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

–(Deputy Burton).

Mr. B. Smith

I am glad to have the opportunity to contribute to this important debate. The number of speakers offering in the House shows the interest that has been generated by the amendments put forward by the Minister for Finance.

The Freedom of Information Act 1997, which came into force in 1998, has made a valuable contribution to the working of the State and public administration. Since the early 1990s there have been great improvements in the deliberative process of this House with the establishment of legislative committees, both select and joint committees. Prior to the establishment of those committees, a person had an opportunity to contribute on a Bill only on Second Stage, Committee Stage and Report Stage. The establishment of the committees gave Members of the Oireachtas, both of Dáil and Seanad Éireann, the opportunity to engage with officials from Departments and with Ministers in committee on the subjects of the day. It has led to increased and better partici pation by Members of the Oireachtas in our administrative system in general.

Over the past number of years Deputy McCreevy, as Minister for Finance, has provided additional resources for the working of this House, particularly for the individual Members of the Oireachtas. It is not many years since each Deputy had to share a secretary, and before that three to four Deputies had to share a secretary. The Minister brought in some very valuable improvements, both with allowances and additional personnel and resources for the Houses in general and for the political parties represented in this House. This has enabled the parties to do a better job in their work in public representation, both in advancing their own political platforms and in representing the needs of their constituents. I am very appreciative of those additional resources the Minister has given to the Oireachtas in general and to individual Members.

There is a need for further improvement in this regard. One of the big drawbacks for Deputies and Senators, as representatives of the people, is the inadequate support they have for their own particular needs. Any of us who has a secretary based in his or her constituency knows that after spending three or four days here during the week we return to find nothing but calls missed and calls to be returned. It can be very frustrating. I sympathise particularly with Front Bench spokespersons of Opposition parties, who bear a particularly heavy workload. They should have proper research and secretarial assistance to enable them to examine more thoroughly the different legislative issues that come before them.

We should consider the extra resources that have been given to many voluntary organisations. Many people who are working in these or in the many groups that have been established over the past few years have much better personal resources available to them than do individual Members of this House. I know of people in community groups who have a personal assistant as well as other support staff. I see that Deputy Burton is nodding in agreement – I am sure that many of those groups working in the community sector have much better resources available to them than Deputy Burton has as spokesperson for her party in the important area of finance.

Examining the very welcome growth that has occurred in non-governmental organisations throughout the country, we can see that these organisations are much better resourced than some of the Members of this House. Ministers rightly have a fine complement of staff and their own personal offices, and such staff are obviously needed. Departments can also provide necessary back-up for their Ministers. The Houses of the Oireachtas, however, should also be better resourced. The Minister, Deputy McCreevy, is the one Minister for Finance who has addressed that issue, but I would like to see him provide additional resources.

The importance of the Freedom of Information Act is evident. It is proposed to extend the number of bodies covered by the Act from 67 State bodies in 1998 to about 370 today. The Government is right to propose to extend coverage to other appropriate State and semi-State bodies by 2005. There has been a welcome improvement in the area of public administration and there is a more open culture in the Government and in our system of administration than there was in the past. The Office of the Revenue Commissioners holds clinics in different towns throughout the regions. Sometimes people might rather not see the Revenue Commissioners coming to an area, but we all know that many people have gone to those clinics, met the inspector of taxes and the support staff and, instead of having to seek professional assistance, received help from the officials of the office in dealing with their concerns about certain tax matters.

In the area of agriculture a whole new range of schemes has been established, particularly since the early 1990s. The Department of Agriculture and Food holds open days and evenings, and officials participate in public meetings organised by farming organisations. Fifteen or 20 years ago, this would not have been heard of. It is a welcome development and should be improved upon.

In the early years of the State, certainly in the 1940s, 1950s and 1960s, there was a 50-year rule in relation to the release of Cabinet papers. This timeframe has been dramatically reduced in recent years, which is right. I do not know where people came up with the idea of having Cabinet papers available after five years. That is much too short a duration. If Government is to be effective, its debates must be vigorous. No Minister should be constrained in what he or she says in Cabinet or in the arguments he or she uses based on beliefs or the viewpoint of a particular Department. Healthy debate at Cabinet level is essential if proper decisions are to be reached.

In many instances, the release of Cabinet papers after five years could create difficulties for people who are still serving at high level in government. I am sure that Ministers often have to set aside their constituency interests to support decisions at Government level that may have a negative effect on their areas. It would not serve Government, public administration or the role of the public representative well if the detail of such instances was available after five years. It could compromise a person's work at local level as a representative of his or her constituents.

We have a very good public service, which has served Governments of all political hues and has never been compromised. Great credit is due to the public service in general for its work on behalf of the people. Regardless of what political party or parties form the Government of the day, public servants carry on their work with due diligence and attention. They work as they see fit, giving honest service to the people. Often we do not give due regard to the work of the many public servants who go beyond the call of duty to serve their Departments and the wider interests of the public. The Ceann Comhairle and I, representing Border counties over the years of the Troubles, had much contact with officials in the Department of Foreign Affairs and the Department of Justice, Equality and Law Reform in relation to difficulties along the Border. I found the officials in both Departments to be extremely competent and committed to helping the people in those areas who were facing difficulties in going about their business on a daily basis. I record again my appreciation for the civil servants in both Departments who did so much good work over the years when the political climate on this island, especially in Ulster, was not as favourable as it is today.

I mentioned earlier the need for better resources in the Houses of the Oireachtas. We need this if we are to decipher and give the necessary examination to legislation and policy statements from Departments. The Opposition needs proper resources and Government backbenchers should have better resources available to enable them to conduct proper research, to prepare for debates and to prepare policy statements. I welcome the Minister's strong reiteration that there will be no limitations on a person's seeking personal information. It is very important that records of a person held in any Department, semi-State body or hospital should be readily available to him or her.

If fees are introduced, we should ensure that students, people on low incomes or no wages and pensioners are exempt in all reasonable circumstances from incurring such charges. I noted recently that one person had made 466 requests under the FOI legislation in 1998. I do not know who could genuinely have so many interests that they would need to make that number of requests. We should ensure that the legislation is adequate to ensure that vexatious requests are not made.

Many people in the House and outside it have mentioned that the FOI legislation will be restrictive after this Bill has gone through the House. I understand the Canadian Legislature applies a blanket restriction for 20 years over a wide range of records under the general heading of "Cabinet confidentiality". We often think of the Scandinavians in their various systems of governance having very liberal regimes. However, in Sweden detailed memoranda are never brought to government. That surely precludes much examination of the records of government or the discussions that took place at government.

In introducing this legislation, the Minister is striking the right balance. He is ensuring that the legislation will be extended to cover other State and semi-State bodies. If governance and government is to mean anything, we must ensure that the deliberative process within Cabinet is open and that participants at Government meetings are assured that the different arguments they bring on behalf of their Departments or the arguments they put forward personally will, rightly, not be available to the public for a number of years. Five years in politics is a very short period and it is appropriate to change that section.

We have seen some journalists do some very good work by using the Freedom of Information Act to carry out research and to follow different policy trails. We have also seen issues being addressed that are not major issues. There have been newspaper headlines about booking a meeting or a flight on a credit card. Such expenditure was not incurred for the personal benefit of the individual office holder, but as part of their work as Ministers. In this House we would be the first people to criticise Ministers if they were not moving around and going to different parts of the country to listen to different groups and constituents and to see at first hand the different issues of the day whether in coastal or rural communities, or in urban areas that have suffered economic decline over the years.

I am glad to have had the opportunity to speak in this debate and to voice my support for the general workings of the Bill. The relatively minor amendments proposed to the original Act will improve the legislation and will not be as prohibitive as many people would lead us to believe.

Ms Harkin

I wish to share my time with Deputies, Healy, Morgan and Eamon Ryan.

I listened to the contribution of the Minister, Deputy McCreevy, to the debate on Tuesday and I would like to comment on a number of points he made while introducing and defending the Bill. He told us that all organisations have a right to decide how to organise their business and he said the Government is no different. I disagree; the Government is different. Obviously the Minister believes that when people elect a Government, that Government has a divine right to conduct its business as it sees fit. However people deserve, expect and are entitled to more. Perhaps at one time it was enough to say: "That is my decision, like it or lump it".

However, that no longer applies. The people have a right to know how decisions are arrived at and the advice given to Government, because those decisions affect their lives.

Have we forgotten why the Freedom of Information Act was introduced in the first place? Have we forgotten the tribunals, the cover-up, and the attempt by many to suppress information for personal and political benefit? The legislation the Government is attempting to neuter, to destroy and to render ineffective was a genuine effort to make the process of Government more open and accountable. It was an effort to restore confidence in the political system and to make the Government and the Civil Service accountable to the people.

However this Bill bangs the door in the face of the people, locks it and throws away the key. Just as the Minister did in his speech, it says in the plainest possible terms to the public, the Government will conduct the business of government as it sees fit behind locked doors. Has the Minister forgotten that the business of government is not just his business but everybody's business?

The Minister told us that if Ministers know that their opinions could soon become public knowledge, they might decide they should only make their views known around the Cabinet table and, furthermore, might decide it was unwise to express their real opinion. If the public is not entitled to know what Ministers really think, nothing has any meaning. Has it come to the point that the Government is afraid to speak the truth, that it considers it unwise that the public should be aware of the real situation and that all information should be packaged and manipulated?

I should not be surprised at this. I recently posed a question to all Ministers to find out how much money was spent on public relations, press and media advertising. In those Departments about which I received answers, I discovered that in excess of €10 million is spent every year on public relations, press and media advertising. The Government employs more than 80 people in media monitoring and spin-doctoring. The only information to which they want the public to have access is information controlled and managed by Government, but paid for by the taxpayer. That is surely a neat trick.

I have grave concern at the proposed definition of "Government" in the Bill. The Information Commissioner, who was not consulted on the changes – one can clearly see why given his recent report – stated:

The proposed extension of that definition would admit to the interpretation of the expression "Government" as meaning a committee of officials not one of whom is a member of the Government and indeed some or none of whom may be civil servants of the State.

We will not have to put the Irish version of the word Government into the dictionary. In Ireland, Government can now mean un-elected, unaccountable, unknown persons and, unbelievably, we cannot know their real opinion either. This amendment would protect them from any public scrutiny or accountability.

The provision of information to citizens is the hallmark of a system that values democratic accountability over administrative convenience. It is the mark of a Government that values sincerity above spin, that employs health care workers rather than media monitors and that recognises that information is power and that power rightly belongs to the people.

Mr. Healy

I am pleased to have the opportunity to speak in this debate on the Freedom of Information (Amendment) Bill. The fundamental principle of freedom of information legislation is to ensure that the public has a right to know how it is being governed. From that standpoint, the current legislation, which has been in place since 1997, has been particularly successful. It has ensured there is openness and accountability about decisions and deliberations of Government and about the deliberations of civil servants, and it has ensured that individual citizens have had access to personal information held by Departments and various other agencies, including local authorities and health boards. It has been good for democracy and the country. It has also helped balance the propaganda machine the Government has had in place over the past five years, and the propaganda machines of Governments prior to this. As Deputy Harkin said, there are numerous employees of Ministers and Departments. There are also numerous spin-doctors, including a communications unit, to spin the current Government position. The Freedom of Information Act has helped to provide a counter balance to this.

One would have thought the successful existing legislation would have continued to operate. Unfortunately, we have seen a disgraceful attempt by the Government to dismantle and undermine the current Act. It is a bad day for the country and for democracy. It is an attempt to keep the public in the dark and promotes a culture of secrecy. The Government has gone about this in a secretive manner. It established a secretive, one-sided, committee of senior civil servants who see the argument only from their own perspective. They put forward recommendations that limit the Act and have given the Government the green light to introduce further amendments that they had not contemplated. There was no demand for this change from Members, the Information Commissioner or user groups. The only demand for this legislation came from a Government that wants to promote a culture of secrecy and keep the public in the dark.

The Progressive Democrats are supporting this legislation. This party was elected to Government to act as a watchdog for Fianna Fáil. During the election, the Minister for Justice, Equality and Law reform was up poles in Dublin 4 telling us the Progressive Democrats would ensure Fianna Fáil would not get away with anything in the future. The Progressive Democrats have obviously been contaminated by Fianna Fáil and are now more Fianna Fáil than Fianna Fáil itself. We saw the Fianna Fáil Minister for Finance, Deputy McCreevy, and his assistant, the Progressive Democrat Minister of State, Deputy Parlon, going to the Cheltenham races while a Bill sponsored by them was introduced in the Seanad. While I have no difficulty with the Deputies going to Cheltenham or any other racetrack, it was an insult to the Seanad and the Oireachtas to have done this.

Mr. Eamon Ryan

I oppose this Bill. I have had some limited experience of using the Freedom of Information Act. My only real experience of dealing with the Act came in my early days as a councillor. I found an asset belonging to a local authority had been leased to a private developer in what seemed to be peculiar, suspicious and unwarranted circumstances. I became highly excited by this, thought tribunals were on the way and considered telephoning Frank McDonald to raise the issue. I grew even more suspicious when I spoke to engineers and local authority officials and they echoed my worries. As a new and highly excited councillor, I thought I had discovered all that was wrong with the world and wanted to take it on. I applied for information on the contract through the Freedom of Information Act. A large parcel of documents arrived a few weeks later. Much to my disappointment, what I had thought to be a den of vipers was a den of incompetence. The decision, which to my mind was wrong, had been made on a proper basis.

This example shows how the wide use and interpretation of the Freedom of Information Act protects the State in as many incidences as it exposes it. It protects civil servants from the allegations and opinions that might otherwise get out of hand. In restricting the Act, the Government is making an incredible mistake that attacks the heart of our democratic structures. Has the Government been so long in power that it has become removed from what it is like to be in Opposition or outside the position of power? It is increasingly seen as arrogant, detached and autocratic. It is sad for our democracy and I hope the Government will cast the net as widely as possible when making amendments on Committee Stage.

In my experience, openness in Government has only positive benefits. I have experience in the transport campaigning area. I was a passionate campaigner in an NGO and argued for certain developments. I was fortunate that the Dublin Transportation Initiative, the NGO in which I was involved, had a sense of openness and encouraged access to information. While this benefited me in allowing me to make more coherent arguments, it benefited the entire process, including those I argued against, as it allowed a clear and frank discussion on points of real concern. Had that openness not existed, the debate would have been far inferior.

In my experience of dealing with the Civil Service, I have found its members to be excellent, independent, well motivated, hard working and intelligent. Due to the nature of the work, the service tends to be conservative, as it should be when it is spending public money. This conservatism is aimed in the wrong direction in this case. I would argue the Freedom of Information Act has benefited the Civil Service.

The Government received a report from five civil servants that suggested limited changes to the Act. While I would not agree with these limited changes, the Government disgracefully ran in a range of other changes to the Act. The manner in which this legislation has been introduced and debated speaks volumes of the style of democracy the Government wants to see in this country with which I disagree.

It was noticeable before the general election that a prominent member of the Progressive Democrats referred to Ceaucescu-like State infrastructural projects. If it were not for the Freedom of Information Act, we would not have had the full details of what a bloated and incorrect scheme is the stadium project. If Ceaucescu were to come to power in this State, his first action would be the removal of the Freedom of Information Act. Ministers that said one thing before the election are now doing the opposite.

Mr. Morgan

Let me begin by reminding those Deputies on the Government benches that opposition to the disclosure of information of public interest could be seen as a trademark of a corrupt government. Like my party colleagues who have already spoken on this Bill, I would like to again record Sinn Féin's opposition to the Bill as it will undermine the openness and accountability of Government and public institutions.

Freedom of information places a necessary check on government and public institutions, preventing and exposing abuses of power. Those who seek to amend the Freedom of Information Act would have us return to the Ireland of the 1950s, a secretive society where child abuse and corruption were hidden from the public eye. Freedom of information legislation acts as a guarantor of democracy.

Like many of the interest groups that have commented on this matter over the past few weeks, I was outraged that the Government failed to engage in real consultation in its review of the Act. The Information Commissioner was not consulted nor were the Government's own FOI advisory groups and many other interested groups such as the NUJ, Opposition parties and the Irish Council for Civil Liberties. Though some of these groups were given the opportunity to present their views to the Oireachtas Joint Committee on Finance and the Public Service, I doubt that their concerns will be taken on board by the Government parties.

With the exception of the Government parties and the senior civil servants involved in the high level group, there has been widespread opposition and anger at the changes proposed by the Government. No doubt those Fianna Fáil Deputies who were vocal in their criticism of the Freedom of Information Bill in the House in 1997 for not going far enough will not break ranks to stop these retrogressive changes being rammed through.

Mr. Cregan

Dream on.

Mr. Morgan

Section 19 provides that papers of committees of officials will be defined as Government papers which could be exempted from release. This is to be given effect by substituting for the definition of "Government", currently contained in section 19(6), what the Information Commissioner has described as "a much more far-reaching and constitutionally unrecognisable definition." This will include within the definition of "Government" a committee of unelected officials. In other words, there will be formal recognition and implicit approval of this committee of unelected officials. Notwithstanding Deputy Eamon Ryan's comments on the Civil Service, the people are entitled to elect the Government on a regular basis as opposed to having it appointed in this unelected form.

The Bill contains a provision allowing Secretaries General of Departments to issue certificates that a document is under the deliberative process. This certificate, on which there is no time limit, prevents the release of relevant records from public bodies. This gives greater power to Secretaries General than to Ministers because a Minister can declare a record exempt only if he or she is convinced that the record concerned is of sufficient sensitivity or seriousness to justify doing so. This new provision is open to abuse and could give Secretaries General the power to prevent the public accessing information which they do not want to release. That cannot be right.

The exemption for letters between Ministers relating to matters before Cabinet will no doubt save the Government from embarrassments such as that which arose from the publication of letters between the Ministers for Health and Children and Finance late last year. The introduction of fees for information requests is designed to deter individual citizens from making requests and will have the greatest effect on the less well off and those who can ill afford such charges. The legislation creates three new classes of records that will be banned from release.

I call on Government Members, many of whom have alluded in their contributions to opposition to the legislation, to have the courage to vote against it because it is not worthy of support.

Mr. B. O'Keeffe

I wish to share time with Deputies Curran and Cregan.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Mr. B. O'Keeffe

The Freedom of Information Act was introduced in 1997 and it has made a valuable contribution to our democracy. It is important there is confidence and trust in government in a democracy and freedom of information plays a significant role in building such confidence.

The Government's record on freedom of information shows that the number of bodies covered by it has been extended from 67 in 1998 to 370 today. The Government has also pledged that bodies that are still not covered will come under the remit of the Act by 2005.

Mr. Naughten

Except the Government.

Mr. B. O'Keeffe

This contradicts the accusation that the Government is engaged in a culture of secrecy. The new appointee to the position of Information Commissioner is an independent-minded journalist. This is another indication that the Government will not hide behind somebody who is not independent. This journalist will stand on her record and she will be seen in an adversarial role vis-à-vis the Government. Newspaper headlines described her as the next thorn in the side of officialdom.

Ms Burton

She will not have powers because they have been removed by the Government.

Mr. B. O'Keeffe

That suggests the Government has stood back and been extremely independent and far-sighted in regard to the appointment.

Ms Burton

She has no powers.

An Leas-Cheann Comhairle

Deputy O'Keeffe, without interruption, please.

Mr. B. O'Keeffe

The Act has been in place for six years and it is appropriate that its effectiveness is examined. There has been a problem with the perception of the Act.

Ms Burton

Because it is working.

Mr. B. O'Keeffe

There also has been a problem with the perception of the Ethics in Public Office Act 1995. That could have been called the parliamentary register of interests Act and it would have been perceived differently.

Freedom of information is an abstract concept. No freedoms are absolute however and the Government has an obligation to ensure that. The Government has a duty to govern and, where possible, we should be governed in a manner that pays due regard to the concepts of accountability and transparency. The proposed changes to the Act are measured, exceedingly sensible and will ensure the Government can perform its primary duty. The passage of the legislation is in the public interest but, while it may not be in the interest of the media, that should not be a prime motivating factor in framing the laws of the land. The media have a vested interest in the legislation as the lovely stories and headlines will disappear. The Government is accountable to the people and not to editors, commentators and journalists. They should get off the bandwagon because their argument is not making its mark with ordinary people.

Government is all about collective authority and responsibility and that is a constitutional imperative for Cabinet members. It is reasonable and sensible for a Government to enact changes that seek to comply with that imperative. If the Government is to be effective, there needs to be full, frank and free exchanges of views among its members at Cabinet. There have been differences of opinion in every Cabinet since the foundation of the State but when a decision has been reached, the Cabinet has united behind it. The tradition of frankness has been part and parcel of Cabinet exchanges and it would not be right to reveal such exchanges. Who wants to read and hear about divided Cabinets and Government splits in the middle of negotiations? That would be detrimental to authoritative Government and the effectiveness of the Government would be absolutely undermined to whip up public controversy.

The Bill is far-sighted in many ways and if the current legislation prevails, Ministers could become reluctant to express a view where records are kept. However, by extending the period for retention of Cabinet records from five to ten years, it may be ensured that a greater documentary record will be available and it will not be possible to pick tabs out of files from time to time. Future generations will thank us for the Bill because we will have ensured freedom of information will not mean a shortage of information. The road we were going down and the system was such that, when we looked back at Cabinet records, there would be a lapse of information.

Mr. Curran

I welcome the opportunity to speak on the Freedom of Information of (Amendment) Bill [Seanad] 2003. I am conscious that it has received considerable airing in the Seanad and in the Joint Committee on Finance and the Public Service, chaired by Deputy Fleming, last week. The original Freedom of Information Act became operational about five years ago, in 1998 and I acknowledge it has made a valuable contribution to democracy in Ireland. It has added a real level of transparency to the operation of Government following a period of much alleged wrong-doing which is now the subject of a number of tribunals. In this manner, the Act has helped to restore a level of confidence to politics in Ireland.

The Act, when it was introduced in 1998, applied to just 67 State bodies and today applies to more than 370 bodies. During the past five years, the Act has been used effectively by many to disclose a range of issues which have been of significant public interest. I am confident that many of these issues may never have seen the light of day without the benefit of this Act. Apart from specific issues which the Act brought to life, it brought a culture change. Every Department and public body conducts its business in a different way because it is conscious of the FOI Act. We can get the information we seek from local authorities and others without having to go through the FOI procedure. Information is much more forthcoming.

However, after five years of operation of the Act, it is appropriate that the Act be reviewed. I have listened to a number of speakers from the Opposition parties, who have referred to the contributions of speakers from the Government side of the House when the original Act was brought before the House. They have tried to ridicule those original contributions and have tried to show inconsistencies between the original contributions and those which are currently being made. The contributions being made now have the benefit of the knowledge and experience of five years of operation of the Act. When looking at the amendments to the Act, it is important to do so in a balanced way. The amendments must try to ensure that the Government can operate and govern in an effective manner. However, it is crucially important that the amendment pays due regard to the concept of accountability and transparency. It is of equal importance that the general public has confidence that the Freedom of Information Act remains effective.

On the controversial matter of consultation, users of the Freedom of Information Act such as academics, journalists and other frequent users claim that they were not directly consulted about the proposed changes in the Bill. Some of these users have contacted me directly – particularly a number of freelance jounalists – to make these points. The response from the Department of Finance in relation to this specific query was that the Bill was drafted on foot of the Government's consideration of the high level group report, which considered inter alia the report of the Information Commissioner on compliance by public bodies, the Civil Service users network report and the views of the FOI central policy unit of the Department of Finance, which monitors the issues and difficulties arising in the operation of the Act as part of its remit.

The views of those with an interest in FOI and frequent users are channelled to the unit on an going basis, including through different conferences hosted and attended by the unit. In drafting the legislation, the Department of Finance also considered the amendments suggested by the Information Commissioner. Therefore, the draft legislation has been informed by the full range of experience and views of the operation of the Act over the past five years. While this is the route and process chosen by the Department of Finance in the preparation of this Bill, I would have preferred to have seen a more direct type of public consultation. I say that not in the knowledge or understanding that I believe the amendment Bill to be flawed, but because it would have commanded greater public confidence. The Minister and the Department chose a different route and it is their prerogative to do so but the amendments they propose do not damage the original Act. Nonetheless, public confidence and perception of the Act may have been different if a different public consultation process had been engaged in. However, that was not to be.

The principal changes now being proposed are designed to allow Government to effectively discharge its duties. It is the responsibility of Government to take collective decisions on behalf of all the people. The Government should not be discouraged from engaging in full, honest and frank discussion of all options open when addressing any particular issue. Ministers must feel free to express their views and engage in full discussion. Most people now accept that extending the restriction on access to Government records from five to ten years is appropri ate. Most people realise that, if there is to be full and frank discussion within Government to bring a concept from inception to delivery, the ten year limit is reasonable and strikes the right balance between transparency and the effective functioning of Government. This is not out of line with time limits which we see applied to FOI in a number of other countries, about which we have heard today.

Mr. Cregan

I thank Deputies for sharing time. I am glad to have the opportunity to speak on this Bill. We had come to a stage where the Freedom of Information Act was hindering the freedom of expression and we had to recognise and deal with that which is why this Bill is before us. The Government has been totally committed to the FOI Act since its inception in 1998, which is proved by that fact that, at that stage just 67 State bodies were subject to FOI requests, and now that has jumped to 370 such bodies.

Even after these modest amendments to the Act, Ireland will continue to have one of the most liberal freedom of information regimes in the world. Canada has a 20 year retention rule for Cabinet documents and protection is also provided for ministerial communications in the UK. Protection will be applied, not just to Cabinet discussions, but to non-Cabinet communications between Ministers. This is a natural extension of the doctrine of collective responsibility. The Secretaries General and the Government will ensure that this protection is provided to records which genuinely fall within these categories. Accordingly, the decision to retain information will not be driven by party political motivation.

All Departments undertake deliberative processes and the Secretaries General to Departments will decide when the Department's deliberative processes on a given issue are concluded and that the relevant information can be released. The changes in the Bill to ensure that different Departments consult formally before deciding when a process is concluded is another change which is to be welcomed as consistent with the objectives set out by the Government. More certainty is needed as to when a deliberative process has finished and the proposed changes provide for that certitude.

Fees have been mentioned by many speakers. Up-front fees for existing provisions provide no real reflection of the cost of administering FOI. Every request for information has a cost in terms of time and money. The process of search and retrieval, the subsequent determination – with due regard to the public interest – of what is relevant and what is exempt does not come cheap. Requests for third party information, in particular, can be especially consuming of resources, requiring, as they do, contact with the third party, a consultative process, submissions arising and an appeals process. While the original FOI Act recognised the necessity for a fee, the practice has been that no charges have been imposed. This is an imbalance and a provision to enable the Minister for Finance to reverse this is to be welcomed. It must be emphasised that there will be no fee for requesting personal information.

The suggestion that the Government is acting out of self-interest is also negated by the provision that exempts the policy making processes of the Opposition parties, where they require State assistance, from the Freedom of Information Act. On briefing notes for answers to parliamentary questions, it is absurd to claim that every piece of background information provided to a Minister should be revealed. The answer itself fulfils the duty of accountability. Ministers might not wish to avail of background information and it might not be relevant.

Government needs to be effective and trusted but if it fails in the former, it cannot succeed in the latter. No objective opinion could legitimately regard these changes as being secretive or sinister. Certainly, nobody can accuse the Minister for Finance, who introduced this Bill, of being secretive. No measure that is designed to render the workings of Government more efficient can be regarded as regressive. Presumably, the opponents in the Dáil of this Bill aspire to govern some day. If so, they should realise that collective responsibility is an integral part of government. Indeed, it is a constitutional obligation. To reject this Bill is to reject the notion of collective responsibility. If they do so, they cannot with any credibility offer themselves as an alternative Government.

It has been alleged by Opposition Deputies that this Bill is being guillotined. There has been plenty of time to discuss it. However, yesterday and last night I spent much of my time in the House to provide a quorum. This morning, too, I spent a lot of time walking through the lobbies to vote. That is democracy. However, many more speakers could have contributed to this debate if these events had not taken place.

Mr. Naughten

The Deputy needed the exercise.

Mr. Rabbitte

We were only trying to provide exercise for Deputy Cregan.

Mr. Naughten

It is cheaper than a gym.

Mr. Rabbitte

It is and he will be none the worse of it. Last week was the ideal opportunity, for those who sought it, to bury bad news. Even so, it is surprising how little attention has been paid to an agreed statement issued by the Revenue Commissioners and a former Member of this House. As war began in Iraq, we learned that a settlement had been reached between the Revenue Commissioners and that former Member for €5 million in unpaid taxes, interest and charges. I refer to former Deputy Charles Haughey. The settlement concerned only relates to those payments to Mr. Haughey revealed by the Moriarty tribunal. They do not include a previous payment which arose from the McCracken tribunal.

Of course, Mr. Haughey is not just a former Member of the House. He held high office over four decades and was elected Taoiseach on four occasions. He led the Fianna Fáil Party for 12 years and was the personification of that party for a generation. If the Minister for Finance were in the House, he would not need to be reminded of this because, to his credit, he is one of those who ultimately came to oppose Mr. Haughey's leadership of Fianna Fáil. We cannot say that of everyone in the present Government.

What the McCracken and Moriarty tribunals and the tax settlement this week have revealed is an appalling pattern of government by insider dealing among a so-called golden circle. However, even before we came to know the full details of Mr. Haughey's bizarre lifestyle, we knew that all was not well in Irish public life. The beef tribunal provided plenty of evidence for those who cared to look. That is the reason this House agreed to three legislative measures aimed at restoring trust in public life in this country. The package of reform had three pillars, the Ethics in Public Office Act, the Electoral Acts and the Freedom of Information Act. In substance, each of these measures was a necessary part of the process of reform.

It is ironic that in a week when the corruption of the past has been so amply demonstrated, Fianna Fáil should be in the process of dismantling the apparatus of open and accountable government. It is ironic, too, that it should be so amply assisted by the people who made their reputations in opposing Mr. Haughey, the Minister and his friends in the Progressive Democrats. How ready they are to forget. What has really happened in this coalition of the willing between Fianna Fáil and the Progressive Democrats is that they have made the cynical calculation that the Freedom of Information Act does not preoccupy the ordinary voter.

We now know that Mr. Haughey's aristocratic lifestyle was built on untaxed donations from his friends. However, there is more to aristocracy than living in a mansion. There was also the arrogance of unaccountable power and the contempt with which the Irish people were treated. Mr. Haughey did not believe that the rules applied to him or that he should be held accountable for his exercise of power.

That aristocracy has given way to another. This is an arrogant Government which does not believe it should be held accountable to the people. Such is its arrogance that neither the Minister for Finance nor the Minister of State could tear themselves away from Cheltenham to attend to their duties in the Oireachtas when the Freedom of Information (Amendment) Bill was being discussed in both Houses. Such is the Government's unwillingness to be held accountable that, in this Bill, it is systematically gutting the Freedom of Information Act. It is opening up a wide range of loopholes which it can use to prevent the release of information to the public.

We know that the current Government is more than a little uneasy about its connections to the Fianna Fáil Party of the 1980s. The indecent haste with which this Bill is being pushed through the House is undoubtedly related to what might emerge in Cabinet papers were the five year rule to remain in place. In April and May of 1998, the Cabinet was discussing the manner in which revelations about former Deputy Burke should be investigated. We know this is a subject about which the Taoiseach is sensitive. He gave a commitment to former Deputy Burke, who was then a Minister, that under no circumstances would he cause a tribunal of inquiry to be established. When events unfolded that made such a tribunal inevitable, former Deputy Burke resigned. In a fit of pique he resigned both his seat in Cabinet and his seat in the House. The Taoiseach does not want that to be opened up again.

This is a SAD Government – smug, arrogant and dishonest. The smugness and arrogance is clear to see and the dishonesty of Fianna Fáil's election campaign is now well established. However, the Progressive Democrats are also guilty. Whatever about looking up every tree in north Dublin, the Progressive Democrats were prepared to climb up every lamp post in south Dublin to proclaim: "Single Party Government? No Thanks." They promised to rein in Fianna Fáil and to prevent a return to the old days and ways of Fianna Fáil Government. That they would acquiesce in this legislation is a total betrayal of the promises they made to the electorate.

Standing in this morning for the absent Taoiseach, who continues his tour of the constituencies, the Minister, Deputy Michael Smith, boasted of winning the general election. However, the Government does not have a mandate for this Bill. The Freedom of Information Act is legislation of a fundamental kind, which conferred new civil and political rights on Irish citizens. The Government was elected only ten months ago and neither of the coalition parties mentioned change to the Freedom of Information Act in their respective manifestos and they cannot come to the House and claim they have a mandate to undermine it. They are now seeking to remove those important civil and political rights from the Irish people, with no democratic mandate to do so. They are abusing their majority in the House to ram through this legislation, with no mandate from the people, no consultation with interested bodies and no intention of engaging in meaningful debate.

This is a fundamentally undemocratic exercise. It will result in a significant diminution of our democracy. It will limit the capacity of citizens, including the parliamentary Opposition, to hold the Government to account. That is why Labour has made strenuous efforts this week to obstruct passage of this Bill. We cannot treat this as normal legislation introduced in the normal way. The Government has gone beyond the boundaries of democratic practice and we cannot acquiesce in that. By conducting a campaign of parliamentary opposition to this Bill, the Labour Party is making it clear that we find the Government's approach unacceptable. We even went so far as to offer the Government a way out. Had the Government accepted our Bill, or were they yet to accept the principle behind it, they would have been able to protect Cabinet papers for another year, while engaging in a meaningful consultation exercise, but they chose not to do so.

We were also prepared to engage in a meaningful debate about how to balance the right of citizens to information with other important considerations, including administrative efficiency. The suggestion by Government Deputies that the Act was rushed through, or badly drawn, is a nonsense. The Irish Freedom of Information Act is in fact widely regarded as an example of international best practice in this area. So, we could be confident that a thoughtful and meaningful review, as provided for in the Act itself, would only have resulted in modest adjustments. Instead, we have had no such consultation and a wholesale filleting of the original Act.

The Government's intention is clear: it wants to neuter the Freedom of Information Act, purely and simply. It is clear from the evidence provided to the committee by members of the high level group that this is a political initiative. It has been introduced for base political motives and the cloak of bureaucratic respectability, which the Government has attempted to throw over it, has been shown up for what it is.

The Taoiseach claimed repeatedly that the changes being contemplated are minor ones, yet previous speakers from my party, and other Opposition parties, have amply demonstrated the falsehood of that claim. No matter how often the Taoiseach repeats it, it will still be false. The detailed provisions of the Act have been exposed in this House, and exposed also by the report of the outgoing Information Commissioner for what they are: a series of loopholes designed to provide ways to hide information from the public. In giving evidence to the Committee on Finance and the Public Service, Mr. Murphy made perfectly clear that the functioning of good government was in no way impeded by the operation or performance of the Act over the past five years.

I do not intend to go over that ground again in detail, but I want to pick up on one or two points in the Bill. One of those is the proposed up-front fee for making freedom of information requests, which was brushed off by colleagues on the Government benches as a minor matter. It is not a minor matter. It is abundantly clear that the fee is primarily intended to discourage requests being made in the first instance; that is the point of it. Moreover, it will also alter the practice of providing information outside the Act. There will now be an incentive to tell the citizen to submit a formal request and pay the fee, rather than simply releasing information which should be in the public domain anyway. The term "freedom of information" will be a hollow one. The Act should, perhaps, be renamed "the information we want you to have, at a price, Act".

Recently, the House has seen examples of one Department providing information in reply to a parliamentary question, while another Department refuses to do so. The instinct, still, is to protect and regard information as secret, even if it is of a factual character that ought to be in the public domain.

The Minister for Finance has claimed it is necessary that the costs of processing freedom of information requests should be recouped from the requesters. I suppose we should not be surprised that the Minister should take this approach; after all, he has been busy in recent months increasing every charge for Government services that he can think of. The Minister does not seem to possess any concept of the public realm or the common good. He knows the price of everything and the value of nothing. He seems to think Government is some kind of private business, which must re-coup its costs directly from those who use its services. That is not a view I share, but it is even more misguided in respect of freedom of information. Freedom of information is not a service, it is a civil and political right. It is a democratic instrument through which citizens exercise their right to hold the Government to account. Charging an up-front fee for freedom of information requests is like charging an up-front fee to vote in a general election.

While the original Act contained a provision for reasonable costs to be recouped for photocopying and staff time, these provisions have been applied unevenly across Departments. Rather than standardising upwards by introducing up-front charges, we should examine ways of ensuring that costs for citizens are keep to a minimum.

To suggest that a Government which will spend €38 billion this year, and which employs 30,000 civil servants, cannot manage to cope with the demands of the Freedom of Information Act, is simply not credible. In fact, once training is provided and public sector organisations set up the necessary procedures, the implementation of FOI does not impose a substantial ongoing burden on the public service. I requires a shift in culture and attitudes, but that shift is necessary, anyway, if the public service is to succeed in modernising and reforming itself. The Freedom of Information Act is a catalyst for reform, not an impediment to efficiency. It is striking that the Government has not yet produced any real evidence to the contrary.

I also wish to refer to section 4 which amends section 6 of the Principal Act by substituting the word "contain" for the words "relate to". The Government has no option but to amend this provision on Committee Stage. It is simply unconscionable that the Government could persist with this amendment. In doing so, it will materially diminish the ability of victims of child abuse to access records of direct relevance to them.

Mr. M. Higgins

Hear, hear.

Mr. Rabbitte

This may not have been the Government's direct intention in introducing this section and I am prepared to accept their bona fides in that respect because I fully expect to see an amendment to that section on Committee Stage. Is it not a prime example, however, of what is wrong with the entire Bill? The Government may not have foreseen how its changes would impact on the victims of child abuse, but what else has it not foreseen? In what other circumstances will we find this Bill altering the balance of power between the State and citizens who have been grievously wronged? The whole point of freedom of information is that it empowers ordinary citizens to hold the institutions of Government to account, both in terms of matters which relate to them personally and matters which affect the whole community.

I suppose we should be grateful for one thing about this Bill: at least we have been spared the farce of a Fianna Fáil backbench rebellion on this one, which is something we have seen on virtually every other measure that has come before the House.

Mr. Kelleher

We have to provide the opposition as well.

Mr. Rabbitte

Even Deputy Kelleher has let it be known that he is revolting from time to time.

Mr. Durkan

From the plinth a couple of times.

Mr. Rabbitte

On this occasion, however, there have been no choreographed appearances of backbenchers on the plinth, with all the bluster and dire threats they can muster. Such appearances are usually followed by a meeting with the Minister from which backbenchers emerge mollified and reassured by that Minister who has not altered his position one iota. However, as soon as the backbenchers are brought away somewhere for a lecture by the Minister for Finance on the real meaning of what is behind it, the inherent, sagacious profundity of Government is recognised.

Fianna Fáil desires to be both Government and Opposition but we have seen no such exercise on this Bill, so we can infer that Fianna Fáil Deputies do not think these changes in the Freedom of Information Act have impinged on the public consciousness. If some of the Deputies who have been running around pretending to rebel on a number of measures felt the average voter was engaged, they would also put pressure on the Minister for Finance to change his mind about this disgraceful measure. The fact that Fianna Fáil Deputies do not recognise the importance of this measure and that, even at this late stage, they have not asked the Minister to back off, does no credit to them. They have marked the Government's card and they will deliver their judgment in due course. Just as the public has marked the Government down for its dishonesty at the last election, so they are marking them down now for their arrogance and unwillingness to be held to account.

The Minister for Finance has made it clear how smug he feels about winning the general election. He seems to think it gives him a licence to do whatever he wishes with reference to no one. The Minister may not care about the next general election, but his backbenchers do not appear so confident. He has done them more harm with this Bill than they yet know.

This Bill has been a bad day's work. It has been conceived by an arrogant and dishonest Government whose members are seeking to hide their actions and mistakes from public scrutiny. It is being rammed through the House in a flagrant abuse of the Government's majority. There has been no consultation with interested parties because the Government has no interest in other people's views. Its motivations are base, entirely political and have no basis in administrative or constitutional concerns. It has put eminent public servants up-front to take the flack. It published an agreement on partnership, but as the NUJ pointed out this morning, there is very little evidence of partnership in this measure. The Government is putting through its measure. It sent a Minister into the Seanad who had not even read the Bill and cared less, and not an iota of an amendment was accepted. Is that any way to treat this House merely because it has a majority? To think that the Progressive Democrats are the engine that facilitates Fianna Fáil returning to the old secret ways is especially reprehensible. I wonder what the former Deputy O'Malley thinks about the conduct of his party now.

The Government has no mandate for this Bill, which will effectively dismantle fundamental legislation that confers important civil and political rights on the people. They are rights which the people believe they should have. Whether a citizen ever chooses to exercise his or her democratic rights in respect of freedom of information is not the point. Often it is enough that the right is there. The people have given neither of the Government parties a mandate to extinguish those rights. I have no doubt that they will exact a heavy price from those parties whose arrogant presumption it has been to do so.

Mr. Kelleher

We are speaking about freedom of information, but a good deal of misinformation has been spread around these Houses in the past few days. Everybody would accept that the Freedom of Information Act has been beneficial to the public, the Opposition and Government and to ensuring openness, transparency and accountability in our political system. The Act was not designed to address some of the problems highlighted in the previous contribution. It has transformed the way we do business in this House and in Government and, more importantly, how the public can get a service from the public service which in the past was secretive, unanswerable and unaccountable. If nothing else, the Freedom of Information Act has at least addressed that issue. There is now accountability in a plethora of public agencies ranging from county councils to health boards right through to the Civil Service. The Act has been of great benefit to people in general.

The major users of the Freedom of Information Act are journalists and it has been beneficial to them in carrying our their function of trying to relay to the people what is happening in Government and in the public service. Some exciting stories have emerged in recent years as a result of the Act.

When this original legislation was passed it was intended that it would be reviewed at some stage and one has been carried out. People have said that there was no consultation on this Bill, but the fact that we have debated it in the Seanad, in committee and are doing so in the Dáil is what consultation and debating an issue is all about. We meet here as parliamentarians to debate issues. This House is the most important forum for any form of debate and to suggest otherwise diminishes the role we have in this Parliament.

The issue of fees for FOI requests is one which the Opposition would like to target, but it does not seem to understand that often spurious requests have been submitted to freedom of information officers in Departments.

Ms Lynch

There have been very few, only a handful.

Mr. Kelleher

In some cases costs of several thousands of euro have been incurred by the Civil Service in processing freedom of information requests which were known to be almost spurious in that there was no targeted request but one which required a trawl through a Department to find out some information or story. That has happened in the past and has cost a great deal of money. The Minister stated that he will examine the fees he will charge and will provide a nominal charge for people who do not have the means to pay the set fee. That is a positive step, which will be appreciated by people who wish to avail of the service but do not have the means to pay the set fee.

The rainbow Government when drafting the original legislation must have acknowledged even at that stage that it would not be returned to Government by the fact that it inserted a five year provision. Most commentators would suggest that a ten year limit is a reasonable timeframe for the release of Cabinet documents. The fact that this Government was returned to power after a five year term means that there could be sensitive documentation on issues discussed by Ministers who hold the same portfolio that they held in the previous Government which were due to come before Cabinet prior to a collective decision being made. The Cabinet is enshrined in the Constitution and collective responsibility is an important plank of Cabinet. We must protect the confidentiality of Cabinet decisions. Memoranda brought to Government may be discussed and referred to a sub-committee. Discussion on these issues surely deserve the respect of having been made in confidence until such time as a decision is made

Ms Lynch

In secret.

Mr. Kelleher

and then the records can be released in the appropriate timeframe. The previous Government which was in office for five years was returned and, given that it has a large majority, it could run to full term. It is suggested the records of Ministers who have brought memoranda to Cabinet and expressed individual opinions prior to a collective decision being made on an issue should be released. That would undermine the principle of Cabinet responsibility. If we are to have effective Government, Ministers should be free to express their opinions on a variety of issues, not only those that arise in their Departments before decisions are made at Cabinet level. If such documents are released into the public domain, that will not encourage free thinking, debate or individual contributions because they could be misconstrued later where comments were made at the backdrop of a different time. I welcome the ten year provision in this regard.

The ten year timeframe is not excessive. A 20 year timeframe applies in Canada and the timeframe in many other countries is more extensive than the ten year timeframe suggested in the Bill. We must address that issue, on which many people have widely commented. For example, does my party want to know what is discussed at the Labour Party Parliamentary Party?

Ms Lynch

That is entirely different.

Mr. Kelleher

Has it not an entitlement to meet collectively in confidence to discuss issues, although I appreciate it is difficult to discuss issues in confidence in any parliamentary party? The Front Bench of the Labour Party and Fine Gael have an entitlement to discuss their views in confidence. The same should apply to Government. Its members need to be able to discuss issues, reflect on views, comment on issues, come to a decision and stand by it collectively, and later those records will be released. The five year timeframe suggested is too short.

We have come a long way in a short time regarding the accountability of Government. We have had problems in the past, with tribunals being set up to investigate issues, and that has ingrained in the public consciousness the need for open, honest and transparent Government. The Freedom of Information Act is one part of that and the Ethics in Public Office Act is another. The fact that we now have a more targeted view of what Government is about has endeared itself to the Irish people. I am sure those watching this debate will raise questions about freedom of information. Debate is what the House is all about and it is disingenuous of people to say there has not been wide consultation. The fact is that a high-powered group was set up to review the legislation because it was creating inefficiencies in Government.

Ms Lynch

They said they do not want this.

Mr. Kelleher

I was led to believe Governments decided policy and that it was then up to Departments and other bodies to enact that policy. Some comments about the incoming Information Commissioner have been very unfair, such as the suggestion she would resign if this Act were passed during her term. It is very unfortunate that we are trying to undermine the new Information Commissioner, who is soon to be appointed and it is regrettable that one of the Opposition party leaders suggested this and undermined her independence. We decide policy and pass legislation and I am confident the new Information Commissioner will act in an impartial and independent manner, as is expected of those appointed to that position. I wish her the best of luck.

Regarding sub-committees and officials, Opposition Members who have been in Government know how the system works. A Minister receives a memorandum from another Department for observations and the Minister's officials comment on it; a Cabinet sub-committee may then be set up to examine proposals coming forward from various Ministers. To have any free thinking or credibility the integrity of that process has to be protected so that Ministers can express opinions with confidence. If all those discussions were available to the public, nothing would happen in Government; the Opposition would be highlighting issues day in day out because one Minister said something to another. Ministers do not make decisions. The Cabinet makes collective decisions.

Many individuals have benefited from being able to access personal information and that option, whereby an individual can apply for information, has brought a new approach from the public service. For example, once a person had to put in a request for examination information under the freedom of information legislation but now that is made available. That shows the Act is not just of benefit to the individual but, because the public service has acknowledged the Act is in place, it is becoming more proactive in giving out information without having to receive an application.

Ms Lynch

A cultural change.

Mr. Kelleher

It is a cultural change I thank Deputy Lynch.

There has been a lot of misinformation circulated about the amendments to the Freedom of Information Act but I support the thrust of the new Act for the reasons outlined. If we could have used the time allocated for the debate in a constructive manner then more Deputies could have expressed their opinions. I know there are parliamentary tactics used from time to time but calling quorums and manual votes is unfair to Members who want to discuss an important Bill

There are swings and roundabouts in politics and at some point colleagues opposite will be in Government; then the test will be whether they change the Act. When they look at how Government works, the proposed changes here, such as the extension of time limits on the release of Cabinet documents and the exemption of ministerial notes from publication, will allow them to express their views in confidence, yet openly and honestly among themselves. It is not a question of whether a party is in Government singly or in coalition; it is a matter of individuals making comments privately and those comments being amalgamated into a collective view. That is what Government is about. Anyone entrusted with ensuring that policies are enacted and that there is proper debate would support these provisions. They would not be worth their salt if they did not, as it would show if they were in Government they would be unwilling to make decisions in the first place.

I support the general thrust of these provisions. Regarding the fees, the Minister will ensure that there is a nominal charge for those who may not have the means to pay higher fees. The Minister is anxious that there is some form of charge in order that the service is appreciated and is not abused. A request was once made for the diaries of all Ministers and departmental officials. That would cost the taxpayer thousands of euro.

Ms Lynch

There was one.

Mr. Kelleher

The Act was not passed with that purpose in mind. I hope this Act has a speedy passage to ensure we have collective governance—

Ms Lynch

All this Government's Bills have a speedy passage.

Mr. Kelleher

—and that the Government continues to make decisions in the interests of the country. The policies it outlined in the last election will then be implemented and we will have effective Government without fearing the Freedom of Information Act will be abused by individuals to embarrass people. Decisions made in 1999 may be viewed differently in 2005 because of a different historical perspective.

I commend the Bill to the House.

Mr. Naughten

I propose to share my time with Deputies Enright and Hayes.

It is important to remind Government Deputies that the 1997 Act recognised in law for the first time that public bodies should be directly accountable to the people they serve. We had the tripe of "Single Party Government-No Thanks" before the last election but it is evident there is no longer a coalition in Government. We have single party Government and the Progressive Democrats have now become more Fianna Fáil than Fianna Fáil themselves. Wags in Fianna Fáil said in the mid-1980s that the Progressive Democrats would be amalgamated back into Fianna Fáil and that prediction has come home to roost.

Ms Lynch

The temporary little arrangement.

Mr. Naughten

Fianna Fáil and the Progressive Democrats realise the reality of the situation. This is a single party Government and the Progressive Democrats Party has turned into the lapdog of the Fianna Fáil Government.

Mr. Ellis

Now we know the reason the Opposition is jealous.

Mr. Naughten

Before turning to the provisions of the Bill, I will address the criticism levelled by my constituency colleague, Senator Leyden, and the Minister for Justice, Equality and Law Reform, Deputy McDowell, at the Information Commissioner for comments he made about the Bill. Sadly, neither the Minister nor the Senator read the principal Act which states clearly in section 39, not only that the commissioner may comment on amending legislation, but that he has a responsibility to do so. To be publicly criticised in this Chamber and the Upper House for performing one's duty is hypocritical.

The comments of the Minister of State at the Department of Transport, Deputy McDaid, his vocal colleague from Limerick, Deputy O'Dea, and other members of the Fianna Fáil Parliamentary Party, are also hypocritical in light of the statements they made on the original legislation.

The amendment in section 4 to section 6 of the principal Act is a crucial element of the legislation which epitomises the Government's objective in introducing it. The section rewrites the rules governing access to personal information. Currently, one can access records which directly relate to oneself. Once the Bill has been passed, one will only be able to access records which contain information about oneself.

I focus on this issue because for the past five years I have been trying in the House to obtain information from the Department of Health and Children and various health boards about the case of children who received three-in-one vaccine in the late 1960s and early 1970s. The amendment will mean parents of brain damaged children who are trying to obtain vaccination records will not be able to access the relevant information, namely, the batch and lot numbers of the vaccines. Although they are directly relevant, the files in question do not contain personal infor mation about the individuals affected and will not, therefore, be open to the parents, who will not be able to repeat the historic case taken by Mrs. Margaret Best.

On a related matter, Deputy Kelleher, in discussing the types of requests made under the Freedom of Information Act, referred to an application to access all ministerial diaries. I wish to give the other side of that argument. As I stated, for the past six years I have regularly tabled parliamentary questions seeking access to information on behalf of the parents of people with mental handicap who firmly believe their children were brain damaged by a vaccine administered on behalf of the State by the various health boards. In fairness to the Minister for Health and Children, Deputy Martin, having realised on taking office that I was persecuting the Department, he arranged a meeting to discuss the matter and some work has been done since behind the scenes.

Given that I could be considered a rogue requester for persistently trying to track down and access information, the parents in question could be given the same tag when they try to access records through the Department of Health and Children and various health boards. The Members on the Government have not considered this possibility during the debate.

The One in Four group, which represents victims of child abuse, has made precisely the same case, pointing out that its members will not have access to relevant records. The same can be said of those affected by the vaccine trials carried out in the mid-1970s. Despite the fact that records may not specifically mention the individuals involved in the trials, they may contain relevant information on the substances with which the children were vaccinated, yet they will not be released under the Freedom of Information Act if the amendment is accepted.

The Government is trying to brush the truth under the carpet and hide information which would allow parents to get to the bottom of what happened to their sons and daughters 20 or 30 years ago. I ask Government Deputies to consider this before voting on the Bill later. How will they explain their vote to parents who may approach them seeking records which have been denied because of the changes made in the Bill?

Mr. Hayes

People throughout the country are asking questions. What does the Government have to hide? What is lurking in the Department of the Taoiseach that is so damaging it must be kept from the people? What does the Minister for Justice, Equality and Law Reform know that we should not know? Why is the Minister for Finance, Deputy McCreevy, so nervous?

This Government has been in office for six long, wasted years. It inherited a boom which it squandered. It inherited a job market that created 1,000 jobs per week and reversed it. It inherited a culture of openness, transparency and accountability which it is now about to replace with a culture of secrecy, contempt and silence. The Bill seeks to roll back the immense progress we have made in establishing a citizens' democracy. It is a smash and grab raid on the rights of the electorate to transparent decisions and accountability from its public representatives. For this reason, the Members opposite should be ashamed of themselves.

There is so much wrong with the Bill, it is hard to know where to start. There is no single area in which the Government has been particularly brazen. Not content with denying citizens their rights to full disclosure, the Fianna Fáil and Progressive Democrats parties are proposing to charge them for obtaining the minimal amount of information they are allowed to access.

It gives me no great pleasure to inform the House that this shameful, hypocritical and offensive legislation will impose a €20 fee on the ordinary taxpayer just to process a freedom of information application. The Government will argue that this has been done to speed up the process, cut out nuisance requests and help process information to the public. This is not the case. There are two reasons the Government is charging people to exercise their democratic right. First, it needs to raise money because it is broke and the financial position of the country is deteriorating. The fee cannot be described as anything other than a new tax. Second, it wants to prevent freedom of information requests being made. Let us be clear, the Members opposite do not want freedom of information. The introduction of a €20 charge and a potential cost of hundreds of euro if further requests become necessary is designed to put people off making requests in the first place.

Let us not forgot that the Freedom of Information Act gave us the accidental release of the Department of Finance's three year strategy of cuts and more cuts. According to documents released to The Irish Times under the Act, the European Investment Bank president, Mr. Philippe Maystadt, warned the Minster for Finance, Deputy McCreevy, on July 2000 of the potential damage to the bank arising from the nomination of Hugh O'Flaherty. The Minister responded by rejecting the idea that the nomination procedures should be changed and called instead for a quick decision in favour of Mr. O'Flaherty's nomination. I remember the controversy well because I was canvassing the people of south Tipperary in a by-election at the time and their reaction to it and the frustration felt.

An Ceann Comhairle

we are moving away from the Freedom of Information (Amendment) Bill.

Mr. Hayes

I am merely illustrating the way people felt about the issue.

The Government believes it can save money and work by introducing this Bill but, undoubtedly, it will also save it a lot of flak. I appeal directly to the Minister and the Taoiseach to consider the cost of the Bill in terms of the loss of trust in this House and the Government, the loss of respect for politics, the cost in terms of informed analysis of decision making and the relevance of this House as a Chamber that actively engages with the people.

This Bill will not be of benefit to anybody. It will not benefit the electorate, who will be cast into darkness. It will not benefit the media. It will not benefit a councillor, Deputy or Senator, all of whom will be excluded. I urge this House to reject the Bill.

Ms Enright

I welcome the opportunity to voice my opposition to the Bill. It is restrictive and particularly cowardly legislation and it again highlights the hypocrisy of many of those on the benches opposite.

This Government appears to operate on the principle that it knows best, we do not know what is best for us and we should be grateful to the Government. The words "openness" and "transparency" appear somewhat glib now. People have tired of the phrases but that is because we still have to talk about openness and transparency, which have not been achieved in politics or society. The Freedom of Information Act, in its current construction prior to this Bill being brought forward, was the best possible vehicle to achieve openness and transparency.

Government and public bodies exist to serve the people and they are supposed to account to the people for the way they do that. People are entitled to know what is being done in their name and the reason for it. They are entitled to know not just the decisions but the deliberations behind such decisions, even the pros and cons, so that people can understand the reasons they were made. Any arguments to the contrary are arguments against democracy.

We are not trying to find out today the reason a Minister took a decision yesterday but about decisions taken five years ago. Deputy Kelleher need not worry about it being a day-to-day issue; it is an issue that will arise in five years. I do not see the danger behind that. There is adequate provision to safeguard against particularly sensitive information, such as issues surrounding Northern Ireland. We have heard a great deal from Ministers about their ability to take hard decisions. Now is the time for them to show us the deliberations behind the so-called hard decisions they are prepared to take.

The issue of collective Cabinet responsibility is being used to try to justify this decision. Speaking on the issue during the debate on the Labour Party's motion on 11 March, the Minister for Justice, Equality and Law Reform stated, "While one remains inside, one remains a team player and supports the majority view no matter how convinced one is that the view is not the view one would have preferred to have taken on the day." He then said that if one vigorously puts one's view and it gets into the public domain, it under mines the ethic of Government and fundamentally weakens the processes by which the Executive arm of the State is required to function. On that occasion the Minister, Deputy McDowell, was speaking about the Cabinet but such comments from a member of the Progressive Democrats are laughable.

On this issue a Progressive Democrats Member, Deputy Fiona O'Malley, strongly expressed views against the Bill. She left everyone in no doubt where she stood on the issue. That is what she thought she was doing but we will know where she stands on it at 3.30 p.m. Indeed, the leader of the Progressive Democrats, the Tánaiste, has hardly shown great example to her backbenchers on issues of loyalty and collective responsibility. Who can blame them for thinking sometimes that they are in Opposition with the example they are being shown? We had a perfect example of that last autumn on the issue of the reintroduction of third level fees. Speaking on radio in Cork pre-Nice and in the middle of the kite-flying exercise by the Minister for Education and Science, Deputy Noel Dempsey, the Tánaiste took a directly opposite view on third level views to that of her Cabinet colleague. Is that collective Cabinet responsibility?

Is it to be the case that the Government can tell us what it thinks at a particular time through the method of the media if it suits it and if it does not suit it, it is protected under this Bill as ministerial communication? The Minister of State, Deputy O'Dea, speaking on this issue not as a junior Minister in Government but in a personal capacity, wants to make the Bill more elegant in terms of the designation of Cabinet documents. I know what the word "elegant" means but I am not sure of its meaning in this context. People do not want an elegant Bill. They want a Bill that provides openness, honesty and transparency.

A particularly serious aspect of the Bill is the effect sections of the public fear it will have on them. Mr. Colm O'Gorman, the director of One in Four, clearly stated that the proposed restrictions would silence and suppress the voices of abuse victims. He said it was crucial for victims to uncover what might be the only supporting evidence about the abuse they suffered while in the care of State institutions. He went so far as to say that the restrictions on personal records, exempting all but records containing personal information, will place severe limits on the ability of abuse victims to complete the healing process.

How do the new restrictions proposed by the Government fit in with the Taoiseach's apology to these people in 1999? It makes a nonsense of that apology and it is something that he personally will have to address. These people have spent years overcoming secrecy, lies, ignorance and every other obstacle that could have been placed in their way. They had begun to believe and to hope that there may be a beginning to them getting to the truth and some form of redress for the horrific abuse they suffered. The vast majority of them will say that the truth is more important and that redress is a secondary issue. Mr. O'Gorman said that these files are so often the only evidence, the only validation that exists of such brutal and hidden crimes, yet the Government intends to close that door to them.

This issue raises yet another question, that is, individual Departments' attitude to the Freedom of Information Act as it currently exists. Last February, two different newspapers sought papers from the Department of Finance and the Department of Education and Science on the background to the compensation negotiations between the religious orders and the Government. Interestingly, the Department of Education and Science refused but the Department of Finance obliged. Surely both Departments, operating under the same Act and being asked the same question about the same issue, should have given the same answer. I do not understand the logic behind that and it is something that needs to be addressed.

The reason the Department of Finance was happy to oblige was because it wanted to display its Minister's stance on the issue. At one time the Minister took a hard-line stance and said that he believed the package offered was quite inadequate and effectively left the State to bear virtually the full cost of the redress scheme. Why can we not know the response of the Department of Education and Science to this issue? Why did the Minister for Finance change his attitude on the issue? We will not get the answers to those questions if this Bill is passed because it will be restricted for another ten years. That is one of the reasons I believe the Bill is being brought before the House.

If the Members opposite want to remove cynicism from politics, which has largely been contributed to by their own party, ably assisted by what I call the new eight-member wing of Fianna Fáil, because the Progressive Democrats is not an independent party in any shape or form, they should accept the proposal put forward by the Labour Party or Deputy Kenny's proposal to at least allow the new Information Commissioner, who I wish well in her job, time to examine the proposals and offer a view on them. If there is nothing to hide, there is no need for it. They are not being asked, as Deputy Kelleher thought, to stand up and account for their actions now but to account for them in five years' time. Why do they not have the courage of their convictions and let their opinions and the reasons behind them be known?

Mr. Ellis

We all have our own opinions on information and how it is used and abused on some occasions. With regard to the amendment of the Freedom of Information Act, if Government is to perform anywhere it needs confidentiality. That is the key word as far as this Bill is concerned. In many cases people have to take decisions at Government which they might prefer not to take but are forced into accepting Cabinet responsibility. When people talk about preventing access to information, they should remember that five years is a very short period for Cabinet confidentiality; it is only the lifetime of the last Dáil. Decisions were taken when I came into the Dáil 25 years ago that, in the interests of the public, should never see the light of day. Ten years is a reasonable period other countries stipulate 20 or 30 years. The British publish their records every 30 years and many of those who took decisions 30 years ago are still involved in politics. They should be confident that they can take tough decisions in the knowledge that they will not be exposed in the near future. Cabinet confidentiality is the hallmark of Government.

If every document in every Department was available under FOI we would all discover things we would prefer not to. There have also been abuses of the FOI, as the Minister outlined. One person submitted more than 100 requests to one organisation in a short period of time.

Freedom of information should operate differently, it should run to the person concerned. Anyone who makes a request for details anywhere in State records should have access to his or her entire file. In many cases a person who applies for a file from a Department will only see a sanitised version that does not show who took the decisions that affected his or her life and that is wrong. If an official makes an entry about an individual in a file, that person should have a right of access to that file. In the legal world documents must be provided if they are available, but under the Freedom of Information Act it is not necessary to provide access to the same extent.

There is a need for Cabinet confidentiality. Memos from one Minister to another will contain the views of the Department officials as well as of the Minister. To say the same reply should be received from two Departments on one item involving both is illogical because there will be differences of opinion. No two people will agree the same approach to any subject.

We need to ensure there is no time wasting because this has been a feature of some FOI requests that were totally off the wall. There are people who make requests of Members of the Oireachtas about information that is already in the public domain but they want a headline for a day or two. This is an attack on democracy because people could become disenchanted with the information that comes out under the Freedom of Information Act.

Freedom of information benefits journalists and politicians who could not get the information by other means and it is only fair that is the case. It is unfair, however, that personal information should be made available by means of a leak system where a vague request is submitted that leads to documents being released with names removed while those involved are readily identifiable. That is not in the best interests of freedom of information.

In previous debates on FOI, I have said that no matter what way we structure a Bill it will not be acceptable to everyone. Most citizens do not want their representations made public but if I make a representation the contents of a letter from a member of the public can find its way into the public domain. It is now unacceptable for a politician to make a case to a local authority about the granting of planning permission. That is now seen as a submission and there is a charge for it. In some cases people are unable to make their own case and need a politician to represent them before planning officials. People are afraid to put information beneficial to their cases on file because they do not want it made public. I made representations on a person's behalf and afterwards another member of the public asked me why I had done it. The confidentiality of that representation should not have been compromised by someone else reading the file. That is unacceptable and it damages the benefits that flow from freedom of information.

Everyone worries about the charges but they are not unacceptable. They cover only a fraction of the cost of a freedom of information request. The average FOI application costs in excess of €400 and there have been cases that have cost up to €20,000. I would understand if the information was of benefit to the individual concerned or in the public interest but in many cases it is of no benefit and is even damaging to some people.

The mandatory protection of Government records is vital. Government can only run on a confidential basis and if people can submit FOI requests on forthcoming decisions, it will prevent the democratic process from working and will not be in the interests of citizens or the State. Some might believe it in their own interests to do so, but that is a selfish, personal approach in many cases. Reference was made to communications between Ministers and I consider it imperative that they should remain confidential. In fact, matters are approaching a stage where Ministers and civil servants are almost afraid to put their recommendations on a file, in case it may be dragged out and used at a later stage. We must accept that concern as part of the existing problem. By protecting this aspect of democracy and Government, we are doing the country some service. It is equally necessary to protect reports of working committees and matters of that nature. I do not consider it right that everybody should be in a position to see the working papers of committees or working groups. However, once such work is completed and decisions are taken, it might be in the interest of the public, in some cases, to have the relevant working papers released that might show the reasons certain decisions were taken and certain positions adopted.

I referred earlier to the extension of the five year period to ten years in relation to Cabinet records. I reiterate my view that ten years may be too short. The provision for Secretaries General to determine whether a matter is pending or still in the consultative process is perfectly in order. Essentially, a Secretary General is a full time civil servant, with no axe to grind, who is in the best position to look at how the ordinary citizen is treated. The independence of such officials has been respected by Governments down through the years and, in the light of investigations from time to time, has been found to be beyond reproach by anybody. I have a slight worry that the provision might be used somewhat too often but I have confidence in Secretaries General of Departments, who will have that power.

The preparation of Government documents should remain confidential until after decisions are taken and people must accept that. One cannot have government by the media, irrespective of what parties are in power. Government cannot operate on a basis whereby every item of Government business is liable to be in the public domain prior to decisions being taken. I believe that view is widely shared, especially by politicians. Any party in Government would need the protection which is envisaged in the current Freedom of Information (Amendment) Bill. It is required for the protection of the workings of Government, which are not as simple as many might believe. Although Ministers may be of the opinion that there will still be too much access to Cabinet proceedings, this Bill probably finds a middle ground in terms of what should be done. In that respect, I believe it will facilitate the needs of most people, including Government, the public and the media. The process which has been followed, especially the work of the high level group established by the Government, has clearly come down in favour of a ten year rule. I believe that is beyond question at this stage. The process has demonstrated the Government's reasonable approach in the matter, in terms of protecting the interests of all concerned, including individuals and the State.

I referred earlier to the time limits on the release of records in other countries. In Canada, there is a blanket restriction for 20 years and in the UK it is 30 years for most Cabinet documents. The position in Sweden has been cited, where there are no Government memos but decisions are taken by Ministers on a basis which has already been predetermined in advance of meetings. To my mind, that is not a great way to do business. Documents relating to decisions should be presented to other Government Ministers. The collective responsibility of Government must be protected at all times.

The cost of applications under the legislation remains to be determined. A reasonable charge is necessary to prevent nuisance applications, but it should not become prohibitive. There may be certain categories who should be entitled to information of a personal nature free of charge, such as those on welfare benefits or people of very poor means. That should be considered and it would help to allay some concerns in relation to the cost aspect of applications.

A freedom of information Act which does not allow any person full access to every document on personal files relating to themselves needs further consideration. I am aware of cases in which people have suffered very severe financial damage as a result of decisions taken by individuals who were unable to find any fault with their applications but still found means and mechanisms to put them through torture with regard to certain entitlements from the State. All of us are aware of cases where people had to take the legal route. In that regard, the State is actually the main loser, in nine cases out of ten, as a result of matters going into the legal process when they should have been resolved otherwise. The State has not been a major winner when defending suits from the private sector.

I firmly believe that every document signed by a civil servant in relation to an individual should be available to that individual. That is not currently the situation it is somewhat selective. I know people who have sought files and have not been given full information, certain items being withheld with regard to personal decisions taken by individuals within Departments. We cannot stand over that practice and it may need further attention at a later stage. Any official who takes a decision which materially affects somebody's livelihood should be able to stand over that decision and verify it fully. From a personal intervention on behalf of a constituent, I am aware of a file being "sanitised" so that the full information required was not made available, thereby protecting an individual who had taken a decision for personal reasons, based on something which had happened two generations earlier, to destroy my constituent's livelihood. That should not be allowed to happen in future.

I support the Bill which I believe will do a great deal to make the process of government much more secure. However, I have a few reservations with regard to the treatment of some applications in the past and their possible future treatment.

Mr. English

I wish to share time with Deputy Neville.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. English

The Taoiseach said yesterday, in relation to this Bill, that we were wasting time. We have wasted a full week of the Dáil's business debating an amendment Bill which should not even be here. The health crisis is getting worse and insurance costs are spiralling, and we have spent a week on a Bill which should not even be here. It is an insult to the House and is adding to how irrelevant we are getting.

It took many years for the Act to get here in the first place. It was a good day for the country when, in 1997, the Government seemed to embrace the information age and our right to it. Everyone, apart from those who were lazy and had something to hide, welcomed the legislation which people all over the western world looked at in envy. It was then, and still remains, a beacon of modern and open government – not for long.

For the first time, the people of this country had the right to information held on them by State agencies on a personal or professional basis. It informed us how local or central government made decisions. It went a bit of the way to remove the air of secrecy that went hand in hand with all State institutions. Let us never forget that secrecy is the enemy of trust.

The fact that the Act was so long in coming was amazing, considering our history – the hundreds of years of repression and secrecy that went with British rule. It was, and still is, pure arrogance to think that the 1997 Freedom of Information Act, which was introduced as a result of people power by the mothers and fathers, the grandmothers and grandfathers of our present electorate, could be replaced by a Bill which allows the present Government to carry on its business behind closed doors. It is as if we, the people, were some sort of nuisance, a bunch of mushrooms that needed to be kept in the dark and fed a load of manure.

This coalition Government has lost the plot to even consider tampering with this Act, which is a basic human right that was hard fought for. The sheer arrogance of this Government, which, by amending this Act, will take away the right to information of the electorate, is beyond belief. It is as clear as day that it is catering for its own selfish needs, the need to bury evidence to safe itself embarrassment and uproar from the citizens of this country who would, once and for all, uncover the evidence that proves this coalition Government is incompetent and irresponsible.

Does the Minister expect us to believe that this Government will work better as a result of this Bill? I know I am young, but I stopped believing in fairytales a long time ago. There have been too many years of smokey back rooms where brown envelopes bought information. I am worried that this Government could bring us back to those bad old days, which brought us to where we are today, with tribunal after tribunal, inquiry after inquiry. While it is great to see so much information coming from these inquiries, the fact is that if the 1997 Act had been in place since the foundation of the State, we would not have needed all those costly tribunals in the first place or needed to be here taking up more Dáil time.

Of what is the Government afraid? What skeletons has it put in its cupboards? People on the streets are asking if it is buying time to extend our prison capacity before this information is let into the public domain. If it has nothing to hide, what is this about? No wonder they feel it is to keep people out of prison.

Freedom of information is a basic right. It is as much a right as the air we breathe. The 1997 Act is our Act, the people's Act, and should be part of the Constitution, just to stop any Government from tampering with it. Natural justice and democracy are what we are talking about the right we all have to know how we are governed and how our money is spent.

The coalition's track record in Government and its mismanagement of the Celtic tiger has left the country wondering what devious information it is hiding and how far it will go to hide it. If it cannot carry on the business of Government or if it is not happy to do it with the Act in its present state, then it has no right to be in Government. Of what is it afraid? What has it to hide? I would relish the opportunity to continue, but I want to give way to my colleague.

Mr. Neville

I welcome the opportunity to speak on the Bill. My speaking expresses, in particular, the arrogance of the Government in not allowing us to debate this Bill properly. I am getting two minutes, having prepared and studied the Bill over the past two and a half hours. I studied it carefully and read all the debates, and I am now getting two minutes. There are colleagues behind me, in my party and in other parties, who will not even get the opportunity of debating the Bill. Often we are criticised for not participating in debate, but when we offer to do so and want to do so on an issue of great public concern, we are shut off.

The Bill, not to mention the guillotine used twice in the Seanad and again today, reveals the Government's arrogance, as does the fact that there was no consultation about this Bill with the Information Commissioner. We heard the row that took place around that with the Minister for Justice, Equality and Law Reform.

There was no consultation with the National Union of Journalists which has a particular interest in this area. The Government of consultation did not consult the journalists in an issue of vital importance to them. It did not consult with the politicians, who supported this five years ago, and did not consult with the public. There was no consultation whatsoever.

The Government is ignoring the call by the Joint Committee on Finance and the Public Service for more time and significant amendments. Surely a committee of both Houses, which had a strong view and requested more time and significant amendments, should be listened to? It is not being listened to.

I see you have given me the nod to conclude, a Cheann Comhairle. The treatment of the Information Commissioner is a disgrace. The denial of the right of Members of the Oireachtas to put views on the record of the Dáil on this issue is a disgrace. I am forced by the Minister and the Government to finish before putting all my views on the record.

Minister for Finance (Mr. McCreevy)

I thank Deputies for their contributions to the debate on the Freedom of Information (Amendment) Bill 2003. I welcome the opportunity afforded by the debate on this Bill to set the record straight about the Government's position on freedom of information.

Despite the dramatic pronouncements of some Deputies, the Government's position is quite reasonable and quite straightforward. This is not a draconian rolling back of the Freedom of Information Act 1997. Rather, it is a sensible and balanced package of measures being brought forward on the basis of five years of experience of operating the Act.

Its core objective is to strike the correct balance between openness, transparency and accountability in Government, on the one hand, and the effective functioning of the Government process on the other hand. This derives from the core premise of the Bill which is the principle that it is in the public interest that the institution of Cabinet works well and effectively.

As I stated in my opening remarks, the FOI Act has had a major positive impact on delivering better government in Ireland. It has improved the quality of public debate and has opened up access by the public to information held about them. It has also played an important part in public service reform in Ireland and has helped to inculcate a more open attitude across the public service to the release of information which previously would not have been readily available.

I assure the House that there is no question of moving away from what has been achieved since the introduction of the Freedom of Information Act 1997. This is not the purpose of the legislation we have presented to the Oireachtas. The Government's Bill is a carefully balanced package of proposals which preserve the basic objective of freedom of information, while ensuring that Government can continue to conduct its business in an effective manner in accordance with the public interest.

Mr. English

And hide the past five years.

Mr. McCreevy

The need to provide protection for Government records was recognised in framing the 1997 Act and such protection is a general feature of FOI regimes internationally, where limits of between ten and 30 years apply. The question of the appropriate period of protection was considered by the high level group which concluded that, "As experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short." In increasing the period of protection for Government records to ten years, the Government's Bill is ensuring that the Cabinet system of collective responsibility can function effectively without being undermined by premature disclosure of sensitive information.

With ten years, Ireland will still have an FOI regime which is liberal by international standards. The objective of the provisions dealing with interministerial communications on matters relating to Government business and working groups operating in direct support of Government is the same to ensure that the Government process is protected where matters are delegated for resolution between Ministers or for more detailed consideration by working groups of officials.

I turn now to some of the issues raised by Deputies during the course of this debate. Many Deputies raised the question of access to personal information. As I have explained in both this House and the Seanad, following a High Court case in relation to this issue there is a considerable lack of clarity and consistency.

Mr. Stagg

A Cheann Comhairle, 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,

Mr. McCreevy

The Government's sole intention in bringing forward this measure is to achieve greater clarity and to bring consistency to the issue. Arising from the outcome of the High Court judgment, decision makers are frequently confronted with a difficult and confusing situation that needs to be resolved. Having explained both in this House and in the Seanad the reason behind the change, I want to reassure Deputies that there is no change in the definition of personal information in the Act and there is no intention to restrict the individual's right to access to personal information. If, however, Deputies have any suggestions which would have the effect of achieving the required clarity and consistency in this area, I would welcome them on Committee Stage.

In his contribution to the debate, Deputy Richard Bruton asked whether it is the case that there is to be no right of appeal over the question of policing collective responsibility. I would like to point out to the Deputy and to the House that all the provisions contained in section 12 of this Bill aimed at protecting the workings of Government are subject to independent oversight by the Information Commissioner. Deputy Boyle stated that the Bill before the House did not contain any provisions that improved rights of access for individuals. This is simply not the case. The Bill improves access rights in the following areas: by allowing a right of appeal to the Supreme Court—

Mr. Boyle

Will the Minister pay for that?

Mr. McCreevy

—by providing the Information Commissioner with discretion to accept late applications for review from individuals; and by introducing via an amendment, as indicated, the right of the parents of a minor or a disabled person to have personal information amended where the information is incorrect, incomplete or misleading and the right to information about reasons for decisions affecting their child.

Deputy Kenny and others expressed concerns about the provision for certification of the deliberative process. The question of whether a deliberative process has ended or not can be difficult. The Government has decided that more certainty is needed in this area so that records relating to ongoing deliberations of Depart ments are not released into the public domain prematurely in such a way as to undermine the process of government. Under the provisions of the Bill, the Secretary General of a Department will decide whether a deliberative process is still in progress. Where he or she decides that the deliberative process is still ongoing, the Secretary General will issue a certificate and the relevant records will not be released. At the end of the deliberative process, the Secretary General will revoke the certificate and the records will be released. This provision applies only to Government Departments, which comprise only 15 public bodies out of a total of 370 covered by the FOI Act.

Mr. Boyle

That is not true.

Mr. McCreevy

In issuing certificates, Secretaries General will need to be fully satisfied that a deliberative process is clearly ongoing. Secretaries General are responsible people in charge of complex organisations and we can rely on them to discharge this function responsibly.

I do not accept the point made by Deputy McManus that the certification process by a Secretary General of a Department will undermine the powers of the Minister. The Public Service Management Act 1997 gave significant new powers to a Secretary General, which would previously have been those of the Minister. This is an extension of that principle. The framework for modern government recognises that Secretaries General have a distinctive role in their own right. One could argue that this may give rise to clashes between a Minister and a Secretary General; however, the same could be said of the Public Service Management Act.

Deputy Howlin seemed to imply that the Government would not be extending FOI to areas already covered. As I said in my opening speech to the Seanad, the Government has made significant extensions to the remit of the original Act, firstly by extending it to local authorities and health boards, then to voluntary hospitals and subsequently to numerous other State agencies, bodies and institutions, including those in the enterprise, broadcasting and third level education sectors. By extending FOI throughout the public service, this Government has ensured that it has become a permanent and valuable feature of public administration in this country. The Government has committed itself to a continuing programme of extensions, with the aim that by the end of 2005 all bodies, organisations and groups appropriate for inclusion will be covered.

Deputies Crowe, Cuffe and McManus criticised the introduction of up-front fees. I have already set out the Government's position on this in some detail. FOI does not come free: the average cost of processing an FOI request in my Department is of the order of €425. It is only right that there should be some recognition of this cost and I remind the Deputies that the up-front fee will not apply to personal information. As I have already indicated, the fee will be modest, and I am prepared to consider providing for a reduced level of fee in cases of hardship.

A number of Deputies raised concerns about the protection of records of working groups supporting the Government. This measure provides for exemption of records of a committee of officials set up specifically to assist deliberations on matters before the Cabinet where the committee is mandated to report directly to the Cabinet. In order to ensure that such protection is only afforded to records which genuinely fall within the categorisations mentioned, the Bill provides that the Secretary General to the Government must certify that the committee concerned meets the relevant requirements. This is a reasonable and prudent measure aimed at ensuring that reports of such committees provide the Government with comprehensive advice, expressed in totally frank and candid terms, on the complexities of the issues under consideration.

Mr. Neville

The Minister is not answering the questions.

Mr. McCreevy

A number of Deputies have also raised the issue of protection for briefing papers for parliamentary questions. Ministers have direct accountability to the Oireachtas and its various committees. In order to be briefed fully before appearing in either House, Ministers require the full range of views and opinions from officials and advisers on the various complex issues involved, expressed in a totally candid and frank manner. It is clearly not in the public interest for Ministers to be in receipt of anything less than frank advice. The same argument applies in the case of briefing material for parliamentary questions. Accordingly, the Act provides for a prudent protection for such records.

Contrary to what has been suggested in this House, it is an undeniable fact that the measures in the Bill do not radically alter the purpose or intent of the original legislation. Certain provisions relating to very specific and sensitive areas of Government activity are being reformed to protect and improve the process of government and a number of other technical amendments are being made. There is no other agenda. The Act retains its primary purpose of enabling members of the public to access information to the greatest extent possible, consistent with the public interest and the right to privacy. In conducting reviews, the Information Commissioner will continue to be legally bound to treat a refusal of a request for information as unjustified. I look forward to further debate on Committee Stage.

Question put: "That the words proposed to be deleted stand part of the main Question."

The Dáil divided by electronic means.

Mr. Stagg

To demonstrate the opposition of the Labour Party to this measure, I demand a vote under Standing Order 69.

An Ceann Comhairle

In accordance with the Standing Order, as Deputy Stagg is a teller and has demanded a division, the division will take place through the lobby.

Question again put.

Tá

Ahern, Michael.Ahern, Noel.Andrews, Barry.Ardagh, Seán.Blaney, Niall.Brady, Johnny.Brady, Martin.Browne, John.Callanan, Joe.Callely, Ivor.Carey, Pat.Carty, John.Cassidy, Donie.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cregan, John.Cullen, Martin.Curran, John.Davern, Noel.de Valera, Síle.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Fahey, Frank.Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Glennon, Jim.Grealish, Noel.Hanafin, Mary.Harney, Mary.Haughey, Seán.Hoctor, Máire.Jacob, Joe.Keaveney, Cecilia.

Kelleher, Billy.Kelly, Peter.Killeen, Tony.Kirk, Seamus.Kitt, Tom.Lenihan, Conor.McCreevy, Charlie.McEllistrim, Thomas.McGuinness, John.Martin, Micheál.Moloney, John.Moynihan, Donal.Moynihan, Michael.Mulcahy, Michael.Nolan, M. J.Ó Cuív, Éamon.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Donovan, Denis.O'Flynn, Noel.O'Keeffe, Batt.O'Keeffe, Ned.O'Malley, Fiona.Power, Peter.Roche, Dick.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Walsh, Joe.Wilkinson, Ollie.Woods, Michael.Wright, G. V.

Níl

Boyle, Dan.Breen, James.Broughan, Thomas P.Bruton, Richard.Burton, Joan.Connaughton, Paul.Costello, Joe.Coveney, Simon.Crowe, Seán.Cuffe, Ciarán.Deasy, John.Deenihan, Jimmy.Durkan, Bernard J.English, Damien.Enright, Olwyn.Gilmore, Eamon.Gogarty, Paul.Gregory, Tony.Harkin, Marian.Hayes, Tom.Healy, Seamus.Higgins, Joe.Higgins, Michael D.Howlin, Brendan.Kehoe, Paul.Lynch, Kathleen.McCormack, Padraic.

McGinley, Dinny.McGrath, Finian.McGrath, Paul.McManus, Liz.Mitchell, Olivia.Morgan, Arthur.Naughten, Denis.Neville, Dan.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus.O'Dowd, Fergus.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Perry, John.Quinn, Ruairi.Ring, Michael.Ryan, Eamon.Ryan, Seán.Sargent, Trevor.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Upton, Mary.Wall, Jack.

Tellers: Tá, Deputies Hanafin and Kelleher; Níl, Deputies Durkan and Stagg.

Question declared carried.

Dáil Éireann debate - Thursday, 27 Mar 2003