Plans to retrict the Freedom of Information Act pose a serious threat to moves towards openness and transparency, argues Mark Hennessy, Political Correspondent
Where secrecy reigns, carelessness and ignorance delight to hide while skill loves the light.
- Daniel C. Gelman
Reviewing the Freedom of Information Act last year, the Information Commissioner, Kevin Murphy feared that some elements of officialdom were showing signs of fatigue towards the legislation. Yesterday's publication of changes by the Government indicates that the "fatigue" - if that is what it can be properly called - goes very high, all the way to the Taoiseach's office.
The spur for the curbs was provided by a clause in the original legislation, due to come into force in April, that would have led to the publication of some Cabinet papers from 1998, once they were more than five years old.
Such a move would have put Ireland in the vanguard of states offering freedom of information to citizens - although it would have made life difficult or maybe sometimes impossible for ministers while they were still in office.
Facing Dáil questions recently, Taoiseach Bertie Ahern said the five-year rule was impracticable and dangerous since it could lead to the release of Belfast Agreement negotiating papers. But such an outcome would never have happened, and the Taoiseach knows that it would never have happened, because the existing Act already allows restrictions on papers dealing with security and Northern Ireland.
Under the changes, Cabinet documents will now not be released until they are 10 years old - which is still superior to international practices. If that was all they had done, few would probably have become angry.
Using this cover, however, the Government has taken the opportunity to run a coach-and-four through the spirit of the Act as it stands - in particular by restricting access to letters between ministers.
In their Delivering Better Government report in 1996, a top-level group of civil servants said they believed the introduction of freedom of information was "the key" to bringing openness and transparency. Few commentators thought then, or since, that they ever believed any such thing.
By last year, five leading civil servants had begun a review of the 1997 legislation, on the instruction of the Taoiseach.
The High Level Working Group was chaired by the secretary general to the Government, Dermot McCarthy, along with his counterparts in Enterprise, Trade & Employment, Foreign Affairs, Transport and Finance. After six months of work, their findings went to the Taoiseach in December and were passed on quickly to the Department of Finance to be drafted into legislation.
Ministerial correspondence needed to be kept private, the officials argued, because the letters were often attempts to state departmental policy, or to work out a consensus before a Cabinet meeting.
"Ministers communicate with each other about many issues, but there are particular occasions when inter-Ministerial communication is an extension of, and direct support for, the exercise of collective responsibility.
"This arises from the different roles of Ministers, on the one hand as administrators of departments assigned to them and on the other as members of the Cabinet," the officials stated in the report.
Furthermore, reports from Cabinet sub-committees and civil servants groups will be kept under wraps if departments rule that the reports were "for the direct support of government deliberations".
There must now be a question mark over the publication of reports such as the Department of Finance's Tax Strategy Group's - which has been released up to now under the Freedom of Information Act. Often the Minister has disregarded the advice, as he is perfectly entitled to do. But if the new Freedom of Information proposals come into force, we may never know whether McCreevy is following the advice of officials or not.
Already, such information is severely restricted. For example, research costing €2 million was carried out before the benchmarking committee recommended a €1 billion public pay hike. The research has never been published.
Dealing with the costs of the freedom of information system, the officials pointed approvingly to the €20 charge sought for planning appeals. However the European Union subsequently said such a planning charge was unacceptable.
Already, organisations covered by the Freedom of Information Act can charge "search and retrieval" fees to cover photocopying - although sometimes applicants can face widely varying bills for almost identical requests.
During 2001, 15,428 requests were made to an ever-expanding list of public bodies under the Act: up by 12.4 per cent on the 2000 figure and by 34 per cent on the numbers submitted in 1999.
Despite the public perception, the media is not the largest user of the Act - and not by a long shot. In 2001, reporters submitted 3,123 of the 15,428 applications - that number was 23 per cent higher than the year before. But the media's usage has had a disproportionate effect, perhaps. Some of the applications have been trivial in the extreme. Others, however, have led to considerable embarrassment for the Government.
In his 2001 report, Kevin Murphy acknowledged the difficulties: "I know that allegedly selective reporting of information under the Act is a cause of concern to many public servants.
"They become concerned when information released is, in their view, reported in a selective, unfair or sensationalist manner," he says, adding that repeat occurrences would be "hardly conducive" to creating a good atmosphere.
Predictably, many reporters don't agree. Most have stories about application refusals. On occasions, the only items released have been press clippings written by the same reporter making the application. On other occasions, information is given out one year and not the next.
Occasionally, freedom of information requests are turned down, but the information ends up being "leaked" weeks later. And there have been times when freedom of information has been clearly used to further a government department's own agenda, or interpreted entirely differently by each of them.
For example, last year, The Irish Times submitted Freedom of Information requests to all departments seeking sight of papers prepared for the Estimates. The Department of Arts, Sports and Tourism complied. For a while, the Department of Community, Rural and Community Affairs appeared co-operative, seeking, as it was entitled to do, €450 to cover the cost of searching for documents. In the end, however, it decided to keep mum. Every other department refused point-blank, quoting Section 21 (1)c of the Freedom of Information Act, which provides for refusals if publication would hurt a department's ability to negotiate.
If the Act was consistently interpreted, they should have all either accepted the application, or refused it.
Last week, The Irish Times sought letters to the National Safety Council from Garda Commissioner, Pat Byrne about ministerial speeding. Critical of ministers' conduct on the roads, the NSC was happy to reply within days.
Last month, The Irish Times and the Irish Examiner sought papers from both the Department of Finance and the Department of Education on the background to the child abuse compensation negotiations with the religious orders. The Department of Education refused. However, the Department of Finance was happy to oblige, presumably since the papers showed that it had taken a tough line in the talks, wanting the religious orders to pay a half-share of the bill.
The bundle of letters from Finance included a stern note from the Minister for Finance, Charlie McCreevy to the then Minister for Education, Michael Woods in June 2001, protesting at the drift in the talks.
"While I readily acknowledge the major contribution which the religious congregations have made over many years, and continue to make, to the provision of services especially in the education and health areas, I feel nevertheless that the package offered [by the orders\] is quite inadequate and effectively leaves the State to bear virtually the full cost of the Redress Scheme," he declared.
Such letters put McCreevy in a good light. So, too, did the publication of hectoring letters from Finance officials to the Department of Health about the latter's spending - which Health refused to release.
However, the Freedom of Information Act has often landed the Government as a whole in the mire. Last September, for example, the Department of Foreign Affairs accidentally released Finance's three-year budgetary strategy. And red faces have not been confined to the Government. Last December, Enterprise Ireland cancelled a six-day trip for 24 staff costing €100,000 after a Freedom of Information request was lodged by The Irish Times.
Five years on, there was clearly a need to conduct a detailed review of the Freedom of Information legislation. However, the manner in which it has been done is nothing short of outrageous, and reflects badly on the Government.
Although the High Level Working Group had a perfectly valid contribution to make towards any new legislation, it is disappointing in the extreme that it, and it alone, was regarded as the source of all wisdom.
None of this surprises, alas. Under the Act, the Department of Finance, which has overall responsibility for the legislation, had to set up a number of advisory groups, including journalist, academic, business and official representatives. Once founded, Finance clearly wished for them to disappear into the background as quickly as possible.
The Freedom of Information Business Advisory Group met on June 6th, 1998, and again on December 4th, 1998. It last met on May 12th, 1999.
The Citizens' Advisory Group, which includes Geralyn McGarry, (National Social Services Board), Ronan Brady, (National Union of Journalists) and Maeve McDonagh from University College, Cork, has managed to have little more effect. The group was summoned to its first meeting by Finance officials on August 4th, 1998, and once more in December 1998. Since then it has met just three times. The last time was on November 3rd, 1999.
Since its inception, it has suited civil servants to paint the most negative picture possible of the Act to politicians, who needed little encouragement in this respect - particularly when queries about their expenses started coming in.
Frequently, officials will point to the list of the weird and bizarre applications as evidence that the honourable intentions of the Act have been abused by cranks and cheap-headline-seeking reporters.
For instance, there is a true story of the prisoner who, for reasons unknown, put in successive applications seeking photocopies of his own signature on unemployment records.
However, this problem is simply solved by using Section 10 of the Act, which allows for Freedom of Information officers to reject a request if they find it "frivolous or vexatious". The section has been rarely used.
"They are afraid, or unwilling to use it. The result is that time is wasted on unnecessary applications. But it can suit the system to have it that way," one senior political figure told The Irish Times.
So far as it is known, the information commissioner has only once had to adjudicate on an appeal from a person turned down in this way. He found in favour of the Department.
The fees to be charged, yet to be determined, will have a crucial impact on the future usefulness of the Act. Currently, applicants must pay search and retrieval costs even though they have no idea of the value of the material until they get it.
Yesterday, the Minister for Finance insisted that there was "no question" private citizens would be billed for applications about their own files - which made up 64 per cent of all applications submitted last year.
In some cases, flat charges may be reasonable, particularly for those businesses which lodge freedom of information requests in an attempt to get information about details of tenders by competitors.
"Attempts would be made to get not just the price of competing tenders, but also the creative work that went into it. People can build up their own database by that sort of thing," according to one business source.
Some undoubtedly indulge in "trawling" missions. Businesses account for 40 per cent of all applications to the Department of Enterprise, Trade and Employment, for example. However, 75 per cent of that proportion come from just one company.
Certainly, operation of the Freedom of Information Act is expensive, though the Government has never put a figure on its cost. However, its US equivalent used to cost approximately one-twentieth of the sum spent by federal and state governments on public relations, and there is little reason to believe that that has changed there.
If departments are "encouraged" to levy significant sums, then the use of the Freedom of Information Act will fall by default as has happened, in the views of some critics, with the system used by the State of Alberta in Canada. There Toronto's Globe and Mail newspaper faced a 64,000 Canadian dollar bill when it went in search of papers surrounding an alleged corruption case.
The introduction of the Freedom of Information Act back in 1997 staggered many, who were adamant that the powers-that-be would never allow the sun to shine into the depths of government and public life.
Yesterday's changes will not kill the Freedom of Information Act, but it has been seriously wounded. Even though there were legitimate grounds for some modifications, this has been a bad day's work.