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FOI

The launch of the Freedom of Information Act, 1997 (21.04.1998)

Address by Kevin Murphy, Information Commissioner at Government Buildings

An End to the Culture of Secrecy

The Freedom of Information Act, 1997 has been variously described as heralding "the end of the culture of public service secrecy" and as a "radical departure" into a brave new world of public service openness and transparency. I know that media people like yourselves may view such a statement as nothing more than hyperbole; nevertheless, it is a fact that the enactment of the FOI Act does mark a radical departure from one style or culture of public service to another. But the FOI Act must not be seen in isolation. It is but one aspect - though perhaps the most central one - of a wider process of reform in the area of government and public service generally. Other significant manifestations of this reform process would include the Ethics in Public Office Act,1995 which requires politicians and public servants alike to make disclosures of personal interests which may affect them in the performance of official duties and the Electoral Act,1997 which provides for the disclosure of political donations and election expenditure and expenses. The operation of both of these Acts is overseen by the Public Offices Commission. The recently enacted Referendum Commission Act,1998 establised the Referendum Commission which is making arrangements for a public information campaign in relation to the forthcoming referendum on the Amsterdam Treaty. The Referendum Commission may also have a role in relation to the referendum on the Northern Ireland Settlement. Other aspects of the reform process include the proposed amendment of the Ombudsman Act which will significantly extend the remit of the Ombudsman and give him additional powers; the Public Service Management Act,1997 which, among other things, provides for a new management structure for the civil service and, of course, there is also the ongoing Strategic Management Initiative whose objective is the delivery of better government generally.

The Freedom of Information Act seeks to replace the culture of secrecy within the public service with a culture of openness. The Act is clearly and deliberately predisposed - one could say biased - in favour of achieving the greatest possible access by members of the public to official information subject only to necessary exceptions to safeguard the public interest and the right of privacy. The Act has an unusually extended Long Title which summarises and encapsulates all that the Act is about.

Role of the Information Commissioner

The Act provides for a system of internal review in cases where a request has been refused. Where a request for such a review is made, the review must be conducted by an officer at a more senior level than the officer taking the initial decision. In the normal course it is only where a request has been refused at the review stage that the matter may be raised with the Information Commissioner. In addition to creating the Office of Information Commissioner the Act confers a number of specific functions on the Commissioner. These functions may be summarised as follows:

• to review (on application) existing decisions in relation to FOI requests and to make binding new decisions;
• to keep the operation of the Act under review with a view to ensuring maximum compliance (this will involve investigation of the operation of the Act both generally and in relation to particular bodies);
• to foster an attitude of openness among public bodies by encouraging the voluntary publication by them of information on their activities which goes beyond what they are obliged to publish under the Act;
•  to prepare and publish commentaries on the practical operation of the Act. (These may be based on the experience of the Commissioner arising from cases already handled);
•  to publish an Annual Report which will be laid before the Houses of the Oireachtas.

The Information Commissioner is often refErred to as the "independent watchdog" to ensure that the public's right to know is upheld and not in any sense blocked. As with all such "watchdogs", people will wish to know whether the watchdog " has any teeth". In fact this particular watchdog has very substantial powers which in many respects are similar to, but go beyond, those of the Ombudsman. This includes powers:

• to require the provision of information on the basis that it is relevant to a review or investigation;
• to require the attendance of witnesses;
• to remove records from a public body and retain them for a reasonable period;
• to enter any premises occupied by a public body.

Furthermore, decisions of the Commissioner are binding subject only to being referred to the High Court on a point of law.

When the Information Commissioner comes to review the decisions of public bodies he must be guided by the provisions of Subsection (12) of Section 34 of the Act. This clearly places the burden of justifying the refusal of an information request on the body concerned. Indeed, where a third party objects to a public body's decision to release information that was obtained in confidence, or is commercially sensitive, or is of a personal nature, the onus is on that third party to convince the Information Commissioner that the decision was not justified. Furthermore, Section 6 of the Act imposes a duty on public bodies to help people to access records. The Information Commissioner will be looking to see that public bodies do make genuine efforts to help people access information. Equally, when it comes to the operation of the internal review of decisions - which bodies have to carry out under Section 14 - the Commissioner will be concerned to see that these reviews involve a genuine reconsideration of the original request. All in all, there will be a very strong presumption that records must be made available except where it can be shown that the record belongs to an exempt category. Even where the record does belong to an exempt category, there remains the possibility (subject to some exceptions) that it should be released where this would on balance be in the public interest

An interesting feature here is that the Act explicitly authorises the Commissioner to seek to effect a settlement between the parties as an alternative to a formal decision being made by him. For my own part, as Information Commissioner, I would very much intend to operate this legislation in a sensible and pragmatic way. I would hope to conduct business with public bodies on the basis of flexibility and informality to the greatest extent possible consistent with the nature of the Commissioner's Office. However, this approach will only work successfully where, in turn, public bodies adopt an open and positive attitude to the provisions of the Act. And even where they do so, there will inevitably be many situations where, as Commissioner, I will have to rely on my formal powers to make a binding decision.

Impact of FOI on Specific Areas

Let me now give you a few practical examples of where I anticipate FOI will have a significant impact. In other countries, requests for access to personal information, for example, social welfare records, tax records and medical records are high on the list. In these cases the right of access will apply irrespective of when the record was created. In the case of official information relating to a public body's own activities, the right of access will apply only to records created from the date of commencement of the Act. Requests for personal information will raise many difficult issues not only relating to privacy but to the sensitivity of many of the matters documented and the necessity for staff to express frank opinions about the people involved. We can be sure that requests for access to medical records will form a large proportion of the overall requests made to health boards when they come within the scope of the Act on 21 October next. In the past a health board might have sought the advice of its insurers or legal advisers in deciding whether or not to release a medical record. In many cases there may have been an attitude that medical records were sought with a possible litigation in mind. In this context many health boards may have taken the view that access should only be provided following a court order for discovery. Under the Freedom of Information Act, the motivation for an access request is irrelevant and decisions to refuse access to information on the grounds of motivation will not be acceptable to the Information Commissioner. It is more difficult to forecast the range of requests for official information as I suspect such requests may often be related to current issues in the public domain. But requests for information relating to economic and budgetary policy and policy and planning in a range of public bodies will, undoubtedly, arise involving, in many cases, consideration of the public interest - a concept about which I will say a few words later.

As I have said, requests for access to many records will present public bodies with complex and difficult decisions. There may even be a temptation to refuse requests, and avoid confronting a difficult issue, in the hope that the issue will ultimately be resolved following an appeal to the Information Commissioner. I would caution public bodies against such temptation. When such a case is brought to the Commissioner, the body will always have to provide detailed reasons for the refusal and it will be open to the Commissioner to investigate (and report on) the practices of any body which is not operating the legislation as intended.

Conclusions

Before concluding I would like, very briefly, to refer to one of the key principles underlying the entire FOI Act. This is the question of the public interest. As I mentioned earlier, the Long Title to the Act specifies that the purpose of the Act is "..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 ....". There are certain categories of record which, under the Act, are exempt from public access. But most of these categories of exempt records carry a public interest override. This means that the exemption can be set aside were the public interest requires this. In one case - access to records relating to the deliberations of public body - the exemption itself only becomes operative where the public interest requires that the record be exempt. So it is clear that the public interest may be invoked either to release information or to withhold information.

Where requesters are given refusals, and where the public interest provision applies, the public body should make it clear to them that these provisions have been considered. There is no definition of "public interest" in the Act. There are no ready made criteria to help decide whether the public interest would, on balance, be served by granting rather than refusing the request for information. Decisions in this context will be a matter of judgement based on the facts of each individual case. In many cases the arguments for and against disclosure may well be finely balanced. I think it is possible, without prejudice to any individual decision, to say that such decisions should be taken against the background of the purposes of the Act. I feel there would be general agreement that the Act is designed with the following purposes, at least, in mind :

• to extend, as far as possible, the right of the community to have access to information in the possession of public bodies;
• to make government and public bodies more accountable by making them more open to public scrutiny ; 
• to improve the quality of political democracy by giving the opportunity to all citizens to participate fully in the political process; 
• to enable groups and individuals to be kept informed of the functioning of the decision-making process as it affects them and to know the criteria which will be applied by public bodies in making those decisions; 
• to enable individuals to have access, except in very limited and exceptional circumstances, to information about them held by public bodies, so that they may know the basis on which decisions which can fundamentally affect their lives are made and may have the opportunity of correcting information which is untrue or misleading.

In conclusion, then, it is clear that the implementation of the Freedom of Information Act will pose major challenges for public bodies. Over the past 14 years the Office of the Ombudsman has developed a positive and effective working relationship with the bodies within its jurisdiction. In my additional role as Information Commissioner I look forward to continuing and developing that cooperation.

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