An important element of public policy formulation is that expertise, skills and knowledge from persons outside of the public service are available to Ministers and Public Bodies when required. This often takes the form of Working Groups which may consist of both public servants and non-public servants. In light of the nature of communications between public officials and non-public servants in such Working Groups it is possible that some of these communications could be captured by the definition of a lobbying activity.
As stated in Section 4 above the Act provides (section 5(5)(n)) that communications between members of Working Groups may be exempt communications (and not regarded as lobbying activities) provided they meet the definition of a “relevant body” provided for in section 5(6) of the Act. In order for the communications to be exempt the Working Group must meet the definition of a “relevant body”.
A “relevant body” is a body which:
1) Is appointed by a Minister of the Government or a public service body;
2) Has at least one DPO and at least one person who is not a public servant; and
3) Conducts its activities in accordance with the Transparency Code which has been published by the Minister.
Public bodies should ensure that members of a Working Group are informed of the option to adhere to the Transparency Code and avail of the exempt communications relating to “relevant bodies”. If the Working Group decides not to not adhere to the Transparency Code, then members of the group who are not public servants or representing a public service body should be informed that communications made with a DPO as part of the work of the Group may be regarded as a lobbying activity. They may be required to register and submit a return of such lobbying activities.
The public body who established the Working Group is responsible for publishing any information relating to the Working Group which is required to be published under the Transparency Code. This information must be published on the public body’s website. (Section 7 below provides further guidance as to how this information should be published.)
The Commission has published a separate guidance note for public bodies on Working Groups and the Regulation of Lobbying.
Relevant groups must meet the criteria specified in the Transparency Code in order to be regarded as a “relevant body” (as defined in the Act) and to avail of the exemption set out in section 5(5)(n) of the Act.
In order to meet the requirements of the Transparency Code certain information relating to the Group must be published on the public body’s website as follows:
The above information should be in a prominent place on the website of public bodies and should be easily accessible.
In addition the Chairperson of the Group is responsible for overseeing and conducting the work of the Group in a manner which ensures that the Group operates in accordance with its terms of reference and in the public interest. The Chairperson will include with the final or annual report of the Group a statement confirming its compliance with the Transparency Code.
The requirements of the Transparency Code also apply to sub-groups of the principal group where the membership of the sub-group consists of at least one DPO and at least one person from outside of the public service.
Ideally the information should be published in as timely a fashion as possible, having regard to the public interest in safeguarding the integrity of the deliberative process. At a minimum, the information on the public bodies’ website must be updated at least every 4 months in relation to each such group. This timeframe is in line with the reporting requirements for returns of lobbying activities under the Act.
It is important to note that only communications which are made within the terms of reference of the Group may enjoy the exemption provided for by the Transparency Code, and only communications made during proceedings of the Group can be exempted. Communications made during breaks or outside of committee proceedings would not enjoy the exemption.
Public bodies should take the following steps having regard to the Transparency Code:
A recommendation contained in the Report of the first review of the Act, published by the Department of Public Expenditure and Reform suggested that the Commission might maintain a central repository or list of “relevant bodies” so that persons lobbying will know whether they must register communications made within meetings of the body. The Commission has established such a list and public bodies are requested to forward to the Commission the details of any “relevant body” under their aegis that is adhering to the Transparency Code.