Dáil Éireann debate -
Tuesday, 11 Mar 1997

Vol. 476 No. 2

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

Question again proposed: "That the Bill be now read a Second Time."

Ms O'Donnell

I agree with the ethos and spirit of this legislation. The key to the legislation in terms of its effect in providing open government will be the manner in which the exemptions, which are plentiful, are interpreted by the appeals commissioner or the body that retains the information sought. I was drawing a comparison with earlier cases in which it was deemed to be in the public interest to retain information when it was sought in the House. The beef tribunal would not have been necessary if legitimate parliamentary questions had been answered here. If the authorities at the time had been challenged with the definition of the public interest, I am sure they would have made a cogent argument for retaining the information sought. In their view it would not have been in the public interest to release the information because it would have exposed massive malpractice in the beef processing industry and have had implications for the Department of Agriculture, Food and Forestry.

The instinct to self-preservation exists in all bodies, including the human. It certainly exists in the body politic. Governments tend to preserve their interests and have gone to enormous lengths to retain information, the release of which would have prejudiced their being in Government. The collapse of a Government must be avoided at all costs and that applies to all Governments. Therein lies the real difficulty with this legislation.

A tribunal has reported on negligence in the BTSB which led to the infection of many people. From my first reading of the report it is clear the Department of Health, the BTSB and the individuals concerned were mindful of protecting their interests and withholding information that would have represented an appalling panorama of doom if released into the public domain. There was an instinct to cover up and that had to be sustained over many years by retaining information and failing to give Ministers sufficient information before coming into the House to reply to parliamentary questions. That was complemented by the instinct of Ministers to preserve themselves and their Governments from trouble. The report states that "there was a sort of vague irresponsible hope that the problem might go away".

In the hepatitis C crisis the authorities' interest in self-preservation was far stronger than the public interest. If they had been challenged by the exceptions in this Bill relating to the public interest, they would have argued it was in the public interest not to admit that the blood supply was contaminated. They would have said it was in the public interest to protect the State from widespread claims of negligence by the persons so infected. They would have argued to the commissioner or to their Cabinet colleagues that it was in the public interest that this information remained secret because public confidence in the blood supply was at stake.

Those are examples of cases in which Ministers, a State body and individuals would have argued the public interest was best served by the retention of information. Public bodies, authorities and Governments have no problem releasing information that is non-controversial. This legislation will be tested only in cases involving damning information which could cause the collapse of a public body or involve a large suit against the State. We must examine carefully the list of exemptions and the procedures in place for their use.

In the event of a public body using the exemption to refuse to grant access to information, there is provision for an appeal to the commissioner to decide whether its use of the exemption is proper. The Minister stated that in exceptional cases — these are the cases that cause problems — a Minister may issue a certificate which will remove the right of referral on appeal to the commissioner. When that right of appeal has been removed from the commissioner it will be reviewed by other members of the Cabinet. That is an interesting scenario because under the rule on Cabinet confidentiality one would never find out what happened in a particular case. The Cabinet operates collectively and decisions on retaining or releasing information would not be made public. The Bill provides for an appeal to the High Court, but major obstacles undermine its fundamental principle, the public's right to information. From my experience as an Opposition spokesperson trying to extract sensitive information by way of parliamentary question, I am not confident that this or future Governments will be forthcoming with sensitive or explosive information when their skins are at stake.

It has been stated that section 6 reverses the existing principle under the Official Secrets Act that everything is assumed to be confidential. I will attend a briefing meeting with the officials on this matter because I am not sure that this is the case. Section 4 of the Official Secrets Act effectively makes it a crime to communicate official information unless such communication is permitted. Section 6 of this Bill extends considerably the circumstances in which some communications are permitted. In so far as it goes, that is a move in the right direction, but it does not abolish the mindset that treats official information as secret unless there is an exception. To do that we would have to get rid of the Official Secrets Act.

The Select Committee on Legislation and Security recently published a detailed report on a review of the Official Secrets Act. The extent of the committee's concerns are reflected in its recommendation that the Act should be repealed at the earliest possible date. Time is of the essence if we are not to put this legislation on the Statute Book in a half-baked manner. It is important that real work continues on the repeal of the Official Secrets Act. The committee noted a number of flaws in that Act. Under its provisions a document acquires confidential status simply by being stamped as such. A document can acquire unchallengeable confidential status by being certified as such by a Minister and even the courts cannot challenge that certification. There are serious doubts about the constitutional validity of this. The Act uses criminal sanctions where civil or disciplinary ones might be more appropriate and fails to distinguish between information the release of which would damage the national interest, and information which would not. It is not clear whether the Official Secrets Act allows a public interest defence.

I accept that in enacting the Bill the Government did not hide behind the Officials Secrets Act. Under section 32(1)(a) it is irrelevant whether a Minister has certified a document as secret if a person requests access to it. It is time to repeal the Official Secrets Act which should be done by amending this legislation or by introducing another Bill. This Bill is not due to come into force until a year after it is passed, so it should be possible to place a new Bill on the Statute Book by then to replace the Official Secrets Act.

I hope that access to records will not be treated in the same way as parliamentary questions to Ministers are dealt with in this House — in other words, by giving as little information as possible. It is important for this House to observe the right of access to information. Under section 15(5), the Minister for Finance must ensure that appropriate measures are taken by public bodies to train staff and to put organisational arrangements in place to breathe life into the spirit of this Bill. It is important that the House is kept informed of these developments.

No section requires public bodies to preserve documents. In the absence of such a provision, there could be a temptation to destroy records or documents which would be of interest to someone who subsequently requested access to them.

Section 6(4), which defines the types of records to which the public may have access, threatens to destroy many of the good aspects of this Bill. Subject to certain limited exceptions, people will not be entitled to access to records created before the commencement of the Act. Amendments were made to this section during Committee Stage in the Seanad. The Minister said it was the Government's intention to provide access to past records on a rolling basis — first, two years, then four years, six years, etc. While the Minister was willing to respond to the concerns expressed in the Seanad, further consideration of this issue is required.

It is important to instil public confidence in the new measures. We are a few years behind other democracies in providing access to information. If the Bill is passed in its present form, almost every request for access to information will be turned down, not on the grounds that the information sought was prepared in confidence or that it is commercially sensitive — such exemptions are provided for elsewhere in the Bill — but because the Bill does not cover records created before the Bill came into force. This could have a serious negative impact on public confidence in the new measures.

I do not understand the reason for the blanket approach adopted in section 6(4). The Minister's rolling back approach should start at the same time as the Bill comes into force — in other words, people should be allowed access to documents not less than two years old. In the Seanad debate, the Minister said it was a question of putting filing systems and access in order. Given that Departments will have a year and local authorities 18 months from the passing of this Bill until it comes into force, not to mention all the time they had since this legislation was mooted, there is room for progress on the issue of the right of access to documents created before the commencement of the Act.

I am also concerned about the 18 month implementation period for local authorities. The Bill, as originally drafted, allowed for three years but this was amended in the Seanad. It is important that changes are made at local level to allow access to information. Local authorities are run by county or city managers and his or her officials. We had an extraordinary situation recently where a councillor had to sue a county manager to get access to records. Many managers are willing to co-operate with elected representatives. Local authorities are playing an increasingly important role in the day to day lives of our citizens. There is no reason a culture of secrecy should prevail, so it is vital to replace it with openness.

Many people would like to know the extent to which "section fours" are still being passed by local authorities. Section fours cause political alarm bells in many local authorities because they override a planner's decision on a particular planning application. I am concerned that some local authorities have an appetite for section four motions. Many citizens look forward to the reform of local authorities, particularly in relation to the planning process. There is widespread concern about undue influence being placed on elected representatives in relation to planning decisions. It will be good for democracy if our citizens feel the planning process is divorced from political interference.

Section 19 does not deal with the issue of Cabinet confidentiality. Subsection (2) states that access cannot be granted if the record relates to statements made at a meeting of the Government. I do not expect the Minister to mention the Supreme Court decision in the Attorney General v. Hamilton case. Members of this Government and of the Minister of State's party were among the most vociferous critics of that decision and the most vigorous proponents for a referendum to change it. It is ironic that this Bill proposes to further consolidate the confidentiality of Cabinet discussions. Unless we deal with this issue and repeal the Official Secrets Act, we will have some way to go before we achieve open government to which this Bill aspires.

If the spirit of this legislation was translated into the replies to parliamentary questions, we would have a reformed democracy. The classic reply to parliamentary questions is that "the information sought is not readily available and could only be obtained by the expenditure of a disproportionate amount of staff time and resources". Such a reply hides a multitude, is crooked in its intent and is used to mislead this House when Deputies legitimately seek information on behalf of the people. This Government has a long way to go to match its stated commitment to openness with the ethos of this Bill and parliamentary procedures.

Minister of State at the Department of Finance (Mrs. Doyle)

The organisation and management of the public service is the biggest business in the State. General Government expenditure in the 1997 budget is equivalent to about 38 per cent of gross national product. There are approximately 219,000 public servants with a pay and pensions bill per annum of about £4.7 billion. Given the scale of this business there are bound to be difficulties in managing it. One of these is undoubtedly a problem of image. The civil and public services have made a major contribution to the growth and development of the Irish economy and society over many years. However, there may be an erroneous perception that the Civil Service is managed by faceless bureaucrats detached from the real world of commerce. Changing this perception for the better means much more than a new image. It is about creating more efficient and effective public services and delivering that message home to the general public. The time for this change is now.

There is a need to build on the foundation provided by the Constitution and existing law to strengthen the positive features of public administration and to create a basis in statute for addressing the practical difficulties facing public service management. Grounding the Government's programme for change and development in the public service in a series of substantial pieces of legislation sends a very clear signal to civil servants, politicians, and, most importantly, the general public that public service reform is a reality which is happening under this Government.

The Government's programme of legislation to reform, open up and streamline the day-to-day management of the public service is a key element of the strategic management initiative. While each individual piece of legislation is important in its own right, taken together the legislative programme forms a mosaic of reform and renewal. The long-term objective of this legislative reform is to transform the administration of central Government and deliver better quality and more efficient and effective public services to the citizen. Public service must be just that — a quality service to the customer, the public. In essence, the legislative programme of renewing the machinery of Government represents a new deal for citizens.

The citizen's right to have access to information is fundamental to this process of administrative change and development. The Freedom of Information Bill will empower individual citizens by giving them a legal entitlement to have access to official information kept on them by the State. The intention of the Bill is to ensure that members of the public may exercise this right to know to the greatest extent possible consistent with the public interest and legitimate rights to privacy. I will say more about the specifics of this in a moment. The Freedom of Information Bill fits into a process of change and development which will involve the implementation of the most substantial programme of reforming legislation in a generation.

A key element in this programme, the Public Service Management Bill, was published by the Government last Thursday, 6 March. This major Bill will empower the Civil Service to take measures needed to transform fundamentally the administration of central Government. Its fundamental objective is to provide a legal basis for the new management structure set out in Delivering Better Government. This statutory foundation will allow for a new relationship between Ministers and the Civil Service and will make possible the modernisation of the machinery of Government.

A further legislative initiative which dovetails with the Freedom of Information Bill is the legislation, which I have been directing through the Oireachtas, to empower committees of both Dáil Éireann and Seanad Éireann to compel witnesses to give evidence and to confer privilege when they do so. The Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill, 1995, will enhance the capacity of committees of the Oireachtas to act on behalf of the citizen in investigating matters of public concern. The new law will give power to relevant committees to compel witnesses to give evidence or produce documents and to grant them privilege and immunity from legal action if they do so. The Bill has passed through Committee Stage and Government amendments for Report Stage will be published soon.

The Ombudsman (Amendment) Bill will increase the powers and extend the remit of the Ombudsman to cover a number of key areas. Essentially, administrative matters in non-commercial State-funded bodies, which receive 50 per cent or more of their funding from the Exchequer, including non-medical matters of voluntary hospitals, will be brought within his or her remit — there might be a female Ombudsman one day. The Minister for Finance is currently finalising specific proposals to put to Government on these changes. It is also envisaged that an administrative procedures Bill will further empower the general public by introducing a code of practice or quality service statement which will guarantee stated levels and quality of service when dealing with the State administration.

Freedom of information is at the heart of the deepening of our democracy. By providing the citizen with a statutory right of access to official information the law will fundamentally change the nature of the relationship between the citizen and the State. It will alter the balance of power between institutions of the State and individuals to give greater advantage to the citizen. A new approach of openness and a culture of accessibility to official information will be generated. Information is power.

Up to now, the institutions of the State maintained the principle of confidentiality in relation to the business of Government. Indeed, until 1972, the State successfully maintained the position that Ministers could not be compelled by court order to produce official documents for inspection. Even today, costly, formal and time-consuming legal processes are required to access some forms of official information. This will change.

Experience in other countries has demonstrated the power of freedom of information legislation to change these matters for the better. I believe that a careful reading of the Bill before this House will show the following key changes. There will now be a statutory right to official information based on a presumption of openness. Necessary exemptions will be subject to an overall public interest test. A public register of information and guidelines to be used in decision making by Government bodies will come into play. There will be a legal obligation on officials to help citizens requesting information to identify and find what they need to know. There will be an onus on those who hold information to justify any refusal to disclose such information. There will be a powerful independent appeals system to resolve disputes between citizens and public bodies promptly and without undue expense.

While the legal changes brought about by freedom of information legislation are important for us in this House to consider, it will be in more practical ways that the individual citizen will see the benefits of this Bill. Greater transparency in policy making will generate more confidence in the system of governance as a whole. Client relationships with Government bodies will improve as individuals gain the reassurance of having access to records — people will know that their cases are dealt with fairly and impartially. An administrative culture which promotes openness rather than unnecessary secrecy will develop across the public services. Openness will itself encourage quality — our public services will become more efficient and effective. Freedom of information legislation will ensure that the highest standards are maintained in Government agencies in relation to accuracy and objective record keeping. The citizen will be made central to the democratic process because the citizen will, in effect, own the official information on his or her particular case which the public services possess.

Secrecy and centralisation of information — and, therefore, of power — is a major issue which all mature democracies must address. Lack of information clearly places a barrier to the public seeking to understand and participate in the democratic process. The Freedom of Information Bill will change this profoundly. Decision makers, both Ministers and officials, will now have to demonstrate greater transparency in policy making and a more comprehensive process of debate and consultation. Freedom of information will open doors to the ordinary citizen leading to a deeper and richer democratic society. When the Bill is passed there will be an intensive process of training in the public service to deal with the standards and quality of service required to provide the citizen with the guarantees set out in the Bill. The public will be made aware of their rights and entitlements to information.

When the Act comes into effect one year after its passing, the Minister for Finance will make regulations regarding its practical application. He, in consultation with other Ministers, will decide when certain sections of it will come into force. He will also draw up and publish guidelines on access and compliance which public bodies will have to follow. The process of adjusting to freedom of information will require a cultural change in the public services so that the citizen, the customer, is always right.

Mr. O'Dea

I welcome the Bill in principle. I listened carefully to what Deputy O'Donnell said and I agree with her. There is no move on the question of Cabinet confidentiality, which was specifically promised in the programme, A Government of Renewal, and is enshrined in section 19 of this Bill. Despite various Government promises, including one in the programme for Government to abolish the Officials Secrets Act, it remains firmly in place. I say that despite a rather vacuous section 45 which, whatever it does — and that is a matter for debate — it does not go any distance towards replacing the Officials Secrets Act.

The administration of this State has been infected by a culture of secrecy since the foundation of the State in 1922. That should not greatly surprise anyone because the system we inherited was that operated by the Civil Service of the British Empire, which was known to be the most secretive system of administration in the civilised world. That culture of secrecy infected and permeated our public administration virtually to date. In 1993 the then Fianna Fáil-Labour Government promised a fundamental assault on secrecy and wide-ranging legislation to eradicate it.

While I welcome the Bill in principle, and accept it is an immeasurable improvement on the heads of the Bill discussed almost two years ago by the Select Committee on Legislation and Security and concede it was improved somewhat by the debate during its passage through the Seanad, as the culmination of four years of effort to put freedom of information legislation on the Statute Book, it is a grave disappointment. It is a minimalist, carefully hedged in Bill which, if interpreted in a certain way will make very little practical difference to the administration of this country. The long list of exemptions and cop-out clauses are so vague and imprecise that they can be interpreted as the bureaucracy wishes. This effort will hardly qualify the Minister of State, Deputy Fitzgerald, for a place of pride in the open Government hall of fame.

Some parts of the Bill are defective in legal terms and I will deal with them at length on Committee Stage. Some parts of it do not seem to have any legal meaning and a number of its provisions are arguably unconstitutional. The main difficulty is that section 6, which allows citizens access to information in the possession of the bureaucracy, is so hedged in by vague and widely drawn restrictions that if interpreted in a certain way it would be rendered nugatory and ineffective. There is nothing in our experience in dealing with the bureaucracy, for which I have every respect, which suggests there will be a sea change in attitude simply because this legislation has been put on the Statute Book.

Section 6 contains a number of curious provisions. One of its subsections prohibits an individual who is a member of staff of a public body from gaining access to a personnel record that is more than three years old. On the other hand it permits such access where information is being used in a manner or for a purpose which affects, or will or may adversely affect the interest of the person. In the real world requests for such information will hardly ever originate from idle curiosity. Almost invariably a request will be made because the person in question wants to check what may be on his or her file that may adversely affect his or her chances of promotion or whatever. That provision is superfluous; it will give rise to needless legal difficulties and it should be deleted.

Section 8(4) states that in deciding whether to grant or refuse a request the decision maker must not take into account "any reason the requester gives for the request". That seems to conflict directly with section 10(1)(e) which states that a head of a Department may refuse a request where in his opinion it is frivolous or vexatious. By definition section 10(1) (e) involves the evaluation of the quality of the reasons adduced by the applicant. Section 8(4) conflicts with section 10(1)(e). It will give hostages to fortunes, will give rise to needless legal difficulties and it should be deleted.

Section 10(1)(c) is a curious provision in freedom of information legislation. It means that administrative inconvenience will be a good reason for refusing to give the information requested. If the head of the Department or a person to whom a request for information is addressed says no to it on the basis it would cause too much difficulty to provide it, he or she is legitimately entitled to refuse to grant it. We realise there are certain cases where it might be extremely difficult because of cost and the time involved to procure information but as this exemption is drafted, it enables the head of a Department to say to the information commissioner when the matter is appealed that the reason he or she refused to grant the information was because the staff were engaged in A, B or C and the request would have involved so many additional man hours and would have disrupted the programme of work. While it may be necessary to insert a clause approximating to that to provide for cases where it is genuinely too difficult to procure the information, that should be more clearly specified than it is in section 10(1)(c), which allows the head of a Department to advance the spurious reason we hear day in day out in the Dáil for not granting information, that it will take too long to compile the requested figures and it is too difficult to procure the information.

Part of section 18 is unconstitutional. It allows two bodies, the Civil Service Commission and the Local Appointments Commission to refuse to give reasons for their failure to appoint someone to a job. Why are those two bodies singled out? Why are other public bodies not mentioned? Why is there that invidious and arbitrary discrimination between those two public bodies and every other public body? In my experience, the bodies to whom such requests will be addressed are exempt. It is arbitrary to have one rule for two bodies in the public sector and a different rule for all others as it could be challenged on constitutional grounds on the basis of discrimination.

Section 19 enshrines and entrenches the principle of Cabinet confidentiality as enunciated in the Hamilton case. Despite vociferous criticism by members of the Labour Party and repeated promises, one of which was stated in the programme for Government, to sweep away that doctrine or substantially water it down, it remains firmly in place. I wish to put specific points regarding section 19 to the Minister of State, which I hope she will address.

As I understand it, section 19 provides that matters before Government, for example, Government memoranda, aide memoires, written advice to Ministers, etc., will be released only when the decision to which they relate has been made public. Alternatively, such documents will be released when more than five years have elapsed after the relevant Government decision was made. There will not be too many requests for those documents. However, in cases where requests are made public in the immediate aftermath of a new Government, such documents can be released only if they contain “factual information”. This is excessively restrictive. Surely documents which contain analysis, interpretation or evaluation of purely factual material should also be accessible. In addition, there is no valid reason that projections based on factual information should not be accessible. The same applies to expert advice. There is no valid reason that documents incorporating both types of material — purely factual material and information relating to its interpretation, evaluation, etc. — should not be released, at least in edited form.

Under the heads of the Bill originally put forward by the Minister of State to the Select Committee on Legislation and Security, there was what was known as the "whistleblower's charter", which attempted to exempt public servants from legal liability for releasing information in certain types of cases. This provision was hopelessly restrictive and has been wisely removed and replaced by section 45. However, this is not the appropriate place to enter into detail on the exact provisions of that curious section. Any attempt to provide a whistleblower's charter should be very clear and specific in its intent. It should also communicate to public servants the circumstances in which they would be justified in releasing information. The opposite is the case in section 45 which is deliberately vague. I believe the reasoning behind this is to allow the threat of prosecution to continue to hang like the sword of Damocles over the heads of unfortunate potential wrongdoers. That section must be substantially amended, otherwise it is mere window dressing aimed at giving the illusion that a whistleblower's charter which will have some worth and effect in practice will be introduced.

As already stated, section 25 will substantially diminish the value of this legislation. In essence it provides that if a Minister issues a certificate to the effect that certain information is exempt from the Freedom of Information Act, such information cannot be disclosed. A certificate will remain in effect for two years after which the Minister has total discretion to renew it. Apparently, the Minister is not obliged to account to anyone for the decision to either issue such a certificate or renew it. He or she can merely do so, under the legislation as it now stands, on the prompting of the head of a Department. A certificate can be issued in respect of all matters referred to in sections 23 and 24.

No one could deny that sections 23 and 24 contain a wide range of potential candidates for certificates. For example, section 23 refers to anything which may prejudice or impair the prevention, detection or investigation of offences; the enforcement of, compliance with or administration of any law; lawful methods, systems, plans or procedures for ensuring the safety of the public; the fairness of criminal proceedings in a court; security of penal institutions, etc. Under subsection (3) it is stated that subsection (1) does not apply to a record if it "discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation....is not authorised by law or contravenes any law". Section 24 deals with matters relating to the security, defence and international relations of the State, matters relating to Northern Ireland information that passed through intelligence channels, communications between Ministers and diplomatic personages, etc.

These matters are wide-ranging and broadly defined. There is no provision to appeal a Minister's decision. An aggrieved party can challenge the decision to issue a certificate in the High Court on a point of law but this is a very limited form of appeal. The unfortunate applicant has very little chance of success in making such an appeal. The information Commissioner has no power to review a decision of a Minister to black out information by the issuing of a certificate. However, for the purposes of optics, a review procedure will be put in place whereby the Cabinet can review a Minister's decision to issue a certificate. It does not take much imagination to assess the likely effectiveness and success of such reviews. It is not clear who will initiate a review, how it will be initiated, what procedures will be followed or whether written representations can be submitted. The Bill merely makes provision for a review by a Minister's colleagues for his or her decision to black out certain information at the prompting of a head of a Department who is, presumably, responsible to the Minister.

The general proposed appeals procedure in the legislation is fatally flawed. In the first instance, an appeal must be made to the public body which originally refused the request for information. If that body persists in its refusal, a citizen can appeal to the Information Commissioner. I am not suggesting that the commissioner will not be independent in the exercise of his or her duties but the office will be filled by a civil servant appointed by the Government. Apparently, the Information Commissioner has wide powers to hear appeals, summon witnesses, etc. It is not clear whether he or she is obliged to state the reasons for his or her decision. Will the Minister of State provide clarification on this matter?

One would naturally expect that a citizen should have the right to appeal the decision of the Information Commissioner to the courts. Unfortunately that is not the case. If the commissioner upholds the decision to refuse access to information, a citizen can only challenge that decision in the High Court on a point of law. Effectively, this means that, in 99 per cent of cases, the courts are precluded from overruling the decision to refuse information and may do so only in exceptional cases where the Information Commissioner has erred in law. On the basis of the facts, a High Court judge may be of the opinion that the information requested should be released but that will not matter. The applicant will be obliged to convince the court that the commissioner's decision was biased or totally contrary to the principles of natural justice. The proposal to confine a citizen's right of appeal to the courts except on a point of law is an effective denial of access to the courts. It is almost inconceivable that freedom of information legislation should specifically prevent the courts from considering a right to refuse information on its merits.

There are various other provisions scattered throughout the Bill which allow the bureaucracy to limit and deny access to information. I ask the Minister of State to consider these escape clauses before Committee Stage. There are sufficient exemptions and escape clauses which are vague and imprecise enough to enable the legislation to be rendered ineffective. A much more radical approach is needed, otherwise there is a grave danger that, despite this minimalist attempt, secrecy and obfuscation will continue to flourish. Whose interests will be served by that?

Dr. Woods

While I am glad this Bill has been improved somewhat in its progress through Committee Stage in the Seanad, its provisions remain deeply flawed and thoroughly inadequate. On careful examination, which I strongly recommend to citizens and the media alike, it turns out to be little more than a window-dressing exercise in freedom of information. Without doubt it is a cleverly, carefully drafted Bill creating the impression of greater freedom of information while advancing that cause in only the slightest degree. It is a thin pretence at action designed to camouflage the Government's internal confusion and inability to agree on anything of substance or any resolute plan of action. Its timing was no accident. Along with its fiasco of proposed reform of the courts, on which the Government was obliged to do a U-turn within a matter of weeks, this Bill was rushed into the public arena in a desperate attempt to distract attention from the Lowry affair. Despite all the bluster and hype which surrounded its introduction, it is little more than a damp squib, another fine example of the mountain being in labour and bringing forth a mouse.

The combination of the many exceptions in this Bill, coupled with the fact that ministerial decisions or those taken by heads of public bodies under sections 8 and 10 cannot be overturned by the Information Commissioner, means the public will have access only to such information as those heads permit and no more. In other words, the Minister will retain control over what information will be made available.

On the coming into office of this Government the Taoiseach, in a grandiose gesture in this House, declared he would conduct Government business as though behind a pane of glass. What an empty promise that was since no Government in my time has equalled the secretivenes of this one. This Government appears to be obsessed with endeavouring to curtain over every aspect of its activities. Far from providing openness in its activities, it has established a reputation for secrecy that owes more to the former political traditions of Eastern Europe than to modern Ireland. Its current proposals are grossly inadequate and fail totally to deliver on its promises.

This Bill's main failures fall under seven headings, the first being its failure to repeal the Official Secrets Act, 1963. Yet the Taoiseach remains silent on that issue day after day. It is obvious he wants to put its repeal in abeyance so that it cannot influence this Bill, yet its repeal is essential, since it constitutes the bulwark of the secrecy culture. Without its abolition that culture will continue. That Act must be signed by all civil servants, committing them to obeying its provisions to the letter at pain of criminal prosecution and dismissal. It requires them to regard everything as secret unless the Minister directs otherwise. In practice, this places extraordinary power and control in the hands of the Secretary of the Department, leading to management through fear and the inhibition of progressive, pro-active staff. The presumption that everything is required to be secret unless proved to the contrary is the single greatest obstacle to openness under this Government.

We listened to the Minister of State at the Department of the Taoiseach, Deputy Avril Doyle, talk about management and development of the public service, pointing out that it is time for change in public administration, referring to a whole series of new public service management strategies to be announced in the Bill to be introduced shortly. None of that can take place unless the Official Secrets Act, 1963, belonging to another age, is repealed. Its provisions are totally inconsistent with the very concept of freedom of information. The simultaneous maintenance of that Act and the introduction of a freedom of information culture is complete nonsense. There is general agreement, in official reports, academic commentaries and in the report of the review of the Official Secrets Act, 1963, just published, that it has outlived its usefulness and is inconsistent with the right to freedom of expression enshrined in the Constitution and with the important principles of good Government, about which the Minister of State, Deputy Doyle, spoke. It is important that staff be given the opportunity to flourish and develop within the public service, which cannot happen as long as the Official Secrets Act remains on the Statute Book.

How many bodies does the Government need to persuade it that the Official Secrets Act, 1963 must be abolished? Its clinging to that relic of the past reveals everything about this Government's real attitude to freedom of information. If the Official Secrets Act, 1963 is not repealed civil servants will remain obliged, on pain of prosecution, to keep everything secret unless otherwise specifically directed. How can anybody claim that the secrecy culture can be meaningfully reduced much less abolished while the provisions of the Official Secrets Act continue to cast the shadow of prosecution over every civil servant from the highest to the lowest?

The Government must explain to Members of this House why it proposes to retain the Official Secrets Act, 1963 while continuing the charade of a Freedom of Information Bill, a question it has consistently refused to answer and ducked on every occasion since the publication of this Bill. This Bill preserves the culture of secrecy. It does not reverse the presumption of secrecy, as it states and as its proposers claim, which is an attempt to mislead. The Bill does not reverse that presumption of secrecy. It can be taken to be reversed only when the onus of proof is placed on the official side to satisfy the Information Commissioner that it is in the national interest that the information in question should remain confidential, whereas this Bill provides that it will be the citizen who will have to apply to the Information Commissioner. This means that, whenever a citizen cannot apply or, for whatever reason, is afraid to apply, the information remains secret. Therefore, the presumption of secrecy is not overturned.

The Bill proposes that, whenever a person is refused information by a public body, he or she will have a right of appeal to the Information Commissioner. That procedure is the wrong way round. If the presumption of secrecy is to be removed, it is the official body, not the applicant, who should have to appeal to the Information Commissioner.

This Bill carefully preserves the secrecy culture on which this Government thrives while trying to create the impression it is doing the opposite. In practice, there will be no effective appeal since this Bill fails to provide any effective appeal to the information Commissioner on a decision taken personally by a head of a public body to refuse to disclose the information in question.

Section 34, in which there is a glaring deficiency, sets out the jurisdiction of the information commissioner from which decisions under section 8 are omitted. This extraordinary omission leaves immense power to refuse information in the hands of a public body. It is inconsistent with any real freedom of information regime. The information applies to information held by some 120 public bodies. The exemptions are contained in sections 19 to 32 and range from law enforcement, public safety, security and defence to the extraordinarily wide exemptions provided for in sections 20 and 21 which apply to all the public bodies concerned. These sections taken together enable the head of any one of the 120 public bodies to refuse to disclose any information where the record sought contains information relating to "the deliberative processes" or the functions of management "of the public body concerned" and where the head of that public body is of the opinion that disclosure would be contrary to the public interest. Notwithstanding the exceptions to this general provision in section 20(2), these wide-ranging exemptions are designed to prevent the public from having access to the information which forms the real basis for decision-making in the public service and, as such, are to be condemned.

What concerns me even more are the procedural deficiencies in enforcing the right to information which, when taken together, could result in the purpose of the Bill being frustrated by the head of any one of the 120 public bodies. This arises from the failure to provide an effective appeal to the information commissioner from a decision taken by a head of a public body under section 8. The practical result of the omission in section 34 is that it is open to every head of the 120 bodies to select the information they wish to keep undisclosed and to reserve to themselves the decision on any request from the public for disclosure. The decision to refuse disclosure under section 8 could not then be reviewed or overturned by the information commissioner.

The extent of the powers of the information commissioner in relation to a decision taken by a head of a public body under section 8, is to direct under section 35 a full or better statement of the reasons for a refusal where he is of the opinion that the statement of reasons for refusal is inadequate or where the public interest has been relied on as a ground for refusal. In the absence of a power to review or overturn the decision of the head of the public body concerned, the remedy of a better statement of the reasons for refusal is of little or no value and contributes nothing to openness.

Whether the omission of these decisions from the review of the information commissioner is a genuine mistake or a calculated attempt to deceive the public about the true nature and extent of information provided by the Bill or an effort by the old order to preserve itself is a matter for speculation. Since the publication of the Bill I have warned repeatedly about this anomaly. I have heard much bluster and waffle from Ministers and advisers but no satisfactory answer.

The Bill provides for the suppression of information where the relevant Minister considers it is in the national interest. However, the Bill does not define the national interest. It is left to the relevant Minister to decide that. The decision will not be reviewable by the information commissioner or by any other independent body. The Bill, therefore, gives the green light to any Minister to suppress information because he or she claims it is in the national interest. This provision in section 25 makes a nonsense of the entire concept of freedom of information. It is freedom of information unless the Government thinks you should not know. The failure to define the national interest calls into question the genuine commitment of the Government to freedom of information.

The Bill does not attempt to define official information despite the claim that its purpose is to provide a right of access to official information. This omission is extraordinary and calls into question the Government's commitment to real freedom of information.

Section 25 provides that the Minister may issue secrecy certificates preventing the release of information that he or she thinks should remain hidden. The information commissioner will have no power to review this decision. The only review that will take place will be by the Minister's colleagues. In the hands of a Government as obsessed with secrecy as this one, we could expect secrecy certificates to be issued like confetti were the Bill to become law. It is clear the idea behind the Bill is to create the illusion of freedom of information while retaining the ability to hide anything it wishes. Had this secretive Government the opportunity to work under its own proposed freedom of information regime it could be expected to maintain its iron curtain of secrecy.

Section 28 provides that the Minister may, by regulations, provide for the release of personal data. This is not a satisfactory balance of individual rights and national interests. The circumstances in which such personal data can be released should be set out to ensure personal confidentiality is protected. It is extraordinary that the Bill, which is scrupulous about protecting the Minister's right to hide public information, is extremely careless about protecting the individual citizen and his or her right to the protection of personal data. The Bill does not provide for a new era of openness. The Government came to office promising a new era of openness, transparency and accountability. It has established a reputation for being more secretive than any of its recent predecessors. Its proposals, as it prepares to leave office, are grossly inadequate and fail to deliver on its promises.

The Bill provides for the ministerial power to prevent the release of any information it wants kept secret without independent scrutiny. Its proposal is inconsistent with the freedom of information regime. In the hands of the Government, whose commitment to openness, transparency and accountability is utterly and clearly discredited, it is a charter for secrecy. The combination of the many exceptions in the Bill, together with the fact that the decisions of a Minister or other head of a public body, under sections 8 and 10, cannot be overturned by the information commissioner, means that the public will only have access to such information as these heads permit and no more. In other words the Minister will retain control over what information will be made available.

When enacted, the Freedom of Information Bill will be the conclusion of many years campaigning for such a new regime and, if flawed, it will be a long time before the flaws are rectified. Therefore it demands the most careful and detailed scrutiny. Its panic striken presentation as a diversionary tactic during the Lowry affair — I am sure the Minister is not happy with that event or the attempt to distract from the Bill — lost much of its publicity on that day. It is a deplorable and cynical breach of faith for those who campaigned for the Bill for so long. The many wild and groundless claims of Government spokespersons cannot be relied on. All citizens and the media would be well advised to closely examine the Bill.

The freedom of information structure which will hold sway for the foreseeable future lies before us in the Bill. It does not meet with the clear political consensus in favour of freedom of information for all and it will be a great disappointment to many people that it fails to deliver on the promises of openness and transparency. It is important legislation, especially when taken in conjunction with the developments towards a modern, outgoing, active public service which is not constrained by an all-embracing Official Secrets Act and clearly has the ability to serve this country in a much better and more open way, without fear of its citizens' participation. I ask the Minister to look carefully at the Bill on Committee Stage and to see whether it is possible to repeal the Official Secrets Act either in parallel or in conjunction with this Bill.

Mr. Kenneally

I welcome the opportunity to speak on this Bill. As my colleagues Deputy Woods and Deputy McDaid said, there is a definite lack of openness, transparency and accountability in this Government. They came into power with a great fanfare but, in this Bill as on so many other occasions, the pane of glass has been removed and openness has flown out the window. The presumptions in this Bill should be in favour of rather than against disclosure and the onus should be on public authorities to prove their case, rather than the other way around, as a citizen may not have the wherewithal to seek legal representation, etc. for an appeal. That is another step away from openness.

This Government has produced the Hogan, Coveney and Lowry affairs as well as other affairs outside this House which I will not mention. The former Minister, Deputy Lowry, portrayed himself as Steve Silvermint, the cool clean hero. None of us realised what a murky past he had until it emerged subsequently. It was rich for someone like him to clean up people on this side of the House when he knew what he would have to face in the future.

By their nature, civil servants are secretive people, local and public authorities are secretive bodies, and they want to retain as much of this secrecy as possible. It has been a bugbear of mine that the executives of local authorities tend to keep as much information from the members as possible. Whether one loves or loathes them, they represent and are accountable to the people but faceless civil servants, local authorities and health boards are not. There must be more transparency in that area also. Those bodies have restrained the Minister from going as far as she would have liked. It is undoubtedly a watered-down version of what we expected and the veil of secrecy remains. One should also note that we have some excellent civil servants and county managers but this is a culture shock for them.

The Freedom of Information Bill has come through the process I have outlined but at the end of this process we do not necessarily see the passion which the Minister and her officials feel about this topic, we see a classic compromise. I do not blame the Minister or her officials but there is a series of mandarins and officials who must be dealt with in this legislative process. The Bill promises a great deal but it is in danger of delivering much less. It is somewhat confused and may be too little, too late. It is not the radical Bill which I expected and which had been promised in many press briefings over the last few years. Many aspects are conservative and constrained. However, every Bill has a positive side and it does give a good foundation to put much-needed administrative reform on the Statute Book. If the Minister is interested and willing to listen to what is said in this House, real administrative reform can be put in place, which will benefit Irish people and politics in the long run.

As our spokesperson, Deputy McDaid, said the central premise of the Fianna Fáil position is the repeal of the Official Secrets Act because unless and until that is done there will be no legal basis for the Minister's claim that the presumption on official information is for disclosure. The Minister probably agrees with me that this Act should be consigned to the shredder. It is ludicrous legislation which presumes everything is secret. It is unworkable because it is breached every day. It is nonsense to keep it on the Statute Book. I am pleased there is a commitment to its reform. I am not sure it will be easy to write off but it must be examined in the future.

Fianna Fáil is committed to real openness in the administrative system. We will assist the passage of the Bill and will seek its speedy enactment. Moreover, when it is enacted we will seek to ensure its provisions are brought into immediate effect in all areas of public administration. However, this party's co-operation in that regard will not be given freely. We should show more courage than the Bill does in a number of areas, because we are not encumbered by the consideration which the Minister and her Department must bring to the legislative process. We should recognise that only good can come from allowing the light of public scrutiny to fall on other areas of public administration. It illuminates good practices and decision and people can be assured they receive the type of administration we all want and where bad administrative practices, poor decision making or individual injustice are illuminated, corrective measures can be taken. In both cases people are the real beneficiaries.

There must be a period of education to inform people that they can go into public service bodies to see that public life is not operated on the basis of nudges and winks, who you know rather than what you know, family connections, etc., but on the merits of a case. I agree that those provisions are necessary but simplicity would be better than complexity, which leads to a loss of understanding. I fear the public will see these complexities as exclusive rather than inclusive. The purpose of the Bill is to protect citizens' rights but its complexity could frustrate that aim.

The Minister of State said a purpose of the Bill was to make freedom of information a right. If a citizen has a right, he or she should not have to cite the Act conferring it. There should be an automatic assumption that when the Bill is enacted, the right to freedom of information applies to everybody and that every public servant will vindicate that right and will be apprised of his or her legal responsibilities. Our administrative code does not impose legal responsibility on individual civil servants but we must educate public servants that as soon as a person asks a question he or she has a right to information which should flow freely and without impediment.

Sometimes we know something is wrong but we do not know what question to ask. We have had examples of this in the House. Anything that constrains the flow of information could frustrate the purpose of the legislation.

Dr. Woods

Government Deputies should hear some of this discussion. They seem to have no interest in freedom of information.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Mr. Kenneally

Civil servants are often slow to impart knowledge. Recently a constitute of mine went into the free legal aid office in Waterford to ask for assistance in relation to a criminal case. Such offices do not provide assistance in such a matter and he should have gone to the Circuit Court or District Court. However, the staff in the office knew that but did not impart this information to him. I subsequently put down a question on this issue to the Minister for Equality and Law Reform and he replied that all staff in free legal aid offices have been told to provide whatever information is necessary in such instances. This man did not get the right information because he did not ask the right question. I hope this problem will be tackled by the Government to ensure that civil servants will give out the information required regardless of whether the right question is asked, although this may be a culture shock for some people.

There is a fear that the legislation will be so complex that there will be a 12 months' delay between the date it becomes law and the date it becomes operable. I accept that in Departments and offices with major administrative decision making processes, such as the Departments of Social Welfare and Agriculture, Food and Forestry and the Revenue Commissioners, time will be required to put the necessary systems in place. However, the public service has had two years to work on the concept of freedom of information and is aware of the commitment of the Government, its predecessor and the Houses of the Oireachtas on this issue. Public administrators have had ample time to make preparations.

The Bill will not be implemented immediately in respect of local authorities and health boards, which is a fundamental error. I am reminded of an incident I read about in the newspaper recently where a county councillor in Wicklow took legal action against his county manager in the High Court to get information. Such information should be available to county councillors and public representatives. We are living in the dark ages with some of our current practices. County councillors and the general public have a right of access to information from local Government.

There is no compelling argument for not applying the full rigour of this legislation to local authorities, county councils, urban councils, corporations, town commissioners and vocational education committees at the outset. In recent years there has been an unacceptable propensity within the managerial and executive ranks of councils to deny access of information to the public and councillors. The latter cannot fulfil their democratic responsibilities if they do not have access to the information they require. We must ensure access to information at least where public representatives are concerned. We have allowed the openness of local government to be eroded. Members are continually kept in the dark when trying to get information from management. The democratic process would benefit if the Minister of State included local authorities from day one.

The full rigours of the law should also apply to health boards. There is far too much secrecy about the way the health service is administered and irreparable damage has been done. I am sure the Minister, like myself, receives many representations from people unhappy with the way they or a relative have been treated in the administration of the health system. There is supposed to be a charter of patients' rights but this does not work because there is no culture of openness in health administration. From the day people start attending medical college they seem to be imbued with a degree of arrogance. There is no tradition of openness — with notable exceptions — in that profession or in the health service.

When the Ombudsman legislation was introduced, the health authorities were excluded. When we finally included them in the Ombudsman's remit we excluded clinical judgment. Some years ago a person who had been involved in a traffic accident was diagnosed by the staff in a hospital with which I am well acquainted as having a broken leg and put into traction for a certain period. However, it was only before he was discharged that they discovered his other leg was also broken. I am not suggesting professionals in the medical field should be second-guessed but clinical judgment is frequently based on guess-work. The term "clinical judgment" is a fancy word for guess-work as in some cases medical professionals do not know what is wrong with a patient. While we must accept this, if we exclude all those in medical administration from the provisions of the Bill, the Ombudsman Act and other reforming legislation we will do people an injustice. I would like health boards to be included from day one and do not believe the sky will fall in if we include them.

There is no reason State sponsored bodies should not also be included from day one as they, particularly non-commercial ones, are in a privileged position, are budget driven and, to a large extent, set their own targets. They are not subject to scrutiny by the Minister, questioning by the Houses of the Oireachtas on daily executive activities or to Adjournment debates. We have created a huge number of non-commercial State sponsored bodies because we want to exclude areas of public administration from the constraints of ministerial responsibility. I accept that, however, we have not put in place a system whereby the public can oversee the activities of these bodies. For example, we excluded them from the overseeing activities of the Oireachtas Joint Committee on Commercial State-sponsored Bodies — this was a crazy decision by the Houses of the Oireachtas — and from the operations of the Ombudsman. We are effectively excluding them from the operation of this Bill for three years. No one could argue in favour of this proposal.

Ms E. Fitzgerald

The period is 18 months.

Mr. Kenneally

I agree with Deputy Woods that the Government is obsessed with secrecy. I hope the Minister gives consideration to the points made by speakers on this side of the House. She will not be able to take into account the views of the Government parties as no Government Deputy has come into the House to articulate them. This is an indication of their interest in the Bill. I hope she will take on board our points and amend the Bill accordingly on Committee and Report Stages.

Mr. Killeen

Failtím roimh an Bille cé go gcreidim go bhfuil teideal cuíosach ait air. Tá gá leis an mBille gan dabht mar tá traidisiún láidir rúndatachta sa seirbhís phoiblí, sna boird sláinte, sna comhairlí chontae agus go ginearálta ar fud an tseirbhís. Níl fhios agam an bhfuaireamar ó na Breatnaigh é. De gnáth cuirimid an milleán orthu siúd faoi rudaí mar seo.

Tá an méid sin eisceachtaí sa Bhille nach mbéinn ag súil leis an oiread sin dul chun cinn dá thoradh ach is tosach é agus tosach maith leath na hoibre.

Having listened to the debate with interest, I wonder where the ethos of secrecy in the public service and many other bodies comes from. Some people tend to blame the Official Secrets Act, 1963, but this may only have been adopted as a cover under which to operate. I strongly suspect this ethos developed long before the enactment of this Act and may have been developed for good reasons in some instances. However, we are not disposed in this debate to considering good reasons for the development of this practice in the public service and there is general agreement that it must be eliminated.

The Official Secrets Act has come under sustained attack in recent years, with one Dáil committee strongly recommending its repeal. I wonder if more progress could have been made in this area under the cover of this legislation. It probably would have been very difficult to introduce a Bill which achieved the aims of this legislation and also repealed the Official Secrets Act. However, it would be a great pity if we were to conclude this is as far as the Oireachtas can go in terms of repealing that Act.

The provisions governing the confidential status of documents in the 1963 Act were very broad. I strongly suspect that these provisions were interpreted to the widest extent possible in many cases. This is the background against which the Minister introduced this Bill. I have some doubts about whether the Bill will achieve what it sets out to do but it is required in general terms and I support it.

I support the Minister's attempts to introduce innovative legislation. For example, she attempted to ensure ethics in public office and openness and transparency in the workings of Government, etc. She will probably say I am not being very objective but her attempts may not, of necessity, have been very successful. While I support her campaign, I am worried it is going nowhere and troops are rallying in opposition to it. I do not see any of them on the Government benches but some interests are opposed to the direction in which the Minister is heading. There is a temptation to believe we are deluding the public and engaging in a PR exercise which is not likely to go anywhere.

The way in which parliamentary questions are dealt with was referred to. Deputy O'Donnell referred to a frequent reply she receives, that the information is not readily available and it would cost too much to procure it. The information requested may be regarded by the Department as trivial but it is extremely important to Deputies in following up matters. In some cases questions are ruled out of order because the Minister is not regarded as being responsible for the matters raised. This almost always applies in the case of commercial semi-State bodies whose operations in many instances impinge much more deeply and fundamentally on the State and the lives of citizens than the actions of the Government. It would be unfortunate if Ministers were seen to be hiding behind a semi-State body and effectively ducking an issue of great public importance and removing the right of the public to democracy in the operation of the State.

On a number of occasions last year I raised the way in which the Government contract is awarded for the air and sea rescue service based in Shannon. At that time one company was in possession of the contract, a new company from the UK was bidding for it and a third company based in Shannon was interested in securing it. One of the requirements for awarding the contract is that the equipment would have to be in place by 28 February last. The Shannon based company knew it could not meet this requirement. It also knew that because there was only one supplier of the equipment in the world market the only company which could meet this requirement was the one in possession of the contract.

The British company undertook to provide the equipment, slightly underbid the other two companies and secured the contract. However, the equipment was not in place by 28 February. This has clear implications for the quality of the service provided by the air and sea rescue service and the way in which Government contracts are awarded. No one can say the Department was not aware of this difficulty as Deputies, including me, had referred to it in the House. This is an example of the refusal to accept certain information and the stubborn continuation of the wrong course of action. Something similar happened in relation to the contract for the additional Government jet for the European Presidency. Some of the same companies were involved. Coincidentally, the same company was successful despite the fact that it did not meet the requirements as specified in the contract documents.

A consequence of such procedures in the public service is people reach the inevitable conclusion that what used to be referred to as a golden circle by those in Government when in Opposition is still in operation. The Bill will have to address that. It will also have to establish for the citizen who is an interested observer or participant in the particular process that his or her case is being treated fairly and that the Government, Departments, semi-State bodies and local authorities operate above board and are open to scrutiny. That is an enormous task and it is even more difficult in the context of the traditions which have built up.

I was interested in the way this legislation might parallel the Data Protection Act, 1988 and the work of the Data Protection Commissioner. I would not have known that existed were I not in receipt of correspondence from the aforementioned person to the effect that if I did not pay £20 or £50 and complete a form I would be in trouble. Having made some inquiries, I discovered that legislation, even though it refers to personal data, only applies to material held on computer, not to manual files. That is strong legislation which is almost nine years old. It appears the commissioner is vigorously pursuing this area with some success. The type of complaints made to the commissioner under the Act are interesting. Many of them were in relation to Departments, semi-State agencies, health boards and county councils.

Some of the terms in the 1988 Act do not mean what we would normally assume them to mean in every day conversation. "Data" does not include material on manual file but only that on computer. "Personal information" does not mean what we would normally assume it to mean, it is something quite specific. I wonder if there are terms used in this Bill that are slightly or perhaps radically different from what we would assume them to be. The Minister might address that when replying. The 1988 Act establishes similar rights for the citizen including the right of access, correction, deletion and complaint. Those principles appear to be contained in this legislation. I hope that is the case, particularly in view of the role of the Data Protection Commissioner.

Reference was made to section 6(4), which was changed radically from that in the Bill as initiated to what is under consideration tonight. I have examined it closely — I do not know what took place in the Seanad — but I wonder if the change achieves much. Does it make the Bill stronger? The Minister was obviously satisfied it did in view of the fact that she tabled some of the amendments or, alternatively, accepted amendments. The section appears to be inherently weak and a little imprecise.

Section 10, which in some respects is an extraordinary one, provides for refusal to grant a request on administrative grounds. A wide list of grounds is given and perhaps the Minister might refer to that when replying. It appears that virtually any grounds can be used by a head to whom a request has been made. If the record concerned does not exist, that obviously would be reasonable grounds for refusing to grant the request, but subparagraph (a) which states "cannot be found after all reasonable steps to ascertain its whereabouts have been taken" is very broad. Subparagraph (e) states: if "the request is, in the opinion of the head, frivolous or vexatious". I have no doubt such requests will be made, and such an exclusion may be necessary, but I am sure some heads would welcome the opportunity to use the provisions of subparagraph (e) as an escape, despite the fact that their foremost consideration might be slightly or substantially different.

One of the objectives we hope to achieve is that, under the ethos of the State, information would be more readily available as is the case in the EU in Brussels. Information is couched in such language that it is almost impossible to interpret. It is written in English but the jargon makes it almost impossible to understand.

I am concerned that the citizen's right to have confidential information protected is not adequately covered in the Bill. It appears to be covered in section 28, but I would like to be convinced that section is adequate to deal with what is required. An enormous amount of sensitive information about individuals is held by health boards in particular but also by county councils and Departments. If a TD's computer records are sufficiently sensitive to warrant the letters which emanate from the Data Protection Commissioner, the information held by some public bodies should be protected so that it would not go into the public domain or fall into the hands of somebody who did not have a right to it.

I am concerned also about the huge administrative burden on county councils with which they are barely coping. Section 10 might come into play in this regard. I refer in particular to the planning sections of a number of councils which, because of the amount of building work, etc. taking place, are already drastically over-extended. That is one of the areas in which many queries arise, where the "who you know" comes into play and where some openness is needed. It is also an area where the nature of the planning file is so complicated that it is difficult for the individual with a genuine interest in it to wade through and extrapolate the information of interest to them. There is also a risk from a local authority point of view because unless it has sufficient staff to oversee the examination of the file by the interested citizen, documents might disappear or be taken in error. That security risk may imply the provision of a greater level of staff to deal with the public's right to information. The right to information in this area is fundamentally important if this type of Bill is to work.

We should face up to the fact that if the Bill does work, many people will be disappointed. They want to believe there is some magic inner circle in the political system where various clandestine operations take place. They are encouraged in that belief by what passes for debate in this House and the exchanges between Government and Opposition Members, regardless of who might be in either position. People believe that to such an extent it may not be possible to change their minds but, if it were possible, it would cause them great disappointment because they take pleasure in thinking such hookery and crookery goes on. Only those of us working in the grey area of politics realise how boring it is and that there is little factual basis for what is said about that area.

Against that background, it will take a long time for this legislation to work sufficiently well for people to believe it is working. There will be people who genuinely want access to information who will doubt whether it is adequately provided for under this Act or any other Acts that refer to information in one way or another. If it fails to gain public confidence, or if it is found to contain provisions that make it impossible to get information, it will be a failure by being seen not to work.

In the context of tonight's debate, one has to wonder how much Government commitment there is to this Bill. The major party in Government sent in one speaker and the smallest party sent in none. The Bill seems to have been presented as a time filler rather than as serious legislation. The Government parties have failed to grasp the opportunity to create and support a level of openness in the operation of the public service and in the running of the State which is urgently needed. It is a great pity that that has not been adverted to by more people and that there is not more support for this Bill. It is strange that most of the support for the Bill is coming from the Opposition benches and that Opposition Deputies have taken the trouble to go through it to find out what the issues are and to call on their experience of dealing with people who have problems in this area to suggest amendments for the next Stage and also suggest to the Minister that there are areas which need further examination.

In the course of channel-hopping, I happened to come across the broadcast of the debate in the Seanad when an eloquent Senator from Wicklow, Senator Roche, was making his contribution. He referred to the Wicklow case, to which a number of other Deputies have referred tonight, where an elected member of Wicklow County Council was unable to get fundamental information and was forced to go to court to get it. It is extraordinary that under any system of democracy a member could be pushed to that point. One would have thought that common sense would have prevailed and that the county manager and other officials would have made the information available. It ought to be available and there ought to be no question about it.

I recall a request for information being made when I was chairman of Clare County Council and the information being made available to me as chairman. I sat at a table with all the documents in front of me and the interested councillor read what he wanted to read. I remember thinking that it was the most ridiculous waste of my time and an extraordinary procedure for the council to have to undertake to make this information available to an elected member, who happened to be from my own electoral area and from a different party and who ought to have been entitled to the information as of right. I had no interest whatever in the information in question which was not relevant to anything I had a particular interest in. It seemed an extraordinary negation of democracy that that procedure should have been called into play. If I, as chairman, had said I had no time or had not been bothered, the councillor would not have been able to get the information except through the means employed by the Wicklow county councillor. That implies an extraordinary weakness in the system of local government and in the position held by an elected councillor, paralleled by the situation here in relation to parliamentary questions when over the past ten years Ministers in several Governments have either not had information made available to them within their own Departments or have chosen to present to the House a sanitised version or a version economical with the truth, creating far greater difficulties than would have had to be faced had they allowed the unvarnished truth into the public domain. In most cases this probably would have raised no hackles whatever and would have aroused virtually no interest.

That is how we have proceeded, and that is why a Bill like this is necessary. I suspect it is also the reason this Bill is convoluted, long-winded and, perhaps, less effective than it might be were it not coming from the tradition from which it comes. I suspect that if the Minister of State and three or four Deputies had written the Bill, it would be a lot shorter, much more direct and would contain fewer exceptions, and that the exceptions that are included would be copperfastened to a greater degree than they are, particularly the kind of provision in section 28.

The appointment of an information commissioner is central to the success of the Bill. We will not know, until we see it in action, whether it will work well. If the exceptions are so strong that they undermine the role of the commissioner, the worthy attempt to bring in this legislation and make it effective will have failed, and that would be a great pity. Certain records are exempted. I am not sure, from reading the Bill, whether the commissioner will have any say in relation to the exempted records, particularly where a Minister or a Government decides that they are exempted records. From my reading of the Bill I would have to conclude that the commissioner has no role in relation to those documents. On the basis of the history of the operation of the 1963 Act, it seems a pity that somebody in as independent a role as the commissioner would not have access to some form of adjudication in relation to the decision of a Minister or Government on exempted material, because such exemption is usually absolute. If I am right, this is a very great weakness in the Bill and something which, more than anything else in the Bill, would undermine it.

I take the opportunity to wish the Bill well, to hope it is successful and that a little more openness will prevail.

Mr. B. O'Keeffe

In the case of any Bill, it is important that its provisions be adhered to and that there be no loopholes through which people can evade their responsibilities. I fear greatly for the effectiveness of this Bill. In the case of the contracts that RTÉ negotiated with the people who present their programmes, the efforts by a committee of this House to glean information about those contracts were unsuccessful. Will that type of information be available to a committee of this House under this Bill? That is questionable. In such circumstances can RTÉ continue to negotiate confidential contracts, or will the information be available to whoever is in authority?

As a member of the Committee of Public Accounts I would remind the Minister how often we come across difficult situations where confidential settlements have been made by Ministers. One remembers a settlement made with a journalist, but when the Committee of Public Accounts tried to establish the facts surrounding that settlement it was told that the Comptroller and Auditor General could have a look to ensure that there was proper accountability but that we had no right to names or to information about the confidential terms of the payment. I would refer the Minister to the recent payments made to hepatitis C victims. When I put down a question, at the request of the individual, to the Minister for Health asking how much was paid to the individual and tried to establish if legal fees were paid to the solicitors of that individual as a result of a settlement, I could not get that information on the basis that it was a confidential settlement. That man paid his own private legal fees to his solicitor, with the possibility that the solicitor had been paid by the State as well.

Debate adjourned.