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

"Freedom of Information and Better Government – Assessing the First Ten Years" Speech by Ciaran Connolly, Secretary General, PSMD

This morning, I have been asked to speak to you about Freedom of Information and Better Government over the past ten years.

These ten years have been a time of great change and challenge for the Irish Public Service, reflecting the immense changes and challenges faced by the country as a whole. As well as coping with the external changes in our business environment, the public service has been involved, since 1994, in a major ongoing process of modernisation and reform. Delivering Better Government (or, DBG for short) is the name of this change programme and that is exactly what it is about – ensuring that we have a world-class, Irish Public Service which is effective and efficient, which is equipped and structured to meet the challenges of the 21st century and which delivers quality, cost-effective services to the citizen.  This focus on the citizen is central to the whole modernisation approach – the citizen who funds public services as a taxpayer and who is the ‘customer’ or ‘client’ of the public service - be it in relation to health care, education, public transport etc.  Delivering Better Government is all about providing better, value-for-money, quality services to citizens.  And it has also been about improving accountability to the citizen. This has been achieved through a number of different initiatives, most notably the introduction of the Freedom of Information Act in 1998.

Since the launch of DBG in 1994, the scale and scope of reform in the public service has been very significant.  Change is difficult and there are many who are critical of, and impatient with the pace of reform up to now, especially in particular sectors.  And, of course, for the next decade, we are looking at new challenges ahead, in a time of greater economic uncertainty, so that the delivery of better government is even more crucial.  In this context, there can be no room for complacency. However, I think we can be reassured by the recent OECD report on the Irish Public Service, published on 28 April 2008.  In the first study ever of its kind, the OECD was asked by the Government to  benchmark the Irish Public Service against that of other comparable countries and to make recommendations for future reform which will support the delivery of world-class services to citizens. The report found that, and I quote,

"The Irish Public Service has played a central role in ensuring that the right economic, regulatory, educational and social conditions are in place for facilitating growth and development "

and also that

"broadly speaking, Ireland is on a sound trajectory of modernisation"

The key elements of public service modernisation over the past decade have been implementation of formal business planning processes in Government Departments and agencies, implementation of performance management systems across the public sector, the recent move from a focus on inputs to providing Annual Output Statements, ongoing investment in IT and development of eGovernment, agreements for extended open recruitment and increased family-friendly facilities for staff.

Included among these many change initiatives, the introduction of Freedom of Information in 1998 was a milestone in terms of defining the relationship between the administration and the citizen. Effectively it substituted the presumption of openness in relation to official information for the presumption of secrecy which had hitherto held sway. It also allowed both citizens and commentators to become much more informed on the deliberations which preceded decisions affecting them. Before FOI, the work of the administration was carried out behind closed doors in accordance with the Official Secrets Act, 1963.

Section 4(1) of this Act provides that

"A person shall not communicate any official information to any other person unless he is authorised to do so or does so in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it."

Civil servants sign up to the Official Secrets Act on their first day at work. Before 1998 this symbolised their entrance into a professional world where information was to be guarded and protected from all outside this world.

Then in 1998, this principle of secrecy was turned on its head when the FOI Act was passed and provided in its Long Title that it was an Act to

"enable members of the public to obtain access to the greatest extent possible, consistent with the public interest and the right to privacy, to information in the possession of public bodies etc."

Release of information under FOI was deemed to be fully in keeping with an official’s obligations under the Official Secrets Act.

Of course, Ireland was not the first country to legislate for FOI. While Sweden in particular has a long tradition of access to official documents, going back to the Freedom of the Press Act in 1766 and the first common law legislation was in the US in 1966, it is really since the 1980s, that modern democracies across Europe and the common-law world have been providing, in law, for the right of access to information held by public bodies. The UK legislation came into effect as recently as 2005, the same year as FOI was introduced in Germany. The new countries of central and eastern Europe have put emphasis on introducing FOI as an essential component of their democratic structures.

In drafting the Irish legislation, we were able to look at the experience in other common law jurisdictions – especially Australia, New Zealand and Canada. These laws, including the Irish Act, follow a common pattern : they provide a right of access, irrespective of motive, to government records, subject to a number of mandatory and discretionary exemptions; they impose obligations on public bodies to disseminate information about their activities and they provide for an independent appeals mechanism where information is refused.  

As regards which public bodies are covered by the legislation, we have adopted a similar approach to that taken by Canada and New Zealand whereby the Act applies to prescribed bodies. The FOI Act applies to all bodies listed in the First Schedule to the Act and can be extended to other eligible bodies by regulation. Originally the Act covered 67 bodies consisting of central Government Departments and central Government agencies. Over the years, the coverage of the Act has been extended on a number of occasions, most recently in 2006, and it now applies to more than 500 public bodies. Later this year, I expect that the Government will consider proposals for further extension of the Act, including a review of whether or not it would be appropriate to extend coverage, at that point, to An Garda Siochana.

In relation to the approach of prescribing public bodies for FOI, which, I understand,  the Commissioner would like to see revised so that all new bodies are subject to FOI from establishment, the Government have found prescribing bodies for FOI to be a useful approach for two reasons : firstly it allows for case-by-case consultation with public bodies to ascertain the degree to which their functions are appropriate for FOI – in some cases partial application of the Act may be more appropriate e.g. the Offices of the Attorney General, the Comptroller and Auditor General, the Information Commissioner, the Ombudsman are generally covered in relation to administrative records only;  and secondly, the approach of prescribing public bodies for FOI allows a lead-in time for preparation and training by public bodies so that the Act will be properly applied and applications dealt with on a timely basis.

The FOI Act is demanding in terms of what it requires of public bodies:

It requires them to set out, in the so-called section 15 and 16 manuals, a description of their structure and activities, the type of information they hold, their arrangements for dealing with FOI requests, including designation of Decision Makers and the rules and procedures associated with their administrative activities. This preparatory work sets a considerable challenge for a newly established body which also has to meet the public expectations in relation to the core business it was set up to address in the first instance. Then, under the Act, a member of the public is entitled to request access to any information held by the public body, subject to the exemptions in the Act. A member of the public is also entitled, under FOI, to seek reasons for any administrative decision affecting him/her and to have his/her personal information corrected. The body receiving the request is obliged to assist the requester in exercising his/her rights under the Act.

When a request for information is received by a public body, it must be assigned to the relevant Decision Maker for reply within twenty working days from the time of receipt. If the twenty day deadline is not met, the request is deemed to be refused. The Decision Maker considers the request in accordance with the Act. If the records are not readily available or if they are dispersed within the organisation, a lengthy process of search and retrieval may ensue. Once the relevant records are assembled, the matter of consultation with third parties may arise – in which case additional time is allowed before the decision is made. The Decision Maker then needs to consider whether any of the exemptions in the Act applies to the request and, if so, whether or not the public interest favours release. In many cases, the decision will be quite straight-forward but, in other cases, it can involve a complex consideration of different issues. After twenty days, the requester must be informed of the decision and, if the information sought is being refused, this must be explained by reference to the appropriate sections of the Act. Where a requester is not satisfied with the refusal, he or she may appeal to the public body for an internal review by a more senior official.

The Minister for Finance has overall responsibility, under the Act, for ensuring that public bodies coming under FOI undertake the necessary training and organisational arrangements and the Minister reports annually thereon to the Oireachtas.

Given the cultural shift from information retention to openness which I have spoken about and given the onerous requirements of the Act on public bodies and the obligations on individual Decision Makers, it was clear, from the outset, that a major training and preparation exercise would be required to ensure proper implementation of the Act by public bodies.  For this reason, the Act allowed for a one year lead-in period for central Government Departments and agencies and an eighteen month lead-in period for the Health Boards and Local Authorities.

Preparations for FOI were spearheaded by the FOI Central Policy Unit which was established in the Department of Finance to oversee the implementation of the Act across the public service. Each public body appointed an FOI Officer to coordinate the implementation of FOI in the body, receive and assign requests to Decision Makers, provide initial advice, and liaise with the Central Policy Unit. A major programme of training was developed and delivered to some several thousand civil and public servants. This included  development of a range of resource materials including guides, manuals, CD ROMs and eventually the government FOI website which is continually updated and which is an important means of keeping both the public and public servants abreast of FOI developments. A public information campaign was also undertaken to inform citizens of their rights under the new legislation.

As well as the importance of preparing for the commencement of FOI, it was recognised that a robust support structure would be required to ensure ongoing effective implementation of the Act. An  FOI coordination infrastructure was put in place consisting of a number of networks to develop and share experience and expertise in the ongoing implementation of the Act as follows :

  • the Civil Service Users Network bringing together all the FOI officers from Government Departments to share information and experience and to deal with cross-departmental requests
  • an InterDepartmental Working Group of senior officials from Government Departments to deal with policy issues arising of mutual concern
  • a Public Services Users Network which is an umbrella network for public bodies outside the civil service including health, local authority, enterprise and education sectors
  • a number of sectoral networks e.g in the Health and Education areas
  • two advisory groups – the Business Advisory Group and the Citizen’s Advice Group which may meet from time to time to discuss particular issues

The Central Policy Unit of the Department of Finance continues to play a central role in overseeing the effective implementation of the Act across the public service, developing guidelines for Decision Makers in particular areas as required, providing advanced training, provided ongoing advice and information both to public servants and to citizens.

The establishment of the Office of the Information Commissioner under the FOI Act was also an important part of infrastructure for an effective Irish FOI regime. As the Minister has already said, the Office has secured its profile over the last ten years, both in Ireland and internationally,  and has played an important role in bringing about the culture change which FOI required.

Once the Act commenced , I think it is fair to say that FOI began to become embedded as part of our administrative culture quite quickly and it also began to condition the public expectation of  the public service to provide information.

In his first Annual Report, after 18 months of operation, Mr. Kevin Murphy, the first Information Commissioner, while indicating that there was no room for complacency, commented as follows:

"The percentage of requests which go to internal review is relatively low. This suggests that the Act is working reasonably well in the sense that many civil and public servants are clearly prepared to release information on request or explain fully the reasons why information is not being released."

He further commented that

"the relatively low percentage of cases referred to my Office, at this early stage in the life of the legislation, provides some evidence that requesters' needs are being met."

2003 Amendment Act

In 2002, four years into the implementation of FOI, the Government decided it was time to review the operation of the Act and especially whether it was achieving the appropriate balance between promoting openness and transparency on the one hand and effective functioning of government on the other.  It established a High Level Group of Secretaries General to make recommendations and, following the report of this group, it brought forward an FOI Amendment Bill  which, after lengthy debate in both Houses, became law in April 2003.  The two key changes to the 1997 Act were

  • The extension of the protection for cabinet records from five to ten years
  • The introduction of up-front fees for non-personal FOI requests

The Government was not satisfied  that the 5 year protection for cabinet records was sufficient in terms of creating a space to allow Ministers to engage in full and frank discussion at the cabinet table without fear of their individual views being disclosed at an early date. It took the view that 5 years was short by international standards and that a 10 year time frame was more realistic.

In relation to fees, the Government decided that there should be a modest up-front fee to reflect that there is a real cost to the administration in processing an FOI request and to prevent abuses of the Act which were taking place.  This fee would not apply to personal information and would be reduced for medical card holders. The fee was set at €15, €10 for medical card holders and has not been increased since 2003. As the fee has not been increased since then, the cost in real terms has reduced considerably. The cost of processing an FOI request is estimated by my Department to be about €485.

The 2003 Act included a number of other amendments including stronger protections for the deliberative process and for records relating to international relations and a number of technical amendments to deal with specific problems which had come to light over five years.

It is now almost exactly five years since the FOI Amendment Act came into force. In her review of the implementation of the 2003 Act , the Commissioner reported that public servants were operating the Act in a fair and balanced way.

 While it is difficult to be definitive about trends over a short time-frame, it does seem, in looking at the statistics for FOI requests since 2003, that the average annual level of FOI requests is stabilising at around 11,000 per annum.

The highest number of FOI requests was in 2003 at c.18,000. Some of the reduction since 2003 is undoubtedly  due to the €15 fee for non-personal information though it is unlikely that  €15 or €10, as the case may be, is a serious deterrent to those genuinely seeking information.  The time required to organise the payment may be a more real deterrent. A further explanation for the decrease is that public bodies are now routinely publishing far more information about their activities and making personal information available to citizens to a far greater extent than ever before and this is a trend which will continue.  The Commissioner’s report gives examples of this such as information related to tendering for public service contracts, information on recruitment and promotion selection procedures and others.

The Annual Reports on FOI of the Information Commissioner and of the Minister for Finance contain a wealth of statistical detail on the implementation of the Act over the years across the public sector.  While patterns vary from year to year, we can say that, overall,  requests are divided approximately  70:30 between requests for personal and non-personal information; the great majority of requests, around 80%, are made by members of the public and the percentage of requests granted either in full or in part was 77% in 2007 and 76% in 2006.  

We are here today to talk about  Freedom of Information. But, a very important consequence of the FOI legislation has been the greatly increased access by the public to information outside of formal FOI, to which I have already referred. Indeed, the  FOI Act specifically provides that the Commissioner shall foster and encourage such publication. This of course has been greatly facilitated  by the enormous developments in internet and web-based technology of the past 10 years.

A quick browse through public service websites will reveal the vast amount of information that is available at the click of a mouse. A good example would be the website citizensinformation.ie which provides comprehensive information and links on all aspects of public services and entitlements for citizens in Ireland. The information presented is sourced from a number of different Government Departments and agencies and is presented  in a user-friendly way and in a number of different languages.

When FOI was introduced in 1998, Government Departments were only beginning to develop their own websites. Now, in 2008, Departmental websites have become key information resources for citizens which are proactively managed and customer-focussed. The public service has invested very important resources in information management and our progress in this area compares with the best organisations in the private sector.  Increasingly the internet has become the preferred method of engagement with the public service for many citizens and it has made it possible to facilitate public access to information, probably to a degree that what not even envisaged when the FOI Act was first being drafted.

So, today in 2008, 10 years after the introduction of FOI, we have an information access regime which is firmly embedded in five hundred bodies across the public service. It is robustly supported by the appointment of FOI officers in each public body, the provision of ongoing training for Decision Makers, a system of FOI networks across the different sectors, the Central Policy Unit of the Department of Finance and the Office of the Information Commissioner. During those ten years, there has been a fundamental culture change in the approach to information with the presumption of secrecy being replaced by a presumption of openness and the availability of technology which has allowed the provision of a level of information and customer service that could not even have been imagined  back in 1998. Our understanding of the Act has evolved during those ten years through the decisions of the Information Commissioner and the Courts. Along the way there have inevitably been challenges and difficulties and I have no doubt that the passage of time will reveal further problems requiring attention. In the meantime, we expect the key development in 2008 to be further extension of the FOI Act to approximately thirty more public bodies.

I began this morning by looking back to the Delivering Better Government initiative of 1994 which was the backdrop for the introduction of FOI in 1998. Now ten years on, I would like to finish by saying a few words about where we are today, in 2008, in terms of the public service modernisation programme. 

The modernisation agenda is now firmly established in the public service and the national partnership process.  The current partnership agreement, Towards 2016, ensures continued co-operation with change and modernisation initiatives and builds on previous achievements in areas such as quality customer services, better management of performance, better financial and human resource management, and greater flexibility and openness to change.

The OECD review of the Irish Public Service, which I mentioned earlier and which was published 2 weeks ago, will help us to frame the modernisation agenda into the future. This review, while acknowledging that our reform programme is on the right track, has identified greater integration of the public service as the key challenge. To achieve this, it makes a number of recommendations, including:

  • All public services need to be focussed on delivering the best service to citizens.
  • There is a need for a more integrated Public Service, i.e. the different elements (civil service, local authorities, agencies, etc.) need to work better together. 
  • Rather than the creation of further structures, there is need for a networked approach to working across current structures to allow greater connectivity between different sectors.
  • There should be much greater mobility and flexibility of staff across the public service.
  • A Senior Public Service should be created to provide a single Public Service leadership cadre. This would involve a common system to develop and select potential appointees to top posts across the public service.
  • There must be a move towards a performance focus, with more information being gathered and made available on the outputs and outcomes that have been achieved. (The arrangements already put in place for Output Statements and performance indicators will contribute significantly here).
  • Given the tighter fiscal environment, there is need for greater prioritisation within budgetary frameworks.
  • There is a need for improved governance and performance dialogue in order to address the current disconnects between the central civil service and the wider public service. The Government should establish clear guidelines and criteria for establishing new agencies and for operating existing ones.
  • E-Government must be used more widely to achieve a more citizen centred approach.
  • There should a strong leadership role for the centre of Government

The Government has welcomed the OECD report as providing a basis for further transformation of the Irish Public Service and especially the emphasis on more integration and on a citizen-centred approach. As the OECD acknowledges, the public service has been central to ensuring the conditions for the successful development of Ireland over the past ten years and, equally, it will be central to meeting the challenges which now lie ahead.

As regards FOI, I think we can say that 10 years of implementation of FOI have contributed to improving the accountability of government to the citizen and have transformed the public service culture in relation to disclosure of information from a culture of secrecy to a culture of openness and transparency. In parallel, developments in technology have enabled public bodies to publish a greater degree of information about their functions and activities than ever before and this will continue to increase. Of course there will always be room for improvement and, in this regard, I note, in particular, the Commissioner’s concerns about records management difficulties in certain bodies which needs active examination.

However, as the Commissioner states in her report, FOI has been a success story. I would go further and say that the ten years of FOI have been a good example of how the Irish Public Service can rise to the challenge of embracing and implementing change and that this should augur well for the next decade.

Thank you

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