I would like to speak about my annual report for 2004 in terms of my role as Information Commissioner. There are a number of items that I propose to bring to its attention, with the committee's permission.
The first, and most pressing, is the continued decline in usage of the Freedom of Information Act. This decline is reflected both in the number of requests made to public bodies and in applications to my office. In all, just over 12,500 requests were made to public bodies under the FOI Act in 2004. This represents a decrease of nearly 6,000 requests, or 32%, on 2003. The overall fall between 2003 and 2004 is in line with the pattern of decline identified in my June 2004 investigation on which I reported to the committee last July. I am on record as saying that I believe that this decline is directly attributable to the introduction of fees for non-personal requests.
The Chinese philosopher Lao Tzu said that people are difficult to govern because they have too much knowledge. I am not implying that the thoughts of Lao Tzu were uppermost in the mind of the then Minister for Finance when he introduced the fees and restricted the Act. However, I have not detected any concern within the Government, or indeed the wider Civil Service administration, at the decline in FOI requests. The question of whether we are any easier to govern might make for an interesting debate.
In some ways the attitude towards FOI in certain quarters mirrors the approach adopted by officialdom, in some respects, towards the appearance of the first newspapers in Great Britain in Cromwell's time. Andrew Marr, in his excellent book on the history of British journalism entitled My Trade, recalls the life of Roger L’Estrange, the official censor charged with hunting down those who peddled and printed uncensored material. L’Estrange, according to Marr, was against the idea of any public newspapers at all and the censor wrote “because I think it makes the multitude too familiar with the actions and counsels of their superiors ... and gives them, not only an itch, but a kind of colourable right and licence to be meddling with the Government”.
On page 10 of the report, the effect of the dramatic drop in non-personal requests on some of the key Departments is evident. In 2002, the Department of the Taoiseach received 141 FOI requests, while, in 2004, that number had dropped to just 45. The Department of Finance received 326 requests in 2002. In 2004, that number had dropped to 78 and, in the case of the Department of Enterprise, Trade and Employment, the figures were 205 and 52 respectively.
Since the introduction of fees and amendments to the legislation, the media uses the Act far less than before. Prior to the introduction of fees, journalists accounted for 13% of all requests submitted under the Act, whereas they now make up only 7%. The number of applications to my office has fallen considerably in the past two years. In 2004, they totalled 434. This represented a decrease of 61% on 2003 and a fall of 37% on 2002.
At this stage, applications are currently running at a level lower than that seen for most of the period since the Act became operational. I regard this as a very serious matter, not just for the requesters, who have almost certainly been deterred by the €150 it costs to appeal to my office, but also in terms of my role in monitoring the working of the Act. I do not believe that the Oireachtas, in introducing the amendments to the Act and approving the introduction of fees, appreciated just how draconian they would prove to be.
The Chairman of this committee recently stated that the Information Commissioner has expressed the view that she is the only information commissioner in Europe to whom people must make substantial payments in order to instigate appeals and that if we are out of line with the rest of Europe, we should come back into line. Not alone are we out of line with the European Commission, which does not charge a fee for freedom of information requests, but we are out of line globally with jurisdictions similar to ours. My investigation report showed that only Ontario charges for appeals to the information commissioner. The cost there is €15.60 compared with the €150 charged here.
Last year I reported to the committee that progress was being made in dealing with the backlog of cases on hands which, at that stage, stood at 663. I am pleased to state that 2004 saw significant improvements in this regard to the point that the backlog has been more than halved during the past 20 months, falling from 946 in September 2003, to 501 by December 2004 and to 428 by the end of June 2005. In all, the number of reviews completed by my office totalled 628 in 2004. In the months and years ahead, the office will be focusing to a greater degree on the other important areas of its statutory remit. It intends to disseminate best practice to public bodies and carry out specific investigations into the FOI practices of those bodies which this office has found wanting in the past.
The report details the obstruction faced by this office from the National Maternity Hospital, HolIes Street, regarding a review involving records concerning the post mortem or Dunne inquiry. In this case, the hospital, speaking at almost all times through its legal advisers, refused me the records necessary for the review to begin. It was only at the eleventh hour, faced with a threat of staff from my office entering the hospital and retrieving the records, that the hospital backed down and provided the records.
From time to time, some public bodies can be less than fully committed to assisting the review process. However, this difficulty is normally resolved once they are reminded of section 37 of the Freedom of Information Act, which provides that any hindrance in the performance of my functions is a criminal offence. In this case, the National Maternity Hospital, through its solicitors, adopted an adversarial attitude which was totally at variance with the informal approach to reviews taken by my office. In the end, the matter was resolved and I hope that the hospital and all other public bodies will reflect on this case when considering advice received from solicitors and when instructing their legal representatives during any such reviews in the future.
I want to bring to members' attention decisions of some interest made during the year. In one particular case I found that all communications and findings by the South Eastern Health Board relating to incidents alleged to have occurred in a particular nursing home should be released. During the course of my review, both the board and the home claimed that some records should not be released on the grounds of commercial sensitivity. However, I took the view that there is a significant public interest in people knowing how health boards carry out nursing home inspections in individual cases, that the regulatory functions assigned to the boards achieve the purpose of the relevant legislation and that this public interest overrode any commercial sensitivity that may have applied in the case in question. While it is now the intention of the Health Service Executive to release all such reports in the future, there appears to be some doubt over whether the names of the nursing homes should be released. I would say to the HSE that, in considering the release of such records under FOI, significant weight should be apportioned to the public interest factors just described.
For similar reasons I overturned a decision by the Eastern Health Board not to release a report on a serious outbreak of salmonella poisoning among customers of a fast food restaurant. Other decisions made in 2004 included the overturning of a decision by the Department of Education and Science to refuse access to records relating to the decision to close St. Catherine's College of Education for Home Economics and to relocate it to Sligo. In another decision, I directed the release of details of an out of court settlement between a senior hospital consultant and the North Eastern Health Board.
