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Controlling Access: Responding to Political and Administrative Resistance to Access

Introduction

I want to begin by thanking Suzanne Legault, the Information Commissioner of Canada, for inviting me to speak at this conference and for the warm hospitality extended to us all by her Office and the joint hosts, the Canadian Bar Association.

The overall theme of these two concurrent sessions is “Beyond Access: Convergence of Freedom of Information, Proactive Disclosure and Open Government”. In my more cynical moments I sometimes wonder if they ever do converge or when they do, is it just for a brief moment in time before the political and administrative authorities decide that openness and public disclosure are inconveniences that need to be elbowed out of the way? I am especially pleased to address you on the topic of political and administrative resistance to access, not least because although FOI is still relatively young in Ireland, it has received some rough treatment at the hands of the authorities during its 13 formative years. The story of FOI in Ireland makes an interesting case study in itself and touches on many of the issues relevant to this particular session. And to be positive, it is a story which although it may not have a happy ending, it at least holds out the prospect of one; the new Government elected earlier this year has promised to rehabilitate FOI and extend its reach to all publicly funded bodies. Today I will tell that story and focus in particular on the challenges faced by my Office in dealing with the political and administrative systems. But first, let me give you some statistics.

FOI in Ireland: Some facts and figures

Over the past 13 years Irish public bodies have processed 172,000 FOI requests from members of the public, from media people and from business and political interests. On average, 73 per cent of these requests have been granted either in full or in part. My Office has received 6,139 appeals, slightly more than 3.5 per cent of all FOI requests made, over the past thirteen years; of these, 4,748 were valid appeals. Of the valid appeals received, approximately 27 per cent (1,286 cases) have been decided or settled in favour of the appellant, either in full or in part; in approximately 38 per cent (1,807) of cases, the public body decision has been affirmed; in the remaining cases, the appeal was either discontinued or withdrawn.

My Office's appeal decisions have, I believe, set important precedents for FOI decision makers generally and have provided guidance and clarity in areas which are inevitably complex and difficult - areas such as confidence, legal privilege, privacy and state security and intelligence. Just as important is the fact that, arising from the work of my Office, many public bodes now publish as a matter of course information which hitherto would have remained secret or, at best, would have required a specific FOI request in order to acquire it (for example, nursing home and school inspection reports).

FOI, and the related work done by my Office, has contributed significantly to Ireland's polity over the past 13 years. But I am realistic enough to know that there exists a spectrum of opinion on the usefulness and desirability of FOI and the assessment to be made depends on where one sits on that spectrum. I think it is very important to recognise that there are different views on, and attitudes to, FOI in Ireland; to pretend that there is a consensus is actually unhealthy and unhelpful. In 1998, when the Act came into effect, Ireland was among quite a small band of countries - no more than 20 or so - which had national FOI laws; now there are more than 70 countries with national FOI laws (not to mention many large countries which have FOI laws also at state or provincial level). This recent proliferation of FOI laws serves to remind us that the decision on FOI in Ireland, more than 13 years ago, was in fact a brave and progressive decision.

Tensions between FOI and Government

My Office's experience of the past 13 years has, I believe, clarified one fundamental point: that is, that FOI is undeniably political in its impact. The fact that FOI has been the subject of political controversy since the legislation was amended in 2003 should come as no surprise. There was an apparent political consensus within the Oireachtas (Irish Parliament) in 1996/1997 on the need for FOI legislation; indeed, the then Opposition argued that the legislation as initially enacted was too weak. In government since June 1997, the former Opposition then took the view that the legislation was too strong and required to be curtailed. This resulted in the FOI (Amendment) Act of 2003. The international experience with FOI legislation is that its cohabitation with government is generally uneasy. With an agenda to "keep government honest", to ensure political accountability and to discourage corruption, it is easy to see that proponents of FOI may be written off by some in government (including some public servants) as zealots. Furthermore, in practice FOI is irksome and time consuming; FOI-released records sometimes expose government to a level of probing and investigation which is unwelcome or even embarrassing. There is no reason to believe that uneasiness with FOI (to put it mildly) is the preserve of any one political party; rather, parties in power, whatever their complexion, are likely to be cautious in their real attitude to freedom of information. It is also important to recognise the extent to which FOI impacts on the administration and, equally, to recognise the extent to which senior civil servants in particular can influence governmental attitudes to freedom of information.

Sometimes those in government are reluctant to come clean on their real feelings about FOI as the well-known case of US President Lyndon B. Johnson illustrates. In 1966 President Johnson signed the FOI Act into law saying: "... a democracy works best when the people have all the information that the security of the Nation permits." Privately, as we now know, and contrary to the public posture, LBJ was very hostile to FOI and had to be coerced almost into signing the FOI Act into law.

My predecessor Kevin Murphy, in reflecting on his period as Commissioner, has spoken of the "extraordinary change in the Government's attitude to FOI which resulted in the Freedom of Information (Amendment) Act 2003"; he concluded that this change of view, coming from a government which in opposition had argued that the FOI Act 1997 was not strong enough, could only mean that the government had stepped back from the ideal of open government. This is, by any reckoning, a most worrying assessment: coming from someone of the stature and experience of Kevin Murphy (who had decades of experience at the highest levels of government), it deserves very serious consideration.

The Information Commissioner - an Advocate for FOI?

For my own part I am aware of a view that, as a statutory office holder, I should not engage in public discussion on FOI matters in a manner which might be perceived as critical of, or at odds with, the Government. I think this view is based on a misunderstanding. In almost all jurisdictions which have an Information Commissioner (or equivalent) as part of its FOI infrastructure, there is an implicit understanding that the Commissioner's functions include the promotion of transparency and openness in government and that the Commissioner will necessarily engage in public debate, and engage with Parliament, whenever these matters arise. My reporting relationship is with the Oireachtas and, given that decisions on FOI legislation are ultimately a matter for the Oireachtas, it would be remarkable if I declined to offer my views to it. As I understand it, I am charged by the Oireachtas to (amongst other things) champion the cause of FOI and to seek to ensure that our FOI regime actually achieves its objectives. Sometimes this may involve disagreement with government. Ultimately, given the nature of our governmental arrangements, the Oireachtas will generally reflect the views of government; but so be it.

I am sure that FOI has played, and continues to play, a vital role in our democracy. At the same time there is a real danger of complacency regarding the value of FOI as part of that wider set of arrangements which are meant to promote and preserve an open, liberal and democratic society. I think it is only fair to declare that, from my perspective, the 2003 amendments to the FOI legislation marked a step backwards from the commitment to transparency and accountability, and the promotion of open government and an open society, which were the hallmarks of the FOI Act 1997. There is no reason to believe that the concerns about the need for openness and transparency which first prompted our FOI legislation are any less relevant today than they were 13 years ago.

The rationale for FOI is essentially the same in most of the 70 or so countries which now have FOI laws. On the one hand, FOI reflects a rights-based approach where the legislation gives practical and legal effect to the people's democratic "right to know" what is being done by government in the people's name. On the other hand, FOI is generally seen as a governmental hygiene measure, one designed to keep government honest and to discourage corruption.

A clear statement of the value of FOI is contained in the Explanatory Report accompanying the Council of Europe's Draft European Convention on Access to Official Documents:

"Transparency of public authorities is a key feature of good governance and an indicator of whether or not a society is genuinely democratic and pluralist, opposed to all forms of corruption, capable of criticising those who govern it, and open to enlightened participation of citizens in matters of public interest. The right of access to official documents is also essential to the self-development of people and to the exercise of fundamental human rights. It also strengthens public authorities legitimacy in the eyes of the public, and its confidence in them. Considering this, national legal systems should recognise and properly enforce a right of access for everyone to official documents produced or held by the public authorities."

Typically, the objectives of a well functioning FOI regime include:

  • helping to keep government honest and to discourage corruption
  • helping to hold government accountable to the people
  • helping to educate the public about government
  • helping to improve the quality of decision making by public bodies
  • acting as a check on the exercise of power by government and its agencies
  • promoting citizen participation.

In achieving these objectives, FOI regimes recognise that not all records of public bodies are necessarily releasable; in fact, in some instances the release of records may be contra-indicated. Overall, the unifying theme in most FOI regimes is that records should be released where to do so best serves the public interest. Generally, there is a rebuttable presumption that release does best serve the public interest; though the typical FOI Act identifies scenarios (exemptions) in which that presumption may be rebutted. These exemptions in fact generally represent public interest considerations in their own right - for example, the protection of privacy, of confidentiality, of state security, of international relations and of business are all public interest categories. But in many cases these exemptions are subject to a wider public interest balancing test. In effect, the operation of FOI frequently involves a contest between competing public interest considerations - for example, the right to confidentiality versus the right to know how public money is spent - and the decision maker seeks to strike a balance between these competing public interests. Properly operated, FOI decisions should always be in the overall public interest.

In many cases, FOI is introduced because public trust in government has decreased to such an extent that some antidote is needed; and FOI is often seen as that antidote. In the US, its FOI Act of 1966 was enacted in the context of the failure of government to account to Congress for the conduct of the Vietnam War. In Ireland, perhaps the single biggest contributory factor in the drive for FOI legislation was the conclusion of the Beef Tribunal, which made some quite unsavoury findings about the behaviour of certain Ministers and their Departments in relation to the beef industry - favourable treatment given to a particular operator at the expense of other operators and, more particularly, at the expense of the taxpayer.

Having weathered the immediate storm, of course, the temptation is for governments to dismantle or undermine the FOI edifice so recently created. In practical terms, and given the extent to which the FOI concept has become part of the democratic currency both at country level and within international governmental bodies (e.g. within the United Nations and its agencies, the Council of Europe and the European Union institutions), rescinding FOI laws is not a realistic option. But there are many other ways in which governments can, and do, effectively undermine the operation of FOI: for example, by amending FOI laws in a manner which reduces requesters rights; by imposing burdensome fees; by failing to insist that public bodies make decisions within the prescribed time limits. Even in the case of long established FOI regimes, Canada and Australia for instance, there appears to be an on-going tension between FOI and government. It is precisely because of the temptation to row back on FOI that there is a need for a "champion", outside of government, to defend and promote FOI principles.

The Genesis of the FOI Act

By December 1994, when the Rainbow Government of Fine Gael, Labour and Democratic Left took office, its programme included a positive commitment to introduce FOI legislation. This commitment was based on a recognition that "the relationship between Government and the people it serves has been damaged by a lack of openness" and FOI was part of the remedy for this state of affairs. Two years later, in December 1996, the Rainbow Government's FOI Bill was published and it was finally enacted in April 1997. In the meantime, in June 1995 a member of the main opposition party (Fianna Fáil), Senator Dick Roche, had introduced a private member's Freedom of Information Bill to the Senate which was overtaken by the Government's Bill. Interestingly, at the time, Senator Roche and others of his party argued that the Government Bill (which became the FOI Act 1997) was more restrictive, and less radical, than his Bill.

It must also be said, though, that senior public servants were arriving at the same conclusion at about the same time. They had identified the need for fundamental public service reform to make Ireland more competitive and its public services more responsive to customer needs and secured political support for a reform programme. But within the public service there was a growing realisation that public service reform could only be achieved in a context of greater openness and, above all, of accountability. The Co-ordinating Group of Secretaries General of Government Departments, in its 1996 report Delivering Better Government, (which was endorsed by the Government), saw the enactment of a Freedom of Information Act as the key to delivering openness and transparency in Government. It argued that to retain confidence in the institutions of the State there must be a free flow of information between Government and the citizen. The Group saw this information as allowing the State "to remain relevant in the eyes of the citizen and offering an unprecedented opportunity to enhance Ireland's democracy".

The 1997 Act was clearly within the mainstream of FOI regimes internationally, as described above. The sponsoring Minister, Eithne Fitzgerald, spoke of the Act as one which "will turn the culture of the Official Secrets Act on its head" and, while respecting the need to protect certain sensitive areas, the ultimate decision on whether or not to release a record would be "whether the balance of the public interest lies in disclosure or in withholding the information concerned". At a philosophical level, Minister Fitzgerald presented FOI in Ireland as being about shifting, permanently, "the balance of power between the citizen and the state." Within the media, there was a warm welcome for the new legislation which appeared to answer many of the requirements identified by FOI lobbyists.

The 1997 Act was predicated unequivocally on the notion of what best serves the public interest. All of the objectives of the FOI regime - deterring corruption, promoting citizen involvement, ensuring governmental transparency and accountability - are public interest categories.

Our FOI Act does not define the term "public interest" and in this it is in line with most other (if not all) FOI Acts from other jurisdictions. However, the concept has been developed on a pragmatic basis in many of the decisions of the Information Commissioner over the past 13 years. These decisions make clear that the overall public interest is not necessarily to be equated with the interests of government or of any particular public body.

FOI - The Early Years

The FOI Act was enacted in April 1997 with an in-built provision for its commencement one year following the date of enactment. By the date of its commencement on 21 April 1998, there had been a change of government; happily, the new Fianna Fáil/Progressive Democrats Government appeared to embrace the launch of FOI enthusiastically and the "open government" agenda remained on track. Speaking on commencement day, Taoiseach Bertie Ahern made clear that his Government subscribed to those principles which FOI seeks to respect and have applied.

At a function to mark the first anniversary of FOI in Ireland the responsible Minister of State spoke enthusiastically about FOI and, while recognising that it presents (and will continue to present) challenges for government, said that experience in the first year showed that FOI had brought about significant changes in practices, in the direction of greater openness, on the part of public bodies.

This rather positive assessment of FOI was one shared generally by users and commentators alike and the radical nature of our FOI legislation was recognised at an early stage by the Courts. One Supreme Court Judge commented, "the passing of the Freedom of information Act constituted a legislative development of major significance ...[b]y it, the Oireachtas took a considered and deliberate step which dramatically alter[ed] the administrative assumptions and culture of centuries ... replac[ing] the presumption of secrecy with one of openness ...[and] open[ing] up the workings of government and administration to scrutiny".

Not surprisingly, the Information Commissioner was called on to adjudicate on many sensitive issues during the initial few years of FOI in Ireland, most notably, expenses of members of Parliament, public procurement and public service recruitment. And over time, as greater disclosure came about in traditionally sensitive and secretive areas of Government, it became clear that the political system was about to end its love affair with FOI. In 2003, ironically at the point when I came into Office, the Government decided to rein it in.

FOI - A Change of Heart

Undoubtedly, the amendment of the FOI Act in 2003 represented a step back from the commitment to openness, transparency and accountability which was the key factor in the enactment of the 1997 Act. Regrettably, also, the debate surrounding the Amendment Act and subsequently became polarised along party political lines. From a situation in 1995/1996 where all of the parties supported it and the debate centred on whose proposed legislation best served the cause of FOI, the debate since 2003 became divisive and acrimonious.

The Amendment Act was represented, essentially, as the implementation of the recommendations of a High Level Review Group; though in reality the amendments actually made went beyond what this Group recommended. The Review Group consisted of four Secretaries General under the chairmanship of the Secretary General to the Government and, remarkably, conducted its review in secret; it did not seek the views of the public, of any of the parties with a particular interest (such as the media) nor of the Information Commissioner. The review process was the very antithesis of the process which preceded the drafting of the original legislation. The Group members "drew upon their own experiences and the experiences of others of which they were aware, including that of their respective Ministers." The primary urge to amend arose from the fact that, with effect from 21 April 2003, some Cabinet records would have become potentially available under the FOI Act. However, the Amendment Act covered a number of other matters also, pulling back on access to Government records while remaining relatively unchanged in relation to access to personal information.

The amendments which have attracted most attention and comment are those which have had the effect of limiting the potential for public access to records relating to the thought process in and around government actions. The key changes made here included:

  • the potential right of access to records of Government was pushed back to those records created since the commencement of the FOI Act on 21 April 1998 but which are at least 10 years old (five years in the original Act);
  • all Government records (other than those created more than 10 years ago but since 21 April 1998) shall be refused as opposed to may be refused;
  • communications between Ministers relating to a matter before Government are now fully protected; previously, these were potentially releasable provided they did not reveal a statement made at a Government meeting;
  • the protection given to advice for the purpose of Government business was broadened in that the previous exemption required that the record contained information for use solely for the purpose of Government business at a meeting of the Government whereas now it is sufficient that the record be used primarily for this purpose;
  • where appropriate, a committee of officials may be deemed to be "the Government" for the purposes of the Act (the definition of "officials" includes civil servants and special advisers).

Very significant changes were made in the case of records relating to state security, defence and international relations. There is now a mandatory class exemption for records which concern security, defence or international relations of the State or matters relating to Northern Ireland; this eliminates the need for a public body to identify a specific harm caused by release of the particular record. For example, a record containing a communication between a Minister and a diplomatic or consular post must now be refused without reference to the effect (if any) of its release.

Finally, the change with most repercussions for the average user of the FOI Act was the provision enabling the Minister for Finance to prescribe fees for the making of a request for access to non-personal records and for any subsequent application for internal review and or review by the Information Commissioner. Under Regulations made in July 2003 a range of "up front" fees was introduced:

€15 for a request

€75 for an internal review application, and

€150 for an application to the Information Commissioner to review the decision of a public body.

In 2004 I published a report on the impact of these amendments and the introduction of "up front" fees on access requests by members of the public. I found that, of similar jurisdictions, Ireland was almost unique in charging review and appeal fees. I recommended that the policy of charging such fees be reviewed, as did a Parliamentary Committee, but to no avail. Meanwhile, the average number of appeals made to my Office since the introduction of the fees has dropped by 44%. While I acknowledge that other factors may also have influenced this decrease, clearly the effect of the fees has been significant.

Interestingly, the UK Government in 2007 proposed to use cost restrictions as a device to "ration" FOI usage but, in the end, decided against such an approach. As then Prime Minister Gordon Brown explained on 25 October 2007:

"When anything is provided without cost, it does risk being open to abuse. However, the Government does not believe that more restrictive rules on cost limits of FoI requests are the way forward. ... We do this [drop restrictions proposal] because of the risk that such proposals might have placed unacceptable barriers between the people and public information. Public Information does not belong to Government, it belongs to the public on whose behalf government is conducted. Wherever possible that should be the guiding principle behind the implementation of our Freedom of Information Act."

And, as recommended by the OECD in its comprehensive 2008 review of the public service in Ireland - "Ireland: Towards an Integrated Public Service" - the up-front fees for the initial request should be dropped. The OECD report commented:

"The government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free.....While user charges may limit frivolous requests (and thereby reduce burdens on the Public Service), they also serve as a disincentive to greater openness."

The FOI Act and Parliament

My Office's interaction with Parliament has been less than satisfactory as the following episode illustrates. The FOI Act provides that access shall be refused to any record whose disclosure is prohibited, or whose non-disclosure is authorised in certain circumstances, by statute. It also requires that a Joint Committee of both Houses of the Oireachtas must review the non-disclosure provisions in all statutes to ascertain if any of them should be amended or repealed or made subject to release under the FOI Act. As part of this review, Ministers must report to the Joint Committee on all non-disclosure provisions in the legislation within their areas of authority.

Such reports fall due every five years. I presented my opinions and conclusions relating to the 2004 reports to the Joint Committee in December 2005. In appearing before the Joint Committee, I felt that my detailed arguments that certain non-disclosure provisions should be changed were understood and, broadly speaking, accepted. However, when the Joint Committee presented its Report to the Oireachtas, its recommendation, in the case of those non-disclosure provisions on which I disagreed with the relevant Minister, was to support the Minister in each case. Subsequently, it became clear that the whip was applied so that the Committee's vote divided along party political lines. I have commented several times that I found this outcome deeply depressing.

A further round of reports fell due in 2009 but the relevant Parliamentary Committee has yet to engage on the matter. In the light of previous experience, I also hope that this time round, the Joint Committee will find the means to take a more considered view of my submissions.

The New Government's Plans for FOI

And so the wheel has turned full circle. In February of this year a new Coalition Government of Fine Gael and Labour (not very dissimilar from the 1994 Government which sponsored the original 1997 FOI Bill) was elected. Its programme commits it to "restore the FOI Act to what it was before it was undermined by the outgoing Government". It also promises to extend its scope to all publicly funded bodies and to put in place a Whistleblowers Act. Convergence is back on the agenda again. Yes, the same high-minded ideals about openness and transparency have prompted this latest initiative. But it is informed, too, by an aching public demand for more accountability as the Irish people struggle to come to terms with the role of the financial institutions, regulators and government in bringing about the current economic crisis.

I am looking forward to working with government to restore FOI to its rightful position in Irish society.