Speech by the Ombudsman and Information Commissioner, Peter Tyndall

Public Affairs Ireland - 27th March 2014

In answering this question I want to consider the history and operation of the FOI regime, and to also identify areas where enhancement is possible.

Confidence in Government in Ireland reached a low ebb following successive tribunals and the banking crisis.  The perceived culture of clientilism and a firm perception that too many people in public life were seeking personal advantage rather than working to benefit the nation led to a deep cynicism, which, if unchallenged, would have undermined our democracy. 

In order to restore faith in the decision making of public bodies, it was necessary to shed light into the previously dark places where decisions were being made.  The FOI regime is a fundamental element of the overall framework of Open Government and has played an important part in developing a greater understanding of how decisions are taken and in making it more difficult for the self-seeking decisions of the past to be repeated.

I want to acknowledge the important progress made by Minister Howlin in his personal commitment to Open Government.  Information is fundamental in holding Government and providers of public services to account and the extension of FOI will make this even more effective in the future.

Imagine an Ireland today without FOI....

FOI is very much part of the society in which we now live– every day there are media reports based on information obtained through FOI requests. There is an expectation that FOI will allow us to seek access to information about public bodies and publicly funded entities, as was the case with Irish Water, which was fast tracked into the FOI regime because of legitimate public interest. 

As we are now accustomed to the notion that the work of public inspectorates or regulators should be published as a matter of course, or at least be available by way of individual FOI requests, it is easy to lose sight of the significance of this new level of transparency.  There are numerous areas in which information is now made available as a matter of course as a result of earlier decisions of the Information Commissioner.  Individuals also have a means of access to a wide range of information held by public bodies about themselves – and have the option of having this information corrected if it is wrong.

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

  • bringing transparency to Government decision making and discouraging corruption
  • helping to hold government to account
  • informing the public about government
  • improving the quality of decision making by public bodies
  • acting as a check on the exercise of power by government and its agencies
  • promoting citizen participation.

In December 1996, the FOI Bill was published and the FOI Act was enacted in April 1997 with an inbuilt provision for commencement one year later on 21 April 1998.

The 1997 Act was predicated on the notion of what serves the public interest.  All of the objectives of the FOI regime are public interest categories.  The Long Title of the Act, says that it is intended

“.. to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise that right. .....”

The introduction of the FOI Act represented a major change in culture and approach for public bodies in relation to the information held by them.  Prior to FOI, the Official Secrets Act provided for minimal access to information and created a public administration that saw nothing but danger in any attempt to release its control over information.  The FOI Act provided for a right of access by members of the public to records held by public bodies, the right to have information held about them corrected or updated where necessary and the right to be given reasons for decisions taken by public bodies which affect them.  The Act also introduced a requirement for public bodies to publish certain information, including information about their rules and procedures. 

Early Court comments

The radical nature of the FOI Act was recognised in the Courts at an early stage. Mr. Justice McKechnie, in Deely v. The Information Commissioner [2001] IEHC 91 commented in relation to the FOI Act that “its passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies...”; he went on to say that the “purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public.” Mr. Justice McKechnie further described FOI as “on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy.” Subsequently, the Supreme Court endorsed these views with Fennelly J. commenting (in his minority judgment in Sheedy v. The Information Commissioner & Ors. [2005] IESC 35):

“the passing of the Freedom of information Act constituted a legislative development of major significance, the Oireachtas took a  considered and deliberate step which dramatically alter[ed] the administrative assumptions and culture of centuries ... replac[ing] the presumption of secrecy with one of openness ...[and] open[ing] up the workings of government and administration to scrutiny”.

2003 Amendment Act – Changes to 1997 Act

The 2003 Act seriously curtailed the 1997 Act, representing a major step back from the commitment to openness, transparency and accountability which were key factors in the 1997 legislation.  It seems that the primary urge to amend arose from the fact that some Cabinet records would have become potentially available under the FOI Act from 21 April 2003. 

Some of the more significant changes included;

  • Restricting the potential right of access to records of Government to those records created more than 10 years before receipt of the request as opposed to five years as provided for in the 1997 Act,
  • Communications between Ministers relating to a matter before Government were now fully protected,
  • The definition of Government was extended to include committees of officials,
  • Secretaries General of Government Departments were empowered to certify that particular records form part of the deliberative process of a Government Department, effectively putting such records beyond the scope of FOI,
  • Very significant changes were also made in the case of records relating to state security, defence and international relations. There is now a mandatory class exemption for records which concern security, defence or international relations of the State or matters relating to Northern Ireland, thereby eliminating the need for a public body to identify a specific harm caused by release of the particular record.

Finally, the change with most repercussions for the average user of the FOI Act was the provision enabling the Minister for Finance to prescribe fees for the making of a request for access to non-personal records and for any subsequent application for internal review and/or review by the Information Commissioner. These were ;

  • €15 for a request
  • €75 for an internal review application, and
  • €150 for an application to the Information Commissioner to review the decision of a public body.

The impact of the “up front” fees was very significant, with a significant drop in usage as a result of the fees being introduced.  In particular, there was a big difference in requests from journalists.  In 2001, 20% (or 3,123) requests were from journalists.  By 2007, 8% (or 885) were from the same source, having fallen even more in 2004 and 2005.

Areas where FOI has made a difference

Notwithstanding the changes which the 2003 Amendment Act introduced, the FOI Regime has made a significant difference in many aspects of the provision of public services.

Public Spending - Decisions of the Information Commissioner have played a major role in gaining acceptance for the fact that wherever public money is spent, there must be the greatest degree possible of openness and accountability in how those funds are spent.  Examples include Oireachtas Members’ expenses (Case No: 99168), Public Procurement and Tendering (Cases No: 98049, 98056 & 98057) and Financial Settlements with employees (Case No: 000528).

Recruitment procedures for public jobs – In 1998 the Commissioner observed that he had

“dealt with a number of reviews where access was denied to interview notes and other material relating to the requester’s participation in interviews or competitions for public service jobs... A common theme running through most such cases is the inability of the candidate to understand why he/she was not successful.  This often leads to a suspicion that the result was unfair; that there was an element of bias, whether conscious or not, in the selection procedure or that a mistake has been made.”  

While the need for transparency has been a long standing concern of the Irish State, decisions of the Information Commissioner have led to changes in some of the practices and procedures in how the Public Appointments Service deals with applicants.  This change has also influenced the recruitment practices of all other public service bodies.  It is now common practice for candidates to be informed of the selection criteria, including marking scheme and short listing criteria, and of their own individual marks (Case No: 98020).

Another related area is that of employment references.  As a result of decisions of the Information Commissioner, it is now the case that public recruitment bodies, when making requests for references, make it clear that the reference is potentially releasable under the FOI Act (Cases No: 060030 and 020425).

Dilemmas such as those which arose in the above cases should be a thing of the past, in view of the changes made to recruitment practices and procedures as a result of FOI.

Inspection Reports – As a direct result of FOI, and following decisions of the Information Commissioner, the operation of many inspectorates and regulatory bodies is now open to the public generally either by way of automatic publication of reports on websites or by way of release of the information under the FOI Act. Particular examples include inspections of nursing homes, childcare facilities, primary and secondary schools. 

Nursing Homes – In dealing with these cases, the then Information Commissioner took the view that, while the release of a critical inspection report could have negative implications for the nursing home operator, any commercial disadvantage would generally be outweighed by the public interest served in having such inspection reports available to the public.  The cases dealt with by the Commissioner suggested a lack of consistency in approach in terms of frequency of inspection, prior notice and extent of inspection, follow up in the event of unsatisfactory standards and general communications with nursing homes in relation to inspections.  One important decision concluded that -

“There is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation.  There is, also, a significant public interest in the public knowing how health boards respond to, and investigate, complaints made to them by members of the public in relation to specific nursing homes”(Case No: 020533).

School Inspection Reports – This decision reflected the same broad principle as in other areas that the public has the right to know the findings of a public inspectorate on an area of significant interest and importance.  Another area in which this principle operates is in education.  One decision (Case No: 000238) dealt with the refusal of primary school inspection reports.  The Commissioner found that the information should be released. 

The decision was appealed to the High Court, which found for the Information Commissioner.  This judgment was then appealed to the Supreme Court which found against the Information Commissioner by a two to one majority.  The decision of the Information Commissioner was overturned and the initial refusal of the Department upheld. Interestingly, on the day the Supreme Court judgment was delivered, the Minister for Education announced her intention to publish school inspection reports and the first of these was published in June 2006.  The present position is more or less in line with the position of the Information Commissioner at the time.

“More than five years ago, the Department of Education and Science refused to release school inspection reports, claiming that great harm would be done to the education system.  The refusal was upheld by the Supreme Court in 2005. Yet, just a few years after the Department’s decision, such is the demand for, and expectation of, information to guide them in decision making in relation to their children’s education 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 education process.”  OIC Annual Report 2005.

The FOI Amendment Bill  (No 89 of 2013)

The Programme for Government, Government for National Recovery 2011 – 2016, contains a commitment to restore the FOI Act to what it was before the 2003 amendments and to extend its remit to other public bodies, stated as:

“We will legislate to restore the Freedom of Information Act to what it was ...., and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions. We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered.”

The Commissioner had previously published a commentary in 2007 which contained detailed recommendations aimed at improving the operation of the Act.  Many of the recommendations were incorporated into the Draft Heads. 

As you’ve heard from the Minister, key features of the FOI Bill include:-

  • Reversing the very wide definition of Government introduced in the 2003 amending legislation;
  • Curtailing the time period within which Government records cannot generally be considered for release from 10 years to 5 years repealing the restriction also put in place in the 2003 Act;
  • Reducing internal review and appeal fees for non-personal requests from €75 and €150 to €30 and €50 respectively.

However, the Bill does not fully restore the legislation to its pre-2003 state.  For example, the 2003 Amendment Act introduced a mandatory class exemption for certain records containing information relating to security, defence and international relations (section 24).  The Amendment Act made the protection afforded by the exemption absolute, regardless of the sensitivity of the records or the nature of the harm that might be occasioned by their release.  While the Bill provides for a number of the section 24 changes introduced in 2003 to be reversed, certain records remain protected as a class.  For example, records containing information which was communicated in confidence between Ireland and an EU body will remain protected as a class of exempt records, even though the information contained in the records may have since lost its quality of confidence.  In the 1997 Act, such records were protected only where the public body considered that access could reasonably be expected to give rise to one of the harms identified in the exemption. 

It is proposed that the Bill will extend FOI to approximately 100 additional bodies, including the Central Bank of Ireland, NAMA, the NTMA, An Garda Síochána, the Education and Training Boards (formerly VECs), the Office of the Refugee Applications Commissioner and the Refugee Applications Tribunal, although there are significant variances in the degree of access.  For example, only the administrative records of the Gardaíwill be subject to FOI. 

The Bill was considered by the relevant Oireachtas Committee before Christmas and Report Stage is due to take place shortly.  Current indications are that the Bill will be passed by the summer with a commencement date of six months after enactment for most new bodies.

I also welcome the Minster’s commitment to reviewing the operation of the FOI Act generally.  My Office contributed extensively to the review of the operation of the FOI Act which was undertaken by the Government Reform Unit.  It was represented on both the internal and external review groups established to help undertake the review, with a view to developing a code of practice. The aim of the code will be to ensure that the obligations of public bodies under FOI are discharged to a high standard.  I am aware that the Department’s Central Policy Unit (the CPU) has already undertaken significant steps in the development of the code and I look forward to its publication.  The code must, in my view, be complimented by an adequately resourced, effective and readily available support service, particularly for those bodies coming within remit for the first time.  Accordingly, I believe the CPU has a critical role to play in offering ongoing support in the implementation of the new code.  It is therefore essential that the CPU is adequately resourced to allow it to fulfil that critical role

I also believe it is essential that the FOI function is adequately resourced within public bodies.  In her Annual Report for 2012, the former Commissioner highlighted a growing concern that many public bodies do not have an adequately resourced FOI function and the priority afforded to the administration of FOI matters by many public bodies appeared to have reduced as resources diminished and demands for greater efficiencies increased.  I am concerned that many public bodies are failing to ensure that the administration of the FOI process, as a statutory function, is afforded as much weight as any other statutory function. 

OIC Workload

Unfortunately, my Office has faced similar resource challenges in arising from the severe economic climate.  To address these challenges, my Office commenced a process of reform last year, involving a complete review of organisational structures and processes to improve case turnaround times and increase case throughput.  As an interim measure, a “triage” process was introduced to effect a more speedy resolution of cases where possible and this has led to some improvement.  In 2013, 26% of cases were closed within a four-month period, compared to 19% in 2012. The case closure rate of 258 cases for 2013 represents a 29% increase on the 200 cases closed in 2012. There was also a focus during the year on closing older cases.

Unfortunately, however, the number of cases accepted for review in 2013 also increased, with the result that the number of open cases on hand at the end of the year remained effectively unchanged.  Furthermore, I expect the workload of the Office to increase with the passing of the FOI Bill and its extension to a significant number of additional public bodies.

I have recently approved a range of amendments to the Office’s review processes.   The amendments contain a mixture of improvements in internal processes and a need for improved engagement with this Office from public bodies.  A process of informing public bodies of the proposed changes which will affect them will commence in the near future.  However, the new processes will include:

  • Implementation of a more rigorous regime for requesting information from public bodies. We will be emphasising to bodies the importance of getting it right first time.
  • We will be issuing new guidance to public bodies setting out our expectations on how they deal with requests in the first place and how they engage with my office when their decisions are subject to review.

I am confident that when implemented, the changes will create a more streamlined review process which will impact positively on case turnaround times.  I was also pleased to be able to recruit 5 more staff to help to tackle the additional case load which will arise from the reforms.

Has the FOI regime achieved or surpassed expectations?

Because of the concentration on the shortcomings, people often underplay the impact of FOI, but overall, access to information has been transformed and this has had a major impact on public debate.  There has been a huge change in thinking by public bodies and this has contributed significantly to greater openness and transparency.  The press and media generally have made extensive use of this access to challenge and inform.

The 1997 Act marked a big step forward but the 2003 Act was a significant step back.  The new legislation will go a long way to restoring the lost access, as well as extending FOI beyond its original scope.

There was an initial big commitment to training and implementation but this has fallen away in recent times, partly because of the financial crisis and generally because you would expect some reduction as the regime became embedded.  Getting the most out of the new legislation will require commitment to training and resourcing of the FOI function in public bodies, especially those newly affected by FOI.  I welcome the very positive engagement there has been with DPER regarding the legislation, and the very significant Government commitment to enhancing the FOI regime.

In conclusion, I believe that FOI has transformed public life and delivered on many of its promises.  However, there is scope for even more openness in the future and for improvements to the administration of FOI to make it more effective.  Finally, I believe that there is still some way to go in eliminating the remaining elements of the culture of secrecy and developing a positive mindset across the public sector in favour of openness and transparency in the pursuit of better governance.