March 13, 2003
Freedom of information and rights of the abused

by Bruce Arnold in The Irish Independent


THE new Freedom of Information Amendment Bill is now before the Oireachtas in circumstances that show callous disregard for personal rights. The new Bill is a disgraceful about face on the part of this Government. It reverses the approach taken by Fianna Fail and the Progressive Democrats when the original Act was passed by the administration led by John Bruton. Then, they wanted more freedom. Now they want even less freedom than is contained in what they then criticised as insufficient.

The approach is particularly difficult for private individuals who are trying to obtain justice from the State on their own.

The following analysis of the Bill's more gross abuses of rights and freedom to information represents an attempt to focus on just how pernicious and unjust the Bill will be.

In no respect is the legislative change of heart more disgraceful than in respect of those people who were imprisoned in the industrial school and reformatory system from the 1930s up to the 1960s, and it is on them and their experience that the following exemplary analysis is based.

Section 4 of the new Bill amends Section 6 of the Act in a way that could be construed as applying directly, and specifically, to abused people trying to obtain records. The personal records they seek are redefined in a much narrower way. Formerly, they could seek personal documents which "related to" their incarceration and were also related to the more personal documents naming them.

This has been tightened up. "Relate to" has been replaced by "contain". This affects non-personal pre-commencement records that could contain vital information for an appeal for redress. If they related to the personal records, under the previous law, they were available. Now, they have to "contain" personal information about the abused person. Otherwise, they are exempt.

The documents concerned are those on departmental inspections of institutions as well as the all-important medical reports. Already, the Department of Education has interpreted the Eithne FitzGerald Freedom of Information Act inconsistently and obstructively in this area. This interpretation has been the subject of appeal to the FoI Commissioner. An arbitrary distinction has been made, for example, between Artane quarterly medical returns and the departmental inspection reports.

This indefensible and damaging behaviour is now backed by the new FoI Bill. And it is a shameful and cruel element in the legislation. The situation now is that the Department can simply refuse access to such broad purpose documentation altogether. It will also support Barnardo's in giving the same blanket refusal.

Even though the Department of Education is proposing the transfer of this documentation, in the case of the abused, to Barnardo's, Barnardo's will still be restricted by the same provision of the new Act.

In the same amendment, the Department can make the judgment that the request is "frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters . . . acting in concert."

From the outset of the redress programme, the Government sought to get the abused people from industrial schools and reformatories to join in association under the umbrella of Nova (a Government organisation), Aislinn, Right of Place, SOCA UK and other organisations. Now it is proposing to block them if they operate, as they were advised to do, "in concert". It is a complete nonsense.

The provision that gives the Department the ability to refuse information on the basis of numbers of documents that need to be inspected is a disgrace. The whole redress system stands or falls on the ability of 25,000 men and women being able to get documents that have to be sifted carefully from hundreds of thousands of documents. That is their right, to have them. It is the State's duty to make them available. Without this being covered favourably to the abused in our legislation, we are betraying them. The new Bill betrays them legally.

The new regulations on the payment of a fee or deposit, payable under section 47 in respect of the request concerned or in respect of a previous request by the same requester, is so absurd and arbitrary as not to merit examination.

These are poor people, in the main, many of them resident in the United Kingdom and therefore operating by post. They have suffered lifelong punishment and damage as a result of this State's neglect of their rights and welfare. Section 12 of the new Bill amends Section 19 of the Act and in one important and generalised change replaces the element of choice that allows the department discretion over refusal of access into an obligatory injunction: the public body "shall refuse".

It also extends the exemption on certain records from five to ten years. This will prevent, until 2008, the release of such records, and this exemption could be made to apply to an arbitrarily broad category of records relating to Government decisions.

This is of crucial importance, since a whole range of vital discussions affecting the complete redress programme for abused people falls within the five to ten year period.

Moreover, the new definitions of "Government" and "official" could be made to include almost any committee of advisors. This would include documents on the Ryan Committee, as well as the inter-departmental committee that reported in April 1999, and many other groupings.

People seeking redress for abuse in institutions have already had to face the Department of Education withholding documents because of "the deliberative process".

In one case, where the details are known to me, the Information Commissioner overruled the Department's decisions. There have been others. Under the new amendment such an appeal would have been prevented.

Colm O'Gorman, Director of One In Four discusses this issue on RTE Radio's "Morning Ireland"

Posted by Colm at March 13, 2003 05:59 PM
Comments

It's about rolling back the empowerment of people (particularly ex-Industrial Schools' Detainees) who were able, at last, to get some inkling of the reasons for their incarceration. And when we asked for more information, like medical records and psychiatric reports, the Department got very worried. This information exists and THEY won't release it.

Posted by: Andrew on March 14, 2003 09:45 PM

Colm,
Its now time for mass protests against this government + 24 hours protests + media blowup on our plight.

Posted by: paul on March 15, 2003 08:13 PM

This is an infringement of our civil rights and as I have highlighted in another article, Ministers and Parties are being exposed for their inertia and inaction when CSA scandals broke here in the South East. They're covering their arses as usual!!

Posted by: Hanora Brennan on March 30, 2003 02:27 PM
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