The Freedom of Information Act proposals fly in the face of any culture ofopenness, writes Eithne Fitzgerald
At its heart, freedom of information is about ensuring accountability to the public for what is done in our name and with our money. Where decisions are made with the public looking metaphorically over the shoulder, there is a stronger incentive to ensure that those decisions are made in a way that can withstand public scrutiny. Giving the public the right to know is a strong safeguard to ensure fair administration and better government.
The political backdrop to the introduction of the Freedom of Information Act was the clamour for greater openness and accountability following a series of scandals in the early 1990s. Financial favours to those inside a "golden circle" were exposed in Greencore, in Telecom Éireann and in the Goodman empire. Freedom of information was intended to end the culture of secrecy and to promote a culture of openness.
The proposals to water down the Act now being rushed through the Oireachtas were developed by insiders with the specific aim of keeping the public out. Measures to promote greater openness were not on the agenda in the one-sided review. The public was not consulted.
But it would be unfair to simply blame the Sir Humphreys, the top civil servants who reviewed the Act. The Government's proposals to water down the Freedom of Information Act go well beyond what this group recommended.
Restrictions on access to policy information, to EU-related material, to briefing material for parliamentary questions and on the costing of political proposals, are far in excess of what the civil servants recommended.
At the heart of the Amendment Bill is a Government uneasy with the principle of public scrutiny. The new restrictions are not about protecting security material or genuinely sensitive information.
These are already carefully protected in the current Act, which is based on international best practice. These changes instead are about protection from political embarrassment. (Interestingly, one of the Australian FOI acts specifically states that political embarrassment is not to be a valid reason for refusal to release information.)
These changes add up to a major diminution in political and administrative accountability.
The current Act sets out its aim "to enable members of the public to obtain access to information to the greatest extent possible consistent with the public interest and the right to privacy". That principle of maximum openness is fundamentally undermined by the amendments now proposed.
Sensitive Cabinet papers on security or Northern Ireland are already protected from disclosure. The routine memoranda for government that precede day-to-day government decisions can already be disclosed in litigation since the 1992 Ambiorix judgment. I think it is high time, five years on, that we saw the Cabinet papers on the choice of the underground option for Luas, which flew in the face of the expert report commissioned by government.
The most widely publicised change proposed is to move the time limit for release of Cabinet papers from five to 10 years. While I disagree with the change, I do acknowledge there are valid arguments to be made on both sides of this issue. But this seemingly simple change is being used as a stalking horse to push through a far more radical dilution of the public's right to know.
The definitions of what constitutes cabinet papers, and of what is a government meeting, are to be dramatically widened. This will allow a far greater range of material to be buried for 10 years under cover of the exemption for cabinet papers.
When I drew up the current Act, I was conscious of how in Australia its cabinet exemption had been used to hide politically embarrassing material from public view, by simply passing the relevant papers before the cabinet.
That is why in our Act the cabinet papers provision is very tightly drawn, and only covers papers created solely for a government meeting. That tight formulation is being abandoned.
Papers proposed to be submitted to government (which might never actually reach the cabinet table), papers created "primarily" for government, correspondence between ministers and correspondence between civil servants can all come under the sweep of the new cabinet exemption and be placed off limits for 10 years. For a government with something to hide, these changes are a godsend.
At present, policy papers are open to scrutiny after the decision has been finalised, and can be seen at the draft policy stage if that is in the public interest.
In a dramatic change, the right to appeal a refusal to see policy papers is to be completely set aside where the policy process is certified as "ongoing".
Environmental groups will recall how similar provisions were used to deny access to almost anything under the EU Access to Information on the Environment Regulations. Amazingly, no policy ever appeared to be decided and every document was considered a draft and kept off limits. That is why I put in a strong public-interest test in this section, and why the right to appeal is so important.
I have myself been refused access to policy papers on unemployment on the grounds that policy was ongoing. However, as the Information Commissioner argued in granting my appeal, issues like unemployment are always on the agenda. It is too easy to assert, in the absence of a right to appeal, that a policy issue is still on the table.
I think this may be the single most damaging change proposed by the Government. Denying a right to appeal is a nuclear option, and up to now it could only be deployed in respect of extremely sensitive security information, ringed around with tight safeguards on review. No such safeguards are being proposed in relation to draft policy papers.
At present, papers on EU matters can be withheld where release would be harmful, and ongoing negotiations are also protected. Now it is proposed to place papers relating to negotiations with the EU out of bounds absolutely, irrespective of whether they are harmless or whether the negotiations have concluded.
Given how central the EU is to most departments' work, this could put vast numbers of documents off limits, and we are unlikely ever again to see any papers from the Department of Agriculture. The publication of the beef tribunal report in 1994 was the catalyst which finally converted the Dáil to commit to a Freedom of Information Act.
In one of the most important statements to come from the beef tribunal Mr Justice Hamilton said: "I think that if the questions that were asked in the Dáil were answered in the way they are answered here, there would be no necessity for this inquiry and a lot of money and time would have been saved."
It is ironic that the Government now proposes to shelter the briefing papers for parliamentary questions, and indeed briefing papers on legislation, from public view.
Accountability to parliament will be limited by whether a question is reached on the order paper, what questions are asked if it is reached, and whether the answer sets out to mislead by withholding key information.
All in all, these changes fly in the face of any culture of openness. The PDs doubled their seats on a promise to keep Fianna Fáil accountable. They are now colluding in a shabby attempt to make government less accountable to the public.
Eithne Fitzgerald, as minister of State, introduced the Freedom of Information Act in 1997