” and its stated position that the State and the Community and Voluntary Sector “each recognise their mutual right to constructively critique each other’s actions and policies.”

2. Prescribing a fee for a request for information [as proposed in Section 26 of the Bill] will reduce Community and Voluntary organisations’ capacity for both advocacy and service delivery

Prescribing a fee for a request for information will reduce Community and Voluntary organisations’ capacity for both advocacy and service delivery. Citizens’ groups make Freedom of Information requests, not out of idle curiosity, but because they require information that is crucial both to determining how they deliver their services and their ability to advocate effectively for their clients.

Therefore, using price as a rationing mechanism will mean that less Community and Voluntary organisations - primarily the poorer ones - will access information than is now the case. Additionally, it will inevitably result in a transfer of funds from the Community and Voluntary Sector to the State. This is something that an under funded Sector cannot afford against a background of funding cuts, including delays in grant schemes announced in the White Paper on Supporting Voluntary Activity.

Allowing the Minister of Finance to prescribe a set fee is in effect a tax on Civic Activity. Taxation as a tool to alter citizen behaviour isn’t new, indeed placing duties and charges on products that harm citizens can often contribute to building a healthier society. However, unlike cigarettes or alcohol, civic action isn’t bad for one’s health and it is something to be encouraged, not deterred. Yet, as existing provisions in the 1997 Act allow for search and retrieval costs to be covered, the primary function of Section 26 is to introduce charges that act as a deterrent. The wisdom of deliberately discouraging citizen engagement with policy-making when voter turnout in 2002 was the lowest since 1923 is at best questionable.

More seriously, by actively seeking to deter citizen action, this Bill seeks to curtail the legitimate democratic rights of citizens. Information directly determines the quality of one’s citizenship. It is therefore particularly troubling that access to information about local or national services that vindicate one’s rights as a citizen should be subject to a blanket fee, as this will primarily deter the poor. This is a significant step back from the current situation as it formalises a separation between the quality of citizenship for the rich and that for the poor.

The fee is also questionable from a resource-efficiency point of view. As Citizens As Partners, an OECD Handbook written for Government officials, points out “Given the problems arising from poorly designed and implemented policies, governments indeed find strengthening their relations with citizens to be worth the investment. They also increasingly learn that not engaging in them can create much higher costs, through policy failure in the short term as well as loss of trust, legitimacy and policy effectiveness in the long term.”

A key challenge of governance is encouraging and harnessing the energy of people who want to help contribute to solving our society’s problems. This is not accomplished by hiding information from citizens.

Requests from Community and Voluntary groups under Freedom of Information tend to focus on the use of State funds - providing an extra level of oversight to insure their efficient use. It also forms the basis for the research that citizens’ groups conduct - which results in resources that are often heavily relied upon by Government in policy - making. Groups that have expressed concern about the implications of the measures proposed by the Bill work in areas such as parenting, supporting carers, addiction, the rights of the unemployed, patients’ rights and combating bullying. Some examples of how the Freedom of Information Act has been applied by Community and Voluntary groups include:

•Researching Methadone versus drug free treatment facilities across Ireland for reports on treatment services for addicted young people

•To find out which voluntary organizations are grant aided by health boards to provide health and social services-after eight of ten health boards had failed to provide this information. This involves the spending of up to €700m in public money and only using the Freedom of Information Act 1997 seems able to identify who are the beneficiaries

•To find out the destinations of Irish emigrants as recorded in the Labour Forces Survey - after this information was first refused

•To find out the number of days schools are actually open during the year to ensure that children’s entitlement to a full school year is being met

•To discover the numbers of Irish prison inmates with mental illnesses

These are activities that benefit our society. We shouldn’t discourage them with punitive charges.

3. The addition to the categories of exemption to the Freedom of Information Act erodes the rights of citizens and citizens’ groups to engage fully in the democratic governance of this country

The increase in the amount of categories of exemption to the Freedom of Information Act, places a further barrier to citizens and citizens’ groups conducting meaningful research to inform better local and national services.

A concern of some groups within the Community and Voluntary Sector is that by tightening the criteria of eligible information, this Bill will inevitably make informal requests for information more difficult. One of the key gains of the 1997 Freedom of Information Act was to effect a cultural shift within the Public Service about releasing information to citizens. There is a very real danger that this Bill will swing attitudes back to erring on the side of secrecy.

Another concern is that Civil servants will easily ensure that a difficult topic remains ‘under deliberation’ and not covered by the Act for an indefinite period. This can be done by leaving an unanswered letter on file so the topic is not formally closed. At a minimum, the ‘under deliberation’ exemption should be time-limited from the time of commencement of consideration. Furthermore, as a general principal, denial of access to a record should be based on a specific harm to an individual or the public interest that would arise from the release of that particular record.

The overall impression given by the Bill is that it represents an adversarial rather than partnership approach to citizens from the Government. That this Bill has arisen without consultation with citizens’ groups has resulted in it being lob-sided in favour of administrative convenience with no balancing component of democratic accountability or support for “active citizenship.” It is significant that the Bill’s 27 sections are overwhelmingly focused on restricting citizens’ access to information. It is difficult to find measures designed to build on the achievements of the 1997 Freedom of Information Act and actively increase transparency.

Conclusion & Recommendations

It may be that when publishing this Bill, the Government underestimated the effect it will have in critically undermining their stated policy of Supporting Voluntary Activity. If that is the case, it underlines the need to consult with citizens’ groups before publishing legislation such as this. The Wheel therefore asks that the Government does not make changes to the 1997 Freedom of Information Act until it has conducted a thorough and transparent consultation with all interested parties, including Community and Voluntary organisations.

Without this consultation, it is unlikely that the Government will understand the scale of the difficulties this Bill will cause citizens groups throughout Ireland. As it stands, this Bill would represent a very profound negative step in the development of the relationship between the Government and the Community and Voluntary sector. This would be bad for the Government and bad for citizens.

The White Paper on Supporting Voluntary Activity outlined a very positive framework within which the state and Community and Voluntary groups could work together in partnership for the knowledge and experiences of their members, reaches out to build public harnesses the knowledge and experiences of their members, reaches out to the most disadvantaged, reduces resistance to Government policies and helps to build public trust in the political process. These are significant prizes that would be seriously compromised were this Bill to be passed in its current form.

In light of these concerns, The Wheel recommends:

1.That the Bill not be enacted in its current form and that a wide ranging review with full consultation with user groups including Community and Voluntary organisations, is conducted before the existing Act is amended.

2.That no additional fees be added to those already allowed for in the original Freedom of Information Act 1997.

3.That there should be no additional to the categories of exemption to the Freedom of Information Act 1997.

19^th March 2003

This appendix contains the Orders of Reference of the Joint Committee on Finance and the Public Service.

¹ 7 July 1989

² Lopez and Ostra v Spain, Judgement of 9 December 1994;

³ Guerra and Others v Italy 19 February 1998