One of the great concerns in any society governed by the Rule of Law is the use, or more importantly the misuse, of administrative discretion by public authorities. In this day and age where the activities of the public service encroach on every aspect of our lives, it has to be accepted that, even if it were possible, it would be undesirable from the point of view of the public to define administrative powers so strictly and rigidly by precise rules that there would be no room for the exercise of discretion. As K. Davis puts it in his book Discretionary Justice

"Discretion is a tool, indispensable for the individualisation of justice....Rules alone untempered by discretion, cannot cope with the complexities of modern government and of modern law".

Every single day thousands of administrative decisions are taken by public authorities affecting citizens each of whom is rightly concerned that he/she be treated properly, fairly and impartially.

Administrative discretion, from another angle however, introduces an element of uncertainty for the citizen. This may induce a sense of dependency on the authorities' goodwill and a sense of inferiority because of this dependency or indeed a sense of grievance that "those in the know" are treated better. These feelings are usually compounded by the lack of knowledge of the basis on which the authorities reach their decisions. Worse still from the wider perspective of society is the fact that discretion inevitably involves an inherent risk that officials exercising it will misuse it and, in particular, will exercise it in an arbitrary fashion. In Recommendation No. R(80) 2 of 11 March 1980 the Committee of Ministers of the Council of Europe stated that it considered it desirable "that common principles be laid down in all member states, to promote the protection of rights, liberties and interests of persons whether physical or legal against arbitrariness or any other improper use of a discretionary power".

The criteria laid down in this and other recommendations by the Committee of Ministers provided a basis for the Guide to Standards of Best Practice for Public Servants which I issued as Ombudsman early last year. I note that in the third edition of Hogan and Morgan's Administrative Law in Ireland - which of course, holds a hallowed place on the bookshelves in the Ombudsman's Office - the authors encouragingly comment that "there seems scant chance that anyone would succeed in persuading a court that the Guide was ultra vires the powers of the Ombudsman." The authors go on to comment "Rather remarkably there is nothing explicit in the Ombudsman's "Guide to Standards of Best Practice" regarding "openness and transparency" though this concept is plainly implicit in the (Ombudsman's) general formula (for) "dealing properly" (with people)." I take the point fully that openness of and access to information is particularly relevant to the exercise of discretionary powers. To quote K. Davis again:

"The seven instruments that are most useful in the structuring of discretionary powers are open plans, open statements, open rules, open findings, open reasons, open precedents and fair informal procedure. The reason for repeating the word 'open' is a powerful one; openness is the natural enemy of arbitrariness and a natural ally in the fight against injustice."

In defence of the omission from the Guide, may I say that the Guide was published at a time when, although the Freedom of Information Act, 1997 was on the statute book, it had not come into effect; the Official Secrets Act, 1963 still held sway and the appointment of the Information Commissioner was still some way off. But the point raised by Hogan and Morgan illustrates very well the complementary roles of the Ombudsman and the Information Commissioner despite their separate statutory identities.

Now that the Act is up and running, it is important that the public at large realise and appreciate how important the right of access to information is, how useful the information about public bodies (which must be published in accordance with Sections 15 and 16 of the FOI Act) could be and how significant may be the giving of reasons for decisions required under Section 18. I think Mr. Luis Silveira former Deputy Ombudsman for Portugal put it particularly well at a Council of Europe Colloquy on European Law some years ago when he said: "By availing themselves of the right (of access to information), individuals can assess whether there is a danger that (discretionary) powers will be misused and the authorities will exceed the bounds of discretion, taking the convoluted path of arbitrariness. In particular, they can verify whether the administrative authorities took into consideration all the factors relevant to a decision (and no other factors) and recognised each factor's due significance; whether the authorities' decision was based on any subjective, irrelevant elements, likely to jeopardise the impartiality of the measures taken; whether the public authority involved bore in mind the purpose behind the legislator's decision to introduce discretionary power and constantly acted in accordance with that purpose; and, lastly, whether, before a decision or measure was taken, criteria of expediency in view of the public interests at stake were weighed against the considerations of reasonableness, justice, equality and proportionality by which the executive must be governed in a democratic State."

Of course there is supervision of administrative decisions by the Houses of the Oireachtas, by means of judicial review, by various appeals mechanisms and, of course, by the Office of the Ombudsman. But it is clear that only a small proportion of cases of misuse of administrative discretion comes before these bodies. In the case of the Ombudsman's Office, we receive about 3,000 complaints a year. This number could be doubled if we were, for instance, to expand our regional visits programme or to engage in expensive T.V. advertising. Many citizens whether through lack of knowledge, inertia, difficulties in communicating their problem on the telephone or in writing, old age, disability or disadvantage do not pursue appeals or complaints even though they remain disgruntled.

The great thing about the Freedom of Information Act, 1997 is that it gives citizens direct access to the bodies with which they are dealing without the need for an intermediary such as the Ombudsman and an entitlement (subject of course to exemptions) to see records, to be given assistance, to be given reasons for decisions and to have explained to them their rights of appeal. The use which citizens will make of these new entitlements will, I accept, be qualified by their degree of inertia, lack of knowledge and all of the other barriers to which I have already referred. This is why I feel strongly - and I have already said this publicly - that there is a responsibility on particular groups such as the media, the legal profession, other professional bodies, the statutory and voluntary organisations, which provide support and advice to citizens especially the disadvantaged in society, to publicise and utilise the provisions of the Act on behalf of citizens.

Section 15 and 16 manuals

Before dealing specifically with the question - what use has been made of the Act since it came into effect on 21 April last? - could I say a brief word about the documents published under Sections 15 and 16 of the Act? No doubt Gerry Kearney of the Central Policy Unit of the Department of Finance will have more to say on what was in many ways a tremendous challenge for civil service Departments.

In the case of the Revenue Commissioners, for example, the production of the section 16 manual meant drawing on a wide range of source material, only a small part of which had previously been published. The result is a manual containing almost ten thousand pages of instructions and commentary on tax legislation.

In a sense the requirements of section 16 have simply helped to push the Revenue in the direction of the greater openness which it has sought to achieve in recent years. The Taxpayers' Charter which was published some years ago declared, among other things, that every taxpayer had the right to expect that every reasonable effort would be made to give him or her access to full, accurate and timely information about Revenue law and his or her entitlements and obligations under it. It also declared that the Revenue Commissioners would administer the law consistently. While the Revenue has produced notes for the guidance of taxpayers on more recent Finance Acts, and occasional Statements of Practice, it had not attempted anything of the scale of the section 16 manual before.

So has it been a success? I think that only time will tell. The task of delivering on the promise in the Taxpayers' Charter to administer the law consistently is an onerous one. The tax code is very large - with over 1100 pages of legislation covering direct taxes alone along with voluminous case law. The code is complex and subject to frequent amendment. The Office of the Revenue Commissioners is for the most part decentralised. All these factors make consistency of administration very difficult to achieve. The task has to be made easier by a comprehensive and coherent set of guidelines to the tax code for use by the Revenue's own staff, and I think that the Revenue itself would acknowledge this.

There are also obvious benefits for taxpayers and their advisers. The first is the removal of any suspicion that some taxpayers or their advisers have an advantage by being "in the know". The second is that the risk of arbitrary decision making is reduced; a taxpayer can see for himself whether he is being treated the same way as everyone else.

However, I would like to sound a note of caution here. Although the quantity of information published may be impressive, the section 16 manual will only be successful if it is accurate, comprehensive and published in an easily usable format. There is an onus on public bodies to revise such publications on a regular basis. I believe that it would also be good practice to promote awareness of the existence of such manuals and to look for feedback from interested user-groups. In my view, such consultation is highly desirable to ensure that these publications will meet fully the requirements of the Act. I believe that the section 16 manuals published to date represent a good start since in relation to the civil service there is now a great body of information out there which needs to be worked on by researchers or professional organisations and made more meaningful for individuals interacting with the service. Similar documentation will be published by local authorities and health boards by 21 October and again there will be a mass of information available on how particular bodies administer such matters as housing improvement grants, housing allocation, hospital lists, various schemes and programmes all of considerable interest to individual citizens.

How has the Act been used?

Turning now to the use which has been made of the Act since 21st April last, I am sure you will all be interested to know how widely the Act has been invoked; what kind of information is being sought and by whom ; how civil servants are reacting ; what kind of issues are coming up in reviews. Let me start with some statistics.

The statistics for the period to the end of August ( for the first four months of operation) are as follows :
 

First, a word of explanation. About 1,446 requests had been received by the end of August. The above figures relate to requests dealt with. The figures are therefore a snapshot in time and underestimate slightly the figures for internal review and appeals to my Office. For instance almost 100 requests for review have been received in my office to-date. Bearing this in mind, what are we to make of these statistics?

The first point to note is that the number of requests is lower than might have been expected. This may reflect a lack of public awareness of the Act. However, I think it also stems from the fact that some Departments are showing a greater willingness to release information outside of FOI so that the statistics tend to understate the effect of the Act in terms of increasing access.

Second, the percentage of requests which go to internal review is relatively low. This suggests that the Act is working reasonably well in the sense that many civil and public servants are clearly prepared to release information on request. It is important to make this point because there have been suggestions in some quarters that civil servants by and large have not been prepared to implement the spirit of the Act. While there have been individual cases where I found the refusal of information was completely unjustified, these statistics seem to indicate that this was not the general experience. It is also significant that a relatively low percentage (25%) of cases which are reviewed internally proceed by way of further appeal to my Office. This suggests that the number of initial decisions which are being varied on internal review is fairly large. This might be seen by some as reflecting on the quality of the original decision making. However, I view it as an indication that the internal review system is working well and that initial decisions are being looked at again, objectively. Certainly, the experience of my Office, when we examine the files on review is that internal review is being taken seriously. There have been individual cases where the review process fell short of what is desirable but I see this as a teething problem which hopefully will disappear as public bodies become more experienced in applying the Act.

So, overall, the relatively low percentage of cases referred to my Office suggests that requesters' needs are being met. I hasten to add that I do not see any room for complacency about this. I am conscious that things may change after the initial burst of enthusiasm attending the introduction of FOI and the extensive training which has been given. The real test will come when information is requested the release of which may have adverse or embarrassing implications for the public body itself. So I will continue to monitor how the Act is being implemented - indeed I have a statutory obligation under section 36 to do so.

Information sought by requesters

The following statistics show the position up to the end of August:
 
 

The requests break down by Department as follows:
 
 

Another aspect of the requests for personal information is that some requesters interpret the term very broadly. Generally, this occurs in the context of seeking access to records created before 21 April 1998. Access to pre-21 April records is possible provided such access is necessary or expedient to understand a post-21 April record or if the record contains personal information about the requester. For example, in one case the requester sought information about the affairs of a limited company of which he was a director and in which he was the main shareholder. His argument was that his fortunes were so bound up with that of the company that the company and himself could be considered as one for the purposes of the FOI Act. I had to reject that argument in the particular case but I can see that in other cases, say, that of an individual running a small unincorporated business, the boundaries of what constitutes personal information might not be so clear. I expect, therefore, to have to come back to this issue again in the near future. Without prejudging the issue in any way, I should point out that a liberal interpretation of the term " personal information" is unlikely to be universally welcomed, and not just by public bodies. It may suit requesters who wish to access pre-21 April records but if a liberal interpretation is adopted then other requesters may find their requests for that information being blocked by virtue of section 28, which restricts a requester's right of access to the personal information of third parties.

The following table gives a breakdown of the requesters:
 
 

Journalists have proved to be reasonably significant users of the Act. It is often said that FOI, because of the time which can be taken to respond to a request, is not particularly suited to the needs of journalists who operate to very tight deadlines. However, some journalists have clearly found ways of using the Act effectively judging by the number of requests made and the number of subsequent news stories based on information disclosed under the FOI Act.

The reaction of civil servants

How are civil servants coping with the demands of the Act? In general, the figures suggest that civil servants are applying the Act in the spirit in which it was intended. However, as you might expect I have seen some cases where the reaction to a request has been to rush in search of what appeared to be the most convenient exemption available, but these cases are in the minority. That is not to say that other cases have been perfectly handled and I can point to a few areas where I would hope to see public bodies improve their approach in the future.

The first area concerns the requirement to provide reasonable assistance to a requester in making a request under the Act. In one sense this is a potential burden on the public body. In another way, though, talking to a requester can help at an early stage to identify what he or she really wants, particularly where the request is expressed in very general terms. This can save a lot of time which might otherwise be spent agonising over whether to release records which are covered by a general request but which might be of little value to the requester. So, assisting a requester to refine his request while it might appear cumbersome, also makes good sense.

The second area concerns how decisions on FOI requests are communicated to requesters. The Act requires that a public body explain the reasons for refusing a request, the section of the Act which is being relied upon, any material issues relevant to the decision and any public interest factors taken into account. The spirit of this provision is that a full explanation be given to the requester of why the request is being refused. In practice, explanations sometimes fall far short of what is required. In particular, I do not accept that it is sufficient for a public body, when refusing a request, to refer to a section of the Act without explaining what that section is about, why exactly it is being invoked and, where appropriate, confirming that consideration has been given to whether the public interest override has been taken into account.

Issues arising in reviews

I would now like to refer briefly to a few of the issues which have arisen in the course of considering reviews. I mention them because they show how FOI is not solely about public bodies responding to individual requests, no matter how interesting or indeed difficult the decisions relating to those requests might be. It is also about changing the attitudes of civil and public servants to information and the circumstances and manner in which it should be made available to the public.

Advance requests

The first case concerned a request for access to the minutes of future Management Advisory Committee meetings of a number of Departments. I took the view that it is not possible to make such a request in advance for the simple reason that the record being sought does not exist at the date of the request. I think that it is clear from the terms of section 6(1), which permits access to "any record held by a public body", that the record must exist at the date of the request. This is consistent with the provisions of section 10(1) which permits a public body to refuse access if the record does not exist. This view is further strengthened when one considers the various deadlines imposed by the Act which would be difficult to apply where the record did not exist at the date of the request.

The requester made the point that permitting advance requests of this kind would actually benefit the public body by cutting out multiple or serial requests for such records with the increased administration that these will inevitably entail. I am aware that there are wide variations among departments in the manner in which they record and distribute, even to their own staff, the minutes of Management Advisory Committee meetings. It is a matter which, I understand, the central policy unit of the Department of Finance will be discussing with departments, with a view to promoting wider distribution. However, speaking in general terms, it strikes me that if there is a repeating demand to see records of a particular type, then perhaps a routine manner of release is needed to deal with such requests. In saying this I am not suggesting that such records would simply be released as a matter of course and regardless of content. Appropriate safeguards would be needed to protect exempt material, but once such material has been identified and removed it seems to me that the records could then be made available to any requester outside of a FOI request or even made more widely available as matters of current interest on public body's website.

Personnel records.

I have dealt with a number of cases concerning personnel records and these again illustrate how an issue can go well beyond the question of releasing information in the particular case and raise more fundamental questions for the public body concerned. The lawyers among you will want to refer to section 6 of the Act and subsections (5) and (6) of that section. For the non- lawyers present I can paraphrase the legislation as follows. Personnel records are records which contain personal information about the record subject and therefore in the absence of any special provision such records would be accessible by the record subject regardless of when the record was created. However, the Act provides that in general access to such records is to be restricted to records created since 21 April 1995 unless the record is being used or is proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely the interests of the person concerned. Incidentally, this 3 years restrictions does not apply to the personnel records of retired public servants.

As you can imagine, the prospect of granting access to records which were created perhaps many years ago and in an era when FOI did not exist is not likely to be welcomed by public bodies. I have dealt with a number of cases where the public body has argued, without success, that pre- 21 April records are not being used or are not proposed to be used in a manner or for a purpose which affects or may affect the interests of the person adversely. The problem for the public body in these circumstances is that the onus of proving that the decision to refuse release was justified rests with the body. It can be very difficult to discharge this burden of proof, where the records on the file are critical of the staff member and there remains the possibility of their being used, for example, in assessing the individual's suitability for promotion in the future. On the other hand, if the public body can justify its decision to refuse access to the records by satisfying me that the records concerned are now redundant, the likelihood of my upholding its decision is greatly increased.

In these circumstances, it seems to me that there are two courses of action open to public bodies. The first is to leave the records open on the personnel file, in which case the record subject in the event of an appeal to my Office will probably be granted access to them. The other possibility is to find a way of dealing with the records so as to satisfy me that they will not be used in a manner or for a purpose adverse to the interests of the individual. For example, the records in question could be placed in a sealed envelope on the file with a covering note indicating that they are "closed" records. The individual may still successfully argue that he should have access to the records but if he is unsuccessful he has the comfort of knowing that the Information Commissioner has accepted that the records in question will not be used against him.

Voluminous requests

Another point which has been raised in the context of personnel records is the possibility that section 10(1)(c) might permit the public body to refuse access to a particular file because granting the request would lead to similar requests in thousands of other cases and dealing with these other requests would cause a substantial and unreasonable interference with or disruption to the work of the public body. This argument is based on a misreading of section 10. Indeed, it is totally against the spirit of the Act to suggest that one requester's otherwise valid request should be denied because it might encourage others to exercise their rights under the Act. In any event, the evidence to date suggests that public bodies have not been overwhelmed by requests for personnel records. Furthermore, anecdotal evidence suggests that the more open the attitude adopted by public bodies to access to personnel records, outside of FOI, the less the demand for access.

Conclusion

The Act has now been in operation for almost 6 months. It is too early to say whether the high hopes which were held out for it by its sponsors will be met or whether the fears of the sceptics will be proved true. However, my experience suggests that a powerful tool has been made available to individual citizens which can be used to discover how and why decisions affecting them are taken. But will it be used? I would have to express a personal concern here about the apathy with which the majority of citizens in Ireland treat many of their fundamental rights. The forthcoming report of the Referendum Commission will express concern on the attitude to that most fundamental right - the right to vote. This problem and possible solutions to it go far beyond the scope of this paper. I would argue, however, that there is a responsibility on the most influential groups in society, who often express concern about the democratic deficit or the growing alienation between the government and the governed , to support new tools such as FOI and encourage their use.

In that regard, I believe that ultimately decisions on FOI requests, important though they are to the requesters concerned, are not the final measure of the success or otherwise of FOI. This will be found in the effect which the Act can bring about on the attitude of public servants to decision making, to the exercise of administrative discretion and to the dissemination of information.