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Introduction

Good morning

At the outset I would like to thank the President, Professor Don Barry, for his introduction and for the University of Limerick’s hosting of this conference -

I would also like to thank both Tom Felle, Head of Journalism, for the kind invitation to speak at this event and also Dr Maura Adshead, who together with Tom has, I understand, been instrumental in organising today’s conference.

The insightful overview penned by Tom (Felle) and Maura (Adshead) which you will see in the Conference Programme highlights some of the key themes informing your proceedings in the course of the day including:-

· the role of Freedom of Information as arguably the most important piece of legislation among a raft of reform measures enacted during the 1990s in helping to open up Irish society;

· the commitment embodied in FOI legislation to openness and transparency and the seismic shift it represented from what is characterised as the pre-existing omerta-like adherence to the traditions of confidentiality and secrecy in the affairs of government.

· the transformational impact the legislation has had on relations between the public and the State, as well as the inevitable and unavoidable stresses and conflicts that have arisen as public governance in Ireland sought to readjust to a new equilibrium.

This transformation of course remains work-in-progress as we travel the road towards planned reform and intended renewal of FOI.

Context

The FOI Act’s 15^th anniversary and consequently this conference fall at an auspicious time in light of the current state of play in relation to the Government’s proposals for FOI.

As you all know – in line with the Programme for Government commitment – these seek to restore the Act as well as extend it to all public bodies, including some noteworthy, long-standing exclusions.

Following last July’s Government’s Decision and in particular since the end of 2012 - as some of the pressure created by the huge volume of legislative work undertaken to meet Troika requirements has eased off - work has accelerated on the drafting of FOI reform legislation.

The Bill is included in the "A-list" as one of the Government’s legislative priorities for publication during the current parliamentary session.

In parallel to the drafting working being carried out by the Office of the Parliamentary Counsel with my Department, a pre-legislative scrutiny process is being conducted on the General Scheme (or Draft Heads) of the FOI Bill following my request to the Joint Oireachtas Committee on Finance Public Expenditure and Reform (FPER).

The Committee initiated this review following a meeting with me to discuss the proposals on the 10th January last.

As you will have seen from the media coverage, in the last week the Committee has met with, among others, the Information Commissioner, the National Union of Journalists and representatives of Ireland's national newspapers as well as some expert users and advocates for FOI.

I will return later to the importance of the Committee’s work and the central role I expect it to play in framing the final legislative proposals for submission to Government for approval to publish a Bill.

Five years on

The state of health and wellbeing of Ireland’s FOI regime on the ten year anniversary of FOI five years ago in 2008 provides a valuable reference point to our endeavours and an interesting counterpoint to the content and proceedings of this conference.

What seems very evident from various statements and commentary at the time was a quite pronounced underlying concern and anxiety regarding the role and the future prognosis for FOI in Ireland.

The excellent report published by the Information Commissioner at that time Freedom of Information the First Decade detailed some of the very significant achievements of the Act in the first ten years of its existence.

It highlighted some of the key areas of public policy where FOI - not only made a major contribution in better informing and advising public and political debate – but where the legislation was instrumental in bringing vital issues of public concern into the public domain.

Notwithstanding the demonstrable success of the legislation, in overall terms, however, the tone of the Information Commissioner’s report was quite downbeat.

The very significant restrictions and limitations to FOI introduced in 2003 were still casting a long shadow five years on.

The Information Commissioner’s report referenced, in particular, the telling assessment made by the first Information Commissioner the late Kevin Murphy – as you probably know previously a former very senior and highly distinguished civil servant in his own right - that government had stepped back from the ideal of open government.

The nature of the review process undertaken in advance of bringing forwarding the amending legislation in 2003, the very limited consultation that took place, the tenor of the debates in the Houses and in Committee hearings on changes seemed to lead to an inescapable conclusion that the tide had turned decisively against FOI.

One of the foremost national experts on FOI, Professor Maeve McDonagh of UCC, characterised the 2003 legislation in diplomatic terms at the time as a significant step back from the Act’s original aspirations.

Subsequently, the same commentator drew an analogy with some of the international experience of revision and pessimism that can follow the honeymoon period following the initial introduction of FOI.

The actual legislative changes – as significant and far-reaching as they were – were a bellwether of a marked cultural shift in political and administrative attitudes to Freedom of Information.

Re-setting FOI

Fast-forwarding to the present, developments such as, for example:

· the Government’s reform proposals;

· the Oireachtas Committee’s scrutiny process and hearings; and

· the range and diversity of the topics in the papers contributed to this conference;

all demonstrate the extent to which the debate on Freedom of Information is being re-set.

We, therefore, have at the present time an excellent opportunity to plot the course for the future growth and further deepening of a positive culture for FOI in Ireland.

In order to establish the strongest possible foundation for this process I think we can do no better than return to the fundamental purpose of Freedom of Information summarised in the long title of the Act as follows:-

"to enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy to information in the possession of public bodies"

This precisely expresses the high level of ambition we should hold for Freedom of Information.

The key rationale for this ambition is well encapsulated by Eithne FitzGerald - the Minister of State responsible for the FOI legislation - in her speech at Second Stage on the Bill in the Dáil on 11 March 1997.

She stressed that:-

· access to information must be seen as fundamental to the reform of democratic institutions to create genuine openness and empower ordinary citizen; and

· the change the legislation was intended to achieve was to ensure that the culture and practices of secrecy in public bodies was set aside for good and replaced with a legal presumption that the public has a right to know.

As is evident from the summaries presented in the Conference Programme the papers to be presented today provide an opportunity to examine and debate the extent to which the existing legislation - as well as the proposed reforms - is likely to meet these demanding and challenging standards.

Hopefully your discussions will also help point in the direction of the steps we should take to increase the prospect of attaining these vital objectives in the future.

Acknowledging challenges

The long title of the FOI Act quoted above also succeeds in capturing the fundamental tension inherent in FOI in seeking to determine the balance between

· the public interest in information being released;

· as against the public interestin information remaining confidential.

It is not surprising that the term "the public interest" is undefined in the FOI Act as indeed it largely remains undefined more generally in the Irish Statute Book.

This brings into sharp focus the extent to which quite divergent and contrasting views and perspectives on what is, and what is not in the public interest are invariably at the nub of all discussion and debate on the appropriate parameters of and boundaries to Freedom of Information.

It also highlights the necessity for what the Information Commissioner has called for on several occasions over the years – an honest and adult discussion on Freedom of Information in Ireland which she stresses is essential to recognise realties and avoid posturing.

Reform and extension proposals

I do not propose to rehearse for this expert and informed audience all of the features of the legislative changes and extension in the scope of FOI proposed by the Government.

The General Scheme of a consolidated FOI Bill has been published on my Department’s website since last September including details of the proposed qualifications to the principle that in the future the Act should apply to all public bodies.

Judging from the Conference Programme, publication has already generated some positive spillovers in terms of the analysis of specific elements of the proposals.

I am very encouraged by the broad welcome my proposals have received to date, for example, from members of the FPER Committee as well as the Information Commissioner who recently advised the Committee that the proposals will, in her view, go a long way towards restoring the confidence of the public in the Government's commitment to optimising openness, transparency and accountability.

Pre-legislative Scrutiny

I would like, therefore, at this point to return to the work being undertaken by the FPER Committee to elaborate on the important role of the pre-legislative scrutiny the Committee is undertaking in informing and guiding the further development and improvement of the legislation.

There is, of course, a very high level of knowledge and expertise in and indeed commitment to FOI among public representatives, reflecting the significant exposure and experience they have to FOI in their day-to-day representative work.

As I advised the FPER Committee I believe that there is very significant added-value to be obtained through early consideration by Members of the Oireachtas of key legislative proposals.

This is particularly the case in the area of political reform area where the expert input of public representatives can make a very substantial contribution to the final design of important legislative measures.

This perspective informed the commitment in the Programme for Government to enhance this democratic process by involving public representatives at an earlier stage of the legislative process, particularly before Bills are published.

It is important to make the point that this is a real and concrete innovation in terms of enhancing the role and involvement of the legislature in contributing to the development of legislative proposals.

I should stress that the value of pre-legislative scrutiny of important reform initiatives has already been demonstrated in a very explicit way by the work of the FPER Committee on proposals for the introduction of whistleblower protection legislation which culminated in the submission of a report to me last July with twenty-six detailed observations on the Draft Heads.

This report is playing a valuable role in the further development of Public Interest Disclosure Bill, the drafting of which is at an advanced stage.

I believe that the FPER Committee can on its own account and drawing on the perspectives, experience and expertise of a broader range of relevant parties, make a very significant contribution to the further development and refinement of these legislative proposals on FOI.

A particular priority should be to ensure that the legal framework appropriately supports the effective and efficient operation of Ireland’s FOI regime.

I fully recognise, from my own meeting with the FPER Committee and the recent subsequent committee hearings, that there are some important aspects of the FOI proposals on which there is not necessarily common ground.

One of the key benefits of FOI that is often highlighted is its role in helping to improve the contestability of policy advice and the degree to which policy advice is fully informed and evidence-based.

In keeping with this, in requesting the FPER committee to review the General Scheme, I, therefore made clear that I was seeking a substantive assessment of relevant issues.

I also made clear that I was open to considering any recommendations made to me by the Committee on the legislation in order to further refine and focus my proposals prior to seeking Government approval for the publication of the Bill.

Commercial State Bodies

Two key issues that have emerged both from my own meeting with the FPER committee and their subsequent hearings are:-

· the extent to which Freedom of Information should apply to commercial state bodies; and

· inevitably the question of fees and, in particular, the upfront application fee (of €15).

I communicated my assessment at my meeting with the Committee that the view that FOI can simply be extended on a blanket basis to all commercial state bodies is misguided.

Careful examination is required of the particular circumstances that pertain when a commercial state enterprise is active alongside private enterprise in a competitive market environment.

I also made clear that providing there was proper acknowledgement of these commercial and economic realities, I remained open to the views and recommendations of the Committee or indeed of any other interest or party as to mechanisms that might be appropriate to strike the right balance between the evident competing considerations that apply.

FOI Fees

I also set out at my Committee meeting in January concerns I had on the abolition of FOI fees, while stressing that this was an issue that I would welcome the views and assessment of the Committee to seek to find a way forward.

International analysis highlights that fees are always a controversial issue in freedom of information laws. The principle is universally accepted that fees should not be so high as to deter requests but practically every law does allow for some charges for access and different laws take different approaches to fees.

The national debate on fees needs to be grounded in a clear recognition that, based on figures contained in the Information Commissioner’s Annual Report for 2011, over 7 in 10 Freedom of Information requests were personal requests that attract no fees. [12,581 non-personal of 16, 517 total FOI requests]

While it is of course important not to be "misled by the mean" (or average) for those 2½ in 10 non-personal requests received in 2011 eligible to pay the €15 application fee the average search and retrieval fee charged was €7.42 – representing a mere 21 minutes or so of search and retrieval time [charged at €20.95 per hour].

We need therefore to reflect on the extent to which the total level of fees charged taking the upfront application fee and search and retrieval fees charged represent an impediment to the public seeking non-personal records.

Another important element of this debate is the economic analysis of FOI including the administrative cost of dealing with FOI requests and fees.

There has been some interesting analysis of these issues here in Ireland by Dr Nat O’Connor from TASC and also in the context of the recent parliamentary review of the UK’s FOI legislation.

I have asked the Evaluation Unit in my Department to review the available evidence and assess what conclusions we may be able to draw in this area or indeed to identify the gaps where more work may be required.

Internal Review and Appeal Fees

In assessing priority for reform on fees generally, my conclusion and advice to Government last July was that the introduction of prohibitive fees for internal review and appeal cases to the Information Commissioner (i.e. €75 and €150 respectively) represented the most serious impediment to ensuring the effective operation of the FOI system overall.

The evidence is that the introduction of high appeal fee levels has acted as a very strong disincentive to applications for both internal reviews and appeals by requesters who are dissatisfied with the decision-making of public bodies.

The consequent diminution in oversight and scrutiny by the Information Commissioner of the implementation of the legislation by public bodies is unlikely to have a positive effect on the quality of decision-making or the extent to which decision-makers would apply key balancing tests, in particular relating to the public interest favouring release.

The very substantial reductions proposed in the level of these fees to €30 and €50 (in the case of internal review and appeal fees respectively) is therefore, a core element of the overall package of FOI reforms.

Administrative Implications of the removal of FOI fees

As I indicated to the Oireachtas Committee last month, the proposed extension of FOI is expected to comprehend in the region of another 70 public bodies in addition to the 500+ public bodies already subject to the Act.

In organisational and practical terms, there needs to be a clear awareness of the risk that the abolition of all fees would create a marked imbalance between the number of FOI requests as compared to the capacity of the administrative system to deal with FOI requests.

This risk needs to be assessed against the backdrop of the reduction of 30,000 in the number employed in the public service and the significant planned liberalisation of FOI legislation through the rolling-back of the 2003 restrictions.

In terms of a practical example, the Information Commissioner at her meeting with the FPER Committee last week was very clear that her Office, which is already dealing with a significant backlog, will be unable to cope with processing appeals under the Freedom of Information Acts when additional public bodies are added to those already open for scrutiny

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.

Review of FOI

These concerns stress the importance of ensuring that the operation of Ireland’s FOI regime and the management of FOI requests are as effective and efficient as possible.

Academics cannot presently say whether one country’s FOI legislation works better than another, or why - but our objective now must be, as it was in 1997, to ensure that Ireland’s FOI is, and is seen to be, in the top tier of international frameworks for facilitating access to official information.

This depends both on the quality of the legislation and the effectiveness with which that legislation is implemented in practice.

Consequently, I have decided to initiate a short, focused and targeted operational review of FOI with the objective of establishing a Code of Best Practice for public bodies.

The review will be undertaken by Mr Gerry Kearney the former Secretary-General of the Department of Community, Rural and Gaeltacht Affairs with the assistance of the Government Reform Unit in my Department.

It is expected that the review will provide the ‘evidence-base’ and ‘test-bed’ needed to ensure that the Code addresses the main areas of weakness in current FOI practice.

This will necessitate significant input of experts, practitioners and users of the Act and will entail a public consultation exercise.

I am confident that the review will benefit from a high level of co-operation and collaboration from all who are in a position to assist in meeting its objectives.

While under its terms of reference the review will not encroach into legislative issues such as, for example, the scope and design of particular exemptions, if the review identifies the need for legislative change the timeframe for the conclusion of the review should facilitate the development of appropriate legislative amendments.

The exercise is also designed to provide impetus and momentum to efforts to refresh and restore the principles that underpinned the introduction of FOI.

From a corporate perspective, the review can play an important role in our assessment of the appropriate future role of my Department in relation to FOI with the aim of ensuring that the Central Policy Unit of my Department returns to the central role it performed following the introduction of the original Act in 1997.

The shift in the official culture brought about by the CPU’s activities, and by the Information Commissioner, is something that needs to be revived and maintained into the future.

Open Government Partnership

Based on experience since 1997, a critical challenge for the future is how best to sustain the development and evolution of FOI.

Ireland’s proposed participation in the Open Government Partnership (OGP) comprises one mechanism to help maintain the momentum and impetus of FOI reforms.

The OGP is a global multilateral initiative launched in September 2011 by President Obama on the margins of the 66th United Nations General Assembly in New York.

The main themes of the Open Government agenda relate to securing greater openness, integrity, transparency and accountability of public administration as well as strengthening public governance, and the effectiveness of the state institutions – all key determinants of an economy’s sustainable long-term growth potential.

Ireland’s participation in the Open Government Partnership, for which I expect to seek approval from Government shortly, would be expected to provide an international dimension to many existing national efforts in openness and reform, and has a clear potential to contribute to the continued recovery of Ireland’s international reputation.

OGP membership would support the further development of a planned, structured and systematic approach to key Government reform priorities including in relation to Freedom of Information subject to its inclusion in the national action plans required from each member state every two years.

International Standards

As you know, there are a number of international standards and statements which provide valuable insight into the exact content of the right to freedom of information, over and above simply affirming its existence.

These include:-

· the standards set out by the UN Special Rapporteur in 2000;

· the 2002 Recommendation of the Committee of Ministers of the Council of Europe; and

· the set of principles published by Article 19 the international advocacy body promoting freedom of expression and information which sets out best practice standards on freedom of information legislation based on international and regional law and standards, and evolving state practice.

These standards stress, for example, the principles that:-

· freedom of information legislation should be guided by the principle of maximum disclosure;

· public bodies should be under an obligation to publish key information; and

· laws which are inconsistent with the principle of maximum disclosure should be amended or repealed.

There is a clear potential for us to adopt these type of challenging targets in the years ahead as we set ourselves new aims and goals for the future evolution and enhancement of FOI, hopefully in the context of Ireland’s successful participation in the OGP.

Conclusion

In conclusion, the organisation Article 19 perhaps get closest to the heart of the case for the importance of FOI by describing information as "the oxygen of democracy".

This metaphor signals how that the ability of individuals to participate effectively in decision-making that affects them depends, in obvious ways, on the availability of information.

I am sure we can all look forward to an active, energetic and ideally well informed debate on the Government’s FOI proposals in the coming months.

It is critical to see the current legislative process as an important milestone in the restoration and renewal of FOI rather than an end-point.

We need to remain focused on the fundamental benefits that FOI can bring and the core principles that need to guide the further development of the design and implementation of Ireland’s FOI regime.

Thank your for your attention.