I move: "That the Bill be now read a Second Time."
Freedom of Information (Amendment) Bill 2003 [ Seanad ] : Second Stage.
An Leas-Cheann Comhairle
Is that agreed?
No. I oppose the moving of Second Stage of this Bill under Standing Order 118(3).
An Leas-Cheann Comhairle
Members will have the opportunity to make their contributions first and a vote will be called at the conclusion of Second Stage.
Under Standing Order 118, I am opposing the Second Reading of the Bill.
An Leas-Cheann Comhairle
The Deputy can move that when he is called to speak.
Are you sure about this, a Leas-Cheann Comhairle?
An Leas-Cheann Comhairle
Yes, the Deputy may move it when he is called to speak.
Given that this Bill is being rammed through this House and was rammed through the other House while the Minister was absent and enjoying himself at Cheltenham a few weeks ago—
An Leas-Cheann Comhairle
I have called the Minister to move the question "That the Bill be now read a Second Time."
Do I not have the right to oppose—
An Leas-Cheann Comhairle
The Deputy should resume his seat, he is not in order at this stage.
Are you sure there is not a precedent for this, a Leas-Cheann Comhairle?
An Leas-Cheann Comhairle
The Deputy can move an amendment when he is called upon to speak.
(Interruptions).
On a point of order, Deputy Broughan is opposing the Second Reading.
An Leas-Cheann Comhairle
That is not the question.
It is.
An Leas-Cheann Comhairle
The Deputy cannot say—
Deputy Broughan is opposing the Second Reading and is challenging it.
An Leas-Cheann Comhairle
But it is not in order for him to speak at this stage.
It is.
An Leas-Cheann Comhairle
There are clear rules, which state he is not in order to speak.
He is in order to oppose the Second Reading.
An Leas-Cheann Comhairle
At the appropriate time.
Now is the right time.
An Leas-Cheann Comhairle
The Minister must move the Second Stage. The question must be put.
This has been done previously. A precedent has been set. When Second Stage is moved in the House, opposition can manifest itself, rightly, under Standing Orders. In those circumstances a vote must be called.
On a point of order, there is a precedent where the Second Stage reading of a Bill was opposed.
An Leas-Cheann Comhairle
This is Second Stage.
We are not agreeing to it.
An Leas-Cheann Comhairle
This has been dealt with.
On a point of order, under Standing Order 118(3) we have the option of opposing the Order for Second Stage.
An Leas-Cheann Comhairle
When a Seanad Bill is passed, it must be considered by the Dáil. It must proceed.
This is not agreed.
It has not been agreed. You asked for permission, a Leas-Cheann Comhairle, for the Minister to speak.
You asked for permission, a Leas-Cheann Comhairle, and we said "no".
On a point of order, the passing of a Bill in the Seanad has nothing to do with the Dáil because, according to tradition in this House, reference is not even made to the other House so that both Houses can act independently of each other. I reiterate precedent has been set in the House whereby at the moving of Second Stage of a Bill, Members have the right to challenge it.
I wish to record my support for the challenge of Labour Party colleagues to the commencement of Second Stage. I believe, a Leas-Cheann Comhairle, that the question you put to the House –"Is that agreed?"– immediately invites and confirms that we have the right to disagree and withhold agreement. This is what Deputy Broughan is recording and I indicate my support for that.
An Leas-Cheann Comhairle
I rule that it is in order for the Minister to proceed.
On a point of order, there is a clear precedent for this.
An Leas-Cheann Comhairle
The Chair has made a ruling.
Previous Chairs have allowed disagreement on this. We are entitled to a vote on the Order for Second Stage.
An Leas-Cheann Comhairle
The Chair has made a ruling and we will proceed with the Bill.
We oppose the Order for Second Stage and we are entitled to a vote on that basis.
An Leas-Cheann Comhairle
The Chair has made a ruling.
It is important that the Government is not protected. Many Government Deputies may be missing and this is a critical point. We are saying—
An Leas-Cheann Comhairle
I have made a ruling. I call on the Minister to move Second Stage.
On a point of order—
An Leas-Cheann Comhairle
Members cannot be repetitive.
I am not being repetitive. The guidance the Leas-Cheann Comhairle is receiving is not in accordance with precedent.
An Leas-Cheann Comhairle
I call on the Minister to move Second Stage.
The Leas-Cheann Comhairle requested the consent of the House for the Second Stage reading and my colleague, Deputy Broughan, opposed that.
An Leas-Cheann Comhairle
The Chair has made a ruling.
On a point of order, three questions were put to the House earlier relating to the late sitting, statements on the EU summit and Private Members' Business. No question was put regarding the Order for Second Stage of this Bill. This is the first opportunity for Members to oppose the taking of the Bill and we are doing so.
An Leas-Cheann Comhairle
The Bill has come from the Seanad and under the Constitution it must be taken by the Dáil.
The House has a right to oppose it. The precedent is there for such decisions.
An Leas-Cheann Comhairle
The Chair has made and clarified its ruling. I call on the Minister for Finance to proceed.
On a point of order—
An Leas-Cheann Comhairle
There can be no more points of order. The Chair is on his feet. I ask the Minister to proceed.
I do not understand the Chair's ruling.
An Leas-Cheann Comhairle
There cannot be a point of order when there is disorder in the House.
I do not wish to be disorderly.
An Leas-Cheann Comhairle
The Deputy is being disorderly.
Can I make my point?
An Leas-Cheann Comhairle
Very briefly.
As has been set out by Opposition Members, there is a clear precedent for what we are asking in these circumstances. If you make this ruling, a Leas-Cheann Comhairle, you will set a precedent. As Deputy Bruton pointed out, questions regarding the Order for Second Stage and the taking of Second Stage were not put to the House. The Order for Second Stage was not on the Order Paper. It has been stated that there are precedents for challenging the moving of Second Stage in the House when the opportunity is there.
An Leas-Cheann Comhairle
It is on the Order Paper. The Deputy is being disruptive.
We cannot allow this.
On a point of order, the precedent is a division of the House on an Order for Second Stage on the National Development Development Finance Agency Bill in December 2002. If it happened then, I cannot understand why the Chair is ruling it cannot happen now.
A Leas-Cheann Comhairle, you should make up your mind.
An Leas-Cheann Comhairle
As I pointed out, this Bill came from the Seanad. The Minister is in possession and there can be no more interruptions.
There are 51 items on the Order Paper.
An Leas-Cheann Comhairle
I have listened to all the Opposition speakers. I call on the Minister to proceed.
I am pleased to introduce the Freedom of Information (Amendment) Bill.
A Leas-Cheann Comhairle, you cannot ignore the Opposition. We have set out the precedent for what the Opposition seeks. This legislation is sensitive and I implore you to suspend the House for ten minutes to allow the Whips to consult.
An Leas-Cheann Comhairle
I have made my ruling and I call on the Minister. I am quite in order.
I implore you, a Leas-Cheann Comhairle, to suspend the House to enable discussions to take place.
Sitting suspended at 8.45 p.m and resumed at 8.55 p.m.
An Leas-Cheann Comhairle
To satisfy Members, I had my ruling looked at and I confirm that it was correct. Under the Constitution, a Bill coming from the Seanad must be considered by the House. The precedents claimed by the Deputies referred to Bills originating in the Dáil. I call on the Minister to make his contribution.
On a point of order, Standing Orders seem to make it clear that it is possible for us to—
An Leas-Cheann Comhairle
They do not. I am confirming the ruling which I have already made and which was correct. We cannot change that because it was made in accordance with the Constitution. If Deputies want to have a referendum on the matter, they will have to introduce another Bill.
They would have a record turn-out.
(Interruptions).
An Leas-Cheann Comhairle
I am in the Chair and the Chair has made a ruling. I call the Minister for Finance.
I wish to assert to the House that when the Chair is on its feet, Members must sit down.
The Deputy thinks he is the new Ceann Comhairle.
The Deputy should know the rules.
(Interruptions).
On a point of order, we wish to indicate our opposition to the Second Stage reading now.
An Leas-Cheann Comhairle
That is not in order. The speeches must take place first. The Deputy may only move his objection when called upon to speak.
I am pleased to introduce the Freedom of Information (Amendment) Bill 2003 [Seanad] to the Dáil. I welcome it, in particular, because our debate gives us the opportunity to spell out the Government's position and to chal lenge the unfair and inaccurate claims which have been made in recent weeks.
The Government's position on freedom of information is simple and straightforward. The changes to the legislation proposed in the Bill are based on the need to ensure that the business of Government can be properly and efficiently organised. The purpose of the Bill is to allow the Government to carry out its work, no more and no less. The Government considered the issue carefully and, advised by the report of the high level group, decided to bring this legislation forward. We took this decision because all Governments, both now and in the future, must be able to examine important public issues, to have full and frank debate between Ministers and reach a final collective decision which is taken in the best interests of the community.
I do not accept that it is in the public interest that the Government's consideration of issues should be weakened or that it is in the public interest that records relating to Government decisions should be released in a manner which undermines those decisions or, at least, leads them to being re-opened. It is the Government's firm view that the existing Act affects the way we do our business and it must, therefore, be amended. I will explain to the House why the Government arrived at this decision.
The Government, in this Bill, is not attempting to repeal the Freedom of Information Act or to introduce major restrictions on the public's right of access which could have the same effect. It would have been open to the Government to do this, but we did not do so. We are not proposing repeal or the blunting of the legislation. The Government is aware that the Freedom of Information Act 1997 has played an important part in public service reform in Ireland. This contribution was explicitly recognised in the recent PA Consultants' report on the strategic management initiative. It has also made a wider contribution to Irish public life.
The public now has access to all types of records. People can get papers about a wide range of economic and social policies being implemented by Departments and public sector organisations of all kinds. On the basis of this information, they can find out what the policies are intended to achieve, they can analyse the results of these policies and they can comment and criticise. As a result of the Act, the quality of public debate in Ireland has improved beyond all recognition. Debates on issues are much more informed than they used to be. There is now more and better coverage of public policy and its impact on our society and economy. This has been of major importance in supporting and extending the democratic process in Ireland. All Deputies will welcome this development.
The legislation has also been of major benefit to individuals. People can now get access to per sonal information held on them by public bodies. This simple, straightforward step has done much to ensure that public organisations improve their services and that they are more aware of the needs of individual members of the public. The Government has played an important part in securing these progressive developments and has been happy to do so. It has made significant extensions to the remit of the original Act. It was first extended to local authorities and to health boards, then to voluntary hospitals and subsequently to numerous other State agencies, bodies and institutions, including those in the enterprise, broadcasting and third level education sectors.
When it came into force, the Freedom of Information Act covered just 67 bodies. Today, it covers approximately 370. By extending freedom of information throughout the public service, the Government has ensured that it has become a permanent and valuable feature of public administration in this country.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
We have also committed ourselves to a continuing programme of extensions with the aim that by the end of 2005 all bodies, organisations and groups appropriate for inclusion will be covered. The Government has also expanded the scope of the Act. For example, regulations have been made to allow for the release of records to the parents and guardians of minors and persons with a disability and to the relatives and representatives of the deceased.
Usage of the Freedom of Information Act bears out its important role. Since April 1998, tens of thousands of requests have been made to public bodies and the large majority have been granted in full or in part. Of course, the success of the Act cannot be judged solely by such statistics. It was anticipated before the Act was introduced that it would help to encourage the release, on an informal administrative basis, of information which would previously not have been readily available. A recent example of this can be seen in the move by third level education institutions to release students' examination scripts without requiring students to invoke the Act. In summary, the Act has served to improve public administration and to heighten public confidence in public institutions. The Government is happy to see this progress take place and will be working to see that these developments continue.
However, we are also committed to effective government. While freedom of information is valuable and important, it cannot be the main factor in deciding how the Government conducts its business. This is why the Government has decided to bring this Bill forward. The central purpose of this Bill is to protect the workings of Government. It does this by making the protection of Cabinet records mandatory, by protecting communications between Ministers which deal with issues under consideration by the Government, by protecting records relating to the working of committees of officials and advisers assisting the Government in carrying out its work, by extending the period of protection for Government records from five to ten years and by giving Secretaries General the power to certify that a deliberative process is continuing.
All organisations have the right to decide how to organise their business. The Government is no different. In fact, making certain that the Government has the ability to organise its business properly and efficiently must be, without doubt, one of the main public interests in any society. It cannot be in the public interest to weaken or undermine the Government's ability to take decisions for and on behalf of the people who elected it.
The work of Government is complex. In reaching decisions on economic and social policies, the Government must look at different alternatives and approaches, debate these freely and reach a collective decision on behalf of the community. This is a difficult process. It has to be if we are to take account of the diverse needs and interests of a modern society. Deputies understand how the process works but it is important to be clear about what happens in Government.
The collective responsibility of the Government for decisions is not just established around the Cabinet table after a short discussion. Different Departments prepare memoranda for the Government on the issues which must be decided. These memoranda are circulated for comment to all Ministers and their Departments. Often there is correspondence between Ministers and between officials about issues which affect, either directly or indirectly, what is about to come before the Government. On other occasions, this correspondence is supplemented by bilateral meetings of Ministers or officials to try to get consensus on the issues which need to be settled. When something has been discussed initially at the Cabinet, the Government may, before taking its final decision, refer the matter to a committee of Ministers, who are asked to examine the issues in more detail and report back. These committees of Ministers may be assisted by advisers or departmental officials.
Of course, what happens at the Cabinet meeting where the final decision is taken is important. That is where the Ministers of the Government elected by the people discuss the issues and collectively reach their final decisions. Many of these decisions, however, can only be taken at Cabinet because this wider process of discussion and consultation between Ministers and their senior officials and advisors has already taken place. Many of the issues are clarified and analysed well before that final decision is taken. Very often, at least some element of consensus has been established as a result of this preliminary work. Even if a consensus is not established, at least the Government knows what has to be agreed before the decision can be taken. If this process is not protected by the measures set out in the Government's Bill, the workings of Government have the potential to be seriously undermined.
It is easy to see what could happen if we do not make certain that there is a reasonable opportunity for a full analysis and debate of the kind I have outlined. If Ministers know that their opinions could become public knowledge quite soon, they might well decide that they should only make their views known around the Government table. Ministers who were not directly involved in the issues might decide that it was unwise to express their real opinion. In time, it is likely that senior officials and advisors would take the same approach. Clearly, if this were to happen, it would make it all the harder to develop and establish the real, practical consensus which is necessary for the exercise of collective Government responsibility, especially with complex economic or social issues.
There would be other negative effects. The nature and scope of the advice available to Ministers and the Government would become seriously limited. With most if not all the attention being placed on the Cabinet meeting itself, the prior consultation between Ministers and between officials would be reduced in importance and therefore in effectiveness. Not only would it become more difficult to reach agreement at the Cabinet, but the quality of the advice available to the Government would be affected. It is almost inevitable that the people involved in the process would start to confine their views and advice to the safer, middle-of-the-road options to avoid possible criticism later on.
Without the kind of preparatory work which is a central part of the working of Government, there is no reason to think that the actual discussions at the Cabinet would be as wide-ranging and as detailed as they need to be if the Government is to decide on the best possible policies. This has to mean that the whole basis for Government decision-making can be damaged.
The Minister does not trust his colleagues.
It is my strong view that this should not be allowed to happen. Protecting the workings of Government to ensure that the best advice is available, to ensure that Ministers can discuss what should be done freely and thoroughly, and then take and implement their decisions, is very definitely in the public interest.
I make no apology for the fact that the establishment and protection of an appropriate space for Government deliberations is what this Bill aims to achieve and this is why the Bill gives mandatory protection to Cabinet records, restricts access to communications between Ministers dealing with matters under consideration by the Government, and protects records relating to the working of committees of officials and advisors assisting the Government.
To make certain that there is no doubt about the nature and extent of a deliberative process which might be affected by the release of documents, the Government is also proposing to give Secretaries General the power to issue a certificate stating that a deliberative process is continuing.
The framers of the original Act recognised that a period of protection for Government records was required. They included an exemption period of five years in the Act. However, it has become clear that five years is not an adequate period for this purpose. The high level group established by the Government to review the operation of the Act stated:
As experience is gained in the operation of the Freedom of Information Act, it is evident that a five-year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short space of time.
I have no hesitation, therefore, in recommending to the Dáil that the restriction of five years for Government records should be raised to ten years. There is no point in protecting the operation of Government in the way I have outlined, if the records dealing with our decisions are not protected for an appropriate period.
We have heard a good deal in recent weeks about international comparisons and there are a number of points I want to make on this issue. Despite many of the comments made in recent weeks, it is the case that a ten-year limit still leaves Ireland with a relatively open approach to freedom of information. In other jurisdictions, such limits range from ten to 30 years. Canada, for example, operates a blanket restriction for 20 years on a wide range of records under the general heading of Cabinet confidences.
There are other important lessons which have to be drawn by looking at what happens abroad. I have heard much about freedom of information in Scandinavian countries. The freedom of information legislation in these countries, particularly Sweden, is often held up as the model that other governments should follow. It is true that the Swedish system is very open. Anyone has the right to request a public body for any record or document that it has, but it is instructive to look at how the Swedish Government actually operates. No memoranda of the detailed kind pre pared in Ireland are submitted to Ministers. No minutes are kept of the discussions held in Cabinet. In effect, the Swedish Government meets formally to endorse what is already an agreed decision. Discussions and consultations take place elsewhere and, as I understand it, they are quite often informal.
This is not a criticism. I am sure that the Swedish approach meets the needs of its Government and has grown out of the administrative practices developed over the years. However, our system in Ireland is different. A greater emphasis is placed on more formal consultation and debate and it is the protection of this process which is the basis of the Government's Bill.
There are a number of other issues about the Bill which I want to bring to the attention of Deputies. The Bill provides for the introduction of up-front fees to be paid by requesters. I believe that such fees are long overdue. There is a very significant administrative cost to FOI. A recent internal survey in my own Department estimated that, on average, FOI requests required eight hours of working time at a cost of €425 to the taxpayer. I understand that in other Departments similar surveys have produced higher estimates of the cost.
There are provisions for the charging of fees in the existing Act, but these have not operated as was originally intended. The Act states that a fee must be charged for an FOI request unless the request is for personal information or exceptional circumstances apply. In practice, the opposite has been happening, with charges being the exception rather than the rule.
A couple of years ago, one requester sought access to the diaries of a number of civil servants and Ministers. There were hundreds of records. Every diary, comprising thousands of pages of documentation, had to be read through, assessed and considered for release, with personal or sensitive material deleted. The cost of processing that request alone was probably well over €10,000, but the cost to the requester, including photocopying, amounted to around €600.
Deputies may recall a case that came to light within the first year of FOI where an individual made 466 requests, was responsible for 101 internal review applications and 35 appeals to the Information Commissioner. Some 194 of these requests were made to a single public body. As the authors of a technical report on the Act noted in relation to this case:
Neither those who campaigned for FOI, nor the majority of requesters who make reasonable use of the Act, would have expected that a single individual would, through extreme usage of the Act, cost the taxpayer well in excess of £100,000 or €127,000 in an eight-month period following its introduction.
FOI does not come cheap. A single FOI request can take many hours to process. This involves the basics of acknowledging the request, talking to the requester to ensure the request is adequately focused and understood, estimating search and retrieval time required, locating relevant records, examining each record line by line for any exempt matter, and considering public interest arguments for and against release.
Where third party information is involved, the process can be even more complex, with the requirements to locate and contact third parties, issue formal consultation letters, consider submissions and notify appeal rights.
The Oireachtas recognised that a fee should be imposed for FOI requests as a reflection of this burden. The difficulty, as I have said, is that the fees have not always been charged.
On a point of order, may I ask whether a quorum exists for the Minister's speech?
I am sure the Opposition spokesperson is able to count.
It is not for me to count.
There is a quorum.
Are you sure there is a quorum, a Cheann Comhairle?
The true cost of FOI is not therefore recognised. The Bill therefore contains a provision that will permit the Minister for Finance to prescribe fees for requests for access to records and for applications for review of decisions which must be paid before anything else happens.
How much is a quorum, a Cheann Comhairle?
Twenty, Deputy.
If the Deputy removed himself there would not be 20, but it is up to him.
This is an entirely reasonable step which will allow the real cost to be covered and will encourage requesters to focus their requests more thoroughly. I see no reason the Act should be used to allow wide trawls through the records of Departments and public bodies in the hope of finding something that might justify a story. If the requester has something specific in mind that he or she wants to find, that is one thing, but I do not see why the taxpayer should be expected to foot the bill for a trawling exercise that might turn out to have no point.
On a point of order, there are not 20 Deputies present in the Chamber. Such is the quality of the Minister for Finance's contribution, it deserves to be heard by a wider audience. I call a quorum.
There are 20 Members present.
Despite media reports the level of fees has not been decided. I will give careful consideration to the setting of these fees and, in doing so, will be careful to strike a balance between the burden and cost of administering the legislation and the need to allow people to continue to have access to information. I should stress that the Government does not favour the charging of an up-front fee for personal information and the Bill explicitly precludes this possibility.
In the course of the Seanad debate, I also indicated my willingness to look at the section of the Bill dealing with fees so that there would be scope for varying the level of fees for certain categories of requester, for example, disadvantaged people. However, I also made clear my belief that every citizen should make some small contribution, however minimal or nominal. This leads to an appreciation of the service. Where it is absent, the service can be abused.
As I said in the Seanad, another area that I will examine with a view to bringing forward an amendment relates to the scope for relatives of minors and disabled persons and the next-of-kin of deceased persons to use the Act fully.
I call a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
This would include, for example, giving a right to the parents of a minor or of a disabled person to have personal information amended where the information is incorrect, incomplete or misleading. It would also include giving a right to such persons to have the reasons for a decision taken by a public body which affected the relative explained.
I would also like to address the issue of personal information. Deputies will note that section 4 of the Bill amends section 6 of the main Act by substituting the word "contain" for the words "relate to". The purpose of this section is to bring clarity to an area which is currently far from certain. The need for the inclusion of this provision in the Bill has arisen as a result of the outcome of a High Court case on this issue. The High Court judgment states that the test to be applied to determine whether a record "relates to" personal information is whether there is a "sufficiently substantial link" between the requester's personal information, as defined in the Act, and the record in question. This has led to a certain amount of confusion in public bodies.
Public bodies have records which contain all sorts of personal information about people. Information on record about the person's name, age, address, education, employment history and the person's dealings with the organisation is exactly the sort of information that the requester seeking personal information will want to receive. It is perfectly clear what this means. However, it is not clear what records "relating to" personal information means. As well as records about the person, the public body will have also other records which might or might not be considered "to relate" to those records. It is even possible that general notes or documents about the filing arrangements for the holding of personal records would be covered by the existing section on the basis that they "relate to" those personal records.
When dealing with a statutory right of access to personal information, we need to be clear about what we mean. In short, we need a formulation that everyone – people seeking the information and those charged with deciding whether there is a right to the information – can understand. Personal information is defined in a clear and comprehensive way in the Act. The change being made by the Government ties the right of access to personal information to this definition, thereby serving to clarify a provision which, if left unchanged, carries significant potential for confusion, inconsistency and dissatisfaction for all concerned.
The Government has always been, and continues to be, fully committed to the access, by individual citizens, to their respective personal records. I assure Deputies that the position in relation to an individual's right of access to personal information is not being changed by this Bill.
The Government must be able to carry out its business in an orderly way. All organisations have the right to decide how to carry out their business. The Government is no different. The Government has considered this Bill very carefully. It is not a rushed measure. We set up a high level group of Secretaries General to examine all aspects of the existing freedom of information legislation. The group looked very carefully at the working of the Act and made a number of recommendations now being implemented in the new legislation.
Freedom of information is important, but at the same time it cannot be allowed to interfere with how the Government does its business efficiently in the interest of the whole community. The processes of Government are too important for the real public interest of our society to allow them to be undermined. No organisation, particularly a Government, can be expected to accept this.
As Deputies will be aware, the Information Commissioner, on 11 March 2003, published a report which raised a number of questions about the Government's proposals. This report has been examined by my officials in consultation with the Office of the Attorney General and while the report has been a useful contribution to the debate on this Bill, I am fully satisfied that any concerns raised in it about the Government's Bill are not justified. As regards the technical amendments proposed by the Information Commissioner, these had already been submitted to and discussed with the FOI central policy unit of my Department and a number of them were taken on board in drafting the Bill.
The Freedom of Information Act has made a major contribution to public life in Ireland and will continue to do so. I assure Deputies that the Government will continue to work to extend the benefits of FOI. The Bill is a sensible, practical measure designed to allow the Government to work effectively while maintaining reasonable public access to records. I am happy it gets the balance right on freedom of information. The Government will be able to do its business properly while people will still have access to information, particularly personal information that may be held on them. I commend the Bill to the House.
This is deeply flawed legislation. At its heart is an attempt to step back to the old days. It is rushed and ill thought out. It has been presented without consultation. No opportunity for public debate has been allowed. No evidence has been offered to justify any of the changes being made. The members of this Government have not learned anything or heard anything. They are fuelling public cynicism, which is already at a dangerous level in our community. This Bill is about Ministers seeking to save their hides. It resurfaces the worst features of Fianna Fáil clientelism. It should be roundly rejected by this House.
I recall what the Minister, Deputy McDaid, now busy chatting to his colleague, said about this Bill when it was introduced. He said that Fianna Fáil believes that the presumption should be in favour of disclosure. He described this as an inadequate Bill. He said that any information that is exempted must be included in a confidentiality list with description sufficient to enable the public to challenge its inclusion in the list. Deputy O'Donnell, who was far-seeing, said about this Bill that she could envisage the Government of the day, which has possession of certain information being determined to plead the public interest to withhold that information. The Minister of State, Deputy O'Dea, usually so garrulous in this House, does not seem to be present to hear about the freedom of information that is being removed.
He is on Government business.
He is on other business.
On Government business.
Allow Deputy Bruton to continue without interruption.
He was here a few minutes ago and he described how wimpish the Bill is. He said there are no valid reasons documents before Cabinet incorporating both purely factual material and information relating to its interpretation and evaluation should not be released. All these statements made at that time were insincere when we see what is happening today.
I have been a Member of this House for long enough to recognise legislation that is no more than a political stroke. The Ceann Comhairle who has been a Member of this House for a long time will know better than most Members that all the prerequisites for sound development of legislation have been abandoned in regard to this Bill.
Even though the Information Commissioner has a statutory right under law provided by this House to review this legislation, no effort was made to seek his views. No effort was made to tap his experience in drafting this legislation. We have had the extraordinary sight of a public official being forced to prepare a parallel submission to the Oireachtas to protect the public interest from ill-considered legislation. What thanks did he get from the Government benches? He was accused of exceeding his rights. There was a crude attempt by the Minister for Justice, Equality and Law Reform to muzzle an important public official. Fortunately for this House, he was a public official not appointed by Government but independently appointed by the Oireachtas who could withstand that sort of arrogant treatment from the Minister for Justice, Equality and Law Reform. That official could withstand arrogant treatment by the Minister for Justice, Equality and Law Reform. The Minister has not come back to the House to withdraw the insults he dished out so freely to those who were not here to defend themselves, but he should do so.
Not one citizens' group has been consulted about this legislation. Deputy McDaid was particularly eloquent on the role of citizens' groups in the freedom of information area and commented on how poor the legislation presented by the then rainbow coalition Government was in that regard. However, he sits side by side with a Minister who has stamped on the rights of ordinary people to have their say on this legislation.
This Bill rebalances the rights enshrined in the original legislation. The only consultation carried out by the Government has been with Ministers and some senior advisers. There has not been one example offered of the existing legislation harming the decision-making process of Government to justify the far-reaching changes now being made. None have been offered tonight either; all we had were speculative comments about potential issues. We have had the Bill for five years and there is no evidence that decision-making has collapsed, that the Cabinet has had lengthy debates without conclusions or that Ministers have been unwilling to put their views on paper. When officials were asked frankly if Ministers were now unwilling to put their views on papers, they said no – that they had no experience of that happening. However, we are supposed to accept that changes have to be made.
Worst of all, the Bill is being steamrolled through the House. It had only been published three days when it was brought to the Seanad and it has been guillotined every step of the way. The Minister thinks that drowning the Dáil in debating time, late at night and early in the morning, means he is allowing proper, mature reflection on the issue. However, that is showing arrogance and contempt for the House. Those who sat through the hearings of the Joint Committee on Finance and the Public Service – none of whom are here, unfortunately – know this shows contempt for the House. Many citizens' groups also attended those committee meetings to have their voices heard.
The only reason for the blind pursuit of the Bill is that the Minister is convinced the public does not understand it and that it will not cause difficulty for his backbenchers. He is wrong: this will cause profound difficulty for his backbenchers. The Minister fooled the people in the general election. He went to the country on the basis that everything could be done and he made promises to end hospital waiting lists, to provide 2,000 extra gardaí and to provide €10 billion for a health strategy. Those promises were designed to fool people and in June 2002, a fateful month for the Government, he suddenly decided the money was gone. All the partying he had encouraged could no longer continue. His stroke was to pull the wool over people's eyes but they will not forgive him for that, nor will they forgive him for trying to bury the evidence of that deceit.
That is what the Bill is about. It is about protecting political hides and burying evidence the public has a right to hear. This has nothing to do with giving the country good Government but is intended to protect cliques and cabals in the way Government is run. That should be in the open and information should be available to everyone.
I was proud to be part of the Government which introduced the Freedom of Information Act, which was the start of a welcome reform of the political orthodoxy in Ireland. The Act threw out the old, secret ways of doing things and it was important to give newly-defined political rights to citizens and to put political obligations on Ministers. That is what the Bill did. It came out of a murky past we all know about, a past which has caused the establishment of many tribunals at significant cost to the taxpayer. Here is a Government going back to those old ways, removing the pillars of a new political order to protect its position.
The Freedom of Information Act is not a play thing of Government to be changed at the whim of the Minister or his colleagues, including the backbenchers who did not hear a thing about it. The Act should only be changed for grave reasons and potential embarrassment or discomfiture of Ministers is not reason enough to change the legislation. A Government will show this sort of public contempt for people, changing the rules of the game to suit itself, at its peril. That sort of behaviour has brought contempt on people in the House yet here we see it in its grossest form.
The Freedom of Information Act is not just about giving people access to personal records. It is about the right of citizens to know how decisions are being taken on their behalf and how they are being governed. The Act was carefully framed on its introduction and was designed to usher in a new era which would give citizens greater opportunities to participate in and know of the decisions being taken on their behalf. It was founded on five fundamental pillars, such as the presumption of openness and that records would only be refused if there were compelling reasons against their release. Exemptions would only be allowed where a specified harm was likely to occur. There would be a right of appeal when a head of section exercised his or her rights under law to refuse an application for information and there would be circumscribed opportunities for the assertion of blanket exemptions from the release of information – there would also be built-in checks and balances to deal with such cases. There would also be a right to make requests without a fee upfront, with a person only paying for the cost incurred by his or her request.
The Government proposes to change all of those pillars and the rights of citizens will be fundamentally altered by the proposed changes. Why is this being done? That is the key question. Few Members can believe the changes have anything to do with offering better Government. I doubt Deputy O'Donnell is one of those Members and I will take an interruption if she wants to offer.
These changes have a great deal to do with the Government wanting to use a large majority it did not have in the last Dáil to close off information which could be potentially embarrassing to Ministers. That is the agenda being pursued and in June 2002, the Government and its arrogant majority quickly moved to commence this process. It did not begin a consultation process, but a process involving insiders to offer a cover for what it was doing. There was no balanced consultation. A high level group was ostensibly meant to review the operation of the Act but within days of its appointment it dropped all pretence of reviewing the Act's operation, focusing exclusively instead on the protection of Ministers. That became the group's unwritten brief.
It is wrong for Ministers to push independent public servants of integrity to the fore to defend their actions. Those people have immense integrity but it is clear from the hearings of the Joint Committee on Finance and the Public Service that they did not expect their advice to be the sole input for the Government. They saw their advice as coming from a partial group, on one side of the argument; the advice might have been in the public interest but nonetheless came from a group which represented public bodies and not citizens. They expected the Minister to have much wider consultations with other interests so that this would be a process of integrity they could stand over, but they were sorely deceived in thinking that would happen. There was no intention of having that wider discussion.
If evidence were needed for the narrow political motivation behind this measure, the Minister for Justice, Equality and Law Reform quickly provided it. He made a blatant attempt to muzzle the Information Commissioner when the issue was first debated in the House.
The Government, in its haste to bounce these changes through the House, does not even know what is in the Bill. It is manifestly untrue for the Taoiseach and the Minister to state that the Bill does not in any way interfere with the right of individuals to access their personal records. Access to records for persons who believe they have been harmed in the past by the State will be fundamentally altered. Such persons will no longer have access to reports related to the activity which damaged them and will only get access to such reports if they make specific reference to their case.
The Joint Committee on Finance and the Public Service heard from the One in Four group, which represents those abused in institutions of the State, that its members' right of access to records is fundamentally altered by the Bill. In his speech, the Minister did not even pay the group the courtesy of addressing the concerns it raised, so little value does he attach to it.
A parent seeking access to records regarding an issue which is before any form of legal inquiry will be refused access under the new provisions. These are not trivial changes, but ones which will intimately affect some of the people most hurt by Government and State over the years. If the Minister were to bother consulting some of the Government backbenchers who sat through the hearings of the Joint Committee on Finance and the Public Service, he would find my points are accurate. He will hear their concerns even if they are not here tonight and he had better respond to them.
The Bill dramatically changes public access to records. Under the current Act, which will be butchered by the Minister, a record had to fall into one or other of several categories if it was to be exempted. It either had to be submitted to Cabinet, one from which the Minister's statement in Cabinet could be inferred, put together solely for a meeting of Government or inherent to an ongoing deliberative process. Even then, such records were not given class exemptions and refusals were always open to appeal.
The fundamental changes now proposed profoundly alter the opportunity for citizens to find out how decisions are made on their behalf. Gone is the presumption of openness unless a record is likely to cause harm. In its place a blanket of secrecy is imposed on every record related to the policy of Ministers. In addition, an unchallengeable certification system, which can spread the code of secrecy to every public body in the State, is to be operated by Secretaries General. Gone is the opportunity to appeal decisions of refusal in this area of governance.
The presumption of openness, the hallmark of the original Act so criticised by the Minister of State at the Department of Transport, Deputy McDaid, will be removed in its entirety. It will be removed with no right of appeal for all public bodies in a deliberative process, virtually all ministerial communication on policy issues, all information before tribunals, memoranda to Government, all communication with the diplomatic service and all committees certified as assisting Cabinet. By reversing the onus of proof, it dilutes openness in respect of every request to a public body concerning a matter under deliberation. Instead of needing evidence of harm to refuse the release of a record, a public official will be able to refuse simply on the basis that in his or her view the release of the record in question would be of no public benefit.
The Act will also be fundamentally changed by the indiscriminate set of exemptions stretching far beyond Cabinet discussions, which the Minister seeks to introduce. He wants to throw the veil of secrecy wide so the tracks are well covered. The considerations which give rise to a refusal will become more difficult to ascertain under the Bill.
The old ways are most certainly reasserting themselves. The Bill offers a new definition of Government which extends secrecy. This definition was described by the Information Commissioner as "much more far-reaching and constitutionally unrecognisable". Once certified, an advisory committee will get all the protection of Cabinet Ministers in protecting the records it generates, an extraordinary measure.
None of the tests of reasonableness and no time limits or other measures will be imposed in respect of this new certification process. The head of a public body who decides to release a record will need to be satisfied the public good is served not only in respect of his own agency, but also in respect of every other public body. I have never heard of a more far-reaching pretext for refusal of records. It is unrealistic to expect the head of one body to be able to recognise the needs of other public bodies and be certain they will not be adversely affected by the release of records.
The Minister is taking a profoundly conservative approach to the release of information. I suspect he does not even know the details of many of the provisions of the Bill, which go far beyond the changes recommended by the high level group. This was evident to anybody present at the proceedings of the Committee on Finance and the Public Service. In regard to the protection of records other than those directly submitted to Cabinet, for example, the high level group recommended refusal to be used sparingly and only in the appropriate context. None of these qualifications appears in the Bill.
The high level group explicitly disagreed with the idea of giving groups of officials the same protection as enjoyed by the Government. It did not recommend introducing the obligation on public bodies to anticipate the secrecy needs of other bodies when making decisions on requests. It envisaged that the protection of ministerial communication would be restricted to tightly defined circumstances, not the much broader definition provided by the Minister. It did not recommend that briefings associated with parliamentary questions be exempted from release. While members of the Government have relied heavily on the group, clinging to it as the source of defence for their proposals, the Bill goes far beyond anything the group countenanced.
The Minister for Justice, Equality and Law Reform described the members of the high level group as persons of the highest integrity and independence. Persons of integrity they certainly are, but the individuals in question would not even claim to be independent in respect of freedom of information. They are clearly on one side of an important transaction between the citizen and the official bodies which act on the citizen's behalf and cannot, therefore, be regarded as impartial or the sole interpreter of what might be in the public interest with regard to this relationship.
In a telling sentence on page 12 of his report, the Information Commissioner was forced to observe, "it is clear that my view of the Freedom of Information Act, as originally framed, differs from that of the High Level Group." In this regard, he was hotly contesting the opinion expressed by the high level group that the overarching policy of section 19 of the Act is that Cabinet records should be exempt from access for a reasonable period and that this is necessary if the Cabinet process and the exercise of collective responsibility are not to be constrained. There was no such presumption in the original Act. The group advocated a system of mandatory exemptions which was not a feature of the Act so roundly criticised by the Minister of State at the Department of Transport, Deputy McDaid, and his colleagues in the Fianna Fáil Party.
The Information Commissioner was right in pointing out that the Bill flies in the face of the whole thrust of the Freedom of Information Act. I note the Minister again contemptuously throws aside the serious critique of the Bill presented by the Information Commissioner. The Minister's contempt for a report provided by the Oireachtas, on which we have had hearings, and the fact that he did not have the decency even to listen to the Information Commissioner augur poorly for the many hours of debate we will spend on Committee Stage.
The crucial question the House has to decide is how far should the public rights to information be compromised to protect Cabinet collective responsibility and the obligation of Ministers to properly prepare memoranda for submission to Cabinet. These are solemn duties the Minister undertook on his appointment. It is for Ministers to protect the collective responsibility of Cabinet. It is not a penalty to impose on the public in respect of its rights. Ministers cannot shirk their obligations by saying the only way to enforce collective responsibility is by making sure the whole system is closed down from public view. That is a contemptuous view and there is no evidence to support it.
In this case, Ministers have known for the past five years that they operated under an obligation to start releasing records on the 21st of next month in respect of the decisions they took and now that the time for examination of the quality of their decisions is coming up under law, and there is an opportunity for the public to see how business has been conducted on its behalf by these Ministers, they are running for cover. Deputy O'Donnell was right. She spoke for everyone in this House and I hope she has the opportunity to do so again during this debate.
Hear, hear.
Ministers are running to ground. They are not willing to face up to their legal responsibilities which they have borne for five years. There is not a shred of evidence to suggest that Ministers have not been operating Government in a way in which they submit memoranda in full detail. The Minister for Finance came into this House and said that he was paid well for making decisions and that he did not expect everyone to agree with them. He said he was a Minister with courage and that he will make his views known in any forum.
That is right.
However, the Minister is telling us now that the Ministers who surround him are so wimpish and useless that they cannot submit a memorandum to Government because they are afraid that in five years their views will be portrayed in an adverse light. Such Ministers should not have the seal of office that was given to them by the President. If they have, they should give them up now.
They should go back.
I do not agree with everything the Minister does but I know him as a Minister who is courageous and has conviction. How can he say he wants to provide cover for contemptuous Ministers who do not have the courage of their convictions to say what they believe about an issue that is up for public decision? I cannot understand the reason the Minister is doing that. I will give the Minister the opportunity to explain, if he wishes.
He has no explanation.
The Minister should surprise us. He should give us his thoughts.
The question that must be asked is who is responsible for policing collective responsibility. Is it Ministers or the public? How far must the public's right to information be compromised in order to bolster these Ministers who will be deflected from their duty so easily? Is it to be totally protected? Is the public to see nothing? Is there to be no appeal? Are they to be protected for a decade? Is it to be extended to every scrap of ministerial communication to any group assembled in the name of a Minister? I believe not. This is bad legislation. What tests should we apply if we are being asked to make such a fundamental change?
What is remarkable about the testimony of the high level group and the testimony of the Minister in this debate is that not a shred of evidence has been submitted to suggest that the existing Act has damaged Government decision making processes. No example was given of where a Minister failed to submit his or her views. There is no example of evidence that Cabinet procedures had become cumbersome and long-winded, with all decisions being left until the Cabinet meets. Not a single example of any harmful release of information has been cited by Ministers in the course of this debate, yet we will fundamentally change the basis on which citizens have rights to information. How can that be squared with Ministers' responsibilities? They know they are responsible for this but the examination is upon them and they want to change the rules. They are willing to use their big majority to force this measure through the Houses.
I note that some commentators in the press say that the extension of time is perhaps understandable. That case is entirely unproven and it deserves the most careful assessment by this House. The five-year rule was intended as a discipline and was inserted in the public interest. There was good reason for the presumption of openness in the original Act. It has clear public advantages. It means that the motivation for decisions taken by Ministers must stand up to scrutiny when they are revealed five years later. It means that Ministers must be careful when they make decisions, that they must do so on the basis of the best advice available and that the public will see the advice they used. It means that the public will come to understand how decisions are reached on its behalf. It means that if information comes out, they can still apply for the protections that exist if damage results from the release of that information, and there are ample protections in the legislation to protect memoranda that could be genuinely damaging to the public interest. There are exemptions for security, defence, international relations and umpteen different reasons in the Act.
I am far from convinced by the argument put forward and the picture of quivering Ministers fearing the adverse portrayal of their views. These Ministers are contemptible. The arguments have been made entirely without evidence. They infer that Ministers will make worse decisions if they are mindful of public opinion in five years.
This Bill has little to do with delivering better Government. It arises from a view that the public cannot be trusted with so-called arguments and that the Government knows best.
Hear, hear.
The philosophy of this small coterie around the Cabinet table and its Secretaries General who will issue instructions to close down public access to information is that it knows best. It is a philosophy, ultimately, of contempt for the public. The Bill is a major step backwards for the Oireachtas and it deserves to be roundly rejected.
I move amendment No. 1:
To delete all words after "That" and substitute the following:
"Dáil Éireann:
– noting the outstanding success of the Freedom of Information Act 1997 in achieving greater openness and accountability in the decision making process in Government and ensuring the access of individual citizens to information held about them;
– further noting the comments of the Information Commissioner on October 10, 2002, that he was ‘fully satisfied that the provisions of the FOI Act as they stand are more than sufficient to protect all of the essential interests of Government';
– conscious of the serious concerns that have been expressed about the impli cations of the Government's Bill and believing that these proposals represent a complete negation of the principle of openness and the right of the public to know;
– condemning the failure of the Government to consult with the Information Commissioner and FOI user groups;
postpones the Second Reading of the Bill until such time as the Information Commissioner has been asked to:
(a) initiate and complete a process of consultation with interested parties;
(b) examine all proposals for amendments to the 1997 Act; and
(c) report back not later than April 1, 2004, to the Oireachtas Joint Committee on Finance and the Public Service.”
What is the Government afraid of in relation to freedom of information? What has been revealed to date under the Freedom of Information Act? It includes the true cost of the Bertie bowl; how a £4 shelf company got the swimming pool contract at Abbotstown; the full facts on railway safety; how tax breaks were created for a handful of private hospital operators; the bodies that received charitable status for tax purposes; the fact that only 3% of teachers are inspected every year; and the fact that there was a raging fight in Cabinet between the Minister for Health and Children, Deputy Martin, and an understandably enraged Minister for Finance who could not understand the reason all the money he was spending on health was being thrown down the tubes. That is what has made this Government afraid of freedom of information and what has made it run for cover. We are living in dangerous times. Will the Secretaries General of the Departments of Foreign Affairs, Defence and Transport certify that we are not entitled to know about the number of military planes landing at Shannon? That is the power the Minister gives them in this Bill.
Debate adjourned.