I welcome Aisling Reidy and Liam Herrick from the Irish Council for Civil Liberties. I remind visitors that while comments of members of the committee are protected by parliamentary privilege, those of visitors are not so protected. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I invite Ms Reidy to make a presentation to the committee.
Presentation by Irish Council for Civil Liberties.
Ms Reidy
Thank you, Chairman. I thank the committee for inviting us to make our presentation and congratulate the committee on taking the step to try to initiate some debate on this Bill. In light of the comments earlier about other groups being called to make presentations, I hope the efforts to which the committee has gone to hear interested parties on this matter will not be ignored by the Dáil process and will be allowed have an impact on the passing of this Bill through the Houses of the Oireachtas.
The Irish Council for Civil Liberties has made a written submission, which I believe has been distributed. I do not propose to take the committee through that but to focus on one or two issues we raise in the submission. I would like to comment on some of the issues we wish to raise regarding the report of the high level review group and its recommendations. My colleague, Liam Herrick, might then like to draw the committee's attention to four or five of the key amendments about which we have particular concerns. We believe the amendments will have significant and negative impacts on individual rights. They are not just technical amendments which would change the operation of the Bill but not have an impact on individual citizens.
The Irish Council for Civil Liberties began in 1978 to campaign for freedom of information legislation and was involved in the consultation process when the Bill came to pass in 1997. It is not opposed to a review of that legislation but has in recent weeks been opposed to the manner in which the amendments to the Freedom of Information Act put before the Oireachtas have come about and the attempt to rush them through. That process has resulted in bad amendments to the Act which will have negative impacts for the individuals supposed to benefit from the legislation. It is difficult to separate the two issues: the manner in which the amendments came about and the fact that they are not amendments which reflect a balanced and considered approach to improving the freedom of information legislation in the interests of the workings of Government and the individuals who benefit from the legislation.
It is suggested that the amendments are technical and do not impact on the individual rights of citizens. The Irish Council for Civil Liberties makes it clear to the committee that this is a complete misrepresentation of the nature of the freedom of information legislation and is misguiding as to the practical impact of the amendments proposed. The Act primarily benefits individuals who have a right to access information about decisions which affect their lives. Although the Act allows an individual to exercise the right to information in a personal, individual capacity, the fact that the exercise of his or her right is often used by elected representatives, the media or other representative or voluntary organisations, does not detract from the fact that the basis of the operation of the Act is to benefit individuals and not the media or other interest groups, as is sometimes suggested. Details from the Information Commissioner show that since the Act has been in operation, over 60% of all requests have come from individuals, not from other parties.
Freedom of information legislation, because of its impact on individuals, stems from a human rights framework. Its roots can be found in various human rights obligations which the Government has signed up to, including Article 19 of the international Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights, a convention which will eventually be incorporated into Irish domestic law.
Due to the fact that a number of the proposed amendments to the Act would come into conflict with the jurisprudence of the European Court of Human Rights in respect of rights information and personal information - I draw the committee's attention to the case of Gaskin v. the United Kingdom. In that case, an individual who had been in the care of UK social services for part of his childhood was denied information in files about his time in care. The European Court of Human Rights held that the individual had a right of access to that information because it was personal information which related to important, intimate decisions regarding his life, livelihood and wellbeing. The court criticised the public policy which shielded the social services from giving that individual access, but also criticised the fact that, when the individual was refused access to files held by social services about his time in care, there was no appeals body to determine whether the balance was struck between the public policy in protecting social services and the right of the individual to that information. A number of the proposed amendments to this legislation may run contrary to that jurisprudence.
As legislation primarily concerned with individuals and how they access information, the ICCL believes that the process by which the Freedom of Information Act has been reviewed is fundamentally flawed. The manner in which the high level review group was tasked to consider the operation of the Act was extraordinary, as was the way in which the group's report was used to produce legislative amendments without further consultation with stakeholders in the area of freedom of information. While the high level review group did not consult with the Information Commissioner, independent experts or any other citizens' organisations, the process is also flawed even as a reflection of the experience of civil servants because there was no consultation with Civil Service unions - the representatives of the main group applying the Act.
The council recognises that the report of the high level review group can and should be considered as a contribution to a more broad ranging review of the Act, and reflects the operation of the Act from a Civil Service perspective. However, it should not be considered as a comprehensive, balanced analysis of the operation of the Act or of how the Act could be improved for the benefit of the public interest.
The council has set out in its submission to the committee a simple test which should be used to assess whether restrictions on freedom of information, which is what the amendments are, are justified and should be accepted. The test is the question: "Why is the restriction on access to freedom of information being sought and is there a pressing public interest behind the restriction being imposed?"
If there is an identified public interest to imposing a restriction, the interest group seeking the restriction should be able to produce an evidence-based reason as to why the restriction meets the public interest. There should be regard as to whether the balance has been struck between the restriction of the rights of individuals and meeting the public interest test. It is clear from the report of the review group that it did not consider the Freedom of Information Act as legislation which affects citizens' rights and which should be reviewed as human rights legislation. This method has produced restrictive amendments which will be detrimental to the rights of individual citizens.
The council has three over-arching concerns about the tenor and thrust of the high level review group report. One of these is that the review group suggests that there should be further class exemptions granted to documents in public bodies and that there would be widening of the class of Cabinet papers - papers which would previously have been available would not now be available. The ICCL believes that this preference for exempting documents, rather than considering whether the release of a specific document would give rise to a specific harm, is a flawed starting point for freedom of information legislation.
The ICCL has also been concerned by the fact that the review group has mentioned - this has been taken up - the introduction of costs for retrieval of information, or a flat fee, as a means of deterring applications. We have no problem with the cost of retrieving information being shared with those seeking information and some balance being struck between the cost incurred for retrieving information or complying with requests. That is a different issue to specifically using costs to deter individuals from asking for information. There are already provisions in the Act whereby vexatious and frivolous complaints may be rejected. We would encourage the use of those provisions and only when it is shown that they are not effective that other means be considered.
We also have concerns which relate to sections of the Bill and the report. I will hand over to my colleague, Mr. Liam Herrick, who will draw the committee's attention to three or four of the main recommendations with which we have taken issue.
Mr. Herrick
I thank the committee for its invitation to us and commend it on the forensic manner in which it has approached this issue in what we appreciate are difficult time constraints.
I will refer to a number of the specific recommendations of the high level review group which we believe are causes of concern. As Ms Reidy has stated, we have concerns with the imposition of a cost for an application for information as opposed to charging people for the actual cost incurred in producing the information, which we believe is a deterrent. This is a cause of concern in view of the newer definition of what constitutes personal information. The narrowing of that definition from information relating to a person to a much narrower concept of information that contains facts relating to a person, means that a scenario could arise where, for example, an individual who had been in institutional care could be barred from getting relevant information relating to his or her time in care. People may have to rely on a non-governmental organisation such as the One in Four group or groups like us to seek that information for them. A charge would then be levied for that application which we believe is a serious consequence of the proposed change.
In general, there has been an unfortunate misrepresentation of many of the debates around the high level review group and the proposed amendments to the Act, in that there is a perception that it is not about the right of the individual. The application of the Freedom of Information Act is about the right of the individual. First, in terms of direct applications for personal information, second, as I just stated, the important role of non-governmental organisations seeking information on behalf of a person and, third, through the media which is an important way of facilitating greater democratic participation. At three different levels the Act is about individual information.
In regard to the specifics, the high level review group recommended that section 19 of the existing Act, should replace the word "may" with the word "shall" in regard to the mandatory duty on the head of a Department to refuse a request for a Cabinet record. This recommendation is indicative of the general approach taken by the high level review group. The presumption is based on the refusal of access to information rather than the existing presumption in favour of the release of information. We do not wish to criticise the high level review group in any way because it was made clear at the hearing last week that the group's mandate was only to reflect the experience of heads of Departments in their dealings with Ministers in applying the Act. By definition, they had a limited remit and were reflecting their own personal experience. It also became clear last week that that perspective is narrow and does not constitute a balanced review of the application of the legislation.
The second recommendation that the group made was in regard to section 19(1)(c) of the Act that the word “solely” as it relates to Cabinet material should be replaced with the word “primarily”. This again demonstrates the approach taken by the group. The word “primarily” could be construed widely. Material that may be in the public domain through other avenues of Government will now be refused on the basis that it was originally created for the purposes of Cabinet. Dr. Maeve McDonagh highlighted a concern that in many other jurisdictions this type of broadening provision for what constitutes Cabinet records is open to abuse by Departments and Governments that wish to retain information.
Another proposed amendment to section 19 of the Act exempts records of committees of officials which are constituted as sub-committees of Government. This issue was referred to by the Information Commissioner last week. While we recognise the importance of the workings of Cabinet we would have concerns about a new constitutionally unknown concept of Government, that includes committees of officials who may not even be civil servants appointed through the normal Civil Service procedures. These could be special advisers. This does not correspond or correlate to the usual understanding of what constitutes Government. We see no good reason these types of committees should fall within the exemption afforded to Cabinet records.
The greatest potential challenge posed by the recommendations of the high level review group to the workings of the Act is the recommended narrower definition of what constitutes factual information that may be released. There is a reference in the group's report to factual information only referring to purely empirical or statistical data. We believe that this much narrower concept of what constitutes information and facts will again be open to an overly-narrow analysis and interpretation by heads of Departments. This will take away much of the good that has been done in terms of improving the quality of democracy that has been the effect of the application of the Act.
The broadening of a definition of what constitutes a deliberative process in regard to section 20 gives rise to concern. Last week we were also offered instances from other jurisdictions where the term "deliberative process" could be interpreted by the head of a Department to include many items which are continually on the political agenda. Examples were offered that included unemployment or hospital waiting lists, which in one interpretation could always be regarded as part of the deliberative process as they are always under consideration at a policy level.
As Ms Reidy pointed out, we are concerned that all of the recommendations will no longer be open to appeal to the Information Commissioner. This goes directly against the jurisprudence of the European Court of Human Rights in the case of Gaskin v. the UK. There is no right to effective remedy for somebody that is denied information in many of the new areas recommended by the high level review group. The competence of the Information Commissioner will be replaced by heads of Departments as the final court of appeal.
These are some of the points which are laid out in more detail in our paper. We would like to assist the committee if members have any questions in regard to any of these matters.
I thank the delegates for their presentations.
I presume the delegates were not consulted in any way about this.
Ms Reidy
With the exception of this committee.
Has the Department of Finance, which carried out the drafting subsequent to the report of the high level group, been in touch at any stage?
Ms Reidy
No.
Does the group see any merit in the argument that early exposure changes the dynamic of Cabinet? This seems to be the primary, if not the only, argument that is being advanced in favour of the changes. While the presentations were clear, is it not the case that in most of these provisions, access to information will be reliant on generous interpretation by officials of restrictive provisions? Heretofore the presumption was the information would be released and officials would have to have good cause to restrict information releases. Is this change in balance the primary concern of the council? Has the council seen provisions similar to section 30 in legislation in other jurisdictions? It means a certificate from a secretary general will close everything without appeal and does not have to be justified. Is the reasonableness of certification unique in the experience of the council? I understood the delegation to have said court rulings indicating the attempt to restrict access to records containing personal records would fall foul of existing court rulings. Perhaps the council could clarify the provisions it feels fall foul of existing court rulings and provide us with the necessary legal references.
Ms Reidy
The first question asked was if we believe the freedom of information legislation changes the dynamics of Cabinets. While I have never served in a Cabinet and therefore cannot speak from personal experience, I assume that knowing one operates in a position where transparency and accountability will arise at an earlier stage will impact on how one makes decisions. The issue of early disclosure being seen as necessarily bad focuses on an arbitrary determinant. The real issue is whether a document would be harmful for an individual in a private capacity or to the public interest. Although something does not have to be disclosed within a certain time period, much of the information may already be in the public sphere and this has the most significant impact on Government dynamics. I would imagine the real concern in making Cabinet decisions is whether having information in the public sphere would be to the detriment of the effective workings of Government. An arbitrary timeframe is not our main concern; we feel a harm-based test is the best way to move forward. Legislation in New Zealand has adopted this approach. There are no class Cabinet paper exemptions in New Zealand, exemptions are instead made on a test of the document's content.
There are two core principles that lie at the heart of a freedom of information regime. The first is that people have a right to know and there must be justification where they should not have access to information. The second principle relates to exemptions and forms part of international best practice. Where there are exemptions, they should be drafted narrowly and clearly to make it easily applied. The amendments in the new Bill give wide discretion to civil servants to make this determination. This is compounded by not allowing a review by either the Information Commissioner or a judicial body. The amendments to section 20 raise these concerns.
Neither my colleagues nor I have ever seen a certified exemption of the nature where a head of a Department can certify something as being exempt. Having said that, I have read secondary information about other FOI regimes and I believe Dr. Maeve McDonagh, the leading FOI expert in Ireland, has not seen a similar provision.
I would be happy to supply the committee with a copy of the Gaskin v. the UK case and an analysis of the information that flowed from it. The circumstances of this case were slightly different. It was not about the conflict between freedom of information and the right of people to information. Freedom of information legislation did not exist in Britain when the case was considered. An individual sought information regarding files arising from his time in social care and was refused it on grounds of public policy. He was told it was in the public interest to have a wide protection for social services because of the sometimes sensitive nature of the work carried out. Once the social services made a decision to refuse the release of the files there was no appeal mechanism. Both these issues were litigated before the European Court of Human Rights and Britain lost on both points. The principle was that a person had a right to information and any refusal had to be carefully justified. Not only was the social services organisation unable to justify the refusal, it was unable to point to an independent body that could determine the balance.
The implications flowing from this analysis of an individual's scope under the European convention regarding the right to personal information would, we feel, impact on the changes to section 6(5). These changes suggest limiting the right to records that are now considered personal information records. If one works in social care there may be many records that relate to one's time there yet do not contain personal information. The Bill suggests access to such files will be limited. In such circumstances an applicant like Mr. Gaskin could not get his files and this would clash with the convention.
Under the changes to section 20, a secretary general would be given the power to certify a document as part of deliberative process without appeal. Someone may have a legitimate interest in a document that is part of a deliberative process and a secretary general could deny access. There is no appeal on this and this is in conflict with the Gaskin ruling. There are cases from Italy and Spain relating to access to environmental information where people were not provided with information that could impact on their health and that of their family. Both countries were found to be in violation because of this. Both cases related to information not being made available in a public sphere.
I welcome the council and thank the delegation for the presentation. At the beginning of the presentation it was said that the Irish Council for Civil Liberties was at the forefront of a campaign to introduce freedom of information legislation in this country and it was consulted when the Act was before the Oireachtas. The Irish Council for Civil Liberties was consulted when the then Minister of State, Ms Eithne Fitzgerald, was piloting the Act through in the early 1990s. We heard at our last meeting that the NUJ was also consulted. Did the ICCL give information and advice to Government on the Act? If so was it surprised not to be consulted this time? Where did the ICCL hear about it, through the newspapers or did somebody send a letter?
I presume the ICCL, as an organisation interested in the Act, has interacted with NGOs and individuals who have used it to gain information and has had some continuing contact with officials operating the Act or with the Information Commissioner. Has the council heard people complaining that this Act is a hindrance to Government or that it is making things awkward for civil servants? Has it heard of information revealed through the operation of the Act which people have regretted afterwards on the grounds that it has damaged or hurt people? Has there been any climate of criticism which would have led the council to believe that the Government was planning such a widespread change to the existing Act? I am interested in this because the proposed changes to the Act came out of the blue for Members of the Dáil. The high level group produced no examples of harm done by the Act except to suggest that senior civil servants and Ministers were less inclined to commit their views to paper than to discuss them at Cabinet.
Is it the council's view that under the changes proposed by the high level group, a secretary general of a Department who has this power of certification, against which there is no appeal to the Information Commissioner, will be more powerful than a Minister? Supposing in the years to come there is a change of Government, and I know some people in this committee feel that is impossible, but if it were to happen and there were different parties in Government, if the secretary general of a Department had certified certain areas as being exempt from the Act, would a Minister in a new Government or in an existing Government who felt certain information ought to be released, be able to override the secretary general?
Mr. Herrick
In regard to the first question we heard of the proposed changes to the Act through the media. Yes, we were surprised. We have the greatest respect for the Oireachtas as the prime legislator for the State which has a right and a constitutional duty to legislate. However, as a human rights organisation we believe that good legislative practice should include comprehensive consultation on this type of legislation and on any legislation in rights related areas, for example the disability Bill, which is being discussed within the Department of Health and Children. There is usually an extensive process of consultation so we do find it unusual that in this instance there should be no proper consultation.
We have had some contact with users and with a number of officials in recent years, and we have not learned of any negative experience in applying the Act. We were interested in the high level review group which also said that it did not believe that there had been any detrimental effect in applying the Act, and that it did not feel there had been any change in practice within the Civil Service. The group gave no instances of a change of practice or decision-making as a result of the Act over the past five years and that was significant.
In regard to the Deputy's second question about secretary general certification, Professor McDonagh pointed out at the last meeting of this committee that not only might a secretary general be able to certify particular documents that a subsequent Minister in the same Department would then be prohibited from releasing, but also that a secretary general in one Department can certify material with the effect of prohibiting a Minister in another Department from releasing it. For example, in regard to material that related to the Departments of Health and Children, and Finance, the Secretary General of the Department of Finance could prohibit not only his own or subsequent Ministers in his Department from releasing this, but also the Minister for Health and Children. This represents a fundamental shift from a position where officials and Ministers can release information and refuse it only on a justified harm-based approach to a situation where even a Minister who wished to release information would now be prevented from doing so. That is an unacceptable shift in the burden of the Act.
I would like to follow up that point. Is the ICCL saying that if this Bill goes ahead as the Government now intends, the secretary general of a Department will, in terms of certification power, be more powerful than a serving member of the Government of the day? To change this back may require either the repeal of this new law or a fresh Act to restore the current power of a member of the Government.
Mr Herrick
We are guided by what the Information Commissioner and Professor McDonagh, the leading academic in the area, said at the last meeting and that was the view they expressed.
I have one more question. I was concerned at the last meeting and I want to ask the ICCL to elaborate on its impact. In the debate on this legislation and in discussions on the Order of Business, the Taoiseach has been at pains to stress that as far as the Government is concerned this Bill is not intended to in any way restrict or reduce the rights of the individual citizen as regards personal information. I put a series of questions to the Information Commissioner last week and he pointed out that the change from records which contain personal information as opposed to records which relate to personal information could affect these rights, as could the section of the Bill dealing with records and information which are the subject of a tribunal. He cited the example of the ongoing organ retention inquiry, where a parent whose child had died might want to recover information about the child's medical records. What adverse effect does the ICCL think the changes to this section of the Bill could have on people in this situation? The Taoiseach said convincingly and sincerely that it was his view that the Act did not affect personal records but I am concerned that the proposals in the Bill will change the right of access to personal information in an important way. I would be interested in hearing the council's view on that.
Mr. Herrick
The Bill creates a narrower definition of what constitutes personal information. In our view, and in the views of the Information Commissioner, Professor McDonagh and other groups, such as the One in Four group of victims of institutional child abuse, it clearly means that some information that is available to people about institutions where they were in care, the actions of the institutions they wish to question - for example the organ retention case - will be now a category of information that will be exempt from application. This is our understanding.
How will the institutions do that? Will it be through the secretary general because an issue relating to an institution is contentious? Is it possible for a secretary general of the parent Department to say that it is a matter of ongoing discussion? Will it also be the change in the definition? For instance, if my name is on the records, I will be entitled to that information but not information on the management policy in the hospital.
Mr. Herrick
That seems to be the general thrust. This was the view of the Information Commissioner. A personal file will be available to the individual but pertinent information on the approach taken by the institution may now be exempt. For example, the following could be exempt - the information available to the institution at the time important administrative decisions were made and correspondence that the institution had about other related bodies in regard to liability, criminal or otherwise. This administrative information may now be exempt from an individual who wishes to bring a legal case or obtain relevant information for personal satisfaction.
I want to clarify one point. You spoke about the certificate being issued by a departmental secretary general restricting release of information by a Minister. It is important to recognise that the certificate only relates to information that would be received through a FOI application. There is no restriction on any Minister releasing information that is outside the FOI. Those restrictions only relate to requests received under the Act. You mentioned hospital waiting lists. This information is released by Ministers on a monthly and quarterly basis. This information can be obtained on a regular basis through parliamentary questions. This discussion is specifically about the FOI Act. A total of 99% of information released by Government is outside the scope of the FOI Act. The only information that comes through the Act is that requested through it. Ministers might be restricted under the FOI Act but they can issue information outside its scope. You may wish to make a brief comment on that.
Ms Reidy
You are right, Chairman. What you set out raises two interesting points which we would relate to the proposed amendments to the FOI Act. There is a certain amount of public information available which can be sought through parliamentary questions. One thing that has been clearly repeated as an effect of the FOI Act is that knowing a FOI application can be made, has, in turn, increased that category of documents which are released. If the scope of the FOI Act is rolled back, in effect, the tool that encourages more open government is whittled down.
Where that information may also be available in the public sphere, it is hard to justify giving it exemptions under specific legislation. It is hard to say that it would be harmful to release it, because it is already in the public sphere. The Information Commissioner gave several examples where there was a reluctance to give information under a FOI request. They were refused and when he looked back at the information, he noted that most of this was already in the public sphere.
For the ICCL, it is important to see that in the whole context of public information, the availability of information is a positive way of doing business. That is why the ICCL is all the more concerned with the proposed restrictions of FOI applications. Individuals feel it is their Act and that it is being taken away from them.
Deputy Burton stated that the ICCL has been contacted by individuals who use the Act. We did not have much contact in the past unless there was a specific complaint. Now, since the media have highlighted the proposed amendments, we have received a number of telephone calls - all from individuals not the media - asking what is going to happen with their FOI applications. Accordingly, we tell them the Bill has not been passed. However, there is anxiety among individuals about whether or not they will get the information if the Bill is passed. When we tell them to bring this to the attention of their public representatives, several callers have asked what good that would do as the Bill seems determined to be passed. They argue that if the ICCL as an organisation cannot do anything, then what good is a letter from an individual. This is the feedback we have been receiving.
I appreciate that.
The difference between an effective FOI Act and an ineffective one is that in the former, information can be gained by the citizen using democratic tools and, in the latter, the citizen must depend on a grace and favour basis which can be used for administrative convenience or political advantage. That is what is at the heart of this debate.
The higher level group, in its presentation, cited the example of FOI legislation in a number of jurisdictions that were more restrictive than the Irish example. In these jurisdictions, attempts were even made to roll back the degree of information available. However, the group was selective in the examples used. It claimed it was citing only examples from jurisdictions that had common law systems similar to our own. I am interested to know from a civil liberties viewpoint whether the ICCL thinks that was a valid basis of comparison or should the comparisons have been more wide-ranging, such as Scandinavian countries. I was interested in the use of the example of New Zealand which has specific safeguards on Cabinet papers but has a similar common law system to our own.
In terms of how information is defined and how secrecy is part of the State apparatus, does the ICCL have a view that there should have been a parallel process involving this legislation, and any amendments, and the anticipated legislation down the road in repealing the Official Secrets Act? If we do not have an ongoing debate on what is open information and what is secrecy, it tends to be a debate happening in two different corners.
Ms Reidy
In respect of the selectivity exercised by the high level review group in FOI comparisons, the ICCL feels the group was selective in the negative sense. We set out in our submission the fact that the Irish legislation was a standard. It is one of the key models of FOI legislation used close to home - in Scotland. It is used not just in Europe but throughout the world. We are proud in that it set standards, and the consequences of that should not be that we should have no regret about downgrading, restricting and removing some of the rights and freedoms, it should not be used as an excuse. We used the New Zealand model.
The real expert on comparative freedom of information legislation, Dr. McDonagh, gave a number of examples from common law jurisdictions where proper open consultative review processes took place in regard to their freedom of information legislation, which led to the widening and opening of freedom of information legislation more in line with the Irish Act rather than rowing back. She has provided examples in Canada with costs and in Australia where they have seen that the standards adopted in Ireland are appropriate for freedom of information, that they do not do damage, and they have gone that way. New Zealand started from the point that there should be a harm-based test, even in relation to Cabinet papers, rather than a class exemption.
The comparatives have been selected. The Scandinavian countries, particularly Sweden, have an open approach to Government information, not under FOI, but they generally make a lot of Government information available on websites and easily accessible at an early stage. It has not impeded the quality of effective government in Sweden.
Was there a final question?
Mr. Herrick
One observation we have on that is that the regime proposed in the Bill whereby a broad category of information relating to international affairs would now be exempt by definition, is much broader than the currently operated scheme under the Official Secrets Act. It is obvious, and was the view expressed by everybody who came before the committee last week, that certain Department of Foreign Affairs related materials, particularly in regard to Northern Ireland, are sensitive and, by definition, are exempt because of the potential harm that might be caused by their release.
That is not to say that all matters relating to international affairs should be exempt. For example, there seems to be no good reason matters relating to the administration of the Department of Foreign Affairs itself, the funding of embassies and so on, should be exempt when equivalent material in other Departments is not exempt. There are many areas of international relations which are not contentious, which do not raise issues of national security and which would not compromise our relations with other states. Other states release this type of information. The Deputy's examples of Scandinavian countries, for example, which have more liberal freedom of information regimes, are a case in point. It seems strange to introduce this type of amendment to the Freedom of Information Act, which could be broader than the current regime under the Official Secrets Act. It makes sense that the application of the two Acts should be reviewed in tandem.
This is a question I asked the Information Commissioner on section 23 in relation to information on defence and security. I am of the opinion that information that can be made available as of now under the FOI Act may not be available if this Bill passes in its current form. To use a current example of ongoing public debate, is it not the case that the suggested amendment, maybe by way of some type of certification, might mean that information that might inform public debate in relation to overflights or military landings and the costs involved would not come into the public arena and public debate would not be informed on such an issue?
Mr. Herrick
It would not be for us to say, but it may be that that type of material could be deemed exempt at the moment. It is difficult to say, because there are wide exemptions in regard to issues of national security at the moment, for example, in regard to national defence. That is something that came through strongly last week. There are many exemptions under the Act which work quite well. There was no instance offered where material that was of such a sensitive nature that it would compromise military or national security, or defence, or foreign affairs issues that were sensitive, had been released. It would not be for us to say, but there seems to be a wide degree of exemption under the current system.
My point is not in relation to sensitive information. However, there seems to be information available now, that is accessible, that does not fall into that category and that may not be available if the suggested amendment goes ahead. My argument is that it is helping to inform current debate and it would hinder future debate if it was not available.
Mr. Herrick
The Deputy is right. Our interpretation of the deliberative process changes. The idea that a complex of documents could be certified as being within the deliberative process could have an impact on issues surrounding, for example, the use of Shannon because, clearly, the whole question of the use of Shannon is part of an ongoing process. Certain decisions may already be taken.
The Information Commissioner gave the example that he could review decisions to deny something on the deliberative process ground by saying that the deliberative process has many sections to it and that, although everything is a deliberative process, there are parts of it which are now finished and under which documentation should now be released. One can imagine the broad scope of a deliberative process. The rebalancing of the test to put the burden on the requester to prove it is more important to him or her to get the information than it is for us to keep it would, I imagine, have an impact on sensitive issues such as the current debate about the crisis in Iraq.
To follow up on your question, Chairman, the example has been given in which the responsible Minister - the Minister for Defence or the Minister for Communications, Marine and Natural Resources - decides to make public and freely available information about the number of overflights by military aircraft in Irish airspace from different countries, as Ministers have done for some time. Obviously this week and next week, with the war going on, the Cabinet will be meeting and, I presume, will be discussing in a detailed and serious way the question of access to and overflights of Shannon Airport by US military forces. To follow up the point that you made, Chairman because it is an important point, if this new Bill is enacted as proposed, it will be possible for the Secretary General of any number of Departments to decide to issue a certificate exempting the overflight information, even though it has been the practice up to now to give that information either in response to Dáil questions or directly to the media as briefing.
A certificate by the Secretary General applies only to the release of information under the Freedom of Information Act. It does not apply to information being released on the Dáil record or through a variety of other mechanisms.
My point is that a Secretary General of a Department will be entitled to take the view that this is such sensitive material pertaining to our security and so on in a time of war that he or she should issue such a certificate, in which case it would then be for the relevant Minister to disagree with it. The point is that if these changes go through as proposed, the relationship between a Minister and Secretary General will change significantly. The Secretary General will have the power to issue a certificate, even though a broader political view might be that it is politically appropriate. This is because politicians can often be more open than civil servants who, by nature, might be more cautious.
The only point I would make is that the certificate would prevent the release of information on foot of a freedom of information request, but it would not prevent a Minister releasing the information through other mechanisms outside the Freedom of Information Act.
We have arranged a separate briefing with Department of Finance officials for 4.00 p.m. and I do not think it is fair to ask visitors to give possible legal interpretations. We understand what the Deputy is saying. At the briefing with the Department of Finance officials at 4.00 p.m. we can put questions directly to them about how they see the proposed changes working. They might not give us the reason it is proposed; they are here to tell us what it will mean. I will allow Senator Higgins to intervene briefly and then I want to conclude because there are two other groups who have been invited.
I apologise for being late for the meeting.
A good example of what Deputy Burton talked about is an experience I had during the last Administration when I sought information from the Minister for Public Enterprise about a contract which ESB International had negotiated with the Polish authorities for the take-over of power plants in the Gdansk area. It was a lucrative contract.
I wanted to get access to the files. I had information to the effect that the Taoiseach had been less than accurate in the information he had imparted to the Dáil on the matter. I sought two files: the file from the Department of Public Enterprise; and the file from the Department of Foreign Affairs because the Ambassador in Poland was negotiating and lobbying on behalf of the ESBI bid and tender. It looked as if ESBI was about to get the contract and the plug was pulled on it at the last minute. I got an extensive file from the Department of Public Enterprise but when it came to the Department of Foreign Affairs, I got a point blank refusal on the basis that it would damage international relations.
If the new legislation goes through, what would certainly happen is that the Secretary General of the Department of Foreign Affairs would issue a certificate blocking the Department of Public Enterprise from giving me access to the file, which was extremely informative and elaborate in its detail and where literally nothing was erased. That is an example of what will happen if the current legislation goes through.
I concur with you on that.
The review of the Freedom of Information Act 1997 by the high level review group does not consider the FOI Act as rights legislation, according to the Irish Council for Civil Liberties. The ICCL stated that the group does not place the citizen's right at the heart of the review.
The Department of Finance has given us the impression that this is simply a housekeeping exercise in relation to Cabinet records and it has little effect on the general public, but the ICCL seems to place the Act at the centre of democratic rights of the general public. Perhaps it would even go so far as to say that this will have a greater effect on the public than on the media or on Opposition Deputies like myself trying to get information.
I put this question to the Information Commissioner last week. There were approximately 44,000 submissions made in the past five years. If these amendments are made, does the ICCL see them having a profound effect on the public's access to information or only a slight effect? Overall does the ICCL consider this is bad legislation for civil liberties?
Ms Reidy
We have set out in our paper, and it is not something that I would wish to water down, that we consider that the Bill, if implemented, would have a detrimental impact on the rights to information currently enjoyed by citizens. It is perhaps the fundamental misconception of what freedom of information is about to suggest that one can make housekeeping changes to the Act and not have a direct impact on the individual's right to access.
More than 60% of FOI Act requests come from individuals. It is not simply a matter of requests for personal files about records containing their personal information and addresses. These requests relate to information which concerns them, their families or their neighbourhoods. That is the sort of information to which people get access. When they do not exercise the right themselves through an individual request, they rely on representative groups like us, environmental organisations, other voluntary organisations and local and national elected representatives to exercise those rights on their behalf, or they rely on the media. People can simply rely on the media to access information so that they can make informed decisions about how they vote or whether they will take action on some issue.
None of these amendments suggests broadening the scope of the FOI Act, for example, to allow members of the Garda Síochána greater access to records which they are currently denied. Each one of them suggests the further exemption of a category of documents or changing the discretion to grant people information under FOI to a mandatory refusal and to re-balance the public interest tests. Each one of the amendments will restrict one's right of access to information under the FOI Act.
There is no other interpretation to the Act. Looking at each of the amendments from the perspective of the expert commentaries of the Information Commissioner and of Dr. MaeveMcDonagh, we have no difficulty in coming to the conclusion that this Bill will have a negative impact for individuals.
The media will find other ways of getting information. That is their job, as investigative reporters. The individuals will then be left with one right of access.
Perhaps this follows on from the exchange. It was said that there may be information made available through parliamentary questions and in other ways. It is a matter of Government policy and discretion to put that information in the public sphere. Once one makes the changes proposed in this Bill, it is cutting off the legislative framework. It is cutting off the right of access of individuals and the rights based approach set down in legislation for individuals to get information or to ask people to justify why that information is not available to them. Once one takes away some of the scope of that right, which the amendments propose to do, we automatically go back to Government discretion and policy, and deny citizens their right of access, their rights based framework within which to exercise their participation in the democratic process and in democratic decision-making. That is why we have been so vocal and so concerned about the extent of the amendments in the Bill.
In the past week we heard little or nothing about many of the issues the ICCL raised. There was much emphasis put on how the Act affected the working of Cabinet and how it affects Ministers discussing issues between themselves. We on this side of the House also raised the point that many of these committees that respond to Ministers will also be given a blanket exemption under the Bill. The ICCL has clearly stated here that the far more important issue is how it will affect the rights and civil liberties of so many Irish citizens. This has not really been highlighted as much as one would have expected.
I thank Ms Aisling Reidy and Mr. Liam Herrick for their informative briefing and for their patience in bearing with us from the last day.
The witnesses withdrew.