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Open Government: Where are we now?

Introduction

Thank you for the invitation to speak to you this morning.

In 1974 the Government of the day decided to encourage and support the development of Community Information Centres (as they were called originally) around the country. This decision was announced by the late Frank Cluskey TD, then Parliamentary Secretary to the Minister for Social Welfare, at a conference organised by the National Social Service Council - the predecessor of the current Citizens Information Board - on 23 February 1974. That conference went under the title "The Right to Know". While historians these days are not keen on identifying starting points for great movements in history, I am prepared to risk their wrath by saying that this date marks the start of a movement in Ireland towards a style of government that is open, transparent and accountable. But let me add very quickly that this movement is still very much a work in progress and much remains to be done before we can be satisfied with what has been achieved. In fact, it is probably more accurate to say that achieving government that is open, transparent and accountable is a permanent, on-going project and not one with a definable end-point.

What I would like to do this morning is to reflect on what has been achieved since 1974, to recognise that in some respects we have made good progress. But I want to draw attention also to areas where progress has not been good and indeed to areas where we may have gone backwards. Milestones along the way since that year of 1974 include the establishment of the Ombudsman's Office in 1984, the Public Offices Commission (now the Standards in Public Office Commission) in 1995 and the introduction of Freedom of Information legislation in 1998. Over this period also, the CIC movement has grown and developed and the Citizens Information website has established itself as an essential reference point for anyone seeking information on our public services.

What I find particularly interesting is that a movement, which started with the relatively modest demand that citizens should know the rules governing public services and citizen obligations, has grown inexorably into a movement for open government. Those who were hostile to the CIC idea in the 1970s were probably right to be fearful as that movement really was the thin end of the wedge and one which, ultimately, led to the demand for more open government in every single one of its operational areas.

I suspect many of you here this morning will be unaware of how under-developed, indeed almost non-existent, were the information services when the CIC movement began. Today, those of you dealing with social welfare queries, for example, can check the website of the Department of Social Protection and find there all of the detailed operational guidelines, covering every aspect of the Department's business. All the relevant legislation governing social welfare is available either on the Department's own website or on any of a number of other websites, including the on-line Irish Statute Book. You have access to exactly the same information material as do the staff of the Department who decides on social welfare applications. This is the case today not least because of section 16 of the Freedom of Information Act 1997 which places a legal obligation on public bodies to make such information available to the public. However, it was not always thus.

In the 1970s and even later, getting basic information on social welfare and health entitlements, for example, was a real struggle. Getting to see the internal circulars and guidelines of the Department of Social Welfare and of the health boards - or of public bodies generally - was almost unthinkable. Most of you will be familiar with the Supplementary Welfare Allowance (SWA) scheme and will understand that it is a complex enough business even when you have access to all of the same information and guidance as do community welfare officers and appeals officers. When the SWA scheme was put into effect in July 1977, two years following the enactment of the legislation, there was by all accounts a chaotic situation. One of the key complaints made, and reported on extensively in the newspapers at the time, was that information on the new scheme was not available and no attempt was being made to publicise the scheme. An employee of the Women's Aid organisation was reported in an Irish Independent article as commenting, rather acerbically, that "sheep dips get more publicity than the new supplementary scheme, which affects a conservative 30,000 Irish needy, and probably more who would claim if they knew their entitlement".

There was a problem also in that, initially, SWA had no appeals system in place and when one was introduced it was internal to the health boards and did not operate independently of the health boards. An Irish Press article from September 1977 dealt with this issue of the absence of an appeals system and reported the criticism of another frustrated welfare worker that, while the Eastern Health Board had "appointed a person to deal with appeals, claimants have no way of reaching him, and more important, are not even aware that there is even an appeals system". And on a note that still resonates with us today, the Irish Press article (by Stephen Collins, now the Political Editor of the Irish Times) drew attention to the fact that "the new Minister for Social Welfare, Mr. Haughey, can spend £500 on a new shower unit for his Ministerial bathroom, while people in desperate need cannot even get an emergency payment of a few pounds when they most need it". Oddly, what is most surprising about this is that news of the £500 shower unit somehow leaked out from the Department!

The point I am making here, and SWA is just one possible example, is that thankfully we are now living in a world where attitudes and practices have changed dramatically as regards the right to know. I think it is fair to say that most public bodies in Ireland today have a proactive approach to informing the public about their area of activity. And in any case, the Citizens Information website will fill the gap if the public body itself does not.

Another aspect of the right to know is the right to be given proper reasons for any action of a public body which affects one. It is no longer enough to be told that your medical card application has been rejected or that you do not qualify for a carer's allowance or that your Single Farm Payment has been cancelled. Certainly, there has been considerable progress on this front over the past 25 years or so. One of the more long-serving investigators in my Office sometimes tells the following story in order to give younger staff some understanding of what it was like "in the old days".

This was around 1986/1987 and he was dealing with a complaint against a local authority which had refused to pay a House Improvement Grant. However, the local authority had given the applicant a one liner of a reply with no explanation of any kind as to why the application was being refused. When the applicant asked to be told why he was refused, the local authority would not tell him. He then complained to the Ombudsman, Michael Mills, who when he asked for an explanation of the decision was also rebuffed. The Ombudsman investigator went and spoke to the County Secretary of the local authority and asked why the authority was unwilling to explain itself. Eventually, the County Secretary came clean and said: "Look, if we explain to this man why we refused him, he'll only ask more questions and then where will we be?". Fortunately, this kind of response today would be very much the exception and not least because section 18 of the Freedom of Information Act 1997 creates a statutory right to be given relevant information, including a statement of reasons, on any action of a public body that particularly affects the applicant.

At the same time, there are some areas of public administration in which the right to be given the reasons for a decision is problematic. One of those areas is that of welfare payments for people who are ill or incapacitated - such as Illness Benefit or Disability Allowance - or for people providing care to someone who requires extra care and attention - such as Carer's Allowance or Domiciliary Care Allowance. These payments involve an assessment by a Departmental medical assessor as to whether the applicant is unable to work because of illness or disability or, as with Carer's Allowance and DCA, whether the illness or disability of the person in question gives rise to extra needs for care and attention.

It seems that Deciding Officers of the Department of Social Protection invariably accept the opinion of the Department's medical assessor as to whether or not the illness or disability warrants the award of the payment. From complaints I have been receiving in recent times, I am concerned with the lack of information on the Department's own files as to the grounds on which the medical assessor forms his or her opinion in these cases. Bearing in mind that the application must be supported at the outset by a medical opinion from the applicant's own doctor, if the medical assessor rejects this opinion, then the Deciding Officer is put in the position of having to choose between opposing medical opinions. I am not at all sure that the Deciding Officers in these cases actually know why the medical assessor has given a contrary opinion. But I am sure that the applicants, at least in those cases where I have received complaints, are not being told how the medical assessor formed his or her opinion.

This is not just a theoretical issue; there are very practical consequences for the disappointed applicants. If the applicant understands how the medical assessor formed his or her opinion, and knows what information was relied on, then the applicant can make an informed decision on whether or not to appeal that decision. I have had some preliminary contacts with the Department of Social Protection on this matter and I expect some further engagement over the coming months.

Freedom of Information

The Freedom of Information Act 1997, which came into effect in April 1998, marked a very significant advance in our progress towards more open government. As Information Commissioner, my job is to give legally binding adjudications where FOI requests have been refused or only part-granted. It is clear to me that the Act has had a very significant effect on government generally. Certainly, by comparison with the attitudes and practices which prevailed when the CIC movement started in 1974, there has been a dramatic change. I am not going to recount in any detail the extent of these changes except to say that, amongst those bodies covered by FOI, there does seem to be a keen awareness and, indeed a certain acceptance, of the public's right to know. At the same time, this progress is partial and it cannot be taken for granted that it will develop further or that it will even be sustained as it is today.

An observation that applies world-wide - with the possible exception of some Scandinavian countries - is that most Governments actually find it difficult to be open. For those countries which have FOI regimes, there is the ever present risk that the Government will find a way to curtail its operation. In Canada and Australia, countries from which we have borrowed considerably for our own FOI legislation, it has never been plain sailing in terms of giving full effect to their FOI laws. In the United States, which has had FOI at Federal level since LBJ signed the FOI Act into law in 1966, there is no equivalent of the Information Commissioner and there is no appeals system other than through the ordinary courts.

I had the honour in 2006 of speaking in South Africa on the issue of Freedom of Information. The principles underpinning the post-apartheid Constitution of South Africa include the principle that: "Provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government". The South African Constitution incorporates this principle and the country has a strong FOI law known as the Promotion of Access to Information Act 2000. I spoke specifically on the usefulness of having an Information Commissioner office to adjudicate on FOI appeals without the need to have recourse to the courts. I recall that in my talk in South Africa I referred to the risk of FOI laws being curtailed or watered down because Governments are very rarely happy with FOI and the temptation to row back is always strong.

Over the past twelve months or so, it appears that the process of rowing back on FOI in South Africa is at an advanced stage. It appears that the Government there, despite strident opposition, is pressing ahead with the Protection of State Information Bill 2011 which, it is reported, will have a devastating effect on FOI in that country. Those opposed to the Bill argue that it strikes a very unacceptable balance between the legitimate need to protect certain governmental records with the democratic requirements of open government. Opponents say that the Bill fails to recognise the public interest in the release of information and that it will undermine protection for whistleblowers by providing very significant prison sentences (up to 25 years) for leaking documents.

I am not claiming to be an expert on South Africa nor on the merits or otherwise of the Bill currently being debated there. My point is that FOI laws will always be at risk and, if we are advocates of transparency and open government, then we need to be aware constantly that FOI is rarely popular with governments.

And as many of you will know, the Irish FOI Act was curtailed fairly extensively by way of an Amendment Act in 2003. The 2003 amendments included the strengthening of some of the exemptions, particularly those in relation to Cabinet papers and in relation to records dealing with security, defence and international relations. However, the most tangible change related to the introduction of fees when making requests (€15) as well as fees for seeking an internal review (€75) and when making an appeal to my Office (€150) - though there is no fee where the information is solely personal information about the requester. There has been a very marked drop in usage of the FOI Act, in the case of non-personal or "official" records, following the introduction of these fees. For example, prior to the introduction of fees, FOI requests were split evenly between personal and non-personal information; since the introduction of fees, requests for personal information have been proportionally more than three times greater than the number of requests for non-personal information. To give a tangible example: in 2002, the last full year before the introduction of fees, 7,936 non-personal requests were made; for 2011, this figure had dropped to 3,857 requests.

The present Government has committed itself to restoring the FOI Act to what it was prior to the 2003 curtailment and to "extend Freedom of Information, and the Ombudsman Act, to ensure that statutory bodies, and all bodies significantly funded from the public purse, are covered". Indeed, in its Joint Programme, the Fine Gael/Labour Government links public sector reform to a "commitment from the whole of government to become more transparent, accountable and efficient". The Programme promises "open Government" on the principle that "where there is secrecy and unaccountability, there is waste and extravagance". As you might expect, I very much welcome these commitments and my Office is currently assisting the Department of Public Expenditure and Reform in its work on amendments both to the Ombudsman Act and to the FOI Act.

However, there is many a slip twixt the cup and the lip, and it remains to be seen whether the Government's commitments will be met. In the case of FOI, the Act currently does not apply to some of the most significant public bodies and their inclusion really will be a test of the Government’s commitment to open government. Recently, in launching my 2011 Annual Report as Information Commissioner I referred specifically to the current exclusion from FOI of bodies such as the Central Bank, the National Assets Management Agency and the National Treasury Management Agency. It will be interesting to see whether they become subject to FOI as would seem to be promised in the Government's Programme. Of great interest also will be whether or not An Garda Síochána becomes subject to the FOI Act. The continued exclusion of An Garda Síochána from FOI would send a strong signal that the commitment to open government is superficial.

Ireland is virtually unique in Europe in excluding its police force from the scope of FOI law. Research done in 2006, in the context of the proposed Council of Europe Convention on access to official documents, found that of 26 Council of Europe member states examined; only Ireland excludes its police force from FOI cover. Former Eastern bloc countries such as Albania, Bosnia/Herzegovina, Croatia, the Czech Republic, Georgia and Moldova have their police forces subject to FOI; so too do such "older" democracies as the UK (including Northern Ireland), Denmark, Sweden, Germany and Norway. In many cases, not only is the police force subject to FOI but so also is the Secret Service!

Another survey done in 2006, this time at a global level, found that of 70 countries surveyed, the only country which excludes its police force from FOI is Ireland. It is clear from the experience of our near neighbours in Scotland, Northern Ireland and the UK more generally, that FOI has not created any insurmountable difficulties but it has made information on policing much more readily available to the public generally. When the FOI Bill 1996 was being debated in Dáil Éireann, a clear view was expressed from all sides of the House that it was desirable to make An Garda Síochána subject to the legislation from a relatively early date. Fifteen years have elapsed since then and An Garda Síochána remains outside ofFreedom of Information.

I am always conscious in using terms like transparency and accountability that their usage has become so glib and clichéd that they have almost lost their meaning. Nevertheless, transparency and accountability are the yardsticks against which public bodies must be measured when we speak of open government. In the case of An Garda Síochána, it is, according to one well informed commentator, generally a very reluctant participant in theprocess of open government.

Conor Brady is a distinguished former editor of The Irish Times, has written a history of An Garda Síochána and is recently retired as a member of the Garda Síochána Ombudsman Commission (GSOC). In a recent article in his former newspaper, Conor Brady paints a less than flattering picture of the extent to which An Garda Síochána has embraced the need for transparency and accountability intended to be brought about through the establishment of GSOC five years ago. As Brady describes it, following some initial resentment of GSOC by Gardaí, things settled down and good co-operation was achieved in some areas. But, according to Brady, in some of the more important areas of Garda activity, such as crime and intelligence, co-operation has not been good. He describes a relationship where, while there is no outright refusal to co-operate, "[r]ather will there be protracted delay and repeated requests for clarification. GSOC will be asked to justify particular requests or to set out the rationale for its lines of inquiry. Protocols on information-sharing, drawn up as required under the Garda Síochána Act 2005, are thus rendered ineffective." This is the kind of behaviour I must occasionally endure in my own role as public service Ombudsman.

Brady also says: "The fact that gardaí should feel it appropriate to put such challenges to the body which has been set up by the Oireachtas to supervise their conduct is in itself remarkable. A citizen being interviewed by gardaí would get a brusque response if he or she were to attempt to take a similar line." And he concludes his piece with the remark that "[An] Garda Síochána has been a fortress, shut against outsiders, for 90 years. The 2005 Act sought to alter that. But while the Garda establishment seem to be able to accept this in their heads they appear to have difficulty doing so in their hearts."

Reading Conor Brady's article really struck a chord with me. While most public bodies co-operate very effectively with me in my Ombudsman role, there have been a few instances in the past two years where co-operation has been withheld. The bodies concerned are the HSE and the Department of Health and, in truth, it is clear that the lack of co-operation is being overseen by the Department since it, in effect, now controls the Health Service Executive. Like Conor Brady, what I have found most remarkable about this failure to co-operate is that public bodies would feel it appropriate to challenge a body, set up by the Oireachtas, to supervise their conduct.

In an investigation report I published in late 2010 - called ‘Who Cares? An Investigation into the Right to Nursing Home Care in Ireland’ - I informed the Oireachtas that, in my view, the refusal of the HSE and of the Department to provide my Office with material relevant to that investigation amounted to obstruction of a statutory investigation. I pointed out that failure to comply with an Ombudsman requirement to provide information or documentation is a breach of a statutory obligation created under section 7 of the Ombudsman Act 1980.

The material I was seeking had to do with the conduct of High Court actions taken against the HSE and the Department of Health. These are legal actions being taken by or on behalf of elderly people who had failed to be provided with nursing home care by health boards in the past and who, as a consequence, had to avail of private and very expensive nursing home care. The plaintiffs in these cases - and there are still more than 300 sets of proceedings under way - are seeking to be compensated for the costs of the private care. It is known that the HSE and the Department have settled some of these cases out of court with some level of compensation having been paid. For the purposes of my Who Cares? investigation, I had asked to be given general information on the number of court actions in place and on the nature of the claims being made. I had also asked for information on the cases which had been settled to include details of the kinds of settlements made.

Both the HSE and the Department refused to provide information of any kind on these court actions. They even refused to provide information which, in principle at least, is already in the public domain. The Department and the HSE justified this blanket refusal of co-operation on the grounds that I was exceeding my jurisdiction in conducting the particular investigation. They even went so far as to say that I was trespassing on the domain of the Courts and that I was "attempting to influence the outcome of court proceedings". They set out lengthy legal arguments as to why the investigation should not proceed. I answered all of these very serious charges - but to no avail. Incidentally, my investigation report as well as all of the legal correspondence is published on my Office website [http://www.ombudsman.ie].

It is clear that the reason for the extraordinary actions of the HSE and of the Department was a fear that giving my Office information on the court actions would undermine their defence of these actions. Were there to be a court judgment which, in general terms, found that there was a right to compensation for costs incurred arising from the health board’s failure to meet a statutory entitlement to nursing home care, then the potential compensation costs for the State would be enormous.

Clearly, this is a very difficult situation for the HSE and for the Department. But we need to remember the mistakes of the past and avoid making similar mistakes today. In particular, we need to remember the controversy which erupted in 2004 when it was finally recognised by the Minister for Health that the health boards, for at least 28 years, had been imposing illegal charges for nursing home care on medical card holders. The then Minister gave a figure of more than 300,000 people as having been charged illegally. As many of you will know, this ultimately led to the establishment of the Health Repayment Scheme which has now paid out about €600m. If we should learn anything from that controversy, it is that we should face up to any issues of wrong or illegal behaviour by State bodies at the earliest opportunity and that this should be done openly and honestly. Burying one's head in the sand, and hoping the problem will disappear, rarely works.

I am not suggesting that transparency in government should have no limits. It is reasonable, I think, to take the provisions of the FOI Act as setting out the ground rules on transparency. Our FOI Act, particularly in its original enactment in 1997, identifies key areas in which transparency may take second place to the protection of other vital interests. Thus, the FOI Act provides protection for Cabinet records, for the deliberations of public bodies, for personal information, for commercially sensitive information and for the financial and economic interests of the State. Most of these protections, however, are qualified by some kind of overriding public interest test. In the case of the information on the High Court proceedings (which I've been mentioning), its disclosure might legitimately be regarded as posing an adverse threat to the financial interests of the State. Under FOI, material whose disclosure might pose an adverse threat to the financial interests of the State may nevertheless be released where "the public interest would, on balance, be better served by granting than by refusing to grant the request". Thus, if we follow the guidance of the FOI Act, the information on the High Court proceedings should be disclosed where, on balance, the public interest supports its disclosure.

There is a very fundamental public interest at issue here which, I believe, transcends any concern about exposing the State to enormous compensation costs. And I believe this fundamental public interest must prevail even today when the State's financial standing has never been more precarious. This fundamental point is the right of the people to know what's going on in government, how its money is being spent and what liabilities may arise for the State. What has been happening is that some of the litigants in these cases are achieving settlements, public money is being spent on these settlements, and nobody (including members of the Dáil and Seanad) is being given any information on what's going on. Those who have had their cases settled are bound by confidentiality agreements which, at the peril of having their settlements recovered, prevent them from disclosing the settlement details.

We have to question very seriously whether the actions of the HSE and of the Department are, in this instance, serving the best interests of the State and of the people. We need to separate the principle of the public's right to know from the consequence of the State potentially facing a huge compensation liability. If it is the case - as I believe myself is likely- that the State will ultimately face such a huge liability, it will be necessary in present circumstances to find some way to manage this situation in a way which is consistent with protecting the fundamental financial standing of the State. There may be scope for deferred payments or staggered payments or compensation based on some kind of bond redeemable at some future point. There may be some scope within the provisions of the Financial Emergency Measures in the Public Interest legislation to cope with such a scenario. On the other hand, should it be the outcome of a court judgment that there is no generalised compensation liability on the State, that would be a welcome clarification. Above all, it seems to me to be very important that this issue is resolved now, speedily, and in a fully transparent fashion.

In the meantime, there has been no accounting by the Department of Health, or by the HSE, for their failure to deal with a serious problem which has been festering for more than two decades. Neither the Dáil nor Seanad, nor indeed my own Office, has succeeded in achieving this accountability. I think it is a reasonable proposition to say that, had there been proper accountability mechanisms in place, this problem would have been dealt with a long time ago. And there could yet be very serious financial implications for the State arising from the failure to deal with this problem.

I suppose the overall conclusion regarding progress towards open government, in the period since the CIC movement started in 1974, is that quite a lot of progress has been made in the area of immediate interest to CICs and to your National Association. Some good progress has been made by way of the Freedom of Information Act and not least in terms of the change of mind-set it has encouraged within the public service. There remain, however, areas of governmental activity which have largely avoided the Great March of open government. These include An Garda Síochána and the national financial institutions (NAMA, NTMA and the Central Bank) in terms of FOI exclusion. And from an Ombudsman perspective, the very important Justice areas of prisons, refugees and asylum seekers and the administration of the law on "aliens" all remain outside of my jurisdiction as Ombudsman. The exclusion of these important areas from the Ombudsman's jurisdiction is glaringly at odds with the situation in virtually every other country with an equivalent ombudsman system. And again, this is a reflection of the extent to which the influence of the Department of Justice has prevailed for so long.

I think it is legitimate, and not disrespectful to our politicians and Ministers, to keep a watchful eye on the extent to which promises and slogans are matched by action. For my own part, I will be watching (and I hope assisting) with particular interest in relation to the promised amendments to the FOI Act and to the Ombudsman Act. In the case of the HSE and the Department of Health, and the controversy regarding the court proceedings I mentioned earlier, I am encouraged by a recent statement from the Minister for Health. In comments reported recently in the media, the Minister in the context of overall health spending, observed: " Transparency, accountability and fairness: that’s the root of what we’re at." So I'm still hoping!

Thank You.