Making her own populist plinth

The Ombudsman and Information Commissioner is at it again, pontificating about the importance of openness and transparency and taking wild swings at bodies and organisations which fail to meet her high standards. Last week, at the launch of her third annual report, Emily O'Reilly attacked the Government, the Department of Education, the Health Service Executive, The Central Bank, An Garda Siochána, Coillte, the Central Applications Office and many more great populist targets. Returning to a familiar theme, she made much of the fact that use by journalists of the Freedom of Information Act has declined since the introduction of fees in 2003. Apparently fewer than 1,000 media requests for information were submitted last year, compared to over 3,000 in 2003.

Ms O'Reilly had particular words of criticism for the Department of Education, which she accused of costing the taxpayer €300,000 due to its reluctance to release school inspection reports. Earlier this year, the Minister for Education approved the release of a limited form of inspection report, minus details of exam results and other data. Ms O'Reilly, insisting that parents were entitled to even more information concerning the academic records of schools, deemed it "unsatisfactory" that for many years the Department of Education had opposed even the limited forms of information now sanctioned by the minister. She lambasted the department for having brought about a situation whereby a citizen had taken a case on the issue to the High Court and Supreme Court at significant cost to the taxpayer. Since her appointment as Ombudsman three years ago, Ms O'Reilly has persistently put herself forward as some kind of scourge of those who deny people their democratic right to information. She has repeatedly launched attacks on those in public life who in her view seek to cover things up, and has built a populist plinth for herself on the issue of the, in truth, nominal charges for non-personal information requests introduced in 2003. In a manner that seems at odds with her public position, she has criticised the system over which she presides, making frequent assertions to the effect that information is a "right", which is massively compromised by charges she claims adversely affect accountability of public bodies. The moral content of the issue of charges for information is hard to divine from the facts. There is no charge for personal information, but a token charge of €15 for non-personal information. This is the category under which media applications occur. A drop of 2,000 applications means that Irish media organisations have reduced their investment in this kind of information-gathering by roughly €30,000. This tells us more about the media's commitment to its public responsibility than anything else.

The odd thing here is that anyone could feel that the remotest cause for sympathy arising from these charges. Journalism is a commercial business, so why should the taxpayer have to pick up even this rather modest bill for the trawling of newspapers they may never read? There is no issue here, yet, time and again, Ms O'Reilly is able to command media headlines and editorial comment for her opportunistic stances on this issue. And, for related reasons, nobody else in the media is moved to ask if this Emily O'Reilly who hungers and thirsts for openness and transparency be the same Emily O'Reilly who earlier this year went to the Supreme Court in an attempt to prevent an Irish father obtaining information in respect of the medical condition of his child. Last January, the Supreme Court issued a judgment in a case in which, for several years – a period extending back to the tenure of Ms O'Reilly's predecessor Kevin Murphy – the Ombudsman and Information Commissioner had pursued a course very much at odds with the public statements we have come to expect from Ms O'Reilly. The Supreme Court found the Commissioner was wrong to refuse a separated father who remained a joint guardian of his children access to his daughter's hospital medical records. Mrs Justice Denham said that the Commissioner had applied the wrong legal test, and should have approached the matter by acknowledging that a parent's entitlement to access the information is presumed and that its release is in the child's best interests. It was "unfortunate", the judge said, that the father's rights as a parent and guardian were viewed so "erroneously" by the Commissioner.

The proceedings began in August 2002, when Ms O'Reilly's predecessor affirmed the hospital's refusal to allow the father access to written records. The father successfully appealed to the High Court, and it was Ms O'Reilly, following her appointment in 2003, who appealed to the Supreme Court. It is likely that the total cost to the taxpayer of these proceedings ran well beyond the €300,000 Ms O'Reilly so stridently accuses the Department of Education of having squandered in another matter.