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Saturday, 22 October 2011

In the public interest

FOI: The reporter's friend?

The freedom of information act (FOI) is a welcome tool for journalists, but using it to access records in certain cases can be a prolonged ordeal. If an original request is refused, and they often are, the appeal process can be tricky and take a long time with no guarantee of success.

Some requests when appealed to the information commissioner become "FOI battles" for reporters and the stakes are high. A win against a state body or branch of government means a journalist has the chance to set a precedent for the future release of similar records in addition to getting the information in question. An "FOI victory" then not only provides a story, but becomes one in itself. There is, however, a chance of failure, which means money is wasted and the result is publicly recorded.

Mark Tighe, a senior reporter, with the ST was involved in an appeal to the information commissioner recently. Case 100263 arose when Mark was denied full access to records of politicians lobbying for barristers and solicitors to become judges.The information involved will be the subject of a future blog, but the case itself is worthy of examination for a number of reasons.

It shows how branches of government are slow to give out 'personal records' even when it is clear that doing so is in the public interest and how some FOI offices try to provide the minimum information required when dealing with a request. It also shows long-running and tedious an FOI battle can be.

The department in this case was willing to receive representations from public representatives on behalf of third parties but was reluctant to make this process transparent. Some of the third parties involved also tried to prevent the release of the information using exaggerated, irrelevant and even fanciful arguments that showed a very low working knowledge of the legislation.

In some of the cases it was clear that while they were the subjects of representations by a public representative, whether knowingly or not, the people involved believed such activity should remain secret even though it is clear this is not in the public interest. For the purposes of clarity anything which appears below in bold is my own view and not that of Fintan Butler, the investigating officer from the information commissioner's office.

Case 100263 began on July 17 2010.  A reply to a parliamentary question revealed 42 representations were made to the justice minister in relation to judicial appointments between 1997 and 2009. Mark sent a request to the Department of Justice saying he would like "all copies of all representations made to date".

On August 3 2010 the department told Mark it was extending the statutory 4-week timescale, within which a decision must be given, by an additional five weeks so it could consult with the third parties involved. No such consultations took place, but the department's decision was still not issued until October 7 2010, seven weeks outside the statutory timescale and two weeks more than the extended period which the department had allowed itself.

The request was granted, but only in part. Mark was given a list of the politicians who had made representations to the minister from 21 April 1998 to July 2010, but only the name of the minister, TD or senator involved.

The actual letters sent to the minister were refused under section 28 (1) of the FOI Act which states that records can be denied if they would involve the disclosure of personal information. The department made no reference to section 28 (5) which, in certain circumstances, allows for the exemption in 28 (1) to be set aside.

Under section 28 (5) a request can be granted if the public interest in doing so, outweighs the public interest involved in upholding an individual's right to privacy. An argument can be made that it was clear,  at this stage, that the information should have been released on the basis of section 28 (5).

On October 13 2010, Mark sought an internal review making the public interest argument. On November 16 the department released edited copies of the letters to the minister, redacting anything that would reveal the identity of the persons on whose behalf representations were made and all other personal information again citing section 28 (1). The internal review also did not make any reference to section 28 (5) even though Mark had referred to it in his appeal.

Mark next appealed the case to the information commissioner's office stating "the public interest argument is especially strong in cases where the lawyers who lobbied TDs were appointed to the judiciary".

He was asked to confine his request to six representations which concerned people subsequently appointed judges. Of these, one had died, prior to the start date of the FOI process. Mark agreed.  

The justice department said it would consult with the judges in question and, on this occasion, did so. It passed on their observations as a collective response and the only section of the act referred to again was 28 (1). The judges referred to "judicial independence, security considerations and the possibility of misrepresentation" in a context where judges are precluded from publicly defending themselves.

The ST would never publish someone's full address in a case like this so what security considerations were involved is baffling. There is also clear precedent of personal addresses being redacted in similar requests so, even if this was worth flagging, it was never going to amount to an argument against the release of the letters. 

A concern over misrepresentation relates to the handling of the information and not its release so would be irrelevant even if valid. Judicial independence is an interesting argument given it is exactly what the ST was interested in protecting by highlighting how politicians can lobby for people to become judges. 

The investigator, Fintan Butler, wrote to the judges telling them he thought the information should be released in the public interest. One judge responded in writing and three by phone. The written submission was identical to the already rejected one made by the department with some specific comments relating to that judge's security. The telephone submissions also simply repeated the department's previous points

In the case of the deceased judge, her spouse was invited to make a submission and sent an email on July 22. He introduced a number of new arguments claiming it was unfair to a deceased person to release their records when they would not be able to defend themselves. 

He said that as"all judicial appointments since the foundation of the state are political appointments" it would be fairer if the FOI request "would encompass all the appointments of judges to all the courts". He argued the identity of the FOI requester was relevant as the information was "being sought by The Sunday Times, a Murdoch organisation, currently in the dock for its ethical (sic) gathering and dissemination of information". He also pointed out the deceased judge had, prior to her appointment, applied previously to the Judicial Appointments Advisory Board (JAAB) and had been recommended for appointment by that body  

The JAAB can advise the justice minister on the barristers and solicitors it believes would make good judges. Other judges in this case would have been suggested by the board in addition to being the subject of representations by politicians. They would also argue that they were well qualified for their appointments. This, however, is context that should have been provided with the release of the information and not a reason to refuse it.  The identity of a newspaper or person making a request is also irrelevant under the terms of the legislation.

In his findings Butler concluded there is a well-established and long-recognised public interest in ensuring transparency in all aspects of government business. He said:

"Applying this general public interest in transparency to the records at issue here, it is clear that the public interest is served where the process of judicial appointments is made as transparent as possible. It is not just the fact that judges are paid from public funds but more important perhaps is the fact that they are entrusted, on behalf of the people, with independent and far-reaching powers."

Butler found the process of judicial appointments lacks innate transparency and that, outside of the limited scope of FOI, there is very little by way of effective transparency mechanisms.

"Against this background, therefore, there is a particular public interest in knowing whether serving judges have had their candidacies supported by public representatives and, if so, by which public representatives (and from which political party, if any). This public interest carries even greater weight in circumstances in which the Government, in advising the President in relation to the appointment of persons to judicial office, is not confined in its advice to the particular names recommended as suitable by the Judicial Appointments Advisory Board. Neither is the Government confined, in its advice to the President, to naming only persons who have applied to the Judicial Appointments Advisory Board whether or not such persons have been recommended by the Board."

He also rejected the arguments made by the spouse of the deceased judge confirming the identity of the requester and the motivation of a requester, are generally of no consequence in FOI decision making:

"The submission from the spouse of the deceased judge suggests that any intrusion on the right to privacy of a deceased person is in a different category to an intrusion on the right to privacy of a living person. The spouse argues that it is relevant to bear in mind that the deceased judge is not in a position to 'verify or defend [himself/herself] in what might flow from this'. This suggests a view that having had representations made in advance of a judicial appointment carries some negative connotations. At the same time, the spouse observes that "all Judicial appointments since the foundation of the state are Political appointments" which suggests that the making of political representations is the norm."

Butler concluded the public interest served by transparency, arising from the identification of those judges outweighed the public interest served in upholding their right to privacy. He was also satisfied the identity of the deceased judge should be released in the public interest. The only information he decided not to release was the judge's addresses as was expected.

"I am satisfied that any loss of privacy or of respect for private and family life this occasions is proportionate, in accordance with the law and serves the common good. The requirement for transparency in this context applies only to the identification of the judges concerned."

Butler concluded the case on August 9 of this year  Eight weeks was allowed for an appeal to the High Court. None was  lodged and the ST was given the information. On October 9, one year and five months since making the original request, the ST was able to publish its story.

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