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1/10/99 Freedom of Information Now - Speech given by Commissioner at conference "Management of Government in the New Millennium"

1/10/99 Freedom of Information Now - Speech given by Commissioner at conference "Management of Government in the New Millennium"

MANAGEMENT OF GOVERNMENT IN THE NEW MILLENNIUM

Conference organised by the Departments of Government and of Law, University College Cork

Address by Kevin Murphy, Ombudsman and Information Commissioner

FREEDOM OF INFORMATION NOW

In July, I gave evidence to a Select Committee of the House of Lords which was considering the British Government's Freedom of Information Bill. One of the questions I was asked concerned the contribution which I thought freedom of information could make to improving the public service. I answered that I thought it could contribute significantly, in tandem with other initiatives, to ensure greater accountability on the part of the public service and much better decision making by it. Towards the end of the session, after we had worked our way through the Irish F.O.I. Act, the Chairman of the Select Committee asked me to choose, by reference to the various sections of the Act covering exempt records, one single class of information to which it was important the public should have access. I replied that, if one approached F.O.I from the perspective of the ordinary person in the street, the right of access to personal information coupled with the protection of privacy would be the most important. I would, therefore, choose Section 28 of the Act enabling as it does very wide access for individuals to personal information about themselves. In perhaps, typically Irish fashion, I immediately went to say that, if one approached the Act with the objective of a more accountable and better public service in mind, then I would choose Sections 19 and 20 which deal with policy advice and decision making. Section 19, for example, while it is a class exemption covering meetings of the Government, provides that the briefing notes which officials give their Ministers prior to meetings are open to access if the notes relate to a Government decision made more than five years before the request for access was received. Section 20 for its part envisages the release of records concerning policy advice, the exemption applying only when their release would be contrary to the public interest with particular reference to the imminence of a significant decision. Taken together, the range of non-exempt information defined in these Sections has a significant role to play in realising the objectives of the Act. Of course, other exemptions might apply, for example if the records related to security, defence or law enforcement, but outside of those, most other exemptions would be subject to a public interest override.

Here at home, the two Tribunals of Inquiry chaired by Mr Justice Moriarty and Mr Justice Flood, respectively, and the investigation by the Public Accounts Committee of Dáil Éireann into the evasion of payment of D.I.R.T., have brought accountability centre stage and have focused public attention on that grey area where elected politicians and appointed public officials interact. It is a area to which, over time, F.O.I. will bring greater light. It is also of interest that the Minister for Public Enterprise, Mary O'Rourke, T.D., is proposing to publish later in the year a discussion paper on Government and Accountability Arrangements in the Regulation Process in the sectors for which she has responsibility .

So, it seems to me to be an opportune time to say a few words about accountability and F.O.I. Accountability is all about bodies or individuals rendering an account to some other body or person of their stewardship for the exercise of the duties and responsibilities which have been entrusted to them. Accountability and responsibility must be seen as different sides of the same coin. The external accountability mechanisms with which we are all familiar are the Dáil and Seanad (but particularly the Dáil) which exercise parliamentary control over the Executive and the Courts which exercise judicial control, largely through judicial review of decisions taken by public bodies. In a general way, the Comptroller and Auditor General and the Ombudsman, may be seen as independent offices in support of Parliamentary control of the Executive. The Comptroller and Auditor General submits an Annual Report to the Dáil and may submit special reports which enable the Public Accounts Committee to examine the extent to which the Executive has used the resources granted to it properly, efficiently and effectively. The Ombudsman submits an Annual Report and may submit special reports to both the Dáil and Seanad examining the extent to which the Executive's administrative decisions have been made properly and in accordance with fair and sound administration.

I think it would be fair to say, however, that the reports of both the Comptroller and Auditor General and the Ombudsman are usually more concerned with corporate accountability than with individual accountability. It is true that the Secretary General of a Department or the official at the head of the public body, in their role as the accounting officers, are statutorily accountable in financial matters to the Dáil . Equally, the Minister or the Chief Officer of the public body is open to criticism for any serious maladministration. But by and large, action against the "perpetrator" of impropriety or maladministration remains a matter for the internal administrative control system or disciplinary process. Yet, increasingly, under F.O.I., individual officials who have taken particular decisions or who have given particular advice on which a decision is based may become publicly identified. What are the implications of this for accountability? Are officials whose accountability hitherto was internal and hierarchical now to be subject to a form of public accountability, initiated perhaps by the media? And are the statutory provisions which underpin accountability consistent with these developments?

Undoubtedly, there has been a considerable amount of statutory change in relation to accountability; the Comptroller and Auditor General (Amendment) Act, 1993, the Public Service Management Act, 1997 and the Committees of the Houses of the Oireachtas (Compellability, Privileges, and Immunities of Witnesses) Act, 1997. In the Comptroller and Auditor General (Amendment) Act, Section 19 sets out the duties of accounting officers for which they may be held accountable by the Public Accounts Committee. These include ensuring the regularity and propriety of all transactions, efficiency in the use of resources and proper systems, procedures and practices to enable effectiveness to be evaluated. Subsection (2) of that Section, however, goes on to say: " In the performance of his duty under this section an accounting officer shall not question, or express an opinion on the merits of any policy of the Government or a Minister of the Government, or on the merits of the objectives of such a policy ".

The Public Service Management Act, 1997, in Section 4, specifies in some detail the duties of Secretaries General and other Heads of Offices. However, Section 3 makes it clear that Ministers remain responsible for the performance of all the functions assigned to their Departments. Presumably, this is a constitutional imperative. Subject to that and also subject to the determination of matters of policy by Ministers, Secretaries General are statutorily assigned a range of duties spanning the provision of advice, the general management of the Department including financial and personnel management, the formal delegation of responsibilities to other designated officers and the preparation and submission to Ministers of strategy statements for approval and laying before the House of the Oireachtas, as well as progress reports on their implementation. The Act further provides that Ministers may give directions to Secretaries General in relation to all of their duties with the exception of one, relating to the appointment, performance, discipline or dismissal of staff below a certain grade level. Section 6 of the Act emphasises that Secretaries General are accountable to their Ministers for the performance of their duties although, of course, as Accounting Officers, they continue to be answerable as well to the Public Accounts Committee for financial management which would include in the case of the Department of Finance and the Revenue Commissioners, the raising of revenue. They may, however, be required to appear before an Oireachtas Committee in relation to any strategy statement which has been laid before the Houses. Only time will tell whether or not this will develop in a way which will involve de facto accountability to the Oireachtas on their part even though their statutory accountability is to the Minister. It is interesting in that regard that Section 5(3) of the Public Service Management Act specifically excludes from the scope of the F.O.I. Act, for a period of five years, draft strategy statements or versions not approved by the Minister or amended by the Minister as well as records relating to any direction issued by the Minister to the Secretary General in relation to strategy statements.

So far so good. The 1997 Privilege and Compellability Act is not concerned with accountability per se, but with access by duly authorised Oireachtas Committees to official records and with matters relating to the appearance of witnesses before such Committees. There seems to be little restriction under the Act on a Committee's powers to direct persons (other than the President, the Judiciary, the Attorney General and the Director of Public Prosecutions, and their respective offices) to attend. If they refuse to attend, the High Court may be asked to order compliance. A Secretary General may, however, seek to be represented personally or by another official at any hearing relating to his/her Department to ensure that the Department's side of the story is heard. When one comes to access to records and evidence, however, there are a number of exemptions which, by and large, mirror a number of similar exemptions in the F.O.I. Act. Records relating to discussions at Government or at a Government Committee are exempt. So too are evidence and records which might reasonably be expected to:

• prejudice a matter the subject of proceedings currently before a court in the State.
• affect adversely the security of the State or be prejudicial to the State in its relations with other States.
• prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for these purposes.

[Note: I comment on the possibility of conflict between decisions about these exemptions and decisions under the FOI Act in a Postscript to this paper] There are two further exemptions which call for comment. A Committee may not have access to records relating to the assessment of an individual's liability for tax and other payments. A Committee, therefore, could have access to a whole range of other personal information about individuals. I am somewhat at a loss to understand the logic of allowing access, say, to an individual's social welfare records or medical records but not to his/her tax records. Interestingly, this exemption has been deleted by the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 for the purposes (but only for the purposes) of the PAC Inquiry into D.I.R.T. The final exemption is set out separately in Section 15 which reads as follows and is similar to Section 19(2) of the Comptroller and Auditor General's Act:

"A civil servant or a member of the Permanent Defence Force or the Garda Síochána shall not -

(a) while giving evidence to a committee, question or express an opinion on the merits of any policy of the Government or a Minister of the Government or the Attorney General or on the merits of the objectives of such a policy, or

(b) produce or send to a committee a specified document in which a civil servant or a member of the Permanent Defence Force or the Garda Síochána questions or expresses an opinion on the merits of any such policy or such objectives as aforesaid".

It remains to be seen how wide this exemption is in practice since it is limited to the merits of policy not policy itself.

So what can one make of all this? My tentative conclusions, based admittedly on a somewhat limited analysis, are that:

(1) the traditional internal hierarchical system of accountability within Departments continues with the Secretary General accountable to the Minister for the performance of specified duties and other staff accountable to the Secretary General for their performance of the duties assigned to them. The new legislation has, however, clarified the responsibilities of officials thereby facilitating the process of Ministers holding them accountable.

(2) In addition, Secretaries General and other accounting officers remain directly accountable to the Public Accounts Committee of the Dáil for their management of resources. Again their duties in this area have been more clearly defined particularly in relation to efficiency and the need for systems to facilitate greater effectiveness.

(3) The decision making process is more open to scrutiny by the Houses of the Oireachtas and the public at large as a result of the Public Service Management Act, the Privilege and Compellability Act and the F.O.I. Act. The extent to which this introduces a new element of de facto accountability by officials to the Oireachtas and to the public at large remains to be seen, but there are restrictions in place to limit, particularly in the short term, the scrutiny of the political/official interface in the general area of policy advice.

What comes over very strongly to me is that the attempt by means of these various Acts to move away from the traditional model of accountability to a new model seems to lack completion and that as a result there is scope for a great deal of confusion. The traditional model - which I would call the Collaborative Model - is at its best exemplified by the Seán Lemass/John Leydon relationship in the Department of Industry and Commerce, the Seán Lemass/T.K. Whitaker relationship when Lemass was Taoiseach and Whitaker Secretary of the Department of Finance and the Donogh O'Malley/Seán O'Connor relationship in the Department of Education. There are more recent examples but I have been too close to some of them to give an impartial view. The Collaborative Model involved a merging of the personal skills of the politicians and their feel for the grassroots and for what "the traffic would bear" with the expertise - whether financial, economic, social or managerial - of the official. The model to which we seem to be moving is what I would call the Contractual Model exemplified by the new relationships in the New Zealand public service. Here the Minister with the advice of special advisors determines what he/she wishes to achieve during a term of office and enters into a short-term contract with the Secretary General. The Secretary General undertakes to deliver a range of outputs to realise the Minister's desired outcomes and is assessed on the success or otherwise of that delivery. In return, the traditional constraints on a Secretary General both in respect of his/her own conditions of employment and the recruitment and remuneration of staff have been greatly relaxed.

The Collaborative Model is by definition less open and much less defined than the Contractual Model and respective responsibilities are much less clear cut. To operate successfully it requires a high degree of co-operation and common ground as well as mutual trust - some would say loyalty. It may also require a high degree of official secrecy, particularly in relation to the Minster/Secretary General relationship. The Contractual Model needs very precise definition especially in relation to responsibilities and accountabilities. It is a more professional relationship but by its nature may develop an adversarial aspect. It may be that holding someone accountable necessarily requires an adversarial aspect. It is clear that, while we have moved somewhat in the direction of the second model, we have stopped well short of it. Let me illustrate the significance from the perspective of F.O.I. by referring to the first day's hearing of the Public Accounts Committee's investigation into the evasion of D.I.R.T. The Chairman, Deputy Jim Mitchell expressed his dissatisfaction with the records made available to the Committee by the Department of Finance and challenged officials to provide written evidence of actions they had allegedly taken. The Departmental officials, for their part, made it clear that the records did not tell the full story and it became clear that this was due in no small way to the nature of the Minister/Secretary General relationship. Phrases like "As directed" or "As discussed" are the distinguishing marks of this kind of closed relationship. I would expect that, in a contractual relationship, one might find a public official recording something like:

" Minister, when we discussed this last Tuesday you told me that you strongly disagreed with the line I was proposing to take in relation to X and you directed me to submit alternative proposals to you on the lines of Y. I wish to place on record my view that this will result in a less than satisfactory outcome. However ... and so on ".

It does not take much imagination to visualise the official referring to different scenarios such as difficulties with the Parliamentary Party or with another party in a Coalition Government.

I'm sure the scenarios I paint could be very uncomfortable for all those involved in the decision making process and may be seen as unacceptable to some of them. However the merit of this approach is that it gives a correct record of what actually happened and, from the point of view of accountability, it documents the respective inputs made to the decision making process. The Information Commissioner for Canada in his recent Annual Report claims that, while the Canadian Act of 1983 has been successful in forcing public servants to disclose more information, it has not changed the closed culture. He sees Canadian public servants continuing to stress their "servant" role (that is being unseen, unheard, obedient, unaccountable) rather than their "public" role (being accountable, professional, obedient to the law and the public interest). I suspect that the outcome of the Public Accounts Committee's hearings may greatly influence further developments in accountability.

All this brings me to the question of record keeping. There are indications that some public servants have decided that their response to F.O.I. should be to record less information especially in relation to minutes of meetings. I think anyone who gives some thought to recent events and the direction in which we are going on accountability, would conclude that less comprehensive records may be a double edged sword and may lead later on to a distorted view of what the various contributions may have been. It also does a disservice to future analysis by historians and others of developments in government and public policy. Section 15(5) of the F.O.I. Act puts an onus on the Minister for Finance to ensure that appropriate measures are taken by public bodies for the purpose of facilitating compliance with the Act and provides for the making of regulations providing " for the management and maintenance of records held by public bodies ". However this provision is without prejudice to the generality of Section 3(1)(c) which empowers to the Minister to make regulations " for the purpose of giving full effect to this Act ."

Regulations on records have not yet been made. I would urge the Department of Finance when considering such regulations to have regard not only to the need to ensure good information management but to the duty on public servants to create such records as are necessary to document, adequately and properly, Government's objectives, policies, decisions, procedures and transactions. An examination of the sanctions which exist to prevent the destruction, alteration or falsification of records would also be important.

Finally, I would like to make a brief comment about the accountability of independent regulators or adjudicators. I think a distinction has to be drawn between the regulators on the one hand, who make many decisions with considerable financial and economic implications and the adjudicators such as the Comptroller and Auditor General, the Ombudsman and the Information Commissioner, who sit in judgement on the decisions of public bodies. All are, of course, subject to judicial control by way of judicial review. In the case of the regulators, this seems to me to be a very effective control because, putting the consumer to one side for the moment, the parties involved predominantly are large companies and have the resources to use this avenue effectively. Judicial review arises very infrequently in the case of the Comptroller and Auditor General and the Ombudsman, because of the nature of their findings and, in the case of the Information Commissioner, the decisions are appealable to the High Court on a point of law. When one comes to parliamentary control, I would again make a distinction between the two groups. The method of appointment of the Ombudsman and the Information Commissioner involving as it does the two Houses of the Oireachtas, a six year term of office in both cases which allows the Houses to review the appointments and the requirement to report annually to both Houses ensures, in my view, adequate accountability to Parliament without in any way impinging on the independence of the two Offices. Regulators on the other hand are exercising powers hitherto exercised by Ministers and their Departments for which they (the Ministers and their Departments) were previously accountable to Parliament on an ongoing basis and which were also within the Ombudsman's remit. If reporting by regulators to Parliament is only on an annual basis, there is a considerable reduction in parliamentary day-to-day control over the decisions being made. One must set against this loss of accountability, the need to ensure that the individual decisions of the regulators are taken on a basis free of any possibility of political interference and consistent with the overall public interest. I am not clear whether the original intention in establishing regulators was to ensure independence from Ministerial and Departmental control alone or whether it was felt that the individual decisions of regulators should also be free of parliamentary control which, control, needless to say has political aspects. It might be possible to make up for the loss of parliamentary control by establishing an on-going reporting relationship between a regulator and a designated Oireachtas Committee but on the basis that the individual decisions of the regulator would be exempt from any examination. This would still leave considerable scope for an examination of a regulator's general approach to decision-making and for facilitating dialogue on the many difficult decisions of principle which a regulator faces.

I note that the intention is that the Telecom Regulator and the Electricity Regulator will come within the scope of FOI from next year. I am conscious that, since Telecom Éireann became Eircom, it has moved outside of my jurisdiction as Ombudsman and customer complaints now fall to be made to the Telecom Regulator. I have some doubts as to whether this is the best approach given the very many other functions which the regulator has to perform. There is sometimes a conflict between efficiency and fairness. I note that the ESB has now appointed its own Complaints Commissioner. I have always supported the concept of an internal complaints system provided there is access to an external adjudicator who is, and is seen to be, independent of the bodies within remit. It seems to me that there may be a case for the Minister to appoint an independent Complaints Commissioner for each industry wide sector, with appropriate terms of reference and with resources financed by the industry itself. I do not favour the use of the term Ombudsman because that term has historically been linked with the process of ensuring the accountability of the public service to parliament but is increasingly being applied incorrectly to almost any situation requiring a dispute resolution facility and consequently leading to much confusion among the public at large.

I hope I have raised issues which merit more detailed consideration, perhaps jointly by the UCC Department of Government and the Department of Law as well as by the appropriate Government Departments and offices.

Postscript : Where a dispute arises about exempt evidence or records under Section 5 of the Committee of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, there are two possible mechanisms to determine the matter. If the dispute relates to records the release of which might constitute contempt of Court, the High Court may be asked to determine the matter. If State security, international relations or law enforcement are at issue, the matter may be determined by the Secretary General to the Government.

What would happen if, in a dispute situation, someone requested the particular records under the FOI Act? Could conflict arise between the Information Commissioner and other appeal mechanisms?

Since any decision by the Commissioner is appealable on a point of law to the High Court conflict is unlikely in the case of records involving possible contempt of court. In the case of records in relation to which State security, international relations or law enforcement issues arise, it must be noted that the relevant exemption Sections of the FOI Act provide for Ministerial certificates.

KEVIN MURPHY INFORMATION COMMISSIONER