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Freedom of Information Annual Conference - Dublin Castle (10.10.2002)

Address by at Freedom of Information Annual Conference - Dublin Castle

Introduction

For a lot of reasons, occasions like this are very useful for all of us who are involved in the implementation of the FOI Act. As with any other area of public administration, it is often difficult to find the time to reflect on the significance of what we are about; the number of cases and the pressure of meeting time deadlines can have the effect of restricting our critical faculties. I appreciate that sometimes, in dealing with FOI requests or appeals, we do not see beyond the particular case or beyond the particular requester. FOI work is demanding, time consuming, sometimes tedious and, on occasion, it is fair to say that our clients test our patience and our endurance. (Of course our clients may well, with justification, feel that we test their patience and endurance - but that's another side of the story!)

When the FOI Act commenced more than four years ago, in April 1998, it was hailed as a radical departure both for the Irish public, the Irish public service and for our system of government, local and national. We are used to having innovations in government described as "radical". Public servants, probably more than the public generally, have a well-developed scepticism when it comes to claims being made for the latest innovation to be foisted upon them. However in this case the terms "radical", and indeed "fundamental", are epithets which genuinely apply. While I don't wish to dwell on this in detail this morning, I do feel it is important - more particularly for those public servants who have only recently become involved in FOI work - to stress that FOI has fundamentally and radically altered the nature of the relationship between the public service and the public. In a broader sense, by making government more transparent and more accountable, FOI has also affected significantly the environment in which government operates in Ireland.

That said, however, I would like this morning to expand on a number of practical issues which have surfaced in the work of my own Office as well as in the workings of FOI more generally. I would like to deal with the format of decisions from my Office, with the question of the public interest, and finally with a number of areas of concern or areas where there is, perhaps, a need for greater clarity.

Format of Decisions

Some of you will have noticed that, in the past year or so, the format of my Office's review decisions has been predominantly that of the "letter" decision as opposed to what we used refer to as "long form" decisions. These "long form" decisions - all of which have been published on our Office website as well as in paper format - tend to be lengthy and detailed and based on very considerable research and consultation (although they are not as lengthy or detailed as is the case in many FOI jurisdictions). Unfortunately, they also tend to be very time consuming and relying on this format has meant that we have not been able to give decisions as speedily as we would like. Nevertheless, in the first two to three years of our existence we consciously chose this format in many cases. We felt it was important that the Office should establish its authority by producing a range of decisions which are well thought out, well presented and which deal in an effective way with many of the major questions posed by the FOI Act. These decisions were written with a very clear eye to providing guidance to FOI decision makers and practitioners - including the staff of my own Office. However, in some cases people may have felt that these decisions are too complex, too long and too demanding. Occasionally people have asked, rather plaintively, if we could point them to the "bits" in the particular decision that actually matter!

To be honest, these "long form" decisions were also written with an eye to possible scrutiny by the High Court. The advice I received from colleagues, in other jurisdictions where FOI has been introduced, was that I should expect my decisions to be tested and challenged in the early years.

Clearly, there is a demand for review decisions that are more user-friendly. With this in mind, and also because we feel we have already laid a solid foundation of "long form" decisions, we have in recent times moved away from the old format and now rely almost entirely on the simpler, and more accessible, letter decision. Of course some of these letter decisions are, in themselves, complex and demanding; some of them do break new ground and develop positions on issues not previously considered. Many of the letter decisions do have precedent value. For this reason we are now publishing the more important and/or interesting letter decisions on our Office website and we are considering whether we should also publish some in paper format. Finally, I have to acknowledge that the letter decision format allows us to give decisions more quickly and this also has to be a good thing. But it is clear to me that, in certain types of cases, I must still bear in mind the possibility of challenges not only from the public body concerned but also from requesters.

Public Interest Issues

A striking feature of our FOI Act is the extent to which decisions are required to take account of the public interest. The Long Title, which is generally seen as the equivalent of a purposes clause in the Act, provides that access to information is to be given "to the greatest extent possible consistent with the public interest and the right to privacy". Several of the exemptions in the Act - sections 20, 21, 26, 27, 28, 30 and 31 - are themselves subject to a public interest override. In practice, this means that in the majority of cases where a request falls to be refused on the basis of a particular exemption, there is a requirement to consider whether that exemption should be set aside in the public interest.

The FOI Act is perceived as an Act which creates a right to information for individuals and this is the case; but in many instances this individual right is vindicated only because to do so serves the public interest. In fact, in these cases it is the public interest primarily which is being served; the individual right is vindicated only because to do so also serves the public interest. Indeed, and people generally may not appreciate this, the FOI Act actually overrides some personal or individual rights, as well as the rights in some instances of corporate bodies and of public bodies, in order to serve the public interest. Examples of this are: personal privacy being overruled [s. 28(5)]; confidentiality overruled [s.26(3)]; commercial sensitivity disregarded [s. 27(3)]; functions/negotiations of public bodies may be prejudiced [s. 21(2)]. To this extent, the FOI Act is a truly radical piece of legislation: it recognises that the rights and legitimate interests of individuals, of corporate bodies and of the public sector itself are separate from, and subservient to, the public interest.

Here, for example, is an extract from one of my decisions which dealt, amongst other things, with balancing the conflicting public interest rights which arise where food safety issues, and issues of commercial sensitivity, meet. The records related to Department of Agriculture inspections in a particular food plant:

"I accept that the records contain information which, if disclosed, might result in adverse publicity for the companies concerned. I recognise that an argument could be made that disclosure could reasonably be expected to result in a material financial loss or gain to the two companies or could prejudice their competitive positions or could prejudice the conduct or outcome of negotiations between the companies and others ... I consider that the significant public interest in the public knowing how the Department carries out its regulatory functions in the area of hygiene and food safety and the control of disease outweighs any public interest in protecting the commercial operation of the companies. I consider that the public, as the ultimate consumers of food products, has a legitimate interest in knowing information of this nature. I, therefore, find that the public interest would, on balance, be better served by granting than by refusing to grant the request for access to [the] records ...."

Another example from one of my decisions illustrates the balancing act required where the public interest in accountability in the use of public funds conflicts with avoiding potential damage to the good name of a charity. The charity was the recipient of public funding and the record sought dealt with the manner in which the charity used and accounted for this funding; arguably, release of the record might have undermined the charity in the eyes of the public. In deciding to release the record, I commented:

" [I am] obliged to consider whether, on balance, the public interest would be better served by granting rather than refusing to grant the request for access to the [record]. Notwithstanding the fact that [the charity] is of the view that further public debate on this matter will be harmful to its efforts in the Third World, I would find it difficult, in public interest terms, to draw a distinction between the disbursement of public funds by [the charity] and by other grant-aided bodies, based on the objects for which a body is established. While there is a public interest in ensuring that the efforts of charitable organisations are not disrupted, there is also a clear public interest in ensuring that the objectives in respect of which public funds are allocated are met and that there is accountability in relation to the manner in which such funds are applied. I attach a significant weight to the latter."

I directed the release of the record in question.

Over the past four years my Office has had to take account of the public interest in a great number of cases. A striking fact is the extent to which public interest arguments can actually be in conflict with one another. Looking through the decisions in these cases it is possible to identify a number of recurring public interest themes and to group them, somewhat loosely, as relating to the following:

1. Promoting Open Government - there is a strong public interest in ensuring openess, transparency and accountability in the case of public bodies (especially in relation to the use of public funds and in relation to securing value for money); public interest is also served by enabling the public test whether value for money is being achieved; however, the public interest is also served by enabling public bodies to perform their functions effectively and without undue interference.

(Examples: tenders, farm grants, TDs' expenses)
2. Promoting Democratic Involvement of the Public - in addition to promoting open government, there is a strong public interest in promoting the public's engagement with, and involvement in, politics and government; in practice, issues to arise here have to do with enabling the public to understand the processes of government and with enabling and promoting public debate on important issues (by, for example, having access to relevant information).

(Examples: records re. drafting of Solicitors' Amendment Bill, 1998; report of Pensions Board to Minister for Social, Community & Family Affairs re. establishment of Pensions Ombudsman)

3. Protecting Personal Rights - the FOI Act (and indeed the Data Protection Act) recognise the right to personal privacy; other examples of personal rights which are seen as consistent with the public interest include the right to information on one's identity and family history (particularly for those who spent their childhoods in an institution) and the right to fair procedure (or constitutional justice) in one's dealings with the State. I think it is important to remember that the public interest test which applies in the case of personal information is different to that applying to other exemptions. In my first speech as Information Commissioner (Designate) I said that where the public interests arguments are finely balanced as between release and refusal, given the positive thrust of the FOI Act's Long Title (which tends towards release), I would be inclined to favour release. Let me say now that in the case of release of personal information to third parties, I need to be satisfied that the public interest in release clearly outweighs the public interest in the protection of privacy.

(Specific Example: where the public interest tends to favour release of a third party's personal information, I sometimes limit the invasion of privacy which may ensue by giving access by means of inspection rather than by means of a copy of the record. In a recent decision, I took this line even though the third party personal information had actually been provided to the public body by the FOI requester.)

4. Supporting Parents and Families/Child Protection - there is a strong public interest in supporting parents in their roles as parents; also a strong public interest in ensuring the best interests of the child are served. Under the section 28(6) regulations, the "best interests of the child" test determines whether parents get access to their children's records.

(Comment: FOI is being used very regularly in situations where couples have separated and custody and access to the children is in dispute. In these situations, insofar as access to personal information about the children is concerned, I take the view that it must be shown that such access will serve the best interests of the child and the onus to establish this rests with the requesting parent.)

5. Supporting Law and Order - deterring and preventing the commission of crime, revealing wrong-doing and the identities of wrong-doers, supporting the victims of crime, protecting the security of the state - all of these are important public interest issues. But we must bear in mind that this is an area where the protection of human rights and civil liberties also arise. As section 23(3) makes clear, unlawful or illegal actions intended to support law and order are not exempt from the public scrutiny which FOI facilitates.

(Example: relevant cases here include instances where I found a strong public interest in the Department of Agriculture being able to conduct effective investigations into possible abuses or offences in the area of agriculture.)

6. Promoting Good Health/Ensuring Food Safety/Protecting Vulnerable People - there is a clear public interest in these areas; from an FOI point of view, these issues tend to emerge in conjunction with the issue of openness and transparency in the performance by public bodies (usually the health boards) of functions in relation to food safety and the standards of care in institutions.

(Examples: release of records of health board inspections of private nursing homes; case of food processing plant already cited above; we have two cases on hand regarding Environmental Health Officer investigations of food outlets.)

No Definition of Public Interest

While it is easy to come up with specific examples of what serves the public interest - as I've just done - it is actually quite difficult to define what we mean by the term "public interest". Our FOI Act does not define the term and in this it is in line with most other (if not all) FOI Acts from other jurisdictions. The Queensland FOI Act of 1992 - on which our Act draws to a considerable extent - does not define the public interest but it does give some more guidance than does our own Act. Section 5 of the Queensland Act specifically recognises "that in a free and democratic society... the public interest is served by promoting open discussion of public affairs and enhancing government's accountability...". However, this represents only one facet of the public interest.

It's as if there is an assumption that we all know what the term means and that it's unnecessary to define it. While I do not propose to suggest a definition of the public interest, I do want to draw attention to the fact that it is far from being an easy concept or even one we can all agree upon. In very general terms, I take it that the public interest is that which supports and promotes the good of society as a whole (as opposed to what serves the interests of individual members of society or of sectional interest groups). In this sense, I take it that the term "public interest" broadly equates with the term "the common good" as used (but not defined) in our Constitution.

As public servants, we are very conscious of our role in serving the common good. But if we are completely honest, we sometimes identify the common good with the good of our particular organisation or of our particular profession or employee group. The common good may also, at times, be defined by reference to the views of the majority; although vociferous minorities may equally claim the high moral ground. We need to be careful when considering the public interest that we do not let our own notion of the common good take precedence. A proper approach requires us to set down the various public interests in favour of disclosure and non-disclosure and to take a balanced view on which should prevail.

For my own part, I have adopted a pragmatic approach to public interest issues and generally take my decisions on a case by case basis. In doing so I take into account, of course, relevant case law from our own courts, from other common law jurisdictions and, where appropriate, from the European Court on Human Rights and the European Court of Justice. It is fair to say, I think, that from my review decisions so far certain principles do emerge in relation to the public interest - these are the categories or themes to which I've already referred (Promoting Open Government, Promoting Democratic Involvement of the Public, Protecting Personal Rights, Supporting Parents and Families, Supporting Law and Order and Promoting Good Health/Protecting Vulnerable People). Overall, I am sure that this is an area in which all of our thinking will develop with time. We must continue to be aware that the public interest is in some senses an intangible and evolving principle and not something which we can serve by the adoption of a formulaic approach to FOI decision making.

***

Let me turn now to some areas of continuing concern or areas in relation to which some greater clarity may be required.

"Search" Cases

Let me start with what we usually term "search cases". These are cases in which the records requested, or some of them, cannot be found and the issue for decision is whether the public body has, as section 10(1)(a) of the Act puts it, taken "all reasonable steps to ascertain [the records'] whereabouts". There are two separate but related issues which arise here: one has to do with the adequacy or otherwise of the public body's record management practices; the other has to do with the adequacy of the searches conducted for the records sought.

On the first issue, I have already drawn attention (in my Annual Report for 2001) to the very particular problem in the area of medical and hospital records where poor record management practices result in very frequent loss or mis-placing of patient records. I appreciate that some health boards and some of the larger hospitals are taking steps to improve matters. In the case of GMS or "medical card" doctors there is not yet, as far as I am aware, any specific requirements in relation to record creation or retention practices. On a broader level, I note that the National Archives Advisory Council in its recently published Annual Report for 2000 is concerned that the Minister for Finance has not made regulations, under either the FOI Act or under the National Archives Act, for the management and maintenance of records held by public bodies. I must say, this is a concern which I share. Both from an FOI point of view, and from a longer-term archival and historical research point of view, I think it is very important that public bodies have clear guidance and requirements in the area of record management.

Quite apart from the very legitimate interests of FOI requesters and of history researchers, proper record management practices are crucially important in ensuring accountability by public bodies. In my role as Ombudsman, I am particularly conscious of the importance of proper record keeping if public bodies are to be able to explain and account for their actions. As I have said on a number of occasions, good administration requires that adequate records are kept which will enable public bodies explain, after the event, why a particular decision was given or a course of action pursued. Public bodies have to be accountable and there is a corresponding onus on such bodies to ensure they have record management practices which support accountability. Where a public body fails to operate good record management practices, this in itself may be construed as maladministration. I have heard it suggested that the answer to FOI, and to the openness in government which FOI proposes, is to avoid creating records and to rely on oral discussion and decision making. I am quite clear that this approach simply cannot work. Any public body which is unable to account for its actions, by reference to a proper record trail, is wide open to the charge that its actions may have been improper or worse. Accordingly, I believe it would be of assistance generally were the Minister for Finance to make regulations governing the record keeping practices of public bodies.

Returning now to FOI matters specifically, and to the issue of the adequacy of searches for records requested, my Office has already published guidelines on this and these are available in our Section 15 Manual and are also on our website. This is an area in which we - my own Office included - can easily become complacent. I am concerned at the number of cases in which, at the prompting of my staff, further searches are made and further records are found. Sometimes this process is repeated twice and even three times within the course of the one review. It is not acceptable that records should be found only because my staff put pressure on the body concerned to undertake detailed searches. It is for the body itself, in the course of its processing of the request, to undertake adequate searches. The decision maker, and subsequently the internal reviewer, should not issue a decision that the records cannot be found until they have actually satisfied themselves that proper searches have been undertaken. This means asking who searched, where was searched, which members of staff were contacted and asked to search in their own areas and so on. It also means that the decision maker must know, and take into account, the body's record management practices. It also means that the person taking the decision must be sufficiently senior to insist that proper searches are conducted and that the colleagues contacted take the matter seriously.

In explaining my Office's role in "search" cases, I generally observe that conducting a physical search for the records sought is not our primary role; rather, our primary role is to be satisfied that the decision maker was justified, on the basis of adequate searches having been conducted, that the records cannot be found. Recently, I have been adding that my Office does have the authority to visit the offices of the public body, to interview relevant officials and to be shown in detail the searches actually conducted. Clearly, this option is not one to be exercised lightly and I acknowledge that to exercise it too frequently would be counter-productive. However, I do think it is important that public bodies would know this authority is provided for in the FOI Act and it will be used as required.

Frivolous or Vexatious Requests

A provision which may be problematical for some public bodies is that at section 10(1)(e) of the FOI Act. This provides that a request may be refused on the grounds that it is frivolous or vexatious. I detect some uncertainty among public bodies as to the circumstances in which it is appropriate to invoke this provision. Indeed, in my Office we have seen only a very small number of cases in which the provision has been invoked as a basis for refusing a request; and I think it is fair to say that in none of these cases has a developed argument been presented as to why the provision should apply.

I am conscious that in a very small minority of cases FOI requesters may make requests which might reasonably be regarded as frivolous or vexatious. I am equally conscious that applying the section 10(1)(e) exemption is no simple matter. Occasionally I have had the feeling that some public bodies would like my Office to invoke the "frivolous or vexatious" provision in a context in which they have not actually relied upon it. I think it is not realistic for my Office to invoke that provision at review or appeal stage where the public body has not already relied on it at decision stage. Furthermore, if the "frivolous or vexatious" provision is to be relied on, the public body will need to show my Office that it was reasonable to take that approach. It will not be enough simply to invoke the provision without also showing why that action is warranted.

I set out my thinking on this provision some time ago - even though it was not strictly necessary to do so in context of the particular case (Ref. 99151 - text of decision on my Office website at www.oic.ie). I identified the relevant considerations as including evidence of the requester having acted in bad faith and evidence of an abuse of process. I mentioned in particular the need for requesters to behave reasonably and to co-operate with the public body in relation to the request. I would suggest that decision makers might look at what I had to say in that decision. My overall conclusion was as follows:

"The refusal of requests on the grounds that they are frivolous or vexatious is not something that should be undertaken lightly by public bodies. In my view, section 10(1)(e) of the FOI Act is restrictive in scope, given the terms of the Act generally and, in particular, the provisions of section 8(4) thereof, which require any reasons behind a request, whether given by the requester or perceived by the public body, to be disregarded. Public bodies should avoid imputing motives to requesters on the basis of which requests are then refused under section 10(1)(e). They should not assume that the fact that requests cause them administrative inconvenience is good enough cause to refuse requests on these grounds. As Assistant Commissioner Mitchinson pointed out, the receipt of frivolous or vexatious requests from a particular individual in the past is not in itself sufficient to conclude that a new request is automatically frivolous or vexatious. Each request must be considered on its own merits as measured against the relevant criteria.

Cases of bad faith aside, whether a request is frivolous or vexatious should be judged by reference to the pattern of behaviour of the requester in relation to the FOI request or requests under consideration. Requesters who are heavy users of the Act, and incidentally who may benefit considerably from the rights conferred by it, have a corresponding responsibility to act reasonably in relation to the processing of their requests by public bodies. Unreasonable or uncooperative behaviour by a requester in relation to the processing of a large number of requests made by him or her may justifiably lead to the conclusion that certain (if not all) of the requests on hand from that requester are frivolous or vexatious."

Only when I am presented at review stage with a reasoned justification for the invoking of the "frivolous or vexatious" provision will it be possible for me to reach any definitive conclusions on the matter.

Personal Safety Issues

I referred in my recent Annual Report (for 2001) to the absence in our FOI Act of an exemption designed to protect the personal safety of third parties. What's involved here is a fear that the release of a record or records might incite the requester to do violence to someone else, for example, a family member, a neighbour or, indeed, an official. While such cases may be relatively rare, when they do occur they are certainly problematic. In recent months, arising from a number of such cases, my Office has reflected in some depth on the issue. Arising from this, I intend shortly to provide the Central Policy Unit of the Department of Finance with a note on the issue.

I am very conscious that there is no easy solution to this problem. Having a specific exemption designed to protect personal safety - as is the case in some other jurisdictions - may well be very useful. However, there will be cases in which even to reveal that there are reasons to fear violence or intimidation on the part of the requester may be unwise. For example, to draw attention to the fact that there is a fear of violence may in itself be enough to spark off that violence. The logic of this is that there might be a provision, in certain very limited circumstances, to withhold the full reasons for an FOI decision. However, such a provision in itself is fraught with difficulty as it conflicts with the very important principle - itself enshrined at section 18 of the FOI Act - that reasons for decisions should be given. Clearly, this is an issue on which we need to think further.

Report of Inter-Departmental Working Group

In July 2001 I published the report of my investigation of the extent of compliance by public bodies with the FOI Act. The report looked at the practices and procedures of public bodies - based on a sample of such bodies - in implementing the FOI Act. My report included a range of recommendations as to how FOI practice might be improved. The FOI Inter-Departmental Working Group (IDWG) decided to look at these recommendations and established a subgroup to review them and to draw up an Outline Action Plan to address the issues raised in my recommendations.

I was very pleased to receive a copy of the recently published report of the IDWG subgroup. I am very encouraged to find that my recommendations have been given detailed consideration and that an action plan for their implementation has been drawn up. Unfortunately, at the time of preparing for today's presentation I have not had an opportunity to study in detail what the report has to say. However, I look forward to doing so at the earliest opportunity.

Conclusion

In my Annual Report for 2000 I referred to the role which FOI can play in promoting greater engagement with, and interest in, the process of politics and government. I suggested that there is a worrying level of apathy and disengagement by many Irish people in relation to politics and government which needs urgently to be addressed. In the meantime, it may well be that the level of public cynicism in relation to politics and government has, if anything, actually grown. To some extent this cynicism may be the product of a tradition of governmental secrecy which has impeded accountability and protected certain actions which, when ultimately revealed, have shocked the general public. It is very clear that now, perhaps more than ever before, we have a need in Ireland for government which is open and allows for the democratic involvement of the public.

I am aware of some tensions in relation to some provisions of the FOI Act which may be seen as unduly interfering in the process of government. However, open government and greater accountability by definition involve greater scrutiny of decision making; while this may from time to time result in embarrassment for public servants or politicians, the common good of safeguarding against wrong-doing, at whatever level, must take precedence. In any event, I am fully satisfied that the provisions of the FOI Act as they stand are more than sufficient to protect all of the essential interest of government. Nothing in the operation of FOI over the past four years - bar the odd accident! - suggests otherwise.

In contradistinction to these cases, I should mention a recent decision I made in the case of a request for access to the performance assessments of individual senior civil servants. The requester argued cogently that this personal information should be released in the public interest to facilitate the general public in holding senior civil servants accountable. In affirming the decision to refuse access, I drew a distinction between the desirability, on the one hand, of there being greater scrutiny of public decision making which I fully support and, on the other, access to records which were created as part of the formal and internal accountability process. In other words I recognised the clear constitutional and legal position in Ireland that it is Ministers and not individual civil servants who have public accountability

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