I thank the joint committee for inviting my colleagues and me to this meeting to outline our recommendations arising from the Government decision of 25 June 2002 to ask us to consider the operation of the Freedom of Information Act 1997. As chairman of the group, I accept the invitation to make the opening statement.
Members of the committee will be aware that there are certain constraints on what we may say here today. In particular, it would not be appropriate for us to question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such a policy. This is of particular importance in that a Bill is before the Seanad which reflects the Government's position on the issues of concern to the committee.
We were asked by the Government in June 2002 to make recommendations in a particular context. Under the present legislation, records of Cabinet will become eligible for release from April next, as they reach the five year threshold. Towards the middle of last year consideration had to be given to how that process should be organised and, in that context, the question of the appropriateness of the five year exemption arose. The Government decided to ask us to examine and advise it on this and related matters. There was already in the public domain a report by the Information Commissioner on compliance by public bodies which raised particular issues in relation to the protection of Cabinet records under section 19 of the Act and deliberations of public bodies under section 20. Our terms of reference required us to have regard to the commissioner's report and the reports of departmental and interdepartmental reviews of the operation of the Act.
The spirit in which we approached our task was the same as that implicit in the present FOI legislation, namely, to strike the appropriate balance between maintaining the integrity of the Cabinet and the underlying deliberative process and ensuring the maximum level of openness and transparency in the public interest. In this overall context, the group was asked to consider from its perspective issues in relation to how exemptions provided for in the Act had been applied, the extent to which the public interest had been served in practice by the operation and provisions of the Act and the appropriate balance between promoting transparency in the decision making process and preserving the effectiveness of the process.
We met formally three times over the period of the review. We were supported in our task by a joint secretariat provided by the central policy unit in the Department of Finance and the Government's secretariat within my Department. There was ongoing liaison with the joint secretariat in the preparation of the report between the meetings of the group. Its third meeting on 27 November was for the purpose of agreeing and signing off on the report to Government.
A question has arisen, which I wish to address, about the level of consultation we undertook in making our recommendations. I wish to put this in context. It is a well established, if not very frequent, practice for the Cabinet to ask officials to assist it with consideration of particular matters. The role of our group was to offer our advice as an input to the Cabinet decision making process. We were not asked to, nor was it expected that we should, engage in a public consultation process. Our advice was sought in a context where the views of the Information Commissioner on certain issues and those of other interested parties were in the public domain.
In relation to the matters at issue in this instance, Secretaries General of Departments work closely with ministerial heads of Departments. They have extensive knowledge and experience of the functioning of the deliberative and Cabinet process. They are in a position to form views and make assessments based on that knowledge and experience, as well as the publicly stated views and judgments of others.
As I mentioned, we were also supported in our work by the central policy unit in the Department of Finance. The views of those with an active interest in freedom of information such as academics, journalists and frequent users of the legislation are channelled to the unit on an ongoing basis, including, for example, through conferences hosted and attended by it.
We prepared our report as advice for Ministers. Its publication by the Government was intended to inform the debate on its legislative proposals.
Before addressing individual recommendations I would like to make one point very strongly. There have been suggestions that our purpose was to protect Civil Service advice from public scrutiny. We emphatically reject this. In fact, considerations of this kind never arose in our discussions or deliberations. It is fair to say all of us, civil servants, Ministers and Members of the Oireachtas, have had the experience of seeing records published which have caused some degree of discomfort, even embarrassment. We have learned to live with this, however, and recognise that personal discomfort is not relevant in any consideration of the FOI framework. The five years of operation of the Act have moved us well beyond this and we accept this possibility as part and parcel of the climate of openness in which we operate. In this regard, I strongly agree with the views of the late Tom Barrington when he said, "It says little for one's professional confidence if being the holder of a secure job one is afraid that one's honest advice should become public knowledge."
The right to access information serves the public interest in a unique way. Making government open and accountable is in everyone's interest. Together with the strategic management initiative, with its emphasis on the public recording of departmental objectives and results and a clear focus on customer service, with the enhanced role of Oireachtas committees, underpinned by compellability legislation, and with a much more extensive media scrutiny of public affairs, the Freedom of Information Act has helped to modernise and improve public administration. We accept and are fully committed to this regardless of what sceptics might say but we are also part of the framework of government and concerned with ensuring the decision making process works effectively and efficiently. This is also vital in the public interest.
The Government's main purpose in establishing the review group was to consider the effect of the Freedom of Information Act on the Cabinet process. Accordingly, we devoted most of our consideration to this area. Much of our concern derived from the nature of government and the exercise of collective responsibility. Collective responsibility, a defining characteristic of the Government under the Constitution, has implications which were well described by W. T. Cosgrave who stated:
When Government arrives at a decision to do or abstain from doing any particular act, the decision is the decision of all its members. Previous divergence of views, individual opinion, arguments pro or con, all become merged in the decision that becomes not the decision of a majority, but the decision of all, binding every member of the Government equally, whatever may have been his previous attitude.
In the words of the all-party Oireachtas committee on the Constitution: "Cabinet confidentiality supports the unanimity principle . . . and is a feature of European cabinet government". In its 1995 report the Constitution review group highlighted the importance of Cabinet confidentiality and noted that such confidentiality is an almost universal feature of government and the essential underpinning for the doctrine of collective responsibility enshrined in Article 28.4.2. Collective responsibility is, in turn, essential to a Government's ability to plan and act cohesively. The possibility that Cabinet confidentiality might in some circumstances be lifted could in itself, obviously, inhibit discussion and therefore the effectiveness of Government.
That was the context in which we considered, in particular, the period of exemption for Cabinet records. A key recommendation of the group was for the period of exemption for Cabinet related records to be extended to ten years. I stress, however, that we were not breaking new ground in our approach to this issue as section 19 of the Act already carried a legislative recognition that a period of protection for Cabinet records was necessary. We looked at practice in other jurisdictions. Internationally, Cabinet records are either excluded in their entirety from FOI legislation or have exemptions of up to 20 years. In some cases this period is as high as 30 years.
I wish to outline some specific examples that we considered. In Australia freedom of information legislation operates mainly at state level where limits of between ten and 30 years apply. In New Zealand there is no time limit for the exemption of records that protect collective ministerial responsibility. In Canada there is a broad exemption for 20 years applying to records relating to Cabinet confidences, although we noted that a recent review recommended a reduction in the period of exemption to 15 years. While the UK freedom of information system has not yet come into operation, it is intended that a broad exemption, with no time limit, will apply to any records likely to prejudice the maintenance of collective ministerial responsibility.
Against this background the group considered whether the release of information related to the Cabinet process after only five years could potentially have a detrimental effect on the operation of the process. We felt strongly that the process of collective Cabinet decision-making and with it effective government could be seriously impaired if Cabinet records were released after such a relatively short period of time. We came to this conclusion having regard to two principal factors: first, that most Ministers could still be active in politics in a five year framework; and, second, that members of the Government enjoy virtually absolute confidentiality in respect of discussions at Government. We believe such early release of those records would be likely to have either of two consequences. It would have the effect in many cases of Ministers making their views on policy issues known only at the Cabinet table. This would run counter to the public interest and the effective operation of collective responsibility by weakening prior consultation between Ministers and the careful assessment of their views through the process of circulation of draft memoranda for the Government. This would seriously undermine the process of forging the maximum consensus in advance of matters coming to Cabinet, change the focus and strategic direction of discussion at Cabinet, and produce a form of decision-making more verbal in nature.
An illustration of this possible outcome is provided by looking at how Cabinet deliberations are conducted in Sweden, a country which has a constitutional principle dating back to 1766 that anyone has the right to ask any public authority to show any public document kept in its files. As noted by the all-party committee on the Constitution in its recent eighth progress report, Cabinet decisions in Sweden are kept in two series: series A is open to the public, although appendices may be classified, while series B is secret. In practice, the vast majority of Cabinet decisions are accessible. However, no minutes are kept of Cabinet discussion, there are no Government memoranda as we know them, and what is placed before Cabinet is an agreed decision. Accordingly, a Cabinet document will never contain any indication of the different views of Ministers. The report notes:
It is the practice of Ministers who are not otherwise engaged, to meet daily for lunch in the prime minister's dining room. In practice, much of the consultation between Ministers takes place in this forum. No record is kept of those lunch-time discussions.
In other instances, we considered that it would tend to encourage more writing for the record by Ministers on issues where they may wish to present a particular position on the public record when the common good would require a different collective decision. Both of these possibilities would be clearly detrimental to the process of good government and tend to weaken the cohesion required for collective responsibility and its effectiveness in practice.
Turning to the question of discretion in section 19 of the Act, the Information Commissioner in his July 2001 Report on Compliance by Public Bodies with the provisions of the FOI Act highlighted, in particular, the operation of the exemptions provided by that section of the Act. He was concerned that what he felt was a discretionary exemption for Cabinet records was being applied as a mandatory exemption in practice. The group believes the policy underlying this section of the Act is that as a general rule Cabinet records should be exempt from release for a specified period of time. The commissioner was right in drawing attention to the uncertainty around how a discretion of this kind might be exercised. However, the group was of the view that the articulation of guidelines relating to the exercise of this discretion would not resolve the problem. We believe any widespread exercise of a discretion by key decision makers to release Cabinet records would not be compatible with the overall purpose of this class of exemption provided for in the Act. Furthermore, it would weaken the confidence of Ministers that views given freely by them in Cabinet records would be protected for a specified period of time.
In regard to incidental records, due to a question of interpretaton, we also recommended that section 19 of the Act be amended to ensure there was protection for records created for use at a meeting of the Government, even if they were incidentally used for other purposes. We do not believe this recommendation fundamentally alters the existing provision. The original purpose for which a record was created remains the key determinant of its FOI status. In our view, a record for use at Cabinet should not lose its protected status just because it might be used subsequently for some incidental purpose.
We furnished our advice to Government on the basis that it was ultimately in the public interest to have a well functioning Cabinet process which allowed Ministers the freedom to carry out their constitutional function as members of the Government. It was against this background that the group considered whether communications between Ministers in support of collective responsiblity warranted protection. There are circumstances where Ministers communicate with each other to try to resolve an issue already on the Cabinet agenda or on the point of submission to Cabinet. Again, the process of forging consensus around proposals to Government is an important part of the Cabinet process which needs to be encouraged and supported.
Internationally, the need for space in the exchange of views between Ministers is well recognised. Communications between Ministers in matters relating to the making of Government decisions or the formulation of Government policy are excluded from the scope of many freedom of information regimes. In the proposed FOI regime in the United Kingdom there is specific recognition of the role of inter-ministerial communications in the exercise of collective responsibility. In Canada communications between Ministers on matters relating to the making of Government decisions or the formulation of Government policy are exempt from release. In New Zealand an exemption with a public interest test may be invoked to protect the confidentiality of advice tendered by Ministers and officials.
Having considered this matter we concluded that communications between Ministers in their capacity as members of Cabinet merited protection. We saw the need to circumscribe the grounds on which that exemption might apply. The group's recommendation links the protection of such records to matters on the Government agenda or on which a submission to Cabinet is imminent.
It is for similar reasons that we recommended protection of records of working groups set up in direct support of Cabinet. I make it clear that we saw this applying in a very limited way and that it would not apply to the vast majority of working groups set up for many different purposes. The kind of group which we had in mind was one which worked as an extension of Cabinet helping it to tease out issues which were already on its agenda. It would be a once-off exercise, rather than a standing or continuing group, and would cease to exist once the issues in question had been decided by the Government.
While a report prepared by such a group for submission to Government would be protected under existing FOI provisions, its minutes and other records would not. We felt there were special circumstances which warranted protecting records in those circumstances so closely linked to a critical stage of the Cabinet process on the grounds that they would involve articulation of the personal views of Ministers.
With regard to factual information, our recommendations were influenced by the experience of the Cabinet secretariat which regularly receives requests for clarification about what constitutes factual information as currently defined in the Act. The group felt it helpful to clarify the definition of factual information so as to provide a clearer context in which FOI key decision makers could release what was clearly established as factual information in support of the decision making process.
The group had become aware of concerns among colleagues and Ministers that the prospect of early release of records might inhibit the frank articulation of views to the detriment of the deliberative process. We considered but decided against making any recommendation for a period of time to be allowed after the deliberative process was completed before such records would be released.
The Act currently provides for a presumption of release unless the prospect of harm to the deliberative process can be satisfactorily shown. Very often it is not possible to establish in terms which are sufficiently certain what future impact the release of particular records may have on the deliberative process. This frequently requires a fine judgment call which would be well below the threshold of proof that the current section 20 requires. The group felt a more balanced public interest test was appropriate in line with that used in other sections of the Act while still retaining the underlying principle that the mere fact of an ongoing process should not be a barrier to release. As has been acknowledged by the Information Commissioner on a number of occasions, the public interest is not specifically defined in the Freedom of Information Act and is far from being an easy concept to define.
With regard to fees, I mention the recommendation for the introduction of an up-front fee. The intention was to encourage responsible use of the Act and better reflect the cost to public bodies of freedom of information. The Act already requires fees for the cost of searching and retrieving records and photocopying. In practice, however, such fees are often not charged due, it seems, to the additional burden of work imposed by the relevant provisions. Up-front fees are a feature of FOI legislation in other jurisdictions. In Australia an up-front fee of Australian $30 must accompany an FOI request with further fees for various other parts of the process. There are also additional charges for internal review and external review to the equivalent of the Information Commissioner. In Canada there is a nominal application fee of Canadian $5 with further charges applying at other parts of the process. The group felt fees should not apply to personal information, that they should be set at a level not to discourage the making of requests and that there should be provision for appropriate waivers.
I highlight that our review also recommended significant expansions in coverage of the operation of the Freedom of Information Act. We were of the view that the progress that had been made in promoting a culture of openness and transparency in decision-making and in the way government works should be maintained. There are now nearly 400 public bodies covered by the Act ranging across Departments, Government agencies, regional and local authorities, educational institutions, health boards, hospitals, voluntary organisations and third level colleges. We wished to see this momentum maintained. Accordingly, we recommended that early progress be made in a significant programme of extensions of operation of the Act and that partial exclusions of public bodies' functions from freedom of information should only be permitted in the most exceptional cases. We also highlighted training in implementing freedom of information in an effective and consistent way as a key factor in rolling out the benefits of the Act.
I hope our outline of how the group arrived at its recommendations will be of assistance to the committee.
