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Dáil Éireann debate -
Wednesday, 15 Sep 2021

Vol. 1011 No. 1

Freedom of Information: Motion [Private Members]

I move:

That Dáil Éireann:

recognises the importance of a well-functioning Freedom of Information (FOI) regime in establishing trust and transparency in public life;

notes, with concern:

— the recent admissions that the Tánaiste and the Minister for Foreign Affairs have both deleted relevant material from their mobile phones; and

— that public confidence in political life has been eroded and will continue to be eroded without action; and

calls on the Government to:

— establish robust procedures in each Department to ensure that Ministers are no longer destroying records that should be maintained by the Department;

— ensure that all Ministers are aware of their responsibilities under FOI legislation, all relevant documents and materials are retained as required and all FOI requests are appropriately dealt with, and all relevant material is provided when requested;

— enhance the powers of the Information Commissioner’s Office to allow the Commissioner to refer complaints under FOI legislation to the Standards in Public Office Commission for investigation, where it is believed that a public body, Minister or relevant person has intentionally or recklessly failed to fulfil their obligations under FOI legislation;

— ensure that all public bodies, including those established under Companies Acts, are immediately brought under the remit of FOI legislation upon establishment;

— commit to an annual review of all bodies to which FOI legislation applies, including any bodies to which a partial exclusion applies and whether this is consistent with the Act’s principles of oversight, transparency and accountability; and

— bring pension payments related to former Taoisigh, Ministers, Presidents and Office holders under the remit of the FOI legislation.

Beidh mé ag roinnt mo chuid ama le mo chomhghleacaithe, na Teachtaí Doherty, Ó Broin, Munster agus, sílim, Cronin.

If the events of tonight have taught us anything, it is that we clearly need to restore public confidence in political life and that we need robust procedures to ensure public accountability and absolute transparency. The debate we had earlier is a perfect example as to why we need to enhance our freedom of information, FOI, regime. The reality is that in this State for most of its history there have been very significant concerns as to transparency and access to records and data. Some would tell us this was all in the past and ancient history, so to speak.

Let me remind those people that this time last year the Government was attempting to lock away for 30 years records involved in the mother and baby homes scandal. It seems ancient history continues to manifest itself in contemporary policy, and that is precisely why the enactment of the Freedom of Information Act in 1997 was such an important moment and was, indeed, a watershed one. It was one of the first big steps in transparency to give our citizens three new legal rights. These were, first, the right to consult official records, excluding those relating to internal security and foreign relations; second, the right to update and correct personal information that was inaccurate; and third, the right to be given reasons public decisions are made when they affect the person in question.

Freedom of information has been essential for journalists, political researchers, concerned citizens, NGOs, historians and victims of State abuse. It has been a means to get access to information on politicians’ expenses and to gain access to reports on scandals in our nursing homes, hospitals and industrial schools. It has played very significant roles in sagas that have been detrimental to this State.

Many transparency campaigners and journalists have been saying for a very long time that they have very significant concerns as to the ability of the FOI Act at this time. John Devitt from Transparency Ireland said it played an essential role in underpinning our faith in public affairs but that it has been deliberately diluted in recent years. That is its importance here in that it has an essential role in underpinning our faith in public affairs.

This time last year I began researching the problems that currently exist in our FOI regime because not only were we hearing it from the transparency campaigners and journalists but so many other people were coming to me on this issue. It was because of those concerns that I conducted a survey with those who often and regularly use the freedom of information mechanism. The results were absolutely damning. Any of us who has tried to use the freedom of information regime can very much relate to what these results say.

What we saw was that almost 80% felt that the regime was performing poorly or very poorly and 86% said it had seriously declined in recent years. I raised this with the Minister repeatedly but his response in June was that the regime was "robust and functioning well" - famous last words because the events of Zapponegate, or whatever you want to call it, soon overtook matters and have raised serious concerns about adherence to FOI and the importance attached to the FOI regime within the Government.

Those events really show the attitude towards the FOI regime and the fact that it needs to be strengthened. We know that deleting official correspondence is a clear offence under the Act, but this seems to be disregarded again. Public bodies were claiming that correspondence did not exist only to show later that it did. This is nothing new, however. Anyone who has been using FOI can tell you that this happens regularly. We know from Right to Know that Ken Foxe has said we have public bodies failing to meet their obligations time and time again, and it is the same organisations year after year. They seek time extensions for routine requests, do not bother answering requests, refuse access to everything and fail to find records that are later shown to have existed. Some of this may be cultural or educational, and some are resource-based and cannot be tackled through legislation, but many of the current weaknesses of our FOI regime can be tackled through legislation: the lack of accountability for those who fail to fulfil their obligations under the Act; the failure to bring new public bodies immediately within the scope of the Act; the failure to extend the remit of the Act more fully to certain public bodies that are only partially covered; and the refusal to grant information on the pensions of retired Taoisigh, Tánaistí agus Airí, which once was available.

The Act has, in addition, a lot of shortcomings. For this reason my colleague, Deputy Clarke, and I felt that urgent action was needed. That is why we drafted our forthcoming FOI (amendment) Bill, much of which is included in tonight's motion. To be clear, this is not something we have conjured up in the past few days; it is something we have been working on consistently over the past year. We need urgent action. I have seen the amendment the Government has proposed. We do not need more reviews and delays. What we need is action. I hope this second legislative attempt by me to increase transparency and accountability will not be pushed down the road like the Regulation of Lobbying Act, which we also need to see implemented. We were told the Government would create its own Bill in the intervening period but, thankfully, now we can deal with this Bill and it can move to Committee Stage.

I often hear and heard again tonight - and it does my head in, for want of a better term - Government party spokespeople say the Opposition should offer solutions. Well, here I am. Here we are. We are offering solutions and I have been here before offering solutions. We are seeing delay after delay by the Government. It wants us to offer solutions. We are doing so. This motion would deal with some of the very real issues we need sorted. First, with the admission by a Government Minister in recent weeks that he deleted text messages, we very clearly need to establish procedures in order that each Department ensures that Ministers no longer destroy records that should be maintained by the Department. Second, either FOI does not seem to be taken seriously by the Government or it is not aware of its duties. The Government must therefore ensure that all Ministers are aware of their responsibilities under FOI and that all documents are made available. Crucially, we need to enhance the powers of the Information Commissioner to allow the commissioner to refer complaints under FOI legislation to SIPO for investigation. If there is a concern that a public body or a Minister or relevant person has intentionally or recklessly failed to fulfil their obligations, there needs to be consequences.

It has been said that democracy dies in darkness. An FOI request is a way to shine the light into the darkest corners of our political systems. It is time to recharge the batteries of FOI. I implore the Minister to support the motion.

I welcome this motion. I commend Deputy Mairéad Farrell on the work she has done on this issue and also on the lobbying Bill. Stalling that Bill for nine months was ridiculous. What was the purpose of it? SIPO has been looking for those powers for years. The Government has not delivered. Its predecessors in government have not delivered. Deputy Mairéad Farrell and I have drafted the legislation and it is there. Let us work on it and deal with this issue. Maybe some of the stuff that has come to haunt the Minister's term in government which we have just dealt with and other issues would not have happened if we had that type of robust lobbying Bill in place. The Government should stop the delaying tactics and let us move on now that that is going before a committee.

Freedom of information is based on the premise that the public have the right to know, including the right to know how government arrives at decisions and who is influencing government decisions. The question for us in the Dáil is whether we really believe in that right to know. That right has been undermined continually over recent years and it has got to a point where freedom of information legislation and the whole process is under severe pressure. It is possible that in some cases it does not work any more. I will give the Minister just a couple of examples that lead on from the conversation and the debate we had earlier. We have a Government Minister who still has not apologised for deleting Government records and has not said he will stop doing it. He destroyed departmental records that there is a legal obligation to hold on record. He can do whatever he wants with his phone and delete messages and direct messages and so on, but only after he has made copies of them and placed them with the Department because the public have a right to know.

He is not alone, however. The Tánaiste, Deputy Varadkar, deleted messages. We would never have known about the #LeoLeaks controversy that has led to the criminal investigation if we had relied on freedom of information. Why? Because the selected messages from Maitiú Ó Tuathail to Deputy Varadkar - not all of them, since earlier messages are still there and were subject to freedom of information, but the ones seeking that confidential document and the ones arranging for it to be delivered - were deleted from Deputy Varadkar's phone. Therefore, when we put in a freedom of information request, we were told that no record existed. Let us look at that controversy further. The Minister, Deputy Harris, was contacted by Maitiú Ó Tuathail on his phone. We know this because the messages are in the public domain and a private citizen took screenshots of them, but when I put in a freedom of information request to the Minister, Deputy Harris, who was on the record last week on RTÉ radio saying he does not delete his messages, for those messages and any other messages from Maitiú Ó Tuathail, the answer came back that the records did not exist.

Then we had the Coveney affair, or Zapponegate, involving a freedom of information request that I and many journalists put in looking for the records relating to that issue involving the Tánaiste, Deputy Varadkar, and the response came back that the records did not exist. What is the excuse Deputy Varadkar peddled out? "I was on holiday." That is not a relevant excuse and does not offer any protection under the freedom of information legislation. He has a responsibility to provide the information.

The problem here is that this is not just about the Zappone affair or the #LeoLeaks affair; it is that Government Ministers are using backchannels. The question is how deep this goes. Many Government Ministers have used private emails in the past. We had Deputy Coveney telling an Oireachtas committee he does not use private emails but the record shows that he did in the past. He has said he used private emails for Government business to arrange various events and so on that would be and should be subject to freedom of information. Are backchannels now being used by Government Ministers that allow for a whole different road for lobbyists, developers and speculators to have access to the corridors of power, knowing they are outside of the reach of freedom of information and knowing they will never come into the public domain?

The public have the right to know. My colleague, Deputy Mairéad Farrell, has drafted legislation to reinforce that right to know. There are many activists who have a lot of good ideas. Let us get this right, bring transparency to the heart of government and close down the backchannels that have been left open by the Government for far too long for those on the inside.

I commend my colleague, Deputy Mairéad Farrell, on both bringing forward the motion and her work with Deputy Clarke on the related legislation. I want to broaden out the debate a little to some direct experiences I have had with FOI that really show why the public and very specific groups of people absolutely have the right to know. These are reflections on my experience struggling to get responses to FOI requests, some of which I am still battling several years on.

As Members of the House will know, in Millford Manor, Newbridge, County Kildare, there was a very serious fire a number of years ago due to very shoddy Celtic tiger-era construction work. An entire block of terraced homes burnt down in 60 minutes when there should have been a 60-minute fire break between each home. Deputy Kelly was the then Minister with responsibility for housing. He commissioned an urgent study. That study was completed. However, it took us two years to get that report published. Residents living in the surrounding houses who were living in homes built by the very same developer, potentially with the same defects, were denied access to that report for two years. What better case for the right of the public to know than not knowing whether the home in which you are living is unsafe?

I can see no reason many of us were denied access to that report despite repeated FOI requests. The usual excuse is deliberation. While that is acceptable for a short period, it was not for the full duration.

More controversially, as Deputy Doherty will know well, it has been almost five years since the Mulcahy report, commissioned into allegations of planning corruption in Donegal, was completed following the request of the then Minister for the Environment, Heritage and Local Government. We have been submitting FOI requests in respect of that report every six months since 2017 or 2018. Not only has the most recent request been refused but we have been told the Department has no timeline. That may have been acceptable when these matters were matters within the Department but they are now matters for the Planning Regulator, and I can see no reason that report, which again relates directly to individuals who had to fight in the courts to clear their names and good standing, cannot be released. Therefore, the Department and the current Minister seem to be following the approach of his predecessor in using various ruses to prevent access to that really important report, which may reveal significant issues relating to the ongoing controversy in regard to defective block and mica affecting thousands of families in Donegal.

I am also fighting battles to get records of correspondence between Dublin City Council, Dublin Fire Brigade and Stanley Holdings in respect of two fire safety inspections in 2011 and 2012 at a housing estate in Belmayne, north County Dublin, again in regard to an issue of defects and whether systems failed between the council and the fire brigade, and in regard to what interactions they had with the developers between a fire safety inspection 2011 that found no defects and one in 2012 that did.

I have other disputes in respect of the Land Development Agency and the shared equity loan scheme. I have experience of submitting identical FOI requests to three State agencies and getting different responses from each of them. While I appreciate there are rules and the FOI officers do a very good job, I am convinced that at a political level decisions are being made and excuses are being found in the legislation to deny the public access to this documentation unacceptably.

For those reasons, I urge the Government not only to support the motion but also to listen to the concerns of the Opposition to ensure these other issues will be dealt with into the future.

Most of us know there are serious issues with freedom of information procedures in this State. I have had difficulties accessing information and have been denied access to information that ought to be obtainable under FOI, as has been the case for many Deputies, journalists and members of the public. Nevertheless, the events surrounding the recent Katherine Zappone appointment controversy have shone a light on these issues and the need for clear legislative reform. A proper, functioning freedom of information regime is essential in any democratic state and we do not currently have one, leaving us with a lack of transparency and accountability across government and public bodies.

So bad is it that the Minister, Deputy Coveney, deleted official correspondence, in violation of the Freedom of Information Act, and he has yet to acknowledge that fact. Moreover, a freedom of information request made by Sinn Féin to the Department of the Taoiseach was denied, with the Department stating that the records did not exist. Subsequently, however, they were provided by the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media. Those records related, as we all know, to the legality of the Merrion Hotel event. It is absolutely shocking. It is not sloppy or careless but an abuse of ministerial office and the Taoiseach needs to take responsibility. We need a commitment from the Taoiseach that Ministers will fulfil their obligations under the Act, and we need urgent reform of the legislation.

Sinn Féin has proposed a Bill to do precisely that. No action has been taken by the Government thus far other than, apparently, a review of FOI mechanisms, which some Ministers were not even aware of. We know what the problems are. We need action, not wishy-washy excuses. Some of the changes we are proposing include ensuring that SIPO will be given the power to investigate FOI failures. We need to broaden the remit of the Act to ensure that bodies such as RTÉ are fully covered under it and we need to ensure there is consistency across Departments and public bodies. It is clear the Government is not willing to deal with this issue. It is happy enough with the existing dysfunctional regime because it can be abused and it can hide behind it. Sinn Féin will not stand by that and allow this to go on. We want urgent reform and we need to reform how the parties in government do business. This arrogant approach, this cronyism, just has to stop.

The Taoiseach is the leader of the Government and it is his responsibility to ensure Ministers adhere to the law of the land. We need leadership, but where is it? What is the Taoiseach afraid of? Is he afraid there is more to this, that more Ministers or Departments will be found out and that he will eventually have to accept this is an endemic problem throughout the State? Is he afraid that if he pushes this too far, Fine Gael will pull the plug and that will bring an end to his reign as Taoiseach? Either way, he needs to snap out of it and sort this out. He needs to lead from the front, as does the Minister, unless he is happy to turn a blind eye to all of this. If he is happy to do so, it means he does not have a problem with this sort of murky politics, which totally lacks transparency and accountability. The proof will be in the pudding if the Minister does not support the motion.

I move amendment No. 1:

To delete all words after “Dáil Éireann” and substitute the following:

“recognises the importance of a well-functioning Freedom of Information (FOI) regime in establishing trust and transparency in public life; and

notes that:

— the objective of Freedom of Information legislation is to ensure openness and transparency around the conduct of the business of public bodies and to enable members of the public to obtain access to their personal information;

— in broad terms, indications are that Ireland’s FOI system is functioning well;

— the number of FOI requests dealt with by relevant bodies increased from approximately 15,000 in 2010 to over 41,000 in 2019;

— the FOI regime covers a wide range of sectors, including Government Departments, State bodies, the Health Service Executive, voluntary hospitals, mental health services, third level institutions and local authorities;

— the Freedom of Information Act 2014 provides that FOI applies to an entity by default where it meets certain criteria;

— in 2020, even as every individual and organisation in the country was significantly impacted by the Covid-19 pandemic, 32,652 FOI requests were processed by public bodies;

— approximately four out of every five FOI requests were granted in full or in part, which is broadly in line with previous years and over half of the requests processed are for individuals’ personal information;

— review mechanisms are available for those who are not satisfied with the FOI decision received and internal reviews - those conducted at a more senior level on a particular request with the relevant public body - account for about three per cent of requests in most years and independent reviews by the Information Commissioner are sought in about one per cent of cases annually;

— there is scope to improve and strengthen the FOI regime;

— the Minister for Public Expenditure and Reform announced in June 2021 that his Department will undertake a comprehensive and careful review of the Freedom of Information Act 2014 that will:

— consider the experience of all stakeholders;

— take account of the transformation in the manner in which people seek, consume and interact with information since the Freedom of Information Act 2014 came into effect;

— review international good practice and developments; and

— consult with the Office of the Information Commissioner and other key stakeholders in the data/information space;

— a consultation on the scope of the review will take place later this year, with further consultations to be undertaken in 2022; and

— while it is intended that the scoping consultation will determine the key themes of the review, the interaction between the FOI legislation, data protection legislation and records management requirements will be considered as part of the review.”

I thank Deputy Mairéad Farrell and her colleagues for tabling the motion. I welcome the opportunity it affords to discuss Ireland's freedom of information system. I think all Deputies are in general agreement that the principles of openness, transparency and accountability should be at the core of Government and public administration, and I certainly believe that.

The FOI system is one key element of this broader movement. I am glad to have the opportunity this evening to reflect on the operation of the FOI system, as well as on the challenges we undoubtedly face in moving forward. In June of this year, well before the recent controversy, I announced that a thorough and comprehensive review of the FOI Act and related issues would be undertaken by my Department. The approach to the review is currently being finalised and I will bring a memorandum to Government with the details. I expect that we will shortly publish a roadmap setting out the process and the details of how anyone interested can get involved. I want to put on the record that, from my perspective, this review is not about narrowing or limiting the scope of FOI; it is about strengthening it, modernising it, and reforming it in a way that speaks to our priorities for openness and transparency.

It is now almost seven years since the 2014 Act was put into being. I want to acknowledge the architect of that legislation, former Minister, Deputy Brendan Howlin, for his great work in bringing forward what was genuinely reforming legislation, which has served us well. Indeed, it is now almost a quarter of a century since the FOI model first became firmly established as part of Irish public administration. When we think of the kinds of changes that have occurred in the intervening period, in how people seek out and interact with information, and the rise of the Internet and the information society, it is clear to me that a review at this point is timely and necessary. At the time that FOI was first introduced, it was fairly unusual for households to have a home computer or Internet access. Now, of course, the majority of us carry smartphones in our pockets giving us fingertip access to a world of information that could only have been dreamt of in 1997. Undoubtedly, these developments present challenges to the FOI model, which was devised to deal with an operating environment where record-keeping was generally paper-based and relatively discreet, rather than the proliferation of hundreds of thousands, if not millions, of electronic records generated on a daily basis across the civil and public service, scattered across various devices and servers. These issues go far broader than just the FOI access mechanism, taking in knowledge management and record management in a more general sense. Of course, every Department has its own records management policy, which reflects the legislation in place: the National Archives Act, the Data Protection Act and, indeed, the FOI Act.

Work has been ongoing in my Department, particularly in the Office of the Government Chief Information Officer, OGCIO, to support an approach to data and systems that is suitable and fit for purpose for the modern world. In addition, a record management plan for the public sector is being developed as part of the data strategy to provide a baseline for the constant improvement of the handling and use of information in the sector. Despite these challenges - and there are undoubted challenges, which I have readily acknowledged - in general terms, I believe that the overall system is operating well. My Department monitors the operation of the legislation on an ongoing basis and it is likely, of course, that this review will result in the need for legislation. I look forward to seeing the Deputy’s legislation. I have not yet seen it and I will engage with her on it in good faith.

I want to put on the record again some of the key figures. The Freedom of Information Act 2014 widened the scope of FOI to take in approximately 600 bodies. Between 2014 and 2019, the number of requests processed across the civil and public service roughly doubled to more than 41,000 requests in 2019. The 2014 Act removed the application fee for making an FOI request. In addition, no application or search or retrieval fees apply for requests or for reviews that involve requests for personal information. As such, no fee whatsoever applies at any stage to the approximately 60% of FOI requests in most given years that involve individuals seeking their personal information. Sometimes we forget that that is in many respects the use of the Act in its current form. In the majority of cases, people are looking for their own personal information. That, too, is important, as well as all of the other roles the Act plays. In 2020, clients of public sector bodies comprised by far the largest single group of requesters - when we say "clients", we mean people, individuals - at 50% of the overall total, while journalists comprised 23% of requesters. A range of supports are in place for the implementation of FOI across the civil and public service. My Department maintains a range of guidance, documents and manuals, while the Office of the Information Commissioner has also issued guidance on the correct interpretation of the legislation. In addition, my Department has put in place a standardised training framework that all bodies can draw on in meeting their FOI obligations. More than 7,000 public sector employees have received training under the framework from its introduction in 2015 to date. By and large, I believe they are doing a good job.

Independent review by the commissioner and his expert staff is the key oversight of FOI decision-making standards. In 70% of cases in which the commissioner issued a formal decision, the approach taken by the public body was affirmed as having correctly applied the legislation, which is an important point. I, therefore, believe that while there is scope for improvement and modernisation - which I absolutely accept and will implement - the overall FOI system has a lot of merit, providing a solid footing from which we can move forward. I acknowledge that while these statistics allow us to understand at a glance the basic outline of the system, standing alone they are not sufficient. Indeed, the figures themselves suggested issues that may require further examination, such as whether there is a case for refining the system in certain areas, such as the large number of requests for personal information from the health sector and bodies such as the Department of Social Protection. It is for these reasons, and others, that I have directed a comprehensive review to commence. The review process will allow an opportunity for stakeholders across the system, from public bodies and FOI officers, to journalists, academics, activists, as well as the public, and, of course, the Oireachtas, to have their say.

In conclusion, I want to ensure we have a system whereby we reduce the need for more and more FOI requests; that by default we publish more information; that we genuinely embrace openness and transparency; and that we reduce the dependence on the need to apply for freedom of information to access records that should be published in the normal course of events.

I note what the Minister has said with some interest. There are legitimate and genuine concerns surrounding the current freedom of information regime, which are shared by journalists, researchers, citizens and victims of institutional abuse. Yet, instead of building on the 1997 introduction of FOI and ensuring that there would be a complete and robust mechanism to access information, what we have now is a flawed system that feeds directly into a lack of transparency and accountability. It is crystal clear that urgent action is needed to address the shortcomings in FOI. That is why myself and my colleague, Deputy Mairéad Farrell, drafted the FOI (amendment) Bill. Those shortcomings are being exploited in a manner that is simply wrong. They are being exploited with a view to limiting public access to information. The belief is now that there is a culture of loophole-seeking in order to obstruct requests. The public has a right to know. Yet, when they utilise legislation, the wagons are effectively circled to ensure that little or no information is provided.

We have seen FOI eroded, almost under constant threat, and altered to protect political elites. Information relating to former taoisigh's pensions is no longer included in FOI. Yet, at the same time, the Government tried to lock away the records of the mother and baby homes scandal. The recent admissions by the Tánaiste and the Minister for Foreign Affairs that they have both deleted relevant material from their phones erode any level of public confidence in FOI. That erosion will continue without urgent action. It also begs the questions: "who else?" and “what else is being deleted?” Ministers are using disappearing messaging apps on their phones, or worse, having conversations with their Secretaries General, knowing full well that when there are no records, there is no accountability. We need robust procedures in every Department to ensure that Ministers can no longer destroy records that should be maintained. FOI requests, appropriately, should be dealt with and relevant material should be provided when requested.

The Minister quoted internal reviews in his contribution. Is he aware that there are public bodies that ignore FOI requests, even at internal review level, to the extent that that is then sent to the Office of the Information Commissioner?

I am sure the Minister will agree with annual reviews of all bodies to which FOI applies for consistency with principles, oversights, transparency and accountability. He has said that guidance documents are produced, manuals are produced and standardised training frameworks are in place. Would he not like to think they are being adhered to? Would he not like to have proof that they are being adhered to?

The powers of the Information Commissioner need to be enhanced because that body needs to be able to refer complaints under FOI to SIPO for investigation where a Minister or a relevant person has intentionally and recklessly failed in their obligations. I echo what Deputy Mairéad Farrell said earlier: democracy dies in darkness. The Minister, Deputy Michael McGrath, should not be the Minister who sees FOI die. That is not something he would want as a legacy. If he is genuinely serious about wanting to work with the Opposition to fix FOI, I would expect him to support our Bill when it comes forward. After all, our proposals are also contained in his statement.

Robust freedom of information legislation acknowledges power. That power does not belong to a Minister, a political party or the Government; it belongs to the people. I commend my comrade, Deputy Mairéad Farrell, on tabling this pertinent Private Members' motion. Fine Gael's proposed ham-fisted, naked crony appointment of an envoy to the UN saw a Minister delete information on Government business, removing it from scrutiny. According to the Taoiseach, he deleted it in good faith. However, on Government information, that is not the Taoiseach's assertion to make. The integrity of office is at issue here. The authority of the Office of Taoiseach is what is at issue, and not the personal authority of its current occupant who excoriated his own party colleagues while absolving Fine Gael.

Fine Gael's treatment of public information while in office has been arrogant and reckless. It has been too long in power and regards government as its political right. Familiarity has bred contempt in the very people in whose name it holds office and information. I believe that if my party had engaged in such political shenanigans, deleting texts on Government information and so on, the usual suspects would be outside doing a candlelit vigil or something, talking about democracy itself. When it is Fine Gael, we got a turned cheek from Fianna Fáil, a blind eye from the Green Party and a pass from their supporters. They claim there is nothing to see here except mountains out of molehills and ask us to move along.

In the interests of democracy, Sinn Féin has tabled this motion on freedom of information, its proper retention and release. We are constitutional enough to consider the holding of Government information not as a party right or as a political privilege, but as a public duty. Government work is serious work. It is not about slick videos or not-so-slick videos, jobs for the girls and boys, deletions, leaks or TikTok posts.

Our motion brings pensions to former Ministers, taoisigh, presidents and senior officeholders within the remit of FOI, something the public will value given the new report urging at least 40 years' work to claim the State pension. Crucially, it gives the Information Commissioner power to refer FOI complaints to SIPO for investigation where a public body, Minister or relevant person is believed to have failed intentionally or recklessly to fulfil their obligations under the legislation. Overall, it seeks to return public information to its rightful owner, not to a Minister, a political party or a government, but to the people themselves, whom we serve.

I welcomed some of the things the Minister said. Obviously, we will keenly watch his roadmap regarding the process of review. As some of my colleagues said earlier, we are beyond the need for a review to tighten up and address the weaknesses within FOI. I accept that the whole system should be constantly reviewed. We are in a changing world, particularly regarding technological advances. I also welcome the Minister's statement that he wants to see fewer FOI requests on the basis of greater openness and publication of Government material. We need to get to that point, but until we get there, we need to ensure we have empowered the FOI system to the degree that is necessary.

I was not quite sure where regular people might stand on the issue we debated earlier today because I accept that politicians sometimes operate within a political bubble. However, many people who interacted with me saw this as the continuation of cronyism and connectedness. They saw this as just more of the same and that nothing had really changed. Some of them were angered and some of them were absolutely case-hardened. A number of them stated to me that they had a feeling similar to the feeling we got on the doorsteps during the last general election campaign - that the only thing that will change this is a change of government.

The Minister now has an opportunity to deal with the specifics of FOI. We previously dealt with Deputy Mairéad Farrell's legislation on lobbying. Given the day that we have had here and given the last eight weeks we have had, we need movement on such legislation in order to stop that revolving door, and stop that connectedness or even the perception of it. It is vital that we do this as soon as possible. Many people have already said that we have issues with regular citizens, politicians and campaigning groups trying to seek the truth and trying to seek information from public bodies. We are aware that certain public bodies are not under the rules of FOI. We need to ensure all these gaps that exist are filled so that we can provide people with the light as opposed to the darkness where, as some of my colleagues have said, democracy goes to die. We need to ensure this does not happen.

What we are asking for is very simple. I welcome the Minister saying that he will critically engage with the legislation from Deputies Clarke and Mairéad Farrell. We need to make those moves so that we have absolute openness and transparency.

I plan to restrict my remarks to some constructive criticism of the current regime and some of the legislative lacunae that hamper the full operation of the freedom of information system. We have learned a considerable amount over the past 24 years since the first legislation was enacted by my colleagues in the Labour Party. The Labour Party is proud to be the party that created Ireland's freedom of information system. Of course, the initial legislation back in 1997 was subsequently amended, to put it diplomatically, by a Fianna Fáil-led Government, only for it to be, as the Minister has acknowledged, amended again to have that damage undone by one of the Minister's predecessors, Deputy Howlin. I acknowledge that the Minister has recognised Deputy Howlin's commitment to reform in this space, and some of the practical measures he undertook to widen the scope of our freedom of information legislation and, generally speaking, to make it better.

I also acknowledge the Minister's commitment to the notion that we should be reducing FOI requests based on the principle of open government. I hope that is not merely a slogan or a form of empty words trotted out. I take the Minister at his word and I look forward to engaging with the review when it is finally constituted.

The 2014 reforms are important in respect of the events that have fed into the tabling of tonight's motion. Those reforms updated and modernised our FOI laws. They widened the scope of the legislation where new provisions would apply to make electronic devices, relevant material held on phones and non-official email accounts holding relevant information amenable under the Act once the material concerned relates to functions of the office holder.

As the Minister who designed the amended legislation, Deputy Howlin, told The Irish Times recently, Ministers should be expected to embrace not just the letter of the law but the spirit too. The same article went on to state that the report was borne out by a 2015 memorandum from the Department of Public Expenditure and Reform's central policy unit. It states "regardless of the form in which they are held", they are subject to the Freedom of Information Act. All of that said, it would be wise to create more legislative clarity about what precisely constitutes a record under the FOI Act and the National Archives Act. The Minister referred to the National Archives Act in his initial contribution.

We need to provide clearer rules and guidance on the creation of records by relevant bodies and individuals, the retention of such records, and provide for a stronger regime in respect of deletion and security, and when an offence is committed in the event of deletion. In this regard, section 52 of the Act needs our attention. I recognise that the Minister has embarked on a review of the freedom of information system. I hope that section 52 and its provisions are focused on in the review of the operation of the Act.

The Department's code of practice on freedom of information was published in 2015 under section 48 of the Act. Page 21 acknowledges the challenges that public bodies have with record-keeping with the advent of new information technologies. It refers to a lack of clarity and knowledge deficits relating to the management of electronic records. There is a compelling need for more sound management of electronic records and better practices and systems, notwithstanding what the Minister said in his earlier contribution about recent improvements.

The Minister will be aware that the Act is not itself a records management Act. The 2015 code makes recommendations to public bodies about the drawing up of guidelines for their own record management procedures but it is devoid of detailed guidance or a framework around which to build such a system. Some bodies have introduced their own systems but there seems to be a lack of uniformity and clarity in that space. The National Archives Acts, 1986 and 2018, are also drafted with the natural assumption that public bodies will maintain records. The Act governs their mandatory transfer to public access but like the FOI Act, it does not amount to a records management Act either, since its fundamental purpose is to regulate the transfer of records retained by Departments rather than to regulate what records they should retain.

As the FOI code adverts to, power is given to the Minister under section 19(3) of the 1986 Act to make regulations "for the proper management and preservation of Departmental records in the custody or care of a Department of State". It is interesting to note that no such regulations on records management have been made under section 19 and the result is that as far as departmental records are concerned, including but not confined to electronic communications, official practices regarding record retention and storage still exist in a kind of legislative vacuum. We should all be concerned on that point.

We make all kinds of assumptions about what is available to us under the FOI Act and what should be retained and we think we know what constitutes a record or what does not, but it is something of a minefield and can be confusing for everyone. The FOI code displays a somewhat confused approach. On one hand, the code is addressed to other public bodies, which are statutorily obliged to have regard to its provisions. On the other hand, its provisions regarding records management are, in important respects, addressed to the Department of Public Expenditure and Reform itself, and the code calls for action to be taken under a second body of legislation, the National Archives Acts, to properly regulate records maintenance in Departments and bodies under the aegis of the Act.

Pending the making of regulations under the National Archives Acts, as recommended by the 2015 code from the FOI central policy unit in the Department, there is no precise legislative framework for the management and preservation of departmental records. This is a yawning deficit in the system and it was pointed out six years ago. Two Governments on, this significant matter of public policy relating to open government, good governance and transparency remains unaddressed. Notwithstanding the prominence given to the issue by the FOI central policy unit in 2015 when it inserted its call for action into the published code of practice, I have reviewed this, and the issue does not appear to feature in the incoming Ministers' briefs in either 2016 or 2020. This appears peculiar and suggests a certain resistance at senior level in public administration to tackle this head-on. It did not appear in the briefing material provided to the Minister last year but I hope that this gap will not deter him from acting to deal with this lacuna as he is empowered to do.

Will he commit to addressing what should be a fundamental pillar of any freedom of information regime, with a transparent, clear system for the creation, management and retention of records, underpinned by legislation and regulation, in his reform programme? This would be an important message for him to send about his commitment to real reform.

I commend Deputy Mairéad Farrell and Sinn Féin on bringing forward the motion, which is important. There is no doubt that the FOI legislation is in need of review. I welcome the Minister's statement and his commitment to ensuring that a review takes place. It is curious that we are talking about a review of freedom of information this week, given all that has happened in recent weeks with the Zappone debacle. An excuse put forward by several Ministers was that we needed to review freedom of information. That was put forward as some kind of explanation for why some of our Ministers did not comply with freedom of information. It would be a mistake to get into that kind of mindset, saying that we need a review and that the FOI legislation is problematic, which is why it was not handled properly. That is not the case and this should not be used in any way to distract from the mishandling of FOI requests by both the Minister, Deputy Coveney, and the Tánaiste.

I will talk about what is needed in the review but will first address what has happened in recent weeks regarding non-compliance with freedom of information. This started when questions were asked about how this famous envoy position came up, with the fact that there was no transparency. When the Minister, Deputy Coveney, was asked about that and for records of the communications that he had had with and about Katherine Zappone, he told us that he had deleted those text messages from his phone. The excuse that he gave the first time was that he needed to create storage space on his phone. The following day, he completely changed his story and said he did it for security reasons, because he had been hacked. He did not seem to realise that the FOI legislation applied to him as an officeholder. It is incredible that he did not seem to know that digital communications are covered by legislation on freedom of information. At what point did he delete those text messages? If he deleted them after FOI requests went to his Department, that is a serious offence.

We never really got satisfactory answers about that on either occasion when he came before the Joint Committee on Foreign Affairs and Defence. It was because his responses were so inadequate and untrue on the first occasion that he had to come back the second week to provide further explanations about what happened. That point has not been addressed adequately. If he did it after the request came into his Department, that is an offence. If he did it before the FOI request came into his Department, it is poor practice, at best. Ministers and office holders are required to ensure that any records, digital or otherwise, relating to Government business are retained.

If there was any reason for clearing his phone, and it is hard to imagine what reason there could be that would stand up, he was required to keep those texts to ensure a record of Government decisions or proposals was retained. He did not do that. His obligations are quite clear in that regard. What is extraordinary is the fact that he did not understand what his obligations under FOI were, despite being a Minister for ten years. If he did not understand those obligations, that is a serious matter. It indicates a certain attitude and approach to FOI that is not acceptable on the part of a Minister. We never got any proper explanation for that.

The other aspect of this recent saga is the attitude of the Tánaiste to FOI. Early on in this whole debacle, FOI requests were submitted. Jack Power from The Irish Times was one of the earliest people to submit a request to the Tánaiste's Department. After some time, he received a letter from the FOI officer in the Department of Enterprise, Trade and Employment. That letter, which Jack Power published, was very specific. It outlined in quite a bit of detail the lengths to which the officer had gone to respond to the request. He made it very clear that everything possible was done to try to identify whether records existed. He said that he carried out a comprehensive search within the Department. Not only did he do that, he also carried out interviews with a number of the Tánaiste's advisers who said there was nothing. Questions need to be asked about that. How was it that advisers to the Tánaiste gave replies? Surely, they would have checked with him. I accept he was on holidays but, nonetheless, an FOI request, especially in the circumstances in which those FOI requests were made, is a serious matter. Did the advisers check with the Tánaiste? Why was it so badly and inappropriately handled within the Tánaiste's Department? Again, we never got an explanation for that. Either the request was seriously mishandled and inaccurate responses were given or there is a similar lax and sloppy attitude to legal requirements on Ministers, and those advising them, in terms of compliance with FOI legislation.

Either way, these are serious developments in the two Departments. There are serious questions about the Minister, Deputy Coveney, and the Tánaiste in respect of their non-compliance. I would add it was curious that within a short space of time the FOI officer in the Department of Enterprise, Trade and Employment left his post. You just have to wonder about that. This whole matter just does not stack up and leads people to believe that this was, at best, a lax attitude to FOI and, at worst, a cover-up. We still do not know which it was. It is unacceptable behaviour either way on the part of senior Ministers, or any Minister for that matter. That, along with many other things, was the reason many Deputies could not possibly vote confidence in the Minister tonight. There has to be a mechanism for ensuring there is close compliance with FOI requirements by all office holders. Steps have to be taken to ensure that that is the case. Is there adequate training for staff, Ministers and advisers? Can a system be put in place to ensure they are aware of their legal obligations? There is a serious chance they are not and that is being charitable to them.

On the general issue of FOI, there is a need for a substantial review to be carried out for other reasons. That is because of the frequent frustration of politicians and journalists when trying to access information, which should be available to them as a matter of course when a parliamentary question is tabled or when a request for information is submitted to a Department. It is not acceptable that on so many occasions requests for information are flatly turned down and people are left with no option but to submit an FOI request. That is not what open government and transparency are about. The Minister has an obligation to ensure that while it is good that FOI legislation is there, it should be an absolute last resort. A culture should be developed within government. There is no indication whatsoever that that exists. An open government culture has to be created, which is about making as much information available as possible.

I will open with some quotes from leading Fine Gael politicians. First, "I do not, as standard, keep text messages" was not said by the Minister, Deputy Coveney, but by the Tánaiste on 5 November 2020. On 31 August 2021, Deputy Coveney stated: "I do not hold on to text messages for long periods in terms of data on my phone and so on." On 7 September 2021, he also stated that he cleared texts from his phones regularly when business was done, or something like that. At the risk of pointing out the obvious, that is not normal behaviour. Let us forget about Ministers, freedom of information or anything else; people do not do that. Unless they have something to hide, people do not finish a text message conversation by saying, "Oh, that's done, I'll delete that". It is not like getting a letter someone does not want and putting it in the green bin. Unless people are like Deputy Danny Healy-Rae and have a Nokia that does not have enough space for text messages, they do not do that. People do not delete text messages, in terms of normal behaviour.

We are not, of course, dealing with normal, regular citizens but, rather, with Ministers who have obligations under the FOI Act to retain records. In all of the earlier responses from members of the Government during the motion of confidence debate, what was most troubling was that their main line of argument - when they were not just attacking the Opposition, which was most of the time - was that the man apologised and what more do we want? It was almost as if they believed we were engaging in cancel culture, were trying to cancel the man for making a mistake, and while the man has made a mistake, he has also done all this great stuff and he has apologised. However, he never apologised and he never acknowledged the most significant aspect of all of this in everything that followed, apart from the actual act of cronyism, which was the deletion of text messages relating to official Government business and the breaching of the FOI Act by doing so. He did not apologise for that and he never acknowledged it was a mistake. He tried to simultaneously maintain, for example, on the second occasion he appeared before the foreign affairs committee, that while he had deleted the text messages relating to the appointment of Katherine Zappone as special envoy, he does not delete text messages relating to Government business because that would be in breach of the FOI Act, despite the fact that the two statements clearly contradict each other.

What was most amusing, and made me raise my eyebrows the most during the defence of the Minister was Deputy McHugh's contribution, who at one stage wondered that if we voted no confidence in Simon Coveney, what message that would send out to young people thinking about getting involved in politics.

Perhaps it would send a message to the young people getting involved in Fianna Fáil and Fine Gael about careerism and there might not be much of a hope for strokes and so on because there are consequences for actions. However, most people would say it is good to send a message that there are consequences if someone breaches the FOI Act and are engaged in blatant cronyism etc. There should be consequences. This stuff should matter.

Clearly, there is a pattern, at least among some senior Fine Gael politicians, of consciously deleting text messages which are official Government business to avoid there being an electronic paper trail of controversial decisions and to avoid them being accessed. There is now significant evidence to suggest that is a conscious policy. The text messages to which the Tánaiste was referring in November 2020 were messages he had sent to Maitiú Ó Tuathail, the chair of the National Association of General Practitioners, to whom he had leaked the draft GP contract with the Irish Medical Organisation. There were text messages about the delivery of the contract. It was obviously very convenient. Technologically, they were WhatsApp messages. Therefore, they should have continued to exist in the cloud but, apparently, they were also deleted from there, which would have required a special effort. It is not in the normal business of people deleting messages that they are finished with and so on that somehow they are gone; it would require a special effort to remove them from that. The Tánaiste is under Garda investigation for that. We will see what transpires. I have previously given my views on that, but it is quite significant. Then, we get to this issue of the other contender for the leadership of Fine Gael openly saying he is doing the same thing in terms of deletion of text messages.

It is clearly a breach of the FOI Act. Someone who deserves much credit for his work in trying to shine light on the murky business of Government and the use of the FOI Act, despite all the frustrations there are with it, is Ken Foxe from Right To Know. A consequence of one of the many cases he has taken is the decision of the Information Commissioner that where email accounts or messaging on mobile devices are used to transact official business, such records should be filed as part of the record management process. It is very clear that did not happen in the case of the Tánaiste and the GP contract, nor did it happen in the case of the messages on Deputy Coveney's phone.

Another of the multiple aspects related to this, to which Deputy Shortall referred, is the text messages between Katherine Zappone and the Tánaiste. It is troubling that journalists were submitting FOI requests precisely for records, including on the Tánaiste's mobile phone between him and Katherine Zappone and being told point-blank that such records did not exist. Then the messages came out. There is controversy about it. The response of the Tánaiste in a statement was:

The relevant FOI officer who received the request, checked all emails and records and found no records. I was on annual leave at the time the decision was released and I wasn't contacted to check my phone for records.

Someone is somehow empowered to say, "We have checked the phones and there is not a record" - the phones are specifically mentioned - despite not having talked to the Tánaiste. It stretches credibility at the very least or certainly would indicate a real problem in terms of process. What that indicates is that we have a significant problem. That poses the question: how many times have journalists, Deputies or ordinary people been told that records do not exist when they do and they are simply not caught out on it?

All the blame is heaped on this anonymous individual in the Department. I do not wish to make that individual not anonymous. I do not want to heap any blame on that person. They were presumably doing their job. There is political responsibility here, but the twist at the end was when the Tánaiste told the media that the person is no longer at the Department. They just kind of disappeared. One can imagine the staff photo from one year and there is a blank face the next year because all the blame is being put on that person. This is another person thrown under the bus - this time to protect the Tánaiste.

The final issue in this saga is that two or three days ago the Tánaiste was on the radio speaking about all of this and precisely to avoid dealing with the repeated flagrant breaches of the FOI Act by the Government to cover stuff up, he announced we were going to have a review of the legislation while forgetting the fact there has been a review in process for two months and that we have a law and decisions about the law already from the Information Commissioner that need to be applied right now. However, the Tánaiste announced that we will have another review simply to distract attention and to pretend that there is a problem with the law as opposed to the implementation of it. How about the Government implementing and obeying the law as it exists? Then I would be all for reform of it, as I outlined, in the direction of making things more transparent, etc., but it is not an excuse for breaking the law as it currently exists.

Gabhaim míle buíochas leis an Leas-Cheann Comhairle agus le Sinn Féin as an rún seo a thabhairt os comhair na Dála inniu. Tá sé fíor-thábhachtach agus cinniúnach mar gheall ar na fadhbanna atá ar siúl sa Stát seo agus is rud iontach anois go bhfuilimid in ann labhairt faoi go háirithe sa ghéarchéim seo. Freedom of Information is a key part, one of the building blocks, of a functioning democracy. It makes information easier to access. It creates greater public awareness of laws, policies, regulations and procedures. It improves public participation in democracy. It also creates greater efficiency and responsiveness within a society. More importantly and critically, it creates a transparency that is important for the proper functioning of a society. It is the enemy of wrongdoing, corruption and cronyism, which often haunts democracies across the world.

The 2014 Act was extremely important legislation. As a Deputy, I would be lost without it. I have used it frequently down the years but more frequently in recent times. Our democracy has been significantly restricted during the past 18 months. It is impossible to say it has not been. We have seen Dáil sittings radically reduced. There have been fewer opportunities to question Ministers and table parliamentary questions, and less room for debate. Anybody who is on this side of the Chamber who does not have the private mobile phone numbers of Ministers will say it is really hard to get people in Departments and in ministerial offices. When you ring you are told that person is working from home and we will try to get that person to ring you back, instead of having some technological wizard of an invention to able to redirect a phone to a phone at home so that a person could simply answer your question.

I have used the Act for a number of reasons. I recall, for example, getting access to an email that was on the Minister, Deputy Simon Harris's account, which showed that homeless students were being refused Student Universal Support Ireland, SUSI, grant assistance. That was an incredible, jaw-dropping situation. Students who did not have a roof over their heads were still being refused supports with respect to SUSI grant assistance in this country. Another FOI request I submitted at the start of the pandemic inquired if the National Treatment Purchase Fund had written to nursing homes at that time and asked them to accept a surge of patients from hospitals into those nursing homes and through that I found that they had.

We found out that, at the start of the crisis, we shifted thousands of the most vulnerable people from hospitals into the epicentre of the crisis, nursing homes. That information came from a freedom of information request as well.

There is no doubt but that the job of the media, of the Opposition and of citizens to keep the Government to account and to know what it is doing would be radically more difficult if it were not for the Freedom of Information Act. This issue has come into significant focus over the last while in light of the Katherine Zappone situation. This is a shockingly unedifying situation in which the Tánaiste and one of the most senior Ministers have talked about either not having information on their phone or admitting that they did. Information pertaining to the running of the Government and involving communication between Ministers and other individuals about key decisions relating to the running of the Government is being shredded by Ministers of this Government. That is a phenomenal situation. I heard another Minister go on television and indicate that technology has moved on beyond some of the direct diktats of the legislation. That is nonsense. It is like saying that one was not caught by the letter of the law but by the spirit. With this motion, we are not just asking Ministers to abide by the letter of the law but to do right by citizens. There is no other interpretation of that action, from a citizen's point of view, but that the relevant Ministers are seeking to hide information from them. The only reason I can imagine for a Minister seeking to hide information from citizens in this country is that they understand that what they have done is wrong. We had a debate here a little while ago on that matter. It is very clear that the process involved absolutely no transparency whatsoever and that an individual made a paid position for a friend.

I will also make a point on the lengths of time involved and the difficulties involved in accessing information under the current freedom of information process. It can sometimes take phenomenally long periods of time for individuals to get information back. Eons can pass. Sometimes you get back an answer saying that the request you made was too broad. Other times you are told the request is too narrow. From this side of the fence, it often feels like those requests are often designed to stymie one in seeking that information. I recall a request Aontú made regarding CervicalCheck. We sent the same correspondence to the HSE and to the Department of Health. The Department of Health told us that no such correspondence existed while the HSE gave us some 78 pages of correspondence. Two organisations under the remit of the Minister for Health understood the exact same request in two different ways and, as a result, there were two different responses. There are major problems with the freedom of information process in this country. Until we fix it, there are going to be spaces for Ministers who are involved in wrongdoing to hide. As a Dáil, we need to prevent that.

I believe I am sharing time with the Leas-Cheann Comhairle. I do not know how she is going to manage to be in two places at the one time. Perhaps I can stand in for the Leas-Cheann Comhairle at the end of my contribution and let her get in.

Perhaps the Deputy will change his voice slightly for me.

All right.

I commend Sinn Féin on this motion and I support the sentiments contained in it. This motion was brought forward at short notice as Fianna Fáil, the Green Party and some other cheerleaders who appear to be naively enmeshed in the present Administration - although maladministration might be a truer description - danced a dance earlier on to defend the indefensible actions of a Fine Gael Minister. Sadly, this accurately reflects how these three parties stand on issues of openness, accountability and, most importantly, responsibility. The motion highlights the confirmed failures of the Tánaiste and the Minister for Foreign Affairs to understand or comply with our freedom of information, FOI, laws. This shows that there is a widespread misunderstanding of FOI and, indeed, general data protection regulation, GDPR, legislation within the apparatus of the State. There appears to be an attitude across public bodies in general that FOI requests are unnecessary prying by the public and that they should resist complying genuinely at all costs. They seem to interpret the GDPR primarily as a tool to facilitate the suppression of information. Somehow, the idea of openness and transparency has been lost. This is not the purpose of either. Confident and mature administrators at any level in the State would see these as tools to aid, inform and reaffirm their decision-making processes. However, when leadership is sorely lacking at the highest levels of administration, what hope do we have?

Ultimately, this motion should not be required at all. If we had the government we wanted, there would be no need for FOI. Everything one can access through an FOI request should be available as a right and without a tortuous application process. All decisions, minutes of meetings and considerations of decisions should just be available without the requirement to submit an FOI request. Perhaps I am just being naive. Maybe that is just pie in the sky. If I had any doubts before, the amendment tabled by the Minister, Deputy Michael McGrath, has tonight bolstered my beliefs. It is heavy on statistics and light on substance but that is no surprise to any of us in the Opposition. We are often forced to fall back on FOI requests when we receive substandard replies to parliamentary questions. I am sure that many of my Opposition colleagues will agree that we spend much time seeking information through FOI requests which should be openly available to us to allow us to properly scrutinise the actions of Government.

Again, the Minister's amendment quotes selective figures on full and part disclosures arising from FOI requests, but that does not tell the full story. How many of us have had to appeal a decision and then appeal again to the Information Commissioner? How many of us have been told that records of phone messages do not exist? Can we believe that any of these FOI requests were dealt with properly? From the experience of recent weeks, it certainly seems we cannot. We should look at the lengths the likes of Gavin Sheridan, Ken Foxe and others involved in Right To Know have gone to in order to force transparency on Government and public bodies and at what it has cost them. We should be pursuing a policy of open government. All records that relate to the deliberations and decisions concerning State grants, schemes, services and the administration of public moneys should, as a matter of course, be openly and easily accessible to the public. At the very least, this would save the hours currently spent in dealing with requests and appeals. It would also remove the sense that a miracle and political goodwill are needed for things to happen. When your entire existence relies, as do those of Fianna Fáil and Fine Gael, on maintaining mystery around service access in order to peddle the impression, whether real or imaginary, that you are able to influence a process, sadly, we will never see real reform. That is the situation. I support the motion.

I thank all of the Members who have contributed to this debate this evening. It has highlighted the timeliness of the review of FOI legislation my colleague, the Minister, Deputy Michael McGrath, began in June 2021. The Department of Public Expenditure and Reform will undertake a comprehensive and careful review of the Freedom of Information Act. The approach to this review is being finalised and a report will be published shortly setting out the process. Collaboration and input from stakeholders across the public sector, academia and the media, as well as the experiences of individuals, will drive the issues to be considered in the review. A consultation on the scope of the review will take place later this year, with further consultations to be undertaken in 2022. While it is intended that the scoping consultation will determine the key themes of the review, the debate today has provided a valuable insight into the issues to be considered. The review will consider the experience of all stakeholders and will take account of the transformation of the manner in which people seek, consume and interact with information since the Freedom of Information Act 2014 was enacted.

It will review international good practice and developments, consult with the Office of the Information Commissioner and other key stakeholders in the data information space and consider interaction between FOI legislation, data protection legislation and records management requirements. As some Deputies mentioned, it is a complicated area.

While there are challenges to be met and benefits will accrue from strengthening the current FOI system, it is important to recognise that in general the system functions well. As the Minister, Deputy Michael McGrath, set out earlier, the system saw and managed a doubling of requests from 2014 to 2019. FOI requests since 2014 have been made to approximately 600 bodies. Four out of every five FOI requests decided on in 2020 were granted in full or in part, which is broadly in line with what we saw in previous years. Robust review mechanisms are available where a requester is unhappy with the outcome of the FOI process. However, uptake of the mechanism has remained notably and consistently low. In 2000, 3.3% of requesters sought an internal review, while 1.3% sought a review by the Information Commissioner, which is almost identical to what we have seen in each of the past five years.

The 2014 Act removed the application fee for making an FOI request. In addition, no application or search and retrieval fee applies for requests or reviews that involve requests for personal information. As such, no fee applies at any stage in relation to approximately 60% of FOI requests in most given years that involve individuals seeking their personal information. Effective support structures are in place to support decision-makers with quarterly civil and public service network meetings providing a forum for them to share experience and get input from the Department's central policy unit. The Department of Public Expenditure and Reform maintains a central training framework from which FOI bodies can draw to ensure their staff are up to date on FOI requirements.

More than 7,000 public sector employees have received training under the framework from its introduction in 2015 to date. Guidance is available from the Department of Public Expenditure and Reform and the Office of the Information Commissioner on the operation of FOI. The purpose of these structures is to support decision-makers across the public sector in effectively meeting their FOI obligations. Even in 2020, as the pandemic wrought unprecedented destruction across all sectors of Irish society, 32,652 FOI requests were processed by public sector bodies. I take this opportunity to recognise the hard work and tenacity of workers across the Civil Service and public service who in the face of the pandemic have ensured that the FOI system continues to operate efficiently. This has required innovation, flexibility and no small measure of determination on the part of public sector workers as normal working methods were subject to unprecedented disruption almost overnight.

I encourage everyone with a view on the FOI system and how it might be improved to take the upcoming opportunity to make their voices heard so we can improve the system and ensure it is fit for purpose in the modern world.

Freedom of information legislation has become a bedrock of democracy across the western world. It is in place to provide transparency, accountability and confidence in government. It is in place to allow citizens access the decisions made and the process that led to them. We have seen in recent weeks that, in Ireland, rather than providing such confidence, the actions of some Departments and organisations with regard to adherence to FOI legislation is diminishing it. There are Ministers who have deleted and destroyed Government records related to how they carry out their work. If we had a functional FOI system in place, that would not be tolerable. Plenty of examples have been cited this evening of FOI requests being made which were denied, responded to with partial information or, in all too many cases, told information did not exist when it did.

For example, a number of weeks ago I submitted an FOI request to each Department asking for all correspondence in relation to the infamous event in the Merrion Hotel. I received a response from the Department of the Taoiseach which stated no record existed of any correspondence, documentation or minute related to that event. From the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin's, Department I received documentation that indicated that the Department of the Taoiseach was in correspondence with that very Department. It was only when the FOI information was printed in national media and it was inferred that the Department of the Taoiseach had indicated that no such documentation existed, that that Department released the document we already had from another Department. That happens all the time.

It beggars belief that in all the FOI information made available there is never a minute of a Minister sitting down for a meeting with a Secretary General deciding how decisions are made. The most basic small and medium-sized companies would have minutes of their chief executive talking to the chairperson of the board, which is a similar relationship, particularly when decisions are made that impact on finances or policy changes.

Other organisations are particularly adept at avoiding transparency. The State broadcaster, RTÉ, refused over half of all FOI requests last year. I know from our interactions in the Committee of Public Accounts that if the RTÉ board continues to operate as it does, it will have no credibility in declaring "The truth matters" on the banners it employs. It is symptomatic of the way too many State agencies interact with requests for freedom of information. This needs to change. I commend Deputy Mairéad Farrell on bringing this motion to the House and all her diligent work to ensure more transparency, more accountability and better answers about how decisions are made. Too often, we operate under a cloud of incense.

We ask that Ministers stop leaking and destroying records relating to their work. That should not be too big of an ask but apparently it is. It is also important we ensure that minutes are kept of key decisions, particularly when they relate to expenditure or policy changes, regardless of who is in that meeting. We need to have a record. In many cases, I am sure it provides Ministers with cover. When they come up with what might seem to be implausible stories, as we referenced earlier, would it not be helpful if a minute of conversations that had apparently taken place was available? We call on the Government and each Minister to ensure that all agencies and bodies under their remit answerable to FOI legislation adhere to the letter and the spirit of that. We want to see government based on transparency and accountability. I think the people want that too and that the Government needs to start acting accordingly.

Gabhaim buíochas leis na Teachtaí a labhair ar an rún seo. We know from the conversations and speeches tonight and from long before this evening that this regime is in crisis. This is not new. Transparency campaigners have been saying this for a long time. All of us here who have tried to get information through the FOI regime will understand the frustration of those transparency advocates who have told us time and again that this is in crisis.

We should not be fooled in this regard. It was very clear today and over the past number of weeks that Ministers either do not have a clue what they are supposed to do in regard to the freedom of information process or they are simply ignoring it and do not think it is that important. As was said several times tonight, the FOI system really is a cornerstone of democracy. This is not an issue of Government versus Opposition; it is, simply put, a democratic issue and it needs to be dealt with at this stage.

As I said earlier, I have raised this issue with the Minister in the past and he has said previously that he considers the system to be robust. I take his point that he announced in June that he will undertake a review. However, that is not good enough. We do not need a review. What we need now is action, not another review. Some days ago, I heard the Tánaiste speaking on radio and it was clear that even he is not aware this review is taking place. What we have heard tonight and in recent weeks, as well as the fact Ministers are not aware that a review is taking place, shows the FOI regime is not being taken seriously enough and people simply do not seem to care about its importance. The Minister's amendment states that there should be a review etc., but my view is that we have gone beyond a review. We need only look to what has been said tonight and the fact we have Ministers claiming they did not know they should not delete text messages that relate to Government business. That shows we need more than a review. What is needed is action and what is being proposed is not good enough.

The Sinn Féin Bill is not something that was just drafted at the last minute. We have worked on it for some time. This motion deals with much of what is covered in the Bill. Why will the Minister not enact the motion and ensure the Information Commissioner is able to refer complaints, under the FOI legislation, to SIPO? Surely that is of benefit to everyone in this Chamber. Why not ensure that when public bodies are established under the Companies Act, they are immediately brought under the FOI legislation? These are simple and practical steps we can take. I urge the Minister to commit to doing an annual review of all the bodies to which the FOI legislation applies, including those bodies that are partially within the remit of the system. This would ensure we are consistently doing our best in terms of transparency and accountability.

I totally agree with the Minister about not needing to rely on the freedom of information legislation. Although we will always need that legislation, I would love to have a situation where we do not need to rely on it to access information. As it stands, however, we have the FOI legislation in place and we cannot get the information half the time. We know there are breaches of the legislation. While I agree with the Minister that it would be great to see the day when it is not needed, we are very far from there. I urge the Minister to reconsider his amendment and recognise that the motion provides simple and practical steps, such as the enactment of our Regulation of Lobbying (Amendment) Bill, that can be taken. We should do the right thing in this regard.

Amendment put.

A division has been called. In accordance with Standing Order 80(2), the division is postponed until the weekly division time on Thursday, 16 September 2021.