A hard-hitting letter was duly sent by Pat Whelan, director general of the Office of Information Commissioner, to a senior official at the Department of Finance. "The circumstances by which this office became aware of this amendment of the FoI Act were entirely unsatisfactory, " Whelan wrote, adding that becoming aware of the changes from a member of the public "placed this office in the unenviable position of not only being unable to provide accurate, up-to-date information in response to an enquiry, it also created an impression of being out of touch with FoI development, centrally".

O'Reilly was said to have "concerns" about the decision to exclude documents created in Health and Safety Authority investigations from the FoI legislation. "More importantly, " the letter added, "the commissioner is concerned at the manner in which this particular amendment was effected.

It is entirely undesirable that amendments should be effected in such a piecemeal fashion which tends to favour the sectional interests of particular bodies over and above the purpose and principles of the FoI Acts generally."

Shoddy treatment Details about this shoddy treatment of the commissioner are contained in an unpublished report which O'Reilly submitted last month to the Oireachtas Finance Committee. In the report, the former journalist concludes that "a culture of secrecy continues" within the public service.

O'Reilly's report, which has been seen by the Sunday Tribune, is the first review of the justifications made by the 15 government departments for excluding certain bodies and information from the provisions of the FoI Act, which was introduced in 1997.

For the first time all government departments have reviewed the policy areas where they are not required to disclose information under the FoI Act. O'Reilly has given her assessment of these 15 reports to the Oireachtas Finance Committee, chaired by Fianna Fail Laois-Offaly TD, Sean Fleming.

O'Reilly's unpublished report shows that secrecy is the dominant theme within officialdom. "I am concerned that quite a few public bodies of some significance will remain outside the scope of the FoI Act and there does not appear to be any specific timeframe for their inclusion, " O'Reilly states.

The list of bodies not covered by FoI includes An Garda Siochana, the Office of Refugee Applications Commissioner, the Office of the Refugee Tribunal, the Private Security Authority, the Central Bank, the Financial Regulator, the Adoption Board and the Personal Injuries Assessment Board. A decision has yet to be made about the new garda ombudsman as O'Reilly, more in hope than anything else, writes, "one could expect it to be made subject to the FoI Act on the same limited basis as applies to the Office of the Ombudsman".

There is a real sense of exasperation in O'Reilly's report.

"Given that the FoI act provides very strong protections for those interests which require to be protected, it is difficult to see why the Act has not been extended to all public bodies, " she observes.

Deep concerns It is clear from the report that the commissioner is not just fighting against a culture of secrecy. She faces a deliberate decision to restrict the open flow of information to the public. "Regrettably, there is a growing number of non-disclosure provisions in individual pieces of legislation. The number now being reported on exceeds 150 instances, " O'Reilly reveals.

One third of these non-disclosure provisions have been introduced since 1997. The conclusion from the commission is damning. "This shows that a culture of secrecy continues, " she states, adding "there can be no doubt but that it hinders the achievement of a simple, transparent and consistent approach to the treatment of information in public bodies."

In her report, O'Reilly reviews the non-disclosure preferences of each government department. Among the revealing details that emerge is an argument from Finance that documents relating to the Dormant Account Fund be excluded from the FoI Act.

O'Reilly disagrees. Interestingly, for political observers, she also wants the documents created by the Constituency Boundary Review Commission to be covered by the FoI Act.

The information commissioner differs with the Department of Finance over the status of the National Development Finance Agency and the National Pensions Reserve Fund. "They should be subjected to the highest possible levels of transparency and accountability and should not be placed, de facto, outside the scope of the FoI Act, " she concludes.

The unpublished report also reveals that the information commissioner recently found herself out of step with the Department of Justice over the exclusion of the new Private Security Authority from FoI obligations. The PSA will supervise private security firms and introduce a licensing regime for bouncers. "I am somewhat surprised at the decision not to include the PSA because I hold a view that there is a compelling public interest dimension to the regulatory environment surrounding the private security industry, " O'Reilly notes. The information commissioner takes a similar line in relation to the exclusion of the Refugee Act from FoI provisions. A warning is also sent out relating to the current review of the Official Secrets Act.

A losing battle?

In the report it emerges that the education department is maintaining its long-standing view that section 53 of the Education Act, 1998, which deals with information in school inspection reports, should continue to be outside the scope of the FoI legislation.

Last year, O'Reilly lost a court battle to allow the release of this information.

"Overall, given the societal role of the department and the extent of its interaction with citizens I find it disturbing that section 53 of the Education Act, 1998 has been found by the Supreme Court to be totally exempt from the scope of the FoI Act, " O'Reilly says.

O'Reilly also questions the wisdom of having a blanket ban on the publication of papers created by the Commission to Inquire into Child Abuse and the Residential Institutional Redress Board.

"It seems to me that the prohibition on disclosure could be time-modified to an extent which would, for example, allow archivists or historians of the future have access to such information, " she recommends.

Sean Fleming's committee will in the coming weeks have to adjudicate between O'Reilly and the 15 government departments. The committee will make a recommendation to the government. Making as many public bodies as possible open to "the scrutiny of the FoI Act is compelling", O'Reilly says.

But the information commissioner may be losing her case. In a response to her concerns about keeping her outside the loop on the changes at the Health and Safety Authority, Finance was offering no apologies, only the recommendation that the commissioner may "wish to consider other procedures to monitor legislation".

EMILY O'REILLY ON. . . .

Department of Finance:

'[Development Finance Agency and Pensions Reserve Fund] should be subjected to the highest levels of transparency' Department of Education:

(on school inspection reports) 'I find it disturbing that section 53 of the Education Act is exempt from the scope of the FoI Act' A new garda ombudsman:

Should be 'subject to the FoI Act on the same limited basis as applies to the Office of the Ombudsman'