Our Experience and the Future for FOI
This morning we have heard about some of the ground breaking decisions that have made significant contributions to enhancing transparency and accountability in government and in the delivery of public services. When I took up Office in 2013, I was very conscious of the significant legacy left by my predecessors, firstly the late Kevin Murphy, and subsequently Emily.
My challenge was to build on those legacies and I had an almost immediate opportunity to do so in a number of ways. Firstly, my Office was engaging with the Department of Public Expenditure and Reform in the development of what became the FOI Act 2014. Secondly, my Office faced a significant challenge of maximising the use of our available resources to address an ongoing backlog of work and to meet the expected increase in demand for our services that the new Act would bring.
The FOI Act 2014
In discussions with the Department, my Office made extensive recommendations for change arising from our practical experience of the operation and application of FOI legislation, the majority of which were incorporated into the 2014 Act. We also engaged extensively with the Department on the development of a Code of Practice, whose aim was to enhance the overall efficiency of Ireland’s FOI regime, to secure a sustained improvement in the performance by public bodies of their responsibilities under FOI, and to achieve greater consistency and uniformity of approach by public bodies in their processing of FOI requests.
Before looking at the 2014 Act, it is worth bearing in mind the commitment made by the newly appointed coalition Government in 2011 in its Programme for Government, namely to restore the FOI Act to what it was before amendment in 2003 and to extend its remit to other public bodies.
The 2014 Act went a long way, but not the whole way, towards meeting that commitment. Based on our experience to date, the most influential amendment introduced in the 2014 Act was the decision to abolish the fee for making FOI requests. The resulting increase in the level of usage has been remarkable. In 2017 public bodies processed almost 34,000 requests, a 67% increase in usage levels over 2014. Over the same period, the proportion of requests made by journalists rose from 12% to 20%.
I was also pleased to welcome the extension of the Act to all public bodies, albeit only in part in the case of some bodies and with some limited exceptions. However, the decision to designate bodies as public bodies by way of definition, as opposed to being expressly specified as such, has given rise to certain challenges. Prior to the 2014 Act, there was absolute certainty as to what bodies were subject to FOI.
Now we face difficult decisions, and potential challenges to those decisions, as to whether or not bodies fall within the categories set out in the definition. For example, it is not always a straightforward matter to determine whether a body is directly or indirectly controlled by another body that is subject to the Act, for the purpose of falling within the definition. Indeed, in a recent case, I found that a body that had assumed it was subject to FOI in respect of certain functions was not, in fact, a public body for the purposes of the Act. It is worth mentioning that the website of the body in question had detailed information on FOI that was of the highest quality.
The 2014 Act reversed many of the amendments introduced in 2003 to the exemption provisions that had broadened the range of exempt records. I was particularly pleased to note the reversal of the amendments made to the exemption provision relating to government records. Not only was the ten year exemption for such records restored to five years, but the definition of Government contained in the 1997 Act was restored. The late Kevin Murphy had previously described the definition introduced in 2003 as constitutionally unrecognisable.
In one of the first cases I dealt with under the 2014 Act where the five year rule was at issue, the Department of Finance refused access to certain Ministerial briefing papers for the years 2007 to 2009. It argued that documents which would reveal the contents of discussion at cabinet need not be released pursuant to the Act, irrespective of whether the meeting concerned was more than five years prior to receipt of the FOI request.
I noted that Memoranda for Government and briefing notes are exactly the type of records that were intended by the Oireachtas to fall for release after five years. I found that the records at issue were the type of document intended to fall for release and I directed their release.
The 2003 amendments to the exemption provision relating to the deliberative processes of public bodies were also reversed. Public bodies are now required to show that the release of information relating to the deliberative process would be contrary to the public interest. In a recent case, I found that the Department of Social Protection had not adequately demonstrated that the release of its correspondence with the Office of the Data Protection Commissioner relating to the Public Services Card would be contrary to the public interest. Under the previous legislation, I would not have been able to make that decision.
I mentioned that the Act did not serve to fully restore the FOI legislation to its pre-2003 state. It fell well short in relation to the exemption protecting matters concerning security, defence and international relations. Prior to 2003, the exemption was harm based and its application was discretionary. Following amendment, the exemption offered mandatory protection to large classes of records irrespective of whether or not their release might give rise to particular harms. The 2014 Act maintained the blanket protection for those classes of records.
The 2014 Act also saw the introduction of a higher level of protection for certain records than existed in the original Act. Records relating to any private paper or confidential communication of an Oireachtas member, as defined by the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, are now excluded from FOI as a class. This new provision is quite broad in nature and affords a more significant protection for private papers of members of the Houses than previously existed.
In one of his earliest decisions, the late Kevin Murphy directed the Office of the Houses of the Oireachtas to disclose details of the expenses paid to each member. He found that the records could not be described as the private papers of the members as their subject matter did not concern the private business of the members or their dealings with constituents or other third parties but related to the discharge of their public duties as Oireachtas members.
Under the 2014 Act, I must now consider whether records are private papers within the meaning of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. Private papers are defined in that Act as including any paper in the possession or control of the member in his or her capacity as a member. In a decision I issued in 2015, I had no option but to find that copies of receipts and invoices held by the Oireachtas in relation to an audit of members’ expenses were protected under the new provision.
Overall, however, I am pleased that the 2014 Act represented a significant step forward in the enhancement of accountability and transparency in government and in the delivery of public services and I believe it brings us much closer to the laudible objectives of the original Act. Nevertheless, I also believe it is now opportune to consider more formally if the 2014 Act has met the intended policy objectives and is operating as effectively and efficiently as it might be. As such, we are engaging with the Central Policy Unit of the Department of Public Expenditure and Reform on a number of practical issues that have arisen relating to some of the amendments introduced and on whether a more formal review of the Act might be required.
Welcome as it was, the 2014 Act also presented a significant challenge for my Office in terms of meeting the increase in demand for our services. When I took up Office in 2013, the OIC was carrying a backlog equivalent to a full year’s work based on our annual output at the time. The challenge of dealing with that backlog and preparing ourselves for the expected increase in demand was significant.
We addressed the issue in two ways. Firstly, I must acknowledge and am grateful for the increase in staff resources provided by the Department in anticipation of the expected increase in demand arising from the 2014 Act. Secondly, we undertook a complete review of our organisational structure and work processes, and with invaluable assistance from our colleagues in the Offices of the Information Commissioner in the UK and Scotland, we made fundamental changes both to our internal structures and to our review procedures.
The results have been remarkable. In 2017 we completed almost double the number of reviews we had completed in 2013. Furthermore, the percentage of reviews we competed within the four month time frame set out in the Act increased from 26% in 2013 to 63% in 2017. At the end of 2017, only 2% of our cases on hand were more than one year old, compared with 35% at the end of 2013. Our work is not done, however. As demand for our services continues to grow we are continually looking at ways to improve our efficiency and to improve the quality of the services we provide.
Late in 2017 we launched a new website. It provides enhanced online services for both the public and for our other stakeholders. It includes an online portal offering a fast and efficient facility to submit applications for review. It also has an enhanced search facility and a suite of Guidance Notes which have proven to be very useful to decision makers.
The Guidance Notes provide a commentary on the interpretation of various provisions of the Act. They explain the approach we take to the application of the various provisions and provide examples from some of my key decisions and those of my predecessors. They also include references to relevant court judgments. The Notes have been well received and I am aware that Information Commissioner Offices in other jurisdictions have found them to be a useful resource.
We also rolled out a new records management system in 2017 and later this year we will be rolling out an enhanced case management system. The new systems will facilitate the automation of routine tasks that will support the delivery of a more effective and efficient service. We are, in essence, future proofing our systems to ensure that we continue to keep abreast of the challenges that lie ahead.
This brings me to consider what the future holds for FOI. If nothing else, if the regime is to continue to grow and to become an integral part of our society, significant challenges lie ahead for all stakeholders.
Resourcing of FOI Function
The most immediate challenge to the future success of FOI is the challenge of adequately resourcing the FOI function. This is a topic I have commented upon in numerous annual reports. For instance, each year I report on the number of reviews before my Office where the public body was deemed to have refused a request by virtue of its failure to issue a timely decision either at initial decision stage or at internal review stage or, in some cases, at both stages of the decision making process.
In my 2016 Annual Report I noted that it was the worst year on record in terms of the number of deemed refusals by public bodies. I must admit that I was not entirely surprised that 2017 was even worse. Last year, the public body failed to issue a timely decision at either stage of the decision making process in 29% of all applications we accepted. When one considers that we see less than 2% of all FOI requests processed, the problem is potentially quite significant.
I fully accept that public bodies have been struggling to meet the huge surge in the number of FOI requests received since the introduction of the 2014 Act. I also appreciate that the extra demands and expectations on public bodies extends across the range of public services provided. This leaves each of us with incredibly difficult choices to make in terms of the prioritisation of scarce resources. However, all too often FOI appears to lose out as it is not regarded as a core function. Indeed, it is difficult to argue that a hospital should prioritise the processing of FOI requests over the care and treatment of its patients.
Nevertheless, the fact remains that the administration of the FOI Act is a statutory function that should be afforded as much weight as any other statutory function. At a minimum, I expect all public bodies to take their statutory responsibilities seriously. This requires clear commitments from the top. Certainly, I would expect senior management teams to have measures in place to keep themselves informed of their ongoing performance and to take appropriate and timely action where they are falling short.
Over the years, we have all come across the mantra of access delayed is access denied in the context of failings in the FOI regime. We should not forget that access to information is a cornerstone of democracy. We all share the responsibility of ensuring that the FOI regime is not fatally undermined by a failure to provide appropriate resourcing.
I am always struck by the example of Sweden where requests for access to official documents held by public authorities must be dealt with speedily. The Swedish Parliamentary Ombudsmen have developed case law on what is considered to be speedy access to official documents. It is now a well-accepted standard that access should normally be given on the same day that the request is made, or the next day at the latest.
I appreciate that there are significant differences between the two access regimes but it does point to what can be achieved where there is a sufficiently strong will to support the right of access.
We in the OIC have recently been examining how we might provide further support and assistance to public bodies with a view to enhancing the quality of decision making generally. As I speak, we are developing a plan of action for enhancing the level and nature of our engagements with public bodies for roll out later this year and into 2019. I fully expect that the plan will include actions aimed at improving response times. For example, I am aware that the Commissioner’s Office in the UK has identified timeliness of response as a relevant factor when selecting authorities for monitoring of their overall performance. This is certainly something that my Office will also be considering.
Technological Advances and Records Management
I have no doubt that the future FOI regime will also be heavily affected by technological advances. Users of our public services today expect intuitive, proactive, and personalised service at all times while public service providers are under constant pressure to do more with less. The use of improved technologies will undoubtedly play a part in meeting those increased expectations and pressures.
However, they can also serve as an obstacle to the efficient and effective provision of information if not used and managed carefully. We already see cases where the use of technology is causing difficulties for public bodies in processing FOI requests. Users of complex IT systems sometimes find it difficult to ascertain precisely what information is accessible.
Furthermore, the various communications methods available to, and used by, public servants have served to increase the possibility of relevant records being overlooked. Indeed, we have all seen reports in the media of Ministers using private email, text messaging and even whatsapp groups to conduct official business.
The issues concerning the filing and identification of emails in particular came to the fore in recent times when the Department of Justice and Equality failed to provide certain relevant emails to the Charleton Tribunal on foot of a discovery order. The existence of additional emails came to light only after a series of tabled parliamentary questions.
The Minister for Justice subsequently stated that an independent review of the Department’s handling of the discovery order pointed to the absence of a systemic system for filing emails in the Department. He referred to a Civil service wide initiative that was underway in relation to electronic file management that he said would help to ensure that electronic documents, including emails, can more easily be associated with relevant files.
The initiative the Minister referred to is a project being undertaken by the National Archives to develop a public service records management plan. In early 2016, the National Archives informed my Office that the aim of the plan was to develop a cohesive set of standards for use across all of government as an authoritative enabler for records management functions. It said that the plan would provide the compliance framework for the roll out of departmental electronic records management systems and to build a digital preservation system for the long term storage of electronic records. Unfortunately, it seems that progress on the project has been slow.
The Department of Public Expenditure and Reform has also published specific guidance for public bodies for addressing issues related to electronic records. For example, it has published guidance on the recording of official information held in non-official systems, email accounts and devices. Its Code of Practice also contains detailed recommendations concerning the development by public bodies of adequate record management systems and practices.
I note that the Code of Practice also recommends that the Department itself should examine the case for the making of regulations that could provide for matters such as the adoption by public bodies of recognised standards on records management, the requirement on public bodies to comply with such standards, and the formulation of guidelines and procedures at organisational level that would seek to integrate technology use and the creation of electronic information into record-keeping systems.
There appears to be general consensus that what is needed, at a minimum, is a public service wide information management policy, based on best practice, which takes account of the multitude of ways in which information is communicated or stored. Regardless of who assumes responsibility for developing the policy, it seems to me that its urgent development should now be a matter of priority for government if the FOI regime is to continue to lead the way in championing transparency and accountability in the delivery of public services.
This leads me to ask a key question, the answer to which may have a fundamental bearing on what the future holds for FOI. Does the political will exist to ensure that FOI remains an integral part of our democracy?
It is no coincidence that members of the opposition tend to be the greatest champions of a robust and far reaching FOI regime. However, earlier positions taken have a tendency to shift when the release of a record causes embarrassment or difficulties for those in power. Indeed, we are all very familiar with the often quoted comments of Tony Blair as set out in his memoirs while reflecting on his government's introduction of the Freedom of Information Act: “You idiot. You naive, foolish, irresponsible nincompoop”.
While we have not witnessed such a frank expression of self-reflection here in Ireland, we cannot forget the 2003 amendment Act. As Emily outlined in her publication marking ten years of FOI in Ireland, in 1996 and 1997 the then Opposition argued that the legislation as initially enacted was too weak. When in government the former Opposition then took the view that it was too strong and needed to be curtailed. As Emily suggested, FOI is undeniably political in its impact.
As I stated earlier, the 2014 Act went a long way, but not the whole way, towards meeting the commitment made by the newly appointed coalition Government in 2011 in its Programme for Government. In the progression of the legislation, detailed submissions were made by a number of Government Ministers, some of which included arguments for the retention of many of the amendments that were introduced in 2003. At least some of those arguments were accepted. My Office has always taken the view that the relevant safeguards in the original Act were sufficiently robust to ensure that the harms the Act sought to prevent would not arise. As such, I saw no reason why full restoration of the 1997 was not possible.
Nevertheless, we now have the 2014 Act, a robust piece of legislation with a wide reach. The challenge for all stakeholders now is to ensure the Act is used regularly and responsibly. The media has a particular role, as does my Office, in continuing to raise public awareness of the important role that the FOI regime plays in the enhancement of openness and transparency in government and in the delivery of public services. When one considers the objectives of a well-functioning FOI regime, it is difficult to argue against it. Who can argue against a regime that, among other things, helps to keep government honest, discourages corruption, helps to hold government accountable to the people, and helps to improve decision making by public bodies? Our challenge is to ensure that our regime remains one that is well-functioning.
Future Reach of FOI
Before I conclude, I would like to make some final comments on the reach of the 2014 Act and the potential future reach of FOI generally. As I mentioned earlier, I welcomed the fact that the Act now extends to almost all public bodies. However, it remains the case that a number of public bodies remain outside the reach of FOI, either in whole or in part. While I fully accept that there are certain categories of information that are simply not appropriate for general release, I remain of the view that the appropriate way of protecting such information is through the proper application of the safeguards provided in the Act. The exclusion of bodies, in whole or in part, from the reach of FOI also excludes them from appropriate oversight.
I also welcomed the fact that the 2014 Act made provision for its extension to other non-public bodies in receipt of significant Exchequer funding by way of ministerial order. I appreciate that the identification and categorisation of such bodies is not without its challenges. Nevertheless, the fact remains that more than three years later, no additional bodies have been brought within the scope of FOI by way of Ministerial Order, nor am I aware of any immediate plans to do so.
There are certainly some obvious candidates. For example, I can recall quite a number of media reports over the past couple of years where concerns of poor governance and accountability were raised in respect of certain charitable organisations, at least some of which are in receipt of significant Exchequer funding. I propose to engage with the Department of Public Expenditure and Reform in the months ahead in relation to proposals for commencing the processing of prescribing bodies in receipt of significant Exchequer funding.
There is one final comment I wish to make in relation to the potential future reach of FOI and it relates directly to my experiences garnered when wearing one of my many other hats. As Ombudsman, I deal generally with complaints from members of the public who are unhappy with the administrative actions of a wide range of public bodies.
Over time there has been an increasing tendency to out-source the delivery of public services to private entities which leads to less oversight and loss of truly independent complaint and redress mechanisms for the public. A good example would be the wide spread privatisation of waste collection services by local authorities.
When all services are provided by the State, there is little issue about access to redress. The Ombudsman provides a free and accessible service to all members of the public availing of those services. However, when services are privatised, then access to redress can be lost.
Similarly, where public services are provided by public bodies, the FOI Act allows for those bodies to be held to account in relation to the services provided. It allows for enhanced transparency in the manner of delivery of those services. Why then should transparency and accountability in relation to public services be lost simply because they are no longer being provided by a public body? This is certainly a question that we must consider when we ask ourselves what the future holds for FOI. In my view, the level of transparency or accountability available in the delivery of public services should not be dependent upon the type of body delivering those services
In conclusion, I believe that the 2014 Act has significantly extended the reach of the light that has shone on many areas of public life over the past twenty years. I am satisfied that it has, indeed, become an integral part of our society. As I have outlined, ensuring that it will continue to do so for the next twenty years will require all stakeholders to get to grips with many and varied challenges. I am confident that we will do so.