2006

FOI Legislation - Still Achieving its Purpose? (30.11.2006)

Address by Emily O'Reilly, Information Commissioner at Public Affairs Ireland Conference

FOI LEGISLATION - STILL ACHIEVING ITS PURPOSE?

In preparing for this morning's conference, I took the opportunity to look back at some of the many presentations made by my predecessor and myself, since 1997, on the subject of Freedom of Information. The common theme in almost all of these talks is the fundamental purpose of FOI legislation. And like a mantra, this key sentence keeps cropping up:

"The Freedom of Information Act seeks to replace the culture of secrecy within the public service with a culture of openness."

The question posed in the title to my presentation is whether our FOI Act of 1997, as amended in 2003, still achieves this purpose. The implication in the title, given to me incidentally by PAI, is that our FOI legislation certainly did achieve this purpose but that there may be a question as to whether it continues to do so. Given our experience with FOI in recent years, I have to accept that this is a legitimate question to raise. Not only is it a legitimate question, it is, I believe, a very urgent question and one which I should address as honestly as possible. Indeed, as I have said on a number of occasions in the recent past, the time has come for us to have a "grown-up debate" in Ireland about FOI matters.

And in the interests of honesty, I must say straight away that FOI is an intensely political matter and the success or otherwise of any FOI regime will depend very much on the political climate within which it operates. I had the great honour recently of being invited to South Africa to speak on the theme of "Freedom of Information in a Democracy". In one of my presentations there I dealt with the requirements for a properly functioning FOI regime. While I emphasised the importance of having good legislation to underpin the operation of FOI, I also identified the following as essential requirements:

genuine commitment at the political level, and at the highest administrative levels, to the full utilisation by the public of their FOI rights;
proper structures within public bodies to facilitate the operation of FOI;
designated, trained staff who are actually available to operate the legislation;
a central agency, with adequate resources and status, to support the proper implementation of FOI by public bodies;
adequate publicity to inform the public of their rights and to encourage use of FOI.

And of these, I commented that commitment or "buy in" at the political level is probably the single, most important element; with political commitment comes (usually) commitment from the higher administrative levels. I will have more to say on this a little later.

PURPOSE OF FOI

I think it is very important to be clear that a properly functioning FOI regime is a vital element in the kind of open, liberal democracy to which we in Ireland aspire. Having said that, I am immediately conscious of how this statement may be regarded as a pious platitude. I am conscious also that statements of this type are not always made with real conviction and that some people may be justifiably cynical when they hear these words trotted out. It is unfortunately the case that many countries have adopted FOI laws in name but not in spirit. David Banisar, author of "Freedom of Information Around the World 2006" (published by Privacy International), put it rather well when he commented: "In the same way that repressive countries such as in the USSR included extensive rights in their constitutions that were never recognised, some governments have adopted FOI laws." I do not believe that this country falls into Mr Banisar's category of those that enact FOI laws only to have them gather dust, but the net point is that FOI regimes need ongoing nurturing by the political system in order for them to flourish.

Anyone who thinks that we do not really need a properly functioning FOI regime here in Ireland is deluded. Our current economic success should not blind us to the deep-seated problems of governance which have bedevilled us both in the recent past and, indeed, to this day. The Moriarty, Morris and Mahon Tribunals continue to shock us with details of behaviour which, one can only wonder, may not have gone away. The quality of our health services - including hospital services, care of the elderly and our mental health services - is a cause of deep anxiety and frustration to perhaps the majority of us. Whether we can act quickly enough to deal with the consequences of climate change is another major worry. Our capacity to deal with these challenges will be greatly enhanced if government and the public service is open, transparent and subject to proper scrutiny.

To elaborate, then, on the purposes of FOI, I think they can be summarised by saying that FOI:

helps to keep government honest and to discourage corruption
helps to educate the public about government
helps to hold government accountable to the people
helps to improve the quality of decision making by public bodies
acts as a check on the exercise of power by government and its agencies, and
promotes citizen participation.

And to be fair, I think FOI has had a considerable impact over the past few years. For example, as a direct result of FOI appeal decisions from my Office, inspection reports of schools and of nursing homes are published as a matter of course by the Department of Education and the HSE respectively. It is now accepted by public bodies that information on tendering competitions should be released on request. The details of expenses paid to Oireachtas members are made available on request. And candidates for public sector jobs are now likely to be given the records relevant to their own performance in a competition - though the issue of releasing references from third parties is still presenting some problems.

Public bodies themselves have taken some "landmark" decisions and, in so doing, have demonstrated that the rule of FOI must prevail even where the consequences may be embarrassing or unpleasant. The Environment Correspondent of the Irish Times, Frank McDonald, has argued that the effective scuppering of the Campus Stadium Ireland project was brought about by the 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." Among the documents released were memos raising concerns about the possible under-estimation of the final cost, public transport difficulties and other key matters.

In the course of 2006 to date, interesting and relevant FOI-based stories have appeared in all of our major newspapers. For example:

in February 2006 the Irish Times reported, in relation to the Leas Cross nursing home saga, that in 1998 the health board's own inspectors recommended against the registration of the nursing home (the FOI request was made by Fergus O'Dowd TD);
in June 2006 the Irish Times reported that the Government went ahead with plans to reinstate much of the Western Rail Corridor despite advice from an expert group that the restored line would not be economically viable;
in August 2006 the Irish Independent reported that the Minister for the Environment and the Minister for State responsible for the OPW were at odds on proposals (from the OPW) to specify the use of "green" or environmentally-friendly cement in public contracts;
in October 2006 the Irish Examiner reported on a very uneven availability of relevant patient data from Ireland's public maternity hospitals;
throughout the year, many newspapers carried stories on rates of MRSA infection in hospitals throughout Ireland.

I am not suggesting that there is anything new in a disagreement between Ministers; or that Government should not make decisions which go against official or expert advice (if that were the case, for example, Knock Airport would never have been built). What is important is that the facts behind decisions are known to the public and it is then a matter for decision makers to explain their decisions. This can only be a good thing.

FOI - THE POLITICAL CONTEXT

It would be disingenuous of me not to acknowledge that the political climate in which FOI operates at present is somewhat challenging. Realistically, there will always be a certain level of ambivalence at government level in regard to Freedom of Information. There will always be the temptation to dilute access rights under FOI laws.

In my presentation in South Africa last September I dealt with this issue in some detail, outlining - by way of examples from Canada, the USA, the Commonwealth of Australia and the UK - that political or governmental support for FOI cannot be taken for granted and, indeed, can on occasion be withdrawn. [Those interested will find the text of my South African presentation here] The case of Canada is particularly intriguing. There, the federal Information Commissioner has been at odds with government for several years over (as he sees it) the failure to support his Office, the failure to reform the legislation and, perhaps most importantly, the failure to encourage public servants to set aside the culture of secrecy. Earlier this year, a Commission of Inquiry into a sponsorship scandal delivered a very strong report on the need for radical reform of Canada's Access to Information Act; the Inquiry, headed by a Superior Court judge, castigated an overemphasis on secrecy within government and found in favour of the principle of release of information with very strict limits on the grounds for refusing information requests. I mention this example to re-inforce the point that we in Ireland have no grounds for complacency in relation to our own FOI regime.

In our case, the most significant development in the FOI area since 1998 has to be the enactment of the FOI Amendment Act in April 2003. As Information Commissioner I find myself in a difficult position in relation to the Amendment Act. On the one hand, the Commissioner's role includes fostering and promoting the overall FOI project. On the other hand, there is a tradition in Ireland that holders of statutory office will not be critical of the Oireachtas or of the government of the day and will respect the principle that the Oireachtas represents the people. On balance I take the view that there is a middle ground in all of this: that it is more productive, and healthier for our democracy, that independent office holders like myself should engage, where necessary, in vigorous dialogue with the Oireachtas. This need not, and in my case certainly does not, imply any lack of respect for the Oireachtas; nor does it involve any inappropriate intrusion into the political sphere. Rather, I see it as a contribution to a debate which should be conducted both inside and outside of the Oireachtas.

I have to say straight away that the overall effect of the Amendment Act has been negative. And this negative effect stems not just from the nature of the amendments made but also from the overall message which the Amendment Act sent out. That message was:

that FOI rights were being curtailed;
that exercising those rights was being made more difficult (fees)
that government was now less enthusiastic about FOI than hitherto.

The manner in which the Amendment Act came about - specifically, the decision not to consult with interested parties - inevitably resulted in battle lines being drawn and, unfortunately, in FOI becoming something of a "political football". The Amendment Act was predicated on a view that FOI was creating unreasonable demands on public bodies; that some requesters were abusing their FOI rights and that, as it stood, the Act of 1997 did not provide sufficient protection for certain sensitive records. Both my predecessor and myself, in Annual Reports, other reports and appearances before Committees, have conveyed to the Oireachtas the view that the Amendment Act was, in many important respects, unnecessary and, more importantly, would have serious negative consequences for the overall FOI regime in Ireland.

For the record, the principal elements of the Amendment Act included:

the time limit for potential release of Cabinet records increased to 10 years from five years;
records submitted to Government, or proposed to be submitted to Government, or records of communications between Ministers relating to Government business, are now mandatorily exempt (previously this was a discretionary exemption);
for the purposes of the exemption above, the term "Government" is taken to include a committee of the Government; this, in turn, is now taken to include a committee of officials and/or advisers where that committee is certified as such by the Secretary General to the Government;
a record may be excluded totally from the scope of FOI - with the resultant loss of appeal rights - where the Secretary General of a Department certifies that the record "contains matter relating to the deliberative processes of any Department of State";
records relating to security, defence and international relations are now the subject of a mandatory exemption, with no requirement to apply any harm test, whereas hitherto such records were exempt only where a harm test was met;
the FOI Act will not apply to parliamentary briefing records, including records created for the purpose of briefing in relation to the answering of parliamentary questions;
provision was made for the introduction of "up front" fees at the point of making a request (€15), when seeking internal review (€75) and when appealing to the Information Commissioner (€150) - though there is no fee where the information is solely personal information about the requester.

FOI - POST-AMENDMENT

The Amendment Act's most tangible consequence has been to reduce very considerably the use of FOI for accessing "official" or policy-type information. Less immediately tangible, but no less real, is the impression that FOI is not what it used to be and that it is not worth seeking to utilise the Act.

There has been a very marked drop in usage of the FOI Act, in the case of non-personal or "official" records, following the introduction of the fees. For example, prior to the introduction of fees, FOI requests were split evenly between personal and non-personal information; since the introduction of fees, requests for personal information have been proportionately three times greater than the number of requests for non-personal information. To give a hard example: in 2002, the last full year before the introduction of fees, 7,936 non-personal requests were made; by 2005, this figure had dropped to 3,228. More worrying, perhaps, is the drop in usage of FOI by journalists: in 2002 journalists made 2,103 FOI requests but by 2005 this figure had dropped to 963 requests.

The impact of fees on our FOI regime attracted adverse comment in the GRECO (Group of States against Corruption) report on Ireland, adopted by the Council of Europe in December 2005. [GRECO monitors the observance, by member states, of the Guiding Principles in the Fight against Corruption and the implementation of international legal instruments adopted in pursuance of the Programme of Action against Corruption.] The GRECO report observes that the new "rules could prevent the public from requesting information and/or appealing a decision not to give out information. Above all, the fee system ... sends a negative signal to the public, which is to some extent in contradiction with the general principles of the right to access to official information ...".

I am fully aware that, for public bodies, handling FOI requests can often be a time-consuming and demanding activity. But we have to ask ourselves this question: is it not to the good of our democracy that people should seek to know more about what is being done in their names by public bodies? And is the price to be paid, in terms of public servants' time spent in dealing with requests, not a small price to pay? Dealing with Parliamentary Questions is also a time consuming activity: but while civil servants may sometimes complain about time spent on such Questions, they have never seriously questioned the democratic validity of the PQ process.

I would suggest that, as a society, we should be seeking to encourage greater levels of engagement with "government" by members of the public. The figures show that since 2003 such engagement (expressed in terms of FOI usage) has declined dramatically. In these circumstances, it is reasonable that some might question the extent of the supposed replacement of the old culture of secrecy by openness and transparency.

My predecessor, Kevin Murphy, has recently reflected on what he describes as the official change in attitudes to FOI as evidenced by the 2003 Amendment Act. His reflections are set out in a chapter of the recently published book "Freedom of Information: Law and Practice" (ed. Estelle Feldman). In that chapter, Kevin Murphy speaks of his continued bemusement at "the extraordinary change in the Government's attitude to FOI which resulted in" the Amendment Act. Further, he expresses the view that "the main reason for bringing in the amendments was to protect Ministerial decisions and more importantly the process of making those decisions, from public scrutiny." His overall conclusion is particularly unsettling. He comments: "The great political slogan of the 1990s - Openness, Transparency and Accountability - has become nothing but a shibboleth."

Another matter worthy of comment arises from my own recent experience and I will deal with it in fuller detail. It concerns my dealings with the Oireachtas Joint Committee on Finance and the Public Service.

SECTION 32 REPORT

There is a provision in the FOI Act, at section 32, that a request must be refused where the records sought are covered by a secrecy provision contained in some other statute. The provision is modified to the extent that, if the particular secrecy provision is included in the Third Schedule to the FOI Act, it will not override the FOI Act. In such cases, release or refusal will be decided by reference to the FOI Act. Section 32 also has a provision which requires a committee of the Oireachtas to consider statutory secrecy provisions and to recommend to the Oireachtas, in each case, whether the secrecy rule should continue in operation, whether it should be repealed, whether it should be amended or whether it should be included in the Third Schedule to the FOI Act. The review process involves three separate stages:

Each Minister of the Government reports to the Committee on secrecy provisions falling within his or her area of responsibility and gives an opinion on each such provision (whether it should be repealed, continued or made subject to FOI).
The Information Commissioner also considers each of these secrecy provisions and, taking account of the opinions of the Ministers, reports to the Committee with recommendations as to how each individual provision should be treated (whether it should be repealed, continued or made subject to FOI).
The Oireachtas Committee receives the reports of the individual Ministers and of the Information Commissioner and reports to the Oireachtas with recommendations in relation to each secrecy provision (whether it should be repealed, continued or made subject to FOI).

In September 2006 the Joint Committee on Finance and the Public Service completed its report to the Oireachtas following a lengthy series of deliberations which included appearances before the Committee both by myself and by senior officials of the Departments of Finance and of Health & Children. In net terms, the Committee was faced with a situation in which, out of a total of 150 secrecy provisions identified, in 36 instances there was disagreement between myself and the relevant Minister as to whether the secrecy provision should be made subservient to the FOI Act or should continue to override the FOI Act. The Committee, therefore, had to choose between my recommendation - that the 36 secrecy clauses should each be made subservient to the FOI Act - and that of the relevant Minister - that the secrecy clauses should continue to override the FOI Act.

At this point, I must explain that my approach did not mean that there would be open season in the case of records of the type the subject of the particular secrecy rule. My approach meant that a decision as to whether such records would be released would be taken on the basis of the FOI Act which contains some very strong protections for records where release would cause harm. Indeed, with the 2003 Amendment Act, these protections have become even stronger!

In my report to the Committee I set out the fundamental principles which inform my approach. Central to this is the fact that the enactment of the FOI Act in 1997 represents the only detailed consideration by the Oireachtas, in recent times (since the Official Secrets Act, 1963), of the issue of secrecy in relation to information held by public bodies. I suggested that it is reasonable, therefore, to take the FOI Act as the standard, as representing the distilled wisdom of the Oireachtas on the matter. I also pointed out that some of the secrecy provisions in question were in the form of regulations and were quite unlikely to have received any Oireachtas consideration. I acknowledged that there are some who distrust the FOI Act, who feel that FOI has "gone too far", that it is being used by people pursuing particular agendas and that the Act needs to be "reined in". I also acknowledged that the release of information can, in certain instances, be counter-productive or even downright dangerous. But I pointed out that the Oireachtas has anticipated all of this and made very explicit provision to protect information whose release would be damaging in a fundamental way. Above all, I said that I was not aware of any instance in which the correct application of the FOI Act has resulted in the release of records where that release has caused more harm than good. And in this regard, as has often been said before, the fact that release of a record may prove embarrassing is not a relevant consideration.

In appearing before the Committee, I felt that my argument was understood and, broadly speaking, accepted by it. However, when the Committee presented its Report to the Oireachtas in September last its recommendation, in the case of those secrecy provisions on which I disagreed with the relevant Minister, was to support the Minister in each case.

I should add, for the sake of clarity, that possibly for the first time in its history, the committee went to a vote on this issue. It then split, regrettably, along party political lines. I say regrettably for the following reasons. I believe and still believe in the bona fides of that committee and I believe that each committee member, regardless of party affiliation, genuinely engaged with the issues at hand, many of which were complex. I also believe that the majority agreed with my views on the recommendations at issue. But, in the end, apparently, an unstated political imperative overrode everything else.

I am not so sensitive that I cannot live with the rejection of a recommendation or decision. My appeal decisions are subject to appeal to the High Court and subsequently to the Supreme Court and I am accustomed to having my decisions scrutinised, and occasionally rejected, by the Courts. What concerns me, and indeed disappoints me greatly, about this particular episode is that the Committee has given no analysis of any kind, or any explanation in its report, as to why it opted for one set of recommendations over another. Indeed, the substantive Committee Report consists of little more than one page; and the recommendation itself is conveyed in the single sentence: "The Joint Committee supports the Ministers' recommendations."

There is not time this morning to detail the 36 provisions at issue: they range from the somewhat esoteric EU (Authorisation, Placing on the Market, Use and Control of Plant Protection Products) Regulations, 2003 to the more mainstream Private Security Services Act, 2004. Given the enormous effort put into this project by my Office over many months, it is very disheartening that so much work should be dismissed so peremptorily.

Commentators have suggested that a "whip" was imposed on certain Committee members after, as one such member explained, they had made "an error of judgement" in their initial assessment. Whatever the reality, the experience has been a very disheartening one both for my Office and for myself. But wider forces were at play apparently.

I appreciate that it is not very usual for office holders such as myself to comment in this fashion in relation to an Oireachtas Committee. However, there is nothing to be gained from adopting the pretence that the Committee's handling of the Section 32 issue does not warrant comment. There are important issues at stake here and I believe, as an independent office holder, that I should make these comments in the interests of promoting an honest and thorough debate on what is an important aspect of our democracy.

BODIES NOT SUBJECT TO FOI

If FOI is about replacing a culture of secrecy with a culture of openness in the Irish public service, I have to say that this objective is being frustrated by the continued exclusion from FOI of several key public institutions. Earlier this year, an additional 136 public bodies were brought within the scope of the FOI Act and this is very welcome. However it is the case that, even after this extension, a significant number of public bodies will continue to remain outside of the Act. I am not aware of any pressing reason for the continued omission from FOI of bodies such as the Vocational Education Committees, the Central Applications Office (CAO), the State Examinations Commission, the Adoption Board, An Garda Síochána, those bodies dealing with asylum applicants, the Central Bank and Financial Services Authority and the State Claims Agency.

While I feel that all of these bodies should be subject to FOI, the case for the inclusion of An Garda Síochána is particularly pressing. It may be argued that An Garda Síochána is currently undergoing major transformation and that this is not the right time to make it amenable to the Act. I would argue the opposite: FOI, along with the Garda Inspectorate and the Garda Ombudsman Commission, should be seen as contributing to this overall transformation process.

Ireland is virtually unique in Europe in excluding its police force from the scope of FOI law. Recent comparative research by a number of NGOs - produced in the context of a proposed Council of Europe Treaty on access to official documents - makes very interesting reading. Of 26 Council of Europe member states examined, only Ireland excludes its police force from FOI. Former Eastern bloc countries such as Albania, Bosnia/Herzegovina, Croatia, the Czech Republic, Georgia and Moldova have their police forces subject to FOI; so too do such "older" democracies as the UK, Denmark, Sweden, Germany and Norway. In many cases, not only is the police force subject to FOI but so also is the Secret Service!

Looking beyond Europe, in countries such as the USA, Mexico, Canada, Australia, New Zealand and India, police forces are routinely subject to FOI legislation. And it's interesting to note that in David Banisar's Global Survey of Access to Government Information Laws ["Freedom of Information Around the World 2006"], looking at almost 70 countries, he names only one country as excluding the police force from FOI: and that country is Ireland.

In terms of how FOI might work if applied to An Garda Síochána, let me give you some examples of how it works in the UK with whose legal and administrative systems we have so much in common. The following are examples of police related information released under FOI:

Cost of plans for "superforces"

September 2006 - the BBC obtained records under FOI showing that 43 police forces in England and Wales spent at least £6m studying the implications of Home Office proposals (which have since been abandoned) for mergers of local forces.

Report on Road Accident Data

January 2006 - Following an FOI request for a report which revealed that Road Safety Engineers were being given late and inaccurate data, Cheshire Police promised to change its method of recording accident data.

Spending on police vehicles

May 2006 - The Scottish Information Commissioner overturned a decision of the Northern Constabulary to refuse a request by an Aberdeen based newspaper for access to records showing the cost of Range Rovers supplied to the Chief Constable and his deputy.

Northern Ireland personal security warnings

October 2006 - The PSNI disclosed to the BBC that over 2,000 personal security warnings have been issued over a 13 month period where it was believed that individuals' lives could be in danger.

Police Officers with drink driving convictions

November 2006 - The Scotsman obtained the numbers of police officers working in each of the eight Scottish forces who had been convicted of drink driving.

De Menezes "cover up"

July 2006 - The Guardian obtained internal Metropolitan Police documents setting out internal police views on the possibility of an independent inquiry into the shooting of Mr de Menezes in a tube station after police mistook him for a terrorist bomber.

In fact there has been one very interesting FOI release of Garda intelligence in Ireland. Some of you will recall an RTÉ news item of some weeks ago which gave details of suspected "foreign terrorist groups" having a presence in Ireland. The details released related to three to four years back and suggested that up to six Islamist terrorist groups had been active in Ireland at that time. What's most interesting, though, is that this information was released, not under our own FOI Act, but under the FOI Act of the United States. The enterprising journalist in question (Richard Dowling) made his request to the US State Department and, as the documents in question had been de-classified, they were released. As I understand it, the information in question was passed from the US Embassy in Dublin to the State Department in Washington and was based on Garda intelligence on the issue. Had Richard Dowling tried to get this information from An Garda Síochána, he would not have been entitled even to make the request.

CONCLUSION

At the outset I mentioned the need for an honest and "grown up" debate about the type of FOI regime we want in Ireland. As I have tried to set out in my presentation this morning, there are reasons why we should be concerned at the direction in which FOI is now going. There are also grounds for taking some comfort from how the regime is operating: for example, most public bodies do operate the FOI Act conscientiously and many requesters are satisfied with the outcome to their requests.

Getting back to the culture of secrecy, and my opening "mantra", I would like to conclude with the following quotation from David Banisar's Global Survey on FOI. He says:

"Developing a culture of openness can be difficult. Officials must learn to change their mindset to recognise that the information they hold is owned by the public and that citizens have a right to obtain information. This mindset is not unique to any region or legal system and can take many years to resolve. Canada and Australia, two of the early adopters of FOI laws, still struggle with this problem twenty years later."

I am sure that, in referring to "officials" who must learn to change their mindset, David Banisar actually means all of us who, in one form or another, are involved in public life.

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