The Right to Information in a democracy is a human right. But does it carry with it a degree of responsibility to support public officials - a Right To Be Wrong?
It’s the kind of story for which FOI was invented. The head of the government sends a senior civil servant to the home of the chief of the police force, late at night, to tell him he might not have the full support of the cabinet at the next day’s meeting. The message is clear – he ought to ‘consider his situation’.
The next morning he offers to resign, in three month’s time. The answer from the head of government is clear – he has to resign now. He agrees.
The news is announced. The head of government lets it be known that the police chief has not been sacked – only the full government could do that.
Some months later, a legal investigation reports on the affair, confirming that the chief of police’s decision to resign was entirely his own choice. Questioned about the case, the head of government expresses his surprise at the chief’s decision.
The general public, by five to one, say they don’t believe him.
What’s the truth? The public record should decide the matter. But there’s a problem. There is no public record. As the report puts it:
“It has been striking how little documentary evidence is available. Important decisions were not formally recorded and were communicated orally. Such work practices make it very difficult to identify what decisions were made, by whom and for what reasons.”
It’s almost as if people in government didn’t want the public to know what happened.
The failure to record
Ireland's Freedom of Information Act 2014 confers a wide right of access to the general public to the records created in their name. But it doesn't make them create records. In a number of high profile political cases - such as the Banking Crisis of 2008 - the absence of written records has been identified as a major problem in identifying what went wrong.
That's probably not going to come as a surprise to Freedom of Information Officers. Ever since the law came into force, civil servants in every country have looked for ways to carry out business out of the sunshine: Private email accounts and Post-its, weird email retention rules. The experts may consider the 'chilling effect' of FOI a myth. But those of use who have worked in the public service know it happens: minutes written in a cryptic, uninformative way; documents rephrased to seem innocuous; or emails left unwritten in favour of a quick conversation in the corridor. (I confess, I've certainly done the last one).
For the civil service, it's a way of covering your back. But the long term consequences, as we've seen, can be a problem. Is it really just a case of public servants not doing their job?
The responsibility of power
Politicians are not the only ones who try to fit everything they do into a positive narrative. Their are other narratives, too. When the expense claims of former Defence Minister Alan Shatter were disclosed, much was made (on the front page of the Daily Star) of the fact that he had claimed €12 for a set of passport photos. Yet another case of wealthy individuals claiming petty amounts for personal items.
Except, as Deputy Shatter quickly pointed out, it wasn't. Travelling on an official visit to visit Irish troops in Lebanon, he was required to get an official visa, and was asked to get the pictures taken and submit an invoice. Now he was getting anti-Semitic abuse on social media.
Perhaps, for politicians, that's just part of the rough and tumble of the profession. Deputy Shatter is a major figure, a successful lawyer and well able to take care of himself. But what of the minor civil servant trying to handle a project which has not gone according to plan? What of the official working on a plan that might produce major improvements for the public - or might not?
Is there a case for a corresponding right, along with the right of access to information, to make mistakes? Do we need to develop a willingness to allow public servants to get things wrong? After all, in the private sector, failure is taken for granted: nine out of ten startups fail, and only one in ten movies makes money, and yet they still make a profit.
If we want good, innovative public services, do we not need to accept a Right to be Wrong?