Ombudsman's Support for FOI

As Ombudsman, I had pointed out on many occasions that failure on the part of public bodies to provide full information and failure to give reasons for decisions were the root cause of many complaints against public bodies as well as being a barrier to greater accountability on the part of such bodies. I saw the enactment of the FOI Act as a step towards tackling these issues in a comprehensive way. So I looked forward with some interest to seeing how the Act would operate in practice. Coming from this perspective, I tend to see the success or otherwise of the Act not just in terms of the number of requests or the amount of information released but in the degree to which it contributes to changes in the work practices of public bodies and in the attitude of public servants and it is my experience of these matters over the last year that I would like to talk about this morning.

My Experience

I should emphasise that my comments are based on looking at the cases which have come to my Office for review. These total over 330 to date - fairly large in absolute terms, but still representing something less than 10% of all requests. I think the fact that 90% of requests are dealt with without recourse to my office can be taken as some indication that the Act is working well and there is no evidence that public servants as a whole are not trying to abide by its terms. However I think we should be aiming for a figure of 5% or less of requests coming to my Office, which seems to be the norm in other longer established jurisdictions.

I am also conscious that the reviews received by my Office are not the whole story and it would be dangerous to draw firm conclusions about the way the Act is operating from that evidence alone. I have a statutory obligation to keep the operation of the Act under review. In pursuance of this, I hope to commence a number of studies over the next year designed to examine the workings of the Act. When I have done this I will be in a position to report more fully on this topic. In the meantime, I would offer the following impressions.

A Year of Progress

Overall, I think the year has been one of solid progress. More information than ever before about the workings, about the decision making and about the practices and procedures of public bodies is now in the public domain as a result of the publication of the manuals under sections 15 and 16 of the Act. Also, there is now a cohort of decision-makers trained in the requirements of the Act, who are constantly gaining in skill and experience. Naturally, many public bodies approached the introduction of the Act with some trepidation - but I have the impression that many of their fears were not realised and that the year proceeded smoothly enough.

This is a tribute to the Central Policy Unit of the Department of Finance whose work in preparing the public bodies for the introduction of the Act has been of vital importance. The continued existence of the CPU has been invaluable during the past year in providing the kind of support to public bodies which perhaps it might not be appropriate for my Office to provide, given its independent role. I cannot allow this occasion to pass without mentioning Gerry Kearney, in particular. Gerry has liaised with my Office during the year - clarifying issues and smoothing out potential problems. We have all come to appreciate the practical good sense and unfailing good humour which he has brought to this job. As Gerry moves on to his new role in Revenue I would like to wish him every success in the future. We look forward to developing an equally constructive relationship with his successor in the CPU.

Of course, the successful implementation of the Act also required great commitment by FOI decision-makers and FOI liaison officers. Some requests can involve the examination of many hundreds of documents. The Act is complex - involving consideration of anything up to eleven exemptions and often requiring the exercise of fine judgement. Notwithstanding the fine work of the CPU, the practical operation of the Act is not an easy matter as many of the FOI decision-makers present can testify. Sometimes requesters may profess not to appreciate this and suggest that a refusal of information is motivated solely by obstructiveness or simple unwillingness to accord the requester his or her legal rights. As I have had occasion to point out in a recent decision the Act does not set out to grant requesters a complete and unfettered right of access to all records held by public bodies. It is clear from the long title of the Act that the right of access is subject to certain necessary exceptions which are contained in the Act. I believe that it is unfair to question the motives of the many decision-makers who conscientiously and in good faith seek to apply the provisions of the Act, however much one might disagree with individual decisions. And, of course, that result applies equally to the Information Commissioner when either requester or public bodies disagree with his decisions.

Of course there has to be a continuous process of trying to improve the quality of decision-making and the procedures of public bodies under the Act. I know that a lot of work has been done by the CPU to ensure that public bodies are kept up-to-date on developments and kept advised of best practice in handling requests. This is something which I welcome and which I hope my own Office can be of some assistance in promoting.

Starting hopefully next month, my Office will hold a series of meetings with representatives of public bodies. The meetings are for the purpose of identifying any possible improvements in our liaison arrangements, but they will also offer an opportunity for the Office to give a view on our perceptions of the main areas of weakness as disclosed in reviews and to offer what I hope will be seen as constructive suggestions on how matters might be improved. What I have in mind here is not so much the content of decisions but rather such matters as assisting requesters or explaining why access is being refused.

Changing the Culture of Secrecy

So, as I say, the year has been one of solid achievement. But work remains to be done. FOI has been spoken of many times as heralding a change in the culture of secrecy. It is worth reflecting on what this means. I take culture in this sense to be the ideas, beliefs and values which are shared by public servants and which affect their approach to their work. The culture of secrecy is often reflected in the attitude of individual public servants, but changing the attitude of individual public servants will not of itself change the culture of the public service. This is because that culture informs many of the practices and procedures which public servants have accepted in the past as the norm. So changing the culture also involves changing the way public servants do their work.

Let me give you a few examples :

Recruitment

Until recently interviews for posts in the public service were conducted on the basis that the deliberations of the interview boards were confidential. This had a number of advantages. One was that the privacy of individual candidates was respected. The second was that the board felt free to discuss openly the merits (and more importantly the demerits) of individual candidates. However, this system was not without its problems. The chief of these was how to assure candidates that they were, indeed, being treated fairly and that there was no bias, conscious or otherwise, in the system. Furthermore, the confidentiality of proceedings reduced the need to record the reasons why individual candidates were assessed in a particular way. In turn this reduced the pressure on boards to adopt methodologies which were as objective in their approach as possible.

In saying this I am not accusing boards of lacking skill or care. But the lack of transparency and accountability inherent in a secret process always carries the risk that decisions will be made which would not stand up to outside scrutiny.

Of course there were, and are, safeguards in the recruitment process, not the least of which is the independence of the Civil Service and Local Appointments Commissioners. However the independence of the procedure does not mean that it is proof against bias or error. The fact is that nowadays, in assessing any service, people are not content to rely on assurances about independence and quality. They want to judge for themselves, based on their own experience of the service. It follows that a recruitment service which relied on a totally confidential procedure would run the risk of falling into disrepute, if for no other reason than the fact that it would leave itself open to the accusation that it was unable or unwilling to defend its decisions.

The Civil Service and Local Appointments Commissioners have sought to improve the feedback which they give to candidates and the FOI Act now ensures that a candidate can see the remarks of the interview board. Such developments are a recognition that the public recruitment process is not just about selecting the right person for the job. It is also about doing so through a process which commands the trust and respect of the public, gained through operating with the greatest possible degree of transparency.

Personnel management

My second example has to do with personnel management. Over the years personnel practices in the public service have become more open. This is in line with modern managerial practice and the commitment which now exists to partnership in the workplace. It reflects the view that people will not give of their best if they are not trusted. But what greater indication could there be of lack of trust than keeping a file about an individual but refusing to let him or her know what is on it ?

In a number of cases, officials who have had difficulties in their careers have secured access to material on their personnel files as a result of FOI requests - sometimes as a result of a review by me. In such cases one has to question whether access achieved in the teeth of opposition from the public body does anything to solve the underlying difficulty, which is not a FOI problem but a personnel management problem.

The fact that an officer has to secure access in this way can be seen as a continuation of a culture of secrecy in which it is assumed that being open with the person concerned will cause more problems than it will solve. If the matter is approached in that way then FOI will be seen by the public body simply as an inconvenience. In my view it would be preferable for public bodies to look again at cases of this kind and decide whether a pro-active approach to discussing matters with the officer concerned, which would obviate the need for a FOI request, might be the better option.

The deliberative process

The third example I wish to mention is a generic one. It has to do with policy development, and the question of access to documents during the deliberative process. Until the advent of the Act, deliberations could be carried on in the knowledge that the relevant papers would not be disclosed, and, indeed, disclosure would have been seen as something which was detrimental to the process.

The advent of FOI has changed all this. FOI assumes that citizens are capable of interpreting information and reaching sensible decisions. It does protect records which are related to the deliberative process but only where it is in the public interest not to release them. Very few requesters seek access to records for their own sake. They are looking for information, and worthwhile information at that. If information is released only after a decision has been reached, at a time when it is perceived that the requester can no longer make any effective use of it then one must wonder whether the information is worthwhile and whether the purpose of the Act is being served.

I accept that the piecemeal release of information during the course of a deliberative process through a series of FOI requests could bring its own problems. But is this a consequence of FOI or a result of the procedures adopted in the first place? A more open consultation process, in which the views of interested parties would be on the public record, would help. So would a commitment to publishing material at interim stages of the deliberative process. These are by no means the full answers but they would at least indicate that the idea of informing the public is being taken seriously.

I give these few examples to show that in a variety of settings - whether in public recruitment, personnel management or policy development , greater openness requires changes in work practices. I acknowledge that some of these changes had commenced pre FOI and partly in anticipation of its enactment, but I mention them as illustrations of the kind of changes which FOI can and will bring about.

A Question of Attitude

I mentioned earlier that the culture of secrecy was reflected in the attitudes of civil servants. As I have said, I would judge the change in culture by reference to the adoption of work practices which enhance transparency and accountability. But I do not discount the importance of attitude. As Information Commissioner, I have been able to gauge the attitudes of individual civil servants from the reviews which come before me.

For the most part I have discerned an attitude of respect for the rights of requesters and a desire to apply the Act conscientiously. On occasion, though, I detect a concern on the part of public bodies that the requester is going to cause them trouble. Often this surfaces in relation to requests by the media. At the root of this concern is the fear that the public body or individuals within it will be presented in a poor light or that the information may be distorted or misunderstood. I will make no comment on misrepresentation or distortion - I am certain that members of the media are well capable of defending themselves against any such charges.

But I do have two comments on this attitude - which, as I say, does surface on occasion. The first is that it shows scant regard for the ability of the general public to interpret information and to reach sensible conclusions. The second is that it comes dangerously close to treating the media as a less favoured class of requester. Without wishing to suggest that any category of requester is more important than any other, I believe that effective use of the Act by members of the media is important. The Act has the capacity to encourage greater transparency in the conduct of the business of public bodies and greater democratic participation. These benefits can, however, be realised only in a limited way as a result of individual requests by private citizens. In a modern democracy one vital means of bringing information about the business of government into the public domain is through the media. It is important that the media's capacity to do this should not depend solely on channels where the choice of information and the timing of its release is at the discretion of the party providing it. The FOI Act, by giving a statutory right of access to information, shifts the initiative to the requester. Hence the importance of the media availing of this right on behalf of the community.

Conclusion

In summary, I believe that the year represents a good beginning. A change in culture does not take place overnight, but it certainly seems to me that solid foundations have been laid for future change and that we can look forward to further progress in the coming months.

Finally, I must say a few sincere words of thanks to my own staff, particularly to the Director Pat Whelan whose role has expanded both quantitatively and qualitatively in the last few years and to Gerry Smyth and his FOI staff who, like me, have had a rather steep learning curve to climb. I know we are finding that climb very worthwhile indeed.