2008

Freedom of Information - The First Decade (15.05.2008)


Address by Ms. Emily O'Reilly, Information Commissioner at the 10th Anniversary Conference of Freedom of Information in Ireland

What I'd like to do this morning is to set the context for what I hope will be a lively and interesting discussion on how the first ten years of Freedom of Information (FOI) has worked in Ireland. As you can see from your conference pack, my Office has produced a publication to mark ten years of FOI in Ireland and, while I'm not intending to summarise that document, I do intend to highlight some of the interesting facts and commentary from it. I would also like to think that what I have to say this morning will be challenging and, hopefully, even a little provocative.

At the outset I think it is only fair that I should acknowledge that, but for the work of certain individuals and groups, we might not have had FOI legislation in Ireland. In our publication, we do try to acknowledge this work and to give the people involved the credit they deserve. While singling out some people for special mention is always a little risky, I would like to mention in particular former Senator Brendan Ryan, who introduced the first FOI Bill (as a private member's Bill) in 1985. Also worthy of mention is the work of the Let in the Light Campaign, founded in 1993, as well as the efforts of then Senator Dick Roche who in 1995 introduced the second FOI Bill, again as a private member's Bill. Finally, I am delighted to recognise the great work done by Eithne Fitzgerald who, as Minister for State, introduced the Bill which eventually was enacted as the Freedom of Information Act 1997.

While FOI may not be the most urgent matter to concern Ministers and public servants when they come to work each morning, it is in fact a vital element in how we govern ourselves. However imperfect our governmental arrangements may be, I think FOI must now be seen as an intrinsic element in the wider arrangements whereby we hand over power to elected public representatives and to non-elected public servants. In this sense, I believe FOI should be seen as one of the fundamental rights of our democracy rather than something bestowed on us by our elected representatives and for which we should be grateful.

I'll return to this theme a little later. To start with, though, it might be useful to set out some of the basic facts about FOI in Ireland over the past ten years.

FOI IN IRELAND - SOME FACTS

Over the past 10 years Irish public bodies have dealt with 130,000 FOI requests from members of the public, from media people and from business and political interests. On average, 70 per cent of these requests have been granted either in full or in part. My Office has received 5,300 appeals, slightly more than 3 per cent of all FOI requests made, over the past ten years; of these, 4,058 were valid appeals. Of the valid appeals received, approximately 25 per cent (1,015 cases) have been decided or settled in favour of the appellant, either in full or in part; in approximately 41 per cent (1,584) of cases the public body's decision has been affirmed; in the remaining cases, the appeal was either discontinued or withdrawn.

In 1998, when FOI first came into operation, it applied to just 67 public bodies; over the years this number has grown and at this stage about 520 public bodies are covered by the Act.

However, when we look behind these bare statistics, some interesting facts emerge. For example in 1999, which was the first full year of operation of the Act, and at a time when relatively few public bodies were subject to it, 11,531 FOI requests were made. In 2007, by which time the Act extended to about 520 public bodies, only 10,704 requests were made. As many of you will know, this significant decline in FOI Act usage is a direct result of the amendments to the Act made in April 2003. And in particular, this decline in usage is attributable to the introduction (in July 2003) of fees for making an FOI request. At the same time, and in the interests of balance, the level of usage of FOI in Ireland is still reasonably healthy in comparative terms. Germany, with a population of about 82 million people, has had FOI legislation in operation at the federal level since 1 January 2006. For all of 2006 a total of 2,278 FOI requests were made to the federal administration. While all kinds of adjustments would have to be made to attempt a proper comparison, it is clear that FOI in Germany has not yet taken off while in Ireland it has.

Though I don't propose to go into this in any great detail, the amendment of the FOI Act in 2003 has had fairly serious implications for the overall development of the FOI project in Ireland. The right of access to information was curtailed in some significant respects - for example, a mandatory class exemption was created 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. Thus, a record containing a communication between a Minister and a diplomatic or consular post must now be refused without reference to the effect (if any) of its release. So if, some Sunday evening this July, Minister Martin emails Irish embassies around the world with the good news that Cork has beaten Kerry in the Munster Championship, that will be a protected communication!

As I've already mentioned, the introduction of fees for requests, for internal review and for review by my Office has had the effect of reducing the number of FOI requests being made. In particular, the use of FOI by the media has declined as a direct consequence of the fees. To illustrate this decline, the statistics show that journalists made 3,123 FOI requests in 2001 but made only 885 requests in 2007.

Many politicians and public servants may believe that reducing FOI requests from journalists can only be a good thing. Certainly, in Northern Ireland it didn't take long after taking up office for First Minister, Dr. Ian Paisley, to express typically forthright views on media use of FOI. On 8 October last, Dr. Paisley had this to say:

"There is no doubt that the evidence thus far already suggests that dealing with FOI requests takes up a considerable amount of staff time. On occasions, the requests are of a wide-ranging and detailed nature that requires many hours of research, and are sent in by lazy journalists, who will not do any work, but who think that we should pay them and give them the information that they want. [...] If, in collating evidence on how the current procedures are working, the Departments discover that reform is needed — and I think they will — it will have to take place. The civil servants are not employed full-time to pursue the requests of enquiring minds. They are supposed to be serving the Departments that they are called upon to serve, and helping those who run those Departments."

It is undoubtedly true that some media use of FOI has been at the less than edifying end of the scale; establishing the make-up costs of then Taoiseach, Bertie Ahern, is simply titillating and does FOI no good at all. On the other hand, there have been very many instances in which FOI requests from journalists have caused matters of great public interest to be brought into the light of day and some of these are highlighted in our publication. It remains vital to our democracy that media scrutiny of office holders, and of the exercise of power by them, should be encouraged and facilitated. Realistically, it is probable that some media requests will always be at the trivial end of the scale; on balance, I think this is a price we must be prepared to pay provided FOI use by journalists is mostly at the more serious end of the scale.

While I would not wish to overstate the consequences of the 2003 amendments - because FOI has nevertheless continued to be a useful tool in scrutinising government - I do think that such a radical overhaul, after less than five years of operation, was premature and ill-conceived. Furthermore, the manner in which the changes came about proved deeply unsettling.

The Amendment Act was represented, essentially, as the implementation of the recommendations of a High Level Review Group; though in reality the eventual amendments went well beyond what this Group recommended. The Review Group consisted of four Secretaries General under the chairmanship of the Secretary General to the Government and, remarkably, conducted its review in secret; it did not seek the views of the public, of any of the parties with a particular interest (such as the media) nor of the Information Commissioner. The review process was the very antithesis of the process which preceded the drafting of the original legislation. The Review Group members, as they explained it, "drew upon their own experiences and experiences of others of which they were aware, including that of their respective Ministers." Perhaps not surprisingly, the amendments proved very unpopular with the opposition parties in the Oireachtas and, while hitherto it appeared there had been a broad political consensus on FOI matters, this consensus was shattered - to be replaced by a situation in which FOI has become deeply contentious as between the political parties.

PURPOSES OF FOI

To understand why I take the view that the 2003 amendments were ill-conceived, I think it is instructive to return to first principles and consider what are the reasons for having FOI in the first place. This is dealt with in some detail in our publication so I will be brief on the matter. Put simply but crudely, FOI is about keeping government honest.

To illustrate this point, I'd like to mention a 2007 example from the United Kingdom which shows very succinctly how FOI can help to keep government honest - or at least show up government when it fails to be honest. Incidentally, I'm indebted to Robert Hazell of University College London for this particular example. This case concerns the UK's Department of Trade & Industry and the environmental group Greenpeace. The UK Government had promised the "fullest public consultation" before making any decision on the future of nuclear power. When the decision was made, Greenpeace sought a judicial review of it on the grounds that the public consultation process had not been procedurally proper. In the course of the judicial review hearing, Greenpeace produced information regarding the consultation process which it had acquired by way of an FOI request. This FOI-released information established that there was a gap between the amount of information available to those being consulted and the sum of information actually available to the Department. This meant that those consulted gave views without having had the benefit of all of the information available to the Department. This information gap was so great that the High Court judge ruled that the promise to consult fully had not been kept; the Court granted Greenpeace the relief sought on the basis that its legitimate expectation had been frustrated and that the procedure followed was unfair. The Court found that the UK Government decision to support the building of new nuclear power stations was unlawful and required it to undertake a fresh consultation process in advance of any new decision.

Returning to this country, to say that in Ireland government needs to be kept honest - in the sense of being fully accountable for its actions - should not be seen as any particular criticism of those in power, whether in the political, judicial or administrative fields. Nevertheless, our relatively recent history suggests that we in Ireland have as much reason to be concerned about the conduct of government, with a small "g", as has any of our near neighbours. FOI is simply one element, though a vital one, in the overall system of checks and balances which is essential to having an effective as well as an open and accountable style of government. Support for this analysis comes from many quarters and, in our case, most recently from the OECD's comprehensive review of the public service in Ireland - Ireland: Towards an Integrated Public Service. The OECD view is that FOI does help to promote a culture of openness in Irish government but that its impact has been limited by the introduction of "up-front" fees since July 2003. The OECD report commented that the imposition of "up-front" fees:

"seems to have reduced the number of information requests and ... has de facto limited the impact of the original Act. In the interests of social cohesion and transparency in government ... greater transparency should be an ongoing objective even if it can sometimes be uncomfortable and/or costly. The government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free ... While user charges may limit frivolous requests (and thereby reduce burdens on the Public Service), they also serve as a disincentive to greater openness."

To return to a point I made at the outset, it seems to me that FOI should be seen as a fundamental right and not something which we should be grateful to a benign government for having given us. The right to know what is being done in our name, to know what possible actions or policies are being considered in our name, to know how actions in our name are proposed to be taken - it seems to me that these rights are fundamental and form part of the contract whereby the people delegate power and authority to elected representatives and to non-elected public servants. And as someone fortunate enough to have been given the honour of holding unelected office, I recognise that these fine principles apply to me just as much as to other holders of public office.

Now, I'm not alone in taking the view that FOI constitutes a fundamental right. This very point was made, and made quite forcibly, by then Senator Dick Roche in 1995 when he launched his private member's FOI Bill in the Seanad. Dick Roche explained his Bill in these terms:

"The Bill I am presenting is an attempt to restore the confidence of citizens through measures which would improve a fundamental civil right. The term 'fundamental civil right' is not exaggerated in this context. As it stands, people's access to information which is held in public institutions is seen very much as a privilege, and it is that perception which breeds public suspicion and which is probably responsible for a good deal of the cynicism that exists in this State."

While this suggestion may lead to groans in some quarters, it does seem to me that the right of the people to know what is being done by government in the people's name is sufficiently important as to be given recognition in Bunreacht na hÉireann. This is the case, for example, in South Africa where its 1996 post-apartheid Constitution provides explicitly that "[e]veryone has the right of access to - (a) any information held by the state ...".

One of the advantages of constitutional recognition for FOI is that it would limit the capacity of a government to curtail people's right to information. While I am not naive enough to suggest that there should be no limits on the people's right to know - of course there will have to be limits - I do think that those limits should be based on agreed criteria and be applied in circumstances in which it is abundantly clear that the public interest is best served by a restriction on the right to know. Were it the case that the right to know had constitutional status, it seems to me extremely unlikely that the Government, in 2003, could have ensured the Act was amended in the manner in which it was amended.

Furthermore, were it the case that FOI derived from the Constitution, it is very unlikely that, ten years after its introduction, some critical areas of government would remain out of bounds, FOI-wise, to the public.

EXCLUDED BODIES AND AREAS

You will see that this matter is dealt with in some detail in the final chapter of our report but, in brief, it is worth noting yet again that:

  • An Garda Síochána is not subject to FOI
  • the Office of the Refugee Applications Commissioner is not subject to FOI
  • the Refugee Appeals Tribunal is not subject to FOI
  • the Vocational Education Committees and their schools are not subject to FOI
  • the State Examinations Commission is not subject to FOI, and
  • the Central Applications Office (the CAO) is not subject to FOI.

There is no good reason why the key educational bodies just mentioned should not be subject to the scrutiny which FOI provides. However, there is a particular urgency about the need to have public agencies in the areas of policing, asylum and immigration made amenable to the FOI Act. The activities of these agencies have a critical impact on the fundamental rights and life chances of so many individuals yet they remain in many respects beyond scrutiny. If, as I believe is the case, FOI constitutes a fundamental right then there is no justification for this state of affairs. Ireland's practice in this regard is significantly out of line with virtually all of the 70 or so countries which have FOI legislation. Furthermore, it is clear that it is the intention of the Department of Justice that these very bodies should continue to function free from the scrutiny which FOI provides.

Under the Immigration, Residence and Protection Bill 2008, the Government proposes to continue the effective exclusion of the areas of refugees and immigration from the scope of the FOI Act. I am sure Donncha O'Connell will have more to say on this later this morning.

Incidentally, in my capacity as Ombudsman I have frequently pointed to the fact that the Ombudsman Act 1980 excludes from the remit of the Ombudsman complaints which concern actions "taken in the administration of the law relating to aliens or naturalisation". At present, the Department of Finance is drafting an Ombudsman (Amendment) Bill - the first substantive amendment since the Office of the Ombudsman opened for business in 1984 - with a view to extending the range of bodies subject to Ombudsman investigation. However, the Department appears to have decided against opening up the aliens-naturalisation area to Ombudsman scrutiny. This much is clear from the recently published Government response to the Council of Europe's Commissioner for Human Rights who, in his 2007 "country report" on Ireland, recommended, amongst other things, that Ireland should seek to optimise the effectiveness of the various human rights complaints bodies including, specifically, the Ombudsman. The Government responded by saying that, while it intends to amend the Ombudsman Act to "significantly expand the remit of the Ombudsman", it has no plans "to include the asylum/immigration area, or places of detention" within the Ombudsman's remit.

I am not aware that it has ever been explained why, in Ireland almost uniquely, it should be necessary that these key areas of government, all of which fall within the domain of the Department of Justice, should be insulated from public scrutiny. It has to be a matter for concern that the reasons for such a secretive approach are rarely, if ever, debated in public. We need to know why it is necessary for An Garda Síochána to be protected from FOI when police forces all over the world (including the Police Service of Northern Ireland) are amenable to FOI with no apparent damage done. This is something Howard Back, formerly of the London Metropolitan Police, will deal with later this morning.

In the area of refugee applications, quite a deal of controversy surrounds the operation of the Refugee Appeals Tribunal and one might reasonably speculate that the difficulties which have arisen might have surfaced, and been dealt with, much earlier had that body been subject to the FOI Act.

Incidentally, when the FOI legislation was being debated in the Oireachtas in 1997, there was a clear expectation that An Garda Síochána would become subject to the Act sooner rather than later. Minister Eithne Fitzgerald, in March 1997, hoped "that we will be able to bring in the Garda at a very early date." For the then Opposition, this seemed too uncertain. Fianna Fáil's main spokesman, Donegal man Dr. Jim McDaid, observed in the course of the Dáil debate on FOI that the exclusion of the Gardaí "facilitates mismanagement and corruption." In the meantime, we have heard much from the Morris Tribunal to suggest that Dr. McDaid was not exaggerating.

I have frequently suggested that we need an honest debate about the future of FOI in Ireland. Honesty, therefore, requires that I ask whether it is the case that the Department of Justice is blocking the opening up of policing and immigration matters to the scrutiny of FOI; and if this indeed is the case, then perhaps we might be told why.

I was struck last week by an observation of my colleague, the Data Protection Commissioner Billy Hawkes, in his Annual Report for 2007. The Commissioner was commenting on what he regards as unwarranted intrusions into the privacy of ordinary people in the form of, for example, the retention of people's mobile phone and internet usage data and the relatively easy access to such data by the Gardaí and some others. Billy Hawkes commented:

"Security issues are still setting the public agenda to a large extent. Have we not succumbed to terror and submitted to extremism when we lose the liberty to live without constant intrusion by the State in the name of security. When I consider the security measures introduced in this jurisdiction, it is sometimes difficult to avoid the conclusion that Ireland must be facing some of the starkest criminal and terrorist threats across Europe."

What strikes me is that many of the measures which concern Billy Hawkes were introduced outside of any substantive parliamentary debate or ratification process; and, if one were to seek access under FOI to records of the considerations which influenced this decision-making process, the records would most likely be refused under the amended section 24 of the FOI Act. It seems to me that, in many respects, the concerns I am expressing here this morning are not a million miles away from the concerns being expressed by Billy Hawkes. Putting the two sets of concerns together, what we seem to be facing is a scenario in which the State is encroaching significantly on the privacy and human rights of members of the public (including immigrants) while, at the same time, those organs of State most active in these areas are managing to evade public scrutiny of their actions by virtue, not least, of being outside of the FOI Act. It does seem to me that this is something to which we should pay closer attention.

DOES FOI COST TOO MUCH?

An issue I would like to turn to briefly is that of whether the costs of running FOI are excessive. It is certainly legitimate to ask whether the costs incurred in operating FOI are justified on the basis of the benefits which FOI confers.

You will recall the comments I quoted earlier from Northern Ireland's First Minister, Dr. Ian Paisley, who appears to feel that an appropriate balance between cost and return has not been struck in Northern Ireland. Somewhat similar comments were made by former Finance Minister, Charlie McCreevy, when he introduced the FOI (Amendment) Bill in 2003. Minister McCreevy observed that the "cost of servicing democracy through FOI ... does not come cheap" and that the "true cost of FOI is not recognised". In support of this view, Minister McCreevy gave the following example:

"One requester asked a couple of years ago for access to the diaries of a number of civil servants and Ministers. There were hundreds of records. Every diary and thousands of pages of documentation had to be read through, assessed and considered for release and personal or sensitive material deleted. The cost of processing that request was probably well over €10,000, but the cost to the requester, including photocopying, amounted to around €600. I understand those charges were appealed."

Other that this account given by former Minister McCreevy in the Seanad on 4 March 2003, I know nothing of this case. What I find rather baffling about it, though, is that the FOI Act of 1997 anticipated situations such as this and provided a remedy. In common with FOI legislation in many countries, our Act provides that a request may be refused where the work involved in processing the request creates an unreasonable burden on the public body concerned. This is provided for at section 10(1)(c) of our Act and it is a feature which has been there from the start. One can only wonder why, if the request was as burdensome as the Minister suggested, the public body concerned did not invoke this provision. And, equally, one can only wonder why the Minister's officials - with a considerable degree of FOI knowledge and expertise at their disposal - did not suggest to the Minister that this may have been an example of bad decision making rather than an example of FOI running riot.

Whatever about this particular example, it is certainly the case that FOI comes at a price. In her recent presentation to the 5th International Conference of Information Commissioners, the Australian FOI expert Megan Carter dealt with this issue; and I'm sure many of you here today will know Megan from her work in Ireland. She pointed out that the successful operation of FOI necessarily involves costs in the following areas:

  • setting up FOI infrastructure
  • preparing material for pro-active publication schemes (e.g. in our context, publication of nursing home inspection reports)
  • conducting records management audits
  • developing information technology support systems
  • providing staff training
  • on-going, everyday costs of dealing with requests.

However, Ms. Carter also pointed out - and I agree with her fully on this - that broadly speaking these are actions which are warranted in their own right and, in effect, are an investment in better government. In particular, FOI has shown up that many public bodies have very inadequate record management systems; where such systems are inadequate, more time will be needed to identify and retrieve records sought in an FOI request. A glance through ten years of annual reports from my Office will show that poor record management practices feature almost every year as an issue. Improvement in record management practices - and there have been some notable examples of this since the start of FOI - has to lead to greater efficiencies all round as well as facilitating the processing of FOI requests.

I accept that it is difficult to quantify in any precise way the costs of operating Freedom of Information. But again, to quote Megan Carter, "even the most generous estimates of its cost show it to be a tiny fraction of the money spent by most governments in disseminating information of their own choosing". This, I think, is a most relevant point. Government Departments and agencies nowadays have highly developed press and information services whose purpose is to tell us whatever it is the Department or agency wants us to know. These operations go under various titles - press office, information office, communications office and, intriguingly (in the case of one of our newer public agencies) "communications and stakeholder engagement". I am not suggesting that public bodies should not be pro-active in their information and communications strategies; nor am I suggesting that these information services are dominated by "spin doctors"; though it is a fact of life that controlling the information agenda is, to a greater or lesser extent, a feature of these services. What I am suggesting is that when we talk about the costs of FOI we take account also of the costs of providing the services whereby Departments and agencies disseminate, as Megan Carter put it, "information of their own choosing".

For example, on the basis of some quick enquiries made recently by my staff, I understand the Health Service Executive expects the cost of its National Communications Unit will be in the region of €3.3 million for 2008. This, I am told, is made up mostly of staff costs and does not include spending on health promotion or health awareness campaigns; nor does it include the costs associated with the media adviser to the Chief Executive Officer.

The reality, I think, is that the vast majority of people (and maybe much of the media also) will continue to be reliant on the "official" information services. But it is vital, in my view, that FOI continues to be available for those in the media, for lobby groups, for community groups and for those ordinary people who, for whatever reason, want to decide themselves on the information they should have and want to receive that information in an unmediated fashion.

CONCLUSION

Whenever I speak publicly of FOI, I am conscious of the danger of being perceived as being unnecessarily combative. On reflection, though, I do believe it is my job to promote FOI and to promote the right of the public to access information held by public bodies. There is inevitably some tension between the public's right to know and the response of those in government who, while they may accept this right in principle, frequently find it difficult in practice.

Ten years on is a good time to take stock of where we are at in Ireland in terms of Freedom of Information. Initially, it did appear that there was a consensus politically regarding the usefulness of FOI but this has now been replaced by disagreement between the political parties on the matter. While I take the view that FOI is a fundamental right, and not one which should be subject to curtailment at the whim of the Government of the day, I equally recognise that any development in relation to FOI requires the support of the Government of the day.

There is a strong case now for a thorough review of our FOI legislation in which searching questions are asked, and answered, regarding the purposes of FOI, the modalities of FOI and the costs and benefits of Freedom of Information. Such a review should be carried out by a small group with an independent chairman and within a relatively short time span, e.g. within six months. The review group should, as part of its task, identify specific legislative measures for the implementation of its findings. In the meantime, and in order to restore public confidence in the current FOI arrangements, the application fees for internal review and for review by the Information Commissioner should be reduced substantially. And, as recommended by the OECD in its recent review of the public service in Ireland, the "up-front" fees for the initial requests should be dropped.

It's interesting to observe that in the UK the Labour Government toyed seriously with the idea of introducing restrictions on FOI usage; and I'm sure Graham Smith, the UK's Deputy Information Commissioner, will tell us more on this in the afternoon. Ultimately, the UK Government decided to resist temptation and left the FOI Act as it was. I will leave you this morning with this explanation from Prime Minister Gordon Brown as to why his Government took this decision:

"When anything is provided without cost, it does risk being open to abuse. However, the Government does not believe that more restrictive rules on cost limits of FoI requests are the way forward. ... We do this [drop restrictions proposal] because of the risk that such proposals might have placed unacceptable barriers between the people and public information. Public Information does not belong to Government, it belongs to the public on whose behalf government is conducted. Wherever possible that should be the guiding principle behind the implementation of our Freedom of Information Act.

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