10th Anniversary Conference (15 May 2008) - "Freedom of Information: The First Decade"

"FREEDOM OF INFORMATION IS NEEDED TO KEEP GOVERNMENT OPEN, HONEST AND ACCOUNTABLE" Speech by Eamon Gilmore, TD, Labour Party Leader

I want first to thank the Information Commissioner, Emily O’Reilly for the invitation to address this meeting and I want to join in congratulating her office on its 10 years in existence.

And I want to thank the Commissioner in particular for maintaining the impressive standards of independence, commitment and outspokenness she inherited from her two predecessors.

It will become clear from what I say that I do not believe Ireland is at present as well served as it should be by the state of our freedom of information laws. But we continue to be well served, as we have been since 1997, by those who have been appointed as Information Commissioner.

I have a particular interest, as Labour Party Leader, in joining in celebrating the passing of the Freedom of Information Act in 1997, because the reality is my Party can claim paternity of the project. 

The Act was a direct product of a commitment in a Labour Party Manifesto and was incorporated by my Party’s insistence into a Programme for Government. And the personal commitment of the Tánaiste Dick Spring, who steered the passage of the Bill through Government, and of the Minister for State at his Office, Eithne Fitzgerald, who oversaw the drafting of the Bill and steered its acceptance through the Departments of State and then through both Houses of the Oireachtas, were vital to its conception and eventual passage.

However, I don’t think that clapping ourselves on the back in fulsome celebration is the appropriate reaction to marking 10 years of FOI legislation in this jurisdiction.

I don’t think it is appropriate partly because some of the changes made back in 1997, in the way we manage public life in this State, were abruptly dismantled by an amendment Act in 2003. That amendment Act, in my view, did fundamental damage to the way in which the FOI regime ought to operate. The legislation has, as a result, been handicapped and it no longer functions as effectively as it should.

In celebrating the 10th anniversary of the coming into effect of the Freedom of Information Act, we should remember that Act was part – albeit a major part – of an entire package of the sort of statute law reforms we desperately need in this country, if we can pretend to take in any way seriously our purported commitment to openness, transparency and accountability in our public life.

While freedom of information is a necessary part of the package, of itself, it is not sufficient.

But we are entitled nonetheless to mark an anniversary that denotes the first fir m statutory commitment by the State to the principle that members of the public are entitled, as of right, to information held by public bodies.

Making that commitment and enshrining it in statute of itself involved a significant shift in thinking: thinking about the nature of public service jobs, accountability for results achieved by those holding such jobs and, ultimately, about who is paying for those jobs and who is entitled as a matter of right to the information you need in order adequately to scrutinise performance in those jobs.

If you’re old enough to remember the passing of the 1997 Freedom of Information Act and if you’re a political wonk or a lover of good comedy, then you will remember the BBC series Yes, Minister and its successor Yes, Prime Minister.

You might vaguely remember a scene in which Sir Humphrey Appleby, outgoing Permanent Under Secretary at the Department of Administrative Affairs and incoming Cabinet Secretary, has a chat at his club with the outgoing Cabinet Secretary Sir Arnold Robinson who has, like many retiring senior civil servants, been given by the Government an appointment to a quango.

Sir Humphrey asks Sir Arnold: "How are things at the Campaign for Freedom of Information, by the way?" "Sorry, I cannot talk about that".

Like so many episodes in "Yes, Minister", the incident itself is a minor enough one but also a very funny one. And it is funny because it is true. Its truthfulness can be testified to not just by those who have served in public administration across the water: it also creates a jolt of recognition among those of us who serve as public representatives and public servants in Ireland

First, because the commitment to official secrecy still always seems to trump the commitment to freedom of information, in the circles which control official information and have responsibility for distributing it.

And, second, because freedom of information is an issue of Government policy. And, like so many areas of Government policy, freedom of information policy is itself therefore formulated in secret – a complete antithesis of the standards and values which a commitment to freedom of information is meant to uphold.

Consider the Freedom of Information (Amendment) Bill 2003, for example, a piece of legislation that I firmly believe was conceived and enacted in order to spancel the working of the 1997 Act. Where did that Amendment Bill originate? Who authored it? Who contributed to its drafting?

These are reasonable and legitimate questions. But the irony is that FOI legislation was amended more or less expressly for the purpose of ensuring that you can no longer use the Act to get answers to questions like that.

We know that a high level group was established by the Government, consisting entirely of senior members of the civil service, to review the operation of the Act. We know that, in other words, the information providers sat in judgment on the legislation that governed the way they should provide information, without any reference to the rest of us, the information consumers.

We know that the information providers came up with recommendations that were by and large accepted by Government and were incorporated into the 2003 Amendment Act. We know that this high level group came up with the following argument -

"[A]s experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short space of time"

Why do the high level group say "it is evident" that a five year moratorium on the release of Cabinet records is too short?  If it is "evident"then where is the evidence.  If they have evidence, why don't they quote from it? 

In any event, how could there be any evidence at all, given that the five year moratorium had not in fact expired before the report from the high level group was written?

The reason I am concentrating on the 2003 Amendment Act is because I think an important point needs to be stressed.

It is not good enough to have a functioning version of a Freedom of Information Act. Such an Act will of itself obviously have merit.

But what we also need are the additional elements of a package that ensures that FOI is recognised and protected for the merits that it has; that it contributes to open, informed, participative and timely discussion about the merits of public policy; that it secures transparency in public decision-making; and that it makes public decision-makers accountable for the decisions they have made.

One basic problem that arises is when information that ought to appear on the record is entirely absent. How does an FOI regime react when decisions of public importance appear to have been taken but there is no record at all about the taking of those decisions? What Miriam Lord (to consider this piece this morning) might call 'the undocumented'. 

In his January 2001 report on nursing home subventions, the Ombudsman commented on the inadequacy of departmental records in relation to ministerial decisions.

He warned that the practice had implications for accountability: "the absence of a clear, written record can lead to uncertainty when the actions, or inactions, of a Minister (and his or her Department) are being scrutinised by the Oireachtas".

Subsequently, the Travers report and Oireachtas Joint Health Committee hearings more than justified the Ombudsman’s concerns. It is simply unacceptable executive practice that there is no record kept of ministerial engagement with an issue or decisions on that issue. 

The practice has, as the Ombudsman predicted, been destructive of trust and has hampered accountability to the Oireachtas.

I believe that, if needs be, this practice must be brought to an end by legislation. Executive decisions taken by county and city managers are effected by way of a written minute, signed by the manager. Why can't a Government Minister or a Secretary General do the same?

And another practice, which was also highlighted in the Department of Health but is not peculiar to it, is the refusal of a Minister to engage at any level with the administration of the Department in which he or she holds office.

Minister Mary Harney, for example, is on record as insisting that not only has she never in her ministerial career attended a departmental management advisory committee but that she has no intention of doing so in the future. She seems to be convinced that the management of her Department is not her concern.

That conviction on her part is of course totally at odds with the fundamental principle underlying the Minister/Departmental relationship, which is set out in the 1924 Ministers and Secretaries Act.

That principle is that a Government Department, together with all its powers duties and functions, shall be  "assigned to and administered by" the Minister appointed as head of that Department.

That principle remains in force and is unamended by the Public Service Management Act 2004.

But this reductionist view of a Minister’s role and responsibility in relation to the actions of officials is one that entirely accords with the view of one long-since retired British civil servant mandarin, who declared that, when a Minister actually starts to run his Department, things are going pretty badly.

"It is not the Minister’s job to run the Department. It is my job, for which I have twenty-five years’ training and practice. If the Minister were allowed to run the Department, we should have:

(i) chaos

(ii) innovations

(iii) public debate

(iv) outside scrutiny."

The same mandarin insisted that a Government Minister had just three functions:

  1. He is an advocate. He makes the Department’s actions seem plausible to Parliament and the public.
  2. He is Our Man in Westminister, steering our legislation through Parliament.
  3. He is our Breadwinner. His duty is to fight in Cabinet for the money we need to do our job.

The mandarin in question was of course the same man I referred to earlier, a creature of political satire, Sir Humphrey Appleby from Yes, Minister.

His analysis of what ministers should do and what they should not do seems to me to be to have become adopted as a basic primer in this State.

What we now have as Ministers are, generally speaking, nothing more than ambassadors-at-large for their Departments, making the plausible argument, from a pre-supplied script, on the Department’s behalf in the Dáil, in Government and to the public.

Colonel Harland David Sanders performed much the same role, for nearly 20 years, for Kentucky Fried Chicken, long after he sold his interests in his fast food chain to a publicly quoted company in 1964. He remained its corporate spokesman until he died in 1980, while having no role at all in the management of the firm for which he was such a prominent public face and figurehead.

Colonel Sanders’ job as ambassador-at-large was just an advertising gimmick and created a misleading impression as to the true ownership of the corporation and the true decision-makers within it. The reality is that nothing the Colonel did during all those years as the public face of KFC had anything to do with the way the KFC chain was actually run by its real management.

My worry is that decision-making in this State, at its highest level, is routinely and increasingly made along similar lines: that we, the citizens of the State, are presented with the public and acceptable, "Colonel Sanders", face of the State rather than encountering and having an opportunity to interrogate the true decision-makers – the chief executives of our countless agencies, the Secretary-Generals of our Government Departments, and so on.

Members of this Government now seem to regard themselves as well paid – perhaps now, under Brian Cowen, recognising themselves to be embarrassingly well paid – PR men and women.

They act as ambassadors-at-large for their Departments, but denying any executive accountability at all for what those Departments – and the plethora of quangos they have created – actually do or fail to do.

Freedom of information laws are, I believe, a vital part in making some attempt to ensure the accountability of Ministers, their officials and public bodies. Ministers must be accountable because they are, in the language of Article 6 of the Constitution, designated by the people as "the rulers of the State". They are public representatives appointed to serve in the executive branch of government and are accountable to the people as such.

This reality lays on them duties, both personal and organisational, and the responsibility for ensuring that these duties are fulfilled. And it includes exerting the appropriate level of supervisory authority.

The core problem underlying public service resistance to FOI laws is that those seeking access to information are sometimes seeking to identify individuals upon whom they can pin responsibility – or perhaps, in the context of waste and over-spending stories – irresponsibility. The public demands stewardship of public resources: but the laws and practices in place are largely designed to obscure both stewardship and accountability.

Can anyone name, for example, who is in charge of the project to introduce integrated ticketing for public transport in Dublin? Is there anyone in charge?

It is inexplicable that upwards of  €50 million can be spent on researching a project that seems to most of us to be so basic – and seems in a few other cities to be easily enough implementable –while here, in this city, we cursorily lament the fact that around €5 million a year for the last 10 years has been spent on a project that has no owner, no stakeholder, no manager and no accountability – and no outcome!

Real and effective accountability is central to proper financial management.

Without clear lines of accountability, decision making is poor, and poor decision-making then goes unchallenged.

Inadequate systems of accountability also inhibit delegation of authority to appropriate levels in an organisation. The HSE is a case in point.

It is astonishing for example that, 11 years after FOI legislation was introduced and four years after the newly-established, bright and shiny, best management practice Health Services Executive was established, that body still fails to comply with a fundamental obligation imposed on it by statute: the obligation to prepare and publish in an accessible way a comprehensive and comprehensible guide to the services it provides.

In the early days of FOI, a lot of comment and complaint was generated within Government and the senior civil service about what was called the "post-it" phenomenon: that civil servants, rather than appending their views to a memorandum circulated for review and comment, would instead write their views down on a detachable "post-it" that could be removed from the official papers and would not form part of the official file or be discoverable under FOI legislation.

There are I think at least three responses to that argument. First, the"post-it" phenomenon belonged to its age: we now live in the e-mail era and e-mails are not so easy to remove or detach from the Departmental record.

Second, there will of course always be what you might call conversations in the corridor and preliminary conversations before formal meetings. And those conservations won’t always be reduced to writing. It is unfeasible to pretend that any system of FOI will always ensure a valid record of every relevant but off-the-record conversation.

But the fact remains that the organisation for which those people, walking down the corridor, or at the preliminary chat before the formal meeting, work needs a corporate memory. It needs a record of decisions taken, and the reasons behind those decisions.

Because, while individuals come and go, the organisation remains and endures. And it needs to know what it has decided and why.

An organisation that cannot maintain records for that purpose will eventually lose its capacity to organise itself. It will lose its sense of purpose and it will drift.

This will become increasingly important as the civil service and public service bodies continue to be dispersed, under the guise of so-called decentralisation.

And, third, the reason why senior personnel in any public body must write down their views is because their views are worthless if those senior personnel cannot present and stand over them, when challenged.

Senior public servants are paid  – and well paid – precisely because their views are worth having. Those views are expected to be timely, informed, relevant and appropriate.

But civil servants are still, bizarrely, governed by a standard that insists they do not have personal opinions or points of views about their jobs, the way they do their jobs and the policies promulgated by their greaters and betters about how their jobs should be done in future.

Under this code of behaviour, opinions are, supposedly, only for the Minister: civil servants simply assist the Minister in his or her arriving at a point of view.

And, under this code, civil servants are, supposedly, entirely neutral. They do not have opinions of their own.

All of us who work as public representatives or in public administration know that this is fiction. We know – and we rightly expect – that people who work in our Departments of State and in our quangos have views about the work they do.

There are two pretty basic and principled reasons why we should be entitled to have access to those views. First, precisely because they are the views of experts. And, second, because they are the views of our experts – they work for us, we pay for them and we own their output.

And, if those views advise a risky course of action then, so long as the risks are recognised and taken account of, then perhaps we need a better way to reward those willing to take risks in our public service, rather than long-finger difficult decisions or send than up the line to higher officers.

The practices of the Bar Council are not often considered as best practice. I draw attention to the insistence provided for in the Code of Conduct for the Bar that legal opinions formulated by barristers, when they do work on behalf of their clients, belong to the clients and not to the barristers.

The result is that the client, not the barrister, can publish an opinion written by the barrister and can receive fees for its publication, while the lawyer who wrote the opinion can do nothing but silently fume.

The merit of that rule is grounded on an adherence to a basic concept: that, if you work for someone else and put your thoughts to paper at his or her request, then the person who asked you to do the work owns the resultant output.

And that person is entitled, if he or she is your employer, to require you to maintain a system of records of your output, so that the records you generate are easily searchable and easily recoverable.

But a public body that retains records with inadequate or ill-thought out views, so substandard that the people in charge of the body are afraid to stand those views up to public scrutiny, is liable to make very poor decisions.

And a public body that maintains such poor records that it finds it difficult if not impossible to search them when asked to do so is equally liable to make poor decisions.

Maintaining readily accessible records is of course something that any public body should be doing, not just because it is required by the FOI Acts. They should be doing it because it assists them in better doing their own jobs.

It is therefore desperately disappointing to note that the Information Commissioner, in the introduction to her 2008 annual report, has to say that -

"Also in Chapter 3, I examine an area of public administration in which the FOI Act has, as yet, failed to deliver the improvements hoped for – the area of records management practice. Again and again over the past 10 years, my Office, based on our experience of dealing with public bodies and searches for records, has called for improved systems in this area. Unfortunately there are still pockets of the public service where serious shortcomings remain, despite various programmes of public service reform over the period".

It seems to me that if such a basic administrative issue as adequate records management within public bodies has not been taken on board and improved over the past 10 years under the Freedom of Information Act, then we still have quite a lot of work to do.

Under our Constitution, all powers of government are derived from the people. That is a high-sounding statement of principle. What it means in practice is that all Ministers of the Government, and all officers and employees within the public service, are trustees and servants of the people. So, accountability comes with the territory.

And what accountability requires is access to the information about and generated by the Ministers, officers and employees who work on our behalf.

I am convinced that the only effective and efficient government is one that is open, honest and answerable. It is therefore firmly in the public interest to insist in the highest degree of openness, transparency and accountability in public administration.

That is the best and indeed the only means of ensuring that citizens get all necessary information. The information we need in order accurately to assess whether best practice is being followed and whether value for money is being sought and delivered.

I also believe we must reform the structures of accountability within our public administration to make it clear who is accountable for what, and in particular, we must accurately define the responsibilities of Ministers. Rather than hiding behind a legal fudge, Ministers must be clearly responsible for their own actions and for the supervision of their departments.

Where Ministers fail, the public should know, and when civil servants fail, the public should know what the Minister did about it.

My Party is accordingly committed to an agenda for reform in public administration, which includes a commitment to

  • Restore the Freedom of Information Act to what it was before it was filleted by the Fianna Fáil/PD government; implement all the recommendations for reform of the Act made by the Information Commissioner; and extend the remit of the Act – and the remit of the Ombudsman Act – to the Garda Síochána, the Central Bank and IFSRA and many other statutory bodies, and bodies significantly funded from the public purse, that are currently excluded
  • Introduce Whistleblowers Protection legislation to protect those in public service who bring maladministration to light
  • Propose a referendum to reverse the constitutional amendment on Cabinet confidentiality, to ensure that the current almost absolute protection cannot be used to impede necessary investigations
  • Repeal the Official Secrets Act, retaining a criminal sanction only for breaches which involve serious threats such as a threat to the international relations of the state, the conduct of a fair trial, or national security and with a public interest defence available in such cases
  • Reform the Ethics in Public Office legislation, incorporating the proposals made by the Standards in Public office Commission itself, so as to enable comprehensive, speedy and effective inquiries where the behaviour of public office holders is suspected to fall below acceptable standards
  • Introduce a statutory register of lobbyists and a statutory code governing the practice of lobbying
  • Introduce a more rigorous legal framework on spending by political parties, including spending limits for local and presidential elections and widen the time frames to which the spending ceilings for European and general elections apply
  • Amend the Public Service Management Act to specify that Ministers are responsible for the supervision and oversight of their departments, as well as for their own direct actions
  • Repeal the "Carltona Doctrine", a rule of law which states that statutory powers may be exercised on behalf of a Minister by a civil servant without his knowledge or authority, and replace it with a proper system of delegation of authority
  • Clarify the authority, responsibilities and accountabilities of Secretaries General and introduce a proper, statute-based system for the delegation of powers within Departments of State, with consequent accountability on the part of those exercising delegated powers
  • Replace the existing rules which curtail civil servants in their answers to Dáil Committees with a system which reflects the reality of responsibility delegated to civil servants
  • Keep clear records of Ministerial decisions
  • Make Ministers accountable to the Dáil for the actions of Public Bodies.

There are, in conclusion, I believe serious structural flaws in the system of accountability in Government. The existing system has been overtaken by changing conditions and by new legislation. This has opened up gaps in the structure of accountability, which make it unclear who is responsible for what, and which allow Ministers in particular to evade responsibility when things go wrong.

Ireland's existing system of accountability for Ministers and civil servants seems to me to be confused in theory, in law and in practice.  The result is that Ministers and others have been allowed to evade their responsibility for major incompetence, vanity projects and indifference in the face of mounting bills to the taxpayer. 

We do of course need an increased emphasis on the accountability of public servants. But this must be in addition to, and not in substitution for, the accountability of ministers.

I can do no better by way of conclusion than to adopt and whole-heartedly endorse the conclusions of the most recent public management review, commissioned by the Government and published last month by the OECD, called ."Ireland: Towards an integrated Public Service". In dealing with this issue they say:

"In the interest of social cohesion and trust in government, greater efficiency and the fight against corruption and greater transparency should be an ongoing objective, even if it can sometimes be uncomfortable and/or costly. While user charges may limit frivolous requests (and therefore reduce burdens on the public service), they also serve as a disincentive to greater openness.

"The Government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free."

Thank you for your time and attention.

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