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A view from Ireland - speech to Campaign for FOI, London (2 Feb 1998)

A view from Ireland - speech to Campaign for FOI, London (2 Feb 1998)

The following speech was delivered by the Ombudsman and Information Commissioner designate, Mr. Kevin Murphy, on the 2nd February 1998, to the Campaign for Freedom of Information, in London

Kevin Murphy - Information Commissioner Designate

INTRODUCTION

I was delighted, Chairman, to accept the invitation to participate in this Conference not only because of its relevance to my proposed new role as Information Commissioner but because it enables me to acknowledge publicly the tremendous support and co-operation I have received as Ombudsman for Ireland from my counterparts in the United Kingdom.

When I first took up office as Ombudsman, Sir William Reid the then United Kingdom Parliamentary Commissioner for Administration and Health Services Commissioner was particularly helpful to me. The excellent co-operation between our two offices has continued with William's successor Michael Buckley as has the equally good relationship we have with the various Commissioners for Local Administration in England, Scotland and Wales and, needless to say, with Gerry Burns the Parliamentary Commissioner in Northern Ireland. I must warn, however, that all this fellowship and goodwill is temporarily suspended for the duration of the Five Nations Championship!

The Irish Freedom of Information Act 1997 was passed in April 1997 and comes into effect on 21 April 1998 for Government Departments, the Defence Forces and a wide selection of agencies and offices associated with Government Departments. The Act also applies to the general administration of the courts and of the Attorney General and the Director of Public Prosecutions. The Houses of Parliament are covered but the private papers of M.P.s and official documents which are required by rules or standing orders to be treated as confidential are excluded. The Act comes into effect for local authorities and the health service on 21 October, 1998. Thereafter, the Act may be extended by regulation to the Police and to a whole range of public bodies including all the public utilities as well as private bodies to the extent that they perform public statutory functions.

The significance of the Act for the Irish public service is enormous. Hitherto the service was dominated by a culture of secrecy with attitudes formed by an Official Secrets Act which provided that all official information was secret unless its publication was specifically authorised. The transition from that culture to a new one of openness is a major challenge for public servants and for the Government.

In the time available to me, I will concentrate on some specific issues and I will assume a certain familiarity among my audience with the general concepts and essential characteristics of a F.O.I. Act. My talk falls into two parts. In the first part I will comment on a number of issues raised in your Government's White Paper which, I consider, are of general interest. In the second part I will outline the key developments now taking place as Irish public servants prepare for F.O.I..

SOME ASPECTS OF THE WHITE PAPER

I start from the position that the really essential elements for a good Freedom of Information Act are contained in the Irish legislation and in proposed legislation as delineated in your Government's White Paper. But there are some interesting differences and I will deal with these under three broad headings: Coverage, Gateways and Exemptions. In doing so I am making no value judgements. As Ombudsman I have learned that while there have to be essential common characteristics, every national institution develops its own uniqueness.

With regard to Coverage I note that Parliament will be excluded from the scope of the proposed Bill. Certain security services are also excluded as are the functions of public bodies including the police, relating to the investigation, prosecution or prevention of crime or the conduct of civil or criminal proceedings by public bodies. A somewhat different approach is used in Ireland. These functions are not excluded but the records relating to them may be exempt and there is provision subject to certain safeguards for the issue of Ministerial certificates in particularly sensitive or serious cases, the effect of which is to exclude decisions to refuse access from review by the Information Commissioner. There is provision for appeal to the High Court on a point of law in relation to the issue of a certificate. Exemption does not apply, however, to any record relating to investigations or actions which are not authorised by law or which contravene the law or records which contain information about the effectiveness or efficiency of the public bodies involved or the policies, programmes and schemes operated by them. In relation to records covered by legal professional privilege which will also be excluded from your Act access to them shall be refused by Irish public bodies and, indeed, their existence may not be disclosed if it were considered that such disclosure would be contrary to the public interest. The Information Commissioner would of course have access to those records for the purpose of a review.

The proposal in the White Paper to cover privatised utilities is interesting especially against the background that Ombudsmen in a number of countries are concerned at the prospect of public utilities moving out of their jurisdiction when they are privatised. In Ireland all the main public utilities remain in State ownership although strategic alliances have been entered into in some cases and competition from new entrants encouraged. I suspect that in due course, when the extension of F.O.I. to these bodies arises, the question of ensuring a level playing field with competitors from home and abroad will surface.

Finally, under the heading of coverage, I note the intention in the White Paper that access rights will be fully retrospective. In Ireland full retrospection applies only to personal records; otherwise access is restricted to records created after the commencement of the Act unless prior records are essential to the proper understanding of current records. There is provision for the progressive rolling back of this restriction by regulation. I understand that the rationale for not having full retrospection was not that of workload but that of concern that it would distract from the huge effort and commitment needed to bring about the necessary cultural change and to complete necessary preparatory work on time.

The White Paper in its reference to Gateways to the proposed Act mentions the need to include "some basic tests of reasonableness" which applications must meet but goes on quickly to say that such tests must be "carefully drawn so that they do not obstruct genuine requests for information". The White Paper also confirms that the motives of the requester will be disregarded. This disregard is set out very clearly in our legislation. In addition our Act provides that, even where a request lacks particularity or is so voluminous that it might substantially disrupt the work of the public body, the request may be refused only after the requester has received assistance or an offer of assistance to amend the request to enable it to be dealt with. As to fees and charges, the Irish position is that fees may be charged in respect of the time spent in efficiently locating and copying records based on a standard hourly rate to be prescribed by the Minister for Finance. No charge will be made for locating personal information except where a large number of records are requested. The cost of copying personal information may be waived where the charge would not be reasonable having regard to the means of the requester.

Turning now to Exemptions in the proposed Act, time requires that I be very selective and I will confine myself to commenting on, first, the Public Interest Test and, second, Decision Making and Policy Advice - the only specified interest where the "simple" harm test applies. I note the indication in the White Paper that an attempt will be made in the Bill to increase the clarity and certainty of individual decisions by defining what constitutes the public interest. The Irish F.O.I. Act does not contain any definition of the term proceeding on the basis that, in practice, a public interest test will always turn on the facts of each individual case. It will require a careful balancing of the public interest in citizens being informed of the processes of Government as against the public interest in the proper and effective functioning of Government. One great merit of this approach is that, over time, the test will maintain the Act's relevance as the balance between the factors for and against disclosure of records shifts, as has happened for example over the last twenty years in relation to information on the environment. In my discussions with Permanent Secretaries and various chief executives of public bodies, I have indicated that in those cases which will inevitably arise, where a decision to release or to withhold is finely balanced, they should bear in mind two considerations. First the overall thrust of the Act, as set out in the long Title is clearly predisposed to the release of information. Second there is an explicit direction in the Act that the Information Commissioner should approach each case on the basis that a decision to refuse a request shall be presumed not to have been justified unless the body shows to the Commissioner's satisfaction that the decision was justified.

The public interest test is likely to figure largely in cases where a body considers that the release of information could prejudice the integrity of the decision making or policy advice process. I must admit that I was intrigued by the emphasis put in the White Paper on the protection of "free and frank" internal discussions. It reminded me of the number of times I was chided by my youngest daughter over the breakfast or dinner with the remark "You are speaking in mandarin again Dad". Arguments against disclosure based on the need for frankness and candour in official advice have been well aired in the New Zealand and Australian context and the campaign for F.O.I. has documented this in some detail in their submission to the Public Administration Committee. I suspect that the need to raise this issue in the White Paper arises to some extent from the very breadth of the particular exemption. In Ireland this area is broken down into three separate categories: records relating to meetings of the Cabinet, deliberations of public bodies (which embraces internal discussions) and functions and negotiations of public bodies. In relation to the first category the exemption does not extend to factual information relating to a Cabinet decision already public or to records relating to a decision made more than five years previously.

I like to think that all policy advice is given freely and frankly and that any case for exemption in this area made to me as Information Commissioner will not be argued simply on those grounds. Indeed it seems to me that to make the argument is to suggest that those concerned would make different comments or decide matters differently if their deliberative processes were open to scrutiny.

PREPARATIONS IN THE IRISH PUBLIC SERVICE FOR F.O.I.

I will approach this part of my talk under three headings, Guidance and Support for Requesters, Guidance and Support for Public Bodies and the Information Commissioner and his/her functions and powers. The Act requires that a public body must publish before date of commencement, information setting out a general description of its structure, functions and the services it provides to the public as well as a general description of its rules and guidelines used in implementing its schemes and programmes. In addition it must describe the classes of records it holds and the arrangements for enabling the public access to such records. The provision also requires the public body to set out rights of review and appeal against its decisions generally. The Act also requires that each public body publish the rules, procedures, guidelines, interpretations and an index of precedents used by it for the purposes of decisions and recommendations. Where such material is not published, or, where published, it is incomplete or inaccurate, the public body concerned is required to ensure that a person is not prejudiced due to such failure or error on the part of that body. The Act also confers a legal right on each member of the public to require that personal information relating to oneself and held by a public body be amended where it is incomplete, incorrect or misleading.

A very interesting provision in the Act especially from my perspective as Ombudsman confers a legal right on each person to reasons for a decision on a matter particularly affecting that person.

With regard to support for public bodies, in May 1997, immediately after the passing of the Act the Cabinet approved an implementation framework and time table for the year ahead which set out specific tasks for each public body and for the F.O.I. Central Policy Unit. This Unit is a key element in the process. It was set up within the Department of Finance with the broad function of guiding and supporting the preparations for F.O.I. across the public service and providing an expert advisory service. It gives legal advice in consultation with the Attorney General's Office on interpretation of particular provisions, precedents abroad and relevant public interest factors. It proposes strategies for handling issues of common interest across departments (e.g. tendering, policy advice, confidential information) as well as assisting with training and records management. The CPU has a central role in informing and educating the public about FOI and, in conjunction with an interdepartmental working group, is developing a media campaign to take place prior to April, 1998.

Pending my formal appointment as Information Commissioner by the President on the nomination of the two Houses of Parliament, I am in the process of setting up the new Office by recruiting some extra staff and moving to a larger premises. In the meantime I, the Director of the Office of the Ombudsman and one of my Investigators are familiarising ourselves with our new functions. These cover not only the review of decisions made by public bodies in relation to F.O.I. and the making of binding new decisions but a range of broader practices aimed at ensuring the successful operation of the Act and the development of a new public service culture of openness hopefully with the active support of the public bodies themselves and the two Houses of Parliament. The powers I will have as Commissioner are extensive and formidable. I have to admit that when I was first approached to take on the role of Information Commissioner in addition to that of Ombudsman I was concerned at the prospect of how my role as Commissioner involving legally binding determinations would sit with my role as Ombudsman where I make recommendations. Let me say that a factor in my decision was the encouragement I received from my counterparts in New Zealand and Australia who stressed the complementarity of the two roles.

I conclude by expressing the wish that the friendly co-operation I have enjoyed as Ombudsman with my counterparts in the United Kingdom will be replicated soon in my role as Information Commissioner.