2003

Freedom of Information in Ireland - A Progress Report (09.10.2003)

Address by the Ombudsman and Information Commissioner, Ms Emily O'Reilly at Public Affairs Ireland Conference, Shelbourne Hotel, Dublin

Good morning everyone.

Public Affairs Ireland is a relatively new publication and I have been impressed by the range of topics it has covered to date in the broad arena of legislative, regulatory and public affairs. I believe that all of us here this morning warmly welcome the opportunity afforded to us by Public Affairs Ireland to participate in this timely discussion with practitioners in the field of law and public administration, legislators, commentators and users of the FOI system.

Given the theme of the conference - "FOI in Ireland - A Progress Report" I intend to put the emphasis on assessing how far we have come in terms of freedom of information since the coming into force of the Act in 1998. In any event, given the relatively short period of my tenure as Information Commissioner, it is too early to engage in a detailed analysis based on my own direct experience of FOI. Certainly, I feel sure that some of the "Room for Improvement" areas in my understanding of the context and implementation of FOI in Ireland will be addressed here today.

But before I begin that I want to comment on some figures released earlier this week on FOI following queries put to all the central Government departments by the Fine Gael party. The commentary that followed the release of those figures suggests that there has been a sharp decrease in the number of FOI requests following the introduction of fees for requests, internal reviews and reviews by my office last July.

Using a broad brush analysis, it would be unusual if there was no slippage. The experience in other countries has been that the introduction of fees or the increase in fee levels has had a dampening effect on the system.

Notwithstanding that, it is still too early accurately to measure the effect of the fees. The figures released this week do not compare like with like i.e. we do not have a month by month breakdown for comparison purposes; only one sector within the overall public sector is involved, and other factors might be at play. Nonetheless, I believe it is still safe to assume that the introduction of fees has led to or will lead to a fall off in usage of FOI.

I said some months ago that I would monitor the effect of the amended FOI Act, and that includes monitoring the impact of the fees. I would propose to review that element of the amended act after a year of its implementation. In relation to fees, that would involve looking at the basic data, i.e. comparing the number of requests and reviews before and after their introduction; getting feedback from those who process FOI requests as to how the nature of the requests and the requesters may have changed, and also sampling FOI files throughout the public sector to see whether the amended act has prompted a change in how requests are dealt with i.e. is there evidence that more requests are being refused because of the fee barrier now mounted against internal reviews and reviews by my office.

That's the detail, some of which I will return to later. But before I get to the core of my address, I also want to highlight a few issues which I've been giving consideration to since my appointment as Information Commissioner. Every professional, every worker tends to view the world through their own occupational prism and I am no exception. I see an FOI angle where heretofore I would have seen no angle at all, or else a journalistic one.

Recently, while listening to a senior civil servant give his understandably careful views on what constitutes good and bad government, I noted that he hadn't mentioned the concept of Freedom of Information as a useful tool of administrative accountability. When I mentioned this to a colleague, i was gently told that not everyone wakes in the morning reciting the long title of the Freedom of Information Act 1997.

Like an expectant mother who sees babies everywhere, I see FOI references everywhere. John Bailey, in his memoir of his late wife, the novelist and philosopher Iris Murdoch, described what he called the closed society of Oxford University in the 1950s, contrasting it with the open society he experiences today. Unfortunately, Mr Bailey didn't elaborate on this theme, nor did he plump for one kind of society over another, although I sensed a certain wistfulness for the shades and secrets of an earlier time.

Freedom of Information has many guises, and is now centre stage in an important debate in our own Irish society, even if many people do not properly appreciate the parameters and breadth of that debate. It strikes me that there is a co-incidence of issues, which, despite surface differences, all concern the same thing - that is how open do we want our society to be, what are the limits to openness, how much privacy should be accorded both private and public figures, what mechanisms should be put in place to effect both openness and privacy. The issues include classic FOI issues, the right to privacy, data protection, press freedom, press acccountabilty, and importantly the need to develop a shared value system around all of those issues.

There are many players in this debate. There is, notably, the Minister for Justice, with his plans for libel law reform and possibly a statutory press council. Into this mix also comes the same Minister's concerns about the unauthorised passing on of information by some Gardai to the media. There is the media industry itself which favours some form of self-regulation in relation to ethics and standards. There is the National Union of Journalists which favours a media ombudsman approach. there are disparate public figures, from politicians to movie stars, who increasingly find the possibility of a private life compromised by press attention. There is the Data Protection Commissioner who monitors the use of personal and other information, there is my own office and there are the Government and the political parties permanently engaged in a battle between the greater good in the form of transparency and accountability, and the perhaps more keenly felt concern with self-preservation.

My net point is that when we begin to philosophise about, or make concrete proposals in relation to "Freedom of Information", we should also be aware of the much bigger picture and those with decision-making powers should ensure that the links are both recognised and appropriately harmonised.

Principal features of the 1997 Act

Although some of you are clearly experts in this field, I think it is no harm to remind ourselves of the principal features of the "parent" Act before moving on to its recent and controversial offspring - the Amendment Act. Having set out that context, I will touch upon some areas of the work of my Office at the moment. In attempting to gauge progress made, some key decisions along the way deserve mention. In considering the overall impact of FOI on the citizen, on the media and on government I will mention some of these key decisions.

Incidentally, while we are inclined to refer to the rights of the citizen when discussing FOI, there is no requirement in the Act that a requester be an Irish citizen or even be resident in the State.

The FOI Act was passed in April 1997 and came into effect on 21 April 1998 for Government Departments and for a range of agencies and offices associated with Government Departments. It came into effect for local authorities and the health boards on 21 October 1998. Since then, the FOI regime has been extended by regulation to almost 400 bodies, including some which are not actually public bodies but which do provide public services on behalf of the state; the main examples here are the so-called "voluntary" hospitals and those agencies providing services in the disability and mental handicap areas. These bodies are included within FOI to the extent that they provide services which are publicly funded.

The Act also extends to records in the possession of a person providing a service for a public body under a contract for services i.e. as an independent contractor, if the records being sought relate to the service. The most usual example of this is the records of GPs who participate in the GMS (medical card) scheme. In such cases the records are deemed to be held by the public body and it is the public body's responsibility to deal with any FOI request.

It is worth quoting the Act's unusually detailed Long Title which, I feel, sums up what the FOI Act is about or should be about:

"An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, to provide for the independent review both of decisions of such bodies relating to that right and of the operation of this Act generally (including the proceedings of such bodies pursuant to this Act) and, for those purposes, to provide for the establishment of the Office of Information Commissioner and to define its functions, to provide for the publication by such bodies of certain information about them relevant to the purposes of this Act, to amend the Official Secrets Act, 1963, and to provide for related matters".

The Act envisages access to records being provided "to the greatest extent possible consistent with the public interest and the right to privacy". So, obviously there are some exemptions and some qualifications in relation to this right of access. But the overall purpose is clear - the public has a positive legal right of access to records held by public bodies. The creation of this right is the cornerstone of FOI in Ireland.

Turning now to the specific provisions of the Act, it is noteworthy that much more is involved than simply responding to requests for access to records. The Amendment Act has left intact the three key legal rights created by the 1997 Act:

1. the right to seek access to information held by public bodies (including information in relation to the requesters themselves)
2. the right to have personal information held by a public body amended where it is incorrect or misleading and
3. the right to be given reasons for decisions taken by public bodies which materially affect individuals.

There is an implicit requirement throughout the Act that public bodies be generally helpful to the public with a view to maximising the take up of rights under the Act. There is also a specific requirement that public bodies provide "reasonable assistance to a person who is seeking a record under the Act". This might mean, for example, helping the requester to frame a request in such a way as to enable the request to be met.

The Act provides for a system of internal review in cases where a request has been refused. Where a request for such a review is made, the review must be conducted by an officer at a more senior level than the officer taking the initial decision. In the normal course, it is only where a request has been refused at the review stage that the matter may be raised with the Information Commissioner.

Not all information held by public bodies is required to be released under the FOI Act. As signalled by the Long Title, there are exemptions and these fall into two broad categories:

class exemptions where all records in that class or category are exempt e.g. records to which legal professional privilege attaches (section 22) and

harm based exemptions where records which might damage a particular interest of a public body or of the State are exempt e.g. records which reveal the negotiating positions of public bodies (section 21).

I discuss later the manner in which the Amendment Act has broadened the scope of these exemptions.

Some classes of records are also totally excluded from the scope of the FOI Act e.g. records created by the Attorney General and the Director of Public Prosecutions except for those concerning the general administration of those offices.

Among the key exemptions are records relating to:

meetings of the government,
deliberations of public bodies,
investigative functions and negotiations,
law enforcement and security,
confidential and commercially sensitive information,
personal information (other than information relating to the person making the request),
economic interests of the State.

An important aspect of the FOI access regime is the recognition that there is a public interest in increasing access to records held by public bodies. Many but not all exemptions contain what is often referred to as a public interest override i.e. even though a record is exempt under the FOI Act, a public body or the Information Commissioner may decide, on balance, that the overall public interest justifies its release. Perhaps it is not surprising that our legislators did not include a definition of the "public interest" in the FOI legislation; it can be very difficult to pin down what precisely the term means. Frequently, varying perceptions of what constitutes the public interest will be in competition with one another. It is the task of the FOI decision maker to decide as between these competing public interests.

An example of the kind of balance I have in mind is well illustrated in the Supreme Court judgements a few years ago in the case involving National Irish Bank and RTÉ. The majority decision of the Court on that occasion was that, while recognising the public interest in maintaining banking confidentiality, where the breaching of this confidentiality (i.e. the publication by RTÉ of its information) might assist in defeating wrongdoing (i.e. tax evasion), then the public interest in defeating wrongdoing takes precedence over the public interest in protecting banking confidentiality. In a nutshell, that which serves the public interest must ultimately serve the common good.

What we mean by "the common good" can be very difficult to pin down. In terms of FOI decisions the Act obviously envisages judgement calls being made in weighing, for example, the protection of privacy and confidentiality rights versus the rights of citizens to be informed about the activities of public bodies.

Principal Features of the Amendment Act

The Freedom of Information (Amendment) Act, which came into operation in April of this year caused much wailing and gnashing of teeth in bringing in a range of changes to the 1997 Act. Many of these changes were fairly minor and I do not propose to address them today. A number of the changes, however, have altered the emphasis of the Act - pulling back on access to Government records while remaining relatively unchanged in relation to access to personal information.

The amendments which have attracted most attention and comment are those which have had the effect of limiting the potential for public access to records relating to the thought process in and around government actions.

The key changes introduced, as I see it, were:

the right of access to records of Government has been pushed back from 5 to 10 years,
all Government records (other than those created more than 10 years ago) shall be refused as opposed to may be refused,
communications between Ministers relating to a matter before Government are now protected; previously, these were potentially releasable provided they did not reveal a statement made at a Government meeting,
the protection afforded to advice for the purpose of Government business has been broadened in that the previous exemption required that the record contained information for use solely for the purpose of Government business at a meeting of the Government whereas now it is sufficient that the record be used primarily for this purpose,
where appropriate, a committee of officials may be deemed to be the Government for the purposes of the Act. The definition of "officials" includes civil servants and special advisers.

While the changes outlined above all concern section 19 and records of the Government, the amendments to sections 20 and 21 also cover records held by public bodies other than Government Departments involved in the deliberative process and in investigations or inquiries. In other words, records which capture the advice, opinions, consultations and negotiations leading up to decision making are affected. The key changes in this area are:

records can be protected from release if they relate to the deliberations of any public body as opposed to the public body the subject of the request,
where appropriate, the Secretary General of a Department of State, may certify that particular records form part of the deliberative process of a Government Department and this certification effectively puts these records beyond the scope of FOI and outside the jurisdiction of my Office,
the public interest test has been recast; previously, the "deliberative process" exemption in section 20 applied only where release of the records sought was contrary to the public interest; following the Amendment Act, the "deliberative process" exemption does not apply where, on balance, the public interest is better served by release than by withholding the records
A record may now be refused if it could be expected to prejudice the inquiries or investigations of any public body - not just the body the subject of the request.

Security/Defence/International Relations

The Act now provides for a mandatory class exemption for records which concern security, defence or international relations of the State or matters relating to Northern Ireland; this eliminates the need for a public body to identify a specific harm caused by release of the particular record. For example, a record containing a communication between a Minister and a diplomatic or consular post will now be refused under section 24 without reference to the effect of its particular contents on international relations.

Fees

One of the changes with most repercussions for the average user of the FOI Act and, indeed, for public bodies processing requests, is the provision enabling the Minister for Finance to prescribe fees for the making of a request for access to non-personal records and for the charging of fees for applications for internal review and for review by my Office. Under the Regulations introduced in July a range of fees now apply:

15 Euro for a request
75 Euro for an internal review application, and
150 Euro for an application to my Office to review the decision of the public body.

A discount on these amounts applies to Medical Card Holders and their dependants.

In broad terms, requests for personal information will not attract a fee for any of these but requests for joint personal information or reports in which one might have a deep personal interest (such as access to industrial schools inspection reports, for example) will attract these fees. The result of all this is that an appeal to the Information Commissioner in respect of non-personal information will cost the requester a total of 240 Euro irrespective of the outcome.

I have already publicly expressed the view that the scale of these charges may act as a disincentive to many people in exercising their right to information and, where necessary, to an independent appeals mechanism. While my Office is committed to implementing the regulations in relation to fees, I very much regret that my Office was not consulted about the decision to introduce these fees or about the drafting of the regulations. While the Minister was not obliged to consult, an important opportunity was lost to carry out a full review of the Act and to introduce a more well considered charging regime.

In the not too distant future, when we have more experience of operating the fees regime and the new provisions of the Amendment Act, I expect I will comment in detail on their application. Section 39 of the FOI Act allows me to comment on the practical application and operation of provisions of the Act. I also have the power under section 36 of the Act to carry out an investigation into the practices and procedures adopted by public bodies in complying with the Act and I expect I will investigate these matters. In particular, I expect I will pay particular attention to the manner in which Secretaries General of Departments exercise their right to issue certificates, as provided now at section 20 of the Act, that particular records form part of the deliberative process of a Government Department and are thus outside the scope of FOI. I feel that these powers will enable me to fulfil my statutory role of keeping the Oireachtas informed of matters relating to the implementation of the FOI legislation.

Level of applications to OIC

I would like at this stage to put the role of my Office into some sort of context within the overall FOI picture. The "bread and butter" business of my Office is dealing with appeals, technically known as review applications. This table summarises the throughput of review applications since 1998.

Table 1 - FOI requests dealt with by public bodies and subsequently appealed 1998 - 2002

	2002	2001	2000	1999	1998*
FOI requests dealt with by public bodies	16,026	14,268	13,269	10,024	3,286
Internal reviews received by public bodies	1,755 (11%)	1,274 (9%)	919 (7%)	1,128 (11%)	485 (14%)
Applications for review accepted by the Information Commissioner	585 (4%)	387 (3%)	422 (3%)	443 (4%)	179 (5%)

* 21 April 1998 to 31 December 1998 for civil service and related bodies; 21 October 1998 - 31 December 1998 for health boards and local authorities.

You can see from this that the overall number of applications to my Office increased significantly last year - 2003 has also seen a substantial increase in our workload with 806 appeals accepted up to the end of September and we anticipate that the end of year figure for appeals accepted will be up roughly 70% over the 2002 figure.

There has been little change in the proportion of cases being appealed to my Office as a percentage of the total number of requests across all public bodies. The upshot of all this is that my Office sees only about 4% of all requests made under the FOI Act. I can't, of course, say whether it is safe to assume that the remaining 15,000 or so cases have been properly processed at local level to the satisfaction of all concerned. Prior to the introduction of charges, the level of review applications received in my Office was broadly on a par with that in Western Australia and Queensland where there are similar FOI laws. However, the experience abroad has been that jurisdictions which charge a fee have a significantly lower level of external review applications.

Table 2 - Applications accepted by the Information Comissioner for review between 01/01/2003 and 30/09/2003 compared with applications accepted for review in 2002

			Applications accepted from 01/01/2003 to 30/09/2003				Appeals accepted from 01/01/2002 to 31/12/2002
		Category				Category
Personal	Non-Personal	Mixed	Total	Personal	Non-Personal	Mixed	Total
580	165	61	806	313	217	55	585

I have already pointed out that we anticipate the overall number of applications to my Office for review to increase by around 70% over the level received in 2002. The other striking point to note in looking at the reviews accepted so far in 2003 is the increase in the number of reviews concerning records which contain personal information. In 2002, just under 63% of cases accepted for review related wholly or partly to personal information; that proportion has increased to over 79% for review applications accepted up to 30 September 2003.

It is probably fair to say that FOI requests by individuals for access to their own personal information (as opposed to the personal information of others), which might have been refused in some cases in the early days are now routinely granted, sometimes outside of FOI. What I have in mind here are personnel files, records of performance at interview and, of course, medical records. Yet, interestingly enough, almost 80% of applications to my Office now involve personal information or a mixture of personal and "official" or non-personal information. This debunks any notion people may have that my staff are occupied solely in examining records of high level policy making and of records relating to the State's finances and international affairs.

In contrast to personal information of a private nature, non-personal information or "official" information is more in the nature of a "public contract" between the public and the public body. And while the request may come from a single individual, the information sought is of interest to more than one person. It may be of interest to tax-payers, generally, in that it sheds some light on how public funds are spent by the body. It may be of interest to parents of school-going children who wish to know more about school refurbishment programmes. It may be of interest to local community groups anxious to find out about the provision of health services in their area. In relation to such non-personaI it is worth remembering that it is owned ultimately by the people, not by the organisations which have created the records or which hold the records. In the context of charging to allow the people access to this information, it is one thing to impose charges for retrieval and copying, it is another thing to charge people for the provision to them of their own information.

Records of those in Institutional Care

I would like to focus for a moment on one category of requesters who are seeking their personal information. A very high percentage of the reviews on hands in my Office (over 35% at the moment) concern the records of persons who were in State care in orphanages, industrial schools and reformatories and "special schools" such as those for blind persons and deaf persons. I know that any information found is of tremendous importance to people who are trying to establish what role the State had in their education and care. The majority of this type of case coming to my Office do so on the basis of failure to respond to the request within the time limits prescribed in the FOI Act. Delay by the Departments concerned (Education & Science and Health & Children) in responding to the requests is deemed under the Act to be a decision to refuse access, which, in turn, can be appealed to my Office.

The Department of Education and Science has scanned all of the records it holds about children committed to industrial schools and reformatories through the Court system on to an electronic database which is searchable by entering various criteria. Such a facility is not available for records of those who were in special schools and manual searches have to be conducted.

Unfortunately, the Department of Education & Science does not hold a file for every individual who spent time in institutional care and effectively, some requests have to be refused in accordance with the exemption in the Act which provides for such refusal where records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of my Office in such cases is to satisfy itself that the steps taken by the Department to locate the records are adequate. There has been a lot of contact between my staff and the Department of Education & Science over the last two years on the issue of the management and availability of these records. Although there are still serious delays in the Department's processing of the requests, and this is a cause of frustration and disappointment to those requesters and their representatives, I appreciate that the Department is co-operating well in supplying my Office with records and other information to enable it to complete reviews of these decisions within the time limit specified in the Act i.e. as far as practicable, within four months of the receipt of the application for review.

The situation in relation to the Department of Health & Children's records is less clear-cut. I share the regret of my predecessor Kevin Murphy, as recorded in his Annual Report for 2002, at the apparent failure of the Department of Health & Children up to July 2002 to commence identifying, cataloguing and indexing its archive records which include personal information of individuals who were fostered, boarded out or in orphanages and other institutions. My Office has been monitoring the record management project announced in July 2002 (Access to Institutional and Related Records - AIRR) of that Department insofar as its progress is relevant to the outcome of reviews arising from applications from those seeking records about their institutional past. Progress on the AIRR project has been relatively slow and there is still much work to be done to enable the Department to efficiently access and search the relevant files in the archive so that information on identifiable individuals who were in care can be released to them on request. I understand that the Department has recently gone to tender with a view to selecting a contractor to undertake the work of sorting and cataloguing these records.

At a recent meeting with the Department of Health & Children, my Office was told that extra staff and resources are being allocated to the project. I welcome this initiative and will continue to keep an eye on developments in this area and, in the meantime, to examine the search issues in each of the reviews on hands on a case by case basis.

Assessment of impact of FOI to date

One measure of the impact of FOI decisions is the extent to which records, which were likely to be withheld five years ago, are now far more frequently being made available - in some cases without recourse to a formal FOI request at all. To illustrate some of the progress that has been made towards the goal of greater openness and accountability in this country I would point to just a couple of "landmark" decisions made by my Office.

In what has become known as "The T.D.s expenses case" [case number 99168 - Mr Richard Oakley and the Houses of the Oireachtas] details of travel, secretarial and other expenses paid to each TD and Senator were sought. The then Commissioner reviewed the decision made by the houses of the Oireachtas and directed that the records be released on the basis that the public interest in ensuring accountability for the use of public funds outweighed any rights of privacy that the individual members might enjoy in relation to their expense claims. The result - such information has since been routinely available and published.

Similarly, there has been a number of important decisions on public sector tendering (including several involving the Office of Public Works viz. case numbers 98049/98056/98057) where public money was at stake in commercial arrangements entered into with suppliers. The Commissioner's finding in those cases was that the public interest was better served by disclosing commercially sensitive information. While there are still occasions where records are withheld on the grounds that the information, if released, would prejudice the conduct of contractual or other negotiations or undermine the business of a company to such an extent that disclosure would not be in the public interest, by and large, public bodies are now prepared to release details of how they conduct a tendering process and the cost to the taxpayer of the contract.

Another area where practices have changed since the advent of FOI is in personnel and recruitment records. In one particular review, the then Commissioner found that a candidate for a public service post should be given access to that part of the interview board's report which contained his name and associated hand-written comments [Case number 98082. Mr ABD and the Local Appointments Commissioners]. Generally, nowadays, public bodies allow their staff and those competing for positions to have access to their personal information as a matter of routine. At the same time, steps are normally taken to protect the privacy rights of other individuals who might be mentioned on the files - e.g. details of other candidates' performance.

Public bodies too have made some "landmark" decisions. For example, the Environment Correspondent Frank McDonald has argued that the effective scuppering of the Campus Stadium Ireland was down to the 1997 Freedom of Information Act. He wrote in the Irish Times of 12 March 2003, "If it wasn't for the Freedom of Information Act, the State might now be locked into a contract to build a national stadium and a range of other sports facilities on the 500 acre Abbotstown site in North Dublin, exposing taxpayers to a bill exceeding euro 700 million...we know all of this, and much more, thanks to the Department [of Finance] supplying two boxes of documents in response to a request in January 2001 from the Irish Times under the Freedom of Information Act."

For the record, among the documents released were memos raising concerns about the possible under-estimation of the final cost, public transport difficulties and other key matters. But, under the amended Act, arguably, much of this would form part of the deliberative process and would be exempted from release.

The culture of openness through FOI has gone some way towards ensuring objectivity and sound decision making in the public service. The experience is that greater accessibility requires changes in work practices and in attitudes. One thing is sure - the previous lack of transparency and accountability inherent in "secret" processes could only serve to foster mistrust and allegations of bias.

There are many other important decisions available in full on my Office website - www.oic.ie - which illustrate the range of information which has been released about how the public sector does its business. Detailed analysis of the various exemptions is also to be found in the decisions themselves underlining the view expressed by one of the contributors to the Trinity College School of Law FOI Conference last month that there is a lot of law to be found in the FOI Act.

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