The next item on the agenda is No. 4. This is a review of section 32(2) of certain provisions of the Freedom of Information Act 1997. I suggest we invite the Ombudsman, Ms O'Reilly, and possibly the Secretary General of the Department of Finance to come before the committee to allow it to pose questions and investigate these matters further.
Business of Joint Committee.
My understanding is that this is an area where the committee has a statutory responsibility to review the way in which Departments are using what might be called "back-door" methods to avoid providing citizens with information to which they may be entitled under the Freedom of Information Act. Effectively, various Departments are using their own primary legislation to create exemptions from FOI. The Information Commissioner has drawn attention to 150 cases where, effectively, new provisions have sought to narrow down the scope of freedom of information. In her document she speaks of a culture of secrecy that is still prevalent. There is an important issue here, quite apart from the new measures introduced by the Government in 2003, to which I objected at the time, in that there are many new reasons for refusing requests for information and removing tests for requiring reasonable grounds when one claimed secrecy and requiring time limits where it applied. There was a generally unwelcome erosion of freedom of information. That was a political decision of the Government which I would not accept but quite apart from that——
It is the Deputy's intention to reverse?
We have pledged to reverse it. The point being made by the Information Commissioner is that quite apart from the statutory provisions of that Act which were objectionable in many ways, there is a back-door method in place. As a committee we have a role to examine the cases that have been used and to make recommendations to the Oireachtas to protect the right of citizens. There is more involved in this issue than simply hearing the views of the Information Commissioner and the Department of Finance and going off happy that we have done our job. We have a role——
That is an initial step. We must have the entitlement to review under section 32 and report to the Dáil.
My understanding is that we will have to go through some of this material and review decisions and positions taken by Departments to determine whether they are in accord with the intention of the Oireachtas in this area. There is a little more to this than simply having one meeting. I suspect that with the help of advisers who are expert in freedom of information provisions, we will have to go through some of those with a fine tooth comb and come up with views and recommendations.
I understand the aim of this provision was to reduce the number of acts eligible for non-disclosure. However, it has been used by the current Government, particularly since 2002 when there was a major row-back by Fianna Fáil and the Progressive Democrats and an assault on the concept of freedom of information, to increase the areas not subject to freedom of information legislation, of which we have 50 examples as detailed by the Information Commissioner in her valuable report. It must be pointed out, however, that the Information Commissioner only got notice of that when a member of the public tried to get information from the Health and Safety Authority and found that new health and safety legislation introduced in 2004 had been used to sneak in restrictions on FOI applications to the HSA. There are 50 other cases where that has happened.
It is interesting to note also that the Public Service Management Act relating to the process of negotiating strategy between a Minister and a Secretary General, which was introduced in the past year or so as part of public service reform, has added a whole new area which is no longer subject to freedom of information legislation, on the sly. The public service benchmarking body set up by the Department of Finance, which is currently undertaking the beginnings of stage 2 of benchmarking, is exempted from freedom of information legislation. Essentially, that means that the members of the benchmarking body can tell us what they choose to tell us. My understanding is that they have destroyed all the publications and copies of documents on how they came up with the comparators they used for pay increases in the private sector. One can pick a theory that might explain how benchmarking increases applied.
I agree with Deputy Bruton that this committee must take a more proactive role in terms of its statutory responsibilities under FOI. I am not sure how other members view this suggestion but we could demand of the Minister for Finance, who is responsible for FOI legislation, that we be notified of any new legislation containing non-disclosure provisions. The Department of Justice, Equality and Law Reform, for instance, routinely slips in non-disclosure provisions in every item of legislation that comes from the Department. When another committee is dealing with a detailed part of legislation, it can be difficult to spot that one of the many amendments exempts a particular item of legislation or bodies from FOI legislation. When that happens, that committee should send that part of the legislation to the finance committee to allow it to examine the FOI implications. That could be done under a Standing Order. The Information Commissioner could be referred to also in respect of all legislation going through the Houses which pertains to FOI.
Of the 50 references, most relate to legislation or regulatory changes post-2002 where the opportunity was taken, as in the Health and Safety Authority example, to exclude the authority from FOI legislation. Until then, in the case of personal accidents and so on, people could go to the HSA and examine the files that had been subject to investigation by the HSA. However, that was closed off in 2004 and we now have the astonishing position where, for instance, the Adoption Board, the new Private Security Authority and all the bodies that were the subject of updated legislation have been rigorously and systematically excluded from freedom of information legislation. Not only did we have the seven or eight Sir Humphreys in here explaining the reason they had to close down and destroy, on the orders of this Government, freedom of information facilities, we also have an ongoing process.
I propose that this committee should examine changes in Standing Orders in terms of the way legislation is handled so that the committee is advised, on a routine basis, of all legislative changes which include references to FOI because almost all those references are to shut down the FOI facility. Similarly, the Information Commissioner would be informed, when changes are going through that refer to FOI, to ensure her office would not be in the position whereby a member of the public had to alert her office.
The reply of Government was interesting. It said that it is up to the Information Commissioner to find out if bodies are excluded. That is hardly collaboration in terms of a very important office for the State. I make that proposal, although I am not sure how the committee would proceed to implement it. I agree with inviting in the Information Commissioner but the political responsibility for this area lies with the Minister for Finance. He should be sitting across from us. If anybody is to be called in to discuss this issue, it should be the Minister for Finance. He sets the policy and his Government has closed down the freedom of information facility. It is a joke in terms of the charges, the restrictions and now the various items of legislation, 50 in total, that are being excluded from FOI legislation. What was an open door society in this country is gradually being closed down. That is the reality.
The reason I mentioned the Information Commissioner was that she produced the report——
She produced a great report.
——and the least we might do is invite her to the committee and go through the report with her. We owe it to her to do that.
It would be valuable to call in the Information Commissioner but the report contains such bold statements I cannot understand how she could elaborate on them. The report states that in mid-September her office became aware that the FOI Act had been amended by the Safety, Health and Welfare at Work Act 2005, but there was no statutory obligation on the Government to tell the commissioner about that. Having her here to restate that will not change anything because it is a fact. It depends on one's viewpoint, in terms of freedom of information, whether that fact is significant and for me it is very significant. I am sure that is the case for most members. The Information Commissioner has given us some ideas on how this problem could be remedied that will not necessarily be advanced further by her coming before this committee. For example, her report states that the FOI Act could be considerably strengthened by a creation of a new non-disclosure Act. That is an eminently sensible suggestion. I thought the Freedom of Information Act embodied only that, but clearly that aspect is only 50% of the picture. The other 50% of the scope of the Act relates to circumstances where information is not to be disclosed. Provisions to deal with that aspect of the legislation need to be made in a global way, so to speak. Adopting a scattergun approach whereby each Bill is adjudicated on and a request for freedom of information under it is almost an afterthought highlights a deficiency.
Members of this committee will have to continue to go through these lists of non-disclosures unless a framework is put in place setting out the rules governing non-disclosure. That is the thrust of what is stated in this report. The point is made repeatedly in it that the safeguards in the FOI Act are more than adequate to respect these obligations. That is stated on documentation issued by almost every Department. Clearly, there is a deficiency in the legislation and I cannot see how it can be addressed by the committee engaging in dialogue with the Information Commissioner. We deal with the issue of principle, namely, how to overcome this difficulty for future years. That structural weakness is being "used and abused" by way of an opt-out clause.
The committee has an entitlement to report to the Dáil. It can incorporate Ms O'Reilly's report in its consideration and add to it or otherwise. It is the responsibility and the entitlement of the committee to do that. I am not taking from that entitlement in my suggestion that the committee should have the benefit of Ms O'Reilly's report being discussed here. I am sure that would help the committee in its submission to the Dáil, which is its entitlement to make under section 32 of the relevant legislation.
Prior to making a substantive contribution, I wish to ask a procedural question. When the Vice Chairman spoke of making a report to the Dáil, was he referring to the select committee or the joint committee?
The joint committee.
The joint committee can make a report to the Dáil.
It is part of the responsibility of, or an opportunity afforded to, this committee to review the matter and report on it to the Dáil.
I have always been in favour of freedom of information legislation. When I was an adviser to the then Taoiseach, Albert Reynolds, I remember encouraging him to give positive answers to questions on this issue in the Dáil, although at that stage the legislation was only at a general level. With the legislation having been in effect for seven or eight years, inevitably people are bound to be feeling their way in regard to it and to how it applies to new areas.
We have a considerably more liberal FOI regime, even with the changes, than has the UK, certainly in terms of what may or may not be disclosed. I admit to not having been particularly thrilled in 2002 when some of the charges imposed were pitched very high, although I was not against the principle of imposing some charges. I said at the time that I would not like to see any further time extensions of exemptions over the ten year period.
There have been considerable extensions of FOI legislation through a raft of bodies and organisations to which it was not originally applied. At the risk of sounding like the Sir Humphrey character referred to earlier, we must be realistic about the deliberative work of Government and its work in sensitive areas. Private organisations, businesses, firms and even newspapers do not have remotely the openness to information that a Government is required to have. A problem that is not always appreciated is the dynamic effect the application of FOl legislation to something can often have and the changes in practices to which that leads. It leads to civil servants being much less frank on paper. I was a member of an important committee that decided to change the format of its minutes once FOI legislation was introduced in order that it would no longer contain discussion which was interesting and valuable but would be reduced to agreed conclusions.
Reference was made to benchmarking. At a pragmatic level, the benchmarking exercise was successful. If those reports had been released and published, endless argument would have ensued about the basis for the relativities decided. The reality is that the trade unions accepted the results of the benchmarking exercise and it was successful from that point of view. Whether a second benchmarking exercise should be conducted in that way is another issue.
Reference was made in earlier discussion to the Private Security Authority, which happily has been set up in Tipperary town — "decentralised" is probably the wrong word. Does one realistically think that the decisions it reaches in regard to particular security firms or bodies should be subject to FOI legislation? I do not understand that.
There is an over-simplistic view that freedom of information is always good, non-disclosure is always bad. That is crude way, to the point of caricature, of presenting the picture. Non-disclosure can often be in the public interest while freedom of information can, on occasion, be contrary to the public interest.
I am glad that we have, by European standards, a reasonably liberal FOI regime. It is open to discussion and amendment at the margins as we proceed, but to think that we would get everything perfect immediately is perhaps unrealistic. I apologise for the state of my voice.
It is all the canvassing. The Private Security Authority, located in Senator Mansergh's area, basically regulates bouncers and private security firms. I need not remind the Senator that this authority, as in the case of the Health and Safety Authority, has had to deal with recent unfortunate incidents. In almost every town, village and street in Ireland there are fights at weekends outside chip shops and pubs, and a number of those have involved bouncers and other members of the public, often young men. The private security industry has had a significant cowboy element down the years and dreadful incidents have occurred. From time to time there have been dreadful incidents, including loss of life, where bouncers ran amok. I can tell Senator Mansergh about that scenario where grieving parents are left not understanding what happened to their children who went for a night out — with no evil intentions, although they may have taken a few drinks — and ended up badly injured or dead. Such cases have occurred in regulated areas involving bouncers who have been part of the incidents.
We all hope that will be a declining factor with proper training in the security industry and given the various things the authority is meant to do. It is appalling, however, that records of the security authority will be privileged and, where it carries out an inquiry, will not be available either to individuals who may have been subject to an attack or assault by bouncers, or to their parents or other family members. That is a dreadful ruling and is on a par with everything done in the Department of Justice, Equality and Law Reform. If the body was being regulated, for instance, by the Department of Education and Science or the Department of Health and Children, I am confident that no restriction would have applied other than the normal ongoing matters. Once an investigation is undertaken, few Departments are as absolutely and utterly restrictive in their approach to freedom of information as the Department of Justice, Equality and Law Reform.
There is a strong argument for the body being subject to the Freedom of Information Act. When bodies are subject to the Act, people can obtain information about their activities and it increases the sense of accountability enormously. I do not often disagree with Senator Mansergh but I beg to differ in this case.
May I come back on that point quickly?
We cannot go back and forth for a long time on this matter.
I do not think the Department is seriously subject to the Freedom of Information Act in its core justice functions, as opposed to its equality and law reform functions. I do not know how many justice ministries or home offices in the world are seriously subject to freedom of information legislation. In talking about bouncers up to April this year, Deputy Burton is referring to an unregulated industry.
I am hoping it will get better.
We are talking about the future rather than the past. It still seems to me that, in general anyway, decisions on licensing particular firms are not particularly subject to freedom of information constraints. Obviously, in what one might call grave security scenarios, those files would have to be made available to the Garda Síochána. If the finger was being pointed and the question posed as to why X was licensed, it would presumably be incumbent on the PSA to provide some justification. Deputy Burton examined that point but I am not sure if the solution is to make the PSA generally subject to the Freedom of Information Act.
Deputy Bruton wished to comment further.
Yes.
As there is a Dáil vote coming up, perhaps we could wrap it up.
It is clear that there is substantial disagreement on various matters between the Department and the Minister on the one hand and the commissioner on the other. The list includes the Ethics in Public Office Act, the Public Service Management Act, the National Pension Reserve Fund and the National Development Finance Agency. There is another list under health matters. The committee must make a recommendation, "Yes" or "No", on a number of net decisions.
From my reading of section 32, there is effectively a duty on us to conduct a review. These reports are provided for us on a five-yearly basis in order that we can conduct such a review. We will have to bite the bullet and invest time or obtain assistance to advise the Oireachtas on these differences of opinion. It will not be an easy task and I do not know how we will master it because it stretches across so much other legislation.
However, there is a serious task ahead of us. As the Vice Chairman said, we could start with the first step by getting in the information commissioner to advise on how we can address this issue. On the last occasion, she pointed out that a general election prevented the review from occurring. Therefore, it is the first time this will have been done.
On the last occasion, the committee invited the commissioner to make a report. For that reason, I thought it was appropriate to invite the commissioner and go through her report. It is the entitlement and responsibility of the committee to make recommendations and it is the committee's business whether it takes on board the commissioner's report or incorporates it into its own report. The Secretary General might give some insight into how some of the decisions were reached. I thought it appropriate that we might invite him also. Ultimately, however, it is the committee's business to report to the Dáil and we have that entitlement under section 32.
It is essential to hear both points of view — the commissioner's and the Secretary General's.
Can we take that as being agreed? Unless there is any other business very quickly, we have to attend to a Dáil vote. The joint committee will now adjourn. The select committee will meet at noon on Tuesday, 21 February, when it will consider the Finance Bill 2006.
The joint committee adjourned at 5.25 p.m. sine die.