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2004
"Freedom of Information Act on Journalism" (01.03.2004)
Address by the Information Commissioner, Ms Emily O'Reilly at Cork Online Law Review
Thank you very much and thank you for your invitation to me here this evening to formally launch the latest Cork on line law review and I would like warmly to congratulate Roberta and her colleagues for their initiative, drive and energy in putting this web-based review together and making it a success.
I don't know if any of you read a recent news report about a new Jesuit retreat currently being held in Dublin. The reporter made quite heavy weather of the fact that many of those in attendance were lawyers and hinted darkly that this was the legal profession's way of expiating some of their alleged guilt at being so well paid and perhaps being overly attached to things temporal as opposed to things spiritual.
Whether that interpretation of the praying lawyer's intentions was true or not, I imagine that Roberta and her colleagues and all of those who take part in the type of academic outreach exercise that is the on-line review represent a different and often unheralded facet of the legal profession - they represent those lawyers or trainee lawyers passionate about their work, about the role of law and of the legal profession in Irish society and about how their input either academically or in practice can impact positively on all our lives.
As a non-lawyer, and a former political journalist, I now find myself nonetheless, as Information Commissioner regularly dealing with the law as I and my officials daily interpret the Freedom of Information Act of 1997 and the Amended Act of last year, 2003. Naturally, we call upon "real" lawyers to help us when very complex issues arise or when my rulings are appealed to higher courts. But very often interpretation involves little more than common sense and a clear understanding of the underlying intention of the so-called mother act.
There has been a lot of public debate about changes made last year to the original act and I note that the latest review carries an article about those changes. Without going into eye-watering detail about the nature of the amendments, let me just say that in essence they limited the potential for public access to records relating to the thought process in and around government actions. The definition of government was effectively expanded to include committees comprising civil servants or advisers or a mix of both without any Minister as such being in attendance. The release of certain Minister to Minister correspondence was also axed, and records which form part of the deliberative process of government are now more likely to be (but not certainly) found exempt.
I have said on a number of occasions that the effective scuppering of the Campus Stadium Ireland project was at least indirectly due to FOI. The release of records to the Irish Times in particular highlighted potential cost over runs and other matters and fuelled a political and public debate about the wisdom of going ahead with the full -sized stadium and add ons.
In a sense, that issue highlights the intended benefits of FOI. The more people know, the more they, we, can engage in a fully informed, mature debate about issues and projects which impact on all our lives or which siphon off part of our money as taxpayers. FOI isn't about snooping; it isn't about embarrassing Ministers or public officials, it isn't about game playing, it's about allowing us, as citizens of a democracy, fully to participate in that democracy.
I can understand some of the impulses that led to the amended act. What happened isn't unusual. Internationally many FOI regimes enjoy a honeymoon period, as our did, before the government of the day moves to row back and restrict some of its provisions.
Some of those impulses were very human ones. With the best will in the world, no one likes their work, their decision making, their interactions with others being open to scrutiny. Some Ministers and public officials were also possibly unhappy with the media spin put on the contents of, say, a particular set of correspondence or on the nature of advice tendered to them by the civil servants.
But many of the more embarrassing headlines were the simple product of the novelty value of FOI. Like a child with a new toy, journalists and others wanted to prod it and poke it and see what it would do. But what the Government may have forgotten is that, like all new toys, many are either discarded or simply played with now and then, not obsessively. Media queries under the ACT had already settled down and declined somewhat, the shock and horror of discovering that from time to time Ministers actually disagree with their civil servants has abated and nobody gets too excited anymore at the publication of TDs travel and other expenses. This is not to say that any of this is trivial, far from it, indeed the now regular publication of the latter is a constant reminder not just to TDs, Senators at al, but to all public servants of the need to be mindful of the taxpayer when it comes to incurring expenses.
But what's done is done. As Information Commissioner, I shall be publishing an investigation next June into the effects of the amended Act and of the introduction of fees. At that point I shall have more to say.
I should not however leave you or anyone else with the impression that FOI no longer packs a punch. As I have said before, it may be winded but it has not yet been stretchered off the pitch. Personal information requests are still being made and their numbers may even be increasing. And while requests for so called public information are certainly down, the media in particular is still managing to uncover many stories of significant public interest.
In the recent past, the Irish Examiner ran a story - based on FOI documents - about the number of fraudulent passport applications being made every year. The same newspaper carried several prominent stories about tax changes made around the time of the sale of Eircom in 2001.
The Irish Independent, through the Act, carried a story about political lobbying in relation to a Kerry marina project. The same newspaper also reported on the fees and expenses paid to board members of Udaras na Gaeltachta over the last few years.
The Irish Times secured details of advice given by the Department of Finance to another Department in relation to decentralisation.
The same newspaper also secured documents relating to Department of the Environment appeals to An Bord Pleanála. It also carried a story relating to correspondence between the Taoiseach and Cardinal Desmond Connell concerning stem cell research. And there are many other examples which show that the Act still allows light to be shone into the business of government, a light which illuminates public understanding of the issues and allows for proper, informed debate.
At this point I think it's worth raising our sights from the domestic and look around the globe to see what's happening on the FOI front there and to remind ourselves yet again of the profound and positive differences that FOI can make to the lives of real people. For this I am grateful to the website freedominfo.org who monitor these matters.
Last September the Shanghai Housing and Land Administration Bureau announced that it would release information on land plots available for open bidding every month in order to improve transparency in land leasing transactions and to curb corruption in the bidding process.
That same month it was reported that residents of New Delhi have begun to use the Right to Information Act to compel authorities to finish long-pending civic projects. The Act, enacted in 2001, is reportedly already empowering the community as it affords them the right to hold their officials accountable.
In South Africa last July documents released under the Promotion of Access to Information Act, revealed the controversial outcome of an oil deal between South Africa and Nigeria.
Again, that same month, records obtained under Canada's Access to Information Act revealed 10 incidents of theft from Canadian military bases since 1997. Items missing included mine detectors, smoke grenades, handguns and explosives including three kilograms of C4 plastic explosives, enough to level a building.
Under the same Act, it was discovered that the Canadian Firearms Centre spent $13 million on travel expenses over a five -year period. The revelations eventually forced a ranking Government official to resign in the midst of public outcry and accusations of government corruption.
Similar records about the abuse of Japanese taxpayers money - and released under the Japanese Information Disclosure law - were released last May and prompted a public debate about the relationship between politics and big business.
Bulgaria, although having teething problems with its 2002 Freedom of Information Act, is also beginning to use the new legislation to uncover possible political corruption.
So we can see, globally, how the Freedom of Information ethos is developing and how it is empowering citizens even in poorer countries to bring public officials to account for their actions, to bring about marked improvements in the provision of public services, and to ensure that government actions are open, transparent and not subject to bribery and corruption. When you make that global sweep it becomes very clear that Freedom of Information brings benefits that far outweigh concerns about privacy and confidentiality when it comes to the business of government.
Some people and organisations have become despondent about FOI in this country. I think that some of that despondency may not be entirely justified. Yes, in a legal sense, access to information has been restricted, but the public appetite for information has not. The introduction of the original FOI act cued a change in public expectation of their right to be informed of the actions of government and public bodies and I do not believe that that expectation has changed, rather it has increased.
It may be a case of two steps forward, one step back, but I think the cultural impetus is towards more openness at this level, irrespective of whether that openness is the direct product of FOI or not.
Let me give you an example which I have made several times in the last few months. Most of you will be familiar with the correspondence that was released by the government between it and Mrs Justice Laffoy, the former chairman of the child abuse commission. The correspondence was not released under FOI, indeed under the new Act, it might or might not be releasable as there is now a discretionary exemption in the case of records relating to the work of Tribunals. Yet the public expectation of the release was such that the government had no option but to release it itself, FOI Act or no FOI Act. That to me, illustrates, a profound cultural shift, and one I suspect that has not been diminished by the passage of the amended Act.
And staying on the issue of the Laffoy commission, one could argue that had the public known at an earlier stage of the problems faced both by Laffoy and by the government, the debate generated by that knowledge could have led to a happier resolution than what subsequently transpired.
The task of those who support the concept of FOI, who have a visceral sense of the positive, transforming role of FOI, of its vital role at the heart of democracy is to educate, to talk up, to do in effect a PR job on FOI. The aim should be to adjust the mindset of those who view FOI as a dangerous irritant, to make them aware instead that when it works well it can transform for the better the working government, thereby enhancing the lives of all its citizens.
To conclude let me quote Amartya Sen, the winner of the 1999 Nobel prize for economics. Sen argued that famines do not occur in societies where there is a free press, operating with freedom of information. It is not the lack of food in the aggregate, he claimed, that gives rise to famines, but the lack of access to food by the poor in famine regions. A free press, armed with full information, exposes those problems; once exposed the failure to act is absolutely intolerable.
Lord Mayor, ladies and gentlemen, thank you for your attention. I wish you great success with this third on-line review and I hope you enjoy the rest of your evening.
