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Dáil Éireann debate -
Wednesday, 19 Mar 1997

Vol. 476 No. 5

Private Members' Business. - Freedom of Information Bill, 1996 [ Seanad ]: Second Stage (Resumed).

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

I thank Deputies for their constructive contributions. The debate in this House has reflected the very constructive Second Stage debate in the Seanad. I am glad to see the commitment to greater openness is shared by all sides of the House. Any criticism which was raised was that we would have as open legislation as possible, which is a concern I greatly share. We will have the opportunity on Committee Stage to tease out the points which were made in more detail.

Deputy McDaid, in the course of his very constructive contribution, raised a couple of significant points. In regard to access to environmental information, any information which is not accessible under the current environment regulations— I understand the Deputy's concerns about possible shortcomings in that area—can be accessed under this Bill. A person who is refused such information can then appeal to the Information Commissioner. That should open up any remaining areas of darkness. I am very carefully examining Deputy McDaid's constructive suggestion that An Bord Pleanála should be listed in the First Schedule as one of the bodies to come under the Act on its first day of operation. We can make progress on that on Committee Stage.

Deputy McDaid also raised the question of the Garda. The Garda is listed as one of the bodies to come under the provisions of the Act without any fixed date, which means there is no time limit. In consultation with the Minister for Justice, the Minister for Finance will designate a suitable time. I hope, in the light of the strategic management initiative now under way in the Garda and the greater emphasis on good quality administration, that we will be able to bring in the Garda at a very early date.

Deputy McDaid also raised the question of the appeal system and expressed some concern that it might be difficult for citizens to access. The appeal system is intended to be extremely informal, although extremely powerful. We have asked the existing Ombudsman to be the first Information Commissioner because of his fine track record as the champion of citizens' rights. That appeal system is already operating in a very simple and informal way and I do not foresee any particular difficulty in citizens being able to access that right.

It has been written into the Bill that whenever a request for information is refused the person concerned must automatically be told of their right of appeal and how to access that right. That is also being built into refusal procedures in Departments. For example, if somebody is refused a grant they must, under the Bill, be given reasons for the decision and be informed of the relevant appeals process. I respect Deputy McDaid's concern that the appeal system should work well.

Deputy O'Donnell, in the course of an interesting contribution, has raised the issue of who defines the public interest. She gave some examples from the past where she felt political embarrassment rather than the public interest was the determining factor. I reassure the Deputy that political embarrassment is not a test which would satisfy the public interest test under this Bill. Ultimately it will be the Information Commissioner, who is fully independent, rather than any political figure who will make the final call on whether the public interest applies in a particular case.

She also raised the question of the management and preservation of documents and expressed some concern that documents might be shredded or deleted from a computer before they could be made available. The Archives Act already deals with the issue of the deletion and destruction of records. However, in addition, under section 15(5) of the Bill we are placing responsibility on the Department of Finance to ensure that documents are managed and preserved and to oversee that function in relation to public bodies.

Deputy Kenneally referred to the importance of county councils and health boards coming under the legislation at an early date. I am pleased to tell him that, as a result of a very constructive debate on this point in the Seanad, I have brought forward the lead-in time for county councils and health boards. These bodies are very close to people's day to day concerns as they deal with their health, the streets on which they live and their concerns in the community. Within six months of the extension of the operation of the Act to mainstream Departments, it will apply to health boards and county councils. I am sure Deputy Kenneally will be pleased to know the lead-in time will not be three years as he had feared.

Deputy Killeen raised the question of the protection of personal data. Section 28 protects the privacy of personal information. There are provisions in it which are modelled on the Data Protection Act. Access to personal data is only granted in very limited circumstances. In general, only information of a very general character which people know will be in the public domain or information relating to a health or safety issue is released. The privacy of personal information is very tightly protected.

The release of information may be considered only if it is in the public interest and following consultation with the person concerned. The subject of the personal data has a right of appeal to the Information Commissioner to stop the release of such data when they have been notified that such release is being contemplated. These provisions protect personal data. We discussed them with the Data Protection Commissioner, who has a particular remit in the area of personal privacy, and I am satisfied they meet the concerns spoken about by Deputy Killeen.

The appeal system is the cornerstone of the Bill. Deputy Woods had concerns about this but I am glad to assure him that they were based on a misreading of the Bill. His fears about there being no right of appeal in the case where a decision to refuse is made directly by the head of a public body are completely unfounded. Section 34 (b) gives a right to appeal a decision taken personally by the head of a public body.

We provide under the Bill for an internal review where the decision to refuse is taken by a junior member of staff. Human error can occur at all levels of an organisation. When a junior member of staff who might not be fully conversant with the provisions of the Bill — although we hope they will be — refuses access because of inexperience or lack of information, a more senior member of staff, when reviewing the file, can decide to release the information. Experience in other countries has shown that about 30 per cent of cases can be dealt with through internal review, which takes them out of the remit of the Information Commissioner. That means people can get information more quickly and the office of the Information Commissioner will not be clogged up with appeals which could be dealt with in a speedier and more efficient manner.

The Information Commissioner will have powers akin to those of a High Court Judge to send for witnesses and papers. Under section 35(12) the onus of proof will be on the public body to show why the citizen should not get the information. I know that was a concern of Deputy O'Dea's. The whole appeal system is very much citizen focused and in favour of the requester. A public body refusing information must show on what legal basis it is doing so. If the legal basis does not stand up, the information must be released into the public domain.

The Information Commissioner may look for material to substantiate a contention by a public body that the public interest is at stack. In other words, it will have to justify why it should not release the information. The Information Commissioner will have wider powers than the Ombudsman, whose decisions are not binding.

Deputy O'Dea suggested a further layer of appeal in addition to the appeal provided for in all legislation to the High Court on a point of law. I fail to see what function in terms of citizens rights would be served by having a permanent appeals system. Providing that public bodies could appeal the decision of the information commissioner could delay the release of information. We have created a simple and effective system.

In drawing up the Bill we looked at appeal systems in operation in other countries. We contrasted the ineffective and legalistic Australian administrative appeals tribunal with the more informal, ombudsman based system in New Zealand and in later Australian state legislation which has opted for the ombudsman model, such as that in Queensland. We are satisfied this will be the most citizen friendly model.

Deputies O'Dea and Woods raised the question of ministerial certificates and expressed concern that Ministers would impose gagging writs refusing access to information. The certificates procedure is tightly drawn and circumscribed and would only apply in the most limited and extreme circumstances. The legislation specifies that the material must be of sufficient sensitivity and seriousness to warrant a certificate and must be deemed to harm security, defence or international relations. If these stringent conditions are not met, the certificate will not be granted, or if granted, would fall on appeal to the courts. It is not a blank cheque for Ministers. Again, it is interesting to draw on international experience. New Zealand has similar certificate procedures, which have been used only once. We would expect this to be highly exceptional and that is what is provided for.

Concern was expressed that the machinery provided for in the Bill would be administratively cumbersome. While it is simple, it is important to specify it in detail. This aspect informed much debate on Committee Stage in the Seanad in an effort to ensure that any unwilling bureaucracy is not in a position to spike the intention of the legislation in opening up the system by being able to find administrative loopholes. The administrative details are spelt out to ensure they work on behalf of citizens.

Deputy O'Dea expressed concern about the constitutionality of some of the Bill's provisions. We have carefully checked any constitutional points with the Office of the Attorney General; indeed texts are not returned unless they have been stamped as being regarded as constitutional by that office. Regarding his point on personnel records, we are satisfied the provision will preserve the confidentiality of the process.

A number of Deputies referred to the Official Secrets Act. This Bill tears the heart out of that Act by giving citizens a legal right to know and replacing the presumption of official secrecy with the presumption of official openness. I discussed the good report on the Act by the Select Committee on Legislation and Security with the Minister for Justice and I know she and her officials are giving it serious, detailed and favourable consideration. We expect her to introduce proposals in due course.

On the question of Cabinet confidentiality and access to Cabinet papers, we must observe the current constitutional restrictions pending a referendum, and the Bill so provides. However, section 19 is radical and has been recognised as such by people such as Senator Lee. It gives the citizen a legal right to see factual information underlying Government decisions as soon as the decision has been made and published, provided it is not something that would be covered, for example, by the security protections. It also provides that all information, including the Memorandum for Government, will be published within five years. That compares with the 30 years rule under the Archives Act and is radical development in terms of access to Cabinet documentation.

Deputy O'Dea raised the question of the provisions regarding voluminous requests. These are there for practical reasons and are subject to appeal to the information commissioner to ensure there will be no abuse. We came across a situation in Australia where an individual requested what turned out to be 18,000 volumes of documents. He was interested in ascertaining why the potholes on his road had not been repaired but he did not specify his requests and truckloads of information were gathered which he could not possibly have accessed.

The provision that administrative time not be wasted on getting information is to enable people to focus on their requests by being reasonably specific and not to seek information they effectively do not want. However, this is done in the context of the legal obligation to be placed on officials to help people focus the object of the request and to publish information that will help them pinpoint what they seek. The right of appeal to the information commissioner can be invoked if there is any suggestion that reluctant bureaucracies use this provision to stymie access to information and the commissioner will give short shrift to any abuse of these provisions.

Similar provisions apply to frivolous or vexatious requests. We are all familiar with people who write repetitive letters or make repetitive requests for sensitive or security information to which they have been told they cannot have access. This is included in such legislation the world over. In this Bill, such requests are subject to appeal to the information commissioner to guard against any potential abuse.

The Bill was subject to detailed debate in the Seanad and has emerged as a better Bill. I welcomed contributions from all sides in that House. When considering the Bill further on Committee Stage, I hope we will have a constructive, open and honest debate and will produce legislation that will stand the test of time and will stand as a testament to the work of this Dáil in promoting the values of openness.

I look forward to the enactment of the legislation and to the change it will bring to the culture of the public service. I also look forward to the day when files are opened to the public because information is power and the giving of information to people about their own lives, what is going on in their own communities and about the operations of Government empowers them in their dealings with the State. It takes away barriers that exist behind Government offices and opens a window on the operations of public bodies which can only be to their benefit and to the benefit of the quality of public administration. Every jurisdiction which has introduced freedom of information legislation has seen an improvement in the quality of public administration. Openness is the best guarantee that citizens are to the fore when people conduct public business.

Question put and agreed to.