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Introduction of the Commissioner in the Netherlands

I'd like to thank you first of all for the invitation to speak here this afternoon about Freedom of Information legislation in Ireland and specifically about my role as Information Commissioner. I'd like to preface my few words with a declaration that my presence here should not be taken as an indication that we have a perfect FOI regime in Ireland, one beloved of public, politicians and media alike. It is a long way off that, but it is also a long way off what we had before the Act was introduced 15 years ago this week in April 1998. What he had prior to our enlightenment was the Official Secrets Act of 1963, a draconian piece of legislation that allowed minimal access to official records and which, more importantly, embedded within the public administration a mindset that saw nothing but danger in any attempt to release the stranglehold of Government from what it effectively considered to be its own private and personal business.

Our traditional secrecy stemmed from a number of factors - the historical overhang of the British civil service model that we largely clung to even after independence, the innate conservatism of a heavily Roman Catholic country, and the ongoing and sporadically violent legacy of partition which embedded a culture of fear in relation to the opening up of any Government business, even that business unrelated to security matters. Every country comes to its own Freedom of Information regime by way of political and cultural factors that are unique to that country's history and I have no doubt, as you contemplate these matters, the same applies to the Netherlands.

I should also explain my own dual role as Ombudsman and Information Commissioner. Both posts were created under separate statutes- the first in 1983, the second in 1998 - and they both just so happen to be held by the same individual. I am not an Ombudsman whose remit include access to information as is the case in some jurisdictions such as Norway for example. I am an Ombudsman and I am also an Information Commissioner. As Ombudsman, I make recommendations on complaints that are made to me about alleged maladministration. As Information Commissioner, I make binding decisions which may be appealed to the Courts. The staff of both Offices work independently of each other but do share corporate, IT and other services. I have no role in Data Protection, unlike my Information Commissioner counterpart in the United Kingdom who performs both functions.

The Irish model is a slightly unusual one but the decision to make the Ombudsman the Information Commissioner was taken for a number of reasons. The Office of the Ombudsman had been in existence since 1984 and had established itself in the eyes of the public and of the public administration as effective, independent and impartial. The Government therefore felt that the dual role of Ombudsman/Information Commissioner would give legitimacy to the new Freedom of Information legislation and to the Commissioner role. In addition, the sharing of services and the housing of both Offices under the same roof, would also be financially prudent.

The Minister who championed the legislation also felt that the Act needed an enforcement agent who could make binding decisions rather than recommendations and this was why she stayed away from the model of Ombudsman who simply makes recommendations in relation to the release of documents. While virtually every Ombudsman recommendation has been accepted for the last 28 years, the Minister felt that the culture of secrecy was so embedded within the Irish public administration that the option of rejecting a Freedom of Information recommendation might prove too tempting for some civil servants and politicians. As far as I know the option of not having an Information Commissioner was never considered and again for the same reasons I have just outlined. The culture of secrecy would make it inevitable that records would be withheld because officials might take a very justified gamble that the requester would find it either too expensive or too complicated to go to the courts to seek release.

As in every country, particular events, particular cultures and particular civil society initiatives cued the demand for FOI legislation in Ireland. A number of political and financial scandals in the late 1980s and early 1990s put further pressure on the administration to act and when a new Government was formed in 1994, the introduction of an FOI Act was a core promise of the Programme for Government. The Act finally came into law in 1998 drawing to a quite considerable extent on the Queensland FOI Act of 1992

At the time the Act was widely hailed as progressive even by the standards of similar legislation in comparable jurisdictions. The high minded objectives enunciated for it included the deterrence of corruption, the promotion of citizen involvement , and the ensuring of governmental transparency and accountability.

It wasn't perfect by any means; not every public body is included in it and there are significant gaps such as the Irish police force, the Financial Regulator, the Central Bank and other big financial agencies set up in the wake of the recession in order to manage bad debt. But despite those gaps, it was still hailed as a radical piece of legislation and one which overnight dragged Ireland from the Dark Ages of official secrecy and into the light of power sharing with the people through the release of public information.

The power of the Office of the Information Commissioner was quickly felt with landmark decisions made in the early years which showed how far the reach of the Act could actually extend. The Commissioner has very strong powers, she effectively reviews decisions de novo and public bodies most make all records available to her for decisions. She has the power to enter premises if records are not produced to her.

Within a year, the then Information Commissioner ordered the release of the expenses paid to every member of parliament, stating that this was not personal information but rather a public accounting for the spending of public money. These expenses are now released routinely. On one level, this wasn't particularly important information, but on another level the message it sent out about the underpinning philosophy of the original FOI Act was very stark - that wherever public money was being spent there had to be accountability for that spending. Some of you may be aware of the scandal that took place in the United Kingdom in the wake of a long drawn out battle to have similar records released there. The fallout included resignations and in some cases criminal charges against those who had misappropriated public money.

In 2001, the Commissioner ordered the release of the names of the recipients of various agricultural supports funded by the EU. This is now done routinely, as I understand it, in every EU member state. Details of public tendering processes were also ordered to be released notwithstanding certain commercial sensitivity issues and applicants for public jobs could also get certain records about their performance, such as references, and about the competition generally. The Office also made seminal decisions to release inspection reports on nursing homes, crèches and schools despite much opposition from vested interests. Elsewhere, in records released at initial stage, great light was thrown on all sorts of Government dealings, from plans to build a major sport's stadium, plans which were eventually scuppered when the true costs of the scheme were released under FOI, to private talks with the Catholic Church about the control of schools, to infection rates in hospitals, to the special pleadings of various groups at budget time - a huge light now thrown on behind the scenes events that citizens had previously been largely unaware of.

The number of FOI requests grew significantly in the early years of the legislation. In its first full year of operation, there were eleven and half thousand requests to public bodies, a figure that rose to 18 and half thousand by 2003. Appeals to my Office accounted for roughly 3 to 4 percent of all requests made.

But by 2003, it was clear that the tide was beginning to turn on the Government's love affair with FOI. It was also evident that a number of record releases had been regarded as either embarrassing or, what they considered to be damaging to the proper functioning of Government. The political party, the Labour Party, that had championed the original Act was no longer in power and it had always been clear that its former coalition partner, Fianna Fail who would remain in power for another eight years, had never shared Labour's enthusiasm for the opening up of previously secret Government and public administration files.

So, after a mere five years, the FOI Act was now up for review. A review team was set up consisting solely and exclusively of the five top civil servants in the key Government Departments. Neither the public nor the Information Commissioner were consulted as they went about their work. The Group members said that they simply "drew upon their own experiences and (the) experiences of others of which they were aware, including that of their respective Minister. The net result was a report recommending a radical scaling back of the reach of the original Act and, critically, the introduction of fees.

I won't go into detail about the particular amendments that were made, suffice it to say that the major changes were around access to records at the very heart of Government. Communications between Ministers relating to a matter before Government were now fully protected, Cabinet records were potentially releasable now after ten years and not five - this latter change gave one indication as to why the amendments were being made as records created in 1998 were just at the point of release when the amendment act put a stop to it by putting the release back another five years. Very significant changes were made in the case of records relating to state security, defence and international relations. There was now a mandatory class exemption for records which concern security, defence or international relations of the state or matters relating to Northern Ireland.

Arguably however, the change that cued the most significant damage to the Act in terms of the public ability to access records was the introduction of fees.- 15 euro for an initial request, 75 euro for an internal review of a refusal and 150 euro for an appeal to my Office - a total of 240 euro if the appeal was pushed all the way. Requesst for personal records were still free so it was clear that the Government was intent, not on raising money to cover costs, but on dampening down enthusiasm for accessing records around the business of Government.

And its plan worked exceptionally well. When I reviewed the impact of the fees, one year later, I found that overall usage of the Act had dropped by 50%, requests for public records had dropped by 75% and media usage had dropped by a massive 81%.

And so , for the next seven years or so, roughly the period that coincided with our late lamented economic boom, FOI languished. Calls were made from various groups, both national and international for a reversal of the changes or for the abolition of fees, but the Government refused to change course, not even when the OECD, in a review of the Irish public service recommended that fees be abolished.

Nonetheless, in spite of Government antipathy and public apathy, Ireland throughout those years did become a much more open society. The FOI Act has raised people's expectations of what they were entitled to know as citizens of a democratic state and over time, the Government was forced to put things into the public domain outside of FOI. In 2005 the Supreme Court had ruled against a decision I had made ordering the release of school inspection reports, but such was the demand from parents that their rights should be respected that the inspection reports are now routinely published on the Department of Education website despite the fact , ironically, that a parent has still no statutory right to see them.

And now the FOI tide has turned again and the cue for the latest tidal change was the economic collapse of 2008. Not alone did the media regain its appetite for peeking into Government files, but a rather angry public also demanded accountability. The rates of FOI requests shot up and Government Departments that had handled tiny handfuls of requests in the boom years were now facing a Tsunami. There was particular focus, not just on what had happened in the past, but what was happening now and no expense claim of a politician or a public servant went unpublished.

So, it was hardly a big surprise, that during the General Election of last March, when the Government was unceremoniously cast from power, that most of the political parties made big pledges about their plans for Freedom of Information. The incoming Government pledged to get rid of the 2003 amendments and to make every public body, and every body significantly supported by the public purse amendable to FOI. One year later, a lot of toing and froing has taken place and it will become clear hopefully within the next few months when solid legislation will see the light of day. I am aware that there is still opposition to the inclusion of certain bodies in the legislation but , in public at least, the Government has not pulled back from any of the commitments made in its Programme for Government and I have publicly welcomed that.

In conclusion, I would regard the FOI story in Ireland as a successful one. Despite the curtailing of the Act in 2003, its mere existence cued a major change in the mindset of both the public and of the public administration. The public, and never more so than at this time of recession and austerity, is daily demanding transparency and accountability of its Government, and the public administration has slowly become acclimatised to the idea at least of having to explain its actions to the people that it serves.

And, yes, I still live in the real world and I am aware that FOI does impose burdens but, as I have said on numerous occasions, if there is empirical evidence that it does actual harm to the business of Government than that claim should be forensically interrogated and appropriate changes made if necessary.

I also believe that the Office of the Information commissioner has played an invaluable role in all of this. Public bodies knew that they couldn't refuse records capriciously in the expectation that the high cost of court cases would leave their refusals unchallenged The ability to access an independent, and by and large inexpensive Office to have those refusals reviewed meant much greater compliance with the legislation. Some years ago, at an Information Commissioners conference in Mexico I was asked to take part in a discussion about the pros and cons of having an institution such as an Information Commissioner in an FOI regime. I remember thinking that it would be very difficult to come up with any arguments against and being surprised that FOI regimes existed without such an independent arbitrator. I visited South Africa some years ago where the same issues arose of people being denied access in effect to public records because the courts were the only avenue open to them.

But each country has its own particular political and social culture and each works out its own solution according to its own lights. I am not here to advocate for a particular regime but simply to outline the experience in Ireland. All I will say is that when I told friends and colleagues that I was going to the Hague to talk about this issue, each and everyone of them expressed surprise that a country as traditionally conservative and secretive as Ireland would be talking about these matters in a country that we very much admire and that we hail as as a progressive and liberal beacon at the heart of Europe. I wish you luck with your future deliberations.