2009

"An update for challenging times " (18.06.2009)


Address by Ms Emily O'Reilly

Information Commissioner

at Public Affairs Ireland Conference, Conrad Hotel, Dublin

I thank you for the invitation to be here this morning and I would like also to thank Public Affairs Ireland for its continuing interest in the subject of Freedom of Information.

FOI today is a little like Susan Boyle in Britain's Got Talent. While it hasn't spent decades languishing in a remote Scottish village waiting for Simon Cowell to come and appreciate its talents, the FOI legislation had certainly been languishing in the doldrums for the last few years, until, in recent months, it was plucked from oblivion by the economic recession. I won't go on torturing this metaphor, suffice it to say that even without a legislative makeover or the shedding of fees, FOI is currently enjoying a quite remarkable return to the limelight.

I referred to this phenomenon at the recent launch of my Annual Report as the Shane Ross effect. It was Senator Ross who slugged it out in the FOI thickets until he finally secured records detailing the expense claims of certain members of the State Agency, FÁS. We are all aware of the consequences of that; the resignation of the chief executive, and, for the future, one would expect, far greater attention to good governance and all that goes with it within that State agency.

Ross's story - understandably - cued a bit of a feeding frenzy among the media, with expense accounts seized upon by journalists like wolves confronting raw meat.  And because we all like nothing better than being shocked and horrified at the purported extravagance of those supported by the public purse, these have tended to be the headlines that have attracted the most attention. For once, the public interest coincided with the interest of the public. As a sideshow, we were treated to the stellar antics of British MPs in relation to their expenses some of which did put the relative cost of a TD's return train trip to Cork or the mileage incurred on a trip from Dingle to Dublin somewhat in the shade.

Those of you who followed the MPs expenses story will be aware, that although the bombshell was ultimately dropped via a paid leak to a newspaper, it had its genesis in an FOI request tabled some years earlier. When the High Court finally ruled that very detailed records i.e. the incriminating receipts could be released, it was reportedly the tardiness with which the relevant House of Commons authorities set about doing that, that prompted a concerned insider to sell the incendiary documents.

I am aware that there are mixed views about this affair, and not just for the obvious reasons with the media invoking public interest and some of the MPS incensed at what they consider to be an impertinent intrusion into their private affairs. But other observers wonder if the upset to the political system that the revelations cued was a price actually worth paying for the revelations. Did the release, some have wondered aloud, do more harm than good?

I think that history will decide on that but whatever it does decide, there is no doubt but that the system of MP's expenses will be radically overhauled and those MPs that remain in Parliament will have a much clearer understanding of what the public should or should not be made to divvy up for.

As I reflect on that episode, and as I reflect on the FÁS affair, and as I reflect on my own views expressed some weeks back, about the need to bring those public bodies with oversight of our financial institutions into even the partial daylight of FOI, I think that the common thread running through these matters relates to the nature of public service itself. After 6 years as Ombudsman and Information Commissioner, observing and commenting on the way in which Government Departments and public bodies generally, interact with the public, I can conclude that such bodies start to go bad when they begin to lose sight of the proper nature of the relationship that should exist between the public and the body.

People's daily lives are governed - from cradle to grave - by the administration. We cannot, as individuals, build and run our own hospitals, our own schools, our own roads, etc. So we pay our taxes to support those bodies who do those things on our behalf. And it is when those bodies lose sight of that, lose sight of the fact that they are doing what they do with our

permission, our money, and most importantly, with our trust, that they turn in on themselves and begin reacting defensively to public demands for greater transparency and greater oversight.

FÁS - reportedly - wanted to charge Shane Ross 1,000 euro for the provision of the records he sought. The House of commons fought the FOI request tooth and nail. News, I learnt, as a journalist, is something that someone, somewhere, doesn't want us to know. Similarly, the only reason, in my view, for not releasing records is if there is a public interest in not releasing them, if an interest central to our wellbeing might be compromised if that or those records were released.

I believe that every public body, as is the case in the UK, should be subject to FOI legislation and that the release of records should be decided on on a case by case basis. I cannot understand the rationale for excluding entire public bodies from scrutiny as is the practice here.

I am aware, that to some ears, all of that might sound distinctly Pollyannaish. Yet, if that is the case then the most naïve Pollyanna of them all is currently taking up residence in 1600 Pennsylvania Avenue in Washington DC. On his very first day in office, US President Obama said:

"The way to make government responsible is to make it accountable. And the way to make it accountable is make it transparent so that the American people can know exactly what decisions are being made, how they're being made, and whether their interests are being well served. The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent."

Now, I have little doubt that in future months and years President Obama's first day pledges on FOI will be tested to the max. But all anyone in power has to do, when soft voices whisper in their ears, warning against the release of this or that, is to stand back and ask themselves, "What am I actually in power for? Whose interests am I actually here to serve."

The recent Child Abuse Commission report laid bare the truth of all of that. Every institution indicted by the Commission, from the Department of Education, through to the ISPCC, and the Religious Orders had, as their primary function, the simple care of children. Yet in every case, that responsibility, at its most benign, was avoided, at its most evil, perverted. As everyone scrabbled to shore up or serve their own interest, commercial sexual, religious, political or administrative, the children themselves were left defenceless, protected by not a single adult charged with their care. 

I believe that the lessons of that report should be learnt by every part of the administration and not just those parts directly charged with the care of children and of the more vulnerable members of our society.

At every juncture, when efforts are made to explore the decision making process and the outcomes of those decisions, public servants and the politicians who direct their work need to consider the PUBLIC interest and not the narrower interest of the particular body or Department they serve in. One remarkable aspect of the Report was its accounting of defensive legal play of certain of the groups involved even up to the last hour. Acts of contrition ring hollow when the far from contrite actions of those indicted, lie exposed for all to see.

With that as background, it's interesting now to cast one's eye over certain of the tsunami of FOI requests granted over the last while, to observe what was sought to be protected by the public administration or what was revealed through the records themselves when released by the public body. I have to point out that not every release was made following an application to my Office, many were released appropriately at initial stage.

In one case, one handled by my Office as an appeal, a mother secured records relating to ~HSE delays in having her 10-year old daughter medically and psychologically examined in the aftermath of an alleged rape. The DPP ultimately declined to prosecute in the case and a Department of Health investigation is reportedly underway in relation to the HSE's handling of the case. 

In another HSE case, Irishhealth.com secured minutes of meetings by a steering group involved in an investigation into missed cancer diagnoses by a Consultant radiologist. The records showed that the group had uncovered other mistakes by other radiologists in the cases under review, but, following legal advice, did not refer to these in the final report, as they were outside the group's terms of reference. The families involved however, had been made aware of the errors.

Details of the CORI deal with the State in relation to compensation for victims of clerical abuse were released under FOI. The records revealed details of the thinking process by civil servants and others around the various sums of money being mooted and the views of various Ministers as to what was on offer by the religious institutions, valuable background information when it came to assessing the Ryan report.

Last month, RTE obtained records under FOI which showed that the Department of Justice directed staff in July 2008 to stop approving citizenship applications until higher fees came into force under a new regulations. According to RTE, citizenship applications approved in 2008 showed a marked drop in July after the emailed direction was given and a dramatic increase in August after the increased fees were approved. In June, prior to the email, 301 applications were approved; in July just 57, and then in August 434.

Also in May, the Irish Times reported on the moneys paid to certain landowners by Clare Council Council for acreage along the path of the Ennis by-pass. The records released under FOI also showed the fees paid to auctioneers and solicitors involved in the deal.

In April, the same newspaper obtained Government briefing notes in relation to official concerns about proposed cuts to Child Benefit. The records show officials discussing the issue of "legitimate expectation" among other matters.

Other issues about which more was revealed through FOI, included school building projects, expenses paid to local councillors, sick leave taken by staff at one Government Department, state preparedness for a flu pandemic, the treatment of teenage drug addicts, hospital ward closures, the cost of a trip by some members of government to travel by Government jet to Limerick to see the Munster All Blacks rugby match, the number of so-called affordable homes that lie vacant, the costs incurred through dealing with and settling bullying and harassment claims at an Institute of Technology, and the number of cases of children incurring injuries while in the care of the HSE.

And there were many many more and it is interesting to see the general threads that run through them all. Firstly, the vast majority of requests do not concern what some might view as trivial matters; but rather they go to the heart of how the administration does its business with particular emphasis on healthcare and the HSE. No one could argue that these are not of major concern to all of us. A second observation is that journalists using the Act are using it in a thoughtful, focused way and while I know that the objective always is to land a good story, there is still a strong public interest ethic running through many of those stories.

Earlier this month, I was re-appointed as Ombudsman and Information Commissioner. During a short debate in the Oireachtas, the Minister for Finance Brian Lenihan was very gracious in his comments about me, and praised me for my advocacy of openness and transparency.

Now while that is all very nice, I would like to say nonetheless that the notion of being an advocate for openness and transparency does sit somewhat uncomfortably on occasion on me. I acknowledge that it is part of my brief to encourage public bodies to be more open in their dealings with the public, but I do not think that I should be the sole standard bearer within the wider public administration for all of this. I have to remain independent and impartial when dealing with appeals, guided only by the letter and spirit of the FOI legislation, and I should not be seen as the equivalent of the head of an NGO advocating for even greater Freedom of Information. Yet sometimes, I find myself having to do it, when faced with an unwillingness by the administration itself to push out the boundaries.

The logic of the praise for my advocacy is that the administration itself believes that openness and transparency are inherently good things, and I have no doubt that many within the administration do believe that. But the proof of the pudding lies in actions rather than in words and in the same way in which I suggested earlier that the administration should draw very wide lessons from the Ryan report, so should it reflect again on the existing FOI Act and see in which way it might be improved.

What might have been the outcome if 30 years ago, FOI legislation had allowed the public to rip away the secretive bureaucratic veils that hid the industrial schools and other institutions from clear view and exposed the practices therein. Leaving aside the abuse itself, a money trail might have uncovered the commercial exploitation of the children and the mismatch between state funding and the actual amounts parcelled out to the children by way of food, and clothing and education. Other records would have revealed the complaints made and ignored, the low levels of educational attainment and other issues that took until the year 2009 to emerge into the daylight.

Nonetheless there still remain key areas of public life sealed off from closer inspection. Twelve years after the passing of the primary FOI legislation, the Garda Siochána remain resolutely outside it, even though, Eithne Fitzgerald, the sponsoring Minister at the time said in the Dail that she expected to "bring the Gardai in at a very early date." I still do not know what or whose interest is being protected by the continued refusal to do so.

The UK police do come under FOI in recognition of the public interest served in so doing. Why is that not paramount here? What harms have occurred in the UK as a result of the police being subject to FOI. If one more person tells me that criminal investigations might be compromised I will have a very public fit. The FOI Act is not there to do harm. Exemptions exist for that very reason.

Similarly, all bodies that deal with refugee applications are excluded from the Act, as are the Central Bank, the Financial Regulator, the National Management Treasury Agency, the State Claims Agency, the Adoption Board, the VECs, the State Examination Commission and the Central Applications Office. No doubt the proposed National Assets Management Agency will also be excluded from FOI as indeed is our newly publicly acquired Anglo Irish Bank.

Arguably, in a recession, openness and transparency are of even more greater importance and, as it now accepted that our financial regulation was weak; would those regulatory weaknesses have been uncovered before too much harm was done if the Financial Regulator had been subject to FOI? Would the inconsistencies that were unearthed through expensive court action around certain refugee applications have come to light sooner if the relevant bodies were subject to FOI? How are families, desperate to adopt, being treated by the Adoption Board? And given the critical role of public examinations in the lives of our children, should not the agencies involved in those exams be open to greater public scrutiny? I am not suggesting for one moment that there is anything amiss in any of those bodies, but public trust can only be enhanced through maximum transparency.

So once again, at the risk of sounding like a broken record, I would ask the Government to take a fresh look at FOI and to keep the lessons of the Ryan report in their minds as they do so. Abuse of all kinds, whether sexual, financial, regulatory, political, flourishes in secrecy. I appreciate that the administration in 2009 is immensely more open than it was ten years ago, but there remains room for improvement. If there are genuine concerns about potential harms then let those be aired. Remember at all times that the public administration is there for the people, and not for itself. To quote Gordon Brown, although he might be having second thoughts on this in the light of recent revelations, "Public information does not belong to the Government. It belongs to the people on whose behalf Government is conducted."

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