We need to know that our children are being dealt with properly in our schools, argues Emily O'Reilly.
'The passing of the Freedom of Information (FOI) Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny . . . It is for the benefit of every citizen. It lets light into the offices and filing cabinets of our rulers." (Mr Justice Fennelly, Supreme Court)
FOI has been in the news recently, linked to two separate but closely related matters. The upsetting revelations on standards of care in a private nursing home in the recent RTÉ Prime Time programme have provoked intense public debate on the need for a more comprehensive inspection regime. Public awareness of how the inspection system works, and of its limitations, has been greatly assisted by intelligent use of FOI by some journalists and, perhaps most notably, by Fergus O'Dowd TD.
I have dealt in some of my decisions with the right of access under FOI to health board records of inspections of private nursing homes. The details of one decision (Case No 020533) are given in my Annual Report for 2004. My decisions support the view that the public should know, to the greatest degree possible, how such inspections are carried out and what they have found. Recent public debate suggests this approach has widespread support.
The other reason why FOI has been in the news has to do with whether Department of Education school inspection reports should be accessible under the FOI Act. A Supreme Court judgment (Sheedy and the Information Commissioner) of May 30th has effectively neutralised the Act where school inspection reports are concerned. In its first substantive engagement with the FOI Act, the Supreme Court ruled by a two-to-one majority that the rights created under FOI are to be set aside where the Department of Education uses its discretion under section 53 of the Education Act, 1998, to refuse inspection reports.
As I understand the judgment, as Information Commissioner I have no powers to overrule the department where it chooses to refuse inspection reports. This means that, except for judicial review, there is no independent overseeing of discretionary departmental decisions to refuse such inspection reports. This is a peculiar situation - certainly not one that permits the light to be shone in "the offices and filing cabinets of our rulers".
As someone who deals, on appeal, with the decisions of other parties, I accept absolutely that my decisions must also be capable of further appeal. Just as I accept that interested parties are free to criticise my decisions, I feel it is no disrespect to the Supreme Court that I should comment critically on the outcome of the Sheedy case. Central to its judgment in Sheedy is its determination that, in enacting the Education Act, it was the explicit intention of the Oireachtas that section 53 should overrule the statutory right to information created by the FOI Act the previous year. As Mr Justice Nicholas Kearns put it in his majority judgment, section 53 of the Education Act "trumps" FOI Act provisions. I find it difficult to accept that the Oireachtas which, for 15 years or more, has been promoting openness, transparency and accountability in public affairs, would knowingly give a minister the absolute and unfettered right to refuse access to records of this kind. The remedy of judicial review is costly and inappropriate.
Interestingly, in his minority judgment in the Sheedy case, Mr Justice Nial Fennelly expresses the very strong view that the Oireachtas did not intend that in enacting the Education Act it should "trump" the FOI Act. His judgment is that the Oireachtas intended that section 53 would operate subject to the procedures of the FOI Act and it did not intend to amend that Act.
In the majority judgment, the Supreme Court quoted some extracts from the inspection report on Mr Sheedy's school. These extracts establish the general, and positive, nature of the inspectors' comments. While these extracts are published within the context of the judgment, that same judgment prohibits the release of those extracts under the FOI Act. Ironically, inclusion of these extracts within the published judgment may in itself be a breach of the FOI Act as section 43 requires the court to "take all reasonable precautions to prevent the disclosure to the public . . . [of] information contained in an exempt record".
It may well be that the Supreme Court has brought about a situation not wished for by any party other than the appellant, Mr Sheedy, who was supported in his appeal by the Irish National Teachers' Organisation. Although the department initially refused the inspection reports, it chose not to appeal my decision to release the reports; and it chose not to make any submission to the courts. Minister for Education Mary Hanafin is quoted on Sheedy as supporting the wider availability of school inspection reports (though excluding "crude league tables"). Oireachtas members also may wish to clarify whether the Supreme Court has interpreted their intentions accurately.
As I understand it, the introduction of school evaluation reports was to promote improvement in the school while making it more accountable to parents. This approach was devised within a context of partnership and was seen as the antithesis of the "crude league tables" approach. It is ironic, while at the same time predictable, that the vacuum created by the refusal even of general school inspection reports should be filled by ratemyteachers.com and league tables created by the media based on CAO data. Is this what teachers deserve or want?
Recent experience has shown that there continue to be areas of public life in Ireland on which the light of public scrutiny needs to be shone. As with the elderly in nursing homes, we need to know our children are being dealt with properly in our schools. A properly functioning FOI Act, which promotes openness in public affairs, is indispensable in guarding against abuse of power in public life.
Emily O'Reilly is Information Commissioner. Her Annual Report for 2004 is published today - www.oic.ie