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Thursday, 16 Mar 2006

Freedom of Information Acts 1997 and 2003: Presentations.

On behalf of the committee, I welcome Ms Emily O'Reilly, Information Commissioner, and thank her for attending. Before we commence, I advise her that while the comments of members are protected by parliamentary privilege, those of visitors are not so protected. I remind members that they should not comment on, criticise or make charges against any person outside the committee or the Houses. We will commence with a short presentation by Ms O'Reilly. This will be followed by an open discussion with members of the committee.

Ms Emily O’Reilly

I thank the Chairman for the invitation to attend and affording me the opportunity to assist in the joint committee's deliberations.

There has been considerable public interest since early January in the committee's review under section 32 of the Freedom of Information Act. For the avoidance of any confusion that may have arisen as to what exactly is involved in the committee's review, it would be helpful to set out, in broad terms, the nature of the exercise in which the committee is engaged and to identify my own role, as Information Commissioner, therein.

The joint committee is conducting a review of statutory secrecy or non-disclosure provisions. More than 150 such provisions have been identified in the documentation already before the committee. Following the review, the committee may recommend to the Houses of the Oireachtas, in regard to any or all of these provisions, that it should continue in operation, that it should be repealed, that it should be amended or that it should be included in the Third Schedule to the FOI Act, that is, made subordinate to the latter.

The statutory basis for the committee's review is section 32(2) of the FOI Act 1997, which stipulates that, in conducting the review, the committee should have "regard to the provisions, purposes and spirit" of the FOI Act. It is important to be very clear as to the significance of including a statutory secrecy provision in the Third Schedule to the FOI Act. Section 32 of the FOI Act provides that a request for a record must be refused where disclosure of the record "is prohibited by any enactment" or where non-disclosure is authorised by such an enactment in certain circumstances and those circumstances apply in the particular case. In other words, the starting position is that secrecy provisions in existing legislation must be respected when records are requested under the FOI Act. However, section 32 limits the application of this exemption by providing that it will not apply in a case in which the statutory secrecy provision is specified in the Third Schedule to the FOI Act. This changes the starting position.

Including a secrecy provision in the Third Schedule does not mean, however, that the provision is set at nought. What it means is that, in the context of deciding on an FOI request, the decision will be taken by reference to the Freedom of Information Act which contains substantial exemptions or protections rather than the particular secrecy provision. While inclusion of the secrecy provision in the Third Schedule renders it subordinate to the FOI Act, this is relevant only in the context of dealing with an FOI request. Outside of the FOI Act, the secrecy provision continues to operate as usual.

The passage of the FOI Act in 1997 caused the Oireachtas to consider the matter of statutory secrecy provisions generally and to decide that it was necessary, from time to time, to review the continuing need for such provisions. This is the context in which the committee's work in this area is being conducted.

There are three distinct stages in the overall review process. The first stage is that each Minister of the Government provides a report for the committee which identifies secrecy provisions in legislation that confer functions on the Minister or on a public body in respect of which functions are vested in that Minister; and gives the opinion of the Minister as to whether, in the case of each such provision, it should be repealed, amended or included in the Third Schedule to the FOI Act. It is relevant that, in conducting this exercise, Ministers are required to have regard to the provisions, purposes and spirit of the FOI Act. Copies of such ministerial reports must be laid before each House of the Oireachtas and also provided to the Information Commissioner.

The second stage is that I, as Information Commissioner, examine the various ministerial reports and give this committee my opinion and conclusions on each such report. I am also authorised to comment on any matter contained in or arising out of such a report or any matter relating to or arising out of the operation of section 32.

The third stage is that this committee considers the reports provided in the first two stages and produces its own report for presentation to the Houses of the Oireachtas. The committee's report may, where it considers it appropriate, include recommendations as regards any or all of the statutory secrecy provisions as to whether they should be amended, repealed, continued in operation or included in the Third Schedule to the FOI Act. I take it that today's meeting of the committee is in the context of the third stage of the overall review process.

Section 32(6) envisages that the first such review would start not later than 12 months following the commencement of the FOI Act and that subsequent reviews would happen every five years. To date, no such review has been completed and, for this reason, I believe it is important that, eight years after the commencement of the FOI Act, the review should be completed this year.

The report I have submitted to the committee is necessarily detailed. It might be helpful to outline the overall approach I have taken in considering the ministerial reports. As a general proposition, I take the view that all of the secrecy provisions should be subject to FOI — that is, included in the Third Schedule to the FOI Act — except where there is a clear case for exclusion. To the best of my knowledge, the enactment of the FOI Act represents the only detailed consideration by the Oireachtas in recent times of the issue of secrecy as regards information held by public bodies. The FOI Bill was introduced following a comprehensive consultation process involving all Departments and the Oireachtas. Unusually, the heads of the Bill were referred to the Oireachtas Committee on Legislation and Security in advance of it being published. Debate on the Bill in the Dáil and Seanad was extensive and detailed.

In enacting the FOI Act, the Oireachtas set out an approach that balances the public's right to know with the need for public bodies to maintain secrecy in certain situations. I would guess that few, if any, of the secrecy provisions now being considered by the committee have received anything like the level of Oireachtas attention that was given to the FOI Act. More than 30 of these secrecy provisions are in the form of regulations that are unlikely to have received any Oireachtas consideration. In these circumstances, I think it is reasonable to take the FOI Act as the standard and as representing the distilled wisdom of the Oireachtas on the matter.

There are some who distrust the Freedom of Information Act, who feel freedom of information has "gone too far", that it is being used by people pursuing particular agendas and that the Act needs to be "reined in". I have heard the argument, on more than one occasion presented in very reasonable tones, that people should not assume that the release of information by public bodies is always a good thing. It is true that the release of information can, in certain instances, be counter-productive or even downright dangerous. What those who are hostile to freedom of information generally omit to say — in some cases this may be due to genuine lack of knowledge of the Act — is that the Oireachtas has anticipated this matter and made very explicit provision to protect information the release of which would be damaging in a fundamental way.

It is important to recall that the Freedom of Information Act does not apply at all to certain types of record, for example, non-administrative records of the offices of the Director of Public Prosecutions and Attorney General, records relating to the President and certain records held by the courts. Furthermore, the Oireachtas recognised the need to protect key interests where release of information might be damaging to those interests. Part III of the Act has specific exemptions to protect records of Government, records relating to security, defence or international relations, records disclosing information which is commercially sensitive and so on. Several of these are mandatory exemptions. For example, the exemptions for Government records and for certain records relating to security, defence or international relations are mandatory.

In addition to these protections, section 25 of the Act enables a Minister of the Government, in certain circumstances, to issue a certificate to the effect that a particular record is an exempt record and that no further appeal in regard to that record is possible. A certificate of this kind may be issued in the case of records captured by section 23, relating to law enforcement or public safety, or section 24, relating to security, defence and international relations. I understand that, as at the end of 2005, three such certificates were in existence, all issued by the Minister for Justice, Equality and Law Reform.

I suspect that the full extent of the exclusions and exemptions provided for in the Freedom of Information Act are not widely understood. I am not aware of any instance in which the correct application of the Freedom of Information Act has resulted in the release of records whose release caused more harm than good. Moreover, as has often been said, the fact that release of a record may prove embarrassing is not a relevant consideration.

In this context, I note one of the recommendations made by Judge Harding Clark in her excellent report The Lourdes Hospital Inquiry. The judge recommends that the Department of Health and Children "should introduce legislation to protect clinical governance records and risk management clinical incident report forms from the application of the Freedom of Information Act." This recommendation is based on the view that unless "these documents are protected from FOI or discovery they are unlikely to be created and opportunities for learning from mistakes will be lost." I cannot agree with this recommendation as I believe the exemptions in the Freedom of Information Act are sufficient to protect what is, I agree, a very important public interest.

In the introduction to my report, submitted to this committee last December, I touched on a number of issues concerning the Freedom of Information Act and the need for secrecy provisions generally. I will be happy to comment further on these if required.

One matter I wish to raise is that of extending the Freedom of Information Act to as many public bodies as possible. For information held by public bodies to remain secret, it is not necessary that the information be protected by a statutory secrecy provision. Where the public has no right of access to such information then it is, effectively, secret. In the case of the public bodies which are not covered by the Freedom of Information Act, the records they hold are, for all practical purposes, secret.

In my report I welcome the announcement last October by the Minister for Finance of his intention to bring an additional 109 public bodies within the scope of the Freedom of Information Act. This, I understand, will happen some time later this year. However, it is the case that, even after this extension, a significant number of public bodies will continue to remain outside the Act. I am not aware of any pressing reason for the continued omission from freedom of information of bodies such as the vocational education committees, the Central Applications Office, the State Examinations Commission, the Adoption Board, the Garda Síochána, those bodies dealing with asylum applications, the Central Bank and Financial Services Authority and the State Claims Agency. In the case of the Garda Síochána, it is worth bearing in mind that in other jurisdictions police forces tend to be covered by freedom of information legislation in the normal course. I understand that under the Freedom of Information Acts in the UK, including Scotland, the police are subject to the Acts on the same basis as are all other public bodies to which the Acts apply.

I am concerned that the Minister's October announcement may be seen as a final round-up, so to speak, and that further extensions may not be planned for some time, if at all. This is a matter in which, I would hope, this committee might take an interest. I thank the committee.

I thank Ms O'Reilly.

I thank the Information Commissioner for a useful introduction and an interesting report. I was struck by Ms O'Reilly's comments in the report that there is still a culture of secrecy within parts of the public service. What are her views on how we can address that specific matter? Ms O'Reilly outlined a number of exclusions to the Act, such as the Garda Síochána, IFSRA, the VECs and the Adoption Board. Is the Information Commissioner consulted on whether these bodies should be brought under the Freedom of Information Act? Is there a process under which the extension of the Act to these bodies is under consideration or will they happily remain undisturbed until the Minister for Finance decides to examine them? Is there an ongoing process to extend the boundaries of the Freedom of Information Act? If so, does the Information Commissioner have an input on how is it developing?

In her report, Ms O'Reilly stated that 78 of the 150 non-disclosure items were recommended by Ministers for exclusion from the Third Schedule and remain secret, and 29 of those 78 items were enacted since 1997. The Oireachtas did not give a great deal of attention to the process of creating by stealth new areas of exclusion. Will Ms O'Reilly instance what those 29 items are? How did they creep in under the defences? Ms O'Reilly commented that she was not consulted in any shape or form. Should this committee recommend statutory consultation with the Information Commissioner on new provisions as a minimum?

It is clear where the roles of the Information Commissioner and the Minister for Finance and his Department deviate on legislation on ethics in public office, the Public Service Management Act, the National Pensions Reserve Fund and the National Development Finance Agency. Do the roles of the Information Commissioner and the establishment deviate in generic areas? It will be difficult for the committee to go through all these provisions. Do the cases where Ministers continue to insist on exclusion and Ms O'Reilly takes an opposite view have general themes? Identifying such areas would reduce our workload and allow us make a net decision on recommending the generic categories that ought to be included in the Third Schedule and be considered within the terms of the Freedom of Information Act.

Those are my main questions. When we hear what Ms O'Reilly states on how we should structure our work, I will have more to ask. This is a first for me and the committee. We will not be able to replicate the depth of analysis that Ms O'Reilly put into her report. It must be drilled down to certain principles on which we can make decisions and which will form the basis for specific changes to be made.

Ms O’Reilly

The simple answer to Deputy Bruton's question is that I am not consulted on legislation to put certain bodies or Acts outside the purview of Freedom of Information Act. The most prominent example of this was when health and safety investigations were placed outside the remit of the Act by means of legislation, which, as I indicated in my report, we did not know about until somebody walked into the office to tell us that it had happened.

These decisions are put into effect either through primary legislation or by means of regulations introduced by the Minister in circumstances where such legislation is not required. It is difficult, therefore, to obtain an overview of the issue and there is no one place where one can discover what is happening with the Freedom of Information Act or why a provision was added or removed from the Third Schedule.

I have made a number of recommendations on the issue, one of which is that an FOI audit procedure should be stitched in at the drafting stage of any future non-disclosure provisions. In practice, this would mean that the procedures surrounding the drawing up of the draft heads of Bills would include full consideration of their projected interaction with the Freedom of Information Act. Another recommendation is that this committee should be consulted when changes to the Act are being made. I also suggested the creation of a new non-disclosure Act, which would encompass all the secrecy provisions and lay down principles by which sections of legislation or the workings thereof may be deemed secret. It appears that a scatter-gun approach applies to this issue and that Departments are responding individually, without oversight or measurement of the principles of the Freedom of Information Act. It is a pity that my office is not consulted when this is being done.

The deviation between my views and those of various Departments comes down to differing opinions on the Act. Departments rationalised the removal of particular public bodies and legislation from the Third Schedule by claiming to balance the public interest with rights to confidentiality and commercial secrecy. Sometimes it appeared that they were quoting from the Freedom of Information Act, which, essentially, tries to balance these concerns.

Deputy Bruton mentioned the Ethics in Public Office Act. The submission by the Minister for Finance on that Act recommends that the non-disclosure provision should not be amended, repealed or included in the Third Schedule but should be allowed to continue in force. In giving its reasons, the submission states that the provision seeks to strike a balance between a person's right to privacy and his or her good name, securing the effectiveness of investigations or hearings and the need for transparency and accountability. It further states that the essential purpose of the provision is to secure the process and effectiveness of investigations and appropriately observed privacy rights and that this is fully consistent with constitutional provision and the public interest. However, the exclusions, exemptions and protections provided in the Freedom of Information Act 1997 mirror that recommendation. Section 20 of that Act protects the deliberative processes of the public body, section 21 forbids the release of records that could prejudice the effectiveness of test examinations, inquiries or audits or disclose positions taken and section 23 makes provision with regard to the prejudice or impairment of the prevention, detection or investigation of offences.

The Freedom of Information Act was not rushed through. Much work and deliberation went into successfully striking that balance. Despite this, much of the rationale for leaving out issues is to protect particular interests, for example, the commercial secrecy surrounding genetically modified organisms. Those interests are protected with the caveat that there is a public interest test in the case of many of the exemptions, rightly so.

To illustrate the opposite, will the Information Commissioner give an example of her agreeing to exclude information? On the same list she mentions the Ombudsman Act where they both agree on certain exclusions. On the National Treasury Management Act, she provides for the status quo. On the occasions on which she decided to provide for the status quo, what was wrong with the Freedom of Information Act?

Ms O’Reilly

Because the Ombudsman's investigation process is excluded under section 46 of the Act, that issue does not arise. If it were not excluded under section 46, it may have been excluded from the Third Schedule.

What about the Central Bank Act and the Trustee Savings Bank Act? Are there categories for which the FOI Act is not a suitable vehicle?

Ms O’Reilly

Regarding the Commission to Inquire into Child Abuse Act, for example, I recommend that the non-disclosure clause on the confidential committee should remain outside the Third Schedule because it is a sensitive area. The information people are giving is personal and sensitive and for those who opt to go before the confidential committee, it is a significant matter. I acknowledge that any possibility that their information could be released into the public domain could cause further distress. My reasons for agreeing with the Departments fall into four categories, the first of which is provisions that should not have been identified as relevant non-disclosure provisions such as censorship provisions. The second category is the one I mentioned, provisions, the exclusion of which from the Third Schedule is justified on the basis of providing comfort for individuals who have given particularly sensitive personal information to a public body. Among the items in this category are the relevant provisions in the Adoption Act, the Commission to Inquire into Child Abuse Act, the Stillbirths Registration Act and the Children Act 2001. The third category is provisions, the inclusion of which in the Third Schedule would have no practical effect such as the Ombudsman Act and the Waiver of Certain Tax, Interests and Penalties Act 1993, which is irrelevant because it predates the Freedom of Information Act.

What is the fourth category?

Ms O’Reilly

Some issues are borderline in terms of whether they should be included in the Third Schedule. For now I am happy to exclude them. I do not have a list to hand.

Mr. Fintan Butler

There is a list of provisions which the commissioner felt could be excluded from the Third Schedule but which should be considered in more detail later. This is on the basis that priority provisions should be dealt with, while borderline provisions deserve separate attention, but not necessarily now. This was on the basis that there were, so to speak, priority provisions which should be considered and dealt with now, and that other more borderline situations would perhaps deserve to be dealt with separately, but not now. It is a question of identifying the more important provisions and dealing with them at this stage.

The fourth category is of instances where one might go either way. It includes for example the Patents Act, 1992, the Transnational Information and Consultation of Employees Act, 1996, the Trustee Savings Bank Act, 1989 and so on. I could supply the list at a later stage but do not have copies to distribute now.

Regarding the exclusion of the Garda Síochána, which Ms O'Reilly said should come within the FOI Act, is some assessment occurring somewhere in the system?

Ms O’Reilly

Not that I am aware of, although I know comments have been made about whether the Garda Síochána should be included. I may be wrong, but I believe the Minister has said it will not be included. It is interesting to see what is happening with similar and relatively new legislation in the UK, including Scotland, whereby the police are included just like any other body is included. The Scottish Information Commissioner, Kevin Dunnion, was in Dublin recently to discuss various issues and complimented the Scottish police on how co-operative they had been with his office. They fight their corner with regard to the Freedom of Information Act but Mr. Dunnion has found a great deal of co-operation. Investigations would be protected. The FOI Act is not in place to do harm. If used properly it is not capable of harming a public interest, which is why all those exemptions are provided.

Mr. Butler

Last October the Minister for Finance published a list of 109 bodies which he proposed to bring within the FOI Act. That list seemed to amount to a final round-up and did not include the Garda Síochána. We know of no proposal to include the Garda Síochána at this or any stage.

In her submission this morning, the Information Commissioner said she feared the most recent statement of the Minister for Finance seems to be a final trawl through agencies which might be included under the Freedom of Information Act. Can Ms O'Reilly give a ballpark figure of other agencies, outside that list, which she feels should come under the remit of the Act? Her report to the committee seems to indicate that most disagreements regarding the areas Ms O'Reilly thought could have been covered by the Freedom of Information Act are with the Department of Justice, Equality and Law Reform and the Department of Health and Children, who feel such areas should not be covered. Is there any particular reason resistance seems to be strongest in those two Departments? I may be misreading the trend but there seem to be many areas of disagreement with those Departments. Does this represent a culture which is more predominant in those Departments than in any others?

Without trying to undermine any appeal being taken by Ms O'Reilly's office, on the principle of freedom of information being used to refuse a formal request for information already put into the public arena by other means, is that a valid use of the Freedom of Information Act? As Information Commissioner, what role can Ms O'Reilly play in those circumstances?

Ms O’Reilly

I think I know the issue to which the Deputy refers and believe an appeal is pending. Therefore, the Deputy will have to wait until I see the records on the matter and the arguments involved before I make a decision or a public comment on that matter.

I understand that approximately 100 public bodies are not included, but I do not have the list with me. I examined those bodies that tend to hold information very important to the public and that have a great deal of interaction with it. That is why, in the opening statement, I jotted down the vocational education committees, the Central Applications Office, the State Examination Commission, the Adoption Board, the Garda Síochána and so on. Other bodies are included, and there is in any case not that much public interaction, so there may not be great interest in obtaining records from them. Deputy Boyle pointed out that there seemed to be a great many disagreements regarding the Department of Health and Children.

The Departments of Health and Children and Justice, Equality and Law Reform.

Ms O’Reilly

I had not balanced them in that way. Regarding the Department of Health and Children, various Acts deal with committees on the fitness to practise of members of the medical profession such as dentists, nurses and doctors. The Medical Council and the other councils will be brought into the ambit of the Freedom of Information Acts 1997 and 2003 in the latest tranche. I was conscious that there would be large-scale public debate, and it has already begun.

The area of competence assurance is emerging for the medical profession, and I am sure that members have been reading about it. The Lourdes Hospital inquiry into the Mr. Neary scandal has brought the issue into sharp focus. Internationally, there are two views on whether there should be public release of records on whether doctors, nurses and the medical profession generally are doing a good and safe job. I believe they should be open to the scrutiny and protections of the Freedom of Information Acts 1997 and 2003. The Act is not there to do harm, and that is why the protections are included. There is great public interest in medical safety, and that is my rationale for saying that such matters should come under the Act. Such committees on fitness to practise are outside the Act's competence. Those are the most serious health questions.

On the Department of Justice, Equality and Law Reform, there are the refugee bodies, the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. There may be another body that deals with integration and so on once one has been granted refugee status. The provisions of the Freedom of Information Acts 1997 and 2003 exist to protect any interests requiring it, but given that the refugee and asylum issue is such a major public policy question, there is a public interest in seeing that it is all dealt with properly.

Is it not the case that information sought on the workings of the Refugee Appeals Tribunal is to do with judgments made and by whom? To date, the Department has been prepared to say only that someone serving on the tribunal has made a certain number of positive or negative decisions, but without identifying the person in question.

Ms O’Reilly

There is much controversy about that, and there has been a High Court case on one aspect, the release of rulings. The case has been won in the High Court and is now being appealed to the Supreme Court. Even from that, we know there is a great deal of public interest in seeing how those bodies operate. I reiterate that the provisions of the Freedom of Information Acts 1997 and 2003 are more than sufficient to protect any interests that require it, the most important one being the public interest.

I welcome the Information Commissioner and her staff. Her report is strongly evident of the Government's continuing determination to limit and row back the flow of information to the public. In that sense, this is a very political issue. I do not believe there is a consensus among members of the committee. That is evidenced by the absence of any members from the Government parties, with the exception of the Chairman, to listen to what the commissioner has had to say. This cuts to the heart of politics. I do not believe there is a cosy committee fix-up to the dilemma facing the Freedom of Information Act and the commissioner, with due respect to the Chairman. Fianna Fáil has always been opposed to the principle of freedom of information.

When the Act was introduced by the rainbow coalition Government, as the commissioner rightly says, it was subject to the most intense scrutiny and debate, and not just in Ireland. It was also taken around the world on several occasions because there was massive participation in international conferences from the start at which the Irish position was set out and debated in terms of the pros and cons of developments at the time regarding freedom of information. There was widespread debate on the legislation in the Dáil and Seanad as well as in other forums.

It is less a matter for the commissioner than for the committee to realise that in the run-up to the 2002 general election, neither of the parties in the present Government mentioned that it intended to enact legislation to row back on freedom of information. This was never put to the people and when they brought in the amending and restrictive legislation, I recall we had a panel of about seven or eight Sir Humphreys lined up to tell us how life in the Civil Service was coming to an end unless freedom of information was effectively abandoned. Since the publication of the commissioner's report in December we have also learned that bodies are now being excluded from the remit of the Act, which exclusion has been extended by stealth and without consultation with the Information Commissioner. That is an indication that the Government continues to hold the process of freedom of information in contempt.

It is important to recall that the commissioner had to learn from a member of the public, rather than Government or the Civil Service, of the decision to exclude Health and Safety Authority investigations from the remit of the Act. I know we have had an amending statement from the Minister in recent days indicating that he may row back on that. Nonetheless, that does not detract from the facts of what happened to the commissioner.

The commissioner has rightly pointed to the culture of secrecy that continues to surround many public bodies. Just for a laugh, the Chairman kindly gave me an advance copy of the script of Mr. Eddie Sullivan, Secretary General of the public service management and development section of the Department of Finance, who will read this to the committee later. I do not know whether this is a joke since I do not see Mr.Sullivan or anyone else present even to have the courtesy to listen to the proceedings. I refer to the heading in his script, "No culture of secrecy", which continues, "A culture of secrecy is not something I recognise in the modern Irish public service, Chairman. The modernisation—"

I am going to stop the Deputy. I am sorry; I am ruling.

The Chairman sent this to me. This is what the man has written and is going to read out in an hour's time. This is a joke.

The gentleman is watching proceedings and will be present after Ms O'Reilly has finished.

Could he get himself to the committee room and actually be present?

No, and I will not accept the Deputy being discourteous, by telling him to get himself down to the committee room.

He is being very discourteous to this committee.

I disagree.

It is a joke to send us such rubbish.

I will rule that the Deputy is out of order. It is unfair for her to make such an attack on a civil servant who, as she is aware, will appear before the joint committee in a few minutes' time after this section of the meeting has concluded. At my request, he submitted his opening statements to the Deputy, in order that she could read them in advance. This was done to assist the joint committee.

Deputy Burton must not insult this person before he makes his statement to the joint committee. If she continues, I will rule the Deputy out of order. I will not permit her to disrupt this committee or bring it into disrepute by attacking people who will appear before it in a few minutes' time.

I will not be a poodle for the Fianna Fáil-Progressive Democrats Government which is responsible for dismantling the Freedom of Information Act. While the joint committee deals with the Information Commissioner, as a public representative——

I again remind the Deputy——

——I deal with the public.

The Chairman is speaking. I remind the Deputy——

I speak on behalf of the public. Members are not a set of poodles.

In this regard, I must inform the Deputy that, at the commencement of this meeting, the joint committee agreed to deal with Mr. Eddie Sullivan after this section. It is Deputy Burton's problem that she was not present when this was agreed, not that of the committee. The Deputy may not disrupt the agenda which was agreed before she showed up, which was after the meeting began. If the Deputy has nothing further to address to Ms Emily O'Reilly, I will move on. Deputy Burton should address her comments to Ms O'Reilly through the Chair.

I have many issues I wish to raise and will continue to raise.

This item on the agenda is a discussion with the Information Commissioner, Ms Emily O'Reilly. While Deputy Burton may address her comments to Mr. Sullivan when he appears before the committee, she may not do so in his absence. The Deputy may not be discourteous in this regard, as that would reflect on the committee and I will not preside over that. The Deputy may proceed with her questions to Ms O'Reilly.

I am not the Chair's poodle. While others may be, I am not.

I do not know what the Deputy means by that.

If the purpose of this committee meeting is to conduct a review of freedom of information, I wish to set out the Labour Party's position. I noticed that in his statement, like a good Sir Humphrey figure, Mr. Sullivan has suggested what the joint committee should do, namely, to start the entire process of circulating papers among Departments again. I want, and this committee should seek, the full reinstatement of freedom of information.

I will take two specific examples. Page 19 of the commissioner's report specifically deals with the Department of Education and Science. The report contains an extremely useful table in this respect, as it does for all other Departments, which reflects the agreements and disagreements regarding inclusions and exclusions between the Department of Education and Science and the commissioner.

There are a number of exclusions with regard to the Education Act 1998 about which, as members are aware, a Supreme Court judgment has been made. As for the Commission to Inquire into Child Abuse of 2000, while the Department wants to continue to exclude, the commissioner's recommendation is to disagree. Earlier speakers referred to the Residential Institutions Redress Act 2002. Again, the Department's recommendation is to exclude while, if I understand the table correctly, the commissioner disagrees.

If one takes this Department as an example, some of the issues included cut to the heart of democracy. If one takes the last example, as I understand it the bill in respect of redress now runs to approximately €800 million. It will probably hit €1 billion before the issue is resolved by way of the Act and its attendant procedures. However, as a consequence of the position taken by the Department and referred to in this report, people who appear before various elements of the redress structure are forbidden to make disclosures, should they so wish. I agree with the commissioner's comments on the importance of protecting people's personal privacy. However, significant numbers of individuals who have gone before various elements of the redress board would like to be able to disclose what happened to them at the redress board. Many of them feel they have suffered grievously at the hands of the board in having to make a presentation. They are subject to criminal sanctions but, as a consequence of the line taken by the Minister and the Department of Education and Science, those identified by the board as having worked in institutions and who were party to abuse, whether physical or sexual — in some cases that abuse has already been the subject of criminal convictions in the courts — will be shielded from the public release of any information in respect of awards individually or cumulatively made under various sections of the Act in respect of actions of physical or sexual abuse by them. In terms of our democracy, that is wrong.

Furthermore, I understand the redress board and the Department of Education and Science take the view that we will not be able to discover, with regard to institutions cumulatively, what awards have been made against those institutions or, more particularly in the context of how the board is working, how such awards would relate to actions by individuals. Therefore, we will never know the collective outcome of what happened at the institution in Letterfrack or how many awards and cases were heard by the board with regard to that institution, the institution in Daingean and other institutions.

This was one of the great scandals of 20th century Ireland. In the 21st century, by failing to restore the Freedom of Information Act, we are complicit in the continuation of a scandal, which is wrong. The commissioner is rightly concerned. Her report states that, at a minimum, archivists should be allowed to enter institutions and get the relevant information, and presumably write learned papers and comment on the redress board's conclusions. However, they will not be allowed to do so because of the way the Act is structured.

This committee will be able to do nothing to right that wrong unless the Act is substantially overhauled. I do not accept the proposal which comes forward from the senior echelons of the public service that this committee needs to respond to the Departments with another set of round robin letters. That is unacceptable. I do not know if colleagues in other Opposition parties share my views but I am giving a view on behalf of the Labour Party, which is that nothing less than the restoration of freedom of information is required. We have effectively shut it down.

The commissioner is in an invidious position. The work which has been done to highlight the different exclusions by stealth as legislation develops is very informative and useful. However, behind all that is the philosophical and political point of view which has successfully sought to emasculate the concept of freedom of information. Later, we may have to listen to lectures from public servants who state that all is well with the concept of freedom of information and that our public service is opening up a light. I do not accept this. The Government has restricted freedom of information.

I recall that the public servants who came before the committee gave two examples of the vexatious use of the freedom of information legislation in regard to two Departments which had an economic brief. However, the public servants were never able to answer questions on this matter. It would be interesting to know because it was the reason given for the changes in the legislation. Has there been any indication from the public service that it still finds examples of vexatious use?

The average cost of a freedom of information inquiry, including the initial €15 and the fees for an appeal to the commissioner, is approximately €250. I made five freedom of information requests this year and in each case I was not charged additional fees. I presume that is because I am a Member of the Oireachtas. However, on three occasions people working for media organisations told me the charges for paper retrieval, archival examination and other work involved in a freedom of information request from the media or an individual can be approximately €900 to €1,200. Does the Information Commissioner have an insight into how costs are charged to individuals, particularly journalists, who are not Members of the Oireachtas and who are not making personal inquiries?

Before I call Ms O'Reilly, I ask committee members to address their comments to the specific topic under discussion today, namely, a review under section 32(2) of certain provisions of the Freedom of Information Acts 1997 and 2003. It is clear to me as Chairman that while Deputy Burton's contribution was interesting, it was of no relevance to the item on our agenda. The issue of fees is normally included in the separate discussion with Ms O'Reilly on her annual report. We have a specific task today to deal with section 32, as required by legislation. I ask Ms O'Reilly to respond to matters relating to that matter.

I do not think it is in order to tell a guest of this committee on what they may comment.

I understand——

Whatever about the Chairman's previous ruling, the Information Commissioner is before the committee and we will not tell her that she cannot disclose information to us.

I understand that. However, the committee is charged by legislation to review section 32(2). If committee members do not want to deal with that issue today, it is a matter for them. Deputy Burton's contribution concerned freedom of information generally but had nothing to do with the——

We can rely on the judgment of the Information Commissioner to comment on proceedings without having to curtail or corral what she states.

If we do that I, as Chairman, will ensure the debate is connected with the item on the agenda. I gave the Deputy considerable latitude notwithstanding my earlier exchange. The general thrust of her comments had nothing to do with the item on the agenda.

On a point of order, I took the trouble to read the Information Commissioner's report. I object to the Chairman's suggestion that I did not use the information she supplied to the committee. The Chairman has some nerve suggesting that to me. I have probably done far more homework than the Chairman appears to have for today's meeting.

The Deputy is entitled to her opinion, wrong as it is.

Deputy Burton raised many issues. I would like to be allowed two minutes to speak on them before Ms O'Reilly responds.

In the Seanad and in committee, I deprecate generalised attacks on civil servants. If one wants to criticise legislation or how it operates, as the Government is responsible it should be attacked. The point made on residential redress and child abuse raises an interesting question on what must be done regarding history and archives. That matter must be considered when the legislation is next reviewed. The Freedom of Information Act is primarily about information released in the here and now, whereas the public records legislation deals with material which will be issued later. Deputy Burton put the case for re-including the material but, for this residential redress scheme to be successful, the co-operation of various parties must be ensured. It is unfortunately a fact that the provisions of the Freedom of Information Act in many cases affect the behaviour of people who make information available. If the effect of restoring the status quo is to make important sources of information less likely to co-operate, that has to be taken into consideration by the Government when it weighs up rights and the potential for later analysis. I have some sympathy for the notion that one should be able to analyse material more thoroughly when the people concerned are dead. The interests of history are not pressing concerns at this point in time but should be taken into consideration when the legislation is reviewed.

Ms O'Reilly may use her discretion in responding.

She is allowed.

Ms O’Reilly

Despite being a political correspondent for a long time, I am still not completely sure of the protocols that apply to committees.

I assure Ms O'Reilly that protocol is not a major issue this morning.

Ms O’Reilly

Deputy Burton and I have commented on the residential redress scheme. I do not have information on the search and retrieval fees, with the exception of fees which are brought to the attention of my office. I read the newspapers and have heard anecdotal evidence of high fees being charged. I do not know whether these are reasonable but anybody who believes they are not may appeal to my office free of charge. It would be positive if people who believed they were overcharged did so because that would allow for an independent assessment of the matter.

I acknowledge Senator Mansergh's point that disclosure can change behaviour. He suggested that people would be less likely to co-operate. However, I return to my central thesis, which is that all these protections are already provided for in the Freedom of Information Act and that the other protection is the public interest test. If the integrity of an investigation is compromised in any way by the release of certain records, that is a powerful public interest argument for their non-release. Equally, however, there may be powerful public interest arguments for their release.

Perhaps not enough is known among the public about the Freedom of Information Act. I discussed this with one of my officials yesterday. I suggested the problem may be the title "freedom of information", which sounds almost jingoistic. I wonder if other jurisdictions use a different title, such as "the controlled release of official information", although it would not get the juices flowing.

I do not think that would be an improvement.

Ms O’Reilly

FOI is not about the willy nilly release of records. Everybody should know that. It is about releasing them in certain circumstances in which there is a particular interest that they should be released. My argument through the vast swathes of these issues remains the same, namely, that protections exist. If there have been instances in which, despite the protections, information has gone out and damaged an interest, that is of concern. Every time I discuss FOI people give anecdotal incidents of its effects. There would be a great public interest in a qualitative analysis of the effect of FOI on the Administration in the past eight years. I did a quantitative analysis on the effect of the changes in the fees. Given the debate this continues to generate, it is time for an analysis of the effect on the Administration and whether the harms or benefits that some people think arise from FOI actually occur.

As an adviser and civil servant I had experience of the first years of the Freedom of Information Act. Much of the area in which I worked, the peace process, was not subject to FOI, or only at the fringes, and was, therefore, unaffected. However in other, unconnected, work, an important committee, not unrelated to the work of this committee and of which I was a member, decided to change the format of its minutes when FOI came in. Whereas the minutes had previously contained detailed information on who said what, it was pared down to document agreed conclusions in the way Government minutes in this country are taken. That was a definite impact. As I am still subject to the Official Secrets Act, I will not give further details.

For some time I had sensitive documents on relations with a foreign Government on a domestic issue, nothing to do with Northern Ireland or Anglo-Irish relations. Another Department wanted to withdraw my copies of these documents and destroy them. I told the Minister I refused to do that, which he accepted. There may be a temptation to suppress documents that contain information that would be inconvenient in the light of day.

The Taoiseach has said publicly and privately that on budgetary matters he misses the annotated files with outspoken comments which he formerly received as Minister for Finance and which he might, in certain circumstances, receive as Taoiseach. One can read comments of this type from decades ago in Professor Ronan Fanning's history of the Department of Finance. In other words, people are more cautious and restrained about what they say on paper and have a distinct preference in many instances for trying to settle matters in un-minuted discussions. I am not against freedom of information. I am in favour of it and was so when I had some small influence on the matter. However, it is not a myth that it alters behaviour. It has altered behaviour in quite significant and sometimes detrimental ways.

With regard not only to FOI, but eventual release of records, I have always regretted that as an independent State we do not have proper records of Cabinet discussions and that in theory, according to the Supreme Court judgment of 1993 or 1994 with regard to the beef tribunal, even the pink slips purported to convey discussion should be rigorously suppressed and weeded out. I am not expressing a party position, but the public and future generations are entitled to know, particularly with regard to crises, historic events etc., what people around the Cabinet table said. I quite understand this cannot be subject to FOI because of the fear for example that on particular issues Ministers might play to the gallery in their own constituencies. This is a real lack, but I am making a historical point rather than an FOI point.

I will add a brief coda to Senator Mansergh's interesting point. The Senator will be pleased to hear that according to a later speaker, one of the successes of open government is that the tax strategy papers are now published in full, although Senator Mansergh is implying they are much slimmed down.

I did not mention the name of the committee.

I can guess what he was talking about.

I call on Deputy Paul McGrath. We want to conclude this section of the meeting shortly.

I have been here since 10.30 a.m. and think I am entitled to at least a couple of minutes of the committee's time.

The Deputy is so entitled.

After all, the Chairman gave Senator Mansergh 15 minutes to do a promo on his future memoirs and I am sure the phone upstairs will be hopping with offers from all sorts of publishing companies who would like to acquire them. He might elaborate on some of the very distasteful things which appear to be happening now in senior Civil Service circles. I am sure the Information Commissioner is delighted to hear this.

On a more serious note, I welcome the Information Commissioner, Ms Emily O'Reilly, and her two senior officials. She is shedding a very open light on FOI and what needs to be done. Her background contributes greatly to the FOI area and lifting the veil of secrecy is very important. With regard to Senator Mansergh's call for the opening up of certain areas, Ms O'Reilly is identifying areas where there should be openness and accountability. I am impressed with her statement that FOI is not there to do harm to anybody.

I have a bee in my bonnet — as we all have about certain matters — about a decision made by one of Ms O'Reilly's predecessors. It concerns the performance-related awards to senior management in local authorities. Ms O'Reilly is probably not familiar with the situation.

Under the last national agreement, it was agreed that as an incentive to senior management in local authorities, performance-related pay should be introduced. The process works along the following lines. At the beginning of the year, a county manager submits a document to a performance-related pay body stating targets for the county over the next 12 months. At the end of the year or early in the next, the manager reviews those targets and submits another document stating how well he or she has achieved what was expected.

The body considers that without talking to anyone in the local authority such as public representatives or workers. It ticks off what has been achieved. In a school classroom, one has a bell-shaped curve of awards based on outcome, with a few at the top, the bulk in the middle and a few at the bottom. Surprisingly, that does not happen with performance awards for local authorities, which are bulked up at the end so that all the managers seem to receive a quite substantial payment; very few if any fail to secure it. The costs to local authorities — rather than the central Government — are over €2 million.

I am not interested in what bonus a given manager receives. However, one must know the targets set and assessed. Arising therefrom, there is a payment, and I do not care how much it is. However, every part of that process is secret. I may not see the documents relating to my county or the adjudication. An annual report is issued by the performance-related pay body. Such information was sought under the Freedom of Information Acts 1997 and 2003, but the current Information Commissioner's predecessor refused it on the basis that a similar scheme operated for Secretaries General of Departments that would identify them in the performance of their duties. It was thought that the information should be denied on that basis.

That is totally wrong. If I might prejudge what the Information Commissioner says in her report regarding openness and accountability, people must be able to defend their decisions and targets. Can the Information Commissioner ever review a decision on a previous case, or is it like the Supreme Court in that, once a decision has been reached, it may never be reviewed? I have given the problem a fair outing, and any reasonable person would say that it should be open to discussion.

Ms O’Reilly

On the last point, a decision may now be appealed to the High Court and the Supreme Court. I obviously cannot review a known decision, but if a similar request were made in a new case, I could consider it afresh, taking all the variables, including public interest and privacy, into account.

If there is no further discussion, perhaps we might suspend the meeting.

I have a specific query. I had a representation from an individual who I understand has had dealings with the Office of the Information Commissioner. He is a wheelchair-user and applied under the Freedom of Information Acts 1997 and 2003 for files regarding provision of replacement motorised wheelchairs by his health board. In a positive decision, he was told that he would be issued with the documents. However, he has never received the complete files. I cite this case as an example of how individuals with a personal issue sometimes find it difficult to negotiate the Acts and deal with the Office of the Information Commissioner and, more particularly, the body that it has ordered to release the information.

I do not expect the commissioner to reply in detail, but if it is possible, I would be interested. I know Mr. Butler was dealing with this area.

Ms O’Reilly

Just to clarify, before Mr. Butler replies, the thinking within the Office of the Information Commissioner revolves around precedent, High Court and Supreme Court judgments and so on. One is not necessarily bound by decisions that have been made previously, however.

Mr. Butler

Deputy Burton has raised the matter of what happens where a public body had taken a decision to release records to a requester and where it is subsequently claimed that they have not been released. Another version is where the Information Commissioner gives a decision on a review, ordering the recent records, and these are not released by the public body. Once the commissioner gives a decision, she has no further capacity to enforce it. The commissioner does not have any capacity to enforce a decision under the Act. If the commissioner gives a decision which is not put into effect, the only action open to her is to conduct an investigation of the freedom of information practice of the public body concerned and to examine in particular whether it has been complying with the requirement to release records to somebody to whom they have been awarded. However, that is not a process for enforcement. It is a process for reporting bad practice. As regards any failure to implement a decision, the right to take action rests with the requester who has not got what he or she believes should be made available. That is the way the Act is currently. The commissioner has no powers of enforcement.

These comments are meant to be of a general nature and have no bearing whatever on any specific case.

This is an important issue and I am sure other members have experienced this problem as well. The Chairman will recall the long discussions between this committee and the Revenue Commissioners on refunds of tax which were due in certain instances. In my experience with the establishment of the new Health Service Executive, a great deal of change is taking place within the health service. At this point I do not believe there is even a manual for the Health Service Executive for dealing with the overall application of issues such as freedom of information. Given the range of issues the HSE deals with, there are potentially significant numbers of cases where, for different reasons, people want access to their personal files. The case to which I have referred is covered by some arm of the HSE.

As Members of the Dáil, when we have queries we go to the Minister who sends us letters to the effect that these matters are not the remit of the Department and are being referred to the HSE. The individual copy is sent to Professor Brendan Drumm. After about two months, one gets an anodyne letter from Professor Drumm to say it is a matter for the parliamentary inquiries office which is located in the old buildings at Stewarts Hospital, Palmerstown. I am not now being non-partisan, whereas I might have been earlier. Four or five months later one may get a letter which is not even referenced and one wonders to which case it might refer.

Public representatives are in a no-man's-land as regards the Health Service Executive. The accountability we had formerly through the Minister for Health and Children has now been given to Professor Drumm, as Accounting Officer. He refers matters to this parliamentary affairs division. What do we do now? I use this case as important example of how the system is effectively breaking down in regard to the Health Service Executive. I do not even know if the HSE has an updated manual. The health boards used to have manuals dealing with freedom of information but I do not think the new body has such a manual in a collective sense. It is very difficult to give advice to members of the public on what assistance they reasonably have recourse to.

Ms O’Reilly

What the Deputy says is interesting. It seems there are frustrations. As Ombudsman, I will meet Professor Drumm next week with regard to issues concerning the statutory complaints mechanism that comes under the HSE.

Mr. Butler knows the details of the case. If I provided the details to the commissioner, would it be possible——

Mr. Butler

Is the Deputy talking about the case to which she referred?

Yes. Is there any recourse for that individual other than to go through the whole process again?

Mr. Butler

It is difficult to say anything about the case.

It might be best to talk after meeting.

Mr. Butler

Perhaps we could talk after the meeting.

We will draw this section of the meeting to a conclusion. I thank Ms O'Reilly, Mr. Butler and Ms O'Brien for their attendance and assistance. We will suspend before introducing Mr. Eddie Sullivan, Secretary General, public service management and development, Department of Finance. At the conclusion of that section of the meeting, the committee will consider where it goes next in terms of fulfilling its obligations with regard to reporting to the Oireachtas.

Sitting suspended at 12.07 p.m. and resumed at 12.10 p.m.

We will continue our discussion on the review under section 32(2) on certain provisions of the Freedom of Information Acts 1997 and 2003. The committee is joined by Mr. Eddie Sullivan, Secretary General, public service management and development, in the Department of Finance. He is joined by Mr. Ronan Fox, Ms Mary McLarney, Ms Caitriona O'Brien and Ms Rita Meehan.

On behalf of the committee, I welcome and thank them for attending. Before the discussion begins, I advise the witnesses that while comments of members are protected by parliamentary privilege, those of visitors are not so protected. I remind the committee that members should not comment on, criticise or make charges against a person outside the Houses. That is relevant today.

We will commence with a short presentation by Mr. Sullivan, followed by a general discussion with members of the committee.

Mr. Eddie Sullivan

I thank the Chairman and the committee for inviting me before it. I am happy to accept the invitation and to assist the committee in any way I can on its review under section 32(2) of the Freedom of Information Acts.

The Department of Finance has responsibility for discharging the functions of the Minister for Finance under the Freedom of Information Acts and undertakes a training and advisory role on the legislation. The Department also plays a central role in public service management and development and has been closely involved with the evolution of the Freedom of Information Act since its introduction eight years ago. The Act has significantly benefited access by members of the public to information held by public bodies.

I do not recognise a culture of secrecy in the modern Irish public service. The core objectives of the modernisation programme which began more than ten years ago are improved openness, accountability and quality customer service. The results have been both significant and far-reaching. There are many instances of public bodies proactively releasing information and making it more accessible either directly or indirectly as a result of the changes introduced under the public service modernisation programme, for which the Freedom of Information Act has been an important underpinning.

I will cite a few examples. In the health sector, routine administrative access policies have developed since the introduction of the Freedom of Information Acts to allow patients direct access to their medical records. Recourse to freedom of information legislation has been minimised as a result of these initiatives. In one hospital, 600 requests per annum are handled under this process, as against 70 freedom of information requests.

Many public bodies provide direct access to employee personnel files without the need for a formal freedom of information request. Outside freedom of information legislation, they also provide detailed feedback on recruitment where a candidate fails to be either shortlisted for interview or is unsuccessful at the interview stage. A number of local authorities now provide direct website access to planning related records. Third level education institutions make examination scripts available to students.

The new culture of openness arising from the Freedom of Information Act 1997 prompted the first publication of the Cabinet handbook. The Department of Finance now routinely publishes tax strategy group papers. It is the practice of the Department of Community, Rural and Gaeltacht Affairs to place details of all announcements relating to grant approvals and other expenditure related decisions under its programmes on its website. The National Roads Authority publishes detailed road safety records, road collision facts and road scheme activity.

The responsiveness of public bodies has greatly improved in tandem with these developments. E-government initiatives such as the OASIS on-line access to services, information and support website, the revenue on-line service, Land Registry access, the FÁS job bank and the BASIS business access to State information and services project serve as good examples of this responsiveness. These and other initiatives serve to minimise the need for people to have recourse to the formalities of the Freedom of Information Act.

There will always be information which cannot be made directly available and the Freedom of Information Act contains a framework for considering requests for such information. For those who have recourse to freedom of information legislation, the statistics show that the majority are successful in obtaining the information they require.

From April 1998 to the end of last year, a total of 48,590 requests were granted in full, a further 31,957 were either part-granted or withdrawn and dealt with outside the formal FOI procedure and 16,762 were refused. Where access to information has been denied to a requester and the decision is subsequently appealed, the statistics show that in the majority of cases the public body is found to have taken the correct decision. This is evident from the Information Commissioner's most recent annual report, which shows that the majority of formal decisions issued by the commissioner in 2004 upheld the original decision of the public body. In two special reports published by the Information Commissioner in 2001 and 2004, respectively, a good level of compliance with the Freedom of Information Act was established on the part of public bodies. These findings and the follow-up action taken on foot of these reports underline the value of the ongoing investments being made by Departments and public bodies in FOI training and other supports and the importance attached to ensuring compliance.

It must also be recognised that the Freedom of Information Act has been significantly extended since its introduction in April 1998, when it applied to 67 bodies, mainly Departments, offices and closely related bodies. Some 380 public bodies are now covered by the legislation, including local authorities, the HSE, universities and other third-level education institutions and a wide range of State bodies and agencies. The Minister for Finance has announced plans for a further significant extension of the Act to more than 100 public bodies, for which the necessary legislation will be introduced shortly. The Minister has recently indicated that extension of the Act to a number of other bodies is being considered at official level and in consultation with other Departments.

Turning to the joint committee's specific functions under section 32 of the Freedom of Information Act, it is clear that the committee has a role in reviewing from time to time the operation of provisions in other enactments which either authorise or require the non-disclosure of information in order to ascertain whether such provisions should be retained, amended or repealed or whether reference to them should be included in the Third Schedule to the Freedom of Information Act. The committee has received reports from each Minister with regard to these provisions and the Information Commissioner has submitted a report, in which she has outlined her own views on what should happen. Approximately 150 provisions have been identified, of which the Information Commissioner is in agreement with Ministers on more than 100 and disagrees as to what should happen in the case of 42. While a focus on areas of disagreement is understandable, a significant level of consensus clearly exists. There is also an implicit consensus across all of the reports, including the Information Commissioner's, that it is not appropriate for every non-disclosure provision to be repealed or included in the Third Schedule to the Act. Section 32 and the process being followed by the committee is recognition in itself that there will always be cases where a high level of confidentiality must be ensured in the public interest.

In framing the review process under section 32, the Oireachtas recognised the need to keep the aforementioned provisions under regular review. I suspect that underlying this was a concern that widespread recourse to non-disclosure provisions in response to FOI requests could serve to erode the meaning and value of the Freedom of Information Act. A dimension missing from the Reports, simply because it does not form part of the reporting process under section 32, is how often members of the public have their FOI requests denied because of a non-disclosure provision. It may interest the committee to know that when we asked this question of the FOI Civil Service users network, which co-ordinates FOI statistics for the Civil Service and related bodies, the response was that section 32(1) of the Freedom of Information Act had been invoked in response to an FOI request four times in 2004 and twice in 2005. To put this into perspective, of the more than 12,500 FOI requests received by the Civil Service and related bodies in 2004 and 2005, just six are recorded as having been refused either in whole or in part pursuant a non-disclosure provision encompassed by this review by the joint committee. Since the Department of Finance began recording FOI exemptions used in response to FOI requests in 2002, not a single request has been recorded as being refused by virtue of a non-disclosure provision in another enactment. I trust that these figures help to put into context certain media reports and comments that have suggested Departments are making widespread use of back door methods to deny access to information under the Freedom of Information Act.

After hearing the views of Ministers and the Information Commissioner, the committee must ascertain, having regard to the provisions, purposes and principles of the Freedom of Information Act, whether a non-disclosure provision should be retained, amended or repealed or whether reference should be made to the provision in the Third Schedule.

The committee must prepare a report for each House on the results of its review in which it may make recommendations. On the face of it, this is a detailed and complex task involving consideration of each non-disclosure provision covering a wide range of legislation. On the last occasion the committee commenced a review under section 32, the relevant officials from the various Departments attended to provide the committee with a better understanding of the background and issues involved with each non-disclosure provision. While it is for the committee to decide how it wishes to proceed, it may wish to consider whether a similar process would be beneficial to it on this occasion, particularly in respect of the areas of disagreement between the Departments' reports and that of the Information Commissioner. The committee would agree that it would be desirable to have the broadest possible insight if it were inclined to take a view on one side or the other on particular provisions. I offer the following examples to underline the importance attached to the committee's having this insight.

The Information Commissioner is recommending that sections 38(3), 39(2) and 39(5) of the Industrial Designs Act 2001 be included in the Third Schedule to the FOI Act. While I do not pretend to understand all the issues involved I understand that this matter strays into the complex area of intellectual property law, including our international obligations, and that there would be grave reservations about bringing these matters under FOI. Section 35 of the Ethics in Public Office Act 1995 also serves to underline the point. The Information Commissioner's report recommends that this section be included in the Third Schedule "in light of the level of disclosure already provided for" under the Act. One might conclude from the Information Commissioner's report that the Ethics in Public Office Act provides for a level of disclosure equivalent to that available under the Freedom of Information Act. In fact, the Act provides for only the minimal level of disclosure necessary to ensure the proper workings of the ethics legislation. The ethics legislation is highly specific and provides a tightly defined framework for the disclosure of personal information. This framework is founded on the principle of personal privacy and involves a clearly defined set of circumstances in which disclosure of defined information can take place to defined persons in defined situations. With limited exceptions, statements of interests of persons occupying designated positions under the Ethics in Public Office Act are furnished on the strict understanding that they cannot be disclosed outside the situations specified in the legislation.

The Information Commissioner is entitled to form her own judgments. She has clearly weighed the issues and reached a different conclusion from Ministers on these provisions. I offer these examples to underline the range of issues that can have led a Minister to make a particular recommendation. Inviting each Department in to explore some of these issues could be a very time consuming process for the committee. Without wishing to encroach in any way on the committee's prerogative to decide on its approach, another option would be to ask Departments if they wish to reconsider their reports in the light of the Information Commissioner's findings and respond. I say this because I have noted that the first report was submitted as far back as May 2004 and the last in February 2005. Requesting Departments to revisit the reports might serve to identify a number of provisions on which, with the passage of time and-or in light of the Information Commissioner's findings, there may be a desire to reconsider the position. This can work both ways. I understand the committee has received correspondence from a Department indicating that a recommendation to include particular provisions in the Third Schedule was in error. This underlines the value in the committee affording Departments the opportunity to have another look.

Although the Information Commissioner's report has come into the public domain, this arose as a result of particular circumstances. Departments would welcome being requested by the committee to consider and respond to the report. Once Departments have responded, the committee could decide how to proceed on the areas of definitive agreement and disagreement with the Information Commissioner.

The Information Commissioner has made a number of suggestions in her report for improving the Act and on the process under section 32. A number of these suggestions would require legislation and will require very careful consideration. It would be remiss of me not to mention issues that have already been identified on certain recommendations. For example, on the commissioner's suggestion for a new non-disclosure Act to accommodate all non-disclosure provisions, the preliminary advice we have received is that this would require a major review of the Statute Book and amendments to a wide range of Acts to achieve the cross references needed to the suggested Bill. It has also been pointed out that the various non-disclosure provisions are in a wide range of different statutes and that it might not actually assist transparency, accessibility or legal clarity for those legal structures to have all non-disclosure provisions codified into a separate Act. Similarly, on the commissioner's suggestion that the effect of the Third Schedule could be reversed so that only those provisions that take precedence over FOI would be listed, we have been advised that the non-disclosure provisions in section 32, many of which have criminal consequences, have been individually considered by the Legislature and set aside for FOI purposes. If the Information Commissioner's suggested approach were to be adopted, it would be essential to include all provisions requiring protection within the Act, otherwise an area could inadvertently be opened up to FOI by omission or mistake. Clearly, these are issues that would need to be considered carefully.

My colleagues and I will be happy to answer any questions that might arise in the committee's work, subject to the normal constraints under which we operate.

At the core of this issue is the question of why these exemptions are emerging. The Information Commissioner, in her report to this committee of December last, states:

Regrettably, there is a growing number of non-disclosure provisions in individual pieces of legislation. [She lists 150 of them] ... Of the 78 non-disclosure provisions which are recommended by Ministers for exclusion from the Third Schedule, 29 were enacted since 1997.

She further states:

Approximately one third of all existing non-disclosure provisions were introduced [since 1997] in an FOI environment. This shows that a culture of secrecy continues and there can be no doubt but that it hinders the achievement of a simple, transparent and consistent approach to the treatment of information in public bodies.

Mr. Sullivan has stated he carries the responsibilities of the Minister for Finance in this regard. Therefore, this quote from the Information Commissioner is a clear statement that the Department, in its conduct under these provision, is taking a view that supports secrecy. Whereas he indicated in his report that the Department only came up with six cases where people's requests were frustrated by the Department's action in allowing these new enactments, could that be put the other way around? We should remove them, as has been recommended in 42 cases, because there is no significant disclosure threat implicit in this and the FOI Act already contains protections. Can Mr. Sullivan explain why the FOI — with all its references to privacy, commercial confidentiality and security concerns — is not adequate to deal with these 42 cases where the Department takes a different view from that of the Information Commissioner? He quoted two instances. In the first instance he stated it was complex law, which sounds like a Sir Humphrey defence. In the other he quoted privacy which is, as I understand it, already a consideration under the FOI Act.

My second question relates to excluded areas the Information Commissioner indicated to the committee, for instance, the vocational education committees, the Central Applications Office, the State Examinations Commission, the Adoption Board, the Garda, the Central Bank, the financial services authority and the State Claims Agency. As I understand it, Mr. Sullivan has indicated that the Department is considering another range of bodies to bring within the Act. Are these within the groups which the Department is now considering? Can he give the committee an undertaking that he will consult with the Information Commissioner on the consideration of whether these should continue to be excluded? It strikes me as bizarre that consideration of whether bodies should be subjected to FOI would be conducted entirely within the Department and the agencies without consulting with the one officer who we have appointed with an independent brief on behalf of the citizen. Does he agree that seems unfair? Is it completely outside the spirit of FOI? Although I do not have the sections here, I recall that there was an explicit statement that reviews of the operation of the Act should involve the Information Commissioner and she had a specific legislative role in FOI, and yet within the term of this Government, with the backing of what was called a high-level group of Secretaries General, we enacted a raft of changes to that legislation which brought in a swathe of new reasons to refuse requests without the right of appeal and removed any test of reasonable grounds for secrecy and time limits in cases where the Department was certifying secrecy. They also resulted in an erosion of rights in relation to ministerial accountability. One could say this was a political matter, although Secretaries General stated the changes also benefited the public.

Is the Information Commissioner correct in stating there is a decided reluctance on the part of the Government to recognise that the Freedom of Information Act is a good measure — it is about the controlled release of information when appropriate and in the public interest — and that it seems at every opportunity there is a tendency on the official side to roll back in the releasing of information? In other words, one has to prove the release of information would be in the public good before it is released, an issue of enormous importance in the context of the changes made in 2003.

Mr. Sullivan says he does not recognise the culture of secrecy but during his watch 29 non-disclosure provisions and 30 regulations which did not undergo Oireachtas scrutiny were made. Also during his watch there was no consultation with the Information Commissioner on the changes to the Act, while the remaining bodies were kept outside without any reference to the commissioner. That does not seem to be in keeping with the tone of Mr. Sullivan's positive statement that there is no culture of secrecy. I agree, however, that more information is available. We are living in an information society and much information is available on-line, which is to be welcomed. However, there is still a belief which I think is reflected in this that father knows best, namely, those who know should tell us to what we can have access. The report which provides a great deal of evidence in that regard supports this view.

What would be Mr. Sullivan's response if we were to agree to run with the Information Commissioner's 42 exemptions and ask him to come back to us within one month with compelling reasons the Act with all its protections cannot accommodate specific cases? Would it better to address the issue that way rather than for us to invite Departments to come back and defend the line in not proceeding on that basis?

Mr. Sullivan

As I stated, it is entirely up to the committee to decide how it should deal with this issue. On whether there are too many non-disclosure provisions, that is an impossible question for me to answer. A number of them have been included in Acts since 1997 and reflect the Legislature's wishes. It is not for me to comment on what it has decided. On the extension of the Act, my colleague, Mr. Ronan Fox, will comment on plans in that regard. I do not believe there is a reluctance on the official side. A great deal of work has been put into implementing and extending the Act and training staff to ensure the people have access to information. I referred to the culture of secrecy because the matter had been referred to by the Information Commissioner in her report. That has not been my experience — of more than 30 years — in the Civil Service. There has been a great number of changes in that regard.

Did Mr. Sullivan measure the 29 enactments and 30 regulations in determining whether additional non-disclosure provisions over and above those contained in the Act were required?

Mr. Sullivan

No. I will explain how they came about. The Deputy will be aware that individual legislative proposals emanate from Departments and Ministers. Legislation is prepared in individual Departments and circulated to other Departments for their observations.

If there is an freedom of information dimension to the legislation, our Department comments on it. The legislation then goes back to the Department where it is up to the Minister to decide what he will do on the issue. Then it is a matter for the Government and we no longer have a role in the issue.

With regard to the question on consultation, the Information Commissioner has pointed out that there is no statutory requirement for her to be consulted on these matters. It is up to an individual Department whether it should do so. That is how that works.

We could recommend that simple statutory change. We could insert the requirement.

Mr. Sullivan

If the Government wanted to insert that requirement, that is all it would require.

If Mr. Sullivan were advising a Minister, would he support this?

Mr. Sullivan

I am not going to get into that question. It is not for me to comment and I will not labour the point.

Mr. Sullivan commented on the Garda and extension——

Mr. Sullivan

I will ask my colleague, Mr. Ronan Fox, to touch on what is coming forward.

We are in the process of consulting a number of Departments with regard to a range of bodies, some of which were identified in the Information Commissioner's report, with a view to further extension of the legislation. Proposals were brought to Government late last year and a number of bodies were identified where issues remain to be resolved. For example, on the Central Bank, there is a question of the interaction of the legislation with confidentiality obligations arising from membership of the ESCB, etc. We are looking at these areas and hope to tidy them up later this year.

Our current priority is to go with an extension to the——

To be clear, are the Garda and the vocational education committees, for example, under consideration?

A decision has been taken by Government not to extend the Act with regard to the Garda Síochána for the time being.

What about the VECs?

The VECs are being examined.

There is no obligation to consult the Information Commissioner, but would it not be good business practice to consult her? Will the Department arrange to consult her?

We have no difficulty consulting her on these matters. The Information Commissioner's views on the maximum possible extension of the Freedom of Information Act are well known to the Department. To a certain extent we share that view. Extensions of the Act take place with the consent of other Ministers and Departments. Therefore, where there are issues of concern, we need to engage with those Departments directly. Our aim has always been to try and achieve the maximum possible extension of the Act and we have been engaged in that process since the Act came into force in 1998.

I want to refer back to the issue of consultation with the Information Commissioner. While the Act does not explicitly state the Department must consult, the broad context within which it has been framed suggests the Information Commissioner is a resource to be utilised to review and develop the use of the Act. In practice the Department does not utilise that resource in any way. It rules out the Garda without any reference to the commissioner, although it is practice in Scotland to include them. The Department is also proceeding with the enactments without any recourse to her and, therefore, the Oireachtas does not know the Information Commissioner's view on the various disclosures that have slipped through the 29 enactments.

The Oireachtas needs to know that the Department is testing these issues using the best information available, including that of the Information Commissioner. However, it seems the Department's practice is not to do this. That is not acceptable. Do we need to change the legislation so that will happen or is the Department of Finance willing to change its practice so that these exclusions are referred to the commissioner for comment before legislation? Will the extensions be referred to the commissioner in order that where defences are offered why the Garda should not come under scrutiny, these defences are tested by someone with experience and access to international practice in these matters? Do we need to change the law or can we rely on the Department to change its practices?

Mr. Sullivan

Changes of the law are a matter for the Minister, the Government and the Oireachtas. It is not a matter for the Department.

If one assumes the Oireachtas was of the view that there should be this level of consultation and which is not happening now, does Mr. Sullivan believe the Department will not engage in the level of consultation referred to without the change in that legislation and the Oireachtas giving its views?

Mr. Sullivan

Some level of consultation occurs with the Office of the Information Commissioner but I cannot quantify it and it does not occur regarding every issue. As Mr. Fox explained, some decisions have been taken by Government and I will not comment on Government policy. If the committee recommended some changes then the Minister would have to consider them. At the end of this process and when the committee prepares and submits a report, it will then be a matter for the Minister and the Government to decide what action he and the Government will take.

If the Department decided to exclude the Garda Síochána or the VEC or the Central Bank or the Adoption Board, for instance, and if the Central Bank or the Central Applications Office put forward its reasons for wanting to keep the doors closed, why would one not say that these are interesting and need to be assessed and decide to talk to the Information Commissioner who is aware of best international practice? Would her view not be a very valuable view in order that when the Government makes a decision it would be a decision informed by the very best resource? This does not seem to be happening.

Mr. Sullivan

There is no prohibition on consulting the Information Commissioner.

It is not happening.

Mr. Sullivan

There may be compelling reasons. I do not know the circumstances under which all of these 150 provisions were enacted or anything like that. There may have been compelling reasons at the time.

It is known that in virtually every one of the cases, there was no consultation with the Information Commissioner. There has been no consultation about the decision relating to the Garda Síochána and none about the VECs or the Central Bank, yet decisions will be made on those bodies for good or ill, either by the Government or by officials——

Mr. Sullivan

By the Government.

without access to this information resource. Why is it the practice not to consult or seek advice from the Information Commissioner?

Mr. Sullivan

With regard to individual Acts which are worked on by individual Departments, it is up to the Departments to decide the level of consultation they wish to have.

It is Mr. Sullivan's job. He will be aware of the freedom of information implications so his task is to comment on behalf of the public in the memorandum of submissionto the Government. He should advise that the Government should seek the advice of the Information Commissioner who can help inform the Government decision. This is the cycle which Mr.Sullivan controls.

I refer to Mr. Sullivan's submission:

The Department of Finance has responsibility for discharging the functions of the Minister for Finance under the Freedom of Information Acts and undertakes a training and advisory role on the legislation.

If the Department is providing an advisory role on future legislation, should it not gather all the advice available? Has the Department taken a decision to exclude the Information Commissioner?

I ask for clarification.With reference to the new bodies to be covered, it is my recollection that each Minister will do this separately by means of his or her respective Oireachtas committee and not by means of this committee. Am I correct in assuming that if a body such as the VEC is to become an FOI body, this will be dealt with by the Joint Committee on Education and Science? My understanding is that this committee does not have a role regarding the line Departments as each line Department will report directly to its line Oireachtas committee.

That is not the question. The Government memorandums do not come before this committee for comment, even though this committee is responsible for the Freedom of Information Act. We rely on officials in the Department to ride shotgun for us on this. If there is a central advisory role on new bodies and practices, that body must consult the Information Commissioner to ensure properly rounded, informed advice is presented to Government for decision.

Have we seen the list setting out the 109 bodies?

Mr. Sullivan

The list has been published but a number of other bodies remain under consideration with appropriate Ministers. On a point of information, bodies are brought under the FOI Act by way of regulation by the Minister for Finance with the concurrence of the appropriate Minister. Our role is to provide advice on freedom of information and the operation and development of it in Departments and public bodies. If issues arise around changes in legislation, we will offer whatever views we can on their appropriateness. Those views are fed into the system. If the committee feels there should be a higher level, it is up to the members to make that recommendation.

Is it Mr. Sullivan's view that the commissioner should not be consulted on these issues?

Mr. Sullivan

I am not saying that.

Is Mr. Sullivan saying she should?

Mr. Sullivan

I am saying if I felt it was appropriate to do so, I would.

Was it not appropriate in any of these 29 cases?

Mr. Sullivan

I was not involved in the passage of all 29 legislative provisions across Departments over eight years.

In none of the excluded bodies or in the 29 provisions has it been the practice to consult. Whatever about Mr. Sullivan's view, the evidence is that the practice has been that it did not happen.

Mr. Sullivan

I cannot say what level of consultation there has been.

I understand that when legislation is being prepared, a memorandum is circulated to all relevant Departments which are then invited to make observations. Is Mr. Sullivan saying as Secretary General he has no sense of a need to take a proactive stance as the mother Department of the Freedom of Information Act when new legislation or institutions evolve and develop through the process of Government?

Mr. Sullivan

Our role has been to identify the bodies to bring into the freedom of information process and consult other Departments. If Deputy Burton wishes to call that a motherhood role it is fine. When draft memoranda are circulated which raise freedom of information issues and we have comments to make, including a view that the commissioner may not agree with a point, we will make a contribution. Ultimately, it is a matter for the Minister in the relevant Department to finalise a memorandum and put it to Government for a final decision. It is then a matter of ministerial policy. I cannot comment any more than that on the issue.

We have an accumulation of bodies relating to legislation since changes were made to the Freedom of Information Act. Is it Mr. Sullivan's contention that the Department of Finance has submitted memoranda arguing that a proactive position should be taken on freedom of information which might broadly reflect concerns the commissioner has raised in her reports from time to time? Does that happen?

Mr. Sullivan

We have been proactive in extending the Freedom of Information Act to other public bodies.

With due respect, I am asking a different question. Perhaps I am a bit stupid and should go through the matter again slowly. I understand a memorandum circulates to every Department when new legislation is being prepared, new bodies created or existing bodies changed. Under the strategic management initiative it has been practice for the past ten years or thereabouts for legislation to be proofed — I understand that is the term used by civil servants — to determine whether it is sensitive to gender issues, ethnic minorities, people with a disability and so forth. Are Bills and ministerial directions, regulations or orders proofed to ensure they proactively uphold the Freedom of Information Act as new bodies are rolled out?

Mr. Sullivan

If any freedom of information issue arises in connection with the establishment of a body — if it is in a memorandum — we will offer our observations on it. In that sense, one could describe the process as proofing. The practice the Deputy alluded to refers to proofing for impact on poverty and so forth. While it is not a formal practice, if issues of an FOI nature arise in a draft memorandum or Bill we will offer comments on the pros and cons of the matter.

As this is not a matter of law, no legislation would be required if the Department of Finance, as the mother Department in the area of freedom of information, was to accept a recommendation by the joint committee that it proof for freedom of information purposes all material emanating from Departments that is connected to changes in legislation, regulation or the establishment of new bodies. It would be within the Department's stated capacity of discharging the Minister's responsibilities under freedom of information legislation. Is there a legislative barrier to the Department adopting such a practice as a policy position?

Mr. Sullivan

My only difficulty with the proposal is that the Department essentially does what the Deputy has described. We do not call it proofing but mechanisms are set out in Cabinet procedures and instructions. These would have to be changed if this procedure was to be established on a more formal basis. The type of practice outlined by the Deputy is done.

In that case, would there be no legislative barrier preventing the Department from communicating to the Information Commissioner its efforts to be proactive in the area of freedom of information? Is the absence of direction a barrier?

Mr. Sullivan

I will put it this way, if we have any observations or opinions on particular proposals we make them to the individual Departments and the Minister for Finance. It would not be appropriate for me to indicate that I agree or disagree with a particular course of action which has been proposed and communicate this view to somebody else and I would not do so. The system is based on that approach. If it is decided to accept or reject the advice, it becomes a matter of Government policy and that is the end of the matter. I cannot get involved in that area.

Is Mr. Sullivan not shocked that in the case of the Health and Safety Authority, the Information Commissioner was obliged to discover from a member of the public that an FOI restriction had crept in? Is he not shocked that there was no communication from his office in respect of an important element of public policy development? His office may have operated in a proactive manner. Is he at liberty to indicate whether that was the case?

Mr. Sullivan

The Information Commissioner should not have been informed in that way. The legislation took 12 months to go through the Oireachtas. This restriction was contained in place from the outset; it was not introduced during the legislation's passage through the Houses. The legislation was passed in June but it was not commenced until September. That is where the problem lies. Our Department may not have known when it was to be commenced.

We have taken the matter up with other Departments. An exchange was detailed in the report to the Information Commissioner in respect of this issue. There was subsequent correspondence after the submission of the report and a procedure has been put in place to notify her of legislation of which we are aware. We have raised the matter with the Secretaries General of various Departments to ensure that legislative changes are communicated to the Information Commissioner to prevent a recurrence of the matter in question. I understand that the Office of the Ombudsman and Information Commissioner has put in place its own procedures.

If I understood what he said correctly, Mr. Sullivan is suggesting that the Information Commissioner's office may only be informed of legislative changes after the enactment of legislation. I accept that it would be better if she received a circular after the event rather than being obliged to undergo the humiliation of hearing about such changes from members of the public. However, in the context of the smooth running of government and of taking a proactive stance in respect of freedom of information, what is the point of informing her after the changes have been made?

Mr. Sullivan

It will not happen after the event. As already stated, the question of consultation during the drafting process is, in the context of the nature of the legislation under consideration, an issue for individual Departments to consider. It is fine if they want to engage in such consultation.

Consultation on drafting is a question for individual Departments. The point is that the Department of Finance is the lead Department in respect of the Freedom of Information Act. It seems that the Department is running away from any sense of responsibility in this area. The Department of Finance has a more advanced understanding of the Freedom of Information Act than many line Departments. It is, however, throwing it back to those Departments to inform the Information Commissioner's office. What is the role of the Department of Finance in informing the commissioner?

Mr. Sullivan

Since the incident in question, we have endeavoured, where possible, to inform the commissioner. It is a belt and braces issue and it already has been taken up by Departments. The inclusion of the provision in question in the health and safety legislation was a policy decision. I have no doubt that if the Information Commissioner had been consulted on the matter, she would have had certain views that might not have been the same as those of the Department. So be it.

Does Mr. Sullivan accept that the Department of Finance, as the lead Department in this area, should adopt a proactive approach in the context of defending the Freedom of Information Act? Mr. Sullivan is saying that if another Department suggests this in legislation, FOI is essentially either whittled down, elided or avoided, that it is just "tough cheese" for the Commissioner. It is "catch me if you can".

Mr. Sullivan

No, that is not what I am saying.

It sounds very like that to me.

Mr. Sullivan

No. We adopt a proactive approach in terms of identifying bodies to which FOI could be extended and we have identified a considerable number of such bodies. We give advice on the legislation when it arises and advise as best we can on the operation of the FOI Act and what can or cannot be done. There is a great deal of liaison with the Information Commissioner. It is not fair to say we just sit back and do nothing proactively.

Under the second heading on the report, Mr. Sullivan says there is no culture of secrecy and that he does not recognise such a culture in the modern Irish public service. I find that a strange statement. Significant improvements have been made in many parts of the public sector and many people have put their hands up when they realise FOI applies. For example, with regard to students' examination scripts, people realise it is actually much easier to open out the information. I accept that point. However, numerous pages of the report detail the various areas. Earlier I gave one example with regard to the Department of Education and Science. That is referred to on page 19 , dealing with the Education Act, 1998, the Commission to Inquire into Child Abuse and the Residential Institutions Redress Act. With regard to the latter, Mr. Sullivan represents the Department of Finance so I presume he has a clock ticking on the cost to date, about €800 million. That deal was meant to cost the State €120 million at most, with a similar contribution from the religious orders. Currently we can get no information on awards made in respect of abuse, physical or sexual, carried out by individuals in different institutions. We will have no capacity to get information about the totality of the awards against particular institutions such as the Letterfrack or Daingean reformatory schools.

Mr. Sullivan represents the Department of Finance. A massive expenditure of public funds is involved in this area, yet the report shows that effectively, any disclosure of how and why this money was spent will be shielded, and that may well carry on into historical archives. In terms of spending taxpayers' money, is the Department of Finance not concerned that an essential element of democracy with regard to the disbursement of public funds is being disregarded? Mr. Sullivan talks of being delighted that — correctly — the Minister for Community, Rural and Gaeltacht Affairs posts a list of small and large grants to different organisations around the country. In the instance I speak of, however, he is standing over what in the end will probably cost €1 billion of taxpayer's money, and we will be given no information.

From a philosophical point of view I want to understand the position the Department responsible for freedom of information takes to defend the concept of freedom of information and the concept of taxpayers having an entitlement to know how their hard-earned taxes are being spent by Government on their behalf.

Mr. Sullivan

With regard to the secrecy issue, I was trying to supply some balance. We are looking at a very narrow though important area of disclosures. I was trying to reflect that during the years I have seen a great change in the attitudes to providing information. Today I no longer see the same culture. Things are more open and transparent, which is for the good. People have embraced it, and I would not be doing justice to those in the system who enforce the Freedom of Information Acts 1997 and 2003 or those who provide information to people if I did not acknowledge the change. That is my view based on more than three decades' experience.

Perhaps I might ask if Mr.Sullivan is concerned that up to €1 billion of taxpayer's money was not——

Mr. Sullivan

I was dealing with the general issue of secrecy about which the Deputy inquired. Much work has been done in the area, and a great deal more remains to be done and will be addressed as we continue improving services generally. I cannot go into the details of every case, since those are matters for the appropriate Departments. I understand that the Commission to Inquire into Child Abuse Act 2000 and the Residential Institutions Redress Act 2002 provide, before the dissolution of the relevant bodies, for the making of decisions on records held by them. That is clearly what the Oireachtas has decided, and I may not comment on it. I am naturally concerned about the money, and I would not accept any charge that we are not interested. However, I cannot comment further, since the provisions are laid down by legislation.

On the topic of the Residential Institutions Redress Board and the possible sum of €1 billion that has been mentioned several times today, Mr. Sullivan and most members will be aware that the Comptroller and Auditor General has dedicated a chapter of his report to that fund on two successive occasions. I expect that there will be a report every time. The Committee of Public Accounts has examined the matter in detail and will continue to do so, and the Committee on Education and Science is quite within its rights. Disclosure of information on those important issues through the Freedom of Information Acts 1997 and 2003 is one method, but there are many other mechanisms to do so. They may not be available under the Acts, but they are available to the Oireachtas, and much information and detailed assessment has emerged regarding average awards. I am sure that further information will come to light through the Oireachtas.

I must correct the impression conveyed by the Chairman. I raised this matter at the Committee of Public Accounts within the last six weeks and was advised by the Secretary General of the Department of Education and Science and officials from the Residential Institutions Redress Board. I cannot recall whether the Chairman was present. It is connected with the report's content, in that they said that the redress board was barred from giving details allowing identification of costs regarding individual institutions, such as Letterfrack or Daingean, or how many staff members were found by the board to have abused individuals, sexually, physically or otherwise, as a consequence of which awards were made.

While the Comptroller and Auditor General and the Residential Institutions Redress Board may give figures on the total number of persons to apply through the various strands, according to what we were told at the Committee on Public Accounts, there is no further capacity. Various people before the committee identified part of that inability as arising, very significantly, from exclusion from the Freedom of Information Acts 1997 and 2003, which was built into the Act. If one consults the records of the committee, one will see that. The Comptroller and Auditor General confirmed that excluding legislation from the Freedom of Information Acts 1997 and 2003 can have a serious effect on people's capacity to discover how their tax money has been spent.

We will have that matter clarified. However, I do not believe the Freedom of Information Act will prevent the Comptroller and Auditor General from doing his work. The point I am making is that there are two separate issues to be considered. I do not believe the secrecy provisions of the Freedom of Information Act debar the Comptroller and Auditor General from doing his job.

I disagree with the Chairman.

We will clarify the matter with the Committee of Public Accounts.

I had to allow myself a wry smile when Mr. Sullivan said in his statement that he did not recognise the culture of secrecy in the modern Civil Service. If one is a senior civil servant, one is inside the loop and therefore, certainly in one's area of operations, one is not really affected by secrecy of any significant dimensions in the majority of cases. Most are not in that privileged position and are outside the loop.

I would, however, like to confirm one statement he made, which goes back to my experience when freedom of information was first brought in. Freedom of information officers in individual Departments are very conscientious about what they do. They are not trying to operate a culture of secrecy. They are trying to collect the relevant documents from various people and, in my experience, they do that well and conscientiously.

A real concern which was discussed when the Information Commissioner was present was how freedom of information affects the keeping of information. The question is whether it is right or expedient for public servants to alter the manner in which they give advice or keep records because they are conscious that these are now subject to freedom of information, or indeed whether they record information at all. I have no doubt that one of the reasons the freedom of information legislation was altered is that it significantly affects the way people behave. Whether it should is a separate issue. A fact that is not always sufficiently acknowledged in this debate is that there are, in many cases, perfectly good reasons for secrecy and confidentiality.

On the question of whether there should be a statutory obligation to consult the commissioner about an extension, non-extension or exclusion of matters, I want to express a particular view. In the majority of cases where it is proposed to extend her remit, as she is consulted beforehand about the details and how precisely the frontiers are to be drawn, the problem seems to arise in the case of non-extension or exclusion. I can understand why Departments and agencies would not necessarily want to leave matters to the discretion of the commissioner under the general safeguards. There are many cases where Departments want certainty and predictability in some situations rather than matters being left to the discretion of that office. As for consultation, if, for example, the Garda Síochána were included, it might well be that the views of the Garda Commissioner carry much more weight than those of the Information Commissioner on whether an extension should be made. In an area where foreign investment interests are affected, the views of IDA Ireland might carry more weight than those of the Information Commissioner.

In the media-driven political world in which we live, I do not anticipate that the Government, irrespective of its political composition, would create a precise statutory obligation to consult the commissioner because if she were consulted and she were to advise that something should be done, and the Government, for other reasons or because of advice from other sources, were to decide it should not be done, that would create much potential for political and media embarrassment. As a compromise, I suggest that where it is proposed in specific legislation to restrict the remit of freedom of information, the commissioner should be notified of the proposed restriction and given time in which to offer observations. That would not be precisely the same as consultation but it would nonetheless allow for the expression of views. That would be good administrative practice and would ensure that the commissioner was not taken unawares or denied an opportunity to make observations, even though in certain instances it might not be the observations of her and her office that would be the decisive consideration for the Government.

Real issues arise with regard to the Residential Institutions Redress Board. At the end of the process, assuming it has a finite end, proper and detailed analysis should be undertaken by some of those who have been most closely involved as to what has been done and the lessons to be drawn. I agree with the Chairman that this is not necessarily best done through the freedom of information mechanism; it could be done in other ways. However, it is important that it should be done and that rather than simply terminating the scheme more or less without comment other than comment on the large sums that have been expended, a detailed breakdown should be made of what has been done and how much has been spent.

Mr. Sullivan

I note the Senator's points. It is hard to generalise with regard to record keeping but I recall that the former Information Commissioner drew up a report on this issue and found that there was no major impact on record keeping across the system.

With respect, while Mr.Sullivan may not have been monitoring what happened, I referred to specific and important instances where that simply was not the case, for example, where an important committee would simply provide agreed conclusions instead of keeping minutes that recorded the discussions and inputs from different departmental sources. That was a direct result of freedom of information coming into effect.

Mr. Sullivan

It is difficult to generalise in this regard. People are certainly more careful in what they commit to paper. The Senator referred earlier to the issue of who said what. I am not sure that this is a good procedure to adopt because it leads to endless subsequent arguments as to what a person said. There has probably been some tightening up of record——

I respectfully disagree. Conclusions only provide the end results and not the deliberation process beforehand. In terms of information and history, a more detailed record of what people state is required. The record of the proceedings of the Dáil and Seanad does not merely record the results of votes. It also reports what people said.

Mr. Sullivan

Fine. As I stated, much of it has been tightened up. I have seen things written that should never have been written in the first instance and that is no harm. It is difficult to state that matters that should be written down are not.

The Taoiseach might disagree.

Of the approximately 150 requests made, the Information Commissioner concurred with the view of the relevant Department in more than 100 cases. Many of the other 42 cases involved the Departments of Enterprise, Trade and Employment and Health and Children.

Mr. Sullivan


I will give an example from the Department of Finance to illustrate the process which the committee must tease through. When Mr. McCreevy was Minister for Finance, he sent us a report on 25 June 2004 which stated the Department wanted to exclude the National Development Finance Agency Act from the Third Schedule because of confidential information.

In her response the Information Commissioner stated the Freedom of Information Act contains safeguards for commercial information and proposals of a commercial nature. What aspect of the Freedom of Information Act does Mr. Sullivan feel does not cover the concerns of the Department of Finance? The Department is obviously not satisfied with relying on the Freedom of Information Act to protect confidential information, even though the Act specifically refers to commercial information.

Is it a matter of handing over the decision to another person? Is it a real or imagined fear? We must tease out this principle. As yet, I do not understand the Department's concerns about including the National Development Finance Agency Act 2002, given the safeguards in the Freedom of Information Act. It is a criminal offence for people to release confidential information other than that prescribed by law. What is the difficulty in having that Act subservient to the Freedom of Information Act?

Mr. Sullivan

As I understand it, neither of these bodies is subject to the Freedom of Information Act and it is not clear what impact it would have. The only issue is confidentiality of information and the certainty that commercially sensitive information is not released. That is the view held.

What Mr. Sullivan is stating is that the National Development Finance Agency is not one of the 109 bodies under consideration to be brought under the Freedom of Information Act.

Mr. Sullivan

It is not one of the published bodies to be brought in. However, it is under consideration.

I still do not understand. Will Mr. Sullivan explain it again slowly and tell me what is in the Freedom of Information Act that does not protect the agencies?

Mr. Sullivan

These bodies have confidential information. As they are not subject to the Freedom of Information Act it does not matter. The issue is that they have confidential information which must not be disclosed and that is absolute. However, it is not absolute in the same way as——

It is not absolute. It is at the discretion of the Information Commissioner.

Mr. Sullivan mentioned six cases where requests made were turned down. Would they help us to understand the threat? I presume they are explicit examples.

I presume that if a request went to the National Development Finance Agency under the Freedom of Information Act, the person making the request would be told there was no such office at the Department under the legislation.

I wish to refer——

I am only teasing that out as an example.

——to a letter from the Department of the Taoiseach to the leader of the Labour Party, which stated that, while there is no requirement in the Freedom of Information Act for formal notification of changes made to that Act via other legislation, the Department of Finance has written to Secretaries General to request that Departments remain mindful of the need to bring developments impacting on the Act to its attention and to that of the Office of the Information Commissioner. That is a reasonable and helpful statement but Mr. Sullivan is playing hardball.

Mr. Sullivan

I made the same comments 30 minutes ago. I said that we had written to the Information Commissioner after the submission of her report, as well as to the Secretaries General of every Department. It is to this that the letter in question refers. I was not playing hardball.

The letter from the Department of the Taoiseach underlines the point that when the next legislation to amend the position vis-à-vis FOI is introduced, a statutory duty to notify the Information Commissioner, rather than merely contacting Departments to request that they inform her, would be desirable. While that is not the quite the same as a process of consultation, it would at least provide her with an opportunity to make observations.

Mr. Sullivan

I referred to that matter. I am not trying to play hardball. If Deputy Burton wishes to see the letter, I have it in my possession.

Are there any further questions? We have teased this matter out, although, since we are probably as confused now as we were at 10 a.m., we will be obliged to ruminate on it.

I have one further question, which I also raised with the Information Commissioner. I understand that when Members of the Oireachtas make FOI requests, they are subject to the €15 charge. However, I received fairly consistent reports that media organisations are being charged between €900 and €1,200 in respect of applications. As the Department with original responsibility for FOI and in terms of strategic management, has the Department of Finance given any policy indications to line Departments? While it is welcome that Deputies and Senators are not charged high fees, it seems that we are being kept happy, whereas individuals and media organisations are incurring significant charges.

Mr. Sullivan

While my colleague, Mr. Fox, may be able to speak further to the application fee, I think the Deputy is referring to search and retrieval fees, which involve extensive searches in the recovery of documents. That is a time-based issue.

The Secretary General mentioned compliance with the legislation. The charging of fees was one area in respect of which compliance was found to be inadequate and the Information Commissioner found that search and retrieval fees were charged in only 6% of cases where they could have been applied. The requirement to charge a search and retrieval fee is not an optional extra. There are limited exceptions to the rule but, in general, if the request exceeds a certain threshold, a fee must be charged. Public bodies, on foot of the commissioner's report and work by the interdepartmental working group, have been conscious that they may not pick and choose the parts of the Act with which they comply and that the legislation deals specifically with fees. There has been more charging in recent years than previously. Public bodies are applying the relevant regulations.

Mr. Sullivan

When FOI requests come in and it is recognised that there is extensive work to be done, there is generally communication with the requester to narrow the focus to what the person is looking for and to reduce it for him or her.

On behalf of the committee, I thank Mr. Sullivan and the officials from the Department for assisting us and providing information.

The joint committee adjourned at 1.30 p.m. until 3 p.m. on Wednesday, 22 March 2006.