by Donal O’Brolcáin (June 21, 2010)

On Wednesday last, 16th June 2010, in a talk on BBC Radio 4 Dan Lucas, London correspondent for the Swedish Dagens Nyheter newspaper, gave an overview of Swedish-style Freedom of Information laws, as part of a talk in the three part series ‘Home Thoughts from Abroad’. (As of this Sunday evening, the podcast can be listened for another 3 days here).

“But if you ask me for one example where my country shines, I would have no doubt what to choose. Sweden’s Freedom of Information laws are a beacon to the world….In 1766, when a new young radical government came to power convinced that only transparency could deal with the corruption that was looting the Swedish state and society Freedom of Information Act was passed…All documents within the public sector are in the public domain so people can actually check and hold the people in power accountable for their actions…. Freedom of Information… is still a bedrock for transparency and accountability in Swedish democracy…You don’t have to tell why they want to see a document or you don’t even have to give a name…You can even read official letters before they arrive in politicians’ intrays………Yea, Freedom of Information does mean you sacrifice some personal privacy…Of course, Freedom of Information isn’t universal in Sweden. If you really want to hide information you can. But you have to work quite hard to keep things secret. The exemptions are limited and very specific.”

In 1997, our legislators passed a Freedom of Information (FoI) Act. This was a response to the dissatisfaction of the Labour Party with the outcome of the Beef Tribunal. IMO, out FoI was brought in as a means to lessen the scope for what seems like a similar kind of institutional corruption which the Swedes set about dealing with nearly 250 years ago! (Our Government’s FoI web-site is here.)

During this past week, we learnt that we will never see the €22bn that our government is committed to investing in now-nationalised Anglo-Irish Bank. We also saw the government appointed chairman of that bank refuse to answer questions put to him during a meeting of the Finance and Public Service Committee of the Oireachtas.
I wonder was it something similar that led the Swedes to bring in FoI as a means of preventing the “corruption that was looting the Swedish State and society” during the mid 17th century.

Various opinion polls have shown that we, Irish, have less trust in our public institutions that many others in Western Europe. The Edelman Trust Barometer for 2010 showed that trust in government was lowest in Ireland (here). This survey showed that, in contrast to most EU Member States, our trust in all institutions continued to decline.
Dr. Niamh Hardiman made a similar point in her paper at the Social and Statistical Society of Ireland symposium on Resolving Ireland’s fiscal crisis in November 2010:

“My argument in this paper is that we may not have a full-scale political crisis in Ireland, but
we do have a crisis of confidence in the political system which is potentially very serious.
…..The crisis throws a harsh new light on features of the political system that we had perhaps grown resigned to, or despaired of ever fixing. The most obvious manifestation of our political problems is the sudden and very dramatic fall in public confidence in the government just at the moment when we need effective policy decisions….
The big fall in confidence levels in the government came between June and November 2008
– from 46% to 18%, a fall of 28 points – and the Irish Times/ MRBI polls show them staying
down around 10% for the last six months (Irish Times/MRBI poll, Irish Times, 3 September
2009).”

About 25 years ago, the late Seamus Brennan (then in opposition, but later in Government) spoke specifically about the use of Freedom of Information as a means of building a bridge between government and people. Addressing the Merriman Summer School, he was reported as saying “we have inherited from Britain an intensely secretive approach to government… This could be done by having a Freedom of Information Act which would take the lid off so many decisions that affect our daily lives. Far from being a threat to those working in the public service, such an Act offered the best opportunity to build a bridge between government and people.” reported in Irish Times, 21 August 1985.
Over the years, the Ombudsman and Information Commissioner, Emily O’Reilly has pointed out the how the culture of secrecy prevails despite binding rules and regulations. In March 2010, she noted that:

“To recap, the need for Openness, Transparency and Accountability was cued by the slew of political stroke business scandals of the late 20th century. Rules and regulations were heralded in through the Freedom of Information Act but within a very short period of time it became clear that the old cultures and values still nestled largely undisturbed at the heart of the administration.
The Act was barely five years old when the Government rolled back some of its more sensitive provisions and introduced a scale of up-front fees, alien creatures in many international FOI regimes. As I have often said, following these measures, the Act was seriously winded but it wasn’t stretchered off the pitch. Very significant and effective use has been made of the Act even since its curtailment and, ironically, never more so than during this current economic downturn. Yet the curtailment of the FOI Act was an example of how legally binding rules and regulations still failed to defeat the prevailing values and culture of secrecy. There is no doubt that 12 years of FOI have brought about some significant change for the better, but as I will point out later, we still have quite a distance to travel.”

It is interesting to note how the changes to the 1997 FoI Act came about. In 2003, the FF-PD government (in which the late Seamus Brennan was Minister for Transport) restricted the 1997 FoI Act although it was not an issue during the 2002 election. However, once that election was over, senior civil servants presented a report calling for changes to FoI which the re-elected FF/PD government accepted (here).

Since then, the OECD reviewed the Public Management of Ireland in 2008. The report stated that “In the interest of social cohesion and trust in government, greater efficiency and the fight against corruption and greater transparency should be an ongoing objective even if it can sometimes be uncomfortable and/or costly. The government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free and extend its reach to a wider range of state agencies, such as Vocational Education Committees (VECs). While user charges may limit frivolous requests (and therefore reduce burdens on the Public Service), they also serve as a disincentive to greater openness” (p.220)

In the summer of 2008, the Government appointed a Task Force to develop an Action Plan for the Public Service drawing on the analysis and recommendations of the OECD review. The Secretary General of the Government chaired this 9 person group. Other members were the Secretaries General of the Departments of Education and Science, Health and Children, Environment Heritage and Local Government, the Secretary General (PSMD) of the Dept of Finance. Another member was a former Secretary-General of the Department of Entreprise, Trade and Employment.
In summary, 6 (two thirds) of the nine members were or had been senior public servants. In November 2008, this group did not make any recommendations on either reducing the FoI fees or extending the scope of FoI.
This suggests that the Senior Public Service has lost the perspectives that were suggested during the 1950s by Patrick Lynch, who had been a public servant and who was a long-time advocate of Public Sector Reform.

“The success of any public policy depends no less on its intrinsic merits than on the quality of the public service that executes it… The civil servant’s task is at any time a difficult one; it will not be lightened if he fails to bring the public closer into his confidence…In shaping
the Civil Service to the satisfactory discharge of its present-day responsibilities, the public may reasonably expect to know how the official mind works and to understand the thought that animates it.” The Economist and Public Policy. Studies. 42(1953). p. 259-260

In short, Professor Lynch was calling for what is now known as Freedom of Information. As Seamus Brennan pointed out, much of our culture draws heavily on the British way of thinking and doing.
Dan Lucas commented on the British FoI act introduced in 2000:

“Freedom of Information isn’t universal in Sweden. If you really want to hide information you can. But you have to work quite hard to keep things secret. The exemptions are limited and very specific.
In Britain, it’s the reverse. You have to work very hard indeed to squeeze information out of the authorities… Your long overdue Freedom of Information Act was finally passed in 2000. But why did you make such a dog’s dinner of it? When I read the umpteen different reasons British civil servants can give to refuse to reveal information, I had to laugh. It reminded me of the Act of God clause in insurance policies. Perhaps you need an outsider’s perspective to appreciate fully how deep the culture of secrecy runs in Britain….. But the problem isn’t really a technical one. It’s cultural….. Things are opening up slowly. I say go the whole hog and employ the Swedish model. Cut and paste from the 1766 law. You won’t go far wrong….”

For those interested in taking Dan Lucas at his word, I set out for consideration the Swedish constitutional text covering FoI
“Chapter 2. On the public nature of official documents

Art. 1. Every Swedish citizen shall be entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information.

Art. 2. The right of access to official documents may be restricted only if restriction is necessary having regard to

1. the security of the Realm or its relations with another state or an international organisation;

2. the central fiscal, monetary or currency policy of the Realm;

3. the inspection, control or other supervisory activities of a public authority;

4. the interest of preventing or prosecuting crime;

5. the economic interest of the public institutions;

6. the protection of the personal or economic circumstances of private subjects;

7. the preservation of animal or plant species.

Any restriction of the right of access to official documents shall be scrupulously specified in a provision of a special act of law, or, if this is deemed more appropriate in a particular case, in another act of law to which the special act refers. With authority in such a provision, the Government may however issue more detailed provisions for its application in a statutory instrument.

The provisions of paragraph two notwithstanding, the Riksdag or the Government may be empowered, in a regulation under paragraph two, to permit the release of a particular document, having regard to the circumstances.

Art. 3. Document is understood to mean any written or pictorial matter or recording which may be read, listened to, or otherwise comprehended only using technical aids. A document is official if it is held by a public authority, and if it can be deemed under Article 6 or 7 to have been received or drawn up by such an authority.

A recording under paragraph one is deemed to be held by a public authority, if it is available to the authority using technical aids, which the authority itself employs, for communication in such form that it may be read, listened to, or otherwise comprehended. A compilation of information taken from material recorded for automatic data processing is however regarded as being held by the authority only if the authority can make it available using routine means.

A compilation of information taken from material recorded for automatic data processing is not however regarded as being held by the authority if the compilation contains personal information and the authority is not authorised in law, or under a statutory instrument, to make the compilation available. Personal information is understood to mean any information which can be referred back directly or indirectly to a private person.

Art. 4. A letter or other communication which is directed in person to an official at a public authority is deemed to be an official document if it refers to a case or other matter falling within the authority’s purview, and if it is not intended for the addressee solely in his capacity as incumbent of another position.

Art. 5. The Riksdag and any local government assembly vested with decision making powers is equated with a public authority for the purposes of this Chapter.”

In a 1996 submission to the All Party-Oireachtas Committee on the Constitution I proposed adding the same words, slightly adapted, to Article 9 of our 1937 Constitution.