The Hague, 3 May 2011

(by Ton Zijlstra)

Dutch Minister for Interior Affairs Donner in a speech on the Day for Press Freedom proposed to restrict the Freedom of Information Act (source).

Stating that FOI and Press Freedom are not in any significant way connected as "we had press freedom long before there was a Freedom of Information Act", he listed a number of problems with the current FOIA (called WOB in the Netherlands).

1. FOI requests are often generic and vague, which makes collating all relevant documents a large task, burdening civil servants 'disproportionally' compared to the gains in information freedom
2. FOI requests are often casting a very wide net in the hope of finding one interesting thing
3. FOI requests are sometimes not aimed at getting information but at the requester getting payments when the term for answering them is passed
4. FOI requests are sometimes used to disrupt the functioning of a public body by doing large numbers of FOI requests at the same time.
5. FOI court cases are mostly about decision making processes, not the actual decisions (and a space of 'intimacy' is needed to be able to move decision making processes forward)

"Like with sausages it is with making decisions, you don't want to know how they are made", is how the Minister phrased where for him the scope of the FOIA needs to end. The 'intimacy' needed to be able to go through decision making processes needs to be protected.

Minister Donner also described his worries of how information can be destabilizing if not presented in the 'right' context. Citing the role of social media as catalyst in the overthrow of governments in northern Africa, he said something like that would be possible in the Netherlands as well by people with bad intentions. That is why a large number of government spokespersons and PR-people are needed, to make sure information is presented in the 'right' contexts.

He also pleaded for a higher trust between civil servants and journalists. Currently civil servants are wary of requested information being used to paint negative pictures of their work, and journalists suspect civil servants are trying to keep information under wraps. This is a negative spiral that Minister Donner proposes to break by having more informal contacts between spokespersons and journalists.

While the minister mentioned the recently launched Dutch data portal data.overheid.nl, in his speech he however talked exclusively about information concerning government processes and decision making, and not about the wide variety of data and information government collects as part of their tasks, that do not describe government processes but would be valuable to re-use.

Journalists, members of parliament and civic activist groups reacted strongly to these statements.

While most people agree with the notion that the current FOIA needs amending and that the current situation certainly needs improvement, reactions to Minister Donner's speech generally say his proposed solutions are not of this time and will actually backfire or make things worse.

Rejo Zengers (Bits of Freedom) in a personal opinion in Dutch newspaper NRCnext wrote that the solution to the problems Minister Donner describes is even more freedom of information, especially much more pro-active publication of information by the government. "It's not up to the Minister to decide how much government transparency is enough, but up to the citizenry. The lack of pro-active transparency by government is the main reason the large cumbersome FOI requests the Minister mentions exist. Not limiting access but meeting the needs of citizens is the solution to the problem he sees".

Brenno de Winter, a journalist leading many FOI efforts in the Netherlands, responds that most of the trouble mr Donner describes stems not so much from the (comparatively low number of) FOI requests but the lack of knowledge and ICT infrastructure in government to deal with FOI requests effectively. "The Minister says FOI requests are a lot of work. However, I regularly do FOI requests in Norway, and I get the requested documents sometimes within hours. Because they have a working digital administration that can provide me with documents simply by hitting a 'send' button. Here in the Netherlands I recently received three letters and had to wait 56 days, just so I could get a copy of three pages. I requested the documents in digital format, but that was said to be impossible." "Citizens are being punished this way for the incompetence of the government when it comes to ICT." Others say that indeed journalists often do 'scatter shot' requests for information because it is completely unclear to them which specific information they could request. If you don't know what is there, how can you ask for it? (At the same time the fact that you do not need to request specific documents but can ask for 'anything' around a certain topic or decision was hailed by the Minister as a good thing, even though it is the basis for the broad requests he laments) Having a much better overview of available information would be a remedy.

Also specific criticism was aimed at the "sausage" remark on the space needed to be able to come to decisions and therefore keeping FOI out of it. The decision process on how the Netherlands came to actively support the war in Iraq, and more importantly the information it was based on is cited as example where that intimate space should have been transparant. One MP remarked on Twitter, that she'd like to decide for herself if she wanted to 'be a vegetarian' or 'see how the sausage is made' and not leave the decision to the Minister.

Opposition party Groen-Links has requested a debate with the minister in Parliament because of the speech. MP Mariko Peters, who previously proposed her own revised FOIA, says "Minister Donner sees transparency of government as a door made of lead. Transparency however is the core of a democratic system that needs to be accountable". "All those FOI requests would not be necessary if our government would be transparant in the first place. That should be the ambition of government."

Minister Donner's speech is available as text and video (both in Dutch).