An address by Kevin Murphy, Information Commissioner given at a conference entitled "Delivering Freedom of Information in Scotland" hosted by the law School at the University of Glasgow on 19 November 1999.

Introduction
I was delighted, Chairman, to accept the invitation to participate in this Conference and to tell you about our experiences of Freedom of Information in Ireland. David Goldberg asked me to focus in particular on the practical question of how one creates a culture of FOI in the civil service. I am happy to do this because I believe that if Freedom of Information is to work then it is not sufficient to simply enact the relevant legislation, no matter how significant the access rights granted by that legislation might be. To succeed, it is necessary to change the existing culture of secrecy. Most of my talk this afternoon will concentrate on what that change involves, its implications and the challenges which it poses. I will also tell you a little about the practical steps which we took in Ireland to implement FOI and to change the culture. I do not put forward these steps as a blueprint for Scotland, but rather as evidence of the huge effort which is necessary if implementation is to succeed.

My comments are, of course, based on our experience in Ireland. To enable you to understand the context I would like to begin by telling you very briefly what the position in Ireland was prior to the enactment of the FOI Act; how the Act fits in generally with our recent reform of the public service; what the purpose of the Act is; and a brief description of its scope and how it works.

Ending Official Secrecy
The significance of the Act for the Irish public service was enormous. Prior to its enactment the service was dominated by a culture of secrecy with attitudes formed by an Official Secrets Act which provided that all official information was secret unless its publication was specifically authorised. This meant that complete control lay with the public body. It decided what information should be made available, when, to whom and under what conditions. In practice, this also meant that there was little incentive for the public service to open itself up to scrutiny. Secrecy was a core value. No doubt there were occasions on which secrecy was justified, but it is fair to say that there were others when it was not and when its only purpose was to serve the interests of the public body or an individual public servant, rather than the public interest.

Some of the impetus for a change in this situation came from outside the system. In particular, I am thinking of the work of such groups as 'Let in the Light'. Their calls for the introduction of a FOI Act were given an extra edge by practices which were revealed as a result of a public inquiry into the beef industry and which raised questions about the degree of accountability in the public service.

At around the same time major reforms of the civil service were underway under the umbrella of what is called the Strategic Management Initiative (SMI). SMI was launched in 1994 with the aim of contributing to national development; increasing efficiency in the use of resources and delivering excellent service to the public. Under the SMI, Departments and Offices have been required to produce Strategy Statements and to engage in business planning.

The vision for the civil service put forward by the SMI was one of an organisation which, among other things, was open and flexible and operated to the highest standards of integrity, equity, impartiality and accountability. Achievement of this vision, it was hoped, would bring major benefits, resulting from the enhanced legitimacy of a civil service whose principles, rules and workings were open to scrutiny and understood by its users, by Government and by its own members.

Perhaps the key reform which emerged out of the SMI was a change in the allocation of authority, accountability and responsibility in the administrative system. Under the previous system, each department was assigned to and administered by a Minister as its head. The Minister was a "corporation sole" - a legal concept intended to ensure continuity of title and to make it easier to sue and be sued. However, over the years this concept tended to be seen as excluding any other person or agency from taking on the powers, duties and functions vested in the Minister. The purpose of the revised structures, developed in the course of the SMI, was to allocate authority for service delivery, of whatever kind, to the person or people who provide the service in question.

This change in the allocation of authority has been accompanied by clarification of where accountability lies. Thus for the first time it is acknowledged explicitly that a Secretary General is accountable not alone to the Minister, to the Government and to parliamentary committees but also to the public through strategy statements and regular reports on progress and through statements of customer service standards. Individual civil servants are accountable, not alone to the Secretary General but, in certain cases, to parliamentary committees.

It is clear that SMI envisaged greater access to information as a positive development in itself and one which, in particular, supported the aim of quality service. However, it is important to realise that FOI also has a role in underpinning the central reform brought about by SMI viz. the re-allocation of responsibility and accountability. Accountability is all about bodies or individuals rendering an account to some other body or person of their stewardship for the exercise of the duties and responsibilities which have been entrusted to them. Accountability and responsibility must be seen as different sides of the same coin. Of course there have always been accountability mechanisms such as Parliament, which exercises control over the Executive and the Courts which exercise judicial control, largely through judicial review of decisions taken by public bodies. In a general way, the Comptroller and Auditor General and the Ombudsman, may be seen as independent offices in support of Parliamentary control of the Executive.

Accountability is essentially about explaining what was done and why. When a system is heavily reliant on secrecy then public servants can become very bad at explaining their actions. So there is the danger that they will sit back and hope that the awkward question is not asked. On the other hand, the more secret the system the harder it is to ask the awkward question. Regardless of the formal powers of Parliament or Parliamentary Committees, this can reduce the effectiveness of a formal accountability mechanism.

FOI can change all that. Official records are open to all. This increases the possibility that awkward questions may be asked by members of the public or the media which, in turn, will feed into the formal mechanism of reporting to Parliament and increase its effectiveness.

It also can change the defensive, 'secrecy' mindset to one in which officials accept that public scrutiny of their actions is normal. Indeed, one would have to ask how a public body which felt unable to withstand scrutiny of its actions by private citizens brought about by FOI would fare in front of a Parliamentary Committee which was armed with the relevant facts?

The FOI Act in Ireland

Scope
The Act was passed in April 1997 and came into effect on 21 April 1998 for Government Departments, the Defence Forces and a wide selection of agencies and offices associated with Government Departments. The Act also applies to the general administration of the courts and to the Offices of the Attorney General and the Director of Public Prosecutions. The Houses of Parliament are covered but the private papers of M.P.s and official documents which are required by rules or standing orders to be treated as confidential are excluded. The Act came into effect for local authorities and the health service on 21 October, 1998. Thereafter, the Act may be extended by regulation to the Police and to a whole range of public bodies including all the public utilities as well as private bodies to the extent that they perform public statutory functions. Some of these other public bodies have already been brought in and the inclusion of others is planned next year.

Purpose
The broad purpose of the Freedom of Information Act is to confer rights on members of the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy.

The principles underlying FOI are that:

Ÿ citizens should have the right to examine and review the deliberations and processes of public bodies;
Ÿ every individual should have the right:


to know what information is held in government records about him or her personally subject to certain exemptions to protect key interests

to inspect files held about or relating to him or her

to have inaccurate material on file corrected

Ÿ groups and individuals who are affected by decisions of public bodies should have the right to know the criteria used in making those decisions;
Ÿ decisions by public bodies should be more open to public scrutiny, thus providing greater appreciation of the issues involved in policy decisions and stronger public ownership and acceptance of decisions made.


Exemptions
Any official information held by public bodies can be sought under the Act. However, in order to allow Government business to be properly conducted and to protect personal privacy, it is necessary to exempt from release certain types of information in some circumstances. Among the key exemptions are records relating to:

Ÿ meetings of the government,
Ÿ deliberations of public bodies,
Ÿ investigative functions and negotiations,
Ÿ law enforcement and security,
Ÿ confidential and commercially sensitive information,
Ÿ personal information (other than information relating to the person making the request),
Ÿ economic interests of the State.

Most of these exemptions are not absolute. In most cases information may be withheld only if it can be demonstrated that a specific harm or injury would arise from disclosure. Many are subject to an overall test of whether disclosure would be in the public interest.

In the event of a request being refused, requesters can appeal to the public body to re-examine their case. The public body must have the request reviewed by someone more senior than the person who made the original decision. If the requester is still unhappy with the decision, he or she has the right to appeal the decision to my office.

Changing the Culture of Secrecy

FOI has been spoken of many times as heralding a change in the culture of secrecy. It is worth reflecting on what this means. I take culture in this sense to be the ideas, beliefs and values which are shared by public servants and which affect their approach to their work. The culture of secrecy is often reflected in the attitude of individual public servants, but changing the attitude of individual public servants will not of itself change the culture of the public service. This is because that culture informs many of the practices and procedures which public servants have accepted in the past as the norm.

Just how difficult it can be to change the culture of secrecy was brought home to me when I read the 1998/99 report of the Information Commissioner of Canada who, 16 years after Canada introduced its Access to Information Act, had this to say :

"The great promise of the Access to Information Act was that the long-cherished culture in the public service-of "doing" governance in secrecy-would be changed. The promise has not been realised. The paternalistic belief by many public officials that they know best, what and when to disclose to citizens, remains strong. At the very highest levels of the bureaucracy, the official line on ethics for public servants stresses their "servant" role (i.e. being unseen, unheard, obedient, unaccountable) rather than their "public" role (being accountable, professional, obedient to the law and the public interest). The notion of ministerial accountability is, too often, taken to mean that the public should not know what public servant do or advise their ministers to do. ......The Access to Information Act has been successful in forcing public servants to disclose more information - but it has not changed the closed culture".

So forcing more information out of the system will not necessarily change the culture. Changing the culture involves changing the way public servants do their work.

Let me give you a few examples :

Recruitment

Until recently interviews for posts in the Irish public service were conducted on the basis that the deliberations of the interview boards were confidential. This had a number of advantages. One was that the privacy of individual candidates was respected. The second was that the board felt free to discuss openly the merits (and more importantly the demerits) of individual candidates. However, this system was not without its problems. The chief of these was how to assure candidates that they were, indeed, being treated fairly and that there was no bias, conscious or otherwise, in the system. Furthermore, the confidentiality of proceedings reduced the need to record the reasons why individual candidates were assessed in a particular way. In turn, this reduced the pressure on boards to adopt methodologies which were as objective in their approach as possible.

In saying this I am not accusing boards of lacking skill or care. But the lack of transparency and accountability inherent in a secret process always carries the risk that decisions will be made which would not stand up to outside scrutiny.

Of course there were, and are, safeguards in the recruitment process, not the least of which is the independence of the Civil Service and Local Appointments Commissioners. However, the independence of the procedure does not mean that it is proof against bias or error. The fact is that, nowadays, in assessing any service, people are not content to rely on assurances about independence and quality. They want to judge for themselves, based on their own experience of the service. It follows that a recruitment service which relied on a totally confidential procedure would run the risk of falling into disrepute, if for no other reason than the fact that it would leave itself open to the accusation that it was unable or unwilling to defend its decisions.

The Civil Service and Local Appointments Commissioners have sought to improve the feedback which they give to candidates and the FOI Act now ensures that a candidate can see the remarks of the interview board. Such developments are a recognition that the public recruitment process is not just about selecting the right person for the job. It is also about doing so through a process which commands the trust and respect of the public, gained through operating with the greatest possible degree of transparency.

Personnel management

My second example has to do with personnel management. Over the years personnel practices in the Irish public service have become more open. This is in line with modern managerial practice and the commitment which now exists to partnership in the workplace. It reflects the view that people will not give of their best if they are not trusted. But what greater indication could there be of lack of trust than keeping a file about an individual but refusing to let him or her know what is on it ?

In a number of cases, officials who have had difficulties in their careers have secured access to material on their personnel files as a result of FOI requests - sometimes as a result of a review by me. In such cases one has to question whether access achieved in the teeth of opposition from the public body does anything to solve the underlying difficulty, which is not a FOI problem but a personnel management problem.

The fact that an officer has to secure access in this way can be seen as a continuation of a culture of secrecy in which it is assumed that being open with the person concerned will cause more problems than it will solve. If the matter is approached in that way then FOI will be seen by the public body simply as an inconvenience. I have urged public bodies to look again at cases of this kind and decide whether a pro-active approach to discussing matters with the officer concerned, which would obviate the need for a FOI request, might be the better option.

The deliberative process

The third example I wish to mention is a generic one. It has to do with policy development, and the question of access to documents during the deliberative process. Until the advent of the Act, deliberations could be carried on in the knowledge that the relevant papers would not be disclosed, and, indeed, disclosure would have been seen as something which was always detrimental to the process.

The advent of FOI has changed all this. FOI assumes that citizens are capable of interpreting information and reaching sensible decisions. It does protect records which are related to the deliberative process but only where it is in the public interest not to release them. Very few requesters seek access to records for their own sake. They are looking for information, and worthwhile information at that. If information is released only after a decision has been reached, at a time when it is perceived that the requester can no longer make any effective use of it then one must wonder whether the information is worthwhile and whether the purpose of the Act is being served.

I accept that the piecemeal release of information during the course of a deliberative process through a series of FOI requests could bring its own problems and, in some cases, could be so disruptive of the process as to be contrary to the public interest. But is this a consequence of FOI or a result of the procedures adopted in the first place? A more open consultation process, in which the views of interested parties would be on the public record, would help. So would a commitment to publishing material at interim stages of the deliberative process. These are by no means the full answers but they would at least indicate that the idea of informing the public is being taken seriously.

I give these few examples to show that in a variety of settings - whether in public recruitment, personnel management or policy development, greater openness requires changes in work practices. In Ireland, some of these changes had commenced pre FOI and partly in anticipation of its enactment, but I mention them as illustrations of the kind of changes which FOI can and must bring about.


A Question of Attitude

I mentioned earlier that the culture of secrecy was reflected in the attitudes of civil servants. As I have said, I would judge the change in culture by reference to the adoption of work practices which enhance transparency and accountability. But I do not discount the importance of attitude. As Information Commissioner, I have been able to gauge the attitudes of individual civil servants from the reviews which come before me.

For the most part I have discerned an attitude of respect for the rights of requesters and a desire to apply the Act conscientiously. On occasion, though, I detect a concern on the part of public bodies that the requester is going to cause them trouble. Often this surfaces in relation to requests by the media. At the root of this concern is the fear that the public body or individuals within it will be presented in a poor light or that the information may be distorted or misunderstood. I will make no comment on misrepresentation or distortion - I am certain that members of the media are well capable of defending themselves against any such charges.

But I do have two comments on this attitude - which, as I say, does surface on occasion. The first is that it shows scant regard for the ability of the general public to interpret information and to reach sensible conclusions. It reflects the paternalism which the Information Commissioner of Canada identified as bound up with the culture of secrecy.

The second is that it comes dangerously close to treating the media as a less favoured class of requester. Without wishing to suggest that any category of requester is more important than any other, I believe that effective use of the Act by members of the media is important. The Act has the capacity to encourage much greater transparency in the conduct of the business of public bodies. This benefit can, however, be realised only in a limited way as a result of individual requests by private citizens. In a modern democracy one vital means of bringing information about the business of government into the public domain is through the media. It is important that the media's capacity to do this should not depend solely on channels where the choice of information and the timing of its release is at the discretion of the party providing it. The FOI Act, by giving a statutory right of access to information, shifts the initiative to the requester. Hence the importance of the media availing of this right on behalf of
the community.


Implementing FOI in Ireland

I will approach this part of my talk under three headings - Guidance and Support for Requesters, Guidance and Support for Public Bodies, Creating Public Awareness of FOI. Rather than go through the detailed steps involved in implementation I would like to emphasise some of the aspects of the implementation process which I think can help to bring about a change in the culture of secrecy.

Guidance and Support for Requesters

The Act required that a public body publish, before the date of commencement, a general description of its structure, functions and the services it provides to the public as well as its rules and guidelines used in implementing its schemes and programmes. In addition, each public body was required to describe the classes of records it held and the arrangements for enabling the public access to such records. The Act also required the public body to set out rights of review and appeal against its decisions generally. Each public body also had to publish the rules, procedures, guidelines, interpretations and an index of precedents used by it for the purposes of decisions and recommendations (often referred to as the section 15/16 manuals). Where such material was not published, or, where published, it was incomplete or inaccurate, the public body concerned is required to ensure that a person is not prejudiced due to such failure or error on the part of that body.

This is an important part of the scheme of Freedom of Information in Ireland, although its significance is sometimes overlooked. Although primarily for the benefit of requesters, it has benefits for public bodies as well. Take the case of the Revenue Commissioners as an example. In a sense, the requirements to publish its rules, procedures, interpretations, guidelines and an index to precedents have simply helped to push the Revenue in the direction of the greater openness which it has sought to achieve in recent years. The Taxpayers' Charter which was published some years ago declared, among other things, that every taxpayer had the right to expect that every reasonable effort would be made to give him or her access to full, accurate and timely information about Revenue law and his or her entitlements and obligations under it. It also declared that the Revenue Commissioners would administer the law consistently. While the Revenue has produced notes for the guidance of taxpayers on more recent Finance Acts, and occasional Statements of Practice, it had not attempted anything of the scale required by the FOI Act.

So has it been a success? I think that only time will tell. The task of delivering on the promise in the Taxpayers' Charter to administer the law consistently is an onerous one. The tax code is very large - with over 1100 pages of legislation covering direct taxes alone along with voluminous case law. The code is complex and subject to frequent amendment. The Office of the Revenue Commissioners is for the most part decentralised. All these factors make consistency of administration very difficult to achieve. The task has to be made easier by a comprehensive and coherent set of guidelines to the tax code for use by the Revenue's own staff, and I think that the Revenue itself would acknowledge this.

There are also obvious benefits for taxpayers and their advisers. The first is the removal of any suspicion that some taxpayers or their advisers have an advantage by being "in the know". The second is that the risk of arbitrary decision making is reduced; a taxpayer can see for himself whether he is being treated the same way as everyone else.

In a sense, even the publication of these section 15/16 manuals is a step towards changing the culture, towards an acceptance that public bodies have a responsibility to explain what they do. I should note at this point that, as Information Commissioner, I have a responsibility to foster and encourage the publication by public bodies of information in relation to their activities and function generally which is of relevance or interest to the general public.

I think that this provides an insight into the direction in which we want Freedom of Information to develop in Ireland. There can be a tendency to view the success of the Act in terms of the outcomes of formal FOI requests - in terms of the amount of information forced out of an apparently reluctant public service. In my view, this is a mistake. The real measure of success is the degree to which information, previously kept secret for no good reason, becomes released as a matter of course.

Guidance and Support for Public Bodies

With regard to support for public bodies, in May 1997, immediately after the passing of the Act the Cabinet approved an implementation framework and time table for the year ahead which set out specific tasks for each public body and for the FOI Central Policy Unit. This Unit is a key element in the process. It was set up within the Department of Finance with the broad function of guiding and supporting the preparations for FOI across the public service and providing an expert advisory service. It gives legal advice in consultation with the Attorney General's Office on interpretation of particular provisions, precedents abroad and relevant public interest factors. It proposes strategies for handling issues of common interest across departments (e.g. tendering, policy advice, confidential information) as well as assisting with training and records management.

One of the CPU's biggest challenges, prior to the commencement of the Act, was to organise effective training for thousands of civil servants. One important aspect of training is to spread awareness and commitment for the concept of FOI as widely as possible in organisations. If this does not happen then FOI may become the concern of only a small number of people in the organisation. If they become isolated, as they almost certainly will, then no culture change can happen. So a vital part of the process is getting the support of senior management for the concept of FOI and translating this, through widespread training, into changes on the ground.

After the commencement of the Act, a number of further initiatives were taken to support implementation, including initiatives designed to vigorously support FOI decision makers in public bodies and to broaden and deepen public understanding of FOI.

FOI networks have been formed so as to enable FOI officers and decision makers to consider and address practical issues arising in dealing with FOI requests. For example, the civil service network seeks to promote best practice and compliance by departments within the provisions and spirit of the Act.

Networks of this kind are important. They can ensure that within each Department there is a group of people well-versed in the intricacies of the Act and committed to applying it properly. I have noticed that there is a tendency for many public bodies to think that their problems are unique. Left unchecked, this tendency can lead to the attitude that FOI is great in theory but will not work in practice in their particular organisation. Networks which identify and promote best practice can combat this view and can contribute significantly to changing the culture of secrecy.

Broadening and Deepening the Understanding of FOI

In order to deepen understanding of FOI among key user groups, two advisory groups have been established. The first focuses on the business community, both as users of FOI and as clients of public bodies. It seeks to develop awareness and understanding of FOI in the business community and to identify and address issues likely to arise for business.

The second group involves consumer, media, academic and citizen information interests. It provides a forum through which dialogue with user interests can be furthered and the concerns of users addressed. The group also serves as a mechanism for furthering understanding of FOI.

At first sight it might not seem that deepening the public's awareness and understanding of the Act is of great relevance to changing the culture of secrecy in the public service. However, if people really understand their rights then they will be able to exercise them wisely. Judicious exercise of the rights conferred by the FOI Act can encourage public bodies to change their practices and to conduct their business and provide information in many cases without recourse to the FOI Act.

On the other hand, widespread misunderstanding of the Act could bring its own problems. At worst, it could undermine public confidence in the ability of public bodies to respect privacy. At the very least, the Act could fail to get significant public support. So, I believe that it is not enough to create a general awareness of the Act. It is important that key groups come to realise that the successful operation of an access to information regime has to do with balancing competing interests. One person's right of access, if misapplied, can become another's unwarranted invasion of privacy. I believe that the FOI Act in Ireland has struck the right balance and that, properly applied, it can and will achieve its purpose.

However, the Act is complex and often requires the exercise of fine judgements. Sometimes requesters may profess not to appreciate this and suggest that a refusal of information is motivated solely by obstructiveness or simple unwillingness to accord the requester his or her legal rights. In part this may be a reaction to the bygone era of official secrecy. As I have had occasion to point out earlier this year, the Act does not set out to grant requesters a complete and unfettered right of access to all records held by public bodies. It is clear from the long title of the Act that the right of access is subject to certain necessary exceptions which are contained in the Act, and which public bodies must apply.

In short, a proper understanding by the public of the Act and an acceptance that it works is important in keeping the pressure on public bodies to continue to work on changing the culture of secrecy.

Conclusion
The introduction of the Freedom of Information Act in Ireland posed an enormous challenge for public bodies. Apart from the logistics involved, there was the task, which is still ongoing, of changing from a culture of secrecy to one of openness. In my view, many public bodies have shown a genuine commitment to making this change.

Perhaps the biggest obstacle to changing the mindset in some public bodies is not fear of the consequences of releasing information which they consider sensitive but rather a perceived loss of control over information. After all, it is not uncommon for "sensitive" information to find its way into the public domain otherwise than as the result of a request under the Act e.g. through leaks. The real issue is that public bodies can no longer freely choose the timing and the context in which information will be released.

Changing from a culture of secrecy to one of openness is not easy. It will only happen when public bodies start from the premise that they have a responsibility to inform the public to the greatest extent possible. What is needed is a policy on releasing information as far as possible without the need for formal FOI requests - a proactive policy which will result in meaningful information being released in a properly contextualised way. Where public bodies adopt this approach, freedom of information can become less of a burden and more a way of enhancing the legitimacy of the organisation and improving the quality of its services.


Kevin Murphy,
Information Commissioner,
19/11/1999.