Enda Kenny
Question:1 Mr. Kenny asked the Taoiseach the number of files withheld by his Department from the National Archives in respect of 1972; and if he will make a statement on the matter. [27101/02]
Ceisteanna – Questions. - National Archives.
Pat Rabbitte
Question:2 Mr. Rabbitte asked the Taoiseach the number of files withheld by his Department in respect of the files transferred to the National Archives in respect of the year 1972; the numbers withheld under section 8(4)(a) of the National Archives Act 1986; the number withheld under section 8(4)(b); the number withheld under section 8(4)(c); and if he will make a statement on the matter. [1248/03]
Joe Higgins
Question:3 Mr. J. Higgins asked the Taoiseach the number of files withheld by his Department from the files transferred to the National Archives in respect of 1972; and if he will make a statement on the matter. [3282/03]
Caoimhghín Ó Caoláin
Question:4 Caoimhghín Ó Caoláin asked the Taoiseach the number of files in respect of 1972 withheld by his Department from the National Archives. [7177/03]
I propose to take Questions Nos. 1 to 4, inclusive, together.
As I indicated in my reply of 18 December 2002, the evaluation of files intended for release to the National Archives is carried out by designated officials in my Department and I have no role in that process. It is normal as files are processed for release each year that some are certified by an appropriate official for retention on the grounds set forth in the National Archives Act 1986. I am informed that the number of files certified in this way in respect of the January 2003 release was five, of a total of 699. One of the five certified files was retained under section 8(4)(a) of the 1986 Act and the other four were retained under sections 8(4)(a), 8(4)(b) and 8(4)(c) of the Act. The statutorily designated officials are responsible for determining the particular subsection in accordance with which files are certified for retention.
Has the Taoiseach read reports about Captain James Kelly, who has requested that all documentation in respect of the 1970-72 period be published? Is there a reason the totality of documentation relevant to this period has not been published? Has the Taoiseach been made aware of any undue sensitivity that warrants a decision not to publish such documentation? Will he comment on the matter?
Five files were not released last year. Further reference to section 8(4) should have been made in the reply to be fair to the House. Section 8(4)(a) pertains to information contrary to the public interest, section 8(4)(b) pertains to information obtained in confidence, and section 8(4)(c) pertains to information that might cause distress or which might be likely to lead to an action for damages for defamation. It was only for these reasons that any files were held back this year. Five files out of 699 were held back.
From answering questions like these in the past, I note that files held back in the past were normally related to a personal interest, the identification of an individual or somebody giving information on a confidential basis. Release of the relevant file would have broken the confidence implicated in the person's giving the information in the first place or would have led to action for damages for defamation.
As I said, five files have been held back in 2003, five in 2002, 13 in 2001, 12 in 2000 and none in 1999. Therefore, very few were held back.
Captain Kelly has said that the Minister for Justice, Equality and Law Reform, Deputy McDowell, is aware of certain other files that are very relevant and that might be in the public interest. Perhaps the Taoiseach will examine this if he does not have the information in front of him.
He may be referring to that Department, but I will raise the question.
The National Archives legislation was pioneered by former Taoiseach Garrett FitzGerald and led to the Freedom of Information Act, which makes State papers available after five years.
The Freedom of Information Act is a separate issue.
I know it is, but the National Archives legislation is the basis for the Freedom of Information Act.
The Freedom of Information Act should be the subject of a separate question.
It is related because it is about information.
I will listen to the Deputy's question first.
My question is very straightforward. The Government is quite entitled to review any legislation. Will the Taoiseach explain why the Government did not consult the Information Commissioner—
That does not arise.
—or the National Union of Journalists?
There is no logical way in which that could arise in the four questions submitted to the Taoiseach.
The amending legislation—
A question on the National Archives legislation is allowed, but the Freedom of Information Act does not arise anywhere in any of the four questions.
With respect, it does. Following from the National Archives legislation—
If the Deputy were to follow that form of logic, he could allude to all legislation since the foundation of the State.
No, I could not. This is about the release of information relevant to the public interest.
The Chair has ruled on the matter. The first four questions deal with the National Archives, not with freedom of information.
The Chair is ruling me out of order.
I am ruling that the Freedom of Information Act is not included anywhere in these four questions.
I contend that it is.
If the Deputy wishes to submit a question—
There will be an opportunity to raise the issue in respect of the legislative programme. Before a rumpus breaks out, I would like the Taoiseach to explain why the Government did not consult the National Union of Journalists, the Information Commissioner—
I would prefer if the Deputy did not pursue that line of questioning.
—or the public and the Opposition parties.
Given the extent of betrayal on the programme for Government put together last May, the Taoiseach might consider it appropriate to refer that document to the National Archives now rather than waiting because it is clearly of purely historical interest at this stage.
Under section 8(4)(b), information is not transferred because it is considered necessary to protect information supplied in confidence. Does that differ from the case confronting two colleagues in the House? They are the subject of legal action because they passed on in confidence to a relevant member of the Executive information given to them in confidence, yet they find themselves being challenged on foot of an action by the Garda Síochána and hauled through the courts. Is there any difference in the principle that applies?
I do not see any difference and the Deputy will be aware that I support the stance of Members in this matter. Section 8(4)(b) pertains to information the Executive received from various sources over the years, not all of which related to the Troubles although it happens that the 30 year rule now applies to documents contemporaneous to their break-out between 1969 and 1972. The information was provided to the Executive by members of the public rather than by organisations and it would not see the light of day under the provisions of the 1986 Act according to my interpretation.
Can the Taoiseach specify the nature of the content of the withheld files or parts thereof rather than referring to general categories under the Act? Does the Taoiseach agree that there is no good reason for the State to continue to withhold files 30 years after the events to which they pertain? It is a long time.
The amendment to the Freedom of Information Act 1997 was formulated secretively and without consultation on the recommendation of a high level group of civil servants. Can we have confidence in the decisions of civil servants to release or withhold files in view of the tendency by certain senior officials to operate as secretly as possible? Can we be confident that the public's right to know is being respected? Files containing information which is possibly prejudicial to citizens or which may result in discrimination against them should, if not published, be made available to the people concerned.
I heard the Ceann Comhairle's ruling in relation to the National Archives Act but I will have to answer some questions again. I cannot give Deputy Joe Higgins the list of files retained each year by the director of the National Archives as it is not the practice to make it available for inspection. In a great many instances, a file's title reveals its content of personal views and correspondence. Not all the files in question relate to Northern Ireland, but for security reasons no further information is available. The policy adopted by the division with responsibility for this area under the legislation strictly accords with the provisions of the Act. Civil servants will always operate in that way and whenever inter pretation of an Act is in doubt, legal advice is sought. My experience has been that civil servants perform these functions to the highest standards.
The policy of the division in my Department is to release as many records as possible, starting with the 1969 documents. Thirty years may have passed, but these matters are still of huge interest. When the first papers from 1969 were released, the result was several weeks of media focus, special television programming and the publication of at least two books. There have also been several debates in the House. Quite frankly, it is as well that the documents were not any more recent.
A small amount of abstractions were made in the case of documents where sensitive or security information was detailed. With regard to correspondence the names and addresses of private individuals were withheld on the basis that there could not have been an expectation on the part of those individuals that their correspondence would ever be made public. The tone and the content of some of the correspondence if released had the potential to cause distress to the writers or their relatives. Correspondence from organisations and public representatives were released in full. The public was protected in these matters.
There are some considerations which arise in relation to the legislation going forward and which have been brought to my attention. These include how best the historical record can be preserved having regard to the provisions of the National Archives Act which allows for abstractions in particular circumstances; how correspondence should be treated given that the Department could be open to a libel or defamation case; the extent to which the Department is legally covered where there are no definitive guidelines and each decision is based on individual judgment, which is the point made by Deputy Joe Higgins. Other considerations include the extent to which it is realistic for historians to expect the release of all records which in the case of Northern Ireland files from 1970 to 1980 are becoming increasingly sensitive. The work involved in examining the 1972 files will be substantial especially if large amounts of abstractions have to be made. It is important therefore to commence this work as soon as possible. Clarification of the Department's policy for dealing with the files is needed. These are just some of the issues that the section has to deal with. Its policy is to release as much as possible and only to protect what is directly related to individuals and directly related to something said by an individual that could either leave him open to defamation or perhaps it is a view no longer held by the individual.
Will the Taoiseach say what percentage of the files withheld relate to matters concerning the North of Ireland? Will he say if any of the files withheld relate specifically to the activities of British agents here during 1972 and previous years, specifically the Littlejohn brothers? I presume that if any of the files had a bearing that the Taoiseach would co-operate with Mr. Justice Barron. Have any of the files withheld been provided to Mr. Justice Barron in carrying out his inquiries into the Dublin bombing of 1972?
The files have all been released and only five which are of a personal nature have been withheld. Of the 699 files transferred to the National Archives, 104 related to Northern Ireland matters and 95 related to the Mansion House all-party anti-partition conference and the national anti-partition Mansion House fund. No files in these categories were withheld. On hundred and forty-three files were released with abstractions. Sixteen entire documents were withheld and part abstractions were made in the case of a further 56 files. These related to personal information, security matters and information given in confidence. There were a small number of files released belonging to the former Taoiseach, Jack Lynch.
I ask this question in the context of the relevance of the National Archives. Documents in the National Archives relating to EU matters such as negotiations and arrangements have up until now been withheld if the release was deemed to be harmful to ongoing negotiations. Following the passing of the Nice treaty last year the Taoiseach was very clear that there would be greater transparency and scrutiny of matters relating to Europe. Will he reverse the freedom of information policy the Government initiated to allow for greater transparency, or how much sincerity was behind the promise of greater transparency if we are now looking at a closing down of information?
In regard to EU matters, I do not know if files have been held back. My notes do not indicate that EU files are involved. As the Deputy knows, since the introduction of the new system on 1 July 2002, all matters relating to the EU are dealt with by a committee of this House. All other papers and questions are released under FOI on a regular basis. There is no change in that approach. Reams of documents are released by my Department each week. I am not sure if anyone reads them. I do not read them in the newspapers.
I asked specifically about the files withheld from the National Archives. In his response, however, the Taoiseach dealt with the files that had been provided to the National Archives. He indicated that five are withheld for personal reasons. Do any of the questions I posed apply in the case of any of the personal reasons that justified the withholding of these files? Are any of the withheld files, while small in number, of relevance to matters pertaining to the North of Ireland? Has any of them relevance to the actions of British agents in this State, specifically the Littlejohn brothers or others? Does the Taoiseach believe that Mr. Justice Barron should have sight of any of the material in these files? Are they relevant to his ongoing work?
From the information available to me – I do not have all the information – all the files withheld are of a personal nature. All the files in my Department relating to Mr. Justice Barron's investigations have been made available to him. He has had complete access to all the files held in my Department, the Department of Justice, Equality and Law Reform and Garda files relating to the 1974 period.