Dáil Éireann debate -
Thursday, 3 Feb 2022

Vol. 1017 No. 4

Freedom of Information (Amendment) Bill 2021: Second Stage [Private Members]

Deputy Sorca Clarke

I move: "That the Bill be now read a Second Time."

A well-functioning freedom of information regime is essential to any state that considers itself democratic because the fundamental principle that the public have a right to know must prevail. There is no denying or defending the poor track record that this State has when it comes to access to official State information and documentation. Just ask any of the residents who were adopted from a mother and baby home or a journalist. It is an attitude that feeds into this lack of transparency and accountability. When we have a situation where a Minister deletes official correspondence and admits to doing so, or Ministers admitting to using disappearing messaging phone apps, it must be considered that our freedom of information regime is essentially disregarded by those who should know better and those who are in power.

We cannot have a situation where Ministers are deleting correspondence or engaging with vested interests with prior agreement to not keep detailed notes. There is not even a passing resemblance of transparency in that, yet it happened. It is one thing to talk about transparency and openness in politics and it is an oft-repeated refrain from members of the Government. However, the irony that seems lost on them is that while they talk about it, they preside over Departments that treat freedom of information, FOI, requests almost as a personal affront.

The variability in the level of disclosure among Departments is astounding. Decisions to refuse FOI requests returned on appeal are astounding. In some instances, we have been told that information does not exist only for it to be discovered later. Some would call this approach obstructionist.

In a swiftly becoming time-honoured tradition, the Government wants to kick this Bill down the road. It is the same old story. The Standards in Public Office Commission, SIPO, has been calling for increased powers for years yet unfortunately these calls have fallen on the deaf ears of successive Governments. My party's Bill seeks to allow SIPO to investigate those who recklessly and repeatedly fail in their FOI obligations.

Increased accountability is not a bad thing unless you have something to hide. This Bill will help broaden the current remit of FOI by requiring the Minister to conduct an annual review of public bodies to see whether they need to be brought more fully under FOI's remit. This would allow the Minister to bring public bodies that are only partially under FOI more fully under the Act. It would help to ensure that public bodies act consistently and appropriately when fulfilling their FOI duties. It would also ensure there is no time gap in FOI coverage. Where a company becomes a public body, it would be immediately brought under the Freedom of Information Act. There would be no period of six months' exclusion, as we have seen with the Land Development Agency.

We need to provide SIPO with the power to investigate those who are failing in their obligations. There is simply no justification in the Government amendment to put this off for nine months. The freedom of information regime is failing and that is recognised, not only in this House but where the impact is felt most, that is, by the public.

Deputy Mairéad Farrell

We can see from the Government amendment that it is, at best, kicking the can down the road by having a Second Reading in nine months and, at worst, shooting this legislation down.

As I have said previously to the Minister of State at the Department of Public Expenditure and Reform, Deputy Ossian Smyth, we are here to offer solutions. The Government asks us to offer solutions.

However, it is fair to say the Government just is not interested in our solutions, even on occasions such as today when we explicitly state that we are willing and happy to work with it. The Minister, Deputy Michael McGrath, stated yesterday at committee that he judges each and every Bill on its own merits, but he and the Minister of State should also judge each Bill in light of the Stage it is at in the Dáil. We are here on Second Stage of this Bill brought forward by me and Deputy Clarke. If it is allowed to proceed to Committee Stage, we will be able to work on any issues the Ministers have. We could consider amendments and different provisions. We could work together constructively on this and then everyone would be a winner.

The review of the FOI regime was announced by the Minister, Deputy Michael McGrath, back in June. I made a detailed submission on it, trying to be constructive on my end. It should be noted, however, that when the Minister announced the review, he told us the regime was robust and functioning well. Obviously, we then had the likes of Zapponegate, in which it appears that official correspondence was deleted. It was clear the regime was in crisis well before that but at that point it became extremely clear. I will never forget listening to "Morning Ireland" last September and hearing the Tánaiste state the Minister was due to announce a review of the FOI legislation. Of course, he knew the Minister had already announced the review in June of that year. That showed the lack of urgency and understanding of the importance of FOI there was and is at the Cabinet table. We need to put a new and important emphasis on it.

We have known the regime has been in crisis for a long time. In 2018, The Irish Times carried the headline, "Freedom of Information: 'Unacceptably high' response-time failures." In 2019, a headline on thejournal.ie stated, "The Freedom of Information Act is dead". In February 2020, the month in which I was elected, the top law firm Byrne Wallace published an article entitled, "Is Ireland’s Freedom of Information Act facing an existential crisis". As the Minister of State is aware, I have had quite an interest in FOI for some time. In 2021, I conducted a survey with some of the top investigative journalists and transparency campaigners in the State. The results were undeniable and damning. That surely made it clear to anyone with any lingering doubts that there had been a lack of emphasis on FOI and the FOI regime was in crisis.

We have a real opportunity with this Bill. The ongoing FOI review and the wider review of the ethics framework are important but we need to look at the role FOI will play in improving transparency and accountability. Will it be broadened, deepened and reinvigorated? What role will the Standards in Public Office Commission play in respect of those who are failing in their obligations under the FOI Act? Will it continue to be a body that regularly asks for increased powers but rarely gets them, or will it become a new force for transparency and accountability, as envisioned by the Public Sector Standards Bill which every party in this House supported? Our Bill would empower SIPO to investigate complaints in respect of those who are failing in their FOI duties. I acknowledge that at the committee yesterday, the Minister, Deputy Michael McGrath, mentioned concerns regarding how exactly that would happen but I again make the point that it is on Committee Stage that those concerns can be addressed. Let us have those conversations and work together to thrash these things out. That is what committees can and should do.

Our Bill would require the Minister to conduct an annual review to ascertain what public bodies need to be brought more fully within the remit of FOI. For example, some public bodies are only partially under FOI. It would also ensure there is no time gap in FOI coverage. As we know, certain bodies do not fall under it for the first six months. That is an issue of concern. Under the Bill, public bodies will come straight under the remit of FOI. The Bill also attempts to bring back within the remit of FOI pension information in respect of retired taoisigh, tánaistí and Ministers. While the Minister also expressed concern in that regard yesterday, we are more than happy to sit down with him and the Minister of State and their officials to listen to their concerns, as would be done if the Bill moved to Committee Stage. We need to allow that to happen. We need to allow the Bill to pass Second Stage because we have a real opportunity here, especially in light of the ongoing FOI review and the review of the ethics frameworks.

I acknowledge the Minister, Deputy Michael McGrath, has a particular interest in this issue and conducted the review in June. However, I am also aware we need quick action on that because not every Minister will always have an interest in FOI. The Minister has such an interest, as does the Minister of State, Deputy Ossian Smyth, so let us do something about this urgently. Let us act on it now and bring the Bill drafted by me and my colleague to the next Stage in order that we can ensure there are amendments and this is progressed. The review was announced in June, many months ago. What we need now is action on it because it is not something new. Anyone who has had an interest in FOI has known there have been concerns and issues. We need to act on it. As the Minister has carried out extensive engagement on the issue, let us act on it. Let us bring the Bill to Committee Stage and have that conversation and we can work together pragmatically. I would like the Minister of State to refrain from moving the proposed amendment in order that we can bring the Bill to Committee Stage. It is important. We can work together. Is that not what this Chamber is all about - Deputies working together to get good legislation for the benefit of people?

Minister of State at the Department of Public Expenditure and Reform (Deputy Ossian Smyth)

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann:

— recognises that the Department of Public Expenditure and Reform is undertaking a comprehensive review of the Freedom of Information Act 2014 to strengthen and modernise the legislation; and

— resolves that the Freedom of Information (Amendment) Bill 2021 be deemed to be read a second time this day nine months, to allow for the review to be completed and for a proposal for draft legislation to take account of recommendations arising from the review to be brought forward."

I thank Deputies Clarke and Mairéad Farrell for bringing the Bill forward. They are correct that it is important. This is a good opportunity to discuss it. While I and the Minister, Deputy Michael McGrath, commend the interest the Deputies have taken in the FOI system and will welcome any policy suggestions or proposals in the context of the ongoing review, I respectfully take the view that the Bill has been overtaken by the broader review of the strengths and challenges in the FOI system that is being undertaken by the Department of Public Expenditure and Reform.

It is of critical importance that policy development is grounded in a firm evidential base and I will, therefore, take the opportunity to set out some background facts on the operation of the FOI system. Tens of thousands of requests are made annually under the legislation to more than 600 freedom of information bodies. From the introduction of the revised legislation in 2014 to 2019, the number of requests annually almost doubled to approximately 40,000 requests. The level of demand increased by 179% between 2009 and 2019. Even against a backdrop of Covid-related disruption, 32,652 requests were processed in 2020 and it is expected the previous upward trend will resume when figures are collated for 2021.

In terms of outcomes, the vast majority of FOI requests decided on are granted in full or in part, accounting for approximately four of every five requests in most years. For example, the figure was 81% in 2020. The majority of requests annually are for personal information, with 57% of requests being on that basis in 2020, for example. In cases where requesters are unhappy with the decision they have received, extensive review mechanisms are available. Internal reviews, where a more senior staff member in a body reconsiders the request, are sought for approximately 3% of requests in most years. In 2020, for example, that figure was 3.3%. An independent review by the Information Commissioner is sought in approximately 1% of cases annually. In 2020, it was 1.3% of cases. The role of the commissioner is to determine whether the FOI decision made by a public body was justified. In a review by the commissioner, the onus is on the public body to demonstrate to the satisfaction of the commissioner that the decision was justified. The staff of the commissioner draw on experience and expertise gathered through the years to thoroughly test the arguments put forward by public bodies. The statistics show the commissioner tends to uphold the decision of the public body in the majority of decided cases following a review. For example, this was the outcome in 70% of decided cases in 2020. It is clear the system as it is currently structured is delivering on its own terms, with ever-greater amounts of information being released year on year.

Of course, that is not to suggest there are not very legitimate questions as to whether the request-based FOI model that was designed based on the assumption of paper-based administration remains fit for purpose in today's world and workplace. There is widespread agreement in this House, in public administration and among the public that it should be easier to access a broader range of information without the need for a formal FOI request, whether through greater proactive publication or reducing the bureaucracy involved in releasing information.

It was in the interest of strengthening and modernising the 2014 FOI legislation and considering issues such as these that my colleague, the Minister, launched a comprehensive a collaborative review of the FOI legislation. I will provide the Members with more information on progress in the review shortly and in my closing address. I sincerely thank the Deputies for taking a constructive approach to this and for offering to sit down with my officials and I and with the Minister and I am very happy to facilitate that. The Deputies can work with me on it any time.

However, I will make some criticisms of the legislation they have drafted and I hope they consider them in the spirit in which they are meant. They are not meant to be offensive or an insult. There are significant technical issues with the proposals, as drafted. Advice has been received from the Office of the Attorney General and it appears that a number of the proposals would tend to either produce the opposite of the intended effect or no effect at all. In addition, each proposal would require significant further work from a policy perspective.

Section 2 proposes to insert an additional category of pension payments to former taoisigh, Ministers and Presidents paid out of current expenditure to the definition of personal information at section 2 of the Freedom of Information Act 2014. In practice, this would copper-fasten the fact that information of this type is treated as personal information for the purposes of the Act which by default is exempt from release under section 37 of the Act. By way of background, it appears that for a time information of this nature may have been published on an administrative basis. I understand that this practice was ultimately discontinued based on legal advice as to compliance with data protection and privacy law. It was only at this point that FOI requests then began to be made for information of this nature.

The question came before the Office of the Information Commissioner, OIC, for the first time relatively recently and in its decision, the office found that the personalised amount received by an individual is personal information, while the aggregate information or remuneration scales can be released under FOI. This approach is in line with long-established principles for dealing with salaries and pensions of public servants, dating back to the earliest days of FOI in Ireland. The OIC explicitly made this point in the decision and noted that the introduction of GDPR had no bearing on this outcome.

Notwithstanding the OIC's finding on individualised information, I understand that aggregated information to a significant level of detail, as well as scales and methods of calculation, remain available on request. It appears that what is at issue in this proposed amendment is an expansion of FOI and a change to long-established principles. In line with privacy and data protection law, including previous decisions of the European courts, any such expansion would have to be based on a clear policy objective that makes an individualised treatment necessary and proportionate in the circumstances.

Section 3 proposes to amend section 6 of the principal Act in order that freedom of information comes into effect from the date of a body's establishment. At present, FOI kicks in by default six months after an entity is first established. This is a practical approach. As usual, new bodies will need time to hire staff and set up administrative systems. However, where there are particular circumstances to warrant it, the legislation also allows for an earlier date to be specified. Section 79 of the Land Development Agency Act 2021 did just that. In that case, FOI applied from day one and the reach of FOI for the new entity included records created prior to its establishment. This was appropriate, given that the new entity effectively took over from an existing body and had the means to process requests from the outset. However, as a baseline, it would seem in general that the current position is more appropriate.

Section 4 proposes to amend section 7 of the principal Act and oblige the Minister and the Information Commissioner to carry out an annual review of entities prescribed as FOI bodies under that section. The technical issue is that no entities have been prescribed as FOI bodies to date under section 7 and, therefore, the amendment, as it stands, would have no effect. Furthermore, a wholesale annual review of inclusions or part-inclusions would appear to be administratively disproportionate. I am not sure it could be completed within a year. Currently, approximately 600 bodies overall are subject to FOI and it is unclear why an annual review would be required of the status of each one of them. Where there has been a material change to the status of a body or some other issue has arisen, this may continue to be dealt with on an ad hoc basis, as and when it arises.

Section 5 would oblige the Information Commissioner to give up his jurisdiction where he finds that, "a head intentionally or recklessly failed to fulfil his obligations in a material respect under this Act" and instead refer the matter to the Standards in Public Office Commission, SIPO. It is not clear what jurisdiction the SIPO would have to take on such a referral. A detailed framework for investigation and powers would likely be required. On the other hand, insofar as a breach of the Ethics in Public Office Act 1995 is at issue, there is nothing to prevent a complaint being made as matters stand. The Information Commissioner already has extensive powers to review decisions of FOI bodies and to direct release of records or further searches to be carried where the commissioner believes there is a basis for doing so. While implementing FOI may be challenging, there is no evidence in the commissioner's annual reports or decided cases that there is any prevalence of a wilful disregard of FOI obligations. If such behaviour were identified, there are mechanisms through which it could be addressed and in the past, where bodies have experienced particular difficulties implementing FOI, we have seen the support and collaboration that has been forthcoming from the commissioner's office, as well as the Department of Public Expenditure and Reform and this has led, in turn, to marked and verifiable improvements in practice.

The Government decided last autumn that a comprehensive review of the FOI system was to be undertaken by the Department of Public Expenditure and Reform. This is a complex policy area and the review will offer multiple opportunities for interested stakeholders to contribute their views. It is the intention of the Minister that the review will be completed by mid-year.

This will be followed by a memorandum to Government to outline the findings of the review and set out associated recommendations which may well include amendments to the legislation. Given the substantial overlap between the Bill before us and the wider review of the Act which has been completed, the proposed time-limited amendment of nine months to the motion that the Bill be read a Second Time will allow a sufficient period to advance the review. In the interim, Deputies are welcome to contribute further to the review. I encourage them to do so and commend them on their continued interest in improving the FOI system.

Deputy Ruairí Ó Murchú

There is an element of agreement across the board on the relevance and necessity of FOI and the significant part it plays in us having a proper, accountable and transparent system, which has not always been the case. There have definitely been failings at State level. In fairness, I have heard the Minister make promises to increase transparency. That is making as much of government available as possible through earlier publication of records and such. All of that is sound and necessary, but Deputies Clarke and Mairéad Farrell have put forward legislation to improve upon SIPO.

We have no problem in engaging in relation to what the Minister of State has proposed and with difficulties there may be. The point of Committee Stage is that we take in the necessary stakeholders and experts and tease it out. We all know the advantages of SIPO. We know what it does from a point of view of investigative journalists. We still have the case of Dealgan House and the tragic deaths that occurred during the early period of this pandemic. The families concerned carried out significant investigation on their own and would not have been able to do so with FOIs. However, the fact is that at times they were hampered even in dealing with State agencies such as the HSE. Material was to be handed over, then could not be and later could be following the involvement of local politicians and others. There was also to be a Bill with certain provisions and then there was not.

These are the sorts of issues we must consider. We must be completely open to looking at all possible solutions.

This is not about trying to catch out people or getting one piece of information without context so we can hammer someone. There must also be a wider discussion if we are talking about Government or State agencies, or even some of the other bodies that must be brought to a greater degree into the freedom of information system. We must have a conversation about what is involved. Will it include every single social media outlet and everybody who sends something on Messenger? Some of the messages may not always be best received, even by me. I generally try not to engage but I accept that one would need to be a saint not to have replied rather robustly to certain people at certain times.

We will have to do significant work on this. Again, there is a missing piece. To use the Dealgan example again, there was a difficulty because it was up to the families to carry out an investigation. I reiterate that there must be an inquiry and I will speak to the Government about that. There is a large amount of information there because of the tenacity of the families. A mechanism has been promised by the Government and I will follow up on that. Those families would have been in a worse position if they did not have the likes of that freedom of information process.

If we are all in agreement, there seems to be an interest from the Minister of State and the Minister for Public Expenditure and Reform, Deputy Michael McGrath, in progressing this. Whatever the outworkings of this interaction, a plan should be put in place for a review so we can be serious about enacting recommendations afterwards. We all know there have been huge mistakes made over the years and wrongdoing that at times was incredibly difficult to uncover. To a degree, we would be better off with a system that is there to be seen. The regular people out there may sometimes have a jaundiced view of politics and how the State and certain companies operate. If we speak about people from NAMA or the Land Development Agency, it may be the case that people can only be satisfied when we can show everybody what can be shown in interactions and the legal operations that are being carried out. We can then have a wider conversation about what would necessarily fall under SIPO's ambit.

There is a large body of work to be done in this area. In fairness to the Deputies who put this Bill forward, it indicates intent from Sinn Féin in its desire to tackle this matter. I accept that the Government is engaging and trying to get us to an end point that is better, with a strengthened SIPO and a greater element of agencies, companies and organisations falling under the freedom of information process. Even with some bodies falling under the freedom of information process, there should be a greater element of that transparency and accountability. For the want of a better term, we must all put our heads together and ensure this happens. We do not want another scenario where the can is kicked down the road. We will work on the existing issues and we all want a better system for SIPO. We should do everything that needs to be done to get to that point.

Deputy Chris Andrews

I commend my colleagues, Deputies Mairéad Farrell and Clarke, on the work they have put into the Bill. Transparency and accountability are cornerstones of any modern democracy and in the pursuit of transparency and accountability, the freedom of information process plays a vital role. Since the formation of this State we have seen Governments go to great lengths to hide official State information. There was infamous burning of Cabinet documents concerning the brutal policy of execution of republican prisoners during the Civil War, which is among the worst of the examples.

Sadly, this State has a long and poor history when it comes to transparency and access to official State information. Other states have similar issues. In light of these failings, the public has been left reliant on individuals like Mr. Julian Assange and Mr. Edward Snowden. Were it not for their actions and those of others like them, information on countless crimes and abuses around the world would never have seen the light of day. The public should not be reliant on whistleblowers risking their lives and livelihoods to expose such injustice. As I speak, Mr. Assange remains in a maximum-security prison and Mr. Snowden will live out the rest of his days in exile, far from his home and family. What were their crimes but trying to give transparency and accountability to the public? For that reason, Mr. Assange should be freed. We in Ireland saw the horrific treatment endured by a former Garda sergeant, Mr. Maurice McCabe, including the creation of false reports and attempts at intimidation targeting him and his family. This demonstrates what can happen when transparency and accountability are lacking.

The freedom of information process played a key role in events like the beef tribunal and the controversy involving the public services card. A well-functioning freedom of information regime is essential to any state that values the democratic process and it is an effective tool to give to the public for holding those in power to account. This Bill is an important step to broaden the current remit of the freedom of information process. In the interests of strengthening the democratic process, I urge all Deputies to support it.

Deputy Réada Cronin

It is really disappointing to see the Government's amendment, which kicks the can down the road for another nine months. It is another example of the approach of "pretend and extend". It is said that knowledge is power in any administration, particularly one involving sensitive State documents that may be leaked to personal friends, erased text messages, deletion of official correspondence, sharp violation of the freedom of information legislation and exorbitant pay rises accepted or forgone. The public needs to know about it. The so-called Zapponegate exposed a freedom of information system in crisis. The State has a long and patriarchal view of public information and the public's right to access it. Taking the example of the mother and baby homes, the attitude unfortunately persists in the treatment of adopted people and their access to full information about themselves.

Generally speaking, the launch of the freedom of information process in 1997 was a welcome change to the patriarchal "know better" attitude of the State to citizens seeking information that would become their right. I commend my comrades, Deputies Mairéad Farrell and Clarke, because they are really anxious to broaden that further. We seek greater accountability and specifically we would like to see a distinct role for SIPO. The Office of the Information Commissioner should be able to refer cases and complaints to SIPO where bodies are considered to have failed to have fulfilled their obligations under the relevant Acts, either recklessly or negligently. Such a role for SIPO is necessary and could easily be achieved.

Our Bill also addresses the arbitrary nature of releases from Departments under the freedom of information process, where for the requester luck can sometimes supersede rights, as interpretations differ so widely on what is covered and released, with redactions and the withholding of information being so frequently overturned on appeal. One must wonder what is the process. In a functioning democracy, freedom of information and access to it are critical and every effort should be made for this to be achieved by the public, non-governmental organisations, academics and other interested bodies. It is how power and the use of it can be held to account.

The Maurice McCabe scandal and the public services card trespass into personal data and privacy was mentioned. Where is the political will to tackle this? If there is a will to tackle this, there can be a way to do so. The Government should give SIPO a role.

Our Bill also requires the Minister to do an audit on public bodies to assess whether they need to be brought more fully under the remit of freedom of information and therefore into public scrutiny. Within this process, vital bodies such as the Garda and RTÉ could be brought more fully under the scope of the Act. Our Bill also seeks to close the gap in freedom of information coverage. Once a company or body becomes a public body, it would immediately enter the scope of the freedom of information legislation and not be excluded for six months, as is currently the case. I heard the Minister of State's comments but when the Land Development Agency was set up it was initially not subject to freedom of information for six months.

What my comrades are proposing for FOI is important for the public and for democracy itself. We need to move to an inclusive and democratic right to know over the exclusive and sometimes patriarchal need to know. I hope the Minister of State will reconsider his amendment.

Deputy Patricia Ryan

I commend my colleagues, na Teachtaí Mairéad Farrell and Sorca Clarke, on bringing forward this Bill. The Bill has been developed in close consultation with some of the State's top investigative journalists and transparency campaigners. It will address many of the shortcomings of the current FOI regime, some of which were brought into sharp focus by the events of "Zapponegate" last year. Ministers deleting official Government correspondence, which is subject to FOI, substantiated our concerns. That affair showed us that there is a lack of accountability for those failing in their obligations under the Act. Some public bodies are only partially included under the scope of FOI and they need to be brought under it more fully. Other bodies in receipt of public money are exempt entirely. Some information that was at one time available through FOI can no longer be accessed. This Bill will address each of these issues and more.

I was very disappointed to learn yesterday that the Minister for Public Expenditure and Reform is to defer the Bill for at least nine months. Anyone who has had to submit an FOI request will know that the system requires major reform. I ask that the Minister change his mind on this. He has launched a review of the Act but that is a waste of time and resources. The problems are well-documented and this Bill offers a solution to them.

We recently saw the need for reform in Kildare when the county council was faced with the prospect of having to bring the Department of Defence to court. The Department refused to co-operate with an investigation into dumping on a massive scale next door to a very scenic spot on the Curragh, beside Donnelly's Hollow. In what appears to be an attempt to avoid scrutiny and transparency, the Department finally agreed to mediation, which cost the State almost €20,000, and it appears that some sort of non-disclosure agreement has been signed to hide the details of what happened. We do not know if there will be consequences for anyone or what will stop this happening again. It is an absolute disgrace and I will not rest until we have accountability in County Kildare.

Deputy Aengus Ó Snodaigh

Tá a lán rudaí sa reachtaíocht seo agus is trua go bhfuil an tAire Stáit á chur ar athló ar feadh naoi mí. Ba chóir dó an deis a thapú é seo a chur chuig coiste chun déileáil leis. Ag an gcoiste, d’fhéadfadh sé na leasuithe faoina bhfuil sé ag caint a thabhairt isteach nó na botúin atá ann a cheartú. D’fhéadfadh an Bille a bheith os ár gcomhair agus críochnaithe roimh dheireadh an tsamhraidh. Tá sé tábhachtach go ndéanann muid cinnte de go bhfuil gach uile rud a dhéanann an Stát - ní díreach an Rialtas nó Airí ach an Stát i gcoitinne, an státchóras agus an maorlathas - trédhearcach mar muna bhfuil sé trédhearcach ní bheidh muinín ag an bpobal ann. Ceapfaidh siad go bhfuil daoine ag cur rudaí faoi cheilt agus ní hé sin an sórt sochaí gur chóir a bheith againn. I sochaí dhaonlathach agus ionraic ní bheadh gá leis seo ach sin domhan eile. Sin útóipe. Tá roinnt cásanna luaite cheana féin a léiríonn cén fáth gur gá dúinn cur leis an mbealach atá faisnéis ar shonraí ag obair faoi láthair faoin Acht. Ba chóir dúinn níos mó agus níos mó den eolas atá de dhíth ar an bpobal a chur ar fáil dóibh agus ba chóir go mbeadh sé sin de cheart acu. Sa deireadh thiar thall ba chóir go mbeadh an pobal in ann an t-eolas seo a fháil seachas gur gá dóibh dul síos bóthar na FOIs.

Uaireanta fiú nuair a lorgaíonn muidne freagraí ar cheisteanna anseo, ní ó Airí amháin ach ó dhaoine a thagann isteach os comhair coistí, ní fhaigheann muid freagra. Ansin bíonn orainne casadh, mar Theachtaí Dála, ar bhealach eile agus sin trí FOI. Mar shampla, bhí cúigear nó ceathrar ón nGarda Síochána os comhair Chomhchoiste na Gaeilge, na Gaeltachta agus Phobal Labhartha na Gaeilge inné. Ní raibh muid in ann freagra a fháil ar ché a mhol athrú sa chóras chun céim in airde a thabhairt do sháirsint agus fáil réidh leis an gcoinníoll Gaeilge dóibh. Ní raibh aon duine den cheathrar a bhí os ár gcomhair in ann freagra a thabhairt dúinn maidir le cén duine a tháinig isteach go dtí an coiste acusan chun é sin a mholadh. Tá a fhios againn go ndearnadh é mar tá sé déanta. Tá a fhios againn mar dúirt Coimisinéir an Gharda Síochána agus an leas-choimisinéir linn go ndearnadh an cinneadh agus nach é an Garda Síochána a lorg an cinneadh seo. Anois, toisc nach féidir linn an freagra a fháil, beidh orainne iarratas FOI a dhéanamh ar na cruinnithe, na coistí agus an comhfhreagras ar fad. Sin cur amú ama don státchóras.

Ní díreach an cás sin atá i gceist. Tá cásanna eile ann. Déanann daoine trál ar rudaí seachas an fón a phiocadh suas agus gheobhaidh tú freagra nach bhfuil an rud ar an idirlíon, go bhfuil taifead ceart á choimeád ag gach uile dhuine agus nach bhfuil daoine ag cur rudaí faoi cheilt. Chonaic muid thar na blianta go raibh daoine ag cur rudaí faoi cheilt. I roinnt cásanna níor thuig siad cad a bhí ar bun acu ach in a lán cásanna bhí siad ag triail iad féin a chosaint mar ní raibh siad sásta bheith freagrach as botúin. Nuair a dhéanann tú botún an rud is fearr ná do lámh a chur suas agus a rá go bhfuil botún déanta agat. Fiú muna bhfuil botún déanta agat, má cheapann an pobal go bhfuil an cinneadh mícheart déanta agat ba chóir go mbeadh tú mór go leor chun seasamh suas agus a rá go bhfuil tú sásta seasamh leis an gcinneadh a ghlac tú. Sin an fáth nár chóir go mbeadh eagla ar dhaoine roimh FOI. Ní chóir go mbeadh eagla ar an státchóras, ar Airí nó ar aon duine eile as seo amach má tá siad compordach sa seasamh atá siad tar éis a ghlacadh. Is trua go bhfuil muid san áit ina bhfuilimid ach toisc go bhfuil muid ann, tá éacht déanta ag na Teachtaí Mairéad Farrell agus Sorca Clarke ag brú an cháis seo chun cinn agus é á chur os ár gcomhair diaidh ar ndiaidh. Tá siad ag cinntiú nach bhfuil sé curtha ar leataobh agus go bhfuil muid ag bogadh sa treo ceart. Amach anseo, beidh an státchóras i bhfad Éireann níos oscailte agus ní bheidh daoine ag dul i bhfolach taobh thiar de FOI agus ag cur moille sa chaoi go bhfuil sé ró-dheireanach faoin am a thagann an freagra amach.

Luaigh daoine eile cásanna ina raibh ar dhream áirithe mar an Air Corps nó saighdiúirí dul go dtí FOI nó ceisteanna parlaiminte, maidir le Lariam, mar shampla. Ní chóir go mbeadh orthu é sin a dhéanamh in a lán bealaí mar is a sonraí pearsanta féin a bhí i gceist ach sin an bealach atá sé. Is costas mór é ansin, seachas daoine a bheith ionraic agus oscailte.

Deputy Paul Donnelly

I thank Deputies Mairéad Farrell and Clarke for bringing this Bill forward. Freedom of information is extremely important in terms of openness, transparency and, most important, accountability. I listened to the Minister of State's reply and I cannot understand his opposition to the Bill or his amendment, or why the Government will be kicking this down the road for another nine months. As has been said, this Bill will broaden the current remit of FOI by requiring the Minister to conduct an annual review of public bodies. I do not see a problem with that. It would allow the Minister to bring public bodies that are only partially covered by FOI more fully under the Act. Again, what is the problem there? Why would we need to wait nine months before that is enacted? It could easily be worked on now. Further, the Bill would increase accountability by allowing the Office of the Information Commissioner to refer complaints to SIPO for investigation, where bodies have been found to have intentionally or recklessly failed to fulfil their obligations in a material respect under the Act.

The Minister of State claims that SIPO does not have the powers for this but he is ignoring the fact that SIPO itself has been calling for greater powers. This is a constant kicking down the road. This organisation has been asking for extra powers for a very long time and the Government is saying we should just keep kicking it down the road so we do not get accountability. This Bill would help ensure that public bodies act consistently and appropriately when fulfilling their FOI duties. It would ensure there is no gap in FOI coverage when a company or other body becomes a public body. For what reason was that introduced in the first place?

I find it strange that a public body would be given six months to allow it to do whatever it wanted and it was not accountable to anybody.

When I was researching this topic, I looked at one of the reports. One of the things which really struck me was the decision to abolish the fee for making FOI requests. Sometimes, something strikes home. In this case, I wondered why we were charging people for information. What is the possible reason that we would have a charge for people seeking their own information, or other information that should be in the public domain? It is a strange practice if we are talking about openness, transparency and accountability. This aspect must be addressed.

There was a 67% increase in usage levels over 2014. There were 34,000 requests when the fee was abolished. This shows that people are very interested and are demanding more openness and transparency. We have frequently seen how a simple FOI can expose corruption and protect whistleblowers. Those following journalists and other people who use the FOI legislation regularly will see that vast tracts of information are missing or page upon page are redacted and blacked out. Occasionally, it will be possible only to get the page number at the bottom of the information provided. One person whom I follow on Twitter regularly seeks material under FOI legislation, and also gives courses and provides training on FOI, how to access information and the questions it is necessary to ask.

Why is it necessary to provide training for people to get information from public bodies? Why is it that there are specific questions that need to be asked? Why must certain ways and various avenues be pursued to improve the likelihood of getting the information required? Why do we need to do that? Why does somebody need to put such a course in place? What are people hiding? That is the only reason for people to do that. If we were open, transparent and accountable, then people would not have to present training courses to show others how to get information from public bodies.

We consistently hear of cases where we are told that the required information does not exist, only to find out later, and again mostly due to persistence and the training provided by the person referred to earlier, that the information in question does exist. We have a case of that where the Minister for Foreign Affairs, Deputy Coveney, stated in the House that he had deleted texts from his phone in direct contravention of the freedom of information legislation. The Minister told the Joint Committee on Foreign Affairs and Defence that he did not “retain texts for storage reasons”. Anybody who has an iPhone, or any other type of phone, will know that is quite an incredible reason to give. A spokesperson for the Minister said that: "The minister’s phone has been hacked in the past and as a result he regularly clears his phone". This is a clear example of why we need reform of our FOI legislation and why this should not be kicked down the road for another nine months.

Minister of State at the Department of Public Expenditure and Reform (Deputy Ossian Smyth)

I thank all the Members who contributed to the debate on this legislation. I also reiterate my thanks to Deputies Mairéad Farrell and Clarke for bringing forward the Bill. I have already set out in some detail my views on the legislation as currently drafted, which highlighted technical and policy issues regarding further consideration. I have, however, heard and noted the comments made by the Deputies and all the other Members who have contributed.

I will avail of this opportunity to update the House on the progress of the ongoing review of the Freedom of Information Act 2014. The Minister for Public Expenditure and Reform, Deputy Michael McGrath, has made clear, and I fully agree with him, that the review should take the form of an open and collaborative process. To this end, shortly after the Government approved the review, the Department published a roadmap document setting out the process and anticipated timelines for the review. This document is available on the Department’s website and social media channels.

An initial public consultation then followed on the scope of the review. This was intended as a way for the Department to look beyond the bare statistics and to seek to understand, in general terms, the kinds of issues of concern to stakeholders across all sectors. We had almost 1,200 responses from public bodies, workers across the Civil Service and public sector, civil society, journalists, academics and other representatives who contributed a wealth of experience and expertise to the process. These responses are still being analysed by the Department, and they will form the basis of a more detailed consultation document to be published in the spring, which will seek views on identified themes and issues.

Alongside that endeavour, the Department will shortly roll out a customer satisfaction survey. It will aim to gain a much deeper understanding of how the FOI system is operating in practice and how it is perceived by those at the coalface, including information requesters and the staff of public bodies who fulfil the requests. Other work has been ongoing in the background. For example, the Department has begun to assess developments in other countries to see what lessons can be learned from those experiences. The Department will continue to work closely with the OIC in progressing this project, but it will also liaise closely with other key sectoral stakeholders.

One of the challenges in undertaking the review is doing justice to the breadth of the FOI system. The Department will continue to proactively seek views from individuals and advocacy groups who may be able to provide insights regarding the use of FOI legislation in particular contexts. Other elements of the review process will include interviews, focus groups, case studies and a project to estimate the resourcing and cost implications of the FOI system. As will be apparent, this is an ambitious and thorough review process. I reiterate, just in case, that there is no intention to reintroduce fees. The review process aims to build a strong, evidential foundation to further develop and improve approaches to public sector transparency, as well as to seek the broadest possible range of views and policy options.

The review looks at structural issues that may plot a broader course for developing public sector transparency measures in the medium to longer term, as well as more incremental changes which will aim to improve practices and outcomes in the short term in the current system. The review is still at a relatively early stage, and its recommendations will be based on the evidence as it emerges. While I cannot pre-empt the outcome, I reiterate my earlier stated view, which is one the Minister agrees with and has previously stated in this House as well, that there has been a vast expansion of FOI usage since 2014. There may, however, be a point of diminishing returns in the context of the growth of the number of requests. More requests may mean that individuals are having to jump through unnecessary bureaucratic hoops to access information which should be provided in a much more direct and straightforward way. The target, therefore, is not necessarily to have the maximum number of requests. That may not be the utopia that we seek.

More requests may also mean that bodies are not publishing information that should be generally available without the need to make FOI requests. Equally, there is the ongoing need to balance access with their important rights and interests in respect of information held by public bodies, such as privacy or commercial sensitivity. While FOI legislation may have opened the doors and the filing cabinets of State bodies and played a key role in entrenching transparency as a core principle of public administration, there is an open question as to whether alternative or supplemental approaches are required to build on that success.

Depending on one's point of view, the progenitor of the Irish FOI approach may be taken to be the Swedish Freedom of the Press Act 1766, which is usually seen as the first FOI law. More directly, probably, it may stem from the US Freedom of Information Act 1967. In either case, as I have previously noted, the FOI requests model as we know it is based on the assumption of paper-based administration.

An Ceann Comhairle

The Minister of State’s time is up. We go now to the proposer of the Bill. I call Deputy Clarke.

Deputy Mairéad Farrell

Can I speak as well?

An Ceann Comhairle

No, I am afraid it is possible to have only one speaker.

Deputy Mairéad Farrell

Right.

Deputy Sorca Clarke

I thank the Minister of State for his contributions. I think we have found some groundwork on which we can make progress with this. I am not going to lie to the House and say I am not disappointed that the Minister of State is not going to withdraw his amendment. It is a lost opportunity. The Minister of State mentioned that the Minister had committed to undertaking a review within a time which falls well short of the nine months for which the Government is seeking to amend our legislation.

That said, there is common ground here on which we can build. I welcome the Minister of State' openness to engaging with Deputy Mairéad Farrell and me on this issue. There is a fundamental principle in the Freedom of Information Act 2014 which is best served in the public interest and that is where the focus must be. I refer to ensuring that the information which is available is freely available and freely accessible through an FOI Act which functions in the best interests of the public.

An Ceann Comhairle

I thank Deputies Clarke and Mairéad Farrell for bringing forward this Private Members' Bill and the Minister of State for being here to deal with it.

Amendment put.

An Ceann Comhairle

A division has been called. In accordance with Standing Order 80(2), the division is postponed until the weekly division time on Wednesday, 9 February 2022.

Cuireadh an Dáil ar athló ag 9 p.m. go dtí 2 p.m., Dé Máirt, an 8 Feabhra 2022.

The Dáil adjourned at 9 p.m. until 2 p.m. on Tuesday, 8 February 2022.