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Dáil Éireann debate -
Tuesday, 11 Mar 1997

Vol. 476 No. 2

Freedom of Information Bill, 1996 [ Seanad ]: Second Stage.

I move: "That the Bill be now read a Second Time."

I have great pleasure in speaking to the Government's Freedom of Information Bill. It arrives in this House following a most constructive debate in the Seanad where the Bill received the support of all sides. I was happy to accept positive suggestions from all sides to strengthen the Bill's commitment to openness. We all want to adopt the most effective mechanisms for ensuring the culture and practice of secrecy in public bodies are set aside for good. Information is power and access to information is fundamental to the reform of our democratic institutions to create genuine openness and to empower the ordinary citizen.

The Bill has drawn on best practice abroad and, in coming late in the day to this legislation, we have been able to draw on a wealth of legislative models and practical experience in other countries. I welcome the work of the Select Committee on Legislation and Security in enhancing openness and, in particular, their recent report on the review of the Official Secrets Act. I will return to this issue later.

What is freedom of information? Freedom of information is a legal right for every person to ask for and get access to records held by public bodies. It creates a new legal right for citizens to see public files. It recognises in law that public bodies should be directly accountable to the ordinary public they are there to serve. Freedom of information overturns the presumption of official secrecy set out in the Official Secrets Act and replaces it with the legal presumption that the public has a right to know.

The Bill carries a mandate to the public service to provide the public with access to information to the greatest extent possible consistent with the public interest and the right to privacy. That mandate is contained in the Long Title to the Bill. This Bill will mark a permanent change in the way public business is done. Giving people a legal right to know what public bodies do and what information they hold is extremely important because public services touch every aspect of our lives — as parents, as patients, as residents, when we pay tax or draw a pension.

The public bodies to be covered under the Bill include central Government Departments and their subsidiary agencies, including the Blood Transfusion Service Board, county councils and health boards, other public boards and semi-State organisations and organisations which are substantially publicly funded, such as secondary schools, voluntary hospitals or organisations contracted to provide services for people with disabilities. In case there is any confusion, the list in the First Schedule to the Bill is of bodies to be included, not those to be excluded.

When this Bill is in force, every person will have a legal right to see what is on his or her files held by public bodies and to correct that information if it is wrong. The Bill carefully protects personal privacy and personal information will not be available in the normal course to third parties. Community groups will be able to look at policies and plans which affect their community. This will include information on road repairs, waste disposal and recycling and information on issues which are important for the quality of daily life. People will be able to look at their tax and pension files. They will be able to see what happened to their application for a grant or how their dealings with any public body are being handled. People will be able to see how public bodies spend their money, how priorities are set and reasons for delays. Freedom of information will give the public the right to know how and why decisions are taken. Public bodies will be legally obliged to give answers to the public they serve.

Governments and Government bodies will become more accountable when information is out in the open. Freedom of information, everywhere it has been introduced, has brought about more open government and better administration of public services. Doing business in the open is the best guarantee of efficiency.

What is in the Freedom of Information Bill? At the very heart of freedom of information is the creation of a new legal right for every person to access any information held by a public body. This right will place an obligation on public bodies to provide the public with information when they look for it. Complementing this, a powerful mandate for openness and access to official information is set out in the Long Title. This establishes that the purpose of the Bill is "to enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy."

Since the foundation of the State, public bodies have worked in a culture where secrecy was the norm. Overturning the practice and philosophy of three quarters of a century involves a radical change. For this reason, the Bill sets out a range of key measures to enable, support and enforce this fundamental change.

Recognising that the public need information to get information, the Bill requires that each public body must publish information on its structures, functions and the categories of information it holds. This is so that members of the public can find out which public body has the information they are looking for and can learn what kinds of information are available.

The Bill places a legal duty on public bodies to help members of the public in making requests, so the public can pinpoint the information they want to see. It also requires that the public be encouraged to make requests for information under the Bill where they would otherwise not be able to access the information they seek.

When this Bill is in force, every person will have a legal right to correct any personal information on them on public files where it is incorrect, incomplete or misleading. In addition the Bill provides that each public body publish its internal rules and guidelines which it uses in decision making. In this way the public can be informed in advance as to the ground rules and basis on which their application for any grant or benefit will be judged. The Bill provides that, where a public body fails to publish such guidelines in full, nobody can be placed at a disadvantage where they might have been able to qualify for something if they had known the full rules.

The Bill requires public bodies to give reasons for the decisions they make to the individuals concerned. So, for example, when a public body turns down a grant those affected will have a legal right to the reason for that decision. The Bill also requires that people are told what the appeals mechanism is for challenging any such decision.

Taken together, these changes confer important and powerful new rights on individuals in their day to day dealings with public bodies. These provisions of the Bill set out important guarantees that public bodies are fair and seen to be fair in their dealings with the public.

The public's right to know will be backed up by a powerful and independent appeals system which is the cornerstone of the Bill. Experience abroad has shown that an effective appeals system is the best guarantee that the public actually get the information they look for and that public officials carry out to the full their legal duty to provide information.

The Bill establishes the Office of Information Commissioner which will act as an independent watchdog to ensure the public's right to know is upheld and not blocked. The commissioner will have power to issue binding rulings and to overturn decisions to withhold information. He or she will have power to examine all the documents in any case and to send for and examine witnesses. In the normal course, an unfavourable decision on a request for information will be reviewed, in the first instance, by a higher official in that organisation. If the decision is still not satisfactory, there is a right of appeal to the Information Commissioner. The onus of proof is on the public body to show why the information should not be released. As a result of the fine track record he and his office have as the people's champion, the Government have asked the Ombudsman, Kevin Murphy, to be the first Information Commissioner.

The commissioner will develop, protect and enforce the legal right of the public to get information. He will enforce the legal duty of public bodies to supply information. The Office of Information Commissioner will be a separate and independent office with its own staff.

The commissioner will have power to report to the Oireachtas on how the legislation is working and its operation in any case to which he wants to draw attention. He will have a role in promoting a more open attitude to release of information generally by public bodies, whether or not it has been requested. He will be able to investigate how any individual public body is meeting its legal obligation to provide information to the public.

Like freedom of information the world over, there are certain exceptions to the automatic right to see information. These exceptions are similar to those in comparable legislation elsewhere — Sweden, the US, Australia, Canada, New Zealand, and consist of those areas which commonsense requires should remain as confidential — information which could jeopardise security or law enforcement, breach legitimate personal privacy of individuals, or where, for operational reasons, release of the information at a particular time would be premature. These exemptions are sensible and balanced. The Bill will not be a charter for crime bosses or drug barons and will protect the criminal investigation process. Companies doing business with Government bodies can be assured that commercially sensitive information they provide will be protected.

Generally speaking, the exemptions are discretionary, not mandatory. They are "Yield" rather than "Stop" signs. They permit information to be withheld, but do not oblige or require it to be withheld. They are subject to two vital tests whose purpose is to ensure that exemptions are not abused. First, release of the material must be assessed as harmful to the interest concerned. In other words, it is not something about security but something which would damage security. Second, most exemptions can be set aside where the balance of the public interest favours disclosure.

The purpose of the exemptions is not to inhibit disclosure but to protect information in circumstances where its disclosure could be contrary to the public interest. Subject to that public interest concern, any discretions under the Bill are intended to be used to the greatest extent possible to provide access to information in line with the mandate given in the Long Title. The provisions in relation to exempt information are set out in detail. The practical experience of freedom of information elsewhere suggests that openness is better served where exemptions are clear and specific.

A broad brush exemption allows more information to remain hidden rather than something which would harm law enforcement or security. Tightly drawn exemptions ensure the release of information is at a maximum. In the event of a public body using an exemption to refuse to grant access to a record, the matter does not end there. It will ultimately be for the Information Commissioner to decide on appeal whether access should be granted.

In exceptional cases, where the release of information would prejudice law enforcement, defence, security, or international relations and the matter is sufficiently sensitive and serious to warrant it, a Minister may issue a certificate. This effectively removes the avenue of appeal to the Information Commissioner. Instead, a certificate will be reviewed by Cabinet colleagues and must be withdrawn where a review finds insufficient grounds for its use. An appeal can also be made to the High Court.

A number of requirements must be met before a certificate can be issued. First, the matter must be likely to prejudice a key matter under either of the exemptions mentioned. Second, the matter must be of sufficient seriousness or sensitivity to justify the issue of a certificate. If not, the courts will so find.

Experience in common law jurisdictions abroad has been that certificates have rarely been used and only in the early days of freedom of information. I emphasise that the intention of the Bill is that a certificate should be issued only on a most exceptional occasion where the nature of exempt information is such as to justify excluding the Information Commissioner from access to the records concerned.

This Bill effectively turns the Official Secrets Act on its head replacing the presumption under that Act that all information is secret unless expressly authorised for release with the presumption that all information can be made public unless its release would give rise to specific harm. The Bill amends the Official Secrets Act accordingly.

As I mentioned, the Select Committee on Legislation and Security has also recently issued a very good report on the Official Secrets Act. A key recommendation of that report is the repeal of the Official Secrets Act and its replacement by criminal sanctions in relation to espionage and the unauthorised disclosure of specific categories of information and civil sanctions in relation to other breaches. The committee's report suggests in paragraph 5.10 that this be done by either new legislation providing for such matters or as part of criminal justice legislation. These recommendations anticipate and complement this Bill.

I wish to put on record my strong support for the committee's report. In line with the Government's commitments to act in this area, I look forward to early action on the matter by the Department of Justice in whose remit the Official Secrets Act lies.

We are concerned to ensure that, when people look for information, it will be readily available, that teething troubles will not derail the principle and purpose of the legislation and that foreseeable steps are taken to have a user friendly system which works. Within the public service, a special group is overseeing the practical steps Departments must take to make access to information a reality when the Bill is enacted. These include reorganising the filing and file retrieval systems and the training of staff. The Bill creates a statutory duty on the Department of Finance to ensure these practical steps are taken to make access to information work. There will be a special unit in that Department to drive the working of the Bill when passed.

There is a lead-in time of one year from the passing of the Bill to ensure everything is prepared and can run smoothly from day one. Because all internal rules and guidelines will be published from day one and will be equivalent to the force of law, Departments must ensure these are complied, scrutinised and rationalised in time for the Bill's starting date. Other important public bodies are automatically included in this first phase — they are listed in the First Schedule — and county councils and health boards are automatically included six months later at the most.

The Long Title sets out the purpose of the Bill as, among other things, enabling the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy. It is the purpose clause which guides interpretation of the discretions offered under the Bill for the release of information. It is the mandate given to Government Departments, to the Information Commissioner and to the courts in deciding on queries under the Bill.

Part I contains standard provisions on Short Title, commencement and interpretation of various terms used. Part II is concerned with access to records and establishes a legal right for the public to access records held by public bodies. It sets out arrangements for making requests and determines times within which public bodies must respond and the ways in which access may be granted. In general, people must be given the information as soon as possible and within 20 working days. Public bodies must publish information about themselves, the information they hold and the internal rules and guidelines used in decision-making. This Part also deals with deferral and refusal of access to records. It sets out procedures for internal review, establishes rights for each member of the public to access reasons for decisions directly affecting them and to have personal information held by a public body amended where such information is incorrect, incomplete or misleading.

Part III sets out a series of related measures to protect information relating to key areas of Government activity. Information may be protected where its disclosure could damage the security or defence of the State, international relations or law enforcement. Matters before Government or information likely to prejudice the operations of Government may also be protected for a period. In addition, information relating to third parties may be protected where disclosure may constitute a breach of confidence, invasion of privacy or damage to commercial interests. Many of the protections outlined can be set aside where the public interest would on balance be better served by the disclosure rather than the withholding of the records in question.

Part IV establishes the Office of Information Commissioner and sets out the functions and powers of the Commissioner and the procedures for review of decisions under the Bill. In addition, the Commissioner is required to keep the operation of the Bill under review and may carry out investigations into procedures adopted by public bodies for the purpose of compliance with its provisions.

Part V presumes a decision to have been made in the event of failure by a public body to reply to a request. This is to allow for immediate access to the appeal system. It provides for appeals to the High Court, legal protections for the release of information under freedom of information, exclusions from the Bill, charges and the amendment of the Official Secrets Act. It provides qualified privilege to authors of documents and those who release them under freedom of information.

Freedom of information commands support across party lines. This was most apparent in the recent debate on the Bill in the Seanad. In this regard I acknowledge the contributions of Senators Roche, Lee and Dardis. I also acknowledge the contributions of Senators Howard, Sherlock, and O'Sullivan. Arising from that debate, the Bill has been amended to take account of these contributions. I look forward to a similarly constructive and informed debate in this House.

Every country which has introduced freedom of information has seen significant improvement in the quality of public administration and in the accountability of public services. I have no doubt that this Bill will quietly enhance democracy by making Government bodies more accountable to the public they serve. It will create a new climate of openness. Because information is power, it will transfer power to ordinary people from those behind closed doors. Freedom of information will mark a profound and lasting change in the way public business is done.

I commend the Bill to the House.

I welcome this Bill but must say some critical things about it and hope they will not be taken personally by the Minister of State or by her colleagues in the Labour Party. The Bill promises much but is in danger of delivering less than it promises. It is confused. Perhaps this is too little, too late from the Labour Party. It is not the radical Bill which I expected and which had been promised in countless press briefings over recent years. However, I commend the Minister of State for her personal pursuance of this matter, although I have some criticisms of the Bill.

Many of the aspects of the Bill are conservative and constrained and it is confused in many areas. I hope I am not being too uncharitable and I will seek to defend the Bill as I make my points. On a positive note, it gives us a good foundation to put much needed administrative reform on the Statute Book. If the Minister of State is willing to listen to what is said in the House and accept the views of Members, we can together make real administrative reform which will benefit Irish people and politics. It has been thoroughly discussed by my colleagues and other Members in the Seanad and much has been added to the Bill.

Fianna Fáil is committed to administrative reform. In the 1994 negotiations between the Labour Party and Fianna Fáil following the collapse of the last Government administrative reform was a major item on our agenda. It is ironic that Fianna Fáil proposals that were agreed between the two parties form a substantial part of the current Government's programme. I am not unhappy about that and celebrate it, for it appears that for once we got it right.

In stark contrast to the Bill the Minister of State is introducing, Fianna Fáil's proposals were not encumbered by bureaucratic procedures but simply set out the rights citizens should have in public administration. Those proposals broke new ground in that they sought to codify, in clear details, areas where the administrative system could withhold information. The Fianna Fáil proposals can be seen as the precursors to legislation removing the now ridiculously outdated Official Secrets Act, 1963. The Minister of State regards that Act as an anachronism which should be consigned to the shredder or the archive, with which I agree. It is ludicrous legislation which was brought in on the assumption that everything was secret.

On taking office, the Taoiseach said the Government would operate as behind a pane of glass. That pane of glass, as produced today by the Minister of State, is not only very smoky but probably bullet-proof also. The goods delivered today fall far short of the description given in the bill of sale. If politics were subject to the remit of the Director of Consumer Affairs, the Labour Party could be sued for false advertising. The ink is hardly dry on the serial press releases from the office of the Minister of State promising a brave new era of openness, transparency and honesty. This Bill falls far short and is far too conservative, providing safe sanctuary for those Labour totems. This Bill is a minimalist and disappointing administrative fig leaf for real openness in Government. Fianna Fáil will not oppose the Bill. We have no objection to the very modest improvements being introduced.

The Bill is unsatisfactory from any objective viewpoint. I will set out why and explain the Fianna Fáil position. I also want to expose the failure of the Government in general, and the Labour Party in particular, to live up to its most important commitment. The reason this Government was cobbled together in the first place was ostensibly to point the light into the furthest arcane regions of the public administration. This Bill is proof positive of the failure by the Government to deliver not only on its most important promise but to justify its reason for coming into existence.

This is the second Freedom of Information Bill to come before the Oireachtas in the life of this Government. The first was introduced by Fianna Fáil in the Seanad. That Bill, and a position paper published by my predecessor as Fianna Fáil spokesperson for equality, Deputy Woods, cogently set out the Fianna Fáil position. What we proposed in the Fianna Fáil Bill goes far beyond what is provided for in this Bill. The central premise of the Fianna Fáil position is that the Official Secrets Act, 1963, must be repealed. Until this is done there will be no legal basis for the Minister of State's claim that the presumption in relation to official information is for disclosure.

The claim made for this Bill, that it will shift the presumption in relation to official information from secrecy to disclosure, is unfounded. First, there is the glaring failure to repeal the Official Secrets Act. This is compounded by the invention of the Minister of State of a ministerial licensing system for withholding information. This system is itself totally flawed as it provides for the most awkward and inappropriate political intrusion conceivable. Any such licence, however well justified, will be the subject of political contention. Furthermore, the system devised by the Minister of State for ministerial orders will remove this failure to disclose from the appeals mechanism, which is totally unacceptable. The appeals mechanism is itself more an obstacle course rather than an access point to obtaining information. It appears to be back to front, inside out and upside down.

The appeals system in the Bill is based on appeals by the citizen against a failure to disclose, based on one of the innumerable exemptions the Minister of State has devised. That flatly contradicts the claims made for the Bill that it will shift the presumption away from secrecy towards disclosure. If the presumption was in favour of disclosure, then the appeal would have to be made by the public authority to the information commissioner. This is why it is upside down. Why should the citizen have to make the appeal to the information commissioner? Why does the authority or the Minister, before putting the stamp of secrecy on a matter, not have to go to the commissioner? It is ludicrous practically and perverse legally that the onus to appeal non-disclosure should be put on the citizen and not on the public authority.

Fianna Fáil believes that the presumption should be in favour of disclosure. In practical terms, this means that the appeals system envisaged in this Bill should be reversed. If a public authority believes that it is entitled to an exemption, then the onus should be on that public authority to actively seek and justify the exemption to the Information Commission. It is ironic that a Labour Minister who has preached endlessly on the need for access should put the considerable and complex practical difficulties of making an appeal onto the ordinary citizen. Putting up a case for a successful appeal will, necessarily, be complex in many instances. This appeals system puts an unnecessary and very onerous difficulty on the citizen seeking to obtain information. Politically, it is clear that the Minister of State has been mugged by the mandarins.

The appeals system should not only be reversed, but should be supplemented by a confidentiality list. Under Fianna Fáil's Bill, rejected by the Government, any information that is exempted must be included in a confidentiality list. When information is exempted from disclosure, a general description will be contained on a publicly available disclosure list. The description should be sufficient to enable the public to challenge the inclusion of the information on the list. This is a much simpler method for allowing the public access to information which they deserve to have. The Minister of State emphasised areas where information would be available to the general public. However, they will have to go through a complex procedure to get that information and the Minister of State's work has been compromised by that.

The faults in relation to the provision of general classes of information is even more glaring in regard to the provision of environmental information. Existing policy is driven by the EU directive on freedom of access to information on the environment. The directive requires public authorities to make information relating to the environment available to citizens. This directive was implemented in Irish law by Fianna Fáil while in Government in 1993 and was replaced in 1996, albeit with few changes. In 1993, this was a considerable advance on the existing situation. Apart from these directives, and some provisions in the planning Acts, Irish law contains no adequate provision for giving an individual the legal right to information on the environment. This Bill provides none either.

There is a general recognition that the current position is inadequate. The standards set out in the directive were envisaged as minimum. The Irish regulations have hardly advanced from their original minimal provisions. They still incorporate nearly every optional exemption contained in the directive. Considerable confusion has arisen as to which public authorities are covered by the regulations. Perhaps the Minister could enlighten us on this. The one month time limit for responding to a request for information is too long and vague. The response given often falls far short of the information sought. Similarly, the discretionary grounds for refusing to give information when requested are too vague and facilitate evasion. There are no provisions for copies of information to be made available.

The 1995 review of the regulations carried out by the Department of the Environment highlighted many of the deficiencies I have outlined. Unfortunately, the regulations introduced in 1996 made only modest changes and do not resolve the serious difficulties now being experienced. There was a definite expectation that the Government's long promised Freedom of Information Bill would address the issue. It has not. Perhaps the Minister will contact the Department of the Environment to investigate some of the deficiencies.

The Bill fails to properly address the issue of access to information on the environment. The Environmental Protection Agency and An Bord Pleanála are excluded from the list of agencies covered by the provisions of the Bill. Fianna Fáil supports the EU position that environment information should be subject to a specific statutory right of access. This Bill will not come into effect until one year after its passing into law. In the case of local authorities this can be extended to three years.

No, it is 18 months.

I beg the Minister's pardon. The time limits for responding to requests for information proposed in this Bill are unacceptable from the point of view of environmental information. In this Bill a 21 day time limit is envisaged. Under the environment information directive, the time limit is one months. This will lead to a situation where an individual citizen would have a statutory right of access to information under the Government's Bill within a shorter time limit than for environmental information under the 1996 directive.

The Bill further provides for a wide range of exemptions that are unacceptable in the context of environmental information. These include unreasonable disruption to the work of the public body involved. It is against this background that Fianna Fáil recently published a party position paper on environmental information and a Private Members' Bill which will remedy the situation. The Fianna Fáil Access to Environmental Information Bill, 1997, will provide a much more liberal measure of access within a much tighter timeframe. The Bill will also provide a speedy and inexpensive appeals system. Fianna Fáil is seeking the support of the Government for this Bill. In any event my party is committed to implementing its provision on our return to Government.

By having a statutory basis to the right to environmental information, it will be possible to provide regulations which can be widened further in the future as circumstances change and develop. The appeals system provided for in the Fianna Fáil Bill will allow for a simple, inexpensive and binding process. At present the only recourse in the event of information being refused is the Ombudsman, whose recommendations are non-binding or judicial review which is prohibitively expensive. The appeals procedure we envisage will ensure that qualified personnel adjudicate on these issues.

Fianna Fáil's Bill will also provide for a schedule of charges to applicants. This will ensure that the current position where applicants are effectively discouraged by outrageous charges for information that is often readily available cannot continue. The time limit for provision of information will also be increased to 14 working days. The timely provision of the information being sought is vital to its effective use in many situations.

The Fianna Fáil policy initiative and accompanying legislative proposals on environmental information lay the foundations for allowing participation in an active and informed partnership for the formulation of environment policy. Fianna Fáil has set out its detailed legislative proposals to secure real openness in Government. The Bill on freedom of information introduced by our spokesperson for the public service, Senator Roche, in the Seanad last year, together with the Bill introduced more recently by our spokesperson on the environment, Deputy Dempsey, form a comprehensive and cogent set of proposals.

The Government defeated Senator Roche's Bill.

No, we did not. We accepted it in the Seanad.

Yes. The Minister of State promised something better but she has singularly failed to deliver on all that was good in the Bill. The Fianna Fáil Bill on environmental information is a direct response to the failure of this Government Bill to address the issue of environmental information. It is on the Order Paper. If the Minister of State is serious about openness she should support it.

On balance, along with many other agencies, we welcome this Bill. The Minister is probably aware of two principal concerns about the Bill.

First, it does not contain any guarantee that its provisions will begin to affect the Garda Síochána by any given time. This can be deferred indefinitely. Second, An Bord Pleanála is not mentioned in the list of bodies covered by the Bill. These two matters are covered in section 1, subsections (2) and (3) and in paragraph 5 of the First Schedule.

The gardaí will only come under the provisions of the Bill after the Government has promulgated regulations. It is only right to recognise that the functions of policing and planning involve matters which must be kept secret. Modern society demands that these functions are conducted in an accountable manner. Leaving these two bodies outside the remit of the Bill facilitates mismanagement and corruption. Perhaps the Minister of State will allude to these two areas when she replies.

The Minister of State referred to amendments tabled by my colleagues in the Seanad which were accepted. The Bill was discussed at length in the Seanad and, undoubtedly, it will receive further scrutiny on Committee Stage in the Dáil. The Select Committee on Legislation and Security accepted the proposal of my colleague, Deputy Woods, that the Official Secrets Act should be re-examined. It is ridiculous legislation which deserves to be put through a shredder.

We support this Bill. Unfortunately, although it is a proposal of the Labour Party, it is conservative and confused. It will be much discussed in the coming weeks.

The Progressive Democrats welcome this Bill. It has already been amended by the Seanad and is the better for those amendments.

The Minister of State said the Bill marks a permanent change in the way public business is carried out in Ireland. I hope that will be the case. The proof will be seen in how the exemptions are determined and utilised by State authorities, public bodies and future Governments. Traditionally, the concept of democracy in Ireland was associated simply with the right of the people to elect a Government. Nowadays, there is a growing recognition that there is more to democracy than that simple test. The concept of democracy now requires not just a Government elected in free elections but a Government that is open and accountable. The job of the Opposition is to hold the Government of the day to account.

My experience in the four years since my election and in dealing with two Administrations is such that I approach this legislation not with cynicism but with genuine fear. The heart of the Bill is in the right place and the Minister of State has dedicated a great deal of time, energy and personal commitment to it. However, the ethos of the Bill sits uneasily with the record of this Administration for accountability by way of parliamentary questions. My perception of the Bill is coloured by my lack of confidence that the ethos of the Bill will be translated into the workings of this House. The Dáil is the major tool of accountability and one cannot legislate to compensate for the manner in which Members of this House are routinely deprived of information to which they are entitled.

Another element of democracy is that individuals ought not be treated as subservient to the Government of the day or to the democratic institutions of the State. This Bill will be a considerable step towards achieving open Government. Ireland has lagged behind other democratic States in introducing measures to create open Government and institutions. Each section of the Bill must be carefully scrutinised to see if its provisions truly enable the public to hold institutions and those who exercise public power to account. That power derives from the will of the people and the true test of the Bill will be whether people in power serve the needs of the individual citizen.

The most important provision is section 6 (1) which creates the right of access to records. However, that right is subject to a wide range of exceptions. The menu of exceptions must be carefully scrutinised and challenged to ascertain whether they are truly legitimate or simply provide a refuge for those who do not wish to co-operate with the ethos of the Bill. The Bill was given a tortured passage through various Departments. Some Departments are less willing than others to adopt the ethos of open Government and some of them have prospered behind a culture of secrecy. It is important to realise, therefore, that the Bill has been compromised by the deliberations and slow passage it received through some Departments.

There is little point in legislating for the principle of openness and access to information if everything sensitive to the authorities is to be excluded by exemption. The strength and radical nature of this legislation could be nullified by a too wide range of exemptions. The Minister of State said the exemptions are discretionary, not mandatory. They permit information to be withheld but they do not require it to be withheld. They are subject to two vital tests whose purpose is to ensure that exemptions are not abused. That is an important consideration because people who wish to withhold information will hide behind exemptions.

The first test is that the release of the material must be assessed as harmful to the interest concerned. The second test is that most exemptions can be set aside when the balance of the public interest favours disclosure. How will we determine what is the public interest? We can look at practical examples of how this and previous Administrations interpreted the public interest in a manner that might be suspect under the ethos of this Bill. In the case of the beef tribunal, for example, the questions originally posed were about export credit insurance. That information was sought through parliamentary questions and its release was cleverly avoided by crooked replies to those questions. As a result there was a tribunal of inquiry. Had that information been subjected to the test of whether it was in the public interest that it be released, convincing and powerful arguments would have been put forward by people in the Department of Agriculture, Food and Forestry against its release. The public interest at that time would have been seen as protecting our greatest export and the integrity of our meat export trade. Members will recall that Deputies who dared to ask questions about export credit insurance were accused of national sabotage.

I can envisage the Government of the day or the public body which has possession of certain information being determined to plead the public interest in order to withhold that information. That is the heart of the problem. We are not talking about information that is not sensitive or unremarkable. We are discussing sensitive information which will cause embarrassment, bring down Governments and initiate calls for the resignations of the heads of public bodies. No Administration will go to great lengths to hide information which is not of import. That is the problem. There would have been no need for a tribunal of inquiry into hepatitis C if the Department of Health, the BTSB and the then Minister for Health had provided more information. That is the truth of the matter. We are not concerned with routine information, we are discussing sensitive information which could cause the downfall of Governments.