2005

"The Hallmark of Democracy" (20.04.2005)

Address by Emily O'Reilly, Ombudsman and Information Commissioner at Committee on Library Co-operation in Ireland (COLICO)

Introduction

I am delighted to be here today to deliver the first annual COLICO lecture as part of this joint conference. Your conference programme is full and diverse. It contains many topics of interest to me in my capacity as both Information Commissioner - as they relate to information matters - and Ombudsman - as they relate to wider public service and governance issues. As Information Commissioner, and as a former journalist, it is particularly interesting for me to address an audience of information professionals who are, traditionally and of their very nature, concerned with matters of intellectual freedom, censorship, dissemination of information to a variety of audiences, as well as with the management of information. I feel I am speaking to an audience which has a particular affinity with my role as Information Commissioner.

But beore I go on to speak about my work as Information Commissioner in the Republic, could I first of all welcome those of you from Great Britain and Northern Ireland into the FOI club. Your legislation had a very, very long gestation, eventually coming into operation just four months ago, in January, and I very much look forward to watching its evolution and how it mirrors or otherwise the evolution of our own legislation. I haven't yet had an opportunity to update myself on what's been happening here, and I look forward to future contact with your Assistant FOI commissioner Marie Anderson. Two weeks ago, in England, the UK Commissioner Richard Thomas briefed an Ombudsman's grouping on developments to date in Great Britain. He seemed happy that public bodies were implementing the Act conscientiously and even enthusiastically, though, as I said to him, it will be the reaction of the politicians that will determine much of the future of the Act.

History of FOI Act in Ireland

The Public Service Management Programme was launched by the Irish Government in 1994 with the stated objective of presenting public service management with an opportunity to improve the quality of public service delivery. The Programme was built around six organisational themes, one of which was greater openness and accountability and was to be delivered by the introduction of Freedom of Information legislation.

A number of circumstances came together to create the impetus for the introduction of FOI in Ireland. A group of academics and members of the media had come together as the "Let in the light" campaign to lobby the government on the issue. Their campaign was strengthened by revelations from the inquiry into the beef tribunal which has raised many issues about deficiencies in the accountability of the public service and consequent implications for the parliamentary process. In addition, the political environment of the day was favourable. The Taoiseach of the day, Fine Gael's John Bruton stated in Dáil Eireann that "the Government must go about its work without excess or extravagance and as transparently as if it were working behind a glass pane".

Within the public service also there was a growing realisation that a modern administration must be grounded in openness, transparency and accountability, or as our former Finance Minister Charlie McCreevy, now EU Commissioner, used to call it, "the great Goddess OTA" and not admiringly either may I add.

But basically the time and environment was right for the introduction of the FOI Act in 1997. That its introduction represented a significant shift in how the business of Irish Government and public bodies was done is an understatement. No longer could civil servants rely on the Official Secrets Act to refuse information about public policy issues or about matters directly related to individuals such as decisions on their disability benefit or housing application. No longer could the mere marking of a document "confidential" ensure that it would never see the light of day. In place of this culture of secrecy and business done "behind closed doors" came a radical piece of legislation based on international best practice. The legislation drew on many excellent models which were already operating successfully in common law jurisdictions. The Queensland FOI Act was our main influence along with Australian and Canadian legislation.

The purpose of the legislation is stated in the long title of the FOI Act; it is "to enable 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". The Act also provides for the correction of personal information where it is incomplete or incorrect, and for the provision by public bodies, of statements of reasons for decisions which affect particular persons. In the first instance people, for example, have succeeded in having unfair or inaccurate statements about them contained in personnel records amended, although I should point out that a very strong case needs to be made before any record is amended or added to.

As I have stated previously, for me the introduction of the FOI Act represented the act of a maturing, or even of a mature democracy. I believe that decision-making processes and decisions by public bodies must stand up to external scrutiny. The public has a right to know how taxpayer’s money is being spent and how decisions about public policy, which affect their lives in a very real way, are arrived at. Public servants and politicians making the decisions should be in a position to withstand such public scrutiny and explain their position in the knowledge that decisions made were rational, fair, based on sound information, and were made in the public interest - while acknowledging that not everyone has to agree or like the end result. Running public services should not be reduced to a popularity competition.

I believe that when people have a right to accurate information about the decisions which affect their lives better decisions are a consequence. Furthermore, a system which allows access to such information encourages active citizenship and participation in our democracy. FOI is not, as was stated in debates during the 2003 amendment controversy, about making the lives of decision makers impossible, in fact it can also be seen as affording them protection from ill-founded accusations of maladministration. Time and time again, I hear public officials bemoan the fact that FOI eats up resources of time and money. I reply that the introduction of FOI was rather like introducing a new baby in a family; over time the baby become part of the family, and we forget what it was like when he or she wasn't there. FOI has to become just another administrative task to be completed, no different to any other.

It is long acknowledged that corruption in all areas of life, including government, relies on secrecy and that where there is transparency and openness opportunities for corruption are reduced. This was put most succinctly by the late U.S. Supreme Court Judge Justice Louis Brandeis when he stated "Sunshine is the best disinfectant." In other words, increased transparency and accountability reduces the opportunity for shady dealing and should result in better decision making and, consequently, better decisions.

Annual Conference of Information Commissioners, Cancún, Mexico

I recently attended the third Annual Conference of Information Commissioners which was held in February of this year in Cancún, Mexico. That such a conference should be taking place in Mexico is remarkable in itself as Mexico long has a reputation of corruption and bribery at all levels of society including government. But, like other societies undergoing reform, Mexico sees that effective programmes and systems are required to turn their administration around. They see the introduction of Freedom of Information legislation as a key tool in achieving this aim. It is important for all of us interested in true democracy to support such developments. It is equally important to ensure that the integrity of such legislation remains intact and that the introduction of FOI and Ombudsman systems do not become a "tick-box" exercise which mask the fact that there is no real change behind them in the systems into which they are introduced.

It is said that there are now approximately 60 nations world-wide which have enacted laws providing access to Government Information and approximately 45 of those nations were represented in Cancún. At the end of the conference a declaration was signed which included the following statement:

"Participation in the knowledge of public entities is a legal right of the information society. Without discrimination, any person must be allowed access to the documents of public agencies. A transparent public administration, open to citizen participation in its decisions, is a prerequisite of a modern democratic society."

It is sometimes easy, particularly at a conference such as this where we feel that we are surrounded by like-minded people, to nod sagely at statements such as these, while being somewhat complacent about what they mean on the basis that their truth is plain to see and any reasonable person would sign up to them. However, danger lies in such complacency.

Contrast with the Irish Experience: India, South Africa

I was struck during the conference by the disparity between the society within which I operate as the Irish Ombudsman and Information Commissioner, and that of some of my international colleagues. For example I learned about the case of the people of central Rajasthan, India who marched in their thousands in April 1996 from the rural hinterlands to the market town of Beawar with banners and slogans demanding their right to information and with a specific request for information about development expenditure. This was the start of a nation-wide movement in India for the right to information. It lead to the birth of the National Campaign for the People’s Right to Information (NCPRI) in 1997. Today Rajasthan has a right to information law, as do several other states in India.

The Indian situation provides what I call an example of FOI working in its most pure, most noble state. The poorest of Indian's poor were able, by accessing public records, to find out that state funded distributors of food and other vital goods were keeping much of the supplies themselves and not handing them over to the people. The outcry that followed brought a swift halt to that corrupt practice. I was asked recently whether I considered FOI a human right, and why I am leery about being that prescriptive about it, I quoted the Indian case where FOI enable the people to exercise their human right to the basic needs of life.

In the drafting of South Africa's new constitution, the right to information was seen as a key component of the new administration which followed the apartheid era. The old regime was based on the suppression of information on social and economic policies in an attempt to buttress its racial policies. The new constitution, which was enacted in 1996, guarantees "everyone ... the right of access to information held by the state, and any information that is held by another person and that is required for the protection of any rights". In 1994 the new South African government appointed a Task Group on Open Democracy under the then deputy president Thabo Mbeki. From this grouping the Open Democracy Advice Centre was established with its central mission to ensure that the Promotion of Access to Information Act 2000 works well in practice and does not gather dust. Indeed I note that only last week in Johannesburg, speaking at the General Assembly of the African Ombudsman Association, President Mbeki urged delegates to work toward the establishment of Ombudsman Offices and institutions which safeguard the freedoms of citizens. He stated "we share a common task to take all possible steps to assist those countries that are still having difficulties in establishing these important organs". He stressed the importance of the embedding of "democratic ideals and practice in all our countries" and the creation of "free and open societies ... for the regeneration of our continent".

Eastern Europe

Nearer to home, at a recent international discussion on FOI in the newly emerging democracies of Central and Eastern Europe, I was struck by the importance afforded to such legislation by both officials and activists in those countries. They view FOI as both a cornerstone and a hallmark of their new democracies, alongside ethics legislation and the introduction of the Ombudsman system.

Against this background from recent history, the recent tendency in the more established FOI regimes to row back on FOI provisions and restrict access to information is all the more striking. This is often done in the name of security. You will, I am sure, have heard about some of the issues from Stuart Hamilton this morning in his paper "The War on Terror and Libraries". By all accounts there is an effect, post 9/11, on FOI. This is most obvious in the case of the US where it is said that three million FOI requests were answered in the US last year but, in the same period, fourteen million new records were classified as national security secrets. This is an unfortunate development as the US FOI system is generally regarded as a very progressive one. We can all agree that it is essential within the best FOI regimes that some information remain secret or confidential - particularly in areas related to security of any state, law enforcement, and the economic interests of the state. However, in the normal course such information is protected by law and would not be released in any event. For this reason the absolute clamp down or "information chill" as it is being called is a cause for concern. There is a danger that prevailing circumstances could be used as an excuse to once more close down access to administrations, to lock out Justice Louis Brandeis’s sunshine , with the dangers that could ensue.

I read this week that in Canada there are concerns about Government proposals to revise their Access to Information Act as it is feared that proposed changes would entrench secrecy rather than open up records to the public. The Canadian Information Commissioner John Reid has implored members of a Commons Committee to be wary of the proposals asking "Can this government – any government – be trusted to avoid the temptation to make the reform process self-serving?" He told Committee members "Your real task is to hold the government's feet to the fire – to ensure that this Access to Information Act is strengthened, not weakened".

It is ironic that as some societies embrace Freedom of Information as the panacea for all of their administrative ills, others with established systems that are working well are moving away from it and seeking to diminish its power and role in democracy.

FOI Act Ireland

Many of you, as public servants in the Republic, will be somewhat familiar with the workings of the Irish FOI Act. However, unless you have trouble sleeping, I suspect that even for you copies of my decisions on the intricacies of the Act do not feature among your bedtime reading favourites. For this reason I will provide you with a brief overview, so please pay attention!

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 almost 400 bodies have been brought into the FOI net, 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.

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.

The act specifically provides that the motive of the requester cannot be taken into account when deciding whether or not access should be granted. Accordingly, all requesters are treated equally and information is either accessible or it is exempt in law from release. The effect of the Act is to provide unmediated access to information held by public bodies. The requester receives the actual record as it sits on a file, not a version or interpretation of it which a public servant chooses to make available.

Exemptions from release 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).

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 Irish 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.

The Amendment Act, introduced in April 2003, brought in a range of changes to the 1997 Act. The changes have altered the emphasis of the Act: pulling back on access to Government records while remaining relatively sharply focused on access to records of individuals. In essence the changes 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 advisors 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 relating to the deliberative process of government are now more likely to be (but not necessarily) found exempt. Significantly, a range of fees was introduced in July 2003, as provided for in the amendment Act. The fees are as follows:

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 do not attract a fee but requests for joint personal information or reports in which one might have a deep personal interest (such as access to industrial schools reports, for example) do.

I carried out a review of the FOI Act one year after the fees were introduced in a special investigation report. That report revealed that the overall usage of the Act had fallen by over 50% while requests for non-personal information had declined by 75%. The report showed that the media were less likely to use the Act, usage by journalists declined steadily throughout 2003. My forthcoming annual report will show that this decline continued. Requests from journalists fell from 12 per cent and 13 per cent respectively in 2002 and 2003 down to 7 per cent in 2004. Business requests declined and other users of the Act, i.e. individuals and representative bodies, use the Act less than before to access information on decisions that affect them directly or indirectly.

Despite the changes, my report showed that public bodies seem to operate the Act in a fair and balanced way. Subject to some caveats, there is no evidence to suggest that the amendment of the Act, or the introduction of up-front fees, has altered their behaviour in this respect.

I am on the record as stating my belief that, despite the changes to the original Act which were introduced in 2003, the Freedom of Information Act is still a powerful and important tool in our society. Some people appear to have become despondent and apathetic about the usefulness of FOI. This is not, in my mind, a justifiable position to take, albeit that it is the easy option. Yes in a legal sense access to some information has been restricted but again the extent of these restrictions can be tested by making requests. The public appetite for information about their administration has not diminished, indeed recent controversies - I am thinking here in particular about the end game of the nursing home subvention issue, culminating in the Travers Report, (a matter which I and my predecessor had commented upon on numerous occasions) - have probably served to increase it. The introduction of the original FOI Act cued a change in the 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.

Co-operation

I have mentioned attending a number of international conferences on FOI, and of the value of such meetings to all participants. In positions such as mine, where one's Office is one of a kind, cross-border and international co-operation is a necessity. As you more than most people know, the free flow of information depends on deep-rooted and widespread co-operation. I know I am preaching to the converted when I stress the importance of such professional co-operation. The very fact of this North/South conference, which has been run on that basis since long before such activities were either popular or profitable, is testimony to your commitment to professional co-operation. The activities of COLICO, an all-Ireland and cross-sectoral committee, means that such co-operation is firmly embedded in the policy-making arena.

In Cancún, co-operation was highlighted by the International Conference of Information Commissioners as a priority. Indeed the conference adopted a formal declaration which states our commitment to "foster a broader, world-wide public awareness of freedom of information, to further analyse and define its vital elements, and benefit from an exchange of experience" by continuous cooperation.

However it is in the practice that these grand statements become a reality. The power of on-line networking were brought home to me in a very real way when I read on a Freedom of Information website (freedominfo.org) about on-line co-operation and information sharing. Slovakian campaigners for open government went on line to refute a legal interpretation of an EU Directive which could have had the result of increased secrecy in Slovakia. A Slovakian lawyer with the Citizen and Democracy Association in Bratislava posted his request for help on the and foiadvocates website at 6:57 a.m. on 9th February. Within four hours the posting had circulated on several related lists. He received advice and legal precedents from experts in Ireland, South Africa, India, Canada, Israel, Hungary, Bulgaria, the U.S., Germany, Latvia, and the state of New York. The Slovakian interpretation of the EU Directive could have lead to the removal of a provision in their FOI law which said that non-reply could be deemed to be a refusal. As rights of appeal only kick in when a refusal is obtained, the effect would have been to seriously diminish the rights of requesters. Open government advocates around responded with specific statutes, court cases, and legal precedent demonstrating an international standard that non-response amounts to a denial. Indeed an FOI Irish expert Professor Maeve Mc Donagh from UCC contributed a specific analysis showing that the EU directive covers "re-use of public sector information" and cannot change national access to information laws. Through this on-line exchange in the spirit of professional co-operation, a very real input was made to the Slovakian parliament's debate on their FOI legislation.

Sunshine Week

I was also very interested to read recently about the first national "Sunshine Week" in the US which involved a level of co-operation between FOI advocates and librarians. Initiated in "the sunshine state" in 2002, the event takes its name, not from Florida but, presumably, from the aforementioned Justice Brandeis's sunshine aphorism. It is a week when the US media focuses on Freedom of information by testing FOI laws and highlighting information obtained using them. More than half of all US newspapers signed up. The Guardian reported recently the finding of an Associated Press Survey which found that the number of US public documents marked "classified" had increased by 60% in 2003 compared to 2001. It also reported that 7 out of 10 Americans are concerned about Government secrecy according to a poll by Editor and Publisher magazine. (Media Guardian, 4th April 2005).

As a former journalist who now holds the position of Information Commissioner and Ombudsman, and in the context of reduced usage by journalists of the Irish FOI Act, I was particularly interested in the Guardian’s comment that too few UK journalists are shining a light on local government in the mistaken belief that the public is not interested. All politics is local and if the national sheets are not interested in local issues, then surely the local papers should see the potential? I am, naturally, particularly aware of the role that the media can play in awareness raising. A glance at the Irish daily newspapers shows that, albeit in reduced numbers, journalists are using the FOI Act to obtain information. In this digital age of immediate information, where it is tempting to seek instant answers on the internet, it is important that journalists and others interested in civic issues continue to engage with the Freedom of Information legislation to access the real information behind the stories. In the context of your conference, you will be interested to know that an important part of the week in the US is a partnership between the media and the American Library Association which provides local opportunities for community education and the discussion of FOI issues. It occurs to me that perhaps Ireland is ready for its own "Sunshine Week" and that maybe I should talk to some of your here today about that idea!

Conclusion

In preparing my paper for today I glanced, on-line, at the UNESCO Public Library Manifesto which states: that the library is a ‘a living force for education, culture and information, and as an essential agent for the fostering of peace and spiritual welfare through the minds of men and women". That manifesto recognises that whereas freedom, prosperity and the development of society and of individuals are fundamental human values, they will be attained only through the ability of well-informed citizens to exercise their democratic rights and to play an active role in society. It seems to me that we here today are all in the information business - the flow of information is our business, in your case published information, and, in the case of Freedom of Information, the unpublished.

Constructive participation and the development of democracy depend on satisfactory education as well as on free and unlimited access to knowledge, thought, culture and information. The work of my organisation sits well with the work of libraries towards that end.

Thank you for your attention and continued success in your joint endeavours.

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