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Address by Information Commissioner, Emily O’Reilly, on the occasion of the launch of her Annual Report 2010

Good morning everyone, and thank you for taking the time to come to the launch of my Annual Report for 2010. Before taking questions, I would like to speak about some important issues in the Report which deserve some attention.

First, I can disclose with satisfaction that the steady upward trend in the number of FOI requests received by the 500 plus public bodies has continued through 2010. In total, 15,249 requests were received during the year which represents an increase of 7% over the 2009 figure and 20% over the 2008 figure. Of particular significance, is the dramatic increase in the number of requests received by the Department of Social Protection, which have risen by 54% over 2009 and 77% over 2008.I think it is safe to assume that this is strongly related to the economic circumstances of the country and the associated increase in the number of people who find themselves in need of welfare benefit and have difficulty navigating the system. As well, it is evident that there has been a focus, by both the general public and the media, on seeking information which would enhance public debate and assist in developing an understanding of the actions and decisions which led to our country’s current economic woes.

I give some examples in my Report of the type of media coverage based on FOI released records that we saw during the year. Also in my Report, you will find details of some of the formal decisions given by my Office during the year. I have also highlighted the role of settlements and withdrawals in dealing with reviews and I have given examples of situations where we were able to achieve a satisfactory outcome for the applicant, thankfully without a need for a formal decision.

The very difficult times in which we live have resulted in a demand from the general public and the media to understandably place decisions of public bodies under unprecedented levels of scrutiny and to focus on how all public bodies have performed in their key roles and functions. Against this backdrop, it is evident that FOI has a vital role to play in ensuring that an informed public debate can be held on all issues of national importance. It remains a matter of concern that FOI does not apply to many of the public bodies which have had or continue to have a pivotal responsibility in making key decisions affecting the lives of our citizens.

Over recent years, I have often expressed my views on what is required in order to optimise the benefits of FOI in terms of transparency, accountability and just good governance generally. In broad terms, I have proposed that the FOI Act should apply to all public bodies and that the restrictions on the operation of the Act introduced in 2003 should be removed and the punitive regime relating to fees should be overhauled so as not to discourage people from seeking out information. Specifically, I have detailed my concern that the continued exclusion of significant public bodies, such as Nama, the NTMA and the Central Bank denies the general public of its right as taxpayers, who shoulder the burden of the country’s debt, to try to get to the truth as to what happened.

I also wish to express my disagreement with the recommendation in the Report of the Independent Review Panel (also known as the “Wright Report”) entitled “Strengthening the Capacity of the Department of Finance”, which states:

“3.3.3 (10) The Panel strongly supports the public release of substantially more economic analysis by the Department. However, policy advice to the Minister for Finance in the preparation of the Government’s Budget should not be subject to release under Freedom of Information for at least five years”.

I would point out that section 31 of the FOI Act protects the financial and economic interests of the State, including records relating to: rates of exchange or the currency of the State, taxes, revenue, the regulation of banking and insurance, interest rates, foreign investment and property transactions. Section 31 is subject to a public interest balancing test which means that the exemption will continue to apply unless the FOI decision maker finds that, on balance, the public interest is better served by releasing the record than by withholding it.

Furthermore, section 20 of the FOI Act protects the deliberative process of a public body. This means that, in the budget context, records can be withheld until such time as the deliberative process is over and the budget has been decided. This exemption was strengthened in 2003 when a provision was added enabling a Secretary General to certify that a record “contains matter relating to the deliberative processes of a Department of State”. Where this kind of certificate is issued, the record must be refused and there is no possibility of release in the public interest.

I am encouraged by the fact that my views are broadly consistent with the FOI reform measures announced by the Government. I strongly welcome the commitments relating to reform of the freedom of information regime explicit in the recent Programme for Government which states:

“We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions.

We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered”,

and

“We will put in place a Whistleblowers Act to protect public servants that expose maladministration by Ministers or others, and restore Freedom of Information”.

I would urge that these commitments be implemented sooner rather than later. These reforms would constitute important planks in the restoration of openness, transparency and confidence in public administration in Ireland.

One of the reasons why I particularly welcome the commitments of the new Government on FOI reform is that I have found that a large number of bodies, or their core functions which had been covered by the Act’s provisions, have been removed over the years from the scope of the Act. This has been done either by embedding in primary legislation provisions to the effect that FOI does not apply to the body or particular functions of the body or by the transferring of functions previously carried out by bodies covered by FOI to new agencies which are then not brought under the scope of the legislation. Indeed, although some public bodies or their core functions have been removed from the scope of the FOI Act over the years, it is disappointing to note that no additional bodies have been brought within its scope since 2006.

It is totally unacceptable that “removals“ have taken place without my Office having been told or consulted. However, not only has this practice continued, but the case upon which I report in Chapter 2 of my Report, concerning the Medical Bureau for Road Safety, is particularly disconcerting in terms of the circumstances in which its core functions were removed. My Office dealt with reviews concerning two cases involving the MBRS during 2010. In one case, the applicant sought access to all documentation pertaining to the receipt, analysis and certification of urine samples provided by him at a Garda station. In the other case the applicant sought general information concerning the intoxilyser machine, which is used to measure the concentration of alcohol in the breath. When dealing with my Office during the course of these reviews, the MBRS argued that its core functions under the Road Traffic Acts should not be under the remit of FOI, despite the fact that the MBRS was specifically prescribed as a body coming within the remit of the FOI Act under regulations made in 2006.

Much to my astonishment, it inadvertently came to my attention that legislation was enacted, shortly after my reviews were completed, which restricted the application of the FOI Act to records relating to the general administration of the MBRS. Instances such as this, in which public bodies can effectively opt-out of being covered by FOI, seriously undermine the openness and transparency which FOI sought to embed in Irish society and that is why I warmly welcome the commitment of the Government “to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered” by the FOI Act. I have always argued that the existing exemption provisions in the FOI Act provide adequate protection for any sensitive material held by public bodies. Openness and transparency in these matters engender confidence among the population that such importance processes are dealt with in accordance with best practice and fair procedure. I would urge that the bringing of additional public bodies within the scope of the Act be expedited by way of Ministerial Regulation and that the other more complex reforms requiring an amendment Act, should not delay the expansion of my remit to the new bodies.

In view of the ever-reducing resources in the public sector and evidence that the number of FOI requests is increasing, it is timely for public bodies to reflect on how they deal with FOI. In this regard, I again call on public bodies to adopt a mindset of a presumption, as provided in the FOI Act, that the information is to be released and of making more information publicly available, so as to save on ever decreasing resources of the bodies and at the same time engaging with FOI in the spirit in which it was introduced.

Summaries of key decisions I issued during 2010 are set out in Chapter 3 of the Report:

Decisions concerning the Medical Bureau of Road Safety - Case numbers 090073 and 080260, outline how the Bureau effectively claimed that the FOI Act should not apply to records relating to its main functions under the Road Traffic Acts, even though it was specifically prescribed as a body coming within the remit of the FOI Act under regulations made in 2006.

Sunday Times and Department of Finance – Case number 090028, deals with section 19(1) (c ) of the FOI Act which provides for the withholding of records if they contain information for a member of Government for use by him/her primarily for the purpose of the transaction of business of the Government at a meeting of Government – in this case an incorporeal meeting of Government. The records requested related to two meetings held in the early hours of 29/30 September 2008 concerning the introduction of the bank guarantee scheme.

Remuneration of the former Chief Executive of the National Treasury Management Agency – Case number 090149 – deals with the public interest provision of the FOI Act which allows an exemption under section 28, personal information, to be set aside where the public interest is found to support the release of the records. The Department of Finance decided to release the records in the public interest, but the representatives of the former CEO appealed its decision to my Office under section 29 of the Act. It is significant in that the NTMA is not prescribed as a body which comes within the remit of the FOI Act, but the requester sought records concerning the former CEO’s remuneration which were held by the Department of Finance.

I would also like to bring to your attention that my Office continues to publish anonymised versions of its more important formal decisions on the OIC website.

You will find tables of all the statistics in Chapter 4 of the Report together with a commentary on the trends in Chapter 1:

  • As I have already said, 15,249 requests were made to public bodies under the FOI Act in 2010. This is an increase of 7% on the 2009 figure (14,290) and 20% on the 2008 figure (12,672).
  • In 2010, 79% of requests dealt with by all public bodies were either granted in full (60%) or part-granted (19%).
  • The figures for 2010 indicate that the pattern from previous years of lower release rates for the Civil Service (41%) is continuing when compared with release rates in the HSE (71%) and local authorities (57%).There are questions to answer here.
  • The majority of FOI requests are made by ordinary members of the public or representative organisations (75%), while journalists (14%), businesses (6%), staff of public bodies (4%) and members of the Oireachtas (1%) make up the other categories of requester. I should say that the percentages are largely unchanged from last year.
  • The number of requests to the Department of Social Protection has notably risen by 54% from last year and to the Department of Finance by 24% from last year (or a 426% increase from the 2007 figure).
  • During the year, I received 301 applications for review and reviewed 228 decisions of public bodies compared with 235 for 2009.
  • The proportion of cases in which applicants sought a review by my Office and were accepted for review, as a percentage of the total number of requests received by public bodies, dropped to 1.47% from 1.7% in 2009.

I would draw attention to the account in Part II of the Report on my role as Commissioner for Environmental Information (CEI). This is a separate and lesser known role to that under FOI and involves deciding on appeals by members of the public under the Access to Information on the Environment (AIE) Regulations made by the Minister for the Environment, Heritage and Local Government in May 2007. The Regulations transposed into Irish law an EC Directive on access to environmental information.

Public awareness in Ireland of the AIE regime is very low although it appears to be increasing slightly in recent times. The experience of my Office is that the staff of local authorities, Government Departments and those public authorities which hold environmental information do not, in general, have sufficient awareness and training to facilitate members of the public in exercising their rights under the legislation. It is important that Departments and public authorities generally take on a pro-active role, as envisaged in the Directive, of making environmental information available as a matter of course. It is also important that public authorities recognise the broader requirements of the Directive and put in place structures to ensure compliance.

My Office received 23 AIE appeals in 2010 which is an increase of five over the previous year. Summaries of the 10 formal decisions which were issued are set out in Chapter 2. These are also available on our OCEI website. Two cases were deemed to have been withdrawn as settled once the records were released following intervention by my Office. Five cases were withdrawn and a further four appeals were deemed invalid on the grounds that the appeal was premature or an internal review had not been requested.

While most of the appeals arose from requests to local authorities and Government Departments, CIE, Coillte, the Commission for Energy Regulation, EirGrid plc and University College Dublin are among the public authorities whose decisions were appealed.

In closing, I trust that you will find the Report interesting. Perhaps the most fundamental and important development in FOI terms, is the Government’s proposed reforms which are given concrete expression in its Programme for Government. Once implemented, I believe that FOI , a cornerstone of democracy, will be renewed fully and once again function in an entirely effective way, to the benefit of every person, the way it was supposed to work in the first place.

Thank you.

Emily O’Reilly
Information Commissioner