Report to the Government
Table of Contents
Summary of Recommendations 3
1. Introduction 5
1.1 Terms of Reference 5
1.2 Membership 5
1.3 Approach 5
2. Meetings of the Government 7
2.1 Unique Nature of Cabinet Records 7
2.2 Specific issues in Section 19 7
2.3 Period of Protection of Cabinet Records 11
2.4 Factual Information 12
3. The Deliberative Process 14
4. Other Measures 16
4.1 Consultation 16
4.2 Reports 16
4.3 Fees 17
4.4 Coverage 17
4.5 Additional Measures 18
4.6 International Relations 19
4.7 Training & Networks 19
4.8 Record Keeping & National Archives 20
1. Deletion of the discretion under Section 19 (1) of the Act by replacing "may" with "shall"
2. Amend Section 19 (1) (c) ("solely") to ensure that it applies to records which were created with the purpose of being used at a Cabinet meeting even if they are incidentally applied to other purposes
3. Provide for exemption of records of an expert or working group (of officials) set up to assist Cabinet deliberations on any matter which has been submitted to Cabinet for consideration and which is mandated to report directly to Cabinet on the matter; provide that a certificate must be given by the Secretary General to the Government at the time of establishment of the group
4. Provide that communications between Ministers be exempt where:
- they relate to a matter already on the Cabinet agenda or on which a submission to Cabinet is imminent or they relate to a matter which has been delegated by Cabinet for resolution between Ministers
5. Extend the period of protection for Cabinet records to 10 years
6. Clarify definition of factual information in Section 19
7. Consideration of re-balancing public interest test in Section 20 to require that records be released where the public interest would be better served by disclosure than by refusal of a request
8. Initiate a system for more formal consultation between Departments on material to be released
9. Inclusion of relevant recommendations, from CSUN review of operation of Act, in legislative amendments
10. Introduction of an up front fee for FOI requests with appropriate waivers and consideration of a fee for reviews and the basis of which fees are calculated
11. Early progress in significant programme of extensions of operation of the Act
12. Inclusion of additional measures identified by the Department of Finance in the legislative amendments to be brought forward
13. Consideration of alternative/additional measures to be brought forward which would provide an enhanced degree of protection (including the possibility of exemption) to communications in the conduct of international relations
14. Continued development of FOI networks
15. Completion of review of operation of National Archives Act vis-à-vis the Freedom of Information Act
1.1 Terms of Reference
The High Level Review Group was established by the Government on 25 June, 2002 to consider in the light of experience gained in the four years since the Freedom of Information Act 1997 came into effect:
· issues in relation to how exemptions provided for in the Act have been applied;
· the extent to which the public interest has 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 that process.
The Group was chaired by the Secretary General to the Government and comprised the Secretaries General of the Departments of Enterprise, Trade & Employment, Foreign Affairs, Transport and the Secretary General (PSMD) of the Department of Finance.
The Group focused its discussions on key aspects of the operation of the Act, particularly Section 19 (Meetings of the Government) and Section 20 (Deliberations of public bodies). It was supported in this task by the Central Policy Unit of the Department of Finance and members also drew upon their own experiences and experiences of others of which they were aware, including that of their respective Ministers.
The Group noted in its discussions the recent report, 'Outline Action Plan on FOI Compliance' by a Sub-Group of the FOI Inter-Departmental Working Group, prepared in response to the July, 2001 report from the Information Commissioner on compliance by public bodies with the provisions of the FOI Act. The Group also noted the review completed by the Civil Service Users Network (CSUN) in 1999 on the operation of the Act.
The Group is satisfied that the introduction of FOI legislation in this country has played an important role in promoting openness, transparency and accountability in Government. Internationally, freedom of information is recognised as an important contributor to good public administrative practice.
2. Records of the Government (Cabinet)
2.1 Unique Nature of Cabinet Records
Records relating to meetings of the Government (Cabinet) are uniquely provided for in the Freedom of Information Act, 1997, in recognition of the importance of preserving a space within which Cabinet can function effectively. Strong protection for such material is a feature of FOI in jurisdictions which operate a system of Government centered upon Cabinet. In the Irish system Cabinet records are afforded what virtually amounts to a class exemption for a five-year period.
Section 19 is one of the very few class exemptions in the Act, i.e. one where the nature of the document determines whether access can be withheld, rather than the exemption depending upon establishing that release would pose a particular threat to the public interest. Its primary purpose is to provide protection for matters prepared for Cabinet, associated briefing material and records relating to Cabinet meetings.
The need to ensure a confidential context for discussion at the Cabinet is recognised with specific constitutional protections. The protection of records of Cabinet, so that Ministers can express views freely in documents submitted to Cabinet in the knowledge that they will be treated as confidential for a reasonable period of time, is also fundamental to the exercise of collective responsibility and to the effective functioning of Government.
Ultimately, it is in the public interest that the institution of Cabinet works well and effectively.
2.2 Specific issues in Section 19
The Discretionary "may"
Section 19 provides that the Head of a Department may refuse a request for access to Cabinet records. The use of the discretionary may has resulted in uncertainty on the part of key decision makers as to the circumstances in which access to Cabinet records might be granted and has prompted calls by the Information Commissioner, in his report on compliance by public bodies with the provisions of the FOI Act, for greater flexibility in its application to allow access to Cabinet records in certain circumstances.
The Group understands that, in framing the legislation, there was a desire to distinguish between discussions at Cabinet (the confidentiality of which is constitutionally protected) and Cabinet records, which are afforded a relatively lesser degree of protection. The exemption in Section 19(1), as the Information Commissioner has observed, has been applied largely in a mandatory fashion.
The Group is satisfied that the overarching policy of Section 19 is that Cabinet records should be exempt from access for a reasonable period of time and that this is necessary if the Cabinet process and the exercise of collective responsibility are not to be constrained to the detriment of effective decision making based upon the free and frank expression of views.
In these circumstances the Group believes that the legislation should give clear expression to the policy intent by removing the option of a discretion being exercised. The implications of this for the consultative arrangements provided for under Section 19 (4) will need to be examined when a revised provision is being drafted. In making the recommendation the Group is conscious of the fact that there is nothing to prevent Cabinet itself from granting access in exceptional circumstances to Cabinet records – the main consequence of the recommendation is that a decision about any such release would be made solely by and on the initiative of Cabinet.
Records prepared for Cabinet
Difficulties have arisen from time to time in defining what constitutes a genuine record prepared for the purpose of the transaction of business by Cabinet. Section 19(1)(c) refers to a record containing information for use "…solely for the purpose of the transaction of any business of the Government at a meeting of the Government". The use of the word "solely" has tended to be overly restrictive and to cause unnecessary doubts about the eligibility for exemption of genuine Cabinet records, which incidentally might be applied to other purposes.
Communications between Ministers
Ministers communicate with each other about many issues, but there are particular occasions when inter-Ministerial communication is an extension of, and direct support for, the exercise of collective responsibility. This arises from the different roles of Ministers, on the one hand as administrators of Departments assigned to them and on the other as members of the Cabinet. The distinct role of a Minister as a member of Cabinet is explicitly recognized in the Ministers and Secretaries (Amendment) Act 1939, which has provision for the appointment of Ministers without portfolio.
As members of Cabinet, Ministers, with varying degrees of frequency, need to communicate with each other about matters that have a direct bearing upon the exercise of collective responsibility. This may involve, for example, communicating about matters that have been submitted, or are intended for submission, to Cabinet, not purely to express a particular Departmental position on a policy proposal, but rather with the intent of achieving a consensus with colleagues or otherwise facilitating the conduct by Cabinet of its business in relation to such a matter. [This is separate from the normal practice of Ministerial observations being incorporated in Memoranda going to Cabinet and which should continue to be the norm in the presentation of issues for decision by Cabinet].
The need for space for the exchange of views between Ministers is recognised, for example, in the Canadian FOI model. In Canada, communications between Ministers on matters relating to the making of Government decisions or the formulation of Government policy are excluded from the scope of their Act. In the UK, there is recognition of the role of inter-Ministerial communications in the exercise of collective responsibility.
The Group believe that this type of communication between Ministers in their capacity as members of Cabinet is an important part of the Cabinet decision making process and that it is in the public interest that it be given special recognition within the exemptions provided under Section 19 of the FOI Act.
Working Groups directly supporting Cabinet
On occasion, the Government considers it necessary to set up specialist working groups of officials to develop further or resolve some particularly complex issue on the Cabinet agenda or under consideration at a Cabinet meeting. This type of working group operates in direct support of the Cabinet process and is intended primarily to assist Cabinet finalise its deliberations.
It is recommended that Section 19 be amended appropriately to provide for the exemption of records created by a working group set up by Cabinet to further an item under consideration at a Cabinet meeting. It is also recommended, in order to ensure that the provision is used only sparingly and in the appropriate context, that consideration be given to a certificate from the Secretary General to the Cabinet being required before any such Working Group qualifies for an exemption.
The Group is conscious of the need to ensure that these additional grounds for exemption are tightly drafted so that their use is limited to records which genuinely fall within the categorisation of "Cabinet records" envisaged by the Group. In making their recommendations, the Group have paid particular attention to this aspect.
2.3 Period of Protection of Cabinet Records
When the legislation was drafted the period of protection provided for Cabinet records was selected to reflect the natural life-span of a Dáil. However, bearing in mind the purpose for which protection of Cabinet records is given in the first instance – to encourage the free expression of views by members of Cabinet in memoranda submitted to Cabinet – it is becoming clear that a five year period of protection is not sufficient for that purpose.
Disclosure of arguments and views contained in Cabinet papers, other than on an historical basis, is likely to lead to Ministers opting to convey those views during discussion at Cabinet (where they would enjoy absolute protection) in preference to incorporating them in memoranda. This would seriously affect the functioning of Cabinet as the process of including Ministerial views in Government memoranda allows for the reconciliation of differences and the shaping of consensus prior to an issue coming to Cabinet. The importance of this type of pre-submission engagement is recognized in par 3.15 of the Cabinet Handbook which places a special responsibility on Ministers and Secretaries General to establish the maximum degree of agreement prior to submission of a memorandum to Cabinet.
As experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short period of time.
While the different structure of FOI regimes in other jurisdictions makes comparisons difficult, the relevant period is generally longer than five years where there is a specific reliance upon timebound protection. Comparable periods in jurisdictions such as Canada and Australia range from 10-20 years. In some cases internationally this period is considerably longer and as high as 30 years.
International experience tends to support the view that appropriate protection for the exercise of collective responsibility requires a protective time frame beyond the lifetime of a single Government. While any time limit could be seen as somewhat arbitrary, the Group considers that the existing five year period provided for in section 19(3)(b) is too short and recommends that this period be extended from five to ten years.
2.4 Factual Information
The Group noted that during the period of the operation of the Act, some ambiguity has arisen in relation to what constitutes factual information as defined in Section 19 (3) (a). In one instance, a view was put forward that the observations of Ministers on the policy proposals in a memorandum for Government were factual, i.e. as a matter of fact they reflected the views of the Ministers concerned.
Clearly, the intention is that there should be access to factual information which underlies a particular proposal but that this would generally be of a statistical or the like nature.
The Group believes that it would be helpful to clarify the definition of factual information as information of a statistical or econometric/empirical nature that has been used to provide an informed background to a Government decision. This is similar to the approach adopted in the UK.
3. The Deliberative Process
Section 20 of the Act is intended to protect the deliberative process to avoid inhibiting the ongoing activity of formulating, considering, weighing up, advising and deciding on issues. At the same time, the Section seeks to uphold accountability by facilitating access to reasons for decisions to promote transparency in decision-making. It does so by requiring consideration of the public interest and by requiring clear justification for refusing access to records subsequent to a significant decision being made.
The Group has become aware of concerns that the prospect of relatively early release of such records may inhibit officials from freely expressing views on particular issues, particularly views which depart radically from the "conventional line". If so, a consequence would be to deprive a Minister of the full range of views which may have been more freely articulated prior to the coming into operation of the Act. It would also diminish the deliberative process which should be encouraging of fresh thinking and the free and frank expression of opinions. It may also lead to Departmental records being less rounded in their treatment of issues.
The Group considered whether there should be a period of time, as is the case for Cabinet records, during which the opinions and views of officials should be exempt from release. They are conscious of the particular circumstances of elected representatives, who must answer to the electorate at regular intervals. Officials are not accountable in the same manner and, on balance, the Group feel that the present arrangements which allow for access to records once the deliberative process is finished, should continue.
However, the Group believe that it would be beneficial if the public interest test required in Section 20 were re-balanced to ensure that records are not released until a deliberative process is definitively completed. Rather than requiring that records be released unless release could be shown to be contrary to the public interest, the requirement should be that the question of release should be subject to the test that "on balance records would be released where the public interest would be better served by disclosure than by refusal of a request." This will bring the public interest test into line with that used elsewhere in the Act.
4. Other Measures
The Group notes that under current legislative arrangements, there is no requirement for Government Departments to consult or even inform other Departments if they propose to release material which originated in or relates to the activities of that Department. While consultation/informing takes place in a good many instances, the Group believe that this should be put on a more formal footing. While they do not see the need for legislative underpinning of the requirement, they believe that there is a need for an administrative initiative to address the matter to ensure more timely consultation with relevant Departments.
The Group is aware of other recommendations for amendment of the Freedom of Information Act. Some arise from the work of the Civil Service Users Network (CSUN), who reported in 1999. Many of those are technical aimed at improving the operation of the legislation for public bodies and FOI requesters alike and at curbing misuse of the legislation. They include, for example, proposals to express time limits in working days, the extension of the period available for third party consultations and the introduction of a modest upfront fee to deter vexatious requests.
The report, 'Outline Action Plan on FOI Compliance' which was prepared in response to the July, 2001 report by the Information Commissioner on compliance by public bodies with the provisions of the FOI Act. It was adopted by the relevant FOI networks at end-September. The Outline Action Plan sets out a range of measures to address compliance issues.
The Group agrees with the CSUN recommendation for the introduction of an upfront fee. There are strong operational arguments for such a measure, not least because the present arrangements have not worked in practice with fees being charged only in a very small proportion of cases. International practice favours the use of upfront fees and in some cases very substantial fees for reviews of initial decisions.
The Group considers that an upfront fee is ultimately the only workable arrangement in which fees can be levied. The Group acknowledges that the introduction of a fee may not be viewed as an attractive measure, however, it would go to recognising that there is an administrative cost associated with FOI which in some cases can be significant and which is currently borne by taxpayers generally. A fee regime involving an upfront cost may also minimise so-called "trawling" requests which have little or no public benefit. In the context of wider Exchequer corrective measures, the rationalisation of the fee regime will also contribute to addressing the
cost of the administrative burden of FOI. The appropriate scale of upfront fees and fees for reviews and the basis on which fees are calculated should be considered in this context. The Group, therefore, recommends that the legislative proposals should contain a measure to introduce an up front fee for FOI requests with appropriate waivers. The Group noted, for example, that a €20 fee accompanies planning appeals.
The benefits of FOI to the public stem from the range of bodies included within the ambit of the Act. In 2001, the Government decided that FOI should be extended by end-2005 to all remaining bodies appropriate for inclusion. In the context of the development of the Act, it will be important that early progress is made in a significant programme of extensions.
It is also recommended that partial exclusions of public bodies' functions from FOI should only be permitted in the most exceptional cases.
4.5 Additional Measures
Additionally, the Central Policy Unit of the Department of Finance is considering a number of other measures which would improve the operation of the legislation. These are based on the experience to date, particularly having regard to the development of case law and advices received from the Attorney General. They are likely to include proposals to provide for a final right of appeal to the Supreme Court, a broadening of the circumstances in which the existence or otherwise of records does not have to be disclosed by the decision-maker and clarification that the photocopying of a record does not result in the creation of a record for the purposes of the Act.
The Group believes that the time is now opportune to bring forward a package of legislative proposals, drawing upon these sources and its own recommendations, to update the legislation and to make it more relevant to present day needs based upon experience of the operation of FOI to date.
4.6 International Relations
The protection of sensitive information relating to international relations is a common feature of FOI legislation in other jurisdictions. Within the conduct of international relations there clearly is a need for confidentiality. The process must rely on integrity and trust as regards the exchange of sensitive information between States and International Organisations. The Group accepts the difficulties inherent in balancing this need for confidentiality and trust with the aims of the Freedom of Information Act. However, the Group is of the view that the balance of public interest is best served by a high degree of assurance that sensitive information transmitted in the conduct of international relations is protected.
The attention of the Group has been drawn to difficulties which have arisen over the implementation of Section 24 of the Act insofar as the conduct of international relations is concerned. In drafting the Freedom of Information Act, there was an understanding that international relations would be provided with a high degree of protection. The interpretation of the Act may, however, have resulted in uncertainty over what can "reasonably be expected to affect adversely" the international relations of the State.
The Group recommends that, in order to avoid a situation where Ireland's ability to function effectively at international level may be restricted, consideration should be given to effective options (including the possibility of exemptions) that would provide enhanced protection from the release of records relating to the conduct of international relations.
4.7 Training & Networks
Training has been recognised as a key factor in implementing FOI in an effective and consistent way. The Group notes that the CPU and the Department of Finance's Centre for Management and Organisation Development (CMOD) have a range of measures in train to enhance the capacities of public bodies in implementing FOI. These measures include increases in the overall supply of FOI training. New strands of training are being developed such as refresher training and case study based training. New training formats are being developed including an e-learning initiative. Training capacity has been expanded in the wider public service through the involvement of the Institute of Public Administration among others. The CPU continues to provide Advanced Level training to all public bodies.
The central policy function has continued to develop. With the process of progressive extension of the Act, by end-2002 there will be some 360 bodies within the ambit of FOI, with this increasing further in the period to 2005. The CPU undertakes this general policy role for the on-going development of FOI. Aside from fulfilling the administrative elements of the Minister for Finance's statutory functions, the CPU provides advice and other supports to Departments and other public bodies to assist them to meet their obligations under the Act. International experience supports the critical role of such central support. In Australia, particular criticism has been levelled in relation to the dilution of this central support which observers have linked to increasing inconsistencies in FOI decision making
A further successful feature of FOI implementation, which the Group would like to see continuing to develop are the various FOI networks. From the outset, the networks have provided an important framework in which common approaches can be developed and experience shared across public bodies.
4.8 Record Keeping & National Archives
Records management is an important supporting feature of FOI which is dependent on the efficient identification and retrieval of records. The National Archives Advisory Council in their 2000 report, recently published, have drawn attention to this link.
It is generally recognised that FOI has contributed in a positive way to records management. There is strong evidence that records are now being created in situations where in the past either no records or incomplete records were maintained. Other areas such as interview and recruitment processes have been transformed in a very positive way by the need for transparency.
There is a need for clearer alignment between National Archives legislation which regulates the release of records on a historical basis and Freedom of Information legislation. The Group noted in this respect, that the Government in February, 2001 asked that the Department of Arts, Heritage, Gaeltacht and the Islands, as it was then, should review the National Archives Act, 1986 to ensure that there are no incompatibilities with the Freedom of Information Act, 1997. The Group recommend that this review be expedited.