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Freedom of Information The First Decade
Office of the Information Commissioner, 18 Lower Leeson Street, Dublin 2.
Tel: (01) 639 5689 Fax: (01) 639 5676
Email: [email protected] Website: www.oic.gov.ie
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Freedom of Information The First Decade CONTENTS
Freedom of Information The First Decade
Contents
INTRODUCTION 2
Chapter 1: FREEDOM OF INFORMATION IN IRELAND 7
Chapter 2: FREEDOM OF INFORMATION MAKES A DIFFERENCE... 17
Chapter 3: INSPECTING NURSING HOMES, CRÈCHES & SCHOOLS 25
Chapter 4: FREEDOM OF INFORMATION - WHAT NEXT? 35
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Freedom of Information The First Decade INTRODUCTION
Introduction
This publication marks ten years of the “Catholic bishops have welcomed the new model [of primary school], operation of Freedom of Information saying it is no longer realistic for their Church to be almost the sole (FOI) legislation in Ireland and ten provider of primary education in Ireland. But the Irish Independent has years of the operation of the Office of the Information Commissioner. learned that they have listed a series of demands in private talks with the Department of Education [...] The Church’s demands are set out in a Over the past 10 years Irish public bod- series of documents released under the Freedom of Information Act.” ies have processed 130,000 FOI requests from members of the public, John Walshe, Irish Independent, 25 March 2008 from media people and from business and political interests. On average, 70 per cent of these requests have been granted either in full or in part. My or regulatory bodies are performing - not to increase taxes on alcohol where Office has received 5,300 appeals, for example, in relation to private nurs- the Health Service Executive had slightly more than 3 per cent of all FOI ing homes, child care facilities and sought such an increase as part of a requests made, over the past ten years; schools - or how our key public services wider public health strategy. It is of these, 4,058 were valid appeals. Of are performing - for example, in relation absolutely the case that FOI has drawn the valid appeals received, approximately to hospital waiting lists or the preva- public attention to, and has prompted 25 per cent (1,015 cases) have been lence of hospital acquired infections or debate on, many issues which prior to decided or settled in favour of the in the conduct of public procurement 21 April 1998 might have remained appellant, either in full or in part; in procedures. And in relation to develop- largely unknown and un-discussed. approximately 41 per cent (1,584) of ing public policy, FOI has helped shed cases, the public body decision has been light on virtually every aspect of public One of the most interesting features of affirmed; in the remaining cases, the policy making - from taxation policy to our FOI Act is the potential to access appeal was either discontinued or with- regulation of the legal professions, and Cabinet records. However, this qualified drawn. from pension planning to fisheries poli- right is confined to Cabinet records cre- cy. One of the most recent FOI-based ated more than ten years (five years in Freedom of information has let the light media stories, at the time of writing, the original Act) after the commence- shine in on many areas of public life deals with discussions between the ment of the FOI Act on 21 April 1998. over the past decade. In the case of per- Catholic Church and the Department of The impact of this provision will sonal information, FOI has been used Education & Science on the issue of become apparent over coming months extensively by individuals to acquire governance arrangements in a new now that the Act has been in operation health records, child care records, indus- model of primary school; it is a mark of for more than ten years. trial school records and personnel and how imbedded FOI has become that job selection records. In terms of know- such records were released, as a matter As regards the work of my own Office, I ing what public bodies are doing on our of course, without resort to external feel we can be pleased with the contri- behalf, FOI has been used extensively appeal. Another recent FOI release to bution it has made, notwithstanding the both by private individuals and by the the media has shed considerable light on frustration endured by many appellants media to see how public inspectorates the decision of the Minister for Finance whose cases have been seriously, if
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Freedom of Information The First Decade INTRODUCTION
“... an Information Commissioner must be an advocate for openness and ment to be made depends on where one t r a n s p a r ency in government ...this is a necessary element of the job - sits on that spectrum. I think it is very whether or not it is reflected in whatever statutory or other instru m e n t important to recognise that there are different views on, and attitudes to, FOI establishes the office. It seems to me that the use of the term ‘Inform a t i o n in Ireland; to pretend that there is a Commissioner’ necessarily implies an advocacy role in support of openness consensus is unhealthy and unhelpful. and transpare n c y. In this sense, the use of the term “Inform a t i o n Commissioner” carries the openness and transparency baggage with it just At the same time it is right that we as much as the use of the term “Judge” carries with it a necessary commit- should celebrate, 10 years later, the coming into effect of an Act which was ment to seeing that justice is done.” truly radical in its consequences. In Emily O’Reilly, address to International Conference of Information Commissioners, 1997-1998, we were among quite a Wellington, New Zealand, 28 November 2007 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 unavoidably, delayed. Unfortunately, vir- would have remained secret or, at best, many large countries which have FOI tually from the outset in 1998, appeal would have required a specific FOI laws also at state or provincial level). numbers exceeded staff capacity and it request in order to acquire it (for exam- This recent proliferation of FOI laws has taken quite some time to recover ple, nursing home and school inspection serves to remind us that the Oireachtas from the case backlogs which built up in reports). decision on FOI, more than 10 years the early years. ago, was in fact a brave and progressive CELEBRATING FOI? decision. Later in this publication we deal in some detail with the way in which I hesitate to use the term “celebrate” in The past 10 years have, I believe, clari- Information Commissioner decisions relation to the past 10 years of FOI in fied one fundamental point: that is, that have promoted major changes of prac- Ireland; not because FOI has been inef- FOI is undeniably political in its impact. tice by public bodies. My Office’s appeal fective or without impact but because The fact that FOI has been the subject decisions have, I believe, set important “celebrate” may carry an inference of of political controversy since the legisla- precedents for FOI decision makers unbridled joy and acceptance and an tion was amended in 2003 should come generally and have provided guidance accompanying reluctance to take a cold, as no surprise. There was an apparent and clarity in areas which are inevitably hard look at what has been achieved in political consensus within the Oireachtas complex and difficult - areas such as these 10 years. I am satisfied that FOI, in 1996-1997 on the need for FOI leg- confidence, legal privilege, privacy and and the related work done by my islation; indeed, the then Opposition state security and intelligence. Just as Office, has contributed significantly to argued that the legislation as initially important is the fact that, arising from our polity over 10 years. But I am realis- enacted was too weak. In government the work of my Office, some public tic enough to know that there exists a since June 1997, the former Opposition bodies are now publishing as a matter of spectrum of opinion on the usefulness then took the view that the legislation course information which hitherto and desirability of FOI and the assess- was too strong and required to be cur-
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Kevin Murphy Ireland’s First Information Commissioner 1998-2003
“I was there, as the White House press secre t a r y, when President Ly n d o n feelings about FOI as the well-known Johnson signed the [FOI] act on July 4, 1966; signed it with language that case of US President Lyndon B. was almost lyrical - ‘With a deep sense of pride that the United States is an Johnson illustrates. In 1966 President Johnson signed the FOI Act into law open society in which the people’s right to know is cherished and guard e d . ’ saying: “... a democracy works best when the people have all the informa- Well, yes, but I knew that LBJ had to be dragged kicking and screaming tion that the security of the Nation per- to the signing ceremony. He hated the very idea of the Freedom of mits.” Privately, as we now know, and Information Act; hated the thought of journalists rummaging in govern- contrary to the public posture, LBJ was ment closets and opening government files; hated them challenging the very hostile to FOI and had to be official view of reality. He dug in his heels and even threatened to pocket coerced almost into signing the FOI Act into law. veto the bill after it reached the White House. ... He relented and signed “the damned thing,” as he called it. ...He signed it, and then went out to My predecessor Kevin Murphy, in claim credit for it.” reflecting on his period as Commissioner, has spoken of the Bill Moyers, former White House Press Secretary, Address to National Security “extraordinary change in the Archive, 9 December 2005 Government’s attitude to FOI which resulted in the Freedom of Information
tailed. This resulted in the FOI serve of any one political party; rather, “...I believe that the main reason (Amendment) Act of 2003. The inter- parties in power, whatever their com- national experience with FOI legislation plexion, are likely to be cautious in their for bringing in the amendments is that its cohabitation with government real attitude to freedom of information. was to protect Ministerial deci- is generally uneasy. With an agenda to It is also important to recognise the sions and more especially the “keep government honest”, to ensure extent to which FOI impacts on the process of making those decisions, political accountability and to discour- administration and, equally, to recognise from public scrutiny. The great age corruption, it is easy to see that pro- the extent to which senior civil servants ponents of FOI may be written off by in particular can influence governmental political slogan of the 1990s - some in government (including some attitudes to freedom of information. Openness, Transparency and public servants) as zealots. Furthermore, Accountability - had become noth- in practice FOI is irksome and time con- On a few occasions I have suggested ing but a shibboleth.” suming; FOI-released records some- publicly that there is a need for an hon- times expose government to a level of est and adult debate on FOI in Ireland. Kevin Murphy, (former Information probing and investigation which is To have such a debate it is essential to Commissioner), in Freedom of unwelcome or even embarrassing. There recognise realities and to avoid postur- Information: Law and Practice, First is no reason to believe that uneasiness ing. Sometimes those in government are Law, 2006 with FOI (to put it mildly) is the pre- reluctant to come clean on their real
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“History has shown that the care and nurturing of the [FOI] Act falls and democratic society. It strikes me largely to Senators and MPs who are not in Cabinet. That is understand- that we are not particularly good in able. Governments of all political stripes find it a challenge to wield Ireland in articulating views on such issues and that, where expressed at all, it power (and keep power) without keeping secrets - or, at least, without is done “for the record” or almost as a maintaining control over the timing and ‘spin’ of information disclo- platitude. It is as if, in the world of sures.” realpolitik, the articulation of views on how to sustain an open, liberal and Annual Report 2006-2007, Canadian Information Commissioner democratic society is, at best, academic or, at worst, simply irrelevant. At a time when we are facing into a period of fur- (Amendment) Act 2003”; he concluded Commissioner will necessarily engage in ther change, both nationally and global- that this change of view, coming from a public debate, and engage with ly, it may be wise to reflect on British government which in opposition had Parliament, whenever these matters Prime Minister Gordon Brown’s recent argued that the FOI Act 1997 was not arise. My reporting relationship is with “Liberty” speech (25 October 2007) strong enough, could only mean that the Oireachtas and, given that decisions where he observed: the government had stepped back from on FOI legislation are ultimately a mat- the ideal of open government. This is, ter for the Oireachtas, it would be “In a world of increasingly rapid change by any reckoning, a most worrying remarkable if I declined to offer my and multiplying challenges - facing for assessment: coming from someone of views to it. As I understand it, I am example a terrorist threat or a challenge the stature and experience of Kevin charged by the Oireachtas to (amongst to our tolerance - democracies must be Murphy (who had decades of experience other things) champion the cause of able to bring people together, mark out at the highest levels of government), it FOI and to seek to ensure that our FOI common ground, and energise the will deserves very serious consideration. regime actually achieves its objectives. and resources of all. It is the open society Sometimes this may involve disagree- that responds best to new challenges ...”. For my own part I am aware of a view ment with government. Ultimately, that, as a statutory office holder, I given the nature of our governmental I think it is only fair to declare that, should not engage in public discussion arrangements, the Oireachtas will gener- from my perspective, our current on FOI matters in a manner which ally reflect the views of government; but amended FOI legislation marks a step might be perceived as critical of, or at so be it. backwards from the commitment to odds with, the Government. I think this transparency and accountability, and the view is based on a mis-understanding. I am sure that FOI has played, and con- promotion of open government and an In almost all jurisdictions which have an tinues to play, a vital role in our democ- open society, which were the hallmarks Information Commissioner (or equiva- racy. Furthermore, I am sure that FOI is of the FOI Act 1997. There is no rea- lent) as part of its FOI infrastructure, here to stay. At the same time there is a son to believe that the concerns which there is an implicit understanding that real danger of complacency regarding first prompted our FOI legislation are the Commissioner’s functions include the value of FOI as part of that wider any less relevant today than they were the promotion of transparency and set of arrangements which are meant to ten years ago. openness in government and that the promote and preserve an open, liberal
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It is for the wider political process, in “If it wasn't for the Freedom of Information Act, the State might now be which we all have a role to play (and locked into a contract to build a national stadium and a range of other not just our elected representatives), to sports facilities on the 500 acre Abbotstown site in North Dublin, expos- determine how our FOI legislation will develop in the years ahead. This publica- ing taxpayers to a bill exceeding euro 700 million...we know all of this, tion, I hope, is a contribution to that and much more, thanks to the Department [of Finance] supplying two wider process. boxes of documents in response to a request in January 2001 from the Irish Times under the Freedom of Information Act.”
Frank McDonald, Irish Times 12 March 2003.
Emily O’Reilly INFORMATION COMMISSIONER MAY 2008
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Freedom of Information The First Decade FREEDOM OF INFORMATION IN IRELAND
Chapter 1: Freedom of Information in Ireland
“Because liberty cannot flourish in the darkness, our rights and f reedoms are protected by the daylight of public scrutiny as much as by the decisions of Parliament or independent judges.”
Gordon Brown, UK Prime Minister 25 October 2007 - Speech on Liberty, Westminster University
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Freedom of Information in Ireland
Why FOI? “The Bill I am presenting is an attempt to restore the confidence of citi- zens through measures which would improve a fundamental civil right. The rationale for FOI is essentially the The term ‘fundamental civil right’ is not exaggerated in this context. As same in most of the 70 or so countries which now have FOI laws. On the one it stands, people’s access to information which is held in public institu- hand, FOI reflects a rights-based tions is seen very much as a privilege, and it is that perception which approach where the legislation gives breeds public suspicion and which is probably responsible for a good deal practical and legal effect to the people’s of the cynicism that exists in this State.” democratic “right to know” what is being done by government in the peo- Senator Dick Roche, Seanad Éireann, 7 June 1995 - speaking on his Private ple’s name. On the other hand, FOI is Member’s Freedom of Information Bill, 1995 generally seen as a governmental hygiene measure, one designed to keep government honest and to discourage uments produced or held by the public public bodies are necessarily releasable; corruption. authorities.” in fact, in some instances the release of records may be contra-indicated. A clear statement of the value of FOI is Typically, the objectives of a well func- Overall, the unifying theme in most contained in the Explanatory Report tioning FOI regime include: FOI regimes is that records should be accompanying the Council of Europe’s released where to do so best serves the Draft European Convention on – helping to keep government hon- public interest. Generally, there is a Access to Official Documents: est and to discourage corruption rebuttable presumption that release does best serve the public interest; though “Transparency of public authorities is a – helping to hold government the typical FOI Act identifies scenarios key feature of good governance and an accountable to the people (exemptions) in which that presumption indicator of whether or not a society is may be rebutted. These exemptions in genuinely democratic and pluralist, – helping to educate the public fact generally represent public interest opposed to all forms of corruption, capable about government considerations in their own right - for of criticising those who govern it, and example, the protection of privacy, of open to enlightened participation of citi - – helping to improve the quality of confidentiality, of state security, of inter- zens in matters of public interest. The decision making by public bodies national relations and of business are all right of access to official documents is also public interest categories. But in many essential to the self-development of people – acting as a check on the exercise cases these exemptions are subject to a and to the exercise of fundamental of power by government and its wider public interest balancing test. In human rights. It also strengthens public agencies effect, the operation of FOI frequently authorities legitimacy in the eyes of the involves a contest between competing public, and its confidence in them. – promoting citizen participation. public interest considerations - for Considering this, national legal systems example, the right to confidentiality ver- should recognise and properly enforce a In achieving these objectives, FOI sus the right to know how public right of access for everyone to official doc - regimes recognise that not all records of money is spent - and the decision maker
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“There is no doubt that the evidence thus far already suggests that dealing with FOI requests takes up a consid- erable amount of staff time. On occasions, the requests are of a wide-ranging and detailed nature that requires many hours of research, and are sent in by lazy journalists, who will not do any work, but who think that we should pay them and give them the information that they want. [...] If, in collating evidence on how the current procedures are working, the Departments discover that reform is needed - and I think they will - it will have to take place. The civil servants are not employed full-time to pursue the requests of enquiring minds. They are supposed to be serving the Departments that they are called upon to serve, and helping those who run those Departments.”
Dr. Ian Paisley, First Minister, Northern Ireland Assembly, 8 October 2007
seeks to strike a balance between these in which governments can, and do, excess or improper seeking of personal competing public interests. Properly effectively undermine the operation of gain or advantage” and, furthermore, operated, FOI decisions should always FOI: for example, by amending FOI would protect civil servants against be in the overall public interest. laws in a manner which reduces improper pressure exerted by Ministers. requesters rights; by imposing burden- (Source: Irish Times, 30 May 1983). At In many cases, FOI is introduced some fees; by failing to insist that public about the same time, also, the Irish because public trust in government has bodies make decisions within the pre- Association of Civil Liberties and the decreased to such an extent that some scribed time limits. Even in the case of Irish Council for Civil Liberties began antidote is needed; and FOI is often long established FOI regimes, Canada to take an interest in the possibility of seen as that antidote. In the US, its FOI and Australia for instance, there appears having an FOI Act for Ireland. Act of 1966 was enacted in the context to be an on-going tension between FOI of the failure of government to account and government. In Northern Ireland, In June 1985 the Oireachtas Joint to Congress for the conduct of the where the UK FOI Act has been in full Committee on Legislation, at the pro- Vietnam War. In Ireland, perhaps the operation since 2005, there are rum- posal of Alan Shatter TD, agreed to seek single biggest contributory factor in the blings already of possible restrictions. It submissions on the desirability of FOI drive for FOI legislation was the conclu- is precisely because of the temptation to legislation in Ireland. While this initia- sion of the Beef Tribunal, which made row back on FOI that there is a need tive appears not to have advanced mat- some quite unsavoury findings about for a “champion”, outside of govern- ters greatly, in October 1985 independ- the behaviour of certain Ministers and ment, to defend and promote FOI prin- ent Senator Brendan Ryan introduced a their Departments in relation to the ciples. private member’s Bill on Freedom of beef industry - favourable treatment Information. At the time, Senator Ryan given to a particular operator at the Background to Irish FOI Act confessed that his hope in introducing expense of other operators and, more the Bill (which did not get past second particularly, at the expense of the tax- Interestingly, one of the earliest sup- stage in the Seanad) was that it might payer. porters of FOI legislation in Ireland was push “government in a direction in the Association of Higher Civil Servants which it might otherwise be reluctant to Having weathered the immediate storm, (AHCS), the union representing the key move”. In 1992 the incoming Fianna of course, the temptation is for govern- grades of Principal Officer and Assistant Fáil/Labour Party government prom- ments to dismantle or undermine the Principal Officer in the Irish civil serv- ised, in its agreed Programme for FOI edifice so recently created. In prac- ice. At its annual conference for 1983, Government, to “consider” FOI legisla- tical terms, and given the extent to the AHCS chairman is reported to have tion; and recently appointed Taoiseach, which the FOI concept has become part supported the enactment of a Public Albert Reynolds, promised in an inter- of the democratic currency both at Information Act which “might dispel view to “let in the light” on Irish socie- country level and within international the mystery and secrecy which often ty. Indeed, this very phrase provided the governmental bodies (e.g. within the surrounded the working of the civil call to arms for the Let in the Light UN and its agencies, the Council of service and would bring a new openness Campaign, founded in 1993 by (as it Europe and the EU institutions), into government”; he is also reported to described itself) “a disparate, small rescinding FOI laws is not a realistic have suggested that such legislation group of journalists, academics, lawyers option. But there are many other ways “would function as a brake against any and trade unionists” whose objective
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“The struggle for freedom of information in Ireland, in all its facets, is a growing realisation that public service key to the process of exposing humbug and hypocrisy and empowering reform could be achieved only in a con- citizens to create a new society, above all a society in John Major’s words, text of greater openness and, above all, of accountability. The Co-ordinating ‘at ease with itself’. That spirit of change was aptly summed up by Albert Group of Secretaries General of Reynolds ... shortly after he was appointed Taoiseach when he promised Government Departments, in its 1996 to ‘let in the light’ on Irish society.” report Delivering Better Government, (which was endorsed by the Let in the Light - Censorship Secrecy and Democracy, Brandon, 1993 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 was to draw together and focus atten- in December 1996, the Rainbow confidence in the institutions of the tion on issues of censorship and secrecy Government’s FOI Bill was published State there must be a free flow of infor- in Irish society. The Campaign was and it was finally enacted in April 1997. mation between Government and the reacting, again in its own words, to the In the meantime, in June 1995 then citizen. The Group saw this information “seemingly never-ending succession of Senator Dick Roche (Fianna Fáil) had as allowing the State “to remain relevant revelations about dubious business prac- introduced a private member’s Freedom in the eyes of the citizen and offering an tices and golden circles” and described of Information Bill to the Seanad which unprecedented opportunity to enhance these and other negative issues it identi- was overtaken by the Government’s Bill. Ireland’s democracy”. fied as “symptoms of a closed society, of Interestingly, at the time, Senator Roche a society that didn’t trust its own people and others of his party argued that the Freedom of Information Act 1997 to make decisions for itself.” The Government Bill (which became the Campaign saw FOI legislation as an FOI Act 1997) was more restrictive, The 1997 Act was clearly within the essential component in any solution to and less radical, than his Bill. mainstream of FOI regimes internation- the societal and governmental practices ally, as described above. The sponsoring which it sought to banish. It must also be said, though, that senior Minister, Eithne Fitzgerald, spoke of the public servants were arriving at the same Act as one which “will turn the culture By December 1994, when the Rainbow conclusion at about the same time. of the Official Secrets Act on its head” Government of Fine Gael, Labour and Within the public service there was a and, while respecting the need to pro- Democratic Left took office, its pro- gramme included a positive commit- ment to introduce FOI legislation. This “Open government goes to the heart of a democratic society. commitment was based on a recognition that “the relationship between Information is power. Freedom of information is about sharing that Government and the people it serves power. [...] Access to information will be a right, not a privilege.” has been damaged by a lack of open- ness” and FOI was part of the remedy Eithne Fitzgerald TD, Minister of State at the Office of Tánaiste, Address to Seminar for this state of affairs. Two years later, on Freedom of Information, 24 April 1996.
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“[The FOI Bill] is a grave disappointment. It is a minimalist, carefully hedged in Bill which, if interpreted in a certain way will make very little practical difference to the administration of this country. The long list of exemptions and cop-out clauses are so vague and imprecise that they can be interpreted as the bureaucracy wishes. [...] A much more radical approach is needed, otherwise there is a grave danger that, despite this minimalist attempt, secrecy and obfuscation will continue to flourish. Whose interests will be served by that?”
Willie O’Dea TD, Dáil Éireann, 11 March 1997 - speaking on the Freedom of Information Bill, 1996 (which was subsequently enacted).
tect certain sensitive areas, the ultimate ensuring governmental transparency and “public interest” and in this it is in line decision on whether or not to release a accountability - are public interest cate- with most other (if not all) FOI Acts record would be “whether the balance gories. The Long Title to the Act, from other jurisdictions. The of the public interest lies in disclosure or which is generally seen as the equivalent Queensland FOI Act of 1992 - on in withholding the information con- of a purposes clause, provides that which our Act draws to a considerable cerned”. At a philosophical level, access to information is to be given extent - does not define the public Minister Fitzgerald presented FOI in “TO THE GREATEST EXTENT POS- interest but it does give some more Ireland as being about shifting, perma- SIBLE CONSISTENT WITH THE guidance than does our own Act. nently, “the balance of power between PUBLIC INTEREST AND THE Section 5 of the Queensland Act specifi- the citizen and the state.” RIGHT TO PRIVACY”. Several of the cally recognises “that in a free and dem - exemptions in the Act - sections 20, 21, ocratic society... the public interest is Within the media, there was a warm 26, 27, 28, 30 and 31 - are themselves served by promoting open discussion of welcome for the new legislation which subject to a public interest override. In public affairs and enhancing govern - appeared to answer many of the require- practice, this means that in the majority ment’s accountability...”. This represents ments identified by the Let in the Light of cases where a request falls to be only one facet of the public interest. Campaign and other FOI lobbyists. refused on the basis of a particular However, the concept has been devel- Writing when the FOI Bill was pub- exemption, there is a requirement to oped on a pragmatic basis in many of lished, Fintan O’Toole of The Irish consider whether that exemption should the decisions of the Information Times concluded: “it looks as if some- be set aside in the public interest. Commissioner over the past ten years. thing genuinely radical is about to hap- Indeed, while it is perceived as an Act These decisions make clear that the pen” while going on to comment: “The which creates a right to information for overall public interest is not necessarily pane of glass behind which John Bruton individuals, and this is the case, in many to be equated with the interests of gov- promised to run the country may remain instances, this individual right is vindi- ernment or of any particular public somewhat misty, but at least the steel shut - cated only because to do so serves the body. ters in front of it seem to be coming up.” public interest. In fact, in these cases it is the public interest primarily which is FOI - Early Years The 1997 Act was predicated unequivo- being served; the individual right is vin- cally on the notion of what best serves dicated only because to do so also serves The FOI Act was enacted in April 1997 the public interest. All of the objectives the public interest. with an in-built provision for its com- of the FOI regime - deterring corrup- mencement one year following the date tion, promoting citizen involvement, Our FOI Act does not define the term of enactment. By the date of its com- mencement on 21 April 1998, there had been a change of government; happily, “The Government must go about its work without excess or extrava- the new Fianna Fáil/PD Government appeared to embrace the launch of FOI gance and as transparently as if it were working behind a pane of glass. enthusiastically and the “open govern- The same holds for national policy.” ment” agenda remained on track. Speaking on commencement day, John Bruton TD, Taoiseach - speaking in Dáil Éireann, 15 December 1994 Taoiseach Bertie Ahern made clear that
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“Government institutions must command the full confidence and sup- port of the people they serve. Otherwise democracy loses out. Members of the public must know that they are seen and respected as stakeholders in government bodies ... All of us have seen the endless problems which arise where the public perceive that government institutions are not accountable and operating instead to their own rules and priorities.”
Bertie Ahern TD, Taoiseach - speaking on 21 April 1998 to mark the commence- ment of the FOI Act 1997
his Government subscribed to those a d d r essed with the establishment by these changes were about anticipating principles which FOI seeks to respect CPU of a Citizens Advisory Group and what information or re c o rds people and have applied. a Business Advisory Group. And for would want to have and pro v i d i n g the public bodies themselves, FOI them without the need to rely on the In the lead-in period (April 1997 - Networks were established on a sec- FOI Act. Examples here included pub- April 1998), a great deal of pre p a r a t o - toral basis. On any reckoning the lication of the Budget-related Ta x ry work was undertaken by p r eparations for, and moniotoring of, Strategy Papers, access to Leaving D e p a r tments both individually and col- FOI in the early years were most C e r tificate Examination scripts, and l e c t i v e l y. Each Department established i m p r e s s i v e . access to submissions made under pub- its own internal FOI Working Gro u p lic consultation processes. It is wort h and, at the wider level, an Inter- The First Anniversary of FOI in saying that, in the meantime, this type D e p a r tmental Working Group had I r eland was marked with a function in of approach has been maintained; to been in place since July 1996. The FOI Dublin Castle hosted by Martin Cullen take a very recent example, the Act, at section 15(5), places the TD, Minister of State at the Commission on Taxation has invited responsibility on the Minister for D e p a r tment of Finance. In his re m a r k s , submissions from interested parties on Finance to ensure that public bodies Minister Cullen spoke enthusiastically the basis that submissions received are a r e equipped to operate FOI in term s about FOI and, while recognising that likely to be published on the of having properly trained staff and it presents (and will continue to pre s - C o m m i s s i o n ’ s website. a p p r opriate organisational arr a n g e - ent) challenges for government, said ments generally. In June 1997 the FOI that experience in the first year showed This rather positive assessment of FOI Central Policy Unit (CPU) was estab- that FOI was serving to: was one shared generally by users and lished within the Department of commentators alike. Writing in his Finance with a brief to assist, advise – uphold and strengthen individual 2001 Annual Report, with four years and oversee arrangements for the citizens’ rights in their dealings of FOI experience under his belt, i n t r oduction and operation of the FOI with the State, I n f o rmation Commissioner Kevin Act. A programme of training for all Murphy asked: “Can it truthfully be D e p a r tments, both familiarisation – deepen democracy by pro v i d i n g said that the introduction of the Act has training and decision-making training, access to information on decision led to a better understanding of the busi - was organised and delivered by CPU in making and administrative ness of government? Have we now a pub - conjunction with the Centre for p r o c e s s e s , lic service which is more accountable, Management and Org a n i s a t i o n m o re open in its dealings with the citizen Development. Subsequently, similar – s u p p o r t and promote public and more willing to explain its actions p r e p a r a t o r y work and training was s e r vice re f o r m . and activities?” The Commissioner u n d e r taken with the local authorities responded himself, saying that “the and health boards in advance of their Minister Cullen pointed out that, even answer to all of these questions is yes, becoming subject to FOI in October after one year, FOI had brought about albeit a qualified yes.” The 1998. From the outset, also, consulta- significant changes in practices, in the Commissioner was satisfied that “c i t i - tion on the operation of FOI and d i r ection of greater openness, on the zens are now better informed than ever monitoring of actual perf o r mance were p a r t of public bodies. Intere s t i n g l y, b e f o re about how government works and
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“This Bill does not seek to amend all areas of the system or those which per- tain to the media. It examines what is enshrined in the Constitution with re g a rd to the collective responsibility of Cabinet to deliver the process of gov- e rnment. ... There are a few other technical areas which also fall to be consid- e red. The principles involved are features of legislation world-wide and I see nothing wrong with what we are doing. [...] There were no changes whatso- ever in the other aspects of the Act because the main principles of the Act are not being changed. We were looking at Cabinet collective responsibility and deliberative process because that process has been damaged in the past five years. We are trying to protect that process. It is a constitutional process and it should be protected.”
Bertie Ahern TD, Taoiseach, Dáil Éireann, 11 March 2003 - speaking on the Freedom of Information (Amendment) Bill 2003
how decisions are made” and that the by public bodies...”; he went on to say F r eedom of Inform a t i o n c u l t u r e within public bodies was that the “purpose of its enactment was to (Amendment) Act 2003 c h a n g i n g “to one where they are more c reate accountability and transpare n c y c o m f o r table in dealing openly with their and this to an extent not here t o f o r e con - U n d o u b t e d l y, the amendment of the clients and citizens in terms of explain - templated let alone available to the gen - FOI Act in 2003 re p r esented a step ing their actions and activities.” His eral public.” Mr. Justice McKechnie back from the commitment to open- reason for giving a “qualified yes” to f u r ther described FOI as “on any view, ness, transparency and accountability his own question was that the pace of a piece of legislation independent in which was the key factor in the enact- change, and of FOI compliance, was existence, forceful in its aim and liberal ment of the 1997 Act. Regre t t a b l y, uneven. The Commissioner was con- in outlook and philosophy.” also, the debate surrounding the c e r ned that some public bodies were S u b s e q u e n t l y, the Supreme Court Amendment Act and subsequently has reluctant to embrace change while oth- endorsed these views generally with become polarised along party political ers, which had been enthusiastic in Fennelly J. in particular commenting lines. From a situation in 1995-1996 their approach, might “now be begin- [in his minority judgment in Sheedy v. w h e r e all of the parties supported it ning to feel symptoms of FOI fatigue The Information Commissioner & Ors. and the debate centred on whose pro- in terms of re s o u r ces”. What was clear (2005) IESC 35]: “the passing of the posed legislation best served the cause f r om the Commissioner’s assessment F reedom of information Act constituted of FOI, the debate since 2003 has was that, while a very good start had a legislative development of major sig - been divisive and acrimonious. been made with FOI in Ireland, it was nificance ...[b]y it, the Oireachtas took a vital that this pro g ress be sustained and c o n s i d e red and deliberate step which The Amendment Act was re p r e s e n t e d , e x t e n d e d . dramatically alter[ed] the administra - e s s e n t i a l l y, as the implementation of tive assumptions and culture of centuries the recommendations of a High Level The radical nature of our FOI legisla- ... replac[ing] the presumption of secre c y Review Group; though in reality the tion was recognised at an early stage by with one of openness ...[and] open[ing] amendments actually made went the Courts. Decisions of the up the workings of government and beyond what this Group re c o m m e n d - I n f o r mation Commissioner carry a administration to scru t i n y ”. ed. The Review Group consisted of right of appeal, on a point of law, to four Secretaries General under the the High Court; and in their judg- Not surprisingly, the Inform a t i o n c h a i r manship of the Secre t a r y General ments on these appeals, judges of the Commissioner was called on to adjudi- to the Government and, re m a r k a b l y, High Court have on occasion re f l e c t e d cate on many sensitive issues during conducted its review in secret; it did on the nature and significance of the the initial few years of FOI in Ire l a n d . not seek the views of the public, of any FOI legislation. One of the first to do Some of these issues, and the impact of of the parties with a particular intere s t so was Mr. Justice McKechnie, in D e e l y the Commissioner’s decisions in re l a - (such as the media) nor of the v. The Information Commissioner tion to them, are dealt with in some I n f o r mation Commissioner. The re v i e w (2001) IEHC 91, where he comment- detail later in this publication. p r ocess was the very antithesis of the ed in relation to the FOI Act that “i t s p r ocess which preceded the drafting of passing, it is no exaggeration to say, the original legislation. The Gro u p a f fected in a most profound way, access members “d rew upon their own experi - by members of the public to re c o rds held ences and experiences of others of which
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they were aware, including that of their “I suggest that we lay a report before the Dáil as quickly as possible say- respective Ministers.” The primary urg e ing that the High Level Group has appeared before the committee, has to amend arose from the fact that, with acknowledged that its input into the overall legislation was minor, has e f fect from 21 April 2003, some Cabinet re c o rds would have become endorsed the Information Commissioner's presentation and has support- potentially available under the FOI ed him in what he said. The report should also comment on the NUJ, Act. However, the Amendment Act the newspapers’ association and the other organisations which appeared c o v e r ed a number of other matters today” also, pulling back on access to G o v e r nment re c o r ds while re m a i n i n g Seán Fleming TD, Chairman, Joint Committee on Finance and the Public Service, relatively unchanged in relation to 19 March 2003 - following the Joint Committee's consideration of the Freedom of access to personal information. Information (Amendment) Bill 2003
In the period March-April 2003 when the Amendment Bill was being dealt with in the Dáil and Seanad, the pro- identified in the legislation which the – all Government re c o rds (other posed amendments drew a great deal Joint Committee agrees will need furt h e r than those described immediately of reaction both inside and outside of significant amendment”. However, the above) s h a l l be refused as the Houses of the Oireachtas. The additional time sought did not materi- opposed to may be re f u s e d ; Amendment Bill was the subject of dis- alise and, with the exception of some cussion over several days at the Joint p r ovisions in relation to personal infor- – communications between O i r eachtas Committee on Finance and mation, the Bill was enacted. Ministers relating to a matter the Public Service with written and b e f o re Government are now fully oral submissions being made by a wide The amendments which have attracted p rot ected; pre v i o u s l y, these were range of bodies, including by the most attention and comment are those potentially releasable pro v i d e d I n f o r mation Commissioner, the which have had the effect of limiting they did not reveal a statement National Union of Journalists, the the potential for public access to made at a Government meeting; National Newspapers of Ireland gro u p , re c o rds relating to the thought pro c e s s the One in Four organisation, the Irish in and around government actions. – the protection given to advice for Council for Civil Liberties and others. The key changes made here included: the purpose of Government busi- Vi r tually all of the external submissions ness was broadened in that the w e r e, to a greater or lesser extent, criti- – the potential right of access to p revious exemption re q u i r ed that cal of the contents of the Amendment re c o rds of Government was the re c o r d contained inform a t i o n Bill. Following these deliberations, the restricted to those re c o rds cre a t - for use s o l e l y for the purpose of Joint Committee sent a statement to ed since the commencement of G o v e r nment business at a meet- the Dáil saying significant changes to the FOI Act on 21 April 1998 ing of the Government where a s the Bill would be re q u i r ed and asking but which are at least 10 years now it is sufficient that the for additional time in which to consid- old (five years in the original re c o rd be used primarily for this er it “as important areas have been A c t ) ; p u r p o s e ;
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– w h e r e appropriate, a committee p a r ticular re c o r d. For example, a of officials may be deemed to be re c o r d containing a communication – E15 for a re q u e s t “the Government” for the pur- between a Minister and a diplomatic or poses of the Act (the definition consular post must now be re f u s e d – E75 for an internal review appli- of “officials” includes civil ser- without re f e rence to the effect (if any) cation, and vants and special advisers). of its re l e a s e . – E150 for an application to the Significant changes were made also in F i n a l l y, the change with most re p e rc u s - I n f o r mation Commissioner to the case of re c o r ds which capture the sions for the average user of the FOI review the decision of a public advice, opinions, consultations and Act was the provision enabling the b o d y. negotiations leading up to decision Minister for Finance to prescribe fees making by public bodies. The key for the making of a request for access The impact of the “up front” fees, in changes in this area are : to non-personal re c o rds and for any p a r t i c u l a r, has been very significant. As subsequent application for intern a l the Table below shows, there has been – w h e r e appropriate, the Secre t a r y review and or review by the a major drop in FOI usage since 2003 General of a Department of I n f o rmation Commissioner. Under and this is primarily attributable to the State, may certify that part i c u l a r Regulations made in July 2003 a range imposition of fees: re c o rds form part of the deliber- of “up front” fees was intro d u c e d : ative process of a Govern m e n t D e p a r tment and this cert i f i c a t i o n e f fectively puts these re c o rd s beyond the scope of FOI; TEN YEARS OF FOI: 1998-2007 – re c o rds can be protected fro m Ye a r Requests I n t e r nal Review Appeals Accepted by release if they relate to the delib- - to Public Bodies A p p l i c a t i o n s I n f o rma tion Commissioner - to Public Bodies - excluding invalids erations of a n y public body as opposed to t h e public body the 1998 3,699 458 179 subject of the re q u e s t . 1999 11,531 1,107 443 2000 13,705 919 422 Ve r y significant changes were made in 2001 15,428 1,274 387 the case of re c o r ds relating to state s e c u r i t y, defence and international re l a - 2002 17,196 1,755 585 tions. There is now a mandatory class 2003 18,443 1,580 922 exemption for re c o rds which concern 2004 12,597 783 333 s e c u r i t y, defence or international re l a - 2005 14,615 581 285 tions of the State or matters relating to 2006 11,804 706 254 N o r t h e r n Ireland; this eliminates the need for a public body to identify a 2007 10,704 592 248 specific harm caused by release of the TOTAL 129,722 9,755 4,058
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In particular, the imposition of fees has “I have been requested by the Joint Committee to advise you that the impacted negatively on the use of FOI Joint Committee during a discussion subsequent to its meeting on the by journalists. In the early years of FOI, Annual Report of the Information Commissioner 2004 on 13th July, media requests typically accounted for 15 per cent of all requests made; the 2005, agreed unanimously that the cost of instigating a Freedom of highest level of media usage was in Information denial appeal to the Information Commissioner was exces- 2001 when 20 per cent of FOI requests sive. In particular, where such an appeal was successful, the fee should be came from journalists. Following the refunded. The Joint Committee agreed that I ask that you have the mat- introduction of fees in July 2003, the percentage of FOI requests coming ter addressed by way of legislation at the first available opportunity.” from journalists in 2004 dropped to 6.9 per cent; to 6.5 per cent in 2005; up to Seán Fleming TD, Chairman, Joint Committee on Finance and the Public Service - 10 per cent in 2006; and down to 8 per letter of 22 September 2005 to Brian Cowen TD, Minister for Finance cent in 2007. In terms of actual figures, journalists made 3,123 FOI requests in 2001 but made only 885 requests in ing to have “the matter addressed by this [drop restrictions proposal] because of 2007. However, FOI remains a signifi- way of legislation at the first available the risk that such proposals might have cant media source and our newspapers, opportunity”. At the time of writing, placed unacceptable barriers between the radio and TV regularly carry almost three years later, the FOI fees people and public information. Public stories/pieces based on FOI-acquired regime remains unchanged. Information does not belong to information. Government, it belongs to the public on Interestingly, the UK Government in whose behalf government is conducted. In 2005, two years following their 2007 proposed to use cost restrictions Wherever possible that should be the guid - introduction, the Joint Oireachtas as a device to “ration” FOI usage but, ing principle behind the implementation Committee on Finance and the Public in the end, decided against such an of our Freedom of Information Act.” Service considered the impact of fees on approach. As Prime Minister Gordon the operation of the FOI Act. The Brown explained on 25 October 2007: Committee took the view that the fee for an appeal to the Commissioner is “When anything is provided without cost, “excessive” and, in any event, recom- it does risk being open to abuse. However, mended that the fee be refunded where the Government does not believe that more the appeal is successful. The Committee restrictive rules on cost limits of FoI wrote to the Minister for Finance seek- requests are the way forward. ... We do
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Chapter 2: Freedom of Information Makes a Difference...
“It is clear that any right of privacy in this area [TD’s and Senators’ expenses] has to be greatly circumscribed by one essential component of the public good viz. accountability for the use of public funds in a democracy. T h e re are existing mechanisms designed to ensure accountability in relation to the expenditure of public funds ... On a general level, I do not accept that the existence of current safeguards in relation to public e x p e n d i t u re means that there is no public interest in c reating further safeguards. The very existence of secre c y c a r ries with it the scope for abuse. In contrast, openness in relation to public expenditure is an import a n t additional safeguard against abuses of all kind. I consider that the public interest in openness about public e x p e n d i t u re is of very great significance.”
Information Commissioner Decision, Case No. 99168 - 27 July 1999
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Freedom of Information Makes a Difference...
At an academic level, it is easy to see “Hundreds of former inmates of the [industrial school] system have that FOI is intended to promote open- availed of their rights under the 1997 Freedom of Information Act, and ness, transparency and accountability are now demanding access to any records which the Department [of (OTA) in government. But to give real life to OTA, it is instructive to look at Education] holds on their own individual cases.” hard everyday examples of how FOI, supported by the decisions of the Mary Raftery & Eoin O’Sullivan, Suffer the Little Children - The Inside Story of Information Commissioner, has actually Ireland’s Industrial Schools, New Island, 1999 [p.330] made OTA more of a reality than, per- haps, many people will realise. For some, FOI has brought about a very decision; in each case, the decision is Oireachtas Members’ Expenses - Case belated degree of openness: since 1998 published on the Information No. 99168 several thousand former industrial Commissioner’s website school inmates have used FOI (and,
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of public funds greatly outweighed any “Unlike in Ireland, where details of TDs’ expenses are regularly re v e a l e d right to privacy which Oireachtas mem- under the Freedom of Information Act, in Brussels the authorities refuse to bers might have in relation to these detail the public money spent by MEPs. Last week, the EU ombudsman ... claimed expenses. renewed his call on the parliament to publish MEPs’ expenses, insisting it As a result of the Information would boost democracy in the EU. But a bureau of 15 senior MEPs wro t e Commissioner’s decision, the Office to him last week rejecting his recommendation. They argued in a letter that (now the Houses of the Oireachtas revealing their expenses could infringe the privacy of MEPs’ assistants, and Commission) has released such expense publishing details of travel expenses could enable people to draw conclusions details whenever sought under FOI; and it is now relatively standard practice that ‘as to the political activity of the member as well as his/her sources of infor- such details are published in the media m a t i o n ’ . ” as a consequence. However, the Houses of the Oireachtas Commission has not Jamie Smyth, Irish Times, 11 March 2008 yet taken the next logical step of pub- lishing such details, as a matter of course, on its website. At its inaugural details of taxi expenses were withheld. Information Tribunal by the House of meeting on 2 February 2006 the The Scottish Commissioner directed the Commons. The Information Tribunal Commission “unanimously agreed in release of the withheld taxi expenses and ordered the release of the details sought principle to the publication of members’ the particular MSP resigned subsequent- and it appears the House of Commons expense details on a regular basis”. At ly because of his having claimed expens- proposed to appeal this decision to the its second meeting, on 23 February es incurred for party business as High Court. At the time of writing, it 2006, the Commission further decided opposed to constituency business. The appears that the appeal to the High that expense details should be published Parliament then adopted the practice of Court will not go ahead and that, in on its website for each parliamentary publishing MSP expenses on its website effect, the principle (that MP expenses session (three times annually). However, and this, it is reported, has had the should be released) has been accepted. at it third meeting (23 March 2006) the effect of dramatically reducing the level Equally controversial is the fact that, at Commission “decided not to proceed of expenses claimed. the time of writing, the European with the prototype” developed and it Parliament is resisting the recommenda- appears the matter has not been pro- The release under the UK’s FOI Act of tion of the European Ombudsman that gressed since. the expense claims of Westminster MPs details of the expenses claimed by indi- has been proving somewhat controver- vidual MEPs should be made public. In 2005, his first year of operation, the sial. The UK Information Commissioner Scottish Information Commissioner has made a number of decisions in this EU Farm Payments - Cases No. 99591, dealt with a similar issue in relation to area in favour of requesters. One of 99594, 99596, 99598, 99606 the travel expenses of an individual these decisions, dealing with details of Member of the Scottish Parliament claims (under the heading of Additional In 2001 the Information Commissioner (MSP); while the MSP’s travel expenses Costs Allowances) made by a number of affirmed the decision of the Department generally were released under FOI, MPs, was appealed to the UK’s of Agriculture & Food to release the
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“I do not accept that true accountability for the use of public funds can Public Procurement/Tendering - Cases be achieved through disclosure of expense details on an anonymous No. 98049, 98056, 98057 basis. In my view, the release of information about significant payments In 1999 the Information Commissioner by public bodies to business firms, sole traders, or individuals should be gave the first in a series of decisions the norm unless it would involve the disclosure of personal information which set out an approach to the right and the consequential intrusion on the privacy of the recipients would of access, under FOI, to the details of outweigh the benefits of openness and transparency.” public procurement competitions con- ducted by public bodies. The decision Information Commissioner Decision, Cases No. 99591, 99594, 99596, 99598, concerned the right of access to docu- 99606, 27 November 2001 mentation relating to a tender competi- tion for army vehicles conducted by the Office of Public Works (OPW). Three of the four successful tenderers appealed the OPW decision to release the Order names of the recipients of the top 10 Following on from this Irish decision, a Form relevant to each part of the tender payments under various agricultural sup- similar approach to disclosing EU farm containing the successful tenderer’s ports funded by the European Union. subsidies was taken by a number of name, the tender price and the number The cases came on appeal to the other member states. And in Marc h and type of vehicle involved. The Commissioner from five of the farmers 2008 the European Commission Commissioner found that while some of affected by the Department’s decision announced that full details of all EU the information at issue might be com- who argued that release of the informa- agricultural and rural development pay- mercially sensitive, and thus potentially tion was an unwarranted invasion of ments will be published from 30 April exempt, the final decision came down to their right to privacy. While the 2009 on nationally-managed websites. the application of a public interest test. Commissioner did not accept that the The details to be published will include Having examined the public interest, farmers’ dealings with the Department “the full name, municipality and, where the Commissioner found that the were necessarily confidential, or that the available, postal code of every re c i p ient”. advantages in terms of openness and information was necessarily personal information, he nevertheless based his decision on the public interest test, “This is taxpayers’ money, so it is very important that people know where which was the approach taken by the Department. The Commissioner it is being spent. Transparency should also improve the management of endorsed the Department’s view that these funds, by reinforcing public control of how the money is used. accountability is best served where there Only in this way can we guarantee an informed debate about the future is openness about the recipients of pub- of the Common Agricultural Policy. This level of transparency is some- lic funds and the amounts paid, particu- thing both we and the European Parliament have been pushing for ...” larly where the sums of money involved are relatively large. Mariann Fischer Boel, EU Commissioner for Agriculture and Rural Development, Press Statement, 19 March 2008
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accountability of disclosing the tender meantime, public tendering is now con- been disclosed to the governing authority prices outweighed any possible harm to ducted on an assumption that the iden- of the public body, to the Government the tenderers, or to the tender process, tity of the successful tenderer, as well as Department with which the public body and that the public interest was better its pricing structure and all criteria rele- has a reporting relationship, nor appar - served by disclosing the information vant to the ultimate cost to be borne by ently have the details come under scrutiny sought. the public purse, will be disclosed after in the context of external audit.” The the event. Indeed, most invitations to key exemptions relied on by the Board The Commissioner explained his deci- tender in the public sector now inform each carried a public interest override sion in the following terms: prospective tenderers that such details and the Commissioner decided that, are likely to be released under Freedom even if these exemptions were to apply, “I consider that the public have an inter - of Information. The doomsday scenario they should be set aside in any event in est in establishing how much the govern - anticipated by one of the successful ten- the public interest. In her decision, the ment is spending on commodities and derers has not come to pass! Commissioner observed: from whom they are purchased and at what cost. ... The public interest firmly Financial Settlement with Employee - “While it is important that the Board is favours the release of information of this Case No. 000528 free to exercise its functions without kind. The public have a right to know who undue interference, the Board should be supplies the government, what commodi - The Commissioner took the same aware that the financial implications of ties are provided and at what price they approach, in principle, where a public the settlement terms are borne ultimately are obtained. While it must certainly be body entered into what purported to be by the taxpayer. Where settlements reached acknowledged ... that the tendering process a confidential financial settlement with by public bodies involve significant finan - currently in place is the subject of audit an employee who had taken legal pro- cial outlay, there is a very strong public in the expenditure of public monies both ceedings against the public body. The interest in members of the public being by Irish bodies and by the EU, it cannot case concerned a medical consultant aware of the terms of the settlement and be denied that this is the minimum employed by the North Eastern Health being able to satisfy themselves that the set - required in an open democracy. The sys - Board who had been placed on adminis- tlement represented a fair outcome to the tems in place in auditing are generally trative leave following a dispute with the dispute. In my view there is a public provided to protect against fraud. This Board. The consultant’s legal action was interest in the public knowing the full does not however, make the system fool - settled out of court when the Board extent of the cost of the settlement terms. proof or obviate the need to ensure that made a financial settlement with him. Ultimately, it is the tax-payer who is pay - the system is as transparent as possible.” The Board refused a FOI request from a ing.” journalist who sought details of the set- In the course of the appeal, one of the tlement terms. This was a case in which, Recruitment Procedures for Public successful tenderers put forward the as the Commissioner described it, “the Jobs view that “[i]f the norm for the Office CEO of a public body and a senior mem - of Public Works is to release such infor- ber of staff of that body have agreed to set - The need for transparency in recruiting mation, soon nobody will tender tle a dispute on terms which are substan - public employees has been a long-stand- whether invited to or not and the Office tial from the public body’s point of view. ing concern for the Irish state. The of Public Works will suffer”. In the The details of that settlement have not establishment of the Civil Service
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Commission (1924) and the Local “I have dealt with a number of reviews where access was denied to inter- Appointments Commission (1926) was view notes and other material relating to the requester’s participation in based on a desire to ensure that public interviews or competitions for public service jobs ... A common theme employees would be recruited by an independent agency on the basis of abil- running through most such cases is the inability of the candidate to ity rather than on the basis of political understand why he/she was not successful. This often leads to a suspi- or other patronage. It is generally cion that the result was unfair; that there was an element of bias, whether recognised that this approach, now the conscious or not, in the selection procedure or that a mistake has been mandate of the Commission for Public Service Appointments and the Public made.” Appointments Service, has provided assurance as to the overall integrity of Information Commissioner Annual Report, 1998 the public recruitment process. However, the independence of the process does not necessarily ensure that it is free of bias or error. A series of decisions by the Information tion. The Office of the Civil Service viewers. Neither was he convinced that Commissioner has dealt with some pro- Commissioners (CSC) refused access on the likelihood or scale of potential chal- cedural practices which, when applied at the grounds that members of interview lenges was such as to significantly affect the level of the individual applicant, boards understood their deliberations to the ability to recruit effectively. leaves the process open to a charge of be confidential and would be unlikely to unfairness. serve in the future if such deliberations Arising from this decision, the CSC, as were subsequently to be made available well as the Local Appointments Interview Notes - Case No. 98020 to candidates. It was also argued that if Commission (LAC), changed their prac- the interview process was constantly tices and decided to make such records Traditionally, candidates for public serv- open to challenge this would have a sig- available to candidates on request. ice jobs got no more information than nificant adverse effect on the CSC in its Given the pre-eminent position held by the fact that they did, or did not, suc- management of the recruitment func- the CSC and the LAC, this change of ceed in the competition. Amongst the tion. However, the Information practice was one which influenced the earliest cases to be decided by the Commissioner decided that the recruitment practices of all other public Information Commissioner in 1998 requester was entitled to access the service bodies. Indeed, the general posi- were a number in which the question of records associated with the proceedings tion now in the case of public service access to records of the interview and of the interview board and its assess- recruitment is that, irrespective of the selection process was raised. ment of the applicant. He found no evi- body conducting the competition, it is dence that prospective interview board the practice that candidates will be told In this case, an applicant for a civil serv- members would be deterred from serv- of the selection criteria (including mark- ice job had failed at interview stage and ing to such an extent that this would ing scheme and any short-listing crite- then sought access to all personal infor- have a significant adverse effect on the ria) and of the their own individual mation held in relation to his applica- ability of the CSC to find suitable inter- marks.
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Employment References - Case No. ee. The Commissioner took the view the basis that to do so would be a 060030 that it was inappropriate for the breach of a duty of confidence. It was CS&LAC to have given such a guaran- clear that the HSE had, in fact, given an Not all of the significant issues clarified tee of confidentiality in the light of the explicit assurance of confidentiality in by way of Information Commissioner right of access created by the FOI Act. the particular case. The question arising, decisions arose in the very early years of In this case, though, the requester ulti- in FOI terms, was whether the release the FOI Act. One example of a matter mately succeeded in getting the job she of the reference would constitute a clarified only in recent times, and in the sought; and in these circumstances, the breach of a duty of confidence owed by context of filling public jobs, is that of Commissioner reluctantly decided to the HSE to the former employer. On reliance on employment references affirm the CS&LAC decision. However, the face of it, the answer to this ques- sought on a confidential basis from a the Commissioner made clear that had tion was that release would constitute a third party, usually a former employer. the job been refused because of an breach of a duty of confidence. On the one hand, the candidate may adverse reference then he would have However, the Information believe (or even be told) that he or she had to look seriously at releasing the Commissioner took the view that public was unsuccessful because of an reference, even though given in confi- interest considerations should be taken unfavourable reference and that, in dence. As a result of this case, the into account in determining whether accordance with fair procedure, he or CS&LAC changed its practice in release would constitute a breach of a she should be entitled to see the refer- requesting employment references and, duty of confidence. In particular, the ence in order to have an opportunity to since then, such requests make clear that Commissioner had regard to the public respond. On the other hand, the public the reference is potentially releasable interest in upholding the right to fair body may have given some assurance of under the FOI Act. procedure and to the view that, in the confidentiality to the referee and feel circumstances of this case, fair proce- that any release of the reference would The same issue arose subsequently in a dure required that the requester should be a breach of confidence. Such cases, number of cases involving the Health have access to the negative reference. on the face of it, create a conflict Service Executive (HSE) culminating in Ultimately, the Commissioner found between two apparent rights: the right the Commissioner’s decision of October that the public interest considerations to have a confidence respected and the 2007 in Case No. 060030. In this case favouring disclosure were sufficiently right to fair procedures in matters a woman had been placed second on a strong to outweigh the public interest in affecting one’s life chances. panel from which a number of jobs in a preserving confidences. On this basis, HSE hospital were to be filled. In the the Commissioner decided that disclo- This issue first arose for the event, she failed to be given a job even sure of the reference to the reference Commissioner in a decision of January though people placed lower on the subject did not amount to a breach of a 2003 (Case No. 020425). The case panel were successful. It was clear that duty of confidence. And notwithstand- involved the Civil Service and Local this was the direct result of an ing that the referee was placed in a most Appointments Commission (CS&LAC) unfavourable reference from a former unfortunate position, the Commissioner which had sought a reference, in rela- employer; though other former employ- directed that the negative reference tion to a job applicant, from a private ers had given positive references. The should be released. sector referee. The CS&LAC had given HSE refused the woman’s FOI request assurances of confidentiality to the refer- for a copy of the negative reference on Dilemmas of the kind illustrated by
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these cases arise because public bodies have not always thought through the consequences of their recruitment pro- cedures. Fortunately, this type of case should be relatively rare in future as the HSE (like the CS&LAC) has amended its procedures to provide that prospec- tive referees will be alerted to the fact that employment references they give are potentially releasable under the FOI Act.
Another area in which Information Commissioner decisions has made a dif- ference is that of inspection reports on private nursing homes, child care facili- ties and schools. These matters are dealt with in Chapter 3.
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Chapter 3: Inspecting Nursing Homes, Crèches & Schools...
“If the childre n ’s parents subjected them to semi-starvation and lack of p roper clothing and attention fro m which they suffer in some industrial schools, the parents would be p ro s e c u t e d . ”
P. Ó Muircheartaigh, Inspector of Industrial and Reformatory Schools, in 1944 report; cited in Mary Raftery & Eoin O’Sullivan, Suffer the Little Children - The Inside Story of Ireland’s Industrial Schools, New Island, 1999 [p.125]
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Inspecting Nursing Homes, Crèches & Schools...
One of the tasks of the Information food safety, telecommunications, the so in particular in the case of inspections Commissioner is to “foster and encour - financial services sector and the corpo- of nursing homes, child care facilities, age the publication by public bodies ... of rate business sector generally. They primary and secondary schools and, to a information of relevance or interest to the operate in the public interest, including lesser extent, in the case of inspections general public in relation to their activi - consumer interests, to ensure standards of food premises under the food ties and functions generally”. Some of practice reach acceptable levels which hygiene legislation - though the Food activities of public bodies are of such are safe and appropriate. Safety Authority of Ireland has given a general interest that information on lead by its automatic publishing of them should be made available to the Ten years ago, before the advent of details of food premises on which clo- public as a matter of course, without the FOI, it was generally the norm that sure orders or prohibition orders have need for individual FOI requests. such inspectorates or regulatory bodies been served. At the same time, it is Environmental information, such as the operated outside of the public domain; worth noting that some of the inspec- quality of drinking water or the compo- their reports and findings in individual torates and regulators remain outside sition of discharges from effluent treat- instances tended not to be available to the remit of the FOI Act; this is the ment plants, is one such example; policy the public and there were few if any case, for example, with the Irish papers which are considered in the con- mechanisms for informing the public of Financial Services Regulatory Authority. text of budgetary decisions by the their activities. An exception to this rule Minister for Finance, for example, are was the annual report of the Inspector And in the case of the Health & Safety another. While more information of this of Mental Hospitals, dealing with condi- Authority, whose activity in investigating kind is being made available, year by tions in individual mental hospitals, but workplace accidents is of particular year, there is still some way to go in for whatever reason these reports failed interest to the public, it was removed meeting the demand that exists in this to attract the attention they clearly from the scope of FOI for all practical regard. Nevertheless, the Information deserved. Another exception was the purposes in 2005. It is difficult in prin- Commissioner has had some success in Social Services Inspectorate, established ciple to see how inspections of the this area, even if that success cannot be in 1999, which from the outset pub- workplace, for the purpose of ensuring described as “overnight success”. In par- lished on the internet its reports of the health and safety of employees and ticular, the Commissioner has focused inspections of children’s residential cen- of visitors, differ in any fundamental on the desirability of the public having tres operated by the health boards (now respect from inspections undertaken to automatic access to the reports of those the HSE). ensure the health and safety of residents inspectorates, or regulatory bodies, of private nursing homes. The position which supervise and report on key pub- As a direct result of the operation of regarding workplace inspections is all lic services. FOI, and based in particular on deci- the more puzzling given that between sions of the Information Commissioner, 2001 and 2005 they were covered by Inspectorates and regulatory bodies are the operation of many of these inspec- the FOI Act and there was no evidence a well established feature of contempo- torates and regulatory bodies is now of any particular harm being caused on rary government; they operate across a open to the public generally either by that account; yet in 2005 they were broad field, including the areas of nurs- way of automatic publication of reports made exempt from release with virtually ing homes and child care facilities, men- on the internet or by way of release of no discussion and no publicity. tal hospitals, schools, the work place, information under the FOI Act. This is
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“The explanatory memorandum for [the Health and Safety at Work] bill was not very explanatory on Section 74 which, it says, ‘amends the Freedom of Information Act, 1997 by inserting references to records arising from the enforcement functions of the authority in section 46(1) of that act’. That explains very little to even the experienced parliamentarian and certainly does not tell them that Section 74 exempts investigation documents currently available under FoI. In fact, the FoI change was so well buried within the 2005 legislation that Section 74 was not even discussed in the entire debate in the Dáil and Seanad. At the committee stage, legislation is supposed to be considered line-by-line and that is where one might have expected Section 74 to come under the spotlight. For this legislation the Dáil committee stage was in November 2004 and the Seanad committee stage was in May 2005 but, in both instances, Section 74 was sim- ply agreed and passed over. The sad reality is that what happened to this section is not unique.”
Noel Whelan, Irish Examiner, 19 January 2006 - commenting on the removal of HSA records from FOI release
Because we are now accustomed to the trial schools. The problem was that this the Commission to Inquire into Child notion that the work of public inspec- information remained securely protected Abuse has reported. It is difficult to torates or regulators should be pub- within the relevant Departments. understand why the Department should lished as a matter of course, or at least take this view. be available by way of individual FOI It is very disappointing to note that requests, it is easy to lose sight of the even now, in 2008, these historical Another area in which, regrettably, significance of this new level of trans- industrial school inspection reports have progress has not been made is that of parency. To dispel complacency, it is not been made available. In 2003 the the reports of the Prisons Visiting necessary only to recall how different Department of Education & Science Committees. It remains the case that, life might have been for many thou- gave a commitment to publish the his- unless sought specifically under the FOI sands of industrial school children in the torical reports which it holds; this was at Act, they remain outside the public Ireland of the 1920s to the 1970s had a time when very many former industri- domain. No more than the care of any the inspection reports on industrial al school residents were seeking records other vulnerable group, the care of pris- schools for that period been publicly of their own periods of detention and oners is surely something of concern to available and, as a result, acted upon. As many had an added interest in seeing any civilised society. the work of Mary Raftery and Eoin the general inspection records of their O’Sullivan has shown, over the decades particular school. Five years later, the Inspections of Private Nursing of their existence, a great deal was Department appears to be concerned Homes known and recorded in Departmental that publication of these reports might files about the appalling negligence and carry legal consequences and that they Standards of care in private nursing abuse which were a feature of the indus- should remain unavailable at least until homes became a matter of particular
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“...The Irish Times used the Freedom of Information Act to gain access to the reports of various prison visiting committees. They painted a very disturbing picture of conditions in Irish prisons. ...Concern was expressed by these visiting committees. These were the considered views not of some radical, revolutionary left wing groups but by individuals appointed by the current Fianna Fáil-PD Government or its immediate predecessor and they painted a realistic but disturbing picture of conditions in many of our prisons. Most depressing of all were the conclusions that in some instances conditions were getting worse. ...It is a shameful situation that these reports lay in the Department of Justice, Equality and Law Reform for 18 months before a freedom of information request from a national newspaper prized them loose and made them public.”
Brendan Howlin TD, Dáil Éireann, 1 February 2007 - speaking on the Prisons Bill 2006
public controversy in 2004 and 2005 cal inspection report could have nega- of inspection, the extent of inspection, when two such homes, Rostrevor House tive implications for the nursing home follow-up in the event of unsatisfactory Nursing Home and Leas Cross Nursing operator, any commercial disadvantage standards prevailing and general com- Home (both in the Greater Dublin would generally be outweighed by the munications with nursing homes in rela- area), hit the limelight for the wrong public interest served in having such tion to inspections. reasons. As a result of this, the media inspection reports available to the pub- and the public more generally became lic. The cases dealt with by the In a decision given in February 2004, aware of the important role played by Commissioner suggested a lack of con- and subsequently in her Annual Report the health boards (now the HSE) in sistency in approach not just as between for 2004, the Information ensuring compliance by private nursing health boards but also, in some Commissioner recommended that all homes with the standards prescribed in instances, between counties within the nursing home inspection reports should the Nursing Homes (Care and Welfare) one health board. This lack of consis- be published as a matter of course. In Regulations 1993. As the health board tency was evident in terms of, for exam- June 2005, in an immediate response to reports of its inspections of private nurs- ple, frequency of inspection, prior notice the Commissioner’s Annual Report rec- ing homes were not being published or made available to the public, both media people and interested members of the public began to use FOI as a means “There is an overriding public interest in ensuring that the health, securi- to gain access to these reports. The ini- ty and welfare of elderly and vulnerable members of society is seen to be tial response of the health boards to protected by the enforcement by health boards of the relevant legislation. these requests was mixed and this led to an increase in the number of such cases There is, also, a significant public interest in the public knowing how coming on appeal to the Office of the health boards respond to, and investigate, complaints made to them by Information Commissioner. In dealing members of the public in relation to specific nursing homes.” with these cases the Commissioner took the view that, while the release of a criti- Information Commissioner Decision, Case No. 020533 - 16 February 2004
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ommendation, the HSE (which replaced “Almost 90% of crèches are not fully complaint with childcare regula- the health boards in January 2005) gave tions, an investigation by the Irish Examiner has revealed. An examina- a public commitment to publish future tion of almost 2,000 inspection reports from crèches around the country inspection reports on its website, “fol- lowing review and standardisation of found just 203 were given a clean bill of health. inspection report formats and consulta- tion with key stakeholders” . In four counties - Donegal, Kilkenny, Mayo and Westmeath - not one crèche inspected was fully compliant [...] The findings ... were supplied In fact, it was not until the late summer to the Irish Examiner on foot of a Freedom of Information request. of 2006, and then only in the case of Although a number of crèches were in serious breach of regulations, the inspections completed after 26 June 2006, that the HSE began to publish majority were guilty of only minor breaches.” nursing home inspection reports on its website as a matter of course. While Catherine Shanahan & Conor Ryan, Irish Examiner, 31 October 2007 delayed, this was a very welcome devel- opment and establishes a precedent for all future inspectorates in the wider care and health service area. As it happens, attending pre-school services, including tors, the decision to be made is ulti- the role of nursing home inspectorate is pre-schools, play groups, day nurseries, mately one based on what best serves to be taken on later this year by the crèches, childminders and other similar the public interest. In her decisions on Social Services Inspectorate which has services looking after more than three such cases to date, the Commissioner now been subsumed into the Health pre-school children. The HSE’s role has found that the public interest is bet- and Information Quality Authority includes the regulation and inspection ter served in people (and particularly (HIQA). The new inspection regime, to of pre-school services. Just as with its parents) knowing what the HSE has be based on proposed new statutory role in relation to nursing homes, public found in the case of individual crËches, care standards, will apply to all nursing and media interest has grown in recent and in knowing how the HSE goes homes (including HSE homes and vol- years in accessing the HSE’s inspection about its inspection role, than in refus- untary/religious homes) and will be reports on pre-school services. ing access to the inspection reports. operated by an entity separate from the HSE itself. Furthermore, HIQA has The Information Commissioner has Media analysis of crèche inspection made it clear that its inspection reports dealt with many FOI appeals involving reports suggests that, while very few will be published on its website the right of access to the HSE’s inspec- appear to be fully compliant with the
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the FOI legislation is designed to pro- Commissioner’s decisions reflected the attend. In such a case, knowing the mote. same broad principles as informed those strengths and weaknesses of the school decisions regarding nursing home and will facilitate the parent in assisting the For the future, and unlike the situation crèche inspection reports: that the pub- child as well as in supporting the school regarding inspections of nursing homes, lic has a right to know the findings of a and contributing to its development and the HSE itself will continue to be public inspectorate on an area of very improvement. directly responsible for the inspection of significant interest and importance for pre-school services. However HIQA, parents and their children. The question of the availability of through the Office of the Chief school inspection reports became inex- Inspector, has a monitoring role in how The Commissioner’s view was, and still tricably linked to the question of the HSE performs its inspection func- is, that there is an increasing public whether information on the academic tions. While the HSE has not so far demand for information which will performance of pupils in a particular committed itself to publishing its enable people make informed choices school should be published (the “league inspection reports on pre-school servic- and decisions about all aspects of their table” issue). In October 1999 the es, it seems only logical that it would do lives; this includes information in regard Information Commissioner gave a com- so. to choice of school or crèche for a child posite decision on three separate appeals or choice of a nursing home for an eld- (Cases No. 98104, 98130 & 99024) by School Inspection Reports erly family member. While this may be newspapers which had been refused to equate decisions regarding education, details of Leaving Certificate results on One of the appeals (Case No. 98099) child care and elder care with other con- an individual school basis. The requester received by the Information sumer type decisions - choice of holiday newspapers had sought access to a wide Commissioner in the first year of opera- destination or of airline - it is also to range of information, including exami- tion in 1998 concerned access to the recognise that people can no longer be nation results, in relation to all second records of Whole School Evaluations expected to accept that they should be level schools. The Department of (primary) conducted by the inspectorate passive recipients of state funded or Education & Science refused these of the Department of Education & state subsidised services. In the case of requests on a number of separate Science. The Commissioner affirmed schools, whether primary or secondary, grounds but, by way of an overarching the Department’s refusal of the records the Commissioner takes the view that statement of position, identified that the but on the narrow ground that the par- parents are entitled to know how a par- essential basis of the refusal related to ticular evaluations had been conducted ticular school is performing across a the long standing policy of successive within a pilot scheme and on an under- wide range of evaluation criteria. This Governments that the compilation of standing that the details would not be right to know is not simply a matter of school league tables would be contrary released. The Commissioner made it helping to make an informed choice of to the public interest. In his review of clear that the particular decision should school, though that is in itself a valid these decisions, the Commissioner not be taken as an indication of the like- position. In fact, the right to know found that the exemptions relied upon ly outcome in relation to school evalua- about how a school is performing is per- by the Department did not apply and tions or inspections conducted outside haps more important in circumstances that, with some minor exceptions, the of a pilot process. In subsequent cases where a parent may have no choice as to records should be released. However, a involving school inspections, the the school which his or her child will legislative development while the
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Commissioner’s review was underway that the records (with some exceptions) requests. The rather complex 2001 then became an issue. On 5 February should be released to the requester judgment of the High Court was that 1999, subsequent to the Department’s newspapers. However, the Department the application of section 53 was decisions to refuse the newspapers’ appealed this decision to the High retroactive rather than retrospective requests, and before the Commissioner’s Court. and that this did not constitute the review was completed, the Education removal of a vested right to records; the Act 1998 came into force. Section 53 of The only matter at issue in the High Court decided that the FOI right of that Act allows the Minister for Court appeal was whether the access did not become a vested right Education to refuse access to records Commissioner was correct in his deci- until a decision to grant access to the whose release “would enable the compila - sion that, in the particular circum- records had been given. Had the tion of information (that is not otherwise stances, section 53 of the Education Act Commissioner been in a position to give available to the general public) in rela - did not displace the newspapers’ existing a decision on the review before 5 tion to the comparative performance of right of access under the FOI Act. February 1999, when the Education Act schools in respect of the academic achieve - Interestingly, the Department made no took effect, the requesters’ right to the ments of students...”. In effect, section case that the exemptions it had actually records would have become a vested 53 allows (but does not require) the relied upon in its decisions were applica- right at the time of that decision. Minister for Education to ban the ble. In effect, the Department conceded release of records whose content would that, at the time it made its decisions, it Following this 2001 High Court judg- enable the compilation of a school had no grounds for refusing the ment, the position was that the Minister league table. The question for the Commissioner was whether the Education Act provision, which had not been in place when the original deci- “I have carefully examined the contents of the school reports before me. sions were made, should be taken into I have no reason to believe that they are significantly different from other account for the purposes of his review reports produced by the Department ...The reports do not contain any and, if so, whether section 53 would specific references to the academic achievements of students in each have the effect of displacing the right of access under the FOI Act. school. There are no rankings or scorings given either for the school or the students involved. I am also not aware of, and the Department has In the event, the Commissioner took not pointed to, any criteria used for assessing the schools under each of the view that it was correct for him to the headings listed above. [...] The comments contained in the reports have regard to section 53 - as the review are of such a general and subjective nature that any direct comparison of was de novo, based on the law, facts and circumstances prevailing at the time of academic achievement between the schools could not be drawn. [...] It is the review decision - but he decided clear ...that the reports are not concerned with the curriculum but rather that the application of that provision with an overall view of the school which is compiled under a limited would have the effect of taking away a number of headings.” vested right to records on a retrospec- tive basis. The Commissioner directed Information Commissioner Decision, Case No. 000238 - 5 March 2003
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for Education could opt to invoke her “...it is common case that the information gathered does not contain powers under the Education Act to over- examination results. However, the general words of s.53 go further than rule a re q u e s t e r ’s right of access under examination results and I think it obvious that the reference to ‘compara- the FOI Act where the re c o rds sought “would enable the compilation of inform a - tive performance of schools in respect of academic achievement of stu- tion (that is not otherwise available to the dents’ may include a whole range of other considerations in respect of general public) in relation to the compara - which comparisons between different schools could still nevertheless be tive perf o rmance of schools in respect of the drawn up. Academic achievements include examinations. Academic academic achievements of students ...” . achievement can however be taken as meaning something more ...A C l e a r l y, the Minister had the discre t i o n to prohibit the disclosure of a school’s range of other considerations must be included, some of which will show (or schools’) examination results. What one school to differ from another and perhaps be performing better than p roved very surprising, though, was that another across a range of subjects or activities. ...Even without the criteria in 2005 the Supreme Court ruled that of examination results being brought to bear, significant performance this same provision of the Education Act related differences may be evident from a description of the activities car- could be invoked by the Minister for Education to overrule the FOI right of ried out in any school or group of schools. These are precisely the kind of access to the re p o rts of general inspec- matters addressed by the school report.” tions of primary schools - even though p r i m a r y schools have no specific meas- Supreme Court judgment of Mr Justice Kearns in Barney Sheedy v Information u res to test academic perf o rmance and, Commissioner & Ors. [2005] IESC 35 on the face of it, the primary school inspection re p o r ts do not disclose any i n f o rmat ion of a kind which might lead to the creation of league tables. Department also refused access on the the harms envisaged by the Department. grounds that the staff of the schools had He commented that, while the reports Case No. 000238 involved a request provided information in confidence to gave an overall impression of the from The Irish Times for access to the Inspectors during the course of their schools, they did not contain any refer- reports of inspections of certain primary inspections; that disclosure could preju- ences to the academic achievements of schools carried out by the Department dice the effectiveness of future inspec- students in the schools; he observed of Education and Science. The tions; and also that its functions relating that the comments in the reports were Department refused the request on the to its management of schools could be of such a general nature that no mean- ground that access to the information affected adversely. The Commissioner’s ingful comparison could be drawn was prohibited by section 53 of the decision was to direct the release of the between the schools. Nor did the Education Act 1998. Again, it is impor- school inspection reports subject to the Commissioner accept that the informa- tant to clarify that the Department’s deletion of any personal information tion in the reports could be described as reliance on section 53 was a choice it they contained. In his decision, the information given in confidence as the made and not something required Commissioner did not accept that access reports reflected the Inspectors’ own under the Education Act. The to the inspection reports could result in opinions and observations formed dur-
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“In its first substantive engagement with the FOI Act, the Supreme a mandatory prohibition on release of Court ruled by a two-to-one majority that the rights created under FOI the report, it was open to the Minister are to be set aside where the Department of Education uses its discretion for Education to invoke it should she wish to do so. On this basis, the under section 53 of the Education Act, 1998 to refuse inspection reports. Supreme Court overturned the judg- As I understand the judgment, as Information Commissioner I have no ment of the High Court and upheld the powers to overrule the Department where it chooses to refuse inspection Department’s initial refusal of the reports. This means that, except for judicial review, there is no independ- request by The Irish Times. However, ent oversight of discretionary Departmental decisions to refuse such the Supreme Court agreed with the High Court and with the Commissioner inspection reports. This is surely a most peculiar situation; most certainly that the other grounds of refusal, relied not one which permits the light to be shone in the offices and filing cabi - upon by the Department, did not stand nets of our rulers.” up. What is perhaps interesting in the majority Supreme Court judgment is Emily O’Reilly, Irish Times article, 9 June 2005 the approach it takes to the term “aca- demic achievements” in section 53; it states that in the absence of examination ing the course of visits to the schools. against the decision of the High Court. results there are other considerations In its judgment of 30 May 2005, the which, when taken into account, will The Commissioner’s decision was Supreme Court found by a two to one enable comparisons to be drawn appealed to the High Court not, as one majority that section 53 of the between primary schools. The position might expect, by the Department but Education Act could apply in relation to following the Supreme Court judgment by the Principal of one of the five the particular school inspection report; was (and remains) that school inspection schools in question. In its judgment, the and while section 53 did not constitute reports, or information on school exam- High Court found for the Information Commissioner on each of the appeal grounds. In particular, on the issue of “More than five years ago, the Department of Education and Science section 53 of the Education Act, the High Court ruled that the appellant had refused to release school inspection reports, claiming that great harm “failed to demonstrate that granting would be done to the education system. The refusal was upheld by the access to the school report from [the school] Supreme Court in 2005. Yet, just a few years after the Department’s would enable the compilation of informa - decision, such is the public demand for, and expectation of, information tion in relation to the comparative per - to guide them in decision making in relation to their children’s education formance of schools in respect of academic achievements of students”. that, not alone are the reports to be released, but the Department has stated that such release will be of great benefit to all the partners in the The Principal, with the support of the education process.” Irish National Teachers Organisation, opted to appeal to the Supreme Court Information Commissioner Annual Report, 2005
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ination results, can only be released “Some tensions and difficulties were evident in the school at the time of under FOI (or otherwise) where the the evaluation. These have arisen due to poor relationships between sen- Minister for Education & Science ior management and a small number of staff, and among some staff approves; the Minister retains an effec- tive veto on the release of such informa- members and have a negative impact on many areas of school life. tion in as much as she can invoke the Management indicated their belief that these tensions were due in part to discretionary provisions of section 53 of their having prioritised certain values in accordance with the [Order’s] the Education Act. tradition. Clearly, these difficulties are not consistent with the [Order’s] ethos and vision for the school as articulated by members of the Very surprisingly, on the very day that the Supreme Court judgment was deliv- [Order’s] community during the evaluation. The mission statement pri- ered, the Minister for Education & oritises students. It is recommended that a more all-encompassing school Science announced her intention to mission statement, which affords priority to the students and embraces all publish school inspection reports stakeholders in the school, be developed.” notwithstanding that her Department had refused such reports when sought Whole School Evaluation Report on a Dublin secondary school - published February under the FOI Act. The Minister clari- 2008 on Department of Education website (http://www.education.ie/insreports/) fied that the reports to be published, covering both first and second level, would not contain information on indi- Indeed, a recently published report on a principle of the public’s right of access vidual teachers or on examination Dublin secondary school drew attention to the reports of the school inspectorate results. Subsequently, following a con- to poor working relationships between has now been established; the present sultation process with the “education teachers themselves and between some position in this regard is now largely in partners”, the first of these reports was teachers and management and com- line with the position advocated by the published on the Department’s website mented on the need for the school to Information Commissioner in his deci- in June 2006. address these tensions “as a matter of sion in Case No. 000238 in March urgency”. One seasoned commentator 2003. While the published inspection reports observed that this report suggests that are sometimes characterised as being the Department’s inspectors are now bland and too general, they do give prepared to be more “robust” in their some insight into the individual schools. assessments. One way or the other, the
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Chapter 4: Freedom of Information - What Next?
“If FOI is about replacing a culture of secrecy with a c u l t u r e of openness in the Irish public service, I have to say that this objective is being frustrated by the contin- ued exclusion from FOI of several key public institu- tions. ... even after this extension [of 136 public bod- ies], a significant number of public bodies will continue to remain outside of the Act. I am not aware of any p ressing reason for the continued omission from FOI of bodies such as the Vocational Education Committees, the Central Applications Office (CAO), the State Examinations Commission, the Adoption B o a rd, An Garda Síochána, those bodies dealing with asylum applicants, the Central Bank and Financial S e rvices Authority and the State Claims Agency. ”
Emily O’Reilly, presentation at Public Affairs Ireland Conference, 30 November 2006
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Freedom of Information - What Next?
Freedom of Information is important in “But why is FoI so important? Well, for example in the last 12 months ways that, perhaps, most people do not alone, FoI has provided such big stories as the revelation that health register on an everyday basis. For people board inspectors recommended against the registration of Leas Cross stuck in traffic on the M50, commuting long distances to work, it is not upper- nursing home; the annual breakdown of TDs’ expenses; many of the sto- most on their minds. Or for people ries about MRSA; annual schools league tables, to name but a few. FoI waiting for a hospital out-patient also allows people access to reports or documents pertaining to them- appointment, or for speech therapy for a selves, which they did not have before.” child, FOI is not the most pressing issue. Yet, if we did not have FOI we Sunday Independent, 21 January 2007 would certainly miss it. At least 15 years of lobbying by concerned groups and individuals preceded the commence- ment of the FOI Act on 21 April 1998. under the FOI Act of a draft of a dossier did demonstrate that FOI in the UK Having achieved an FOI Act, and hav- entitled “Iraq’s Weapons of Mass can provide for a remarkable degree of ing it in operation now for 10 years, it is Destruction: The Assessment of the British openness even in relation to issues important that we continue to appreci- Government”. The draft dossier was which have political, diplomatic and, ate why it is necessary and to under- regarded as politically and diplomatically indeed, security implications. stand that it needs to be cultivated very sensitive and had been refused by rather than neglected. While Ireland the Foreign and Commonwealth Office What is interesting about this UK case may well be a more open society than it (FCO) when sought in a 2005 FOI from an Irish perspective is that, were a was 10 or 15 years ago, there is no request. This refusal was appealed to the broadly similar FOI request to be made room for complacency on this front. Information Commissioner who decid- here, it would almost inevitably be ed, applying a public interest test, that refused. And were the case then to go More Open Than....? the draft dossier should be released in on appeal to the Information full, notwithstanding its sensitivity. This Commissioner, she would have no We need to ask ourselves whether, in decision, in turn, was appealed by the option but to affirm that refusal. This fact, we are as open a society as some FCO to the Information Tribunal which arises from one of the amendments other countries of the West with which ruled in January 2008 that the draft made to our FOI Act in 2003. Section we have close relationships. dossier should be released in the public 24 of our FOI Act provides protection interest - though it did agree to the for records relating to security, defence Security, Defence & International deletion of one single word in a hand- and international relations (including Relations written marginal comment. Ironically, matters relating to Northern Ireland). this single word deletion proved ineffec- In the original version of section 24, In the UK recently there has been much tive as The Guardian subsequently prior to amendment, records in this cat- interest in the fact that the Information “acquired” a witness statement to the egory were not absolutely exempt from Tribunal (which deals with appeals Tribunal which identified the deleted release; to be found exempt, the deci- against decisions of the UK Information word as “Israel”. While the entire sion maker had to be satisfied that Commissioner) directed the release process took three years to conclude, it release “could reasonably be expected to
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affect adversely” one or more of the “The Commissioner recognises the importance of a space for officials in functions identified in the section. In which to draft documents, but does not accept that disclosure of these effect, the exemption contained a built- drafts would necessarily have a wide-ranging ‘chilling effect’ on the draft- in harm test - though it was not subject to a public interest override. On appeal, ing process. However, officials will still be required to produce such the Information Commissioner would drafts as part of their roles, and the timing of any disclosure is always require to be satisfied that release likely to be an important consideration when weighing up the public “could reasonably be expected to affect interest ...it is relevant in relation to the dossier that the drafting process adversely” one of the identified interests (e.g. the security of the state). However, itself has been and remains a subject of considerable public debate.” the 2003 Amendment Act created a mandatory class exemption for records Decision of UK Information Commissioner in “Iraq dossier” case - 3 May 2007 which concern security, defence or inter- national relations of the State or matters relating to Northern Ireland; this elimi- ist groups had been active in Ireland at tion now in place in the case of records nates the need for a public body to that time. What’s most interesting, which concern security, defence or inter- identify a specific harm caused by release though, is that this information was national relations. of the particular record. For example, a released, not under our own FOI Act, record containing a communication but under the FOI Act of the United In January 2008 RTÉ News again between a Minister and a diplomatic or States. The enterprising journalist in broadcast an item based on the release consular post will now be refused under question (Richard Dowling) made his of records under the FOI Act of the section 24 irrespective of the content request to the US State Department United States; and again, had this type and without reference to the effect of its and, as the documents in question had of material been sought under the Irish release on international relations. been de-classified, they were released. It FOI Act it would not have been appears the information in question was released. The RTÉ report, again by Notwithstanding the fact that there is a passed from the US Embassy in Dublin Richard Dowling, disclosed information mandatory class exemption under our to the State Department in Washington concerning the use of Dublin Airport FOI Act for records which concern and was based on Garda intelligence on and Casement Aerodrome by the US security, defence or international rela- the issue. Had RTÉ tried to get this Military. Documents from the US State tions of the State, some such informa- information from An Garda Síochána, it Department released to RTÉ disclosed tion has been released under Freedom would not have been entitled even to that the US Military had been using of Information. One such release dis- make the request as An Garda Síochána these two airports but that in 2003 dif- closed Garda intelligence material. In has not yet been made subject to the ficulties arose regarding this use. October 2006 RTÉ News carried an FOI Act. Had it attempted to acquire Amongst the documents released to item which gave details of suspected the information from the Department RTÉ was an email of December 2003 “foreign terrorist groups” having a pres- of Justice or from the Department of from the US military attaché, addressed ence in Ireland. The details released Foreign Affairs, the information would to his superiors and to colleagues in related to three to four years back and almost certainly have been refused on NATO, effectively warning about prob- suggested that up to six Islamist terror- the basis of the mandatory class exemp- lems in using these airports. The attaché
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cited certain security and “systemic “The law is clear: anyone who makes a request to PSNI for information communications” difficulties which must be told whether the Service holds such information and must be made use of the airports problematic. supplied with that information unless the cost to provide the information However it appears these difficulties were resolved subsequently. What is would exceed the cost limit set by the Secretary of State. Information can interesting is that the US authorities, only be withheld under the FOI Act if certain exemptions are applicable, engaged as they are in the so-called for example, requests for information about criminal investigations, past “war on terror” and on permanent high or present and about matters of national security. Individuals already have alert for terrorist activities, saw no diffi- the right of access to information about themselves under the Data culty in releasing this information. In Ireland, where the terrorist threat is so Protection Act 1998. As far as PSNI is concerned, the Freedom of much lower, it is most likely that this Information Act will extend this right to allow public access to all types information - or its equivalent - would of information held.” have been refused under the Irish FOI Act. Police Service of Northern Ireland website - http://www.psni.police.uk/index/pg_freedom_of_information.htm Policing
I rrespective of how “open” our FOI Act may or may not be, it is of no value in the ments - makes very interesting reading. this Convention, the term ‘public authori - case of public bodies to which it does not Of 26 Council of Europe member states ties’ covers administrative authorities at a p p l y. A key test of openness, there f o re, is examined, only Ireland excludes its national, regional and local level (for whether a country ’s FOI laws apply to all police force from FOI cover. Former example, central government, town coun - of the key public bodies. It is true that our Eastern bloc countries such as Albania, cils and other municipal bodies, the FOI Act now applies to about 520 public Bosnia/Herzegovina, Croatia, the police, public health and education bodies compared to the original 67 bodies Czech Republic, Georgia and Moldova authorities, public records offices, etc.). to which it applied 10 years ago. have their police forces subject to FOI; ...” U n f o rt u n a t e l y, many key public bodies so too do such “older” democracies as remain outside of the scrutiny of the FOI the UK, Denmark, Sweden, Germany Looking beyond Europe, in countries Act. Of these, perhaps the most significant and Norway. In many cases, not only is such as the USA, Mexico, Canada, is An Garda Síochána and the case for its the police force subject to FOI but so Australia, New Zealand and India, inclusion is particularly pre s s i n g . also is the Secret Service! It is clear also police forces are routinely subject to that the Council of Europe’s FOI legislation. And it’s interesting to Ireland is virtually unique in Europe in Convention, though still at draft stage, note that in David Banisar’s Global excluding its police force from the scope anticipates that the right of access to Survey of Access to Government of FOI law. Research by a number of public records will include those of Information Laws [Freedom of NGOs - produced in 2006 in the con- police authorities; the Explanatory Information Around the World 2006], text of the proposed Council of Europe Report accompanying the current draft looking at almost 70 countries, he Convention on access to official docu- Convention notes: “For the purposes of names only one country as excluding
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“The Metropolitan Police has disclosed, after a successful Freedom of generally, that FOI has not created any Information Act request by The Times, that the cost of supervising week- insurmountable difficulties but it has ly gatherings outside Finsbury Park Mosque, North London, was made information on policing much more readily available to the public gen- £874,387. The figure is far in excess of previous estimates for the 22- erally. month police operation. Before the introduction of the new legislation on January 1 [2005], Scotland Yard had refused to discuss the cost of When the FOI Bill 1996 was being policing Hamza’s Friday prayer meetings. The Freedom of Information debated in Dáil Éireann, a clear view Act, which gives access to a range of information held by public bodies, was expressed from all sides of the House that it was desirable to make An forced disclosure of the figures. Garda Síochána subject to the legisla- tion from a relatively early date. [...] A request by The Times for information about the policing opera- Minister of State Eithne Fitzgerald, who tion at Finsbury Park was submitted on January 6. The Metropolitan took the Bill through the Houses for Police responded within the four-week deadline for answering Freedom the Government, explained that, while of Information requests.” the Bill anticipated the inclusion of An Garda Síochána the actual date of its The Times, 24 January 2005 inclusion was being left open pending the completion of the work of the Garda Review Body. However, she com- mented: “I hope we will have an early the police force from FOI: and that inclusion of the PSNI under the FOI report from the Garda review body and country is Ireland. Act appears not to be an issue. It is clear that the Garda can be included in the from the experience of our near neigh- [FOI] legislation from an early date.” It may be argued that An Garda bours in Scotland, as well as the UK [Dáil Éireann, 10 April 1997]. Síochána is currently undergoing major transformation and that this is not the right time to make it amenable to the Act. In fact, one can well argue the “...I am concerned about the omission of the Garda Síochána from the opposite, that being subject to FOI legislation. The Minister of State is positively anticipating the result of [a] should be seen as contributing to this Garda review in that she tells us we can rely on the review body to pro- overall transformation process just as the pose what we are including in the Bill. ...is it not possible to include the Garda Inspectorate and the Garda Ombudsman Commission are part of Garda Síochána at this stage? By excluding that body the Minister of the transformation process. The State is sending out a signal that the Garda Síochána is in charge of more Northern Ireland police force has been sensitive information than the offices of the Taoiseach or the Tánaiste.” going through a transformation process of, perhaps, greater intensity than is the Dr. Jim McDaid TD, Dáil Éireann, 10 April 1997 - speaking on the Freedom of case with An Garda Síochána; yet the Information Bill, 1996 (which was subsequently enacted).
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Refugees, Asylum & Immigration “The Fianna Fáil proposals can be seen as the precursors to legislation removing the now ridiculously outdated Official Secrets Act, 1963. The A related concern is the fact that the Minister of State regards that Act as an anachronism which should be areas of refugees, asylum and immigra- tion are currently outside of the scope consigned to the shredder or the archive, with which I agree. It is ludi- of the FOI Act. Despite the fact that crous legislation which was brought in on the assumption that everything adjudication structures in this area are was secret.” proposed to be re-structured under the Immigration, Residence and Protection Dr. Jim McDaid TD, Dáil Éireann, 11 March 1997 - speaking on the Freedom of Bill 2008, the Government proposes to Information Bill, 1996 (which was subsequently enacted). continue the exclusion of the area from the scope of the FOI Act. Section 130 of the Bill excludes from the scope of *** ently shared across the Oireachtas that the FOI Act “records relating to a the Official Secrets Act 1963 would be determination under Part 7 of a protec- As matters stand, it may be premature repealed and that “whistleblower” legis- tion application” - in effect, any record to conclude that Ireland can be satisfied lation would be introduced. This was relating to a determination of a protec- with its progress towards becoming a part of the overall drive to promote tion application (any application for more open and transparent society or transparency and to improve our image refugee status or asylum or any such that we have achieved the level of open- internationally in that regard. application). There is serious public ness and transparency of other countries unease surrounding the operation of the with which we have close ties. In the case of the Official Secrets Act current Refugee Appeals Tribunal; much 1963, a recommendation was made in of this stems from the lack of trans- Unfinished Business? 1997 by the Select Committee on parency in how the Tribunal has con- Security and Legislation, and in the con- ducted its business. For example, the Tied to the introduction of FOI, back text of the imminent enactment of FOI Tribunal does not publish its decisions; in 1996-1997 when the legislation was legislation, that the 1963 Act be nor does it publish details of its proce- being enacted, was an intention appar- repealed. Minister of State, Eithne dures and criteria; nor does it publish statistics on claims and adjudication out- comes. One might reasonably expect that the proposed new structures would “(1) A person shall not communicate any official information to any other be intended to have greater public person unless he is duly authorised to do so or does so in the course of and acceptance and would be open and in accordance with his duties as the holder of a public office or when it is transparent in their operation - as is the his duty in the interest of the State to communicate it. case in most liberal democracies. The explicit exclusion of FOI from this area, (2) A person to whom subsection (1) applies shall take reasonable care to as well as its exclusion form the remit of the Ombudsman, has to be worrying. avoid any unlawful communication of such information.” Official Secrets Act 1963, section 4
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“Table C includes a list of enactments that are not currently [subservient provisions with a recommendation, in to FOI]. In these cases, the Information Commissioner disagrees with each instance, as to whether the secrecy the Ministers’ recommendation. The Joint Committee supports the provision should be repealed, or retained but made subservient to FOI, Ministers’ recommendation.” or be retained and continue to “trump” FOI rights. The Commissioner also Oireachtas Joint Committee, Seventh Report - Review under Section 32(2) of certain made a lengthy oral presentation to the provisions under the Freedom of Information Act 1997 (as amended in the Freedom of Committee in support of her report. Information (Amendment) Act 2003) - September 2006 Individual Government Departments also made submissions to the Committee and in many instances there Fitzgerald, replied to that Committee in of and in accordance with” the duties of was disagreement between the March 1997 suggesting that the “most the office holder concerned. These pro- Departments’ views and those of the speedy and efficient” way to proceed visions lack clarity as to when a disclo- Commissioner on the need to retain was for the Department of Justice to sure is authorised; and while civil ser- secrecy provisions. However, when the draft legislation for the repeal of the vants may now act in a commonsense Committee came to make its recom- 1963 Act along with whatever other fashion in their approach to disclosing mendations to the Houses of the measures would be necessary to provide official information, it is unreasonable Oireachtas, in every single instance of the residual level of protection necessary that they should have to, in effect, turn disagreement between the position of for state secrets; in the meantime, the a blind eye to the strict letter of the law. the Commissioner and that of a FOI legislation could be enacted. In the In any event, for as long as it remains Department, the Committee chose to event, the FOI legislation was enacted on the statute book, the Official Secrets take the position of the Department. but it appears no progress has been Act will continue to form part of the What was particularly unusual about this made on replacing the 1963 Act which culture in which the civil service oper- was that the Committee gave no reasons remains in place. ates. of any kind as to why it chose one view over the other. The Information It may be argued that the Official Related to the Official Secrets Act 1963 Commissioner subsequently expressed Secrets Act 1963 has fallen into disuse is the provision, at section 32 of the her deep disappointment, not that the and that in any event it is, in many FOI Act, which provides for a review, by Committee had rejected her views, but respects, unworkable. Section 4 of the an Oireachtas Committee, of secrecy that it had failed to outline any rationale Official Secrets Act 1963 has been provisions in other legislation which can for its conclusions and that it appeared amended by the FOI Act 1997 so that be invoked to “trump” FOI rights. The to have decided the matter along party any bona fide release of official informa- Oireachtas Committee review procedure political lines. tion under the FOI Act “shall be includes a role for the Information deemed” to be authorised for the pur- Commissioner. In December 2005 the As regards “whistleblower” legislation, poses of the Official Secrets Act. Apart Commissioner presented the Joint between June 1999 and April 2006 the from this relaxation, all other disclosures Oireachtas Committee on Finance and Whistleblowers Protection Bill 1999 of official information require to be the Public Service with a detailed and remained on the legislative programme authorised or to be done “in the course comprehensive review of such secrecy of the Oireachtas. This Bill began its life
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“The purpose of my [Whistleblowers Protection] Bill was to challenge consequences of the choices made. In and help transform the traditional culture of secrecy surrounding the the present context, one measure to be conduct of business and public affairs. From the Blood Transfusion taken into account is the perception of Ireland abroad in terms of transparency Service to the beef industry, whether it is Army deafness or Dublin plan- and corruption. Transparency ning or, more recently and most devastatingly, Our Lady of Lourdes International compiles an annual Hospital’s maternity wing, the questions are the same. Did nobody know Corruption Perceptions Index (CPI) or suspect? Is it credible that nobody in the system ever stumbled across which attempts to measure how individ- wrongdoing? Why was nothing reported earlier? ual countries are perceived externally in terms of measures put in place to pre- As regards illegality and malpractice in our financial institutions, did vent corruption and to encourage trans- parency - both in government and in nobody in these institutions know what was going on? In answer to these business. In 1995 Ireland scored 8.57 questions most right-thinking people will believe people knew or had on the CPI (where a score of 10 their suspicions. However, the consequences for whistleblowers, in their denotes a country entirely unaffected by careers and livelihoods, are such that it is often easier to turn a blind corruption) and was ranked 11th ‘least corrupt country’ in the world. In 2007 eye.”’ Ireland’s CPI score had fallen to 7.5 and we are now ranked 17th out of 180 Pat Rabbitte TD, Dáil Éireann, 4 April 2006 countries listed in the Index. In its com- ments on this loss of position, Transparency International (Ireland) drew attention to a number of causes as a Labour Party private member’s bill legislatively on a sectoral basis. It is very including issues to do with our ethics but one which was accepted by the unfortunate that legislation in this area, legislation, the financing of political par- Government, in principle, and was ulti- whether on a general or a sectoral basis, ties and particularly weak controls in mately included (in 2002) in the has not been progressed to any great place within local authorities. In terms Government’s legislative programme. extent since 1996-1997 - though one of what might be done to reverse this There appeared to be a political consen- recent example of the sectoral approach situation, it mentioned in particular the sus that some type of generalised statu- is contained in the Health Act 2007 need to reduce substantially the level of tory protection was warranted for work- which provides for “protected disclo- fees now charged for FOI requests, ers, both private and public sectors, sures of information” for employees in given that these fees have resulted in a reporting corruption, wrong-doing or the health sector. substantial decline in FOI requests. dangerous practices on the part of an Transparency International (Ireland ) employer. The 1999 Bill was withdrawn One possible conclusion from these few takes the view that greater use of FOI from the Oireachtas in April 2006 on a examples of unfinished business is that can only be beneficial, commenting: Government motion but with the stated the Oireachtas no longer considers them “Freedom of Information is recognised as intention that the protection of as priority matters. In determining pri- a powerful tool against corruption and “whistleblowers” would be dealt with orities, it is instructive to look at the abuse of power.”
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“Shovelling enormous numbers of documents onto web sites is seldom a important point and one which requires good way of communicating with wider audiences. Transparency leaves to be considered. many audiences unable to see the wood for the trees, unable to under- A further point made by Pro f e s s o r stand what is disclosed, unable to assess what they understand or to judge O’Neill is that “t r a n s p a ren cy is not its accuracy, and ill-equipped to take an active and constructive part in enough for democracy because like self- democratic debate.” e x p ression it is indiff e rent to standards of c o m m u n i c a t i o n”. She argues that simply Onora O’Neill, Rethinking freedom of the press, Acadamh Ríoga na hÉireann, 2004 making documents available does not, in v e r y many cases, constitute good and e f fective communication; and that the beneficiaries of indiscriminate release of documentation may be a small, spe- What Next? address she delivered at the Royal Irish cialised audience rather than a wide Academy in December 2003. She asked audience or even the public at larg e . It is easy to be critical of the detached the question: “How good is the case for C l e a r l y, there is considerable merit in approach of government to FOI in extensive transparency requirements? Are this observation. While this does not Ireland over the past five years or so. At they always desirable, or do they create detract from the usefulness of release of the same time it is important that advo- problems for democratic, corporate and re c o rds under FOI, or from the useful- cates of FOI acknowledge, and face up professional governance and accountabili - ness of public bodies making certain cat- to, the fact that FOI is not the most ty?” In answering these questions, she egories of information available as a mat- important issue on the public agenda suggested that “unmitigated transparen- ter of course (as with school inspection and that there are many “unknowns” - cy”, under which office holders are and nursing home inspection re p o r ts), it both of the “known” and “unknown” required to disclose all working docu- does suggest that public bodies should varieties - as to the costs and conse- ments, “can certainly lead to problems”. not be reliant solely on FOI as a strategy quences of freedom of information. Overall, she concluded: “Excessive trans - for communicating with the public. Equally, it is important that FOI advo- parency requirements can compromise H o w e v e r, Professor O’Neill’s point here cates do not overstate the effectiveness good policy process, sound management, is hardly an argument against making of FOI laws and of the resultant “trans- and even democratic process.” This, in re c o rds available but, rather, an arg u- parency”. In many respects, we can only principle, may be correct. But there is ment that the provision of re c o rds needs guess at the implications of this line of no real evidence to suggest that the to be contextualised and the needs of thinking. One thing we have not had in Irish FOI Act, as enacted in 1997, cre- d i f f e ren t audiences must be addre s s e d . Ireland over the past five years is any ated “excessive transparency require- T h e re is the danger always that public kind of reasoned debate on these issues. ments”; it is arguable that the protec- bodies will withhold information on the tions built into the FOI Act 1997 did c o m f o r ting basis that the public may not One very interesting contribution on provide a reasonably fair balance understand it, or may be confused by it these issues, though in the somewhat between the requirements of openness o r, worse again, that release will lead to wider context of press freedom, was and the need to protect the functioning enquiries being made by members of the made by Professor Onora O’Neill in an of government. Nevertheless, it is an p u b l i c .
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Freedom of Information The First Decade FREEDOM OF INFORMATION - WHAT NEXT?
There is a strong case now for a thor- “In consultation with the Department of Health and Children, it was ough review of our FOI legislation in decided not to go into detail in relation to the numbers of patients which searching questions are asked, involved ...Doing so would only serve to cause widespread alarm in the and answered, regarding the purposes of FOI, the modalities of FOI and the public and unnecessary confusion in the media.” costs and benefits of Freedom of Information. Such a review should be Irish Examiner, 1 March 2008 - quoting an email message (of November 2007) carried out by a small group with an from the HSE to the Government Press Secretary regarding a decision not to dis- independent chairman and within a rela- close details of the number of patients being reviewed due to concerns as to the work tively short time span, e.g. within six of a particular pathologist in Cork University Hospital. months. The review group should, as part of its task, identify specific legisla- tive measures for the implementation of its findings. In the meantime, and in Service - the “up-front” fees for the ini- Public Service), they also serve as a dis- order to restore public confidence in the tial request should be dropped. The incentive to greater openness.” current FOI arrangements, the applica- OECD report commented: tion fees for internal review and for Indeed, the OECD’s overall approach review by the Information “The government should reduce barri- to FOI is one to which great weight Commissioner should be reduced sub- ers to public information by making all should be attached in undertaking the stantially. And, as recommended by the requests under the Freedom of thorough review proposed in this pres- OECD in its recent comprehensive Information Act 1997 free ...While user ent publication. review of the public service in Ireland - charges may limit frivolous requests Ireland: Towards an Integrated Public (and thereby reduce burdens on the
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Office of the Information Commissioner, 18 Lower Leeson Street, Dublin 2.
Tel: (01) 639 5689 Fax: (01) 639 5676
Email: [email protected] Website: www.oic.gov.ie