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Information and the Public Service (22 Feb 1996)

Information and the Public Service (22 Feb 1996)

Kevin Murphy, Ombudsman

Information is at the centre of all our dealings with public authorities. Without it we cannot begin asking how and why decisions were made. The fundamental cause of many complaints received by my office is a failure to provide appropriate information or reasons. In the first part of my talk I will try to give you a flavour of the kind of complaints which come to me as Ombudsman as a result of shortcomings of one kind or another in the internal or external communications of public bodies.

Information is also fundamental to transparency and accountability in the way Government and public authorities operate. Increasing the availability of official information enables the public to become more involved in the making and administration of laws and policies by central Government and in the actions and decisions of local government and other state bodies. By promoting the accountability of Ministers, elected members of local government and public officials generally, freedom of information should also enhance respect for the law and promote good government and good public administration. In the second part of my talk I will try, in the light of experience in other countries, to speculate on the impact which the proposed Freedom of Information Act will have on specific activities in public bodies.

I should add that, in my role as Ombudsman dealing with complaints against Government Departments, health boards, local authorities and Telecom and An Post, I enjoy the great advantage of unrestricted access to information. I may require any officer or staff member of any of these public bodies who can supply information or produce documents relevant to the complaint to give that information and produce that document. I have also spelled out in my last annual report the right of citizens to be given, as a general rule, reasons for decisions, an opportunity to make representations and to know what appeal system is open to them.

Let me now start with internal communications between different sections or divisions of the same organisation.

All organisations which provide social services or benefits have a responsibility to establish a system which will ensure that their clients are given adequate advice whenever they contact the organisation for advice or assistance. Given the complexity of the information and eligibility rules relating to many schemes and programmes, organisations must accept responsibility for ensuring that the right information is given and individuals receive the payment or services to which they are entitled. I get many complaints where clients, while they were not given wrong advice, were not given adequate advice. Some may have been refused benefits quite correctly but were not told that they were or might be entitled to different benefits perhaps operated by some other section or division. So far as the client is concerned the person they are dealing with represents the organisation and not just a part of that organisation. It is my general practice where I find, after investigation, that a client lost out on a benefit because of the failure of the organisation to provide adequate information when given the opportunity to do so, to recommend payment of that benefit where appropriate from the date of first contact. In one case which I dealt with last year, the incorrect advice resulted in a lost entitlement to a widow's pension for some six years. I was able to have this rectified with arrears and compensation in excess of �14,000 being paid.

I appreciate that this "one stop shop" approach needs a good deal of co-ordination and internal communication if it is to operate effectively. Many organisations have made a lot of progress in this area. For example, the Revenue Commissioners are working towards a system where a taxpayer, paying tax under a number of different headings, will be able to have them dealt with all together. We have noticed over the years that a breakdown in internal communications and flows of information often occurs between the administrative structure and the technical or professional grades within the same organisation. Indeed some people in these grades do not see themselves as having any role in relation to a scheme or programme other than a specifically technical one. Equally the organisation as a whole can be at fault in that the technical and professional grades are often not properly briefed or brought up to date with changes in schemes or programmes. It is of interest in this connection that staff of my office, at the invitation of the Department of Agriculture meet staff from the Veterinary and Agriculture Inspectorates from time to time to explain to them the general principles of administrative law and the general approach of my office.

I'd like to give an example of a breakdown in internal communications which had serious adverse effect on a client. It will be set out in more detail in my next Annual Report. It arose from a new European Union directive which had serious implications for the continued operation of a number of small operators in a particular agricultural industry. Even though a number of officers of the Department of Agriculture were calling on this particular operator quite regularly, no one ever drew his attention to the directive and, to cut a long story short, he ended up going bust. On investigation, I found that there had been maladministration and I recommended significant compensation.

Moving on to communications between organisations and clients, many complaints I receive concern incorrect or misleading information provided during phone or counter inquiries. In these cases it is difficult to establish what occurred or even whether an inquiry had been made. I have often to proceed on the basis of the balance of probabilities which is not very satisfactory. For the purpose of effective internal management, as well as external review, an adequate level of record keeping is essential and, indeed, failure to do so could in itself involve maladministration. The development of information technology and the huge expansion of the way in which information is generated and disseminated paradoxically often results in a reduction in the recording of important information and advice. Organisations must ensure that adequate audit trails are there if accountability is to be preserved. In a recent case of a refusal of Domiciliary Care Allowance, I found that there was no record whatsoever of the appeal only the actual decision to maintain the refusal. Incidentally record keeping in hospitals is particularly important as it is integral to the provision and continuity of care. It is also an insurance for a member of staff who may later be accused of negligence. I deal later with communication skills for front line staff. But could I also stress the importance of keeping application forms and other written communications with clients under review to ensure that they are as clear and as simple as possible.

I should mention that in the relatively small number of child care cases which have come to my office, we have found the standard of record keeping very good as indeed have been the arrangements to ensure confidentiality which is something we would be particularly concerned about in these cases.

Communications with people other than clients is often extremely important. Discharges from hospital is one example where there is a need for proper communication with relatives and carers and with staff in the general medical and community care areas. As the health service moves towards greater community and less institutional care, consultation is essential with the public at large on matters which may affect them. For example, in the case of the acquisition of property in the community to house patients who had suffered from mental illness, there is a need for proper consultation and communication with local residents. The purpose of consultation, once a decision has been made to go ahead with purchase, is not to invite approval or otherwise for the scheme but rather to create as far as possible an atmosphere of support and neighbourliness. In a recent complaint which came before me, I found the health board had acted sensitively and intelligently in relation to both consultation and involvement even though one of the local residents remained opposed to the development. I would expect health boards generally to adopt a similar approach. The problem of marriage breakdown and its downstream consequences, for example, where a dispute arises over the tenancy of a local authority house requires sensitive handling and careful consultation with all the parties involved.

One of the biggest changes affecting the public service during my time there was the growing importance of communications with the media. I think it is particularly appropriate that Maureen Browne has emphasised that aspect by having so many media people here to give their views. Public servants sometimes assume that once a professional press relations office is set up in their organisation they can abdicate any role in that regard. My experience has always been that, if an organisation wants to get fair play from the media for its side of a story, it is best done by collaboration between the experts on the ground and the press unit. Openness in relation to information and facts and acknowledgement of shortcomings, if they exist, are often the best course.

I want to end this part of my talk by referring very briefly to two developments which could greatly improve communications in public bodies. First, I am strongly in favour of organisations setting up their own internal complaints or appeals systems which complement the work of my office and which provide for a real objective review of the complaint and for appropriate internal feedback where a complaint is justified. Any system must of course be fair to staff as well as to clients. Sometimes the fear of litigation can produce a defensive, unhelpful response to a perfectly innocuous request for information. Of course the request may be for self interest but I find that in these cases complainants become much more committed to their case if they feel they have been given the brush off, ignored or treated with disdain. My office would be very happy to advise public bodies on how best to devise an internal complaints system. In any event it looks likely that the Administrative Procedures Act which the Government have promised will ensure that many of these requirements will be put in place. The second development I would like to see is even greater emphasis on training for front line staff in skills for dealing with the public. Many public servants come across very difficult clients from time to time and my own office is no exception. But their complaints and concerns are usually very real to them and we have to learn to listen to and deal with them with sympathy and understanding. In particular, we must be sensitive to the consideration that complaints often arise from events which are unique to the complainant though not to the public body, for example the death of a loved one or the way one is informed of a serious illness. Just to show that some humour may be found even in the most stressful situations, could I read for you a brief snippet from an issue of the British Medical Journal headed "Morale and Mistakes" which my counterpart in Britain recently sent me. It began: "A friend was on the trolley on the way to theatre for an elective Caesarean section when the dismayingly young surgeon leaned over casually and asked if she was planning to have another child, adding that he really had to know immediately, as this would affect how he cut her open. The 30 seconds he allowed her to make this major life decision under conditions of stress, pre-med, and semi-naked horizontality, was of course generous by modern hospital standards. However the worry over this man's skills as far as human relations are concerned soon yielded to the conviction of a likely exemplary technical competence."

Could this happen in an Irish hospital? A colleague in the office told me the other day of his recent experience when he accompanied his aged mother to hospital to get the results of some tests. After waiting the usual few hours, he managed to get in with his mother to see a young doctor who confirmed that she had angina. When my colleague asked that he explain what this meant to her, the young doctor started with the remark "Well Mrs X we can't all expect to live forever."

I turn now to the more general question of access to official information. This morning the Minister dealt very comprehensively with the background to the new Freedom of Information legislation and with the likely structure of the Act. It will attempt to strike a balance between, on the one hand, the right of the public to have as much official information as possible available to them and, on the other, to protect the public interest where the release of sensitive information might harm that interest. Intertwined with this is the right of the individual citizen to know what personal information about him is held by public bodies and whether it is accurate and up to date. He must also be assured that personal information is treated in strict confidence and is not used for reasons other than those for which it was compiled. The Patients' Charter is an example where patients have a non-statutory right to information concerning their treatment and to have details of their medical records made available to them. While there were initially a number of complaints to my Office in this area, I think satisfactory arrangements so far as my office is concerned are now in operation in most bodies which come under my remit. I would, however, have to say that I am not satisfied that arrangements for publicising the Patients' Charter and implementing its procedures especially the complaints procedures are satisfactorily in place in many cases.

The one area where there is already in existence a statutory right to official information is the Access to Information on the Environment Regulations, covering a wide range of information such as water quality and waste emissions. Citizens refused information can appeal to me. I am already on public record as indicating that the general approach by public authorities (mostly local authorities in this case) to releasing information is to look for reasons in the Regulations for not releasing rather than asking would it do any harm to release the information. I have set out my views at some length in my last annual report and I will be returning to the subject in my next report so I'll refrain from commenting on individual cases to-day.

The fact that the media, to their credit, have been to the forefront in the campaign for freedom of information legislation may lead to the conclusion that new legislation will be media driven. This has not been the experience in other countries. For example, last year in New Zealand, which is very similar to Ireland in many respects, 47% of all requests for official information came from individuals, 14% from special interest groups and 14% from the media with the balance being most accounted for by requests from members of parliament and Opposition Party research units. It is impossible to forecast with any degree of certainty the number of complaints likely to arise under the new legislation. In New Zealand the Ombudsman receives about 3,000 complaints each year under the Ombudsman Act or roughly the same as I receive. He also received about 1,100 complaints last year under the Freedom of Information legislation and it would be reasonable to assume something of the same order here. The vast majority of these complaints related to actual refusals of information.

I assume that many people in the audience will be concerned about access to reports containing the comments and assessments of officials about applicants under various schemes. A typical example might be the following case taken from the British Ombudsman's recent report on access to information:

"The Department of Social Security (DSS) refused a woman's request for access to a report about a visit made to her by a DSS official. The benefits manager said that it was an internal document and could not be disclosed. Another manager told her that the document could not be released without a court order. The Ombudsman criticised the failure to deal with her request under the Code*, even though she had cited it, and their refusal to review their decision. After his intervention the Department apologised and released the information sought."

The argument is often advanced that access to reports of this kind will have significant inhibiting effects on what staff will include in reports and that the virtues of frankness and candour will be lost. I must say that, in my experience, much of what passes for frankness and candour is subjective and impressionistic comment which is made only because it will never become public.

* The British Code of Practice on Access to Information,

The experience abroad in this regard is that freedom of information has not had a detrimental effect on frankness and candour and, on the contrary, has improved the quality of advice and recorded information. There has been less recourse to subjective opinion. Many countries have reported that the availability of information of this type has led to an improvement in client relations, as the public were in a better position to assess the reasonableness of decisions and actions by public bodies. And for the worriers among you there will, no doubt, be the usual provision in the legislation to provide protection against actions for defamation arising from the release of information in good faith under the Act!

The media have an important role to play in promoting the objectives of the legislation. They have a mechanism which no other organisation in society has for keeping the public informed about issues as they develop. I have no doubt, however, that there will be times in the future when the media will feel frustrated at the withholding provisions and the delays which may arise in getting information. A journalist pursuing a particular line of enquiry is acutely conscious that such information becomes stale if it is not available within a reasonable time frame, issues are overtaken by events and the point of the story gets lost. On the other hand the legislation has to strike a balance between protecting the public interest in some cases by withholding information for example, in the areas of security or crime prevention and supporting the public interest in other cases by disclosure, for example, in relation to water or air quality. Each case ultimately has to be considered on its merits. I would hope, however, that the legislation will not operate in a way that the public will increasingly become aware of cases where the public service got it wrong but seldom, if ever, hear of cases where the public service got it right. To succeed in this, public servants must work hard on their relationships and communications with the media and the public at large.