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Dáil Éireann debate -
Wednesday, 26 Mar 2003

Vol. 563 No. 5

Freedom of Information (Amendment) Bill 2003 [ Seanad ] : Second Stage (Resumed).

The following motion was moved by the Minister for Finance, Deputy McCreevy, on Tuesday, 25 March 2003:
That the Bill be now read a Second Time.
Debate resumed on 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 implications 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.”
–(Deputy Burton).

I wish to share time with Deputy Cowley.

Open government is good government and it is essential for democracy. We need to see our State institutions and bodies operating in a new spirit of openness and transparency. This is the way of the future and instead of battening down the hatches, we should be developing it further.

It is not just about the media and the journalists and access to information. I understand how politicians and civil servants get frustrated by the media's off-the-wall questions, which we all must suffer now and again, but we must look at the bigger picture. Freedom of information is in the public interest and in the taxpayers' interest and, above all, it contributes to the rights of citizens and hence my concerns about this Bill.

I congratulate Ms Emily O'Reilly on her nomination as Ombudsman and Information Commissioner. I hope she will be a thorn in the side of officialdom. She is a strong supporter of freedom of information, and I wish her and her family well.

I worked in the public service for over 20 years. I have always tried to treat the public with respect and dignity. After all, as a public servant I was there to serve the public. As legislators, we can multiply the responsibility by about 500. The public has a right to know and freedom of information helps the wider society. Of course one must be sensitive on certain issues, but we can deal with these through dialogue, debate and proper amendments.

We saw an example of the public's right to know when Mr. O'Leary appeared before the Joint Committee on Transport yesterday. It is proper and fair that he appeared and answered questions, however, I disagreed with the manner in which he treated it as a circus and I was a little disappointed with the amount of coverage he got because of his behaviour. It is worthwhile examining people like him, who are politically on the right of Margaret Thatcher, and their attitude to trade unions in general.

On the question of health boards and disabilities, this Bill, if enacted, can damage the area of questioning the right to services. Even at this stage, I would urge the Government to listen to the people and leave the right to freedom of information. It is essential for openness and transparency and, above all, it is essential for good practice in our society. It is also the sensible way forward for those who believe in democratic values and all who demand justice and fair play.

I am happy to speak on this Bill. I am amazed at the speed at which this Bill is going through, considering that we, in west and north-west Mayo, are living in the most economically deprived area and badly need legislation to provide for a tax incentive scheme. Legislation can be brought through quickly when there is a will to do so. Where there is a will, there is a way.

Everybody agrees there was abuse of the Freedom of Information Act 1997, but there is no point in throwing out the baby with the bath water. What is happening is no accident. It is a deliberate attempt to withhold information from the people. The Taoiseach himself said that he wanted open government when the Flood tribunal was established, but this will be a backward step.

People talk about the cost of the Freedom of Information Act, but let us make a comparison with the situation before the Act was introduced. How much would we have saved in the costs of tribunals – the Moriarty tribunal, the beef tribunal, the hepatitis C blood scandals – if the Act had been brought in earlier? Information relating to these would have become available under the Freedom of Information Act, had it existed. We have paid a heavy price for not having freedom of information in the past and now we are about to throw out the baby with the bath water. It should be remembered that in 1997 the Act was brought in because of the beef tribunal. The people had totally lost confidence in the body politic and this was an attempt to put some type of balm on the wounds that existed and to allow for transparency. We were promised openness and we were told these scandals would never occur again. Now, however, we are to go back on all of this.

How can we trust the Government when it is obvious that this is an attempt to deprive the public of information, an attempt that will succeed? People will remember this. The day this Bill is passed will be known as "spin doctor day"– if the Bill is passed at all, which I hope it is not. The Bill aims to provide a safe haven for Government spin doctors because they are such an important part of the body politic and of the Government. At the same time, we have a total lack of real doctors. We should sack all the spin doctors and get some real doctors for a change because we need them badly in our health service.

We will be told how good all this is for us and how it is in our interest not to know what is happening. After all, we are only citizens and these are only decisions that affect us in our everyday lives. They are things we should not know about anyway. Maybe we should not know either about the Government's pet projects, such as more private hospitals, which will drain even more money from our already deprived health services, or making multi-millionaires out of millionaires. After all, it is our money. My prescription is to sack all the spin doctors, because we do not need them, and have truth and openness. This is our protection against the abuse of power by Government. I challenge all those who are promoting this Bill to think about what it is doing and to spell out exactly how much the Freedom of Information Act cost to implement. They talk about the costs, but what about the amount of money that was saved? I would like a comparison. In fact, it has saved us the €700 million we would have been paying for the Bertie bowl.

Organisations such as the NUJ have come out against this Bill and the Information Commissioner, whose authority will be undermined, has spoken out very strongly, saying it is not a good thing. The new exemptions will drive a coach and four through the effectiveness of the Act. Mr. Murphy maintains – and I agree – that there are provisions in the Freedom of Information Act to protect the interests of Government, but what is proposed will automatically suppress all of that. I wonder what will be next – perhaps parliamentary questions? We should consider all the money wasted in the past that the Freedom of Information Act could have saved for us. The Tánaiste, I am sorry to say, is complicit in all this by being a member of the Government, although it is a contradiction of her stated aim of being a public watchdog. It was she who asked questions about the Bertie bowl, but now she is falling into the trap.

The Freedom of Information Act has worked very well for the public. It is true that it has warts, but the cure for warts is not to kill the person who has them. We do not kill the person or neuter him or her, but get rid of the warts. If there are warts, let us get rid of them. The public demands that this facility be retained. There is so much cynicism around and each of us must deal with that. Working in the community and going into politics, we are all tarred with the same brush, but it is unfair. The Freedom of Information Act allows for openness and transparency to restore the confidence of the public. The amendment of the Act is a retrograde step and I oppose it.

I wish to share my time with Deputy Kelly.

I regret that I find myself speaking on this Bill. As a fairly recent law, the Freedom of Information Act 1997 has all the hallmarks of legislation which was drafted and considered in haste and which now needs to be remedied. There are laws on the Statute Book dating from the 1800s – those in the area of mental health are in urgent need of updating – so it is unfortunate that precious Dáil time has to be given over to amending a recent law such as the 1997 Act.

The Government, in its wisdom, has drafted a whole raft of amendments, with some of which I agree and some I do not. I am critical, however, of the manner in which the review of this legislation has taken place.

It was sprung on an unsuspecting Parliament and an unsuspecting public. Over the past two weeks, I partook of the information sessions at the Joint Committee on Finance and the Public Service, which were appreciated by the Oireachtas Members and very necessary to glean information on the amendments. Certainly, the impression I got – as did other contributors to the committee's deliberations – was that the high-level review group saw itself as only one ingredient in the consultation process. There is no doubt that in a republic, where government is for the people and by the people, the public should have been consulted. Exclusion on this feeds the cynicism of the media and, more importantly, the cynicism of the public towards politics. The Government's handling of this issue has done nothing to advance the standing of politics in the public's mind and that is unfortunate.

All organisations have the right to decide how to organise their business in private and this includes the Government. On behalf of its citizens, it is incumbent upon the Government to explore the many alternatives to and angles of an idea or policy, no matter how fanciful the notions, and have the scope to have these debated frankly and freely with officials. Confidentiality permits this to take place in an uninhibited manner. I do not think that the provisions proposed in the amendment are designed to protect what Deputy Bruton referred to as "whimpering Ministers". Politicians are a fairly brazen bunch and do not need protection. In any event, they must go before the people at election time. Rather, the intention is to offer the means to be free and forthcoming, in particular to civil servants who are not public figures. It is not in the interests of our society if the workings of Government are undermined.

I notice there is not a quorum in the House.

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

I am sorry that Deputy Burton, having thought I deserved a quorum, decided not to stay.

It is not in the interests of our society if the workings of Government are undermined. Advice needs to be clearly detailed and transparent and not subject to transmutation. The way to guarantee this is to have it written down offering the opportunity for prior reflective deliberation. Written advice is clearly understood by all participants in the deliberative process. I accept the bona fides of the Minister for Finance that if the decision making process is not protected by the measures set out in the Bill, the workings of the Government have the potential to be seriously undermined.

While I have some misgivings over the Bill I welcome the indication that further amendments will be considered by the Government.

When was that announced?

There were indications to this effect. I do not know if it was announced.

The Minister said last night he would not accept any amendments.

My biggest difficulty is with section 4, which amends section 6. This relates to right of access to personal records. The most contentious amendment involves substituting the word "contain" for the words "relate to" in section 6(5)(b). Despite the assurances of Ministers that access to personal information will not be curtailed I do not believe this to be the case. The amendment as framed would limit access to personal records because these are now defined in a much narrower way. The case for this amendment to be abandoned was made to the committee by, among others, One in Four. If this amendment is allowed to be incorporated into the Act, it will have a profound effect on the information that would be available to victims of abuse. Information which would be important in the redress process – non-personal information related to people's incarceration – would be denied.

The State has begun to face up to its responsibilities in this tragic and sordid period of its history and any measure which would appear to block access to information to assist in the resolution of these cases must be resisted. A government acting in concert with the organisations settling the abuse cases, as the Government would like to describe itself, would withdraw this section of the Bill.

Will the Deputy vote for that?

The second area of concern to me is section 12 which amends section 19 of the Act and I am particularly concerned about the proposed definition of "Government". The definition in the Bill subverts the conventional and indeed constitutional definition of government and would permit a very wide and some what arbitrary net to be cast into which many groups would now fall and therefore be excluded from the provisions of the Act.

There is a public interest in having effective government and a public right to know. These seemingly conflicting interests must be married in a fair way by the Government.

I thank Deputy O'Malley for sharing her time with me. The Freedom of Information Act, which came into force in 1998, has made a valuable contribution to our democracy. Confidence and trust in Government is essential in a democracy and the freedom of information plays a significant role in building these. We are committed to providing information and there was never as much information available to the public. Radio, television, newspapers, the Internet and computers mean an unprecedented volume of information is available at the touch of a button. People can get all the information on everything they want. Information is available from politicians, particularly Deputies and Senators. While some may give information more freely than others there are many people in the House who are readily available to disclose every little tittle-tattle that takes place inside and outside, which is welcomed by many people.

We are also committed to ongoing reform. In politics, business or life in general, most people at times are asked to look at different aspects of their lives and to review, reform and try to improve them. After five years it is sensible to review the Act. We should not make Acts and laws and leave them there saecula saeculorum until the end of time without reviewing them occasionally. It is particularly appropriate to examine its consequences for the nature and effectiveness of governance in this country.

The major responsibility of a Government is to govern. That should overshadow all other aspects of responsibility. A government will not be thanked on the day unless it comprises reasonable, sensible, responsible people. Where possible it is essential that we be governed in a manner that has due regard for the concepts of accountability and transparency. However, I am sure we all realise the serious need for good government and recognise the number of people that depend on the country being properly governed. We need to live in a peaceful law abiding society. We need to be able to go about our daily lives in peace. Or children need to enjoy their youth and need to be educated. Our elderly need to be able to retire and live in peace and harmony. That is the responsibility of a government. The proposed amendments to the Act are measured and sensible ensuring the Government is able to perform its first duty, which is to the people.

Collective responsibility is a constitutional imperative for members of the Cabinet. It is both reasonable and sensible for the Government to enact changes that seek to comply with that imperative. For a Cabinet to be effective, there needs to be a full, frank and free exchange of views among its members. Since the foundation of the State every Cabinet has had its differences of opinion. When a decision is reached a Cabinet must, and should, unite behind it. The tradition of frankness will be lost if these exchanges are to be revealed. We will read and hear of divided Cabinets and Government splits – this is clearly detrimental to authoritative government. People have a responsibility to unite together for the good of the majority and minorities sometimes have to suffer for the good of the majority. We all have differences of opinion no matter what club or organisation to which we belong. It is best to allow everyone to sit down, exchange ideas and come up with a consensus of the majority view. Splits and divisions are not in the interest of relationships. People want stability, particularly at this time when people seek it for our country and our world. If members of a Cabinet have to exchange views, the Cabinet meeting is the time to do so. Protection will be applied, not just to Cabinet discussions but also to non-Cabinet communications between Ministers. This is an extension of the doctrine of collective responsibility.

The period of retention is being extended from five to ten years. I am sure people will agree this is not unreasonable. While some people seem to think Governments in this country last for ten years – someone said this to me last week – there was an election last year. The extension of the period of retention ensures greater democracy and a greater documentary record. When history comes to be written, it is only proper that readers will be able to read the facts of what happened. If we are to have Cabinet discussions that are open to everybody, members of it may not say what they feel or think and future historians will miss the things that went unsaid.

The existing provisions regarding upfront fees—

I notice there is not a quorum in the House.

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

I would like to point out that there are no members of the Labour Party or Fine Gael in the House while it discusses this important Bill over which they have created such a fuss.

On a point of order. Deputy Woods should remember that he perfected this technique when Bills were passing through the House when he was in Opposition.

That is not a point of order.

I hope the Deputy is not too disappointed about the absence of Deputy Woods.

Will the Deputy stay with me?

I would be delighted to stay while the Deputy speaks on this iniquitous Bill.

It is good to see the Opposition Deputies have returned. I compliment Deputy Fiona O'Malley on her fine speech.

We will compliment her when we see her voting record on the Bill. That is the time to put up or shut up.

As the Deputy knows, responsible government is the bottom line.

Acting Chairman

Deputy O'Keeffe should refrain from interrupting.

It should be number one in everyone's mind and heart that we owe it to the people to have serious and responsible government. There are many people depending on us—

Acting Chairman

Deputy Kelly is inviting responses and this is disrupting proceedings.

If the current position prevails, Ministers may be reluctant to express their views if records are kept and that would be unfortunate. Even after the modest amendments to the Act, Ireland will continue to have one of the most liberal FOI regimes in the world.

Fianna Fáil is restricting it.

Protection will be applied not only to Cabinet discussions, but also to non-Cabinet communications.

Will the Deputy circulate his script?

It will remain the case that a fee will not be charged for requesting personal information. The Government needs to be effective and trusted.

That is for sure.

The present Government is effective and trusted. We have a responsibility and the people are number one. They elect people to be serious. The Government is committed to freedom of information and to governance. The amending legislation strikes the right balance to meet these commitments. If requested to tabled amendments, I shall request the Minister to consider same.

The Government has always been and continues to be fully committed to access by individual citizens to their respective personal records. There is a great deal of information in the public domain and there is no problem accessing it. Apart from radio, television and newspapers, the largest information bank comprises Deputies and Senators who are only too willing to provide the information requested of them at any time.

We cannot get information through parliamentary questions.

All my colleagues will provide all the information they have, if requested, as will Opposition Members.

Why bother with the Bill?

We are here to give as much information as we can but we must be responsible and serious and we must put the Government and the people first.

The former Minister for Education and Science, Deputy Woods, was crowing about the calling of quorums earlier. During the debate on the Freedom of Information Bill on 11 March 1997, he stated, "Government Deputies should hear some of this discussion. They seem to have no interest in freedom of information" and he called a quorum. Deputy O'Malley is also concerned about the amendments being introduced to this Act. She will have an opportunity to say she stands behind the Republic, as her father so eloquently did, when the vote on Second Stage is held.

Fine Gael is opposed to the Bill. The main grounds for our opposition to this measure are that the proposals in this legislation run counter to the objective of making the public service and Government more open and accountable to the people, for which the Minister of State says the Government is responsible; the process by which this Bill was drafted is deeply flawed; and the political motivation behind this Bill is cynical and hypocritical.

In 1996, the rainbow Government published a White Paper entitled, "Delivering Better Government". The rainbow Government recognised the need to make the operation of the Government and its decision making processes more open and transparent to the citizen. We viewed it to be necessary if confidence was to be maintained in the State and the institutions of the State. Public confidence in the conduct of Government business had been dramatically weakened by scandal after scandal, which are still the subject of inquiry by tribunals set up by this House to determine the facts surrounding certain decisions and activities. If anything, the need to demonstrate an open and transparent decision-making process is greater now than it was in 1996 when "Delivering Better Government" was published.

The enactment of the Freedom of Information Bill 1997 was one of the central recommendations of "Delivering Better Government" and the Act has had far ranging and largely positive effects on Government and the Civil Service. Most people, regardless of their political affiliations, would recognise that. The Act is widely acknowledged to have generated greater transparency in the conduct of Government business and in promoting a sense of accountability in the public service.

An evaluation of the progress made under "Delivering Better Government" by independent consultants, PA Consulting, concluded last year that FOI has "undoubtedly improved the accountability of the Civil Service to the wider public." That is good and everybody recognises that. The PA Consulting report contains no references to the excuses that have been put forward by the Government to support the legislation. The only concern about FOI which the independent consultants identified was that the economic cost of servicing FOI was seldom acknowledged and hardly ever quantified. However, they continued: "this is not to argue for any diminution in such openness and transparency, but is to suggest that the costs involved need to be acknowledged." The Minister for Finance has done that but that was the only recommendation made by the independent consultants. All Government members should be able to stand up with pride in the knowledge that they are doing the business of the people and making decisions that should be made known in the public interest, except where national security is concerned. There is a number of other exemptions.

The Long Title of the Act set out the mandate of the legislation. It stated that access should be granted "to the greatest extent possible consistent with the public interest and the right to privacy." This statement created the presumption that disclosure of information would be the norm and that this norm would be departed from only when clearly necessary. The thrust of this legislation runs totally contrary to the spirit of the Freedom of Information Act 1997. For example, in section 12, by substituting "shall refuse" for "may refuse" in the original Act, the balance has been shifted more and more towards secrecy. Section 12 also provides for a redefinition of Government to include committees of officials and the exemption of the work of such committees from release again runs totally contrary to the spirit of the original Act. This means that Secretaries General are also entitled to refuse a raft of requests for information relevant to decision making without appeal.

The public think because of comments made by Ministers that what one says at the Cabinet table is recorded and the communications between Ministers are the central issues in this debate. For example, the Minister for Justice, Equality and Law Reform used the example of him having a row with the Tánaiste over "some daft idea that she has brought forward" and he stated it would be recorded on paper that would be available for release under FOI. That is not the case. Cabinet decisions are recorded but Cabinet discussions are not. There is nothing for Ministers to fear if a row breaks out. For example, if the Tánaiste brought forward a daft proposal, it would have to be subject to "an intellectually penetrating analysis", according to the Minister for Justice, Equality and Law Reform.

The public expect Ministers to stand up for them and argue the point. There is nothing about which they should be ashamed, nervous or afraid because there might be differences of opinion leading to a decision. Such decisions are subject to the collective responsibility of the Cabinet. The Government is now saying that in crucial areas of policy making it wants to revert to the pre-1997 culture, in which secrecy was the norm and the release of information the exception. The thrust of the Bill is to row back on the spirit and letter of the original Act. This sends a signal that the Government is running scared of transparency and accountability in the way it does its business. It also suggests to people that something is wrong because the Government is afraid to release information relating to how certain decisions were taken.

Why should that be so? If the Government wants to do its business properly and be open, accountable and transparent, it should stand by the Act. The words of Fianna Fáil Deputies, who were in Opposition then and are now Ministers, are in the Official Report. There was nothing wrong with it according to Deputies O'Donnell and O'Dea. Deputy Woods wanted the Official Secrets Act repealed and Deputy Killeen wanted far more transparency. This has now changed because some people in the Cabinet decided they did not want the public to find out about how decisions were taken. They set up a group of five Secretaries General as a high level group and hid behind their recommendations that the Act should be amended. This decision means that citizens will be denied the full flush of information relevant to these decisions.

I am concerned about the way in which the legislation was drafted. The Government was back in office only a short time when it established a high level group to look at the Act. A group of Secretaries General did not set themselves up as a high level group over a cup of coffee in one of the Departments – they do not do such things. Therefore, with April approaching, a Government Minister decided that a high level group should examine the Act and that their recommendations should be restrictive because the Cabinet did not want the public finding out about things they did in the run-up to the general election. A small group of Ministers, from the Taoiseach down, effectively run the country and part of the running of the country is the control of what comes before the Cabinet. Therefore, I am quite sure that one of that quartet took advice from a spin-doctor or consultant that the high level group should be set up.

It is not good enough to refer to what happened in 1997 because the words of Fianna Fáil Members are on the record. It is not good enough to hide behind a high level group when none of the other Secretaries General, the Opposition parties, the people or the Information Commissioner were consulted. Earlier today, I wished the newly-appointed Information Commissioner, Ms O'Reilly well. In that context, if the Government wants to go through with this, it should finish the Second Stage of the Bill and withdraw it. The Bill should then be parked until the new Information Commissioner has had time to reflect on the Act and make her assessment of its validity and the validity of any new proposal. The Government would then have an Act that would go down well with the public because they would see that the Government is not afraid after all, but is amenable to having a new Information Commissioner give her verdict, analysis and views on the Act. There is nothing wrong with that and, if the Government is serious about its business, it should do that.

I do not know who set up this high level group or on whose instructions it was set up and I probably never will, but the lack of consultation has been indicative of the way the Government has gone about this. Several statements made by the Government underline what it has not done – The Taoiseach's action programme on regulatory reform, launched in 1999, stated that "there should be adequate consultation with interested parties before new legislation is introduced." That has not been followed up on. In February 2002, the Government's paper Towards Better Regulation, stated that –"one method of engaging citizens in decision making is the use of a public consultation processes." That has not happened. The recently concluded Sustaining Progress agreement identifies as a key principle the promotion of "greater consultation and transparency in formulating legislation and regulation." The Government says one thing and does the opposite when it gets the chance, thereby giving two fingers to the public in terms of their right to have all relevant information.

The Deputy is using un-parliamentary language.

The episode in the Seanad – which sat until half past three one morning – when the Minister for Finance and his Minister of State were across the water enjoying the facilities in Cheltenham, spoke for itself.

The Deputy is referring to the wrong week.

Not one amendment was tabled. I felt sorry for the Minister of State when I was there at one o'clock in the morning and saw him besieged by forceful and vociferous Fine Gael Seanadóirí.

I came through it.

He was left on his own – isolated and without the same back-up other Ministers have.

I had a good back-up team.

Fair play to the Minister of State for taking it on because it was a lousy job they left him with. I am sure that when they were enjoying themselves across the water they were not thinking of the Minister of State, Deputy Michael Ahern, having to run the gauntlet with this.

They did not even share their winnings with him.

On 4 February, in reply to a question from me, the Taoiseach said that –"suggestions from the Information Commissioner and some of the people who have worked on this will improve the Act." As we all know, the Information Commissioner was not consulted by the high level group and had to initiate contact with the Department of Finance himself so that he could make comments. The Government was proposing to do something with an Act that is central to the Information Commissioner's remit and he had to ask if he was going to be consulted. On 12 February, the Taoiseach told the House that the high level group "went through the Act and got the views of those who worked with it." Were Deputies McGrath, O'Keeffe or anyone in the Opposition asked? The answer is "No". The Taoiseach's words, which are on the Dáil record, were not implemented. What does one call that kind of carry-on? Again, the Taoiseach was being economical with the truth when he suggested, in relation to sections 24 and 25 of the Act, that it would allow for sensitive material which affects security and the defence of the State, international relations and matters relating to Northern Ireland to be legitimately withheld. We know that information does not come into the public domain anyway and with good reason.

On 8 March, the Taoiseach said that the high level group "was only asked to look at the limited area of collective Cabinet responsibility and the deliberative process. It was the only change which it recommended." This is not the case. A review of the high level group's own report shows that it made recommendations about fees, inter-departmental consultation, extension of the Act's operation and a number of other matters.

The Minister for Justice, Equality and Law Reform, together with his soul-mate, Senator Leyden, attacked the decision by the Information Commissioner to publish a commentary on the Bill – a commentary which Members on all sides of this House and in the Seanad found useful and very informative. In the same debate, the Minister said that the Government "was not and is not obliged to consult" on legislation. According to him, it is open to the Government "to decide to take its own advice".

I find that odd since the Minister has adopted an entirely different approach in relation to the Telecommunications (Retention Traffic Data) Bill. This week, in a message posted on his website, he tells us that he has been converted to the desirability of consultation because he says "before the new legislation is ready for consideration by the Government, my Department is consulting widely on its content." It would be interesting to hear from the Minister as to why one Bill merits consultation but another does not. The Minister has argued that if information continues to be available freely, it will reduce the frankness with which issues are discussed. He has also suggested that the plain people of Ireland would not be able for the intellectually stimulating debate which takes place. I do not accept that argument.

People, regardless of whether they live in Louth, west Cork, Wexford or Donegal, are entitled to peruse the information that led to the intellectually stimulating decisions made by Cabinet. Even if the prospect of disclosure causes a reduction in candour and frankness, the real issue is whether the efficiency and quality of the deliberative process will suffer to an extent that it is against the public interest. The people who operate under the Act as it stands are obviously already careful in the messages they write at the bottom of the pages. One will not get any more of the stuff that appeared in the beef tribunal where certain people were left holding pieces of wood that would not be conducive to good hygiene, if the House recalls that comment.

The Government believes that potential political embarrassment is more important than the people's right to information. It believes that the papers held by public bodies belong to those bodies and the Ministers, not to the people. People will have to pay to see them. I reject that. This is a cynical and hypocritical move by Government. It rolls back a significant cultural change that was initiated by the rainbow Government. It is the product of a flawed process which ignored all the norms and Government policies regarding adequate advance consultation. It is driven by a purely political agenda which seeks to protect the Government from future political embarrassment.

Many Members on the Government side of the House have grave difficulties with this Bill. Given that there is such sentiment, the Government might be as well off to take on board the suggestions put forward by Fine Gael and the Labour Party. It should give the new Information Commissioner time to assess this Bill and the validity of the arguments and to make a report. Otherwise, at the conclusion of Second Stage, it should accept the Labour Party suggestion that activity be frozen for one year so there can be adequate time for consultation. The Minister should also take account of Deputy Fleming's comments in the committee report, that the matter required more time and substantial amendment.

By persisting with this Bill the Government is putting a pebble in the shoe of every voter. They will be able to walk but it will become extremely painful after a while. While the public might not be aware of all the intricacies of business in the House, it does believe there is something wrong. People believe the Government is trampling on their rights and will restrict openness and the right to information in this Bill. They believe that is wrong. If the Government persists in this way, the public will not forget it. It is a wrong move. The Government should accept the good advice of political colleagues who were elected to the House by the same people who will remove this Government from office in the next election.

I welcome the opportunity to speak on this legislation. The two main Opposition parties have sought more time to debate this Bill but their tactics have been to disrupt the House and limit the time speakers have to contribute to the debate.

The finance committee heard submissions on the Bill from interested bodies over the past two weeks. Most of those who made presentations to the committee were convincing in their commitment to the principle of the legislation and in outlining their fears of how it could be affected by the changes the Minister is proposing. The Information Commissioner spoke to the committee and was open in his analysis of the existing legislation. He feels that the Act is working well. He said that any legislation, including the Freedom of Information Act, should be reviewed after five years.

It is fair to say he was disappointed that, having operated the Freedom of Information Act for five years, he was not consulted, even though his office has a good working knowledge of the Act. He believed, as did many members of the committee, that his office would have had a considerable input into any amendments which would be considered by the Government. However, he accepted the decision. I believe the high level group which reviewed the Act should have consulted the commissioner to get the benefit of his experience of how the Act had worked since its introduction five years ago.

The Minister should have consulted him.

The high level group should have consulted with him.

The Deputy should not blame the group. It did its job.

The point is that he was not consulted. We must move on from that.

The Act has been most successful. According to the commissioner's report last year, there were over 15,000 inquiries under different provisions of the Act. The commissioner believes the introduction of the amending legislation will not make any difference to the level of inquiries. With regard to the introduction of fees, I am pleased the Minister has decided not to charge fees where personal information is being sought by individuals. Fees would have had the effect of discouraging people who might not have the means to pay them from pursuing their inquiries.

The Freedom of Information Act is seen as a model of such legislation by many countries. Indeed, when the Scottish Parliament was drafting freedom of information legislation last year, it used the Irish Act as a model.

That model will have a leg removed now.

In Poland, people say Ireland has the best legislative ideas in its Freedom of Information Act.

Few people criticise the fact that, in the case of Cabinet papers, the time limit will be extended from five to ten years. In fact, 15 years might be a better time limit. There is little conflict in opinion throughout the country and among most Members of the Oireachtas about that aspect of the legislation.

The Freedom of Information Act protects Irish citizens and gives them confidence and trust in Government by virtue of the fact that they can access information in relation to their personal files. This Government has significantly extended the application of the Act. It now covers more than 370 bodies, compared with only 67 bodies when it was enacted five years ago. The range of bodies covered includes local authorities, health boards, voluntary hospitals and numerous other State agencies.

The principal changes in the amending legislation are designed to improve the effective discharge of Government.

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

When the freedom of information legislation was originally enacted in 1997 it followed a detailed consultative process involving a number of individuals and groups. It was based on the principle that citizens own public information and that they have a legal right to access it from Departments and local authorities. While it has taken some time, the extension of restriction of access to Government records from five to ten years is welcome and I would like to see it extended much further. This was one of several recommendations that emerged from the review of the high level group. It is worth recalling its commentary with regard to this matter. It stated:

It is evident that a five-year moratorium on the release of Cabinet records is far too short. It does not give Ministers the assurance that they require in order to commit views freely to the record, if those views are to be divulged in such a relatively short period of time.

The new time limit strikes a balance between what many people might require and what is in the current Act. Like so many other public services, freedom of information does not come cheap. In fact, we have seen a case where one freedom of information request to the Department of Finance was estimated to have cost something in the order of €10,000 to process. While there is a fee for photocopying and other incidental expenses incurred by the Department, the charge to the individual involved in that request was approximately €600, which left the Government picking up the tab for €9,400.

Not the Government, the taxpayer.

The Deputy, myself and every other taxpayer.

The person who made the request was also a taxpayer.

In the first year of the Act's operation, one individual made 466 requests, of which 101 were subject to internal review and 35 were appealed to the Information Commissioner. On that point, I wish to congratulate Ms Emily O'Reilly on her appointment as Ombudsman and Information Commissioner.

Does the Deputy have any kind word for Mr. Kevin Murphy?

I already spoke about him when the Deputy was absent from the Chamber.

I am glad the Deputy did so.

Had the Deputy been here he would have heard my comments.

Acting Chairman

Deputy O'Keeffe should refrain from making interruptions.

Mr. Murphy is a cousin of Deputy O'Keeffe, is that not true?

I spoke about the fact that the Irish legislation was seen as a model by other countries, both in Europe and elsewhere.

Why is the Government killing off the legislation? It is destroying the model.

Acting Chairman

Deputy Nolan without interruption, please.

In some other jurisdictions there are freedom of information Acts that do not work but they have been trotted out by a number of individuals as examples of how such legislation can work.

So the Government throws a spanner in the works of the one that is working.

In some Nordic countries, such as Sweden, the system is portrayed as being the example of what freedom of information legislation should be like. When one examines it in detail, however, Swedish Cabinet Ministers do not receive any memoranda and when they attend Cabinet meetings they do not commit anything to paper so that people cannot access background information as to why decisions were taken. I would not like to see that happen in this country, which has a strong record of open and transparent Government. I would not like to see that interfered with.

The Government is closing it down.

Acting Chairman

Can we hear the Deputy without interruption, please?

The Opposition obviously feels upset by some points the Government parties are making but this legislation will improve the Act. There are aspects of the drafting which might have been done differently but, in general, it is good legislation and I commend it to the House.

I thank Deputy Nolan for sharing his time with me and I also thank the Ceann Comhairle for the opportunity to speak to the Bill. I fully support the principle of freedom of information, which makes the process of our democracy open and transparent. The Government is committed to freedom of information as evidenced by the fact that in 1997, when the Act first came into operation, some 67 bodies were covered by the legislation. This Government and its predecessor extended the number of bodies covered to nearly 370. The Government is fully committed to extending it by 2005 to all appropriate bodies. To hear the Opposition wail yesterday and today that the Government is not committed to the Act is to ignore the reality of the situation.

After five years, the Government has decided to review the workings of the Act. This is a good idea because certain issues have arisen which need to be examined.

What are they?

I am coming to that, if the Deputy would like to wait a moment. The first issue concerns the workings of Government itself. As Deputy McGrath well knows, we live in a democracy. On one side is the Government and on the other is the Opposition. At the centre of Government is the Cabinet which is composed of 15 individuals all representing different Departments. Each of these people brings his or her own flair, attributes and viewpoints to any issue that arises, but must also represent departmental views.

Last night the Minister for Finance clearly outlined how the Cabinet works. There are frequent exchanges between Ministers and officials, inter-departmental discussions and, on occasions, sub- committees of Cabinet are set up. All of this is done before the Cabinet comes to discuss an issue. It is not hard to imagine how robust these exchanges may be. Each Minister naturally wants to protect his or her viewpoint and that of their respective Departments. We could imagine the discussion among the members of the management committee of a local development association or a local football club. It is natural and good that frank discussion takes place before any decision is arrived at.

The difference here is that there is collective Cabinet responsibility. Government must be seen to act as a single entity with a single collective voice. Sometimes, as was outlined last night, Ministers and their Departments may be coming from very different perspectives. These perspectives at times may not be popular but in the long-term they may well represent what is best for the country. If they are inhibited in any way from engaging in frank and full discussions, the decision arrived at by Government may well be a weak, or possibly, wrong one. Freedom of information is designed to bring maximum disclosure of Cabinet discussions to the public's knowledge. If the situation were to arise whereby Ministers or their officials had to keep one eye on the immediate release of what they were discussing, it does not take a genius to deduce that their contribution could be altered or hindered. That could well lead to a media-friendly decision but it would not necessarily lead to the right one. Instead of having an effective Government, we would have a weak and divided one. That is one sure way of leading the country down the wrong road.

This Bill is not designed to take away the benefits of freedom of information, rather it is designed to strengthen the release of all information. Despite what the Opposition claims, this Bill will result in much more detailed information being released, information that will truly reflect what was said and done at a particular time. That must be in the best interests of democracy.

I would like to turn briefly to the issue of fees. It has been shown that the operation of the Freedom of Information Act costs a considerable amount of money. We heard last night of one request which cost approximately €10,000 to process. We also heard of one individual who early on in the operation of the Act had costs exceeding €100,000 due to the request that he or she made at that time. It has been estimated by the Department of Finance that a single request under FOI legislation generates costs of approximately €400 to €450. The Minister stated that he has not yet decided on the level of charge that he will implement. A charge is necessary, but I ask him to pitch it at a level that will be within the reach of the ordinary member of the public. I also ask him to examine the possibility of introducing a different scale of fees for an individual request, as distinct from an individual representing a media or large organisation.

There has been a slight misunderstanding in regard to this Bill, in that, it is my understanding that discussions took place between officials from the Department of Finance and officials from the Information Commissioner's office prior to its drafting.

I want to discuss something that happened in this House last night. I am a relatively new Member of the House, but I was surprised at the behaviour of certain Deputies last night. In our democracy, parties in opposition should oppose the Government, but they should do so in a constructive fashion, not in a destructive way. Yesterday they started off by opposing the Order of Business which is their right. They then called a vote on the Order of Business and, again, that is their right. However, it was what happened next that really surprised me. Having had a vote using our electronic voting procedures, they then called for a manual vote. Again that is their right, but it was obvious that this was a form of filibustering. What was achieved, however, was simply a waste of time. Then they repeated the whole procedure on the next item on the Order of Business. As if this was not bad enough, the Labour Party this morning engaged in another form of time wasting and all of this was done in the context of the leader of the Labour Party and the leader of Fine Gael Party stating this morning that they did not have enough time to discuss this important legislation.

The Government has set aside three days of parliamentary time to discuss this Bill. It already has had 28 hours of discussion in the Seanad and Committee Stage is due to be taken next week. How can they complain on one hand of not having enough time to debate the Bill when on the other hand they are actively using every parliamentary device to waste time? This sort of behaviour would not be tolerated in a classroom of national school children. It shows the paucity of constructive ideas that the Opposition has in relation to this Bill. I commend the Bill to the House.

I wish to share my time with Deputy Jim O'Keeffe.

An Leas-Cheann Comhairle

That is agreed.

I welcome the opportunity to address this Bill. I pay tribute to the contribution of the outgoing Ombudsman and Information Commissioner, Mr. Kevin Murphy. In my time in this House, I found him to be extremely helpful, co-operative and efficient in the running of his office and I wish him well in his retirement.

I welcome the appointment of Ms Emily O'Reilly to the position. She has a sharp intellect and her experience in journalism is vast. Is the Government changing the Freedom of Information Act because it knows that she will also be a formidable ombudsperson? Is it afraid that her skills will unearth and allow documentation to be released that it does not want to be released? Is that why it wants to restrict the Bill's provisions?

I wish to comment on what Deputy Devins said. He is a new Deputy. Unfortunately, he was not here in 1995 to 1997 when his colleagues were in Opposition. If he reads the record of the Second Stage debate on the Freedom of Information Bill, as it was then, he will find that one of the Deputies who came into this Chamber this evening and had the cheek to complain about a quorum being called, called for a quorum in 1997. That is Deputy Woods. He called quorums on the previous occasion. Therefore, what kind of hypocrisy does his complaint this evening display? I will quote later what he said about the Freedom of Information Bill in 1997. It is easy to come in here as a new Deputy and point out all sorts of things, but Deputy Devins will find out very quickly that the scripts that are handed to him will blow up in his face and he will soon change his tune about what he is saying.

We are back to the old ways of Fianna Fáil and the old days when its approach was to cover up, conceal and mislead the public. It got away with that at election time, but it will not do so again. If Members opposite believe that this item is passing through this House without the public noticing it, I can genuinely tell them that of all the Bills that went through this House in recent times, I have received more queries in my office on the proposed changes to the Freedom of Information Act than on any other Bill. The Members opposite should not underestimate what the public are thinking in relation to this. They should not be too quick to go through the lobbies to support what the Government said.

I will give Members a sample of what was said in 1997 in relation to all of this. I will start with the great man who frequently writes for the newspapers, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea. In 1997 he was in opposition and very anxious to impress. He was tigerish and anxious because he hoped Fianna Fáil would get into Government and, because he was such a loyal supporter, that he would be made a Minister. He was wheeled out for the debate on the Freedom of Information Bill and, according to column 280 of the Official Report of 11 March 1997, he said:

It is a grave disappointment. It is a minimalist, carefully hedged-in Bill which, if interpreted a certain way, will make very little practical difference to the administration of this country.

He went on to say about section 19, the main section being amended by the new Bill:

This is excessively restrictive. Surely documents which contain analysis, interpretation or evaluation of purely factual material should also be accessible. In addition, there is no valid reason that projections based on factual information should not be acceptable.

The case is made. That is what Deputy O'Dea said in 1997, although he will trudge through the lobbies tomorrow to support the Bill. There is a word for someone who does something like that which begins with "h"– hypocritical. Is that not the word? Deputy O'Dea has moved on from his old position and because he is in government he will row in.

Deputy Woods was also ferocious in opposition and jumped for every ball. He was like a little tiger, running at everything. He also hoped to become a Minister again – we could talk about his performance in that role – so he too was very aggressive. In 1997 he said:

While I am glad this Bill has been improved somewhat in the progress through Committee Stage in the Seanad, its provisions remain deeply flawed and thoroughly inadequate. On careful examination, which I strongly recommend to citizens and the media alike, it turns out to be little more than window dressing exercise in freedom of information.

He went on to say it was a thin pretence at action designed to camouflage the Government's internal confusion and inability to agree on anything of substance or any resolute plan of action. That was great stuff from Deputy Woods. He went on to say: "Despite all the bluster and hype which surrounded its introduction, it is little more than a damp squib, another fine example of the mountain being in labour and bringing forth a mouse." He certainly had a turn of phrase in condemning the Freedom of Information Act as not doing enough. What will he do tomorrow evening? He will trudge through the lobbies again to support restrictions for a Bill he said was too restrictive. He talked of changing the Official Secrets Act but he will go through with this tomorrow.

We then come to Deputy Killeen, for whom I have great respect. I have worked with him on several committees and his contributions are thoughtful. I hope he is listening because if anyone will take a stand, and I have seen Deputy Killeen take a stand before, he might be one of the Fianna Fáil Deputies with the guts to do so. He also spoke on 11 March 1997 and, in column 295, he said:

While I support her [the Minister's] campaign I am worried this is going nowhere and troops are rallying in opposition to it. I do not see any of them on the Government benches but some interests are opposed to the direction in which the Minister is heading. There is a temptation to believe we are deluding the public and engaging in a PR exercise which is not likely to go anywhere.

He went on to say:

The Government parties have failed to grasp the opportunity to create and support a level of openness in the operation of the public service and the running of the State which is urgently needed.

Again, the previous measure did not go far enough for him, but will he go through the lobbies now and support restricting that legislation? I do not think so because I recognise him as a man of integrity.

Another speaker on 11 March 1997 was Deputy O'Donnell of the Progressive Democrats, who were anxious to get into bed in government with Fianna Fáil. She was also anxious to make a name for herself and in that debate, in column 273, she said:

Governments tend to preserve their interests and have gone to enormous lengths to retain information, the release of which would have prejudiced their being in Government. The collapse of a Government must be avoided at all costs and that applies to all Governments. Therein lies the real difficulty with this legislation.

She was referring to what had come out at the beef tribunal and the need for a Government to preserve itself, saying this measure did not go far enough. She also said, in column 274: "I am confident that this or future Governments will be forthcoming with sensitive or explosive information when their skins are at stake." In other words, she thought Governments would look after themselves and that this measure would not work. Will she go through the lobbies? She also said it was important that real work continue on the repeal of the Official Secrets Act.

I have great respect for Deputy O'Donnell, who took a stand here on Third World aid. She had great difficulty getting funding for such aid from the Government of the time and, from the attitude of the Minister for Justice, Equality and Law Reform – or Minister for everything, as he calls himself – to Third World aid, I see the reason. That attitude leaves a lot to be desired. Will Deputy O'Donnell troop through the lobbies tomorrow and contradict her past stance on freedom of information? Will she take the shilling and go through the lobbies? I do not think so because she is a person of integrity who knows her own mind. I look forward to seeing what happens.

Deputy Devins raised the issue of fees. Deputy Jim O'Keeffe requested information from the Government on appointments to prison committees under the freedom of information legislation and was told initially it would cost €800, although that was subsequently watered down. While that request was being processed, guess what happened. The great Minister for Justice, Equality and Law Reform, the Minister for goodness and all things, had a trawl carried out in the Department and he found a letter which Deputy O'Keeffe had sent some years before. He ran off to the press with the letter with the instructions that they should publish it without telling Deputy O'Keeffe its contents. What did it cost the officials to find that letter? What about the integrity of a Minister acting in that way? Was he worried about what would surface in the answer to Deputy O'Keeffe's request or was it done out of malice or for political gain? That is just one example. It is great to hear from these people who are full of integrity and taking the high moral ground. One looks forward to seeing what they will do.

There was no consultation on this Bill. I recently learned that the local authority in my area received a request from a nursery seeking information on quotations sent to the council over the past five years for planting shrubs and trees and the ages and heights of those plants. As it happens, the council has done an enormous amount of planting over the past few years but what was the nursery looking for? Commercial information, which has nothing to do with the ordinary information people seek. The nursery should not be given that information. That is the kind of information which should be restricted to stop abuse of the freedom of information legislation. While I can understand that other parties who submitted tenders for a particular job should be entitled to see the contract awarded to the winner following a tender process, it would not be right to permit a general trawl of all information. These are the kinds of matters on which the Government should impose restrictions rather than issues on which there should be access to information.

The only reason for the legislation is that the first batch of information from the previous Government's deliberations would otherwise come on stream in a month. The Government is afraid that in the years preceding the next election we will have a constant drip of information concerning all the terrible decisions, including the O'Flaherty appointment, taken by the previous Government.

We have nothing to worry about.

It will be a dark day for democracy if the Bill is passed. Since being returned to office last June, the coalition Government of the Fianna Fáil Party and the Progressive Democrats Party has shown a lack of bona fides in dealing with the issue of freedom of information. It made no promises or threats regarding the Freedom of Information Act before the election. Immediately after returning to office, however, it established a secret committee as part of a decision to emasculate it. The high level group was set up with clear terms of reference and instructions and directions on what it was to produce. There was no independent review or consultation with the people whose rights were to be restricted. The Minister's bona fides and those of the Government are nil.

The Minister for Finance, Deputy McCreevy, stated last night that the purpose of the Bill is to allow the Government to carry on its work, no more and no less. The main purpose of the Bill is to restrict the rights of the public to access to information about this Government. This is part of a long-term strategy of a tarnished and dis credited Administration which, simply put, believes it can blandly deny its record of maladministration and, in due course, gain some hope of being re-elected in the next general election.

Both the background and the process are flawed. The process the Government initiated last June ignored the fact that the Act provides for reviews. Eight sections of the original Act deal with the powers of the Information Commissioner, two of which cover the issue of review. Section 36 deals with a review of the operation of the Act and investigations by the Information Commissioner, while section 39 deals with the publication by the commissioner of commentaries on its practical application. What happened? The Information Commissioner was not even aware that the secret Government review was taking place. I cannot think of a more sinister development in our democratic system.

The end result was that a document was produced which, according to the Government, formed the basis on which the Bill was drafted. Even this is not true as the Bill goes far beyond the recommendations of the high level group. There was an unacceptable review process, no consultation with citizens' groups whose rights are being affected and utterly flawed parliamentary procedure. A gunboat approach was taken which involved trying to jackboot the Bill through the Seanad and the Dáil.

There has been considerable comment about the Ministers presence in Cheltenham while the Bill was being debated in the Seanad. I have no problem with the Ministers travelling to the event and would love to have been there myself – I declare my interest in horseracing – but why was the Bill listed to be taken in the Seanad during the same week. The reason the Government stands indicted is not the Ministers' attendance at Cheltenham but the arrogance and contempt it showed for parliamentary procedure in listing the Bill while Ministers were absent.

It is no wonder Irish horses did so badly this year.

We had a few winners, but that is not the point.

They did quite well actually.

Essentially, this Bill amounts to a contest. We are debating it in the context of a contest between the current Government of the Fianna Fáil and the Progressive Democrats parties and the citizens of Ireland. In legal terminology it is the Government versus the people. The 1997 Act was enacted, as its Long Title proclaimed, to enable members of the public to obtain access to the greatest extent possible, consistent with the public interest. The purpose of the Bill before us is to substantially restrict the rights of the people.

While the media is understandably exercised about the Bill, the emphasis of this debate should be on the rights of the public. The Bill constitutes a serious diminution of the democratic rights of the people. It is absolutely clear their rights are being substantially restricted and reduced.

In presenting the Bill, the onus of proof is on the Government to show the need for these changes. Some attempt has been made to produce evidence to support the extension of the five year rule. However, there has been no attempt to support all the other severe restrictions or produce evidence of imperfections in the current Act. Effectively, the Government is taking us back in the direction of the dark ages by trying to reintroduce the cloak of secrecy under which Fianna Fáil Governments operated in the past with such dire results, in other words, the tribunals. This is not the right way for a democratic system to develop. It is unjustified and a retrograde step. The Bill is political and designed for solely political purposes.

That the Government is determined to reinstate the cloak of secrecy is highlighted in all its actions. When, pursuant to his statutory powers, the Information Commissioner correctly produced an excellent document with which the Government did not agree, the Minster for Justice, Equality and Law Reform dismissed it with supreme arrogance. The opinion of the very man appointed by statute to comment on the Freedom of Information Act was dismissed on the basis that he was not entitled to comment or carry out his statutory duty.

As Deputy Paul McGrath noted, the Minister tried the same approach with me because he did not want the kind of information I sought on prison visiting committees under the Freedom of Information Act to emerge.

An Leas-Cheann Comhairle

The Deputy should conclude.

I had hoped to give the House a flavour of some of the replies I received under freedom of information requests, but I will arrange to do so on another occasion. I am sure the House will understand the reason the Minister was so keen to hide the embarrassment of his colleagues on the issue of prison visiting committees.

This Bill is wrong and bad for democracy. It will be a bad day for the country if it is passed and I urge the House to reject it.

I am pleased to speak on the Freedom of Information (Amendment) Bill 2003. Before commenting on it, I take this opportunity to wish Kevin Murphy, who has announced his retirement as Information Commissioner and Ombudsman, a happy and fruitful retirement. He has done tremendous work in his role in both offices in recent years. As a member of the Committee on Finance and the Public Service, I have met him on various occasions in the past five years. He was always highly independent in the performance of his duties and did good, objective work on behalf of the people. I wish Emily O'Reilly, his successor, every success in the new and challenging job ahead. In the changing times in which we find ourselves, the role will grow in significance in the years ahead.

I wish to make several brief observations on the Freedom of Information Act. In the four years from 1998 to December 2001, there were 44,307 freedom of information requests, the vast majority of which were addressed to Government—

I find the Deputy's contribution extremely interesting. In that context, it would benefit from a hearing by his colleagues.

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

As I indicated, based on the fourth report by the Minister for Finance—

The Deputy captured all his colleagues.

Whatever about this side of the House, I have not captured too many Members on the opposite side, but we are used to that this afternoon.

From 1998 to the end of 2001, some 44,000 requests were made under the Freedom of Information Act. A total of 26,000 of those requests were made directly to Departments, 7,000 were to local authorities, 10,000 were to health boards and the health sector generally and the remainder were to voluntary bodies and third level institutes of technology and colleges.

It is important to note that of the 44,000 requests for information, 23,000 were of a non-personal nature and 20,000 requested personal information. Almost half the requests under the Act, therefore, have been made by people seeking personal information and I welcome the fact that people are using the legislation effectively. I would like that to continue in the years ahead and I am sure this legislation will facilitate that.

Speakers referred to the time available for this debate in the Dáil and the Seanad. As indicated previously, we had a record number of hours of debate in the Seanad to date. Three days were set aside for Second Stage in the Dáil this week. Next Tuesday, Wednesday, Thursday and even Friday, if people want to deal with it over a four day period, have been set aside for Committee Stage. That will provide ample time for every possible view to be aired in the course of that debate before the Bill comes back here for Report Stage.

This legislation was published on 26 February and is due to be completed in the House in mid-April. That is six weeks, which is a reasonable time to consider an item of legislation. Some speakers said the Bill has been rushed through the House but the Finance Bill, which is the largest item of legislation in the course of a year, was not given as much time for debate in the Dáil, the Seanad or in committee as the Freedom of Information (Amendment) Bill. There has been ample time for full debate, for every technical detail to be teased out and for decisions to be reached. That is the reason we will make ample time available on Committee Stage next week and as chairman of the committee, I will try to ensure it is a balanced and fair debate for all concerned.

Aside from all of that, the Joint Committee on Finance and the Public Service held two full days of hearings, which is most unusual in respect of legislation which had commenced its passage through the House. We spent about ten hours on one occasion and up to ten hours on another discussing this issue, and we laid before the House today a report entitled, Report on Hearings Relating to the High Level Review Group on the Freedom of Information Act, 1997: Report to Government and Related Matters. That is a 300 page report produced by the joint committee over the past fortnight, and I challenge any Member of this House to produce a similar voluminous report covering every aspect of an item of legislation and lay it before the House before it has concluded its passage. It is wide of the mark to say that this House, as the national Parliament, has not involved itself in a deep consultative process. People are either not aware of the facts or they do not want to accept them, and there is a bit of both in this situation.

We held extensive hearings on 13 and 19 March with the five Secretaries General appointed by the Government to conduct a high level review. We then had a full afternoon hearing with the Information Commissioner. We heard from an expert on freedom of information legislation, a Dr. McDonagh. We had a detailed presentation from the national newspapers and also from the National Union of Journalists. On our second day we had a detailed presentation from the Irish Council for Civil Liberties, a large voluntary organisation representing the voluntary sector called The Wheel and the One in Four group, which has widely publicised its concerns – also through our committee. We dealt with a number of other items of correspondence submitted to our committee. Representatives from all those groups had an opportunity to make a presentation which was followed by a detailed question and answer session with each of the groups over the two day period.

I have listened to the debate in the past week or so and I believe that all the information required to effect the satisfactory passage of this legislation through the House is now in the public domain. All the points on this legislation have been aired publicly and through the Oireachtas committee. I thank all the members of the joint committee from all parties in the House, the Independents and the Technical Group for their assistance and co-operation in ensuring the orderly conduct of the committee during what were unusual hearings. As a committee we felt it was appropriate to do that and it has been a beneficial exercise for all concerned.

The high level review group was discussed at the committee. There is an absolute misconception about the group due to ignorance – the Secretary General told the committee that its report was only part of the process being operated by the Government to draw up the new legislation. The five members of the group were asked to draw on their personal experience. It was neither intended nor expected that they would engage in wide consultation. They were simply asked for their input. There were other inputs as the process continued.

There were discussions with the national newspapers at the committee. They benefit from the Freedom of Information Act financially because it generates news for them which they have every right to do. The NUJ, the Irish Council for Civil Liberties and the other organisations I have mentioned specifically highlighted items of particular relevance to their individual areas of activity – they represented sectional views.

Ms McDonagh, a legal expert in the area, covered many topics and what she said was very important. On changing the protection of Cabinet and Government records from five to ten years, she said that length of time was in line with international trends, pointing out that many countries had 15, 20 and 30 year rules. At ten years, this State will still have one of the shortest periods for release of any country which has legislated for this area.

As Chairman of the Joint Committee on Finance and the Public Service, I am concerned about the disservice done to the Office of the Information Commissioner by certain Members in the last two weeks. In particular, I am gravely concerned about the disservice done by Deputy Kenny a short time ago. He complained, as did many other Members, that Mr. Kevin Murphy was not involved in the full consultation process when he was expert in the area. That is a direct attack on the independence of his office.


The Information Commissioner is appointed by the President on the recommendation of this House.

On the recommendation of the Government.

No, on the recommendation of this House. That is very important. The motion for Emily O'Reilly's appointment will come before the Oireachtas to be approved by the Houses and then the President.

Consultation is the issue here.

It is an independent office which is not in any way subservient to the Government, the Minister or any public servant or group.

That is not the point. The Information Commissioner was not consulted.

The Information Commissioner, Mr. Kevin Murphy, appeared before the committee on 13 March. He was asked if he should have been consulted and this is how he answered:

If my office had been asked to appoint somebody to the high level group, I would have refused because there cannot be mixing between an independent office and a Department of State. There is a very strict dividing line between an independent body, whether the Ombudsman's office or the Information Commissioner's office. If the high level group had written to me to say it was thinking about something and to ask me if I had any views on it from a technical point of view, I would have been very happy to oblige, but I certainly would not have allowed myself or any of my staff to be a member of the high level group.

That is the point, he was not asked for his views.

Mr. Murphy continued:

As regards being aggrieved, there is no statutory obligation on the Government to consult me but I see my role as one of supporting the Houses. Therefore, when the Bill, which is a very technical and complex one, was published, I asked myself if I could help the Houses in any way by giving it factual information. That is what I did.

Mr. Murphy published a report for the benefit of the Members of the Oireachtas. He had no authority to make a report to the Government or any Minister, he was answerable only to these Houses. He was asked about the reason he had not been consulted and replied:

We have to be careful of the distance between myself and the Civil Service. I certainly do not see myself as having a right of consultation and equally it works in reverse. I do not see myself as having to clear anything with Departments. I cannot expect to have the best of both worlds. If I do not consult them I can hardly turn around and say they must consult me.

He was independent. It was an insult to his office for Members to demand that he be consulted. Members have no right to tell an independent officer how to do his or her duty.

That is silly.

It is akin to being a judge – no Member would dare come into the Oireachtas and tell a judge how to perform his or her duty. The person concerned was appointed by the President on the recommendation of the Oireachtas and no one here should have told him how to do his work. It was an insult and a diminution of his authority for Members, including Deputy Kenny, to say he should have been consulted as if to say he was subservient to the Government.

The Minister for Justice, Equality and Law Reform insulted him. Does the Deputy dissociate himself from the Minister's remarks?

Those are Mr. Murphy's words – he was adamant that he did not consult Departments, that he was independent of them and that he did not expect Departments to consult him.

The Deputy is lining up with the Minister for Justice, Equality and Law Reform who attacked the Information Commissioner for overstepping the mark.

The committee is of the view that the Information Commissioner was absolutely within his rights to issue his report. I say that as the person nominated by the Government to chair the committee.

Therefore, the Minister for Justice, Equality and Law Reform was wrong?

He stated his report did not stray into the policy or legislative process, that he was simply issuing a commentary on how the legislation would operate, if enacted.

What about the Minister for Justice, Equality and Law Reform?

He was wrong.

The Information Commissioner was well within his rights in doing so. I support him in everything he did.

The Minister for Justice, Equality and Law Reform was wrong.

I have full confidence in him and equal confidence in Emily O'Reilly who I hope will get the support of this House and be approved by the President in the near future.

There are sections of the Bill that should be improved before it is enacted. The proposal to substitute the word "contain" for "relate to" sounds like a small change but it will have a major impact, particularly on those seeking records from institutions. There has been a High Court decision on the matter. I ask the Attorney General's office to ensure the wording will allow the same access to information in future as in the past. The wording must be improved because it is difficult to implement the interpretation given in the High Court.

Section 12 deals with Government records and includes anyone "who is a member of any other class of person as may be proscribed". That is an inappropriate definition of "Government" and I ask the Attorney General and the Department to revise it. If the Department wants to include cer tain classes of people, they should be included as officials, they should not be included in the term "Government" which is specified in the Constitution and unnecessarily confusing from a legal point of view.

In relation to fees, I expect the Minister will introduce regulations to ensure there will be no fee for persons seeking their own personal records. I also believe that old age pensioners and students should not have to pay a full fee. They should only be required to pay a modest token fee, if any. Correspondingly, commercial organisations should have to pay an appropriate fee in relation to the cost of providing the service, with a graded variation in fees as between different bodies.

There has been much discussion on the deliberative process. People seem to know very little about the existing Freedom of Information Act. There are currently 370 bodies, each with information officers. On a regular basis, information is refused on the grounds that it is part of the deliberative process. This Bill simply proposes that, as well as those 370 existing freedom of information officers, Secretaries General would also have the right to state that specified information is within the deliberative process and should not be released. There is no reason a certificate should not move from one Department to another, just as records do.

However, I wish to have the legislation amended in this regard. I do not agree with the idea of certificates being issued in secret. When a certificate is issued, it must be reported to the Information Commissioner and a public record of such certificates must be maintained, so that people will know whether a particular issue is covered by a certificate from a Secretary General. Also, when a certificate expires, there must be formal notice of that fact. The existing Act provides for Ministers to issue ministerial certificates, exempting certain items of information, which are reported to the Information Commissioner. Those certificates are referred to in the commissioner's annual report so that the number of such certificates issued is known. I would welcome the introduction of a similar control mechanism in relation to any certificates issued by Secretaries General in future.

I am concerned about the provision in section 15, whereby access to information may be refused if it is likely to be the subject of an inquiry to be conducted by a person who has held judicial office or is a barrister or solicitor. I consider that definition too narrow in that it perpetuates the concept of the legal profession sewing up such investigations. I hope that will be amended on Committee or Report Stages.

I am happy to be among the select few Deputies who will have the opportunity to speak in this debate. Even though every Member from the Labour Party has offered, only a relatively small number will be afforded time to speak in the House.

The Freedom of Information Act is one of the most wide ranging and important Acts enacted by this House in recent times. Few measures have impacted as much on the public and public administration as this Act. It is important to have some regard to the history and evolution of this legislation and its impact in terms of a sea change in the way public business is transacted in this country. This is a product of what people now regard as the Haughey era, when the administration of public affairs was contaminated in the eyes of the public at large, whose perception was that much public business was carried on behind closed doors in a way that did not benefit the public. The response to the demand for open and transparent administration came from the public and it behoves the Oireachtas to respond.

I was proud that my party, in the election of 1992, put forward a twin platform – justice in economics and ethics in public administration. The justice and economics aspect was designed to attack the golden circles which, as we have discovered more fully in recent times, considered themselves exempt from the tax laws of this country and to restore confidence in the manner in which our public business is carried out. There were three pillars to the ethics in Government platform: the Ethics in Public Offices Act—

Which had to be amended.

—the Electoral Act—

Which had to be amended.

—and the Freedom of Information Act.

Which is being amended.

I am glad the Deputy made that interjection. It relates to the next point I was about to make. That ethical platform was fought, tooth and nail, by Fianna Fáil in this House and in the negotiations in which I participated with that party. Since then, the Electoral Act which I had the privilege of bringing through this House as a Minister, has been assaulted by Members from the Deputy's party and by the current Minister for Justice, Equality and Law Reform on behalf of the partners of the Deputy's party.

That is because it was deficient.

The Minister announced that the Electoral Act was fundamentally flawed – that it was unconstitutional to put ceilings on the amount of money that could be slushed into political parties. As Deputy Fleming has confirmed, his party amended the legislation as soon as it had the political clout, because it wished to continue its slush funds and business supports. It set out to eviscerate the fairness implicit in legislation which sets limits on expenditure. I thank the Deputy for reminding me of his party's assault on the ethical platform which my party proudly established as a basis for rebuilding public confidence in the way public business is carried out in this country.

Each of the Acts to which I have referred had a major impact. As I said, the impact of the Electoral Act was to put ceilings on the amount of money which could be given to political parties and candidates, to cap expenditure—

On a point of order, the Deputy's statement is incorrect.

An Leas-Cheann Comhairle

That is not a point of order.

There were no ceilings. One had to declare—

The truth was—

We brought in—

An Leas-Cheann Comhairle

Deputy Howlin, without interruption.

The Deputy is touchy in relation to those matters – with good reason. I recall viewing a Fianna Fáil website which claimed that the Electoral Act, against which that party had fought tooth and nail, was actually its own idea. The truth is sometimes alien to that outfit, as I am becoming increasingly aware. The reality is that Fianna Fáil assaulted that Act before the last election, so that it could have a good run at spending the war chest it had built up again. Now, it has moved on to the last pillar, the Freedom of Information Act. It is quite amusing, on the part of people who have fundamentally principled opposition to these measures, who negotiated them downwards as far as possible and who want to assault them, to try and cloak themselves in the notion that, really, they are just being practical. The inference is that others do not really understand the nuanced changes which are being made, minimalist though they are, and that, if we really read and understood the documentation, those of us who drafted and negotiated the original legislation in the first instance would embrace the Government's point of view and all would be well.

I wish to spell out exactly what this Government is proposing in relation to the Freedom of Information Act. I am glad my friend and colleague, the Minister of State, Deputy Browne, is present. We have debated this issue on local radio in our home county. Obviously, the message he is being given to present locally is the same message Fianna Fáil is presenting across the country – that what is proposed in the present Bill is minimalist small change. The claim is made repeatedly by the Minister of State and others that there is really just one issue involved, that is to extend the Cabinet exemption from five years to ten. All the rest is regarded as technical adjustment on the basis of experience. That is not true. In reality, the Government is proposing sweeping changes that will fundamentally alter the balance of this legislation in terms of its implementation and the rights of the public as guaranteed in the current Act.

There is a smokescreen, of which we have seen more varieties in the past few days than Saddam Hussein has managed to put up around Baghdad, that suggests the Government actually has a legacy of extending freedom of information to a plethora of outfits and organisations, as if it was not intended from the outset that the Act would apply to all those organisations. The truth is that this Government does not give a fig about the extension of the Freedom of Information Act 1997 to all the semi-State bodies, quangos, local government, the health boards and whoever else. The one outfit which this Administration is interested in is itself. It is interested in protecting itself, its own record and that of its immediate predecessor over the past six years. The urgency about this measure is that the five-year limit is about to kick in and the Bill must be enacted quickly. I do not know the reason for that urgency. There must be something terrible in those files that we must have this enacted to implement this extension.

Let me spell out why this Bill fundamentally alters the balance of the 1997 Act and deal with some of the points made by Deputy Fleming and others. First, there is the issue of widening the definition of Cabinet papers to include material primarily created for Cabinet. The new definition includes material primarily created for Cabinet. My colleague, Eithne Fitzgerald, the former Minister of State who brought the original Bill through this House and who worked assiduously to get the best possible Act in the world in place, looked to best practice in places like Australia and elsewhere. She looked at that particular definition and saw that the original definition, which she adopted and the House accepted, exempted papers that were created solely for Cabinet. The original definition was such because the experience in other countries which had freedom of information legislation, including Australia, was that it was too broad a brush to talk about papers and materials created primarily for Cabinet because, in the case Australia, anything that wafted its way in the vicinity of Cabinet suddenly acquired this protection from disclosure. At the time that was explained and debated, and yet now that principle will be wound back. This protection, which was for the narrow definition of prime documentation for Cabinet, will now have a broader definition and potentially will exclude a huge amount of additional work.

Similarly the Cabinet papers protection is being extended to cover committees of officials working to Cabinet and to interministerial correspondence, that is, Ministers writing to each other about issues that are related to Cabinet. The broadening exclusion grows.

It is my understanding that the committee of Secretaries General wanted these exemptions to be very tightly drawn but in the Bill, as published, they would find a massive shelter for a range of documents which should properly be available for public scrutiny. That is a factual reality. This new, simple re-definition of Cabinet papers, Cabinet discussions, interministerial documentation and correspondence and Cabinet working groups, which may not be constituted of Ministers at all, will broaden the scope of these exemptions significantly. This was known to be a broad exemption in the original Act, but now we are going back to that.

The other new provision on the deliberative process was one which was mentioned by the speaker immediately before me, and this is a particular cause of concern. The Bill provides a power for a Secretary General to issue a certificate simply stating that the deliberative process is ongoing. That simple declaration by a Secretary General that the deliberative process is ongoing will be enough to suspend an appeal process in relation to a request for information. There is significant scope to drag on the deliberative process for months or years and to hide under that clause documentation from release forever. That is a simple fact.

The power to issue a certificate from a Secretary General stating the deliberative process is ongoing will effectively suspend the appeal process. I want Deputies to hear the following because the information provided by the previous Deputy was wrong. The conclusive certificate process in the original Act was limited to extremely sensitive and serious security issues and was hedged in with important safeguards about clearance from other Ministers and the publication of the number of certificates, as has been mentioned. It was understood that this would be a very narrow limitation. No such safeguards are provided in the Bill. Routine policy information can be put beyond the appeal process and the operation of the public interest test simply does not apply. These are fundamental alterations and fundamental changes. We must acknowledge that and deal with them.

On the issue of charges, I welcome the comments from the Government benches that this is a step too far and it should be rolled back. A mandatory minimum charge for information is contrary to the very Title of the Act, the Freedom of Information Act. In another existence, my friend and colleague, the Minister of State, Deputy Browne, would be vocal about charges for access to information. If he were still sitting on Wexford County Council and there was information required from a citizen, he would be in the vanguard of demanding the right. He would know that poor people should not be disadvantaged and one's access to information should not be determined by one's ability to pay for it. Fundamentally it is a flawed principle and runs counter to the concept of freedom of information. I expect a great many Members on the benches opposite to agree with that.

The charges will have a twin effect. They will deter the less well-off from applying for information and also do something else which is important for us to focus on for a moment, that is, reduce the amount of information that is released by statutory and non-statutory Government bodies as a normal course.

One of the effects of the Freedom of Information Act 1997 has been to change the culture of openness in public administration. Due to the fact that everybody knows that virtually every document is available and will be available under the FOI Act, most of them are released as a matter of routine without having to go through the legal process of applying under the FOI Act. One can get most information and there is a culture which encourages an openness in documentation and access to information as a matter of routine.

The issue of charges will change that culture because it will be seen as a mechanism for raising revenue. There will be a positive disincentive to release or make available information as a matter of routine outside of the parameters of the FOI Act. Finance officers will encourage FOI officers not to release information unless the charge is paid because it will be a source of revenue, and not to do any work unless it is paid for by the applicant. That is an unwelcome and dangerous move. It runs counter to a new culture which had been inculcated at local and national levels in the normal transaction of public affairs in an open way. The growing culture of openness will be assaulted by this provision.

As I have very little time, I want to mention the Labour Party's proposal. As the House will be aware, I could go through all the sections of the Freedom of Information (Amendment) Bill with which I have difficulty, such as sections 12 and 13 and section 25 on the briefing for parliamentary questions. For instance, the briefing for parliamentary questions will be exempted in the Bill which will make it more difficult to get background information on issues. They will return to the principle that the Deputy did not ask the right question, instead of a culture of asking what the Deputy wants to know because he or she has a right to know it. However, we will debate all of these matters in committee and no doubt I will have the opportunity to make an input.

The Labour Party produced its own Bill, which did not seek simply to crush the Government's proposal. I accept that no legislation is perfect. I supported some of the changes in the Ethics in Public Office Act 1995. It was an extremely complicated Bill to enact. We learned by experience. Every Bill is capable of improvement. I have no difficulty in revisiting the Freedom of Information Act: it was always envisaged that we would do this. The Labour Party and I are proposing that we do this in a way that is in keeping with the principle of FOI, that is, in an open and transparent way. We should simply freeze things as they are for one year, extend the period of pro tection of current Government papers for a further year so that the provision will not come into effect in April, thereby removing the current urgency, and listen to those who have an interest, including those, as Deputy Fleming said, who have voiced 300 pages of opinion in two days, but also the many more who wish to speak. I am not a member of the committee, but it is my understanding that the committee unanimously accepted that it would like more time for submissions.

Can we not reasonably regard this House not as a rubber-stamp for the Executive but as a real Parliament with a parliamentary agenda? We should allow members of the public, whatever their opinions, to make their own inputs into our deliberative process. We should freeze things as they are for now to allow for proper debate, for the will of all parties on the finance committee to be heard and for a proper decision, one on which we can all agree, to be made in a measured way in a number of months. The Government's proposals have divided us over the last while, but we should not be divided in this way.

I pay tribute and express my gratitude to the outgoing Ombudsman and Information Commissioner, Mr. Kevin Murphy. His successor, Ms Emily O'Reilly, must be elected by the House but the warm welcome her nomination received from all sides augurs well for her. I wish her well in the difficult and challenging job she will have to do on behalf of the public.

I wish to share my time with Deputy Pat Carey.

I welcome Deputy Howlin's assertion that no Act is perfect or incapable of being amended. Unfortunately, I have not been in the House as long as the Deputy, but I have detected in recent months a tendency among some of his colleagues to feel that certain Acts are incapable of being amended – that they are perfect in all circumstances and can never be changed. That may come from the fact that some Ministers in some Governments were only in power for a very short period, and woe betide any Government that subsequently dares to change their Acts. I welcome Deputy Howlin's view, which is more enlightened than the view of some of his colleagues. Some of them seem to think they have proprietary rights over an Act – it is theirs and can never be amended.

The Freedom of Information Act 1997 has worked very well. It has served the public well and contributed enormously to public life. I agree with Deputy Howlin that it forms part of the three-cornered pillar of ethics and electoral legislation. However, that is as far as our agreement goes, because the two other Acts he mentioned were like this one: good for the most part, but fundamentally flawed. The FOI Act recalibrated citizens' rights in a very positive way. The key word in this debate is "rights". Let us examine the rights of the citizen. The right to information is but one of dozens enjoyed by our citizens. Their rights are enshrined in our Constitution and in legislation. They have the right to life, the right to liberty, the rights to freedom of association and freedom of expression, the latter of which we are exercising here. Rights such as these are not generally available in Iraq, but they are very important and we have come to rely on them and expect them in the House and outside it.

Citizens also have the right to good government and the Government itself has rights that are enshrined in the Constitution. The Constitution confers huge rights on the Government and on Ministers and each day as we debate and pass legislation in this House we are conferring rights upon the Government: to act in the interest of the people and the common good. Perhaps the most overarching and powerful right of any Government is that of depriving people of their liberty and their property, but that is all in the express interest, as set out in the Constitution, of the common good.

I make these points to emphasise that it is not only the citizen who has rights. The Government also has rights and that point has been lost within this debate. The rights of the Government are in the interest of the common good. The essence of this debate is to identify where those rights can overlap and be in conflict with each other. Once we recognise that, we should then decide how legislation should be used to interfere with those rights in the interest of the common good.

There was debate between Deputy Howlin and Deputy Fleming in relation to the powers and duties of the Information Commissioner under the Act. I have looked at the report of Deputy Fleming and the Joint Committee on Finance and the Public Service. Section 39 of the Act states:

The Commissioner may prepare and publish commentaries on the practical application and operation of the provisions, or any particular provisions, of this Act, including commentaries based on the experience of holders of the office of Commissioner in relation to reviews, and decisions following reviews, of such holders under section 34.The key words in that section are “[t]he Commissioner may . . . publish commentaries . . . of this Act”.

I compliment the commissioner on his work and wish him well in his retirement. He has given great service during his tenure. The comments I am about to make do not apply just to this commissioner, but to all commissioners, including the incoming commissioner, whom I also wish well in her work in the future. It is important that while the commissioner has the absolute right, as recognised by Deputy Fleming, to comment on the operation of the Act, the commentary should be, as set out under section 39 of the Act, about the principal Act – the Freedom of Information Act 1997. I do not know whether it is entirely appropriate for the commissioner or any public body set up by the Oireachtas to comment on proposed legislation, unless it has been given express power in the legislation to do that. I do not wish to go further in relation to that point—

It happens all the time. The Human Rights Commissioner, for example, is invited to comment on a range of issues.

Yes, if he is invited. I accept the rights of people or bodies to do that.

Also uninvited.

"Unilaterally" is a phrase that has often been abused in recent weeks, but to do so unilaterally, where there is no express power in legislation, is something which should be carefully considered – not only by this commissioner, Mr. Murphy, but by the incoming commissioner also.

If the commissioner had been fulsome in his praise of the Bill, the Deputy would support him. He would be saying what a wonderful man he was. Is that not true?

Some people have suggested that the citizen should have absolute rights. It is very easy for the Opposition to say that we must come down on the side of the citizen in all circumstances. However, the common good is clearly served by decisive, open government. Equally, the common good is not served by weak, divisive government that panders to the populace at each and every turn when the vital interests of our nation are at stake.

That sounds like a ringing endorsement of Saddam Hussein.

Any legislation which serves to undermine the efficient and effective work of government is bad and we should stand up and have the courage of our convictions to amend it.

I would like to give a small analogy that might help the House in our debate. Last Monday Limerick City Council debated certain aspects of the Freedom of Information Act as opposed to the Bill now before the Houses of the Oireachtas. An organisation under the auspices of the council which received funding from it had certain financial difficulties and meetings were arranged between council officials, members of the body and councillors acting in their own independent right. Subsequently, the minutes and documents arising from the meeting were the subject of a request under the Freedom of Information Act 1997. Many of the documents contained very progressive and even radical ideas which, if they had got out into the open at the time, would have been held up to scorn and ridicule and could have been abused by opposing political forces.

The councillors who had attended the meeting spoke extremely eloquently of the fact that had they known the documents would become public, not alone would they have never produced the documents but they would never have even attended the meeting, thereby undermining the whole process being undertaken by the council. I make this point to illustrate the fact that if local authority decision-making is undermined to such an extent by the Freedom of Information Act 1997, we can only speculate the detrimental and adverse effect which the Act is having on the Government's decision making process.

Like previous speakers, I pay tribute to the outgoing Ombudsman and Information Commissioner. I had few dealings with his office as Information Commissioner but in his role as Ombudsman, I found him and his staff most helpful. I have no doubt that the incoming Information Commissioner, Ms O'Reilly, who was referred to in one of the newspapers today as "no shrinking violet" will equally perform the task with diligence and integrity.

To a certain extent, if I borrow a phrase from another theatre, we are almost enshrouded with the fog of war in this debate. This is unfortunate because in many ways a very good debate is taking place about the importance of freedom of information. Much time was spent and much lobbying was done by groups of all hues, including trade unions, non-governmental organisations and political parties, to have this legislation introduced and enacted. Everybody was positive in the approach to try to implement that policy as best as possible.

I have huge respect for Deputy John Bruton. When he made his acceptance speech as Taoiseach on 15 December 1994, he said:

In the same way that I seek simplicity in the office of Taoiseach I seek simplicity in government and national policy. Good government is a public service and it should be kept simple. This is a Republic. Public office is a privilege that must be paid for in hard work and long hours. [The following is the piece that always stuck in my mind] The Government must go about its work without excess or extravagance and as transparently as if it were working behind a pane of glass. The same holds for national policy.

I was trying to trawl through editorials from The Irish Times. Progressively, over the term of the office of the Government of which Deputy Howlin was a distinguished member, whether intentional, there was a tendency for journalists and others to be critical of the way that Government was not able to operate behind a pane of glass. In some ways the longer it was in office, the more stained or opaque the pane of glass became. Perhaps it had no other choice but to operate that way.

About one year after Deputy Bruton became Taoiseach on 16 November 1995, Deputy Harney spoke in the Dáil as follows:

I raised with the Taoiseach the other day the proposed appearance of the DPP on a live radio programme and how irrelevant this House is becoming. This morning I read in a newspaper that the Taoiseach had received a letter from the British Prime Minister. When I sought information here yesterday on the response from the British Government the Taoiseach did not give me that information. If the Taoiseach and the Government withhold essential information from the House and brief the media on it, they will further undermine the House, their authority and the role of Deputies. I ask the Taoiseach for an explanation as to why I was not given the information I sought during Question Time yesterday.

No Government has a monopoly on the lack or flow of information. When at the time Deputy Harney reminded the Taoiseach that his Government would be as transparent as a pane of glass, former Deputy Máire Geoghegan-Quinn said: "It is stained." I do not think there was a deliberate attempt to stain it. Towards the end of the rainbow Government, Fintan O'Toole, who is also no shrinking violet, commented on its intentions, particularly in the area of reform of the Constitution around the time of the McCole case. In the course of an article he said:

Yet the commitment to changing the Constitution to allow for the revelation of cabinet discussions in certain limited circumstances (such as those presented by the McCole case) was to the say the least rather shaky . . . So long as that promise remains unfulfilled the attitude that has marked the Government's stance on the McCole case – that the conduct of the State is none of the public's business – will be underpinned by the Constitution of what is supposed to be a democratic state.

I merely use those to try to calm passions. There are certainly aspects of the Bill that clearly need reform. While I have never been in government, nor am I likely to be, it strikes me that the deliberative process that seems to have exercised so many excessively ought to be looked at. There would be issues relating to areas such as health, transport or education policy that would go through Government over a significant number of years. It would be wise not to broaden the debate too widely, otherwise no Government will come to any conclusions.

In preparing for this debate I read the submission from the National Union of Journalists and the document presented by the Information Commissioner. While there are some arguments to suggest that refinements are required in the Bill, huge changes are not needed. In some respects I have greater confidence in Government and Departments complying with the terms of a Freedom of Information Act than I have with the downstream bodies. There have been examples in various committees here. I was a member of the Joint Committee on Education and Science in the last Dáil, which discussed the question of issuing school league tables. Surely that is a freedom of information issue. There are certain implied rights and some believe parents and students ought to be entitled to this information. Some of those—

I interrupt the Deputy as I require a quorum to be present.

I require a larger audience.

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

I was about to make a point about the release of information by downstream bodies such as schools and universities, etc. I listened to the debate in the Upper House and some of the most vigorous and vociferous contributors that criticised the Government for the way in which it proposes to change the FOI Act were involved in teacher unions that steadfastly resisted any proposal to release particular items of information. We cannot have it every way; we need to get things in perspective.

While I hate to draw on my experience with the Convention on the Future of Europe, the right of the citizen to information is part and parcel of the European project and is something I hold dear. When one looks at member and applicant states, one can see that Ireland's release of information, and promotion of this, is at the high end of the spectrum. I do not think we ought to pat ourselves on the back for doing this. While it is right and good and important for government that it should happen, let us not be so critical as to suggest – as has been done – that what we are proposing is part of a right wing conspiracy. I do not believe this is the intention.

As regards the increase in retention of papers from five to ten years, most Members of this House and other interested parties will be around to participate in the debate when it happens. I believe consultation on this issue is ongoing. There are Members of the House that are more familiar with the process than me. We occasionally receive reports that are informed by the users' network on freedom of information. Those people have recommended the extension of the Freedom of Information Act. As far as I can recall, approximately 600 agencies and bodies now come under the remit of the freedom of information legislation and this is a sign of progress.

I commend the Bill to the House. As Deputy Howlin says, no Bill is beyond amendment. A balance should be struck between those who say this is an awful Bill and those who say it is just about right. The truth usually lies somewhere in between.

I wish to share time with Deputies Cuffe, Connolly and McHugh.

Citizenship, the concept of empowered and politically involved citizenry, has been a cornerstone of republican philosophy since the 18th century. James Madison, a man often referred to as the father of the American Constitution, one of most inspirational documents in republicanism, wrote, "A people who mean to be their own governors, must arm themselves with the power which knowledge gives." People should not be shut off from knowledge. It is the function of Government to serve the people, not for the people to serve the Government. How can the Government claim to be at the service of the people when it is willing to deny them access to information? What has it got to hide?

Members of the Government, including Ministers, have suggested that the opposition to the erosion of this right is media-inspired. They suggest those of us opposed to it are acting at the behest of journalists too lazy to carry out investigations themselves. The Freedom of Information Act is not simply a media tool; it is a tool for the people that opens the processes of Government that have been kept secret for so long.

The Act before the House will broaden the definition of a Cabinet paper. It could be argued that it broadens the definition of a Government by including the various spin doctors, media handlers and hangers-on that form part of the Taoiseach's court. Other restrictions on the type of information that can be released and the context in which this can be done amount to a large step backwards in the political evolution of this State. Some of the counter-arguments put forward by the Government in support of the restriction of information Bill before the House are particularly unsavoury. Perhaps the most nauseating and insulting argument put forward by the Government is that freedom of information costs too much. Freedom of Information, they say, is not free. Surely real democracy involves people receiving information and making up their own minds.

What price is an informed and politically active citizenry worth? Several Deputies have mentioned that one question cost €10,000, and this is certainly too much. If we believe in this legislation it should not be based on extremes, although this argument has been put forward. If Deputies want a cost-based analysis, the changes now proposed to the Act would have prevented the disclosure of details of the imperial-like extravagance of the Bertie bowl. Requests under the Freedom of Information Act showed the deep disquiet in the Civil Service at the cost and the nature of the proposal. These revelations led to the independent review that showed how much the stadium cost. Without it, this State, already committed to paying out millions under the Minister for Finance's free money scheme, might be bound to one costing almost €1 billion for a stadium.

Freedom of information is not only a principle worth defending – it pays for itself. It has been written that this is a Government that knows the price of everything but the value of nothing. A Government that cannot pass a budget without cutting tax for the well-off is now whining about the few thousand euro necessary for free and open Government. We must ask ourselves what will be hidden behind this legislation. Are we going to have to wait much longer to see what the ministerial colleagues of the Minister for the Environment and Local Government, Deputy Cullen, wrote to him in the lead up to his assault on the section 5 provisions of the Planning and Development Act? Recent reports in the media have suggested the Minister for the Environment and Local Government was not alone in the Cabinet in putting the interests of developers before the homeless. Reports in the media recently suggested that the Minister for Enterprise, Trade and Employment, Deputy Harney, wrote on behalf of Treasury Holdings. It is in the interest of the Minister that this information be put into the public arena. People are concerned about changes to legislation.

Acting Chairman

Is the Deputy making allegations against the Minister?

I am not making allegations. These are allegations that have been made in the media and it is in the interests of Ministers that the information contained in these letters should be in the public arena.

Acting Chairman

Charges can only be made—

I am trying to make the point that it is in the interest of everyone, including Ministers, that information going back and forth between them be put into the public arena. Does this clarify my point?

Acting Chairman


Without the Act, we would not have seen the letters from the Minister for Finance to his colleague at the Department of Health and Children that Deputy Ó Caoláin referred to earlier. We would not have known that the annual fund set up by the Minister for Communications, Marine and Natural Resources, to be raised from the licence fee, but made available to private broadcasters, was set up against the strong advice of his own officials. In 2000 the Information Commissioner made available the inspection reports of nursing homes, a valuable resource for any citizen seeking nursing homes for relatives or who suspects poor treatment of a family member. I thank Mr. Murphy for the work he has done as Information Commissioner over the years and wish Emily O'Reilly the best in her new and well-deserved appointment. Her open opposition to the legislation before the House today is all the more noble considering she knew the Government was sitting in judgment on her application for the job.

The Freedom of Information Act was a major step forward in tackling the ingrained culture of secrecy and censorship in this State. RTE will cover my party's Ard-Fheis this weekend for the first time in history. Less than ten years ago it was illegal for Sinn Féin representatives to speak on RTE or any other Irish broadcaster for fear of what we might say and the damage we might do to the establishment of this State. Perhaps, looking over our growth in political strength over the last ten years, the fears were somewhat justified.

The Government fundamentally fails to understand that these are not its documents. These are not its papers, as they are the property of the people and the Government does not have the right to deny them access. No Government does. This legislation is flawed and I call on Members on the Government benches to reconsider their vote on Second Stage.

I compliment the former Minister of State at the Department of Finance, Eithne Fitzgerald, on the immense time and effort she put into the Freedom of Information Act 1997. The House has lost out because she has not been returned since. The principle of freedom of information is simple. It is understood or it is not. It is implemented or it is not. A bit like one's virginity, once lost it is lost forever. While the Government lost its political virginity a long time ago, it is very much losing the principle of freedom of information now because once FOI is watered down it is lost forever. Putting issues on the long finger and suggesting records will be available in ten, 15, 20 or 30 years hence completely destroys the concept of freedom of information, as applied in other countries. This is a real loss to government.

During my time in local government, meetings were only held in camera on rare occasions. I cannot recall in 11 years when a meeting of Dublin City Council in camera was justified. Nine times out of ten meetings held behind closed doors dealt with conferences attended by members and it would have been more beneficial if those meetings had been held in public. It is regrettable that this step in being taken in this legislation.

On his election in 1790, John Philpott Curran stated:

It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance, which condition, if he breaks servitude, is at once the consequence of his crime and the punishment of his guilt.

We will lose the principle of eternal vigilance with the passage of this legislation. It will be a retrograde step.

Somerset Maughan stated, "If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too." Other principles are held in much higher regard than freedom of information and the passage of the Bill will mean a loss to the public.

The trend around Europe is the introduction of more freedom of information legislation. Sweden has had FOI legislation since 1766 while it is been in place for a slightly shorter time in Ireland. Nonetheless a firm principle has been established, particularly in northern European countries. Many countries guarantee freedom of information in their constitutions. The Swedish constitution states in chapter 2, under fundamental rights and freedoms, that it is guaranteed that government is open and transparent. It has often been said that one can read the post of any Government Minister the day after it is received That principle could be added to the menu of human rights in Ireland and lead to better government.

Deputy Carey dismissed the notion that a right wing conspiracy is at work in Ireland. Nonetheless the Government is promoting this legislation even though it has relied heavily on corporate donations to get into office and to fund its mandate. There are dangerous forces at work in terms of the funding of the Government and the rolling back of exemplary legislation that has been promoted over several years.

I refer to the issue of a fee. I am critical of the concept of paying to receive information. The European Commission has overturned the principle of a fee to makes one's voice heard in the planning process. I have no doubt other international institutions would be critical of the imposition of a fee to receive information. It is a contradiction of the concept. Many local authorities use the fee as a way of reducing the number of requests they receive. I am concerned the Government might impose significant fees to prevent information entering the public domain. The principle of freedom of information is important. One gets it or one does not and if we lose the principle or put it on the backburner or the long finger, all citizens will suffer.

The golden era of information accessibility, introduced in 1997, is under severe threat due to the Government resisting the FOI, and the very notion of freedom of information has become ossified. This is one of the most retrograde, high-handed and contemptuous Bills ever placed before the House. Only one in ten people trust politicians to tell the truth when in a tight corner, and only 16% trust Governments to put the country's needs above those of their own parties. These figures should worry the Government, since no Government can operate effectively without the trust of the public.

Freedom of information legislation was meant to be the antidote to this, addressing the public's disillusion and disaffection with politics. It signalled a new relationship between citizens and Government but, as a result of this Bill, public trust in Government will sink without trace. New barriers will be erected between the public and their right to information on decisions affecting their lives. Accountability and transparency have been emasculated to the nth degree.

The extension of a moratorium on the release of Cabinet papers from five to ten years, together with the restrictions placed on the nature of the material that can be released to the public, underlines the paranoia of the Government as it attempts to suppress information and keep the public in the dark.

At the annual FOI conference in Dublin Castle last October, the Information Commissioner stated, "I am fully satisfied that the provisions of the FOI Act, as they stand, are more than sufficient to protect all the essential interests of government." This, in light of his experience, provides the real reason for non-consultation with him in the framing of this legislation.

Cynicism among the public regarding party politicians, which has resulted in paltry turnouts at recent elections, will be further fuelled, with consequent damage to the democratic process, by this regressive denial of people's access to the truth. The crowning insult to the intelligence of the electorate is the attempt by the Minister to portray this legislation as being in the public interest, when certain types of information will be automatically withheld from Deputies, members of the public, print and audio-visual media and other interested persons. Does the Minister consider such types of information subversive? The pre-FOI culture among civil servants dictated the release the minimum amount of information on any issue only when it was unavoidable. It is therefore unsurprising that when a high level committee embarks on a review of legislation governing such information release, the tendency is for it to suppress it and protect its patch to the greatest extent possible.

The introduction of a fee of €20 per single application, together with the restrictions enshrined in this amended FOI Act, amounts to a contradiction in terms, since the limited information available would be virtually worthless and a waste of money and effort. The value of the FOI Act was clearly demonstrated when the Government's duplicity and its misleading of this House was clearly exposed in letters emanating from the Department of Finance on 26 February and 17 April 2002, which ordered over €32 million to be pared from departmental budgets which had been Voted and approved by the Oireachtas. The game plan for the next general election is already in advanced preparation and nothing is being left to chance, up to and including the suppression of details of the Government's operation from its citizens. Clear democratic standards will only be maintained if there is a commitment to openness, freedom of information and an aversion to the hideous practice of Government secrecy – none of which this Bill enshrines. The Bill is more suited to a repressive tin-pot dictatorial regime and should be abandoned forthwith.

In any review which has the expressed intention of establishing the true facts, it would be expected that all interests would be consulted and their input sought to ensure the review was full, proper and as comprehensive as possible. Therefore, it is regrettable that, in the review of the Freedom of Information Act, all this consultation and seeking of views are absent. The review and the subsequent Freedom of Information (Amendment) Bill 2003 – the terms of which are based on the very select committee – have to be seen as suspect and the reasons for the introduction of the amendment Bill have to be seriously questioned.

It is regrettable that the person charged with the operation of the Freedom of Information Act – the Information Commissioner – was not asked for his input before the Bill was framed. In his evidence to the Joint Committee on Finance and the Public Service, the Information Commissioner made the extraordinary revelation that he only became aware of the existence of the high level committee on the grapevine. A Government that likes to give the impression it is founded on the concept of openness and transparency should have informed the commissioner of its intention to review the Act. His input should have been sought and he should not have been subjected to the humiliation of finding out about the review in that manner. If this review was an open, honest and transparent attempt by the Government to improve the Act for the benefit of all citizens, the Information Commissioner's input should have been sought, even if only for his technical expertise in operating the Act.

The extension of the terms of the Act to working groups and committees in support of Cabinet is regrettable. Working groups are generally comprised of professionals. Is the Government telling us it does not trust the professionals' advice? Is it saying it wants the opportunity, in secret, to ignore such professional advice if political expediency dictates? I cannot imagine a situation where a professional would have so little confidence in the advice he or she offers that he or she would be afraid of that advice becoming public knowledge.

We will shortly have a new Information Commissioner and I ask the Government to withdraw the Bill to ensure that her views and those of her office can be ascertained in relation to their technical expertise in operating the Act, before proceeding further. The Government's protestations of openness and transparency are not enough – actions count, not words. In its handling of this issue, the Government's actions do not live up to the grand ideal.

I wish to share my time with Deputy Finneran.

Acting Chairman

Is that agreed? Agreed.

I am glad to have the opportunity to make a contribution to this Bill which has generated a certain amount of controversy in the media. I agree with the Minister for Finance that many inaccurate and unfair claims have been made about the Government's proposals in recent weeks. I am sure the Minister was not entirely surprised by the reaction in certain quarters and he is to be applauded for his vigorous propositions for the improvements he is making to the Freedom of Information Act. Since the introduction of the original Act, the Government has shown a clear commitment to its implementation and extending its remit. When it was first enacted, freedom of information extended to just 67 organisations or bodies. Some five years on, its provisions have been applied to another 300 organisations. The Government is to be congratulated on this achievement and on its pledge that the Freedom of Information Act will be extended to the remaining suitable bodies by the end of 2005.

In light of these accomplishments over the last five years, it is absurd to suggest that the Government seeks to impose a culture of secrecy in public life. There could be no more vibrant contradiction of this claim than the frankness and candour the Minister brings to performing his duties in public life. Like all Members, I welcome the contribution freedom of information has made to our public life. However, after five years of operation, it is natural to assess its impact and judge whether there is a need for any changes. It is in that context that it is important to say that the Freedom of Information Act cannot be the benchmark of deciding the conduct of Government affairs.

The Minister has rightly affirmed his commitment to effective government. This commitment is the driving force and primary motivation behind this Bill. All Governments have a duty of collective responsibility. The Constitution clearly states that the Government shall meet and act as a collective authority. No Cabinet that aspires to effective government can ignore that duty and it is reasonable and sensible to review any legislation that it may feel is undermining that public duty.

In his speech in the House last night, the Minister correctly identified the work of Government as being complex. In order to be effective, free debate and an exchange of views are essential. Once a decision is taken, differences are set aside and collective responsibility is assumed. Providing unfettered access to the debate that preceded decision-making undermines collective responsibility. I will not list all the pitfalls that exist under the existing legislation – the Minister did that most capably last night – but, for the sake of collective responsibility, the Minister is correct to extend the exemption period for records from five to ten years. He is also acting responsibly in extending the remit of exemption to communications between Ministers and also the work of officials and advisers in Government. There is a strong case to be made that, by extending the exemption from five to ten years, we will have more records available to us. There is clear con cern that there will be less written documentation if the present regulations persist.

Debate adjourned.