Open secrets
LAST week saw the publication of the Magdalene laundries report, a shocking tale of abuse against vulnerable young women in our recent history.
What is all the more shocking, however, is this was facilitated, albeit at arm’s length, by the State.
We know about it thanks to investigative journalism but, for decades, it remained secret, behind high grey walls, without oversight, without scrutiny, without anyone to shout stop.
And there are many other examples of abuses of power — think of the many tribunals at a cost of hundreds of millions of euro. Or of the secret banking deals that have left the State bankrupt.
Many of these things happened in an era when the Official Secrets Act made it a crime for any civil servant to reveal even the most trivial of information without express permission.
Far from protecting the State, the act protected those in power and ensured a culture of cover-up and secrecy and, in some cases, corruption.
The best defence we have against governments abusing their power is openness and transparency.
The long-promised Freedom of Information (FoI) Bill comes before the Oireachtas later this year. It is designed to restore the original remit of FoI legislation and extend its remit to Nama, An Garda Siochána, and the Central Bank.
The original FoI Act, first introduced in 1997 by the Rainbow coalition, capped a series of other administrative reforms designed to tackle the culture of secrecy in government — but the culture of secrecy in Ireland’s civil service was deeply engrained.
Cabinet handbooks throughout much of the early part of the State’s history laid down the procedures under which memoranda for government were to be handled — enclosed in special envelopes and marked for ministers’ personal attention, and sealed with wax.. Cabinet documents not likely to be required again were to be personally burned by the private secretary.
Cabinet minutes have traditionally been sparse with only the final decision included and disagreements never recorded — a practice that continues to this day.
It is in this context that the introduction of the FoI Act in 1997 was a watershed moment. In this new commitment to open and transparent administration, the Irish Government was leading the way towards a new relationship between the government and the governed.
FoI, for the first time, allowed citizens an opportunity to understand how and why decisions were made, and it allowed the public to hold the civil service and government to account. In doing so Ireland was playing catch-up with most of the rest of Europe, and other common law countries.
The act was popular with journalists, who were able to use it regularly to discover previously hidden details of government discussions; embarrassing mistakes; and financial overruns. Opposition politicians began to use it to get answers to questions they were not able to get answered via the traditional parliamentary questions procedure in the Oireachtas.
But far more importantly, for the first time in the history of the State ordinary citizens had a right to know.
Personal social welfare files that were previously official “secrets” were open to scrutiny. Ordinary people could request to see their hospital records and Leaving Cert scripts — which prior to 1997 had been “secret”. Everyone had the right to see information held about them by a public body and have that information corrected if it was wrong.
By the early 2000s, the act had begun to take hold and it had a transformational impact on relations between the public and the State.
FoI requests by the media led to expenses claims by TDs being published for the first time, but far more important public interest news was unearthed. It was disclosures of abuse of the elderly in nursing homes by Fine Gael TD Fergus O’Dowd — obtained via FoI requests — that demonstrated the act’s greatest power.
The legislation was perhaps a victim of its own success. Senior members of the then Fianna Fáil-led cabinet openly disdained the regular flow of embarrassing news emanating from FoI.
Some senior civil servants were equally uncomfortable with frequent media disclosures of their mistakes. Change came in the form of the 2003 FoI Amendment Act, introduced by Charlie McCreevy, severely curtailing the fine principles and practical usefulness of the original law.
That legislation filleted important provisions in the original act and rowed back on many of the open government and transparency provisions. McCreevy also introduced fees for requests, a move which discouraged the public from making use of the law and was reflected in the halving of personal requests from about 8,000 a year before 2003, to about 4,000 a year thereafter.
The costs of appeals since 2003 have been particularly prohibitive. In some cases, public bodies have also been accused of using charges and fees to thwart efforts to investigate their internal decision making processes. The State training agency Fás originally requested a €1,000 fee to provide journalists with information on spending by senior executives.
A lot has changed since 1997 and it could be argued that, even without the 2003 amendment, FoI would be due for revision. New methods of electronic storage are now commonplace in government departments and public service agencies; so too are Gmail accounts, texts, and instant messages.
Frequent users of the act complain that public service bodies are not keeping adequate records, particularly around decisions that are politically sensitive, as civil servants use modern communication methods to avoid traditional paper trails.
Whilst some government departments and public bodies have embraced the spirit of FoI others have taken a far more cautious approach. It is in this context that the Government’s willingness to revisit the act is a welcome indication that it intends, once again, to try and lead a cultural shift in governance.
No act can ever legislate for a public service mentality that harks back to the good old days of the Official Secrets Act. But it is this cultural shift, not just a new Freedom of Information Act, that is needed to make Ireland truly open and transparent.
*Tom Felle, a former journalist, is a lecturer in journalism and new media at the University of Limerick. Maura Adshead is a senior lecturer in the department of politics and public administration at UL
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