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The Freedom of Information Act - Compliance by Public Bodies
Chapter 8 - A more open Public Service ?
Can it be said that some three years after the introduction of the FOI Act, the public has a better understanding of the business of government? Have we now a public service which is more open in its dealings with the citizen and more willing to explain its actions and activities?
Media Usage of the FOI Act
In a modern democracy one vital means of bringing information about the business of government into the public domain is through the media. It is important that the media's capacity to do this should not depend solely on channels where the choice of information and the timing of its release is at the discretion of the party providing it. The FOI Act, by giving a statutory right of access to information, shifts the initiative to the requester. Hence the importance of the media availing of this right on behalf of the community. Without wishing to suggest that any category of requester is more important than any other, I believe that effective use of the Act by members of the media is important. Journalists have recognised the value of the Act and media usage appears to be increasing. For example, media requests in the year 2000 totalled 2,548 - an increase of 58% over the previous year's figure.
While I see this increased usage as a good thing, I also recognise that the media are not totally disinterested parties publishing material solely in the public interest. They have competitive pressures and commercial interests of their own, a point made by the distinguished English judge, Sir John Donaldson, and quoted by Keane J in National Irish Bank Ltd. v Radio Telefís Eireann ([1998] Supreme Court 484) :
"The media .........are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy, and in campaigning for reform and propagating the views of minorities, they perform an invaluable function. However, they are peculiarly vulnerable to the error of confusing the public interest with their own interest. Usually these interests march hand in hand, but not always."
The confusion of self-interest with the public interest has surfaced in the media use of the Act over the last few years. For example, competition for "scoops" has led some journalists to argue that the information which they are seeking should be released in the public interest but that they should be given access before anyone else. This ignores the fact that where a public body has decided to release records to one requester (or where it is required to release it following a review by the Information Commissioner) then, in most cases, there will be no justification under the FOI Act for refusing to release the same records to other requesters at the same time. The reason for this is that the Act gives requesters a legal right of access to records subject only to the specific exemptions contained in the Act. If a public body has already decided that none of these exemptions apply to the records then there is no basis under the Act on which it can properly refuse access to anyone else who may make a FOI request or on which it can even defer the offering of access to such a person. It follows that the fact that a requester was the first person to request particular records does not confer any special rights of access on that person to the exclusion of any other requester.
There are a few exceptions to this approach. The first is where the material being released contains information given in confidence, personal information about the requester, or commercially sensitive information. In such cases, the normal requirements of the Act, designed to protect the interests of third parties, must be observed. The second possible exception arises in cases where there are a significant number of records involved and a large number of requesters. In these circumstances it may not be practicable, from an administrative point of view, for a public body to provide the information to all the requesters at the same time without incurring a significant delay. In such cases, the order and manner of release of the information is at the discretion of the public body, although all other things being equal, one would expect the information to be released in the order in which it was requested. I would expect such a phased release to be the exception rather than the rule. A third possible exception concerns the situation in which charges are being levied by the public body. In such cases, a delay in paying the charge will result in delayed access. In short, while the Act may enable journalists to achieve "scoops", it was not designed for this purpose and public bodies cannot apply the Act to facilitate this if to do so would involve an encroachment on the legal rights of others.
Sometimes the choice and presentation of material appeared to have more to do with self-interest than the public interest. This includes the publication of trivia which, in the words of the Irish Times, were "quite forgettable". In other cases the presentation of information acquired under the Act has highlighted disagreements between public servants or Ministers as if such disagreements were somehow unusual rather than something that must be expected in the ordinary course of conducting business. Paradoxically, the very number of such stories has helped to demonstrate that much advice is formulated and many decisions made after considerable debate and disagreement and that Ministers can quite properly decide to decline the advice of senior civil servants on an issue.
There have been other occasions on which media self interest and the public interest have marched hand in hand. Many stories have given an insight into how public business is conducted in this country. The publication of the reports of the Social Services Inspectorate has given some graphic illustrations of the problems faced by health boards in discharging their child care responsibilities and how they have responded. The reports reveal problems such as the use of temporary staff; the use of unsuitable and sometimes unsafe accommodation; the placement of children in inappropriate centres due to the lack of foster placements. The publication of the Tax Strategy Group's papers gives detailed background to the formulation of fiscal policy. The publication of material released by the Department of Agriculture, Food and Rural Development disclose details of its efforts over a three year period to combat widespread sheep smuggling. Other records have shown how commercial interests lobbied successfully to have proposed planning restrictions amended.
In referring to these stories I am not suggesting any wrongdoing or incompetence on the part of the public officials involved. My point is that they have enabled the public to see at first hand how government business is done in a way that was unheard of in the era of official secrecy.
Dealings with Citizens
Gains have also been made in terms of openness in dealing with the ordinary citizen. The requirement to publish details of rules, interpretations, practices and an index of precedents in relation to schemes administered by public bodies allows the citizen more than ever before to find out whether or not he or she is being treated properly. The right of a person to a written statement of reasons for acts of a public body affecting him/her means that public servants now have to explain their actions to clients of the public body.
The gains referred to above are not easily measurable, particularly in terms of releases under the Act. Indeed, as pointed out earlier in this report maximising the impact of the Act and achieving its purpose requires that, over time, more information be released administratively. Statistics on the release of information will not record this, thus tending to understate the effect of the Act. Nevertheless, it is of some interest to examine the statistics for releases under the Act for each year since its enactment and to compare them with the experience in Australia, a jurisdiction with a not dissimilar access regime.
General Trend
There is some evidence that most users of the Act are satisfied with the response of public bodies. For example, the number of applications for internal review is relatively small (919 in the year 2000 out of over 13,000 requests dealt with). The percentage of initial decisions which proceed to internal review has also fallen from 14% in 1998 to 11% in 1999 and 7% in 2000. However a slightly different picture emerges when release and refusal rates are examined. Tables 1 and 2 show the percentage of requests granted in full, granted in part and refused analysed by year for the civil service, local authorities and health boards, respectively. One striking aspect of the figures is, with the exception of the health boards, the consistency of refusal rates from year to year. It might have been expected that an initial period of caution about release might have been followed by a greater willingness to release as public bodies became more confident in dealing with the requirements of the Act. These figures provide little evidence that this has happened generally.
Table 1 : Overall outcome of decisions by Civil Service bodies, Local Authorities and Health Boards
| Decision | 1998 | 1999 | 2000 |
|---|---|---|---|
| Granted in Full | 51% | 52% | 56% |
| Granted in Part | 25% | 30% | 23% |
| Refused | 24% | 18% | 21% |
Table 2 : Analysis by sector
Civil Service
| Decision | 1998 | 1999 | 2000 |
|---|---|---|---|
| Granted in Full | 48% | 43% | 46% |
| Granted in Part | 27% | 38% | 30% |
| Refused | 25% | 19% | 24% |
Local Authorities
| Decision | 1998 | 1999 | 2000 |
|---|---|---|---|
| Granted in Full | 58% | 70% | 70% |
| Granted in Part | 23% | 13% | 12% |
| Refused | 19% | 17% | 18% |
Health Boards
| Decision | 1998 | 1999 | 2000 |
|---|---|---|---|
| Granted in Full | 64% | 72% | 75% |
| Granted in Part | 17% | 14% | 12% |
| Refused | 19% | 14% | 13% |
Source : Civil Service Users Network, Public Service Users Network, CPU - Dept of Finance
Notes:
(1) Figures represent the percentage of requests dealt with under the FOI Act, .e. it excludes requests handled outside the FOI Act, withdrawn by the requester or transferred to another public body.
(2) Requests "refused" include requests refused on administrative grounds, e.g. where no records exist in relation to the FOI request, or where no right of access exists under the FOI Act
Comparison with Australia
Australia introduced its Freedom of Information Act for the Federal Government in 1982. The legislation is broadly similar in scope to the Irish legislation. Each year since 1982 the Office of the Attorney-General has published statistics on the release rates of individual agencies and of public bodies in aggregate. The figures for the latest available years (1998/99 and 1999/00) are shown in Table 3. It should be noted that these figures are in line with the release rates in earlier years. A significant factor contributing to these high release rates appears to be the high number of requests to certain agencies by persons seeking access to personal information about themselves. Table 4 shows the figures adjusted to take some account of this by excluding requests to the Department of Veterans' Affairs, which receives a high number of requests, most of them for information which is capable of release outside the FOI Act. It is clear that even with this adjustment, refusal rates for the Federal Government in Australia are significantly lower than in Ireland.
Data from some of the Australian State governments show a similar picture. The figures for Western Australia and Queensland for 1999/2000 are shown in Table 5. These release rates appear to be in line with release rates in earlier years.
Table 3 : Australia (Federal Government) - Outcome of decisions on FOI requests
| Decision | 1998/99 | 1999/2000 |
|---|---|---|
| Granted in Full | 80% | 77% |
| Granted in Part | 15% | 18% |
| Refused | 5% | 5% |
Table 4 : Australia (Federal Government) - Outcome of decisions on FOI requests excluding Dept of Veterans' Affairs
| Decision | 1999/2000 |
|---|---|
| Granted in Full | 61% |
| Granted in Part | 31% |
| Refused | 8% |
Source : Office of the Attorney General, Australia - Annual Report 1999/2000
Table 5 : Australian State Government Agencies - 1999/2000
| Decision | Queensland | Western Australia |
|---|---|---|
| Granted in Full | 81% | 69% |
| Granted in Part | 6% | 24% |
| Refused | 13% | 7% |
There are some factors which make a proper comparison of the Australian and Irish figures difficult. The first is the fact that in Australia there was full retrospective access instead of the partial retrospection provided for in Ireland. This means that the refusal rates in Ireland may be inflated by requests for records created prior to the commencement of the Act. On the other hand this is a factor which might be expected to be of declining significance as more records fell into the potentially available category and as repeat users of the Act, such as journalists, learned the rules. However, the figures for refusals do not support such a conclusion.
The figures are also not directly comparable because the Irish figures include cases where access was refused on the grounds that the records sought did not exist. Some public bodies suggested to me that this alone explained the difference in the Irish and Australian statistics. If this is so then I suggest that public bodies need to consider why there is such a high rate of cases where records do not exist and, in particular, whether it results from deficiencies in record keeping.
The level of refusal of requests is, on the face of it, a little surprising in the context of a regime which is designed to give access to information to the greatest extent possible subject to the requirements of the public interest and the right of privacy. It also appears to compare unfavourably with the Australian experience. Further statistical information would be useful to help identify the most common bases on which information is refused, to help monitor the use of exemptions and to determine whether there are significant differences in release rates as between personal information and official information.
Recommendations
Each public body should arrange to gather statistics on the use of the different exemptions and on the granting of requests for personal and official information. The statistics should record the basis of refusals of requests including administrative grounds of refusal (i.e. non-existence of records and records created before the commencement of the Act).
