JOINT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE debate -
Wednesday, 7 Jul 2004

2003 Annual Report of Information Commissioner and Freedom of Information (Amendment) Act 2003: Presentation.

Chairman

The next item on the agenda is the discussion with the Information Commissioner, Ms Emily O'Reilly, on her annual report for 2003 and her review of the operation of the Freedom of Information (Amendment) Act 2003. I welcome Ms O'Reilly, Mr. Pat Whelan, director general of the Office of the Information Commissioner and Mr. David Nutley, investigator. The Information Commissioner will make an opening address to the committee, followed by an open discussion with members.

Before proceeding, I remind members that the examination of the legislative provisions that authorise or require non-disclosure of any record will be carried out by the committee later this year under the process prescribed in section 32 of the 1997 Act. The commissioner has already indicated that she will report to the committee on these matters in the autumn. While members' comments are protected by parliamentary privilege, those of visitors are not so protected. Members are reminded that they should not comment on, criticise or make charges against a person outside the committee or the Houses.

Ms Emily O’Reilly

I thank the committee for inviting me to discuss my 2003 annual report, the investigation report on the effects of the Freedom of Information (Amendment) Act and the introduction of fees on access requests by members of the public. I am aware that last year the committee indicated to my predecessor, Mr. Kevin Murphy, that it was the committee's intention to invite him on a yearly basis to discuss his annual report. Like him, I warmly welcome this initiative.

In my investigation report, I quoted the Council of Europe's recently articulated key principles behind freedom of information. It stated that freedom of information allows the public to have an adequate view of, and to form a critical opinion on, the state of the society in which they live and on the authorities that govern them, while encouraging informed participation by the public in matters of common interest. Freedom of information fosters the efficiency and effectiveness of administrations and helps maintain their integrity by avoiding the risk of corruption. Freedom of information contributes to affirming the legitimacy of administrations as public services and to strengthening the public's confidence in public authorities. In practice, the Freedom of Information Act works at a micro-level, allowing people to examine administrative and policy decisions that affect them both directly and indirectly, through the release of discrete blocks of information, which individually or when added together, sometimes indicate matters for public concern. I see the Act's functioning as complementary and as an aid to the invaluable work of Oireachtas committees such as this one.

Following my appointment as Information Commissioner last June, I undertook to produce a report detailing the effects of the amendments and fees over one year. This report, undertaken within the provisions of section 36 of the Freedom of Information (Amendment) Act, was published on 17 June 2004. The headline findings of the report have been well publicised. Overall usage of the Act has fallen by over 50% while requests for non-personal information have declined by 75%. The decline in the non-personal category is particularly marked regarding journalists' requests. Between the first quarter of 2003 and the first quarter of 2004, the number of requests by journalists fell by 83% and still continues to decline. While comparing the most recent three month period for which we have full figures with the three month period immediate prior to the changes in the Act, the latter witnessed an increase in requests, probably in anticipation of restrictive amendments. Nonetheless, so great has the reduction been that the total of non-personal requests for the first quarter of 2004 is over 50% less than the lowest quarterly level recorded in the 18 months prior to the introduction of fees.

In the first three months of 2004, journalists submitted only 28 requests per month to Departments which works out at two requests per month to each Department, compared with 92 requests per month during 2002. The Department of Finance, for example, has seen a decline of 90% in journalist requests between the first quarter of 2003 and the first quarter of 2004, and a fall of 60% between the last quarter of 2003 and the first quarter of 2004. In other words, in the first three months of 2004, the Department received three requests per month compared with 14 to 18 requests per month in the latter half of 2002.

It is not just the media's behaviour that has radically changed. Business requests have also sharply declined as have requests from ordinary citizens and community groups. There were 1,000 fewer requests from this latter category between the first quarter of 2003 and the first quarter of 2004. My office has also witnessed a decline in appeals relating to non-personal information of approximately 50%. I regard this as a serious matter not just for the requesters who have been deterred by the high cost of appealing to my office, but also for my role in monitoring the working of the Act.

To underscore the vital role my office plays in ensuring that important public information is properly released by public bodies, I wish to point to landmark decisions which have been made since the office came into being. The following are now routinely released: health board reports on nursing homes; expenses of Oireachtas Members; papers relating to applications for public body jobs; names of the recipients of the highest levels of certain EU agricultural subsidies; successful tender documents often relating to expenditure of millions of euro; names of bodies treated as charities for tax purposes are now released. This list underscores the importance of the appeals systems. None of that information would now be in the public domain had the original requesters not come to my office for a review of the initial decision denying access to the records.

I do not believe that the Oireachtas could have anticipated so great a decline in usage of the Act when amending the Act and approving the scale of fees to be charged. So great has been the decline in usage that a review of the scale and structure of the charges, particularly those for my office, should be undertaken. Ireland is in the minority in charging fees for internal review and for an appeal to the information commissioner. In eight comparable jurisdictions looked at as part of the investigation, Ireland proved to be the only country which charges for internal reviews and is one of just two jurisdictions that charges for an appeal to the information commissioner. The other jurisdiction, Ontario, charges just €15.60 for a non-personal appeal compared to €150 in Ireland. In the context of a future review, consideration should be given to the waiving of fees in respect of certain types of requests by Oireachtas Members and the media.

I also hope that this report will prompt a full public debate on the position and future of freedom of information. I have a statutory reporting relationship with the Oireachtas and it is proper for me to keep it informed of the impact of the recent changes on the operation of the Freedom of Information Act. I also have a duty to implement the legislation passed by the Oireachtas and I will continue to do so in an independent and impartial manner.

The annual report represents the last six months' work of my predecessor, Mr. Kevin Murphy, and the first six months of my own term as Information Commissioner. On a year-on-year basis the number of applications for review made to my office increased by 63% — from 687 applications in 2002 to over 1,000 applications in 2003. However, much of this increase is accounted for by the large number of appeals arising from requests made to the Department of Education and Science involving industrial schools, reformatory schools and other state care institutions. To speed up access in this regard, following a suggestion from this office, the Department of Education and Science has agreed, in principle, to publish reports of inspections of industrial schools carried out by the Department, outside of the freedom of information regime.

I bring the committee's attention to a number of decisions made by the office in 2003, including the decision to instruct the Department of Justice, Equality and Law Reform to give a Somali national, with full refugee status, a statement of reasons for refusing to grant him a certificate of naturalisation. In a case relating to the sale of the ICC bank, it was decided that the fee and payment information put forward by the successful tenderers in a competition for the appointment of advisers to the Minister for Finance on the sale should be disclosed. In another case, it was decided that access should be given to reports of inspections of certain primary schools carried out by the Department of Education and Science. During the year, 728 decisions of public bodies were reviewed, an increase of 36% over the case completion rate for 2002. While I am pleased with this, I am still concerned about the backlog of cases on hand. However, good progress is being made in reducing the extent of the backlog. As of 30 June 2004, the number of reviews on hand is down to 663 from 796 at the end of 2003.

Chairman

The report indicates a 27% reduction in requests under freedom of information for personal information, 75% for non-personal and an aggregate of 51%. Given that there has not been a change in the system of releasing personal information under freedom of information and that no charges were introduced, why has there been a 27% reduction?

Ms O’Reilly

I do not think I can say. The report was mainly a quantitative examination of the effect of the legislative change, in terms of the number of requests, etc. As I said in the report, further research is needed to ascertain the reasons for the decline. It is obvious that the fees have something to do with it. Personal information is an issue. It may have been that a general impression was formed, as a result of the publicity that surrounded the changes in the Act at the time, that the amendments which were made also had an effect on one's ability to access personal information. People may have been misinformed in that way. It is also possible, however, that applications for personal information will pick up when people realise that no changes have been made in that regard. A large number of applications were received by the Departments of Health and Children and Education and Science from people who were keen to access their records from State industrial schools, etc. The increase is peculiar to last year and this year because people needed to access the institutional redress board.

Chairman

I concur with Ms O'Reilly's remarks. As Chairman of the committee, I genuinely believe that a great deal of misinformation was placed in the public arena, some of it deliberately. The public somehow got the impression that monumental changes had been made to the release of information provisions in the Freedom of Information Act. Approximately half of freedom of information requests normally relate to personal information, in respect of which there were no changes. The negative publicity led people to think they had to pay for general personal information. Perhaps the Information Commissioner's office, the Department of Finance or another body can address this problem by launching a publicity campaign aimed at those who may incorrectly feel they have to pay to access personal information. Ms O'Reilly's report states that the number of personal applications to her office has declined rapidly to approximately two thirds of the 2002 level, despite the fact that no fees apply to such cases. People have the impression that personal information has been affected. I suggest that some of the reduction in applications, even for non-personal information, relates to the general level of publicity.

I wish to conclude by making two minor points. I am pleased that page 18 of the report states that no certificates were issued under section 19 of the Act, which protects records relating to the Government, the Cabinet and sub-committees of the Government. The committee made a change to ensure that such certificates and reports would be sent to the information commissioner. We discussed at length the question of who would be covered by this provision. As it has transpired, it appears at this stage that our concerns were justified as no such certificates have been issued. Regarding section 20, the committee was concerned to ensure that certificates stating that something was under the deliberative process would have a big impact. No such certificates have been issued. Members on all sides of the committee had concerns in that regard, but perhaps they have not come to pass.

Deputy R. Bruton

I agree with the Chairman that there was a great deal of negative publicity in this regard. The Information Commissioner said in the White Paper, Regulating Better, that there is a need for proper consultation before significant reviews of legislation and changes of this nature. Is it not the case that the Government did not engage in the necessary consultation and prior preparation of the grounds for changes, if they were to be made? In making recommendations for changes in the charging regime, does the Information Commissioner feel that she is banging her head against a stone wall? Perhaps I am putting it too strongly. It does not seem that her report has received the sort of deliberative consideration from the responsible Minister that it should have received. The Information Commissioner may not be willing to express frustration, but I am happy to state that it is extremely frustrating that a report of this significance has been dismissed before we have left first base.

I would like Ms O'Reilly to provide some amplification on the review of the various jurisdictions. The report specifically states that Ireland stands out as one of the few countries which charge €75 for internal reviews and a further €150 for appeals to the Information Commissioner. One does not receive a refund if one's appeal is successful. Having paid fees of €15, €75 and €150, one's money goes down the drain even if it is found that the relevant body failed to apply the Act fairly. Would the Information Commissioner characterise the fee-charging regime as being totally out of kilter with any reasonable approach to the question of who should pay when non-compliance is discovered under legislation?

Ms O’Reilly

We chose the jurisdictions in question deliberately because their legislation most mirrors Ireland's. In some of the decisions we made, we quoted from decisions that were made in Canada and Queensland, etc. While it can be difficult to ascertain initial application fees and processing charges, etc., the fees which are charged by my office are clear. No other similar jurisdiction charges for an appeal to be made to the Information Commissioner. I think just one other jurisdiction charges for an internal review. Of all the issues we uncovered and investigated in the report, that causes us the greatest concern. Our concern relates not only to individual appeals and people being inhibited from appealing when a request is denied, but also to the function and role of the Information Commissioner in monitoring the Act and the manner in which it is operated by the public bodies. We cannot perform our monitoring function if appeals are not made. Of the recommendations I have made, I place most emphasis on seeking a significant reduction in the fee to my office. It is not as if a large proportion of requests are appealed — the relevant figure is approximately 3%. That was the issue that alarmed us to the greatest extent in the overseas findings, because it has implications not only for individuals making requests, but also for the overall integrity of the Act.

Deputy R. Bruton

Ms O'Reilly has made a strong plea for proper consultation during any future review. Will she comment on the kind of review that might take place? What kind of consultation would be appropriate? She recommended that public bodies should assist those who make requests in a clearer way, particularly if the requests are excessively onerous. Has she found that bodies are failing to inform people who make freedom of information requests about their obligations in this area? If a Secretary General refuses a request, he or she has an obligation to say it would be less onerous and could be done more simply if it were rephrased. Does the Information Commissioner have evidence that it is not happening?

Ms O’Reilly

I do not have evidence that it is happening on a large scale. As the legislation is complex, people who are seeking information may not be clear about the sort of records that may be available. There is an obligation on decision-makers to help people in such circumstances. There is a perception that there is inconsistency among public bodies in this regard.

My predecessor, Mr. Kevin Murphy, commented on the review at the time. In the research we carried out for this report, we examined reviews which took place in other jurisdictions which, in general, tended to be far wider than the review which took place here and was confined to Secretaries General of Departments. The domestic review did not include the Information Commissioner or users of the Act such as business and media interests.

The Freedom of Information Act 1997 was incredibly important legislation. As any legislation of course needs time to bed in, it is reasonable to review it after a period. Like my predecessor, I would call for any future review to be carried out on a wide scale. The Government had certain difficulties with the Act, some of which were articulated by various Ministers and with which some people sympathised to an extent. However, if concerns and worries which are genuine to Ministers are not put forward for public debate, the public will simply think the Government is motivated by nothing but pure self-interest.

There were genuine concerns within the Government that certain aspects of the Act were impeding good government. While this may or may not have been the case, the simple fact is that we cannot know as no research was done and no one was spoken to other than top-level civil servants. Given the importance of the legislation and its transforming effect on the Administration over the few short years of its existence, in the further review which will hopefully take place every player in freedom of information, including members of the public, the media, the Oireachtas, the Information Commissioner etc., should have a say. We require an adult debate about freedom of information to ascertain its weaknesses, if any, and its strengths.

Deputy Burton

I welcome the commissioner and her colleagues to the committee. I remain extremely disappointed — I disagree with the commissioner on this — that the Government, in effect, closed down the Act when it introduced its changes to it. Many of the figures the commissioner has produced bear that out. The Act has been gutted. A group of departmental secretaries made a presentation to this committee on the reasons for the changes they proposed in the amending Act. A central element of the group's case was that serial freedom of information applicants were making vexatious applications and constituting serial abusers of the Act. There were two examples given neither of which involved journalists but related rather to individuals who seemed to bear grudges. In her review of the operation of the Act, did the commissioner come across evidence that serial abuse and vexatious applications were a real problem on a significant scale?

As a former journalist, does the commissioner have a view as to why the use of the Act by journalists has decreased by 83% and, in effect, collapsed? Has this happened because journalists were using the Act for simply trawling purposes, a practice they have decided to abandon, or because they feel amendments to the Act have seriously limited the scope of information to which they might have access? The commissioner implied in her report that in some cases people do not use the Act properly or structure their applications well. Does she have proposals to assist the public and the media by advising them how to use the Act more effectively to ensure that applications for information are successful and not excessively costly?

From speaking to people in the media, I understand that much of the research at freedom of information level is often carried out by part-time or contract journalists who may end up paying charges out of their personal accounts. Is there an opportunity for a national media association or different media organisations to open accounts with Departments to make payments? Commercial companies open accounts with garages to buy petrol and with toll road operators to pay tolls. To encourage journalists to use the Act as we should, could we introduce an easy-payment mechanism for the media to meet the €15 charge for requests?

The total cost of an inquiry if it goes to full appeal stage is €240, which is an extremely high fee. Although I do not know if she is allowed, technically, to be disappointed or not, is the commissioner disappointed by the response of the Minister for Finance to her report to the effect that he sees no reason to change any section of the schedule of fees? Such fees are a major deterrent.

Ms O’Reilly

As in any system of the type, there are some serial or vexatious requesters, but there is no empirical evidence that they exist on a wide scale. We have not come across such evidence, though I emphasise that further qualitative research is required to consider matters such as this. The net point is that if the decline in non-personal requests continues at the current rate, there will have been a year-on-year drop of approximately 3,000 requests. It would be stretching things a little to say all of those applications were made by serial, vexatious requesters. While I emphasise the need for further research, our observation and knowledge of the system indicates that vexatious applications are not made on a wide scale.

There are major issues for journalists as people consider the media to have a very important role in bringing public information to them. Among the ways journalists have been enabled to do that over the last few years has been through freedom of information. As I have not spoken to journalists or seen any research in this area, I am speaking to some extent in a vacuum and guessing. However, I consider the fee to be one of the issues. Having to get a cheque for €15 constitutes an administrative hassle also in that journalists work in a very fast-paced environment. Prior to the need to pay a fee, one could submit a freedom of information request from one's computer.

The Chairman made reference to the perception of what some might call the gutting of the Act, particularly through amendments to sections 19 and 20 which refer to meetings of the Government and the deliberative process. Rightly or wrongly, journalists believe the really meaty stuff relating to the workings of central government and the Cabinet is no longer accessible to them. It is still accessible, but not to the same extent.

Much information is still coming out under the Freedom of Information Act. Three areas needed to be considered. There are the fees, but I would not put too much emphasis on that, given that the requesters are working for commercial organisations. There is the administrative inconvenience and then there is the perception that what may be termed the "good stuff" that was to be got under the Act in terms of important records at government level and so on, is no longer accessible.

However, the media need to look at their usage of the Freedom of Information Act. From my own experience, accessing information tended to be carried out in an independent ad hoc way. A journalist would decide for himself or herself whether to log a request for this, that or the other. It would be better if news organisations took a more streamlined approach. They could hold meetings once a month, for example, specifically on the issue of FOI queries and decide what was to be done on that basis. To some degree the media have been silent since my report has come out as regards that matter. I am sure it will be discussed at NUJ level or in media forums and so on. However, the media are vital as regards the FOI issue and it would be a great pity if the decline continued.

I do not think I am permitted to be disappointed over the Minister's reaction to it. I said in the annual report and in the investigation report, that all I can do is make available the information as regards what has happened. That I have done. To some degree my role is ended and it is down to committees such as this and other public forums, including the media, to continue the debate. As I have said, without wanting to appear too self-interested, I would be disappointed if there was no change in the fee to my own office. That is important, not just at the individual level of requester, but for the Act itself.

Chairman

Did Ms O'Reilly refer at some stage to the fee to her office? In this report she says she collected about €15,000. I presume the cost of setting up the computer system and administering it in terms of staff etc., may have cost her organisation at least that much.

Mr. Pat Whelan

That is correct. In this day and age extra staff is not forthcoming to deal with matters such as that. It is, perhaps, a question of re-ordering priorities. There are issues the office could be dealing with, for example, looking at more FOI requests, but it finds staff have to be diverted into collecting fees. When everything is factored in, the cost of collecting fees in our case is greater than what is collected. Therefore, the initiative is negative in its impact.

Chairman

The office would have no difficulty in conceding that the practical application of that was a retrograde step, purely from a financial point of view. Perhaps the office would not go along with me on that. It may have acted as a disincentive, but from a financial viewpoint, as has often been suggested, if one pays for something one appreciates it more. That is the type of philosophy behind this, but clearly, it is not even viable economically.

Deputy Burton

How many staff are employed in collecting these fees? How much of the office's manpower is allocated for this?

Mr. Whelan

Some 20 staff are involved in dealing with the core business of processing requests, appeals and so on. There is no single number of dedicated individuals who do that alone. It is a question of three or four people being involved who do it in addition to processing appeals etc. Before the fees came in, these staff were solely involved in the processing of requests. Now they are trying to do that in addition to the core business. In the past we never had to charge fees, so a new financial system had to be set up to do it. It is frustrating for the staff when they see that the amount coming in does not cover the cost. More relevantly, this is causing a severe reduction in the number of requests being processed by the office.

Chairman

Turning to requests for information for any of the 400 bodies covered by the Act, on page 37 of the report it says non-personal requests are the only type to attract fees. In the first quarter of 2004, 454 applications were made and I estimate that approximately €6,000 was generated in the first quarter of 2004 by the 400 organisations. I conjecture that it cost multiples of that to introduce an accounting system in each of those 400 bodies and I doubt if any of the organisations introduced a new accounting system to cope with this fee for less than €6,000. In view of this, the fees have probably imposed a massive financial burden on every organisation just in terms of processing requests. Would the office have any information on this?

Ms O’Reilly

I believe we did get an overall figure at some point as regards that.

Chairman

I can see the issue. It was a waste of money.

Deputy Burton

Ancillary to the point the Chairman has made, following the introduction of the Freedom of Infornation Act, many organisations, together with the help of the office, set up costly staff training programmes. In many organisations a specific FOI officer was appointed, under the Act. In larger organisations a dedicated person fulfilled that role from an established position. Does this collapse in the number of applications mean that, basically, these FOI officers now have their work significantly reduced and that in effect, this is another additional cost burden which the changes in the Act have brought about?

Ms O’Reilly

We did have a figure for the amount that has been collected. We do not have it with us, but it is quite small as regards the overall cost.

Chairman

There were 450 requests and I am sure that out of that figure some people would have got waivers. It would appear, therefore, to have been a burden on the State to collect the amount of money received.

Ms O’Reilly

I agree that there was a considerable amount of money and training put into this area. I have seen the various training manuals and so on and observed the work that was done at the time. I do not think that among the bodies we have looked at, we have noticed any change so far in terms of personnel being allocated. However, in view of the fall in the number of requests and if the decline continues, good management would suggest that the FOI sections will not need to be staffed as heretofore.

Deputy Burton

Have these FOI officers much to do? The Department of Education and Science is the exception because of the ongoing inquiries as regards the records of industrial schools and personal data.

Ms O’Reilly

I do not know. I sometimes wonder, particularly in respect of bodies which receive few FOI applications. Perhaps Mr. Whelan could comment further.

Mr. Whelan

We looked at the 17 public bodies in which we carried out this qualitative review. We examined the FOI files in their possession and studied how they dealt with the particular exemptions. We were generally satisfied with the approach they were adopting to the Freedom of Information Act. One of our fears was that with the negative approaches emerging from the centre as regards FOI, this might have trickled down and affected the behaviour of individual decision makers. However, there was no suggestion that this was the case. Everyone we spoke to seemed to be conscientious and dedicated as regards how the requests were being handled. Neither was there any evidence, yet, of a reduction in staffing. What we saw was a typical Department that would have an FOI liaison officer, and they were all still in place.

In some cases, Departments would have more than one person involved in making the decisions. Decisions in regard to public bodies are not made by a single individual, they tend to be distributed throughout the organisation in different ways. In some cases, it is the person in the area relating to the request who deals with the issue and in others, there is a review committee consisting of a number of people who review decisions. In a sense, it was not an issue we probed in any detail but we got no indication of people doing nothing.

Deputy Ó Caoláin

I welcome the Information Commissioner and her staff. It is the first opportunity the committee has had to speak to her on this important issue since she took up her appointment. At the time of the passage of the Freedom of Information (Amendment) Bill, I described the fees regime as a deliberate deterrent to public access to freedom of information and the statistics appear to bear that out. That view was broadly held by Opposition members on the committee.

I very much welcome the commissioner's outspoken and forthright defence of the principle of freedom of information. It is very helpful and important that she publicly made her position clear in that regard. She stated that the decline in the usage of the Act has gone far beyond what the Government envisaged. In repeated questions to the Taoiseach, he responded that the decline was due in the main to a drying up of what he regarded as trawling exercises and frivolous requests. In the commissioner's earlier response to colleagues, she indicated there is no empirical evidence to support that contention. Does she have any information that might identify the type of requesters that have been excluded, based on the previous level of access in terms of comparisons? If they are not of a trawling or frivolous nature then who exactly has not been able to make FOI requests as a result of changes to the Act?

In regard to the charge vis-à-vis access to the Information Commissioner of €150, how does this compare internationally? What are the international comparative figures in that regard? What citizens are being affected and is there any way of assessing how much greater usage there would be? Would the current staffing levels in the office be able to cope if there was a significant increase as a result of a major reduction in the fee or the abolition in the fee? What would be the consequences in terms of the existing Information Commissioner’s office structure being able to cope in a changed situation that might then apply? I wish Ms O’Reilly continued success in her role.

Ms O’Reilly

The Deputy's first question is a very difficult one to answer because we do not know who might have been making requests or what they might have been had the fees and the amendments not been introduced. That goes back to my point about the need for further research, be it academic research or research by my office, others or whatever. It is necessary to talk to users, potential users and former users of the Act, be it in the media, business and so on to ask them why they are no longer using it. If the decline we witnessed over the past year continues there will be 3,000 fewer requests in terms of non-personal or official information. That would include ordinary citizens, community groups seeking information about developments or other issues that concern their areas. It would also include business people seeking information from various Departments, as well as journalists. Without further research it is difficult to know why.

In regard to the comparators, again we chose seven or eight comparable jurisdictions with legislation similar to ours. Our initial legislation was very much based on the New Zealand model. We looked at Queensland, Western Australia, Ontario, British Columbia and so on. As I said earlier, it was striking to find that there are no charges in any of those places, bar one, with a very small charge for appeals to the information commissioner. There is a range of other charges, fees and so on. There is also a very strong waiver system in place in all of those jurisdictions. Even where a fee is to be charged, whether at initial request level or for photocopying or whatever, in most cases a public body has discretion to waive that and it is done in a high volume of cases.

If there was no fee we would go back to where we were. There is a backlog which we are doing our best to deal with. At the moment resources are adequate to deal with that. We have also seen a decline in the number of appeals.

Deputy Twomey

When the Act was under review the issue was a very contentious one at the committee. We would be very disappointed if we thought the volume of requests was going down because of the introduction of fees per se. The FOI legislation is relatively new. The fee structure and costs vary considerably across the jurisdictions examined in the report. Did they experience a decrease in the number of FOI requests after a certain period of time, not taking into account special circumstances such as that relating to institutions, which might emerge from time to time and result in an increase in requests?

It appears the United Kingdom will begin to charge a high level of fees from the outset. We may be able to make interesting comparisons with that jurisdiction in regard to a levelling off in the number of requests after a certain period even though heavy fees will be introduced from the introduction of the legislation next January.

I am aware that at least one Department decided that if it received any FOI requests from a journalist it would put the information up on its website. Journalists seeking an exclusive for an article would not have the opportunity because other people would also have access to the same information. In effect, journalists would be paying for information to be made available to everybody and this could have affected the number of requests submitted by journalists. I do not know if other Departments followed the same lead. It was indicated that the Department of Finance had received a number of these requests. Does the Department post replies to such requests on its website or is it dealt with in private between the requester and the Department?

The Taoiseach stated that there has been a change in work practices relating to the implementation of the Freedom of Information Act. Perhaps organisations are opening up and giving out information to such an extent that people no longer need to make FOI requests. We must take into account a number of variables. At the time, I would have been against many of the changes made to the Act. It would be helpful if we had comparators that would indicate if it is the fees alone that have led to the reduction in the number of requests.

Ms O’Reilly

I do not think it is fees alone. There are a number of factors. The amendments restricted access to certain information relating to Government records and so on and that must have had an effect on media access to information. In chapter 2 of the investigation report, we examine the overseas experience. Generally, once an FOI regime is brought into play over the years, there is an increase. Page 11 shows what happened in Ontario, for example, between 1998 and 2002. There was also an increase in this jurisdiction but it became more pronounced as other bodies were included in the legislation.

It is worth mentioning, although it may not be addressing the Deputy's point, that when fees were increased in other jurisdictions, perhaps arising from reviews, there was a decline in requests. However, it was not comparable to the decline we experienced here. In one jurisdiction, when the fees were either introduced or increased, there was a decline in requests of20%. This was considered to be a huge deal but was obviously not comparable to what happened to us.

The Department in respect of which the Deputy referred to the placing of requests on the website was the Department of Communications, Marine and Natural Resources. It was listing the name and address of whoever was making the request and the details thereof. These were followed by the records, if they were to be released. The Data Protection Commissioner got involved at that point, particularly regarding private individuals. It is now the case that only those acting in a business capacity, such as business people or media organisations, have their names and business addresses put on the website. There was some talk about this strategy being adopted by other Departments but I do not believe it has. The Data Protection Commissioner issued guidance to public bodies on this issue.

Deputy Twomey

On the basis of Ms O'Reilly's comments, the fees have a fairly substantial impact.

Ms O’Reilly

Yes, they would appear to have. Again, I emphasise that in the absence of further research or a review of the use or non-use of the Act by users or former users thereof, we will not be able to see the full picture. However, the fees have had an impact. The UK has no application fee but it will charge a search and retrieval fee. It is not yet decided whether there will be a fee for appeal to the information commissioner.

Deputy Boyle

I welcome the commissioner. Has Ms O'Reilly's office had an opportunity to examine the legality of fees? Perhaps it is not in a position to do so. Consider the example of the opinion offered by the European Commission to the Government that the imposition of a fee for opposition to planning applications is not consistent with how it interprets how fees should be applied for access to public information. A similar argument could be applied in this case. There exists a European Union directive on freedom of information regarding environmental matters, and EU directives have the same status as national law. There might be a conflict in Ms O'Reilly's office regarding the application of an EU directive and the amendment of the Freedom of Information Act in that one looking for information on environmental matters in Ireland would be charged a fee although it would not be allowed under the directive. I would value Ms O'Reilly's opinion on this.

Ms O’Reilly

That issue has arisen before and it has been discussed in our office.

Mr. Whelan

We are aware of it. The commissioner referred to it in a speech last year to the Institute of European Affairs. If I remember correctly, the issue, from the commission's point of view, concerns whether the charging of a fee impinges on citizens' democratic rights. I have not heard the final response on the matter but the Department of the Environment, Heritage and Local Government was contesting the position adopted by the commission.

The core point of Deputy Boyle's question concerns whether it is legal to impose fees. The short answer is that there is provision to do so under the Freedom of Information Act. As he probably knows, there has always been a power to charge search and retrieval fees. Last year, that scope was widened in amended legislation to include the scope to charge application fees in addition to those fees. It is legally sound to charge application fees although one might raise questions about the wider, more philosophical issue of whether it is impinging on people's right to access information. Many such questions are answered in the investigation report. The scale of the charges——

Deputy Boyle

I do not doubt that the Freedom of Information (Amendment) Act established the legal basis for making the charges. I am saying there is a possibility of conflict between the directive, which has the status of Irish law, and the amended Act. I am interested to see how this will be resolved.

The delegates have touched upon my other question. Has there been any upsurge in search and retrieval activity? Theunder-employment of FOI officers was referred to. My experience — this is totally anecdotal — is that work at local authority, health board and VEC levels seems to be elongating the process of one being identified and contacted. Unnecessarily long correspondence is being entered into with those seeking information from these bodies. Has the Information Commissioner found any evidence in compiling her report that would indicate that people are finding it more difficult to find those whom they should ask for information before they even enter an appeal process with her office?

Ms O’Reilly

I placed great emphasis on the issue of the search and retrieval fees when we set out to make this report. I had read several reports in newspapers about journalists in particular being asked about very high charges for search and retrieval, sometimes involving hundreds or thousands of euro. I was very insistent that when we examined the records, we would examine whether search and retrieval fees, although they were imposed theretofore in a very limited way, were being used by public bodies as a further deterrent to those trying to access records. However, we did not find this to be the case regarding the public bodies we examined. There was some slight evidence that some Departments — the Department of Finance, for example — were engaging in this practice more than others but the overall figure suggests that search and retrieval fees were charged only 276 times out of 5,039, or 5.5% of the time, for non-personal requests in the 17 bodies.

On Deputy Boyle's perception of what is happening at local authority, health board and VEC levels, we did not just examine requests but also examined the behaviour of FOI officers in public bodies. We did not find evidence that there was a lack of professionalism and rigour regarding the implementation of the Act. This could change and it is within my remit to examine particular public bodies if complaints are made about them.

Senator Mansergh

I welcome the commissioner and compliment her on her report. She mentioned the drop in requests and appeals. If there is a drop in the underlying number of requests, there will necessarily be a drop in the number of appeals. The cost of the appeals is clearly not the sole factor if the underlying base from which the appeals are made is reduced. Most people do not have a difficulty affording 15 cent for a plastic bag. Nonetheless, usage has dropped by 90%. Similarly, I find it hard to believe that journalists have a serious problem paying for their requests. Part of the purpose of the legislation was to cut down on what might be classed as frivolous requests. Not all the requests under the Freedom of Information Act related to what one might term matters of substantial public interest.

Taking into account Ms O'Reilly's previous profession perhaps this is an unfair question, but would she care to comment on why journalists' requests have greatly reduced? It can hardly be that their newspapers are so strapped for cash that they cannot afford the fee.

Ms O’Reilly

I am guessing in the dark in the absence of further research on media usage prior to the amended Act and at present. The fees are one reason, although I do not emphasise their importance because I agree a fee of €15 is not a substantial amount. However, it depends on the news organisation involved or whether a freelance journalist is trying to access information. Another reason is the amendments to the Act around accessing records relating to central government, particularly sections 19 and 20. The controversy which surrounded the Freedom of Information Act and the manner in which the changes to the Act were portrayed the media, including myself at the time, is yet another reason. Therefore, there is a perception among many journalists that the Freedom of Information Act may not be worth a candle. I do not agree with that analysis because, to some degree, some of the amendments have been misunderstood. I have noticed in the past 12 months that a significant volume of information is coming out. However, perception is very important.

Yet another factor is the manner in which news organisations have gone about making FOI requests. The requests have tended to come from individuals acting off their own bat, rather than having a particularly well-organised or administered system. Again, I ask the media organisations to examine their own role in this regard and ask themselves questions about why the Act is not being used as much. I also ask if media organisations might perhaps take a more structured approach to how they go about accessing FOI information.

Deputy Burton

I wish to follow up on a question I asked earlier. In the Dáil this morning, the Taoiseach stated:

For a period, the media, business and others were using the Act to a great extent. In other countries that is not the case — it is used by the public. By and large, FOI was introduced to serve the public and it is settling back to that being the case. For some time the situation was that more than two-thirds of cases were from journalists but that has reduced substantially. We also had vexatious and business interests using the system to a great degree for information.

Does Ms O'Reilly believe there is any evidence that there were serious abuses of the Act in respect of vexatious applications, as the Taoiseach appears to believe? Does she believe most journalists making applications under the Act were doing so broadly in the public interest and in line with the Council of Europe's view of providing information in a society in order that it is free? The Taoiseach seems happy that the amendments to the Act have closed down so much to journalists because he takes the view that the Act should be used by the public rather than by journalists. Would Ms O'Reilly defend to the fullest extent possible journalists and media organisations using the Act?

The Taoiseach also stated this morning that it was calculated some time ago by the Department of Finance that each FOI request cost €425. Does Ms O'Reilly have any hard evidence that the average cost to a Department per request is as high as that? I find it astonishing. People must have been going around in circles if it costs €425 per request for what is, in many cases, very straightforward information which can be copied on a photocopier. If it is costing that amount, it is an indication that something is very wrong with public service administration.

Further to our earlier discussion on costs, the Taoiseach gave the figures for his own Department between July 2003 and June 2004, during which period his Department received fees of €593.80 in fees. That is an astonishingly small amount of money to generate. Surely, all the evidence points to the fact that the fee regime is excessively costly and the kind of accounting systems needed in the Department of the Taoiseach to account for €593.80 in receipts is completely disproportionate to the effort involved. On the grounds of public cost and productivity, the Minister for Finance ought to seriously reconsider whether this is worth a candle. An elaborate system has been set up purely in order to make sure someone does not run off with €593.80.

According to the Taoiseach, one request was made to his Department in May 2004 compared with 11 in May 2003. Presumably, in May 2004 the Department received €15 in fees and still maintained a big administrative structure. This is extraordinarily unproductive and is a waste of resources. Earlier, Deputy Finneran referred to strategic management in the public service. Someone running a sweet shop would not be involved in this type of activity.

Senator Mansergh

I would like to make a quick comment on one aspect of Deputy Burton's contribution.

Deputy Burton

I am quoting the Taoiseach directly.

Senator Mansergh

I do not doubt that the Deputy is quoting the Taoiseach. I have experience as an adviser, although not at the receiving end, of being approached by the FOI officer. The requests were generally for correspondence between individual A, being someone outside the public service, the Taoiseach and other officials in the Department. The official has to contact many different individuals to establish whether a letter or letters were indeed received. In some cases, one might think one had received a letter from individual A and spend some time searching and trawling through materials to provide information.

I have personally provided a lot of material in reply to FOI requests and I am only one of many who would be approached about the particular subject. I assure Deputy Burton it takes some time to find, collect and collate the material to give to the officers so they can give it to journalists. I would not underestimate the amount of time it takes to process some of the general trawl-type questions that are submitted under the FOI process.

Ms O’Reilly

In reply to the comments of the Taoiseach, Senator Mansergh and others, some acknowledge that much of what goes into public debate is anecdotal. People say certain things happened to them. I am not saying I am always sure that people are telling the truth. To return to my point about the review, however, if there are claims that the manner in which the Taoiseach or the Minister for Finance acts was used or abused, perhaps it would be useful if we had empirical evidence of that — if somebody looked up the relevant information. I emphasise that we can have a mature debate about the Freedom of Information Act. There are claims made on both sides of the argument and I cannot believe that all the claims made on one side are correct.

The purpose of the review, I hope, is to consider the workings of the Freedom of Information Act, the way in which it affects the Administration and the problems it causes. I am sure it has caused problems. Similarly, if people were able to read reports by officials, Ministers and so on about a certain issue, they might change their minds about it. People with other points of view, however, would consider the benefits that have been brought to the citizenry by the introduction of the Act. If we do not have that, all we are going on is anecdotal evidence.

The use of the Act by journalists and the media was mentioned. Like everything, this has good and bad aspects. Journalists have been responsible for securing much important public information. The issue of Campus Stadium Ireland was notable in this respect. On the other hand, however, there are journalists who have probably greatly annoyed the Administration by seeking trivial information such as the cost of make-up. On a human level, one could understand why people would be annoyed by that. There are good and bad aspects, but that is the nature of democracy, and both must be accommodated.

The way in which the media used the Act in the first few years could be compared to a child with a new toy. When a child has a new toy it will look at it and shake it and do all sorts of things to find out what it can do and how it operates until, eventually, it settles down to a particular level of use. There was evidence over 2002 to 2003, or slightly earlier, that journalists' use of the Act had declined to a more reasonable level, whatever the term "reasonable" means. However, in recent times it has dropped severely.

In the matter of cost, I draw the attention of the committee to the investigation report, which states that in March 2003, the Minister for Finance said the average cost of processing a FOI request in his Department was €425, and that if one takes €300 as an average, a fall of 3,000 FOI requests over 35 bodies will achieve an Exchequer saving of less than €1 million per year. One question may be asked about the fee: what is it for? It is clear that it does not pay for the administration of the Act. Therefore, why is it in place? Is it there to act as a brake on the system, to give people, perhaps correctly, an appreciation of the value of what they are obtaining?

Deputy R. Bruton

Do we have a figure for the cost of requests before and after the change? Ms O'Reilly stated the cost of a request to the Department of Finance.

Ms O’Reilly

No, we do not.

Deputy R. Bruton

As Ms O'Reilly said earlier, if the Government has kept in place all the relevant staff, the cost per request must have exploded.

Ms O’Reilly

Yes, from the point of view of the bodies we looked at, but given the figures it would seem there is no great management pressure to keep it at that level.

Deputy Ó Caoláin

In light of Ms O'Reilly's recent exposé of the destruction of pre-1968 files at the National Maternity Hospital at Holles Street, is she, as Information Commissioner, satisfied that there is sufficient protection to ensure the preservation of records of public interest to which the public should have a right of access? Does she have any concerns or believe there should be further legislative provision in this area? Is this incident an isolated one or has she come across other incidents that would give rise to further concern in this regard?

Ms O’Reilly

We have come across such incidents in child care institutions and so on, in which records prior to a certain date were destroyed. Our principal concern is that record management across public bodies is very patchy. There does not seem to be any overall system in place. This matter needs to be addressed because it is an important part of the FOI process. One of our recommendations is that the Minister for Finance should make regulations with a view to ensuring that public bodies have efficient systems in place, not only to ensure that people can speedily access records but to ensure there is proper storage and retrieval.

Deputy Ó Caoláin

I am not personally exposed to the detail of any legislative requirement about the retention of records. Is this an area that needs substantial address? I do not know what legislative protections there are that compel public bodies to retain——

Ms O’Reilly

There are no such regulations at present, although we have been seeking them. I refer to the office of the National Archives and so on. The office has experienced patchiness of the record management system, or lack of a system, in an alarming number of public bodies.

Senator White

As I was attending a vote in the Seanad, I have missed some of the discussion. In her presentation Ms O'Reilly stated: "In the context of a future review, consideration should be given to the waiving of fees in respect of certain types of requests by Oireachtas Members and the media." I do not have much sympathy for the plight of the media in having to pay fees. The media consists of companies who are making profits. I believe they should continue to pay. There should also be a settling-down period of another year before the issue of fees is reviewed. What type of request was Ms O'Reilly referring to when she made this point?

Ms O’Reilly

I was referring to requests that are in the national interest and issues of particular public importance. However, there is a difficulty in defining that and deciding who defines it. This debate has taken place in other jurisdictions and different decisions have been taken on whether the media or Members of Parliament should be charged for requests. In general, most have concurred with the Senator's point of view and media representatives continue to be charged where charges apply. However, in other jurisdictions charges have been waived for Members of Parliament, particularly when they are trying to access public information, not necessarily for a constituent. This matter needs to be considered. I agree that representatives of the media have commercial back-up, whereas politicians are in a different category. Again, this matter should form part of any future review.

Senator White

I would not like to see the media being exempt from paying. From the figures quoted earlier by Deputy Burton and Senator Mansergh, I can understand the costs involved. If people are very concerned about getting the detail correct, it will take time to deliver a correct reply when so much depends on it. I do not support the contention that the media should not have to pay. The Act is probably overused by these people. They are often impatient and want the answer on the spot. I am not an authority on this matter and I have never seen the system in action.

Ms O’Reilly

That is the nature of the media beast. There is a lot of competition. As everybody works to deadlines, that is the way in which they must operate.

Senator White

I have never seen it myself but can understand how they operate.

Chairman

We have concluded our discussion. On behalf of the committee, I thank the Information Commissioner, Ms O'Reilly, Mr. Whelan and Mr. Nutley for attending. We look forward to hearing from them again in the autumn in respect of the non-disclosure provisions in section 32 of the 1997 Act.

We will adjourn until 11 a.m. on Wednesday, 14 July when we will deal with the EU proposal on a European anti-fraud office and finalise the timetable for the discussion of decentralisation. We must also deal with the AIB correspondence.

Deputy Burton

Can I request that the meeting be brought forward? The Labour Party has a meeting scheduled for that time. Could we start at 9.30 a.m.?

Senator Mansergh

The meeting will not take longer than an hour.

Chairman

It will not be a busy meeting.

Deputy Burton

Many of us have other commitments.

Senator White

The State Airports Bill will be debated in the Seanad that day.

Deputy Burton

Senator O'Toole made the point that he will be busy on Wednesday but Tuesday is acceptable. Tuesday is fine for me, but I am heavily committed from 11 a.m. on Wednesday.

Chairman

We will meet at 9.30 a.m. on Wednesday.

The joint committee adjourned at 5.45 p.m. until 9.30 a.m. on Wednesday, 14 July 2004.