Public Information and Power

Guest post: Nat O’Connor is a policy analyst with TASC and contributes to their Progressive Economy blog. He recently published two discussion papers on democratic accountability and the economic logic of strengthening public access rights to official information. The first paper can be viewed here and downloaded as PDF here. The paper on public access to official information can be read here and downloaded here. In recent weeks there has been much media attention given to the papers with articles in The Irish Examiner, an appearance on Morning Ireland and an opinion piece by Hugh Linehan in The Irish Times stemming from their publication, to name a few. – Mark

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It may be stating the obvious, but the extent to which the public can readily access official information has got a lot to do with the health of our democracy.

The Freedom of Information Act 1997 has come to represent this idea in some ways, in direct opposition to the Official Secrets Act 1963 (still in force) which represents government decision-making behind closed doors, where the reasons for those decisions remain secret.

Yet, the need for public access to information in a democracy is much more than just freedom of information law.

In a democracy, people need reliable information to vote; otherwise voting is a meaningless exercise. And just as importantly, people need reliable information between votes, when the real business of running the country takes place. We need information so that we can monitor where tax money is being spent, what policies are in place, what evidence informs decision-making, etc.

This democratic argument is spelled out in more detail in one of the discussion papers I wrote for TASC.

TASC is currently working towards a set of evidence-based policy proposals for more public access to official information, open and transparent government, etc. As we develop these proposals, we are actively seeking comments and suggestions. We will also be building up our case through other discussion papers, including ones on secrecy, a detailed analysis of our FOI law, and international best practice in open government.

Stronger public rights to access official information are one way to make real and lasting democratic and institutional reforms. This also requires unambiguous duties on public bodies to make information readily available in useful formats – and not only through outdated formats and obscure reports, which require hours of work to find and extract relevant data from.

Champions of democratic reform often come up against the argument that more participatory politics is not realistically possible in a country of over four million inhabitants. Yet, public access to information as a fundamental right is one way of giving people real, meaningful engagement with public policy. And this can actually save money when mistakes and bad policy are exposed. This form of participation doesn’t take away from the authority of ministers to make decisions; they just have to explain them publicly.

One of the main themes in the discussion papers is that Ireland’s political culture is exceptionally secretive when it comes to the reasons for public policy decisions. For example, Ireland’s parliament is in a category of its own as having the weakest committees when it comes to seeking government documents. In Ireland, alone of all 30 OECD countries, Oireachtas committees’ rights to seek government documents are “very limited” with most important documents “late, incomplete, or unavailable.” This is according to the SGI Network, a German foundation which conducts a detailed and comprehensive annual survey of governance across the OECD.

In most countries, requests by parliament for government documents “are granted quickly and fully”.

What does this mean?

Delving into the SGI Network data on this particular indicator, the following is shown:

• In the Czech Republic, MPs have a right to get information from ministers in 30 days of asking for it;
• The Norwegian parliament “has an extended foreign relations committee which has access to classified security information”;
• Swiss legislators “have electronic access to the majority of government documents”;
• In Australia, “committees can obtain virtually any government documents they require”;
• In Canada, in general, “the government does not use delaying tactics in delivering government documents to parliamentary committees”;

And so on.

Whereas, “Ireland strictly adheres to doctrines of collective cabinet responsibility and executive secrecy.” Although “[t]here have also been other related reforms that are gradually moving Ireland from a position of almost total executive secrecy to one of gradual and limited openness.”

The conclusion I draw from the evidence is that the Irish state’s obsession with secrecy is not normal for a modern democratic state. Significant change is required to open up all but the most confidential decision-making to public scrutiny, through parliament, the media, etc.

One likely reason for Irish divergence from contemporary democratic norms is that all members of the cabinet are TDs, whereas virtually all OECD countries have some external ministers (that is, people employed to be a minister due to their knowledge or management skills). And in countries like the Netherlands or USA, members of parliament/congress must resign if they join the executive, which is kept strictly separate from the legislative role.

When there are external ministers, parliament has a stronger motivation (and electoral mandate) to find out what ministers are doing as they run their departments, through a formal system that gives parliament the right to access almost all information that influenced decision-making.

It is too easy in the Irish system for pro-Government TDs (who have the majority and control parliament) to rely on ‘informal chats’ with their party colleagues in office, leaving the Opposition and the public in the dark.

The Constitution permits up to two senators to be made ministers, so any Taoiseach can experiment with this model when making his/her appointments. In this context, consider the HSE. Most health spending is managed by the CEO, yet we did not formally make the new HSE CEO, Cathal Magee, into our Minster for Health – which is what would be normal in many other democracies. As a result, we do not have a formal system of constitutional safeguards that would empower the Oireachtas to quiz him on health policy. (The CEO will certainly attend Oireachtas committees, but we have not formalised the constitutional implications of this).

Those familiar with the evolution of FOI law in Ireland will recall that concerns over cabinet secrecy was a fig-leaf held over the naked attempt to restrict FOI through the Amendment Act 2003. The five year special exemption for advice given to a member of the Government was extended to ten years. In addition, the wording was changed from “may refuse” under this exemption to the mandatory and automatic requirement that the person receiving the FOI request “shall refuse”. Furthermore, the scope of advice was widened out from records “solely” containing advice, to those “primarily” doing so.

You might have thought that when, recently, the first cabinet records were finally no longer covered by the ten-year rule, some interesting items might have come to light. But reading over the Department of Finance’s guidelines on interpreting this section undue emphasis is placed on continuing to protect any record of conversations at cabinet. Which, as part of the doctrine of cabinet secrecy in Ireland, is often zealously extended to the reasons for decisions made by ministers. The Amendment Act also extends the definition of cabinet confidentiality to anybody asked by government to discuss a matter.  In other words, the expiry of the ten-year rule was largely inconsequential; hence a fig-leaf.

(I should make it clear that I’m not interested in revealing the conversations held around the cabinet table, but in the evidence, ideas and advisors who influence ministerial decision-making).

The original Freedom of Information Act 1997 came into force under the shadow of a court ruling making cabinet confidentiality absolute, which was only marginally softened by the constitutional amendment that put it in the constitution for the first time (and allowed the High Court to direct access to some records for Tribunal purposes).

Our democracy needs to do more than reform FOI law. We need to challenge the out-dated, anti-democratic idea of absolute cabinet confidentiality, which lies at the heart of our system of making decisions about public policy. The extreme confidentiality given to Government decision-making creates a wall that prevents ministers from having to explain why they made decisions, on the basis of what evidence or advice. This shelters ideological or plain stupid decisions from the scrutiny and analysis they should receive.

We need to change this system radically. This is about what real reform should be about: power. And changing the balance of power.

It is sometimes said that knowledge is power. It would require a rather longer, more philosophical essay to explore this. And opinions vary.

More concretely, strong rights guaranteeing parliament and the public access to information about policy-making is a form of power.

And most certainly, the ability to declare something as secret and to control access to information, and to even control public knowledge about whether certain records exist, is real power.

Secrecy is power. That power needs to be given back to the people.