Good morning.

 I would like to thank Public Affairs Ireland for the invitation to address today’s conference.

The title suggested by the conference organisers which positions FOI within the broader programme of political reform which I have advanced since coming into Government – is, I believe, highly apposite to your consideration and discussion today on the Government’s proposals for FOI reform.

I have consistently highlighted that the key legislative reforms flowing from the Programme for Government, must be seen and assessed as an integrated suite of measures designed to substantially strengthen the quality of our public governance.

Overview

In my speech this morning, I would like to explore this theme in more detail as well as to highlight what I believe are very important elements of the proposed reform of FOI that may not have received the attention that they warrant.

As a career politician with extensive experience of legislation over the years, of course I fully understand and indeed have seen on many occasions, how the debate on a particular Bill can at times end up focusing on a small number or indeed a single element of what can often be a detailed and comprehensive measure.  The issue of the proposed introduction of fees for multifaceted FOI requests clearly became the ‘big ticket item’ in the FOI Bill when the legislation was debated at Committee Stage last November.

This in fact reflects one of the key and often unrecognised strengths of the consideration of legislation by the Oireachtas, its ability – particularly at Committee Stage – to turn the spotlight on important and specific elements of a Bill and ensure that their policy intent and possible unintended consequences benefit from careful scrutiny in advance of being enacted into law.

Indeed the Government’s proposals for reform of the legislative reform process seek to ensure that forensic consideration of legislative policy initiatives takes place at an earlier phase of the legislative process.

FOI Reforms – Restoring the Act

I would not, of course, fully subscribe to Mark Twain’s adage that:-

“If you don’t read the newspaper, you’re uninformed.

If you read the newspaper, you’re mis-informed.”

However, the sharp focus on what is contentious in a Bill in the first instance in the debate itself, and then in the reporting and commentary, can however lead to a situation where broader knowledge, awareness and acknowledgement of important and critical measures is lacking, or indeed in some instances essentially discounted, notwithstanding that they comprise fundamental far-reaching and long-sought after changes.

Clearly, for an audience such as todays with a specialist interest in FOI, there will be a full appreciation of the scope and extent of the changes made in the current Bill.

As you know these reforms relate not only to the reversal of the significant limitations and restrictions on FOI put in place in 2003 including:-

  • Reversing the very wide definition of Government introduced in the 2003 amending legislation
  • The strict definition of what constitutes a Cabinet record is also restored.  Communications between members of Government will no longer be exempt from FOI.
  • The ten-year prohibition on the release of Cabinet records is being restored to the original five years – one of the most liberal provisions on access to Cabinet records internationally
  • The mandatory power to refuse an FOI request relating to Government records or records to be submitted to Government introduced in 2003, is removed.
  • The power for Secretaries General of Government Departments to certify the existence of a deliberative process with no scope for appeal is being repealed, and the public interest test applying to records relating to the deliberative process is restored.
  • the reform of the legislation provides for some liberalisation of the mandatory ‘class’ exemption put in place in 2003 in relation to diplomatic communications and defence matters. Significant protections for highly sensitive and secret information will be maintained.
  • Where a commercial state body provides a service under a contract to a public body subject to FOI, the records relating to that service will now be subject to FOI.

 

FOI Reforms – Enhancing the Act

My FOI reforms also encompass some highly significant enhancements and innovations in the legislation that are aimed at substantially transforming the environment for FOI in Ireland.

  • The Bill extends FOI to all public bodies as a default – a reversal of the current position that a public body is included only if it is explicitly scheduled under the Bill.  This will result in a number of long-established high profile exclusions from FOI being brought under the scope of the legislation including:-
  • An Garda Síochána
  • Public financial bodies, such as NTMA, NAMA, NPRF, and the NDFA;
  • the Central Bank of Ireland, and
  • the refugee agencies

As a result of this change, public bodies excluded either in whole or part from FOI need to be specifically set out in the Bill.

This introduces a high degree of transparency in relation to these exclusions and ensures that there is a full examination by the Oireachtas of the rationale for the proposed exclusion.

While the argument may be made by some that such exclusions or indeed some of the various exemptions should not be part of the legislation, FOI does – as aptly captured in the conference programme “a balancing act” – meeting the public need for information while seeking to deliver public administration.

In light of his experience as a senior official in the Department of Finance with responsibility for fiscal and tax issues, Donal McNally’s insights and perspectives on how this balancing act should be achieved, will I am sure, be stimulating and thought provoking.

 

Pre-empting FOI

A key new initiative included in the Bill requires public bodies to prepare and furnish publication schemes consistent with international best practice in this area to promote the proactive publication of information outside of FOI.

These publication schemes will set out the nature of the information an organisation publishes on its website, which will include extensive information on its nature, role, responsibilities and activities.

Publication schemes are intended to lead to a proactive disclosure of significantly more information and in a more accessible form than was previously provided under the so-called section 15 and section 16 manuals.

The publication schemes will also provide for publication of FOI Disclosure logs which will provide information in relation to non-personal FOI requests received by the body. The idea is that as much information as possible will be made available outside of FOI.

This is the direction that I want to see information disclosure to travel.  Rather than requiring a request to arrive, we should look to proactively publish more material.  This is consistent with other Government initiatives like open data and the presentation of material by Departments like my own via Irelandstat and our statistical databank web portals.

Such an approach will never supplant the requirement for freedom of information requests, the vast majority of which are personal requests inappropriate for publication, but it is the direction we should undoubtedly travel.

Additional enhancements

Other innovative elements of the legislation that have not received very much attention to date notwithstanding their significance include:

  • ·       The Bill also allows FOI to apply to non-public bodies that are in receipt of significant funding by the Exchequer by way of Ministerial Order.  This is expected to result in a sea-change in the potential enhanced accountability of such bodies.
  • The inclusion in the Bill of key principles to guide public bodies in the performance of their functions under the Act – including the need to achieve greater openness, strengthen accountability and decision making and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
  • Important extensions of the functions/powers of the Information Commissioner
  • The introduction of a new penalty for a person convicted of the deliberate altering or destruction of records which are the subject of an FOI request;
  • New provisions to ensure that FOI requests relating to information held electronically are dealt with effectively;
  • A very significant measure included in the Bill confirms that there is a general right of access to records held by public bodies and in applying exemptions, the right of access should only be set aside where the exemptions very clearly support a refusal of access.

Code of Practice for FOI

The FOI reform legislation is being introduced in tandem with the development of a new Code of Practice in relation to the operation of FOI.

This essential development is designed to assist all public bodies which will be subject to FOI under the new Act to enhance their capacity and procedures for dealing effectively and efficiently with FOI requests.

  • The Code will support the implementation of FOI and promote best practice in its operation.
  • It will guide and inform the performance of public bodies in relation to their responsibilities under the FOI Act and help to minimise the administrative burden.
  • The Code will also seek to ensure appropriate consistency and standardisation of approach for the benefit of both requesters and public bodies alike and will deepen and widen the expertise and capacity of public bodies in FOI.

FOI Fees

I referred earlier to the phenomenon where a single issue – notwithstanding that it may be important in its own terms – can often overshadow the broader and often more substantive and far-reaching elements of a particular piece of legislation.

The proposal to ensure a single FOI fee is paid for each separate and unrelated FOI application clearly falls into this category.

As you all know, following the debate at Committee Stage in the Dail last November, I withdrew the proposed amendment designed to address the issue of so-called multifaceted requests.  I indicated to the Committee at that time that I would review the amendment to ensure that it could not give rise to any concern that the cost of FOI would become unaffordable.

Contrary to what has been suggested there was never any intention to allow for separation of requests if they happened to touch upon the functionality of more than one unit of a Government Department or agency.

Likewise, I’ve seen it written recently by a prominent academic that the Government’s intention was to raise fees.  No such proposal existed.  In fact, the relevant section sought to do the opposite by introducing two hours of free search and retrieval time, a measure not in the 1997 Act.  This measure was proposed as a trade off against the possible separation of multi-faceted requests.

What we had sought to do was to allow for disaggregation of multi-faceted requests by issue.   The fear expressed at the time was that the amendment proposed would tilt the balance of power too much towards the responding body.  There is of course an issue of scale here too.  There is a difference between a request with two parts and one with ten!

I expect to bring my revised proposals to Government shortly for approval with a view to advising the Committee shortly thereafter.

The debate on the amendment on multifaceted FOI requests extended into the appropriateness or otherwise of maintaining the upfront application fee for non-personal requests, or indeed having any FOI fees whatsoever.

In contrast to the impression that may have been conveyed at the time, this had been a consistent feature of the debate on the FOI Bill, extending back to the publication of the General Scheme of the FOI reform legislation almost two years ago in July 2012, at which time I announced the Government’s decision to maintain the upfront application fee while proposing significant reductions in FOI internal review and appeal fees to the Information Commissioner.

I returned to the issue of FOI fees in my speech to the FOI conference held in the University of Limerick in February 2013 marking 15 years of the FOI Bill.  The considerations I discussed at the UL conference remain those that will inform the finalisation of my proposals for the amendments for Report Stage of the Bill.

At that conference, I highlighted the international position that many other FOI regimes do allow for some charges for access and different laws take different approaches to fees.

I also drew attention to the need to reflect on the total level of fees charged taking into account both the upfront application fee and search and retrieval fees – a focus on application fees alone to the exclusion of search and retrieval fees which have comprised part of the fabric of FOI since the original 1997 Act gives only a partial picture.

I stressed the importance of taking into account the administrative cost of dealing with FOI requests, as well as the risk that the abolition of all fees would create a marked imbalance between the number of FOI requests compared to the capacity of the administrative system to deal with FOI requests.

I fully understand the attractiveness of the view that there should be no FOI fees and indicated  in the Committee Stage debate that as a principle it had merit, but as I set out to the UL conference, as the responsible Minister, both for FOI and the public service, I need to be acutely conscious of both:-

  • the potential negative impact on the credibility of Ireland’s FOI regime if it came under severe pressure;
  • as well as unintended adverse impacts on the performance of key functions of public bodies – very often providing frontline services to the public – if the elimination of all FOI fees had the effect of generating a very sharp increase in FOI requests that overwhelmed the administrative system.

I think it is reasonable to conclude that FOI fees therefore comprise one of many delicate balancing acts in relation to FOI, but one which is central to the overall effectiveness of the legislation and one that we need to get right to ensure that FOI works in practice and not just in theory.

As I have indicated, I have over recent months given very careful thought to the development of a model of FOI fees that would meet the competing objectives at play in this area, taking into the account the case made to me both inside and outside the Oireachtas on the proposal on multifaceted FOI requests.

I expect to bring proposals to Government shortly in respect of the relevant amendments to the FOI Bill at Report Stage.  Once the Government has agreed on its approach, I will provide the rationale for the policy that Government has endorsed as I undertook to do last November.

 

FOI and Broader Political Reform

So where do FOI reforms fit within the broader programme of political reform?

As the first ever Minister for Public Expenditure and Reform, I have placed great emphasis on the reform element of my role and I intend to continue to focus on delivering open, accountable and ethical public governance arrangements in Ireland for both the operation of Government and the public service.  My aim has been to strengthen citizens’ trust in Government and in the institutions of State and to promote a transparent, efficient and effective public system.

Many of the commitments in the area of political reform set out in the Programme for Government and in the Public Service Reform Plan are now in delivery phase and real progress is being made on several different fronts.  Key initiatives include:-

The extension of the Ombudsman’s jurisdiction and powers through the Ombudsman (Amendment) Act 2012 which came into effect in October 2012, resulting in the most significant expansion in the jurisdiction of the Ombudsman in the 30 years since the original legislation was first put in place;

Provision of a detailed legislative framework for Parliamentary inquiries – The Houses of the Oireachtas (Inquiries, Privileges and Procedures) legislation commenced last September.

This legislation establishes a comprehensive statutory framework for the Oireachtas to conduct inquiries within the current constitutional framework;

The regulation of lobbying – The General Scheme of the Bill was submitted for pre-legislative scrutiny to the Finance, Public Expenditure and Reform Committee (FPER) and their report has been received by my Department.  Drafting of the Bill is advancing and it is anticipated that the Bill will be published early in quarter two of this year, and that its passage through the Houses will be substantially progressed by the summer recess;

The overhaul of the ethics legislation through the development of proposals for the creation of a streamlined, modernised, integrated and more effective regime for identifying and regulating conflicts of interest and for declaring income and assets legislation is at an advanced stage.

The introduction of whistleblower protection legislation is a flagship reform.  The Protected Disclosures Bill 2013, which passed all stages in the Seanad on 20th November was introduced in the Dáil last month and I expect that it will complete the remaining parliamentary stages in the coming weeks in order that it can be enacted by the summer recess

The Protected Disclosures Bill, seeks to put in place a detailed and comprehensive legislative framework for whistleblowing protection in Ireland which closely reflects best international practice and addresses a significant gap in Ireland’s anti-corruption framework.  Following the enactment of this Bill, I fully expect the legislative framework in Ireland will be recognised and regarded as a leading example internationally of statutory protection of whistleblowers.

I have also taken significant steps to advance Ireland’s participation in the Open Government Partnership (OGP), a global initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

Ireland’s OGP participation can play an important role by establishing an international dimension to our reform initiatives, ensuring that Ireland is to the forefront in developing and implementing measures that have a real impact in strengthening public governance.  Our involvement in the OGP has already kick-started work to create a detailed national infrastructure for Open Data – an area embodying very substantial potential to drive much greater availability of data held by the public sector.

Conclusion

I hope I have been able to provide you with a strong sense of the complementary nature of my FOI reforms to the other elements of the broader political reform agenda which I am currently implementing.

The mutually reinforcing quality of the overall reform programme is one of its main strengths. While each measure is important in its own terms, I believe that the impact of the whole will be greater than the sum of its parts.

The same principle applies to my FOI reforms.  In addition to the ‘headline’ changes to FOI restoring some of the key exemptions from the restrictions introduced in 2003, I have set out some of the many enhancements of Ireland’s FOI regime introduced in the Bill.

I believe that these innovations, allied to the introduction and implementation of the Code of Practice, will transform the environment for access to official information in Ireland – a goal which in turn can underpin the transformation in public governance that as Minister for Public Expenditure and Reform I am committed to achieving.

I refer to public governance rather than public trust deliberately.  The introduction of FOI, not just in Ireland, has not necessarily led to greater confidence in public administration and politics. Public confidence in public administration has arguably declined in the period since access to information has been enhanced.  The coverage of public affairs in our media and the transformation of media itself may well be factors here.  Nonetheless, I am convinced that public administration and political discourse is the better for it.

I am sure that your discussions today on FOI reform can help contribute to a shared understanding of what can be achieved through the FOI reform legislation which is currently before the Oireachtas, the important linkages with other reform measures, as well as the crucial impact that collectively these reform initiatives can have, in helping us achieve a more open, transparent and accountable system of public administration – not for its own sake – but for the benefits it can bring to all our citizens.

ENDs