FoI and other DPER reforms very welcome

As the Government renegotiates its priorities and reshuffles the Cabinet, it is an appropriate time to look back and assess the Government’s achievements under its political reform programme.

There has been a good deal of criticism at the slow pace of change and at the apparent absence of an appetite for reform among the Government with little meaningful reform to decrease executive dominance which is arguably among the greatest problems in our system.

Indeed there are many reforms which are entirely absent or where problems have been exacerbated by the current Government. One exception is under the wider reform programme overseen by Brendan Howlin. Here the picture is rather different and much has been achieved even if there have been compromises and the full scale of reform demanded by activists has not been achieved. Nonetheless, such compromises are the essence of politics and the overall direction is clear and in the direction of reform on a scale not previously seen since the mid 1990s Rainbow Coalition when Freedom of Information and Ethics legislation were first introduced.

Among the significant reforms is Freedom of Information. As Jennifer Kavanagh has argued previously on these pages the underpinning values of freedom of information are openness and transparency. Access to information is regarded as a fundamental human right. FoI affords the public the opportunity to see how government decisions are made, and makes for better-informed voters. In addition, ensuring investigative journalists are freely able to access information is recognized as a deterrent to corruption and fraud in public office, and as a means of exposing serious wrongdoing. Crucially it would also recused burdens on whistleblowers to share information that should be readily accessible.

Yet, Ireland was the only EU member state to force the public and journalists to pay up-front fees for non-personal information under FOI. As such upfront fees were always the key to the FoI reform process and promises to revert to the original FOI regime made in the Programme for Government were widely welcomed. The process however was difficult as many vested interests put up vigorous fights to retain fees as a deterrent to multiple requests from journalists. It is very welcome that Minister Howlin overcame these objections to announce he is abolishing upfront fees last week. Some campaigners are urging caution and asking us to wait until the relevant legislation is published before congratulating the Minister. And of course the devil is often in the detail but the announcements itself is nonetheless to be welcomed in advance of the Report Stage in the Dáil on 16 July with enactment expected before Christmas.

While free upfront FoI fees may be among the most obvious achievements of reform there are many others which DPER has quietly been getting on with. Separately there are moves to expand the open data portal, which while a positive development is still very top level and does not allow much detailed interrogation of data. A National Open Data portal is expected to be launched soon and the progress towards a multi-level analysis will be interesting to observe.

Other achievements in various stages of progress are the publication of the Registration of Lobbying Bill 2014, although greater disclosure is required and many have valid concerns regarding the oversight and enforcement powers of the Standards in Public Office. Indeed it is to be hoped that new Minister for Environment will be more reform minded and will act on the need for an Electoral Commission, which would subsume SIPO, the Referendum Commission and other relevant bodies.

At the same time, Ireland has entered into the Open Government Process and the publication of the first OGP Action Plan, is due to go to Cabinet shortly, following consultation between the department and wider civil society.

The whistleblowing or Protected Disclosures Bill 2013 has completed all stages and is expected to be enacted later this month. The Ombudsman (Amendment) Act 2012 enacted that year extended the remit of the Ombudsman bringing some 200 additional bodies under the Act and extending the powers of the Ombudsman.

Of course the Government lost the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 but has since commenced the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, allowing the Banking Inquiry to be held.

Other planned reforms are to the civil service and to increasing accountability there, but progress here has been far slower. A consultation paper on strengthening accountability has been published and an independent panel’s report has been published. But real movement is absent (addendum: and as John O’Brennan point out below the selection process for the new secretary general in Finance is very problematic) While regulations to prescribe bodies for the purposes of ethics is also merely under consultation.

However, the job is not finished. We need ongoing political will and funding to ensure laws and agencies are resourced and that legislation is enacted and for other Ministers to start thinking seriously about reform. Nonetheless, all in all this has to be welcomed and to be considered real progress. Credit where credit is due. (updated post 8pm 9 july)

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14 thoughts on “FoI and other DPER reforms very welcome

  1. Jane, with all due respect, a stock-taking exercise must take as its starting point not just the inheritance from the previous FF-led administrations but the solid promises contained within both FG and Labour manifestos in early 2011. Those promises around reform were generally bracketed under the rubric of ‘New Politics’. Therefore we cannot simply explain away the failure to deliver on the vast majority of those promises as part of the tit-for-tat bargaining process that is everyday politics. The gap is so enormous that to highlight (nonetheless welcome) measures such as FOI only underscores the overwhelming absence of commitment to and delivery of substantive measures. This government took office when the entire edifice of the state had been thoroughly exposed as deeply vested in the corrupt practices which instrumentalized politics. The country was literally staring at default and global humiliation and this constituted as much as failure of politics , public administration and political institutions as of economics. So we surely have to evaluate the different vectors of reform against the extraordinary problems revealed by the collapse in the economy and reputation of the state?

    Just a few days ago it was announced that the most senior civil servant in the Department of Finance (and thus the nominal second most important officer of state in the entire government) was being replaced through a purely internal process. No external candidates welcome or necessary in a department that in 2009-10 was exposed as truly unfit for purpose. You are well aware that even the lowest level lecturing positions at Ireland’s universities (including temporary contracts of less than one year duration) are advertised not just publicly but internationally, with a thorough process of selection considered appropriate, not just to find the best candidate but to ensure that the process is open, transparent and perceived as such. Here we have one of the most important positions in the public service being awarded without any kind of public process. Or any process at all. Does that suggest a seriousness of purpose amongst these people about reform? A commitment to transparency? New Politics?

    We could also examine how appointments of staff are made within the Oireachtas. Nepotism and jobs-for-the loved ones is as deeply entrenched as it has ever been. Very few TDs and Senators publicly advertise posts for Parliamentary Assistants when these come up, so that the vast majority of excellent Politics graduates never get a shot at doing a job they are perfectly tailored to. Instead a vastly disproportionate number of these jobs are given to family members or party hacks without any kind of vetting or public process. Even the Moral trumpeteers on the far left are attached to this disease as they take the opportunity to employ their closest relations. New Politics?

    With the exception of one or two committees (sometimes having issues forced upon them rather than proactively shadowing government) the willingness and capacity of the Oireachtas to behave as a real parliament remains way short of any acceptable measure of engagement. Committees are still denied the crucial resources they need to do their job sufficiently well (resources which are taken for granted in other jurisdictions) and some committees give the impression of being nothing but pro-forma institutional relics, designed to give the impression of activity (and making an impact) where patently that is not the case. If anything executive privilege has actually increased during the course of this parliament (both for domestic and EU-related reasons) and there are very few actors within the political system raising a stink about this.

    The simple fact is that most members of the Oireachtas are perfectly satisfied with the status quo and will incline toward the default safety of such over any impulse toward the kind of substantive reforms promised in the midst of cataclysm in 2009-10. So, I take the point on FOI (which has taken more than three years by the way) but the balance sheet is a long way short of any adequate measures of genuine reform. Irish politics remains in the mire and there is little or no willingness amongst the political class to change this depressing reality.

    • Bravo! A perfect antidote to the “Look at the crumbs we’ve got; don’t worry about the loaf we were promised” stance of the original post.

      But most voters have little interest in these deficiencies in democratic governance or in mounting sustained pressure to remedy them. And, in truth, the process required to remedy them is mind-numbingly boring and tedious. Voters only become engaged when egregious instances of corruption or malfeasance, often from long in the past, are highlighted – and this engagement is rarely sustained. Governments will crank up the spin machine to provide damage limitation; an inquiry will be established which will report when the public clamour for its establishment will have long subsided; and if the public clamour becomes politically dangerous a minister can be thrown to the wolves.

      And, in relation to the enchantingly naive view that greater ‘openness and transparency’ will lead to better public policy decisions and deter corruption, there are two further important factors. The first is that, in the modern era in the advanced economies, most governments have been suborned by a plethora of influential special interest groups. But it is even worse for governments such as Ireland’s, which combine parties across the traditional right-of-centre/left-of-centre divide, as they are forced to pander to an array of special interest groups right across the politcical and economic spectrum. Germany’s is another example. The only effective scrutiny, restraint or accountability imposed on these governments seeking parliamentary consent to implement policies that have secured the prior approval or acquiesence of these special interest groups occurs within meetings of the governing parliamentary parties – and these are held behind closed doors. What occurs in the Oireachtas (and its committees) is, almost always, confected, threatrical confrontation and posturing that is intended to create the optical illusion of the imposition of scrutiny, restraint and accountability.

      The second is that an enormous amount of material is already put in to the public domain by government departments and by the plethora of government agencies and quangos – much of it for ‘public consultation’. But, for obvious reasons, there is rarely any. And if there is any critique of what is being proposed, based on facts, evidence and analysis, it is simply ignored or dismissed. The amount of material relating to the public interest that is ‘hidden in broad daylight’ in this way is simply astounding. All of those who might have the knowledge and competence to evaluate and critique it in the public interest are already either retained by or obligated to this plethora of public bodies or special interest groups – or, like the media, know which side their bread is buttered on.

      The simple reality, of which more and more voters are becoming aware, is that, apart from costs recovered in export revenues, households ultimately pay for every good and service imported, produced or delivered either directly or as taxpayers. And many, particularly those which are over-indebted or are experiencing unemployment, are struggling. It is little wonder that they have little interest in supporting efforts to implement badly-required changes in the process of democratic governance. The tragedy is that they are not, but they should. The reason they are struggling is almost entirely due to serious deficiencies in the process of governance.

      The perfect example is the fact that the price level of private household expenditure in Ireland remains stubbornly 15% above the Euro Zone average:
      http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&plugin=1&language=en&pcode=tec00120

      Most of these extra costs, which amount to an average of €6,500 per household a year, are both unnecessary and unjustified and are a direct result of the extent to which special interest groups (primarily in the sheltered private, public and semi-state sectors) have suborned successive governments. Not surprisingly, households demand levels of pay and welfare transfers to defray these extra costs and this creates a vicious circle which is seriously retarding economic recovery.

      However, more and more voters realise that they are being ripped off – even if they have little understanding of how why this is happening. Their political response is to reject the mainstream parties and to switch to SF and a broad variety of ‘independents’. This response is pefectly understandable – voters can only choose from what’s put in front of them, but the prospect of meaningful changes in democratic governance which are required to increase economic prosperity and well-being will recede further in to the distance.

    • @John
      on FoI perhaps you did not see the ITimes letter, on the removal of Section 16 of the 1997 FoI Act. Despite the Programme for Government promise to restore that Act, the government is repealing it and replacing it with a completely new FoI Act.

      As the letter points out, the omission of Section 16 in the new Act enables government bodies to act in whimsical and arbitrary ways.

      As an example, consider the “index of precedents” which the Revenue Commissioners now publish as a result of the 1997 FoI
      http://www.revenue.ie/en/about/foi/precedents/index.html

      The effect of this was to spread the knowledge of what the Revenue Commissioners had decided in particular (anonymised) cases. Smaller tax advisers (eg. local accouontants) had a sense that the larger tax advisory practices had much better insight into these precedents, simply because of the extra staff and “corporate memory”

      It levelled the playing field somewhat for all, regardless of resources.
      In short, Section 16 of the 1997 FoI make it mandatory for Government bodies to show how insiders and croneys were able to benefit.
      “Publication of information regarding rules and practices in relation to certain decisions by public bodies.
      (1) A public body shall cause to be prepared and published and to be made available in accordance with subsection (5)—
      (a) the rules, procedures, practices, guidelines and interpretations used by the body, and an index of any precedents kept by the body, for the purposes of decisions, determinations or recommendations, under or for the purposes of any enactment or scheme administered by the body with respect to rights, privileges, benefits, obligations, penalties or other sanctions to which members of the public are or may be entitled or subject under the enactment or scheme, and
      (b) appropriate information in relation to the manner or intended manner of administration of any such enactment or scheme.
      ……”
      http://www.irishstatutebook.ie/1997/en/act/pub/0013/sec0016.html

      “A chara, – Minister for Public Expenditure and Reform Brendan Howlin writes that the “Freedom of Information Act is being restored” (“Labour must defend – not apologise for – its role in Government”, Opinion & Analysis, July 4th).

      In removing section 16 of the current law and replacing it with a new section 8, the Minister is conferring legal authority on all public institutions across the State to decide what criteria will be published for the making of decisions, including decisions that affect citizens’ entitlements.

      This is in stark contrast with the current law’s section 16, under which all public bodies must publish the criteria for making such decisions. The publication of such materials enables citizens to ensure that decisions are being made in a fair and consistent manner and that like cases are being treated in a similar fashion.

      The proposed code of practice and guidelines are not legally binding and in any event, almost an entire year after the Bill’s publication, the much-vaunted code of practice and guidelines have still not been published for examination by our elected legislators.

      The apparent removal of upfront fees is a welcome development but the removal of the protections enshrined in section 16 will be a grim piece of work for democracy and for those who have neither the financial resources nor the capacity to protect their rights in the courts.

      Those with sufficient financial resources will continue to be able to vindicate their rights in the courts. Section 16 went some distance in expanding that potential to those not so financially enabled to protect those rights.

      Let us hope Mr Howlin will retain section 16 and improve it, rather than the proposed disaster for law-based transparency and accountability that will ensue upon its abolition. – Is mise,
      LAURENCE VIZE, Ramillies Road, Ballyfermot, Dublin 10.”
      http://www.irishtimes.com/debate/letters/freedom-of-information-act-1.1859519

      • Today’s Irish Times has a letter from the Department of Public Entreprise and Reform
        in response to Laurence Vize

        Sir, – Responding to Mr Laurence Vize’s plea (July 10th), I am glad to advise that the Minister for Public Expenditure and Reform Brendan Howlin is proposing in his amendments to the Freedom of Information Bill 2013 to confirm that the information that public bodies are currently required to include in their “Section 15” and “Section 16” FOI manuals will now be provided for in the publication schemes required under the FOI Bill.

        Publication schemes for FOI are a further example of the adoption of best practice in FOI from abroad in Ireland’s FOI regime.

        They will help ensure that public bodies publish more information on a proactive basis outside of FOI than has ever been the case in the past.

        The legislative provision will ensure that there is no potential for a diminution of the information that public bodies are currently required to make available in the public domain.

        There is no question of public bodies deciding for themselves what should be included in their publication scheme.

        These must be made in accordance with a model publication scheme made by the Minister following consultation with the Information Commissioner.

        The code of practice for FOI is another important innovation in the FOI Bill, whose development has benefited from the pre-legislative scrutiny of the FOI Bill by legislators and also from the important report on the operation of FOI in Ireland prepared by a group of FOI experts, academics and advocates external to the public service. A draft of the code has been published for public consultation on the department’s website. – Yours, etc,

        ÁINE GRIFFIN,
        Press Officer,
        Department of Public Expenditure and Reform, Government Buildings, Dublin 2.

        http://www.irishtimes.com/debate/letters/freedom-of-information-1.1868436

        This DPER letter can also be read as a response to a letter of mine in Tuesday’s Irish Examiner (15July2014) http://www.irishexaminer.com/viewpoints/yourview/reshuffled-cabinet-can-now-focus-on-reform-275445.html)

  2. John, you are of course right and I agree there are many reforms mostly around centralisation, executive dominance, poor local political reform, the non establishment of an Electoral Commission, the absence of any meaningful Seanad reform etc and the list can go on which are entirely absent or indeed have gone in the wrong direction. Your point around the new sec gen in Finance is also an excellent one. What I was trying to do was point out that at least one Minister has been reasonably active and is engaged in something meaningful despite the lack of willingness among most of his colleagues to engage never mind tackle the status quo.

    • are you going to pretend the spite and bile and insults and badmouthing directed by Howlin for the last year at good people working very hard didn’t happen.

    • after asking and asking and asking we finally got the FOI code of practice but many of the answers that people looking are not in there but may be in the model publication scheme, will that be published before the vote? or oireachtas members be voting on something they don’t have the details for.

  3. This article caused me to go to the ‘About’ page to see if this forum is to provide objective or subjective blog post. It doesn’t put the reforms to any proper scrutiny. Just saying. It’s probably no coincidence that Minister Howlin’s Dept. of Public Expenditure and Reform freely forwarded us the link to this lovely article when they have been very quiet with information that would actually help us to be full partners in the OGP process which we used to push to #abolishFOIfees as much as we could with as little information as we had compared to the government. Looking forward to the day when the government and DPER can consider us citizens as equals.

  4. On FOI – just to be clear: Upfront fees cannot be considered ‘abolished’ as long as the legislation is not being updated to reflect this. Which as of this moment is not the case in the report stage amendments that have been published.

    The internal review fee continues and fees may be set by Statutory Instrument…which means fees can be reintroduced at the stroke of a pen at any time with no debate.

  5. Let me add more grist to the mills of those who are fed-up with the double standards of this Government on political and institutional reform – of which FoI is one very obvious example.

    The following example shows that this Government is going backwards on matters of accountability. With this cast of mind hard wired into Irish governance institutions, it will take more than a “softly softly catchee monkey” approach to change this.

    Exactly one month ago (12 June last) this appeared on Dept of Public Expenditure and REFORM website (http://www.per.gov.ie/strengthening-accountability-and-performance-in-the-civil-service/)

    “Strengthening Accountability and Performance in the Civil Service
    Ireland does not feature a great deal in international studies of civil service reform. Even a recent UK report that reviewed civil service reforms in similar Westminster-type governmental systems did not include Ireland. The absence, until recently, of a significant and ongoing civil service reform agenda in Ireland is one explanation for this omission.

    The report of the Independent Panel on Strengthening Accountability and Performance, published yesterday (11 June 2014), has the potential to change this situation. Our recommendations have real benefits in strengthening accountability and performance in the civil service – benefits for the public, the political system and the civil service itself……
    …..We believe the involvement of the independent external members would assist in strengthening public trust in the administrative system.”

    Among the recommendations of this Independent Panel are
    “Publish who does what and to whom they are answerable.”

    Nobody will be surprised to find that
    1. the 1997 FoI Act’s Section 15 ( http://www.irishstatutebook.ie/1997/en/act/pub/0013/sec0015.html#sec15), which is still in force, comes very close to meeting this requirement.*
    2. The current Government’s FoI Bill will repeal the 1997 FoI Act, but does not have any similar measure that I can find;

    This is the full tect of Section 15 of the 1997 FoI Act.
    Publication of information about public bodies.
    15.—(1) A public body shall cause to be prepared and published and to be made available in accordance with subsection (7) a reference book containing—
    (a) a general description of its structure and organisation, functions, powers and duties, any services it provides for the public and the procedures by which any such services may be availed of by the public,
    (b) a general description of the classes of records held by it, giving such particulars as are reasonably necessary to facilitate the exercise of the right of access,
    (c) a general description of the matters referred to in paragraphs (a) and (b) of section 16 (1),

    (d) the arrangements made by the body—
    (i) to enable a person to obtain access to records held by the body,
    (ii) to enable an individual to apply for the amendment of any such records that relate to personal information in respect of the individual, and
    (iii) to enable a person to whom section 18 (1) applies to obtain the information specified therein,
    (e) the names and designations of the members of the staff of the body responsible for carrying out the arrangements aforesaid (unless the head of the body reasonably believes that publication of that information could threaten the physical safety or well-being of the persons),
    (f) the address or addresses at which requests under section 7 or applications under section 17 or 18 should be given,
    (g) appropriate information concerning—
    (i) any rights of review or appeal in respect of decisions made by the body (including rights of review and appeal under this Act), and
    (ii) the procedure governing the exercise of those rights and any time limits governing such exercise,
    (h) any other information that the head of the body considers relevant for the purpose of facilitating the exercise of the right of access, and
    (i) information in relation to such other matters (if any) as may be prescribed.
    (2) A reference book prepared under subsection (1) shall be made available in accordance with subsection (7)—
    (a) in case the body concerned is a body specified in paragraph 1 (other than subparagraph (3), (4) and (5)) of the First Schedule , upon the commencement of this Act,
    (b) in case the body is a local authority, upon the commencement of the said subparagraph (3),
    (c) in case the body is a health board, upon the commencement of the said subparagraph (4), and
    (d) in case the body is a body standing prescribed under section 3 for the purposes of the said subparagraph (5), upon such prescription,
    and thereafter a version, appropriately revised, of the book shall be prepared and published and shall be made available as aforesaid by the body not less frequently than 3 years after the latest such book was so made available by the body and as soon as may be after any significant alterations or additions fall to be made in or to the latest such book so made available.
    (3) In preparing a reference book under subsection (1), a public body shall have regard to the fact that the purpose of the book is to assist members of the public in ascertaining and exercising their rights under this Act.
    (4) At the time of the publication of a reference book under subsection (1) or (2), the body concerned shall furnish to the Minister a summary thereof and the Minister shall cause the summaries furnished to him or her under this subsection to be collated and shall cause a reference book containing the summaries as so collated to be published and to be made available in accordance with subsection (7) not later than 15 months after the commencement of this Act and thereafter not less frequently than 3 years after the latest such book is published and so made available and as soon as may be after any significant alterations or additions fall to be made in or to the latest such book so made available.
    (5) The Minister shall ensure that appropriate measures are taken by public bodies, as respects training of staff, organisational arrangements and such other matters as the Minister considers appropriate, for the purpose of facilitating compliance by the bodies with this Act and, without prejudice to the generality of paragraph (b) of section 3 (1), may, by regulations made under that paragraph after consultation with the Commissioner and the Director of the National Archives (within the meaning of the National Archives Act, 1986 ), make provision for the management and maintenance of records held by public bodies.
    (6) (a) As soon as may be after the end of a period specified in paragraph (d), the Minister shall prepare a report in writing of the measures taken by public bodies pursuant to subsection (5) during that period.
    (b) A report under this subsection shall include a report of any measures taken by a public body during the period to which the report relates consequent upon a report under section 36 (4).

    (c) The Minister shall cause a copy of a report under this subsection to be furnished as soon as may be to the committee (within the meaning of section 32 ).

    (d) The periods referred to in paragraph (a) are:
    (i) the period of 3 months beginning on the commencement of this Act, and
    (ii) the period of 12 months beginning on the expiration of the period aforesaid and each subsequent period of 12 months beginning on the expiration of the period of 12 months immediately preceding.
    (7) A book referred to in subsection (1), (2) or (4) shall be made available for inspection free of charge, and for removal free of charge or, at the discretion of the head concerned or the Minister, as may be appropriate, for purchase, at such places as the head or, as may be appropriate, the Minister may determine and the head or the Minister, as may be appropriate, shall cause notice of those places to be published in such manner as he or she considers adequate for the purposes of this section and, if the book relates to a local authority or a health board, a copy of it shall be given to each member of the authority or board.
    (8) Subsection (1) does not apply to any matter by reason of which a record in which it is included is an exempt record.

  6. I’m not sure where you get this from Flora, my understanding is the power to set an upfront application fee is proposed for removal from the Bill at Committee today, If enacted , the reintroduction of an upfront application fee would thus require primary legislation. If you have evidence to the contrary perhaps you could supply it?

  7. Hi Donal,
    My understanding us that in terms of the schedule of Report Stage amendments that you linked, the change is achieved in section 29(13)(a) which as you can see does not reference section 12, the section of the Bill under which a FOI request is made. That is a section 12 is the ‘new’ section 7.

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