JOINT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE debate -
Wednesday, 19 Jul 2006

Freedom of Information Act 1997: Review.

Chairman

We will see what the clerk comes back with from both convenors. Is that agreed? Agreed. There is one item under the Department of the Environment, Heritage and Local Government which we did not deal with on the last day. We will come to that at the end of the meeting.

We are now moving on to items concerning the Department of Finance. The Minister has requested that they be excluded from the Schedule to the Freedom of Information Act. The Information Commissioner disagrees with this. We will go through the documents in alphabetical order. The first item is the Ethics in Public Office Act 1995, section 35.

Deputy Burton

I propose, as I have done before, that we should uphold the Information Commissioner's opinion. Her opinions have been carefully considered and the broad thrust of them is to expand freedom of information which has been very good for the country and the economy. If the structures put in place since 1997 had been put in place much earlier, we would not have had one quarter of the tribunals the country has had. Therefore, I propose we uphold the Information Commissioner's recommendation.

Deputy C. Murphy

I second that proposal.

Deputy Finneran

We established this procedure for dealing with the matter. If anything, in recent times there has been an intrusion into personal information in many ways. I am not a great believer in this. While I will not instance them here, some of the instances have nothing to do with the public interest but are about selling newspapers. I do not support this.

Chairman

What about the Information Commissioner?

Deputy Finneran

I agree with the comment.

Deputy P. McGrath

It is extremely difficult to reach decisions on matters concerning personal information. It is difficult to come down firmly one way or another. What more information can be provided concerning the Ethics in Public Office Act? Our details are published regularly and feature in the newspapers. Today, I received a refusal concerning a freedom of information request because it was said it was about personal information. I disagree strongly that it was about personal information. The request related to the performance management awards made to senior personnel in local authorities. The procedure is that the county manager, with his or her directors of services, submits a report to this body saying that in the year 2006 they expect to reach certain targets. In October or November the manager submits another report stating, "Of the targets we set out in January-February, this is how we have achieved them. We have reached all our targets". The group then meets in private and agrees that the county manager and the directors of services should be rewarded because they did a great job which has been approved. Some €1.2 million of taxpayer's money is paid out on this basis.

Under the Freedom or Information Act, I sought the information concerning my own area, County Westmeath. I wanted to see the subsequent report and how the body adjudicated upon it. I have no interest in knowing what kind of a bonus the manager or the directors of services received, but I am interested in how the targets are set and how it is assessed that they are being met. There is no outside assessment. It is the body that decides. Its members do not talk to the chairman of the council officials or public representatives within the county about how this process happens. It is purely a paper exercise, yet this information is being protected because it is supposedly personal information. I have a major problem with this. In that context, we must open up what we are releasing on personal information.

Chairman

That is the issue at stake.

Deputy P. McGrath

The Ombudsman, Ms Emily O'Reilly, has undertaken a review of the Freedom of Information Act. She will be examining my case because I will refer it to her.

Chairman

The Deputy will appeal the decision. However, we are talking specifically about limited access to statements of interest of persons occupying designated positions under the Ethics in Public Office Act in respect of themselves, their spouses and children. They are furnished on the strict understanding that they cannot be disclosed outside the situation specified in the legislation. The Minister is saying he wants to keep it that way. The Information Commissioner is saying she wants to decide whether it should be disclosed.

Deputy N. O’Keeffe

The first important point is that we live in a democracy. The Government governs and establishes such bodies. However, they have not been long in office when they want more and more power to the exclusion of the public. This is why politics is becoming such a cynical business and why we have such a low turnout at the polls. The more of this we have, the more suspicion we create. I totally agree with the Minister's response to exclude the item.

Deputy C. Murphy

This goes against the principle of what we have decided up to now. Whether our decisions are overturned or not is another matter, but the Information Commissioner stated, "Given the safeguards of the Freedom of Information Act, and in light of the level of disclosure already provided for, my view is that section 35 would be included in the Third Schedule". Essentially, she is saying there are plenty of safeguards. As that has been the cornerstone of the decisions we have made up to now, why should we deviate from it?

This is a very different meeting to the one that happened the last time. We followed a set of principles last week, yet now we seem to be moving in the opposite direction. I am strongly of the opinion that the Information Commissioner adds to the credibility of the decision not to provide information in this situation. Under the legislation, it is possible to exclude information where it is not appropriate. If that is done by the Information Commissioner it will be read one way, while if it is done by a Minister it will be read in an entirely different manner. Therefore, it is in the interests of the ethics in public office legislation that we should allow the Information Commissioner to do this.

Chairman

Do we have a consensus on this issue? The Minister's view is that the information on spouses and children furnished under the Ethics in Public Office Act is given on the strict understanding that it cannot be disclosed. The Information Commissioner takes the view that she is well capable of taking their personal interests into account and that she is fit to decide.

Deputy Finneran

There is no agreement on it.

Chairman

At this stage, as there are 20 more items to discuss and I can see the same issue arising, we will have to put it to a vote.

Deputy Finneran

That does not arise at this time.

Chairman

There will be a vote at some stage.

Deputy Finneran

At some stage.

Deputy Burton

It would be in order to have a vote now on the position that we take arising from this meeting. Ultimately, we are concerned here with the Ethics in Public Office Act 1995. I agree with what both Deputy O'Keeffe and Deputy Paul McGrath have stated. For many politicians this is a difficult area where, since the aforementioned Act came into effect in 1995, everybody has been on a learning curve. When one compares the cost of tribunals to the public purse with getting a modern framework for disclosing information on people who hold public office and who, therefore, have responsibilities to the public, even though it is difficult for many of us on many occasions, it is better to agree to disclosure of more information. Most of the grief in the tribunals is to do with the fact that there was no ethical framework prior to the coming into force of this Act.

The Information Commissioner states in her report that there are enough safeguards. Section 35 of the Ethics in Public Office Act 1995 is a provision which, with certain stated exceptions, prohibits the disclosure of public information and it only specifically provides for disclosure of information, for instance, where there is an order of the court that would make the information public. All we would be doing is giving an additional level of discretion for disclosure in certain instances in the context of section 35 permitting, for reasons of State or public policy, non-disclosure. There is no threat to the interests of Members of this House nor, specifically, to the interests of people who may be officeholders at any time, in accepting the recommendations of the Information Commission.

Deputy C. Murphy

It comes down to whether one trusts the Information Commissioner to apply the terms of the Freedom of Information Act.

Chairman

For the purposes of clarity, section 35 of the Ethics in Public Office Act 1995 makes it an offence for a person to disclose information received under the Act or through being present at a private sitting of the Standards in Public Office Commission or the Select Committee on Members' Interests of either House during an investigation on a possible breach of the Act. The Act provides that it is an offence for information to be disclosed by members of the Select Committee on Members' Interests of the House and the Standards in Public Office Commission. The Minister has taken the view that he does not want it available under the Freedom of Information Act because he considers it would be an offence if it was released by the Chairman, by the Information Commissioner, who in her role as Ombudsman is a member of the Standards in Public Office Commissioner, or by the other members — the Comptroller and Auditor General, the Clerk of the Dáil, the Clerk of the Seanad and former Deputy Liam Kavanagh. The proposal from the Information Commissioner is that she should have the authority to release it, even though it would be an offence for the members of the Commission to release it. The Minister does not agree she should be in a position to make that call. She believes she should.

A vote has been called with regard to section 35 of the Ethics in Public Office Act 1995.

Question, "That the provisions of section 35 of the Ethics in Public Office Act 1995 be excluded from the Third Schedule to the Freedom of Information Act 1997, as amended in 2003", put.

The Joint Committee divided: Tá, 7; Níl, 4.

Tá

• Deputy J. Cregan.
• Deputy M. Finneran.
• Deputy S. Fleming.
• Deputy J. McGuinness.
• Deputy M. J. Nolan.
• Deputy N. O’Keeffe.
• Senator M. White.

Níl

• Deputy J. Burton.
• Deputy P. McGrath.
• Deputy C. Murphy.
• Senator J. Phelan.

Question declared carried.

Chairman

The next item is the Public Service Management Act 1997, section 53. The proposal from the Minister is to exclude the documentation from Schedule 3 as referred to in the Act, while the Information Commissioner has proposed that the information be included in Schedule 3. Has anyone a proposal on whether to exclude or include it?

Deputy Finneran

The ministerial and departmental position is to exclude it. Discussion documents in advance of strategy papers are what are involved here. It is important that we allow genuine exchanges in preparation of strategy statements. I, therefore, agree with the Minister on this issue.

Deputy Burton

A strong case can be made for the Information Commissioner's opinion to be upheld. While Departments publish glossy strategy documents, complete with pictures of happy people, buses, elderly people in day-care centres, etc., the effect of what Deputy Finneran proposes is that the working papers ——

Deputy Finneran

I did not propose it; I supported it.

Deputy Burton

The effect of the Minister's position is that the working papers which form the strategy ——

Deputy Finneran

It was the Department's position.

Deputy Burton

It is down as the Minister's response on the list and his response is to exclude the information. The effect is to bar the working papers that form the basis of the glossy strategy documents from the public domain. This issue is important for every Deputy in the House. Take, for example, the Department of Education and Science. Deputy Finneran may not be aware, but the Department's planning for new schools, for instance, affects every town and village.

Chairman

The Deputy should not make that assumption with regard to Deputy Finneran.

Deputy Finneran

I know the position on every school in my constituency.

Deputy Burton

The Department's planning for new schools is based on information that is typically nine to ten years' old. The census figures demonstrate the reason I say this proposal affects most of the people sitting here, and people in my constituency in a particularly acute way.

Chairman

The Deputy knows full well that the census information only makes up a portion of the information going into the making of a decision. A decision is not based on the census information.

Deputy Burton

If the strategy documents are based on it, as they are for some Departments, they are based on seriously out-of-date information which renders them meaningless. This is the reason, whether we are talking about rural Westmeath, Roscommon or elsewhere, we have completely overcrowded schools in some areas and areas of growth with no new schools until, perhaps, about seven years after all the new houses have been built and occupied. I could give similar examples with regard to public transport facilities or the allocation of Garda resources by the Garda Commissioner. Hence, in many parts of Ireland — as Government Deputies are finding out — people may be better off, but the facilities and resources do not match the changes in population. This occurs because it is not possible for us to access the papers on which the strategy documents are based, thereby making it impossible for us to contest decisions Departments, Ministers and civil servants may get wrong with regard to the provision for particular districts and areas. We are cutting our throats by not supporting the Information Commissioner's recommendation.

Deputy C. Murphy

I wonder what kind of report we will have next week.

Chairman

We will not have a report.

Deputy C. Murphy

This is like a game of two halves where a completely different game is played in each half. The issue comes down to the principle under which we decide to include information. I agree with Deputy Burton. If the 1996 census figures are used as a basis to decide whether schools are required, I can understand why there are so many problems in my constituency.

Deputy Finneran

That is misinformation.

Deputy C. Murphy

There must be some reason such a hames was made of it.

Deputy Finneran

Any good Deputy will know exactly what is happening in his or her own constituency.

Deputy Burton

Children cannot get primary school places. Fianna Fáil is clearly blind to what is happening when parents are unable to get a place in primary school for their children.

Deputy Finneran

It is the fact that so many are coming into the country and the country is going so well.

Deputy Burton

The information is based on census data that is ten years old.

Chairman

We will give the Deputy a bit from this side of the House.

Deputy Finneran

The reason is the country is moving on and there are so many extra people about.

Deputy N. O’Keeffe

It is a mark of our success and development and new school developments and the Deputies opposite will share in it.

Chairman

I wish to give the Deputies some practical advice; they should get information from their local authorities about new houses built, and planning permission granted. The Department of Education and Science takes that into account.

Deputy Burton

The Department does not.

Chairman

It takes into account the new houses built in an area——

Deputy Burton

I am sorry, it does not.

Chairman

——and the level of planning permission granted. That is the information.

Deputy C. Murphy

This is exactly the point. The Chairman is making the point for us. We could rationalise the documents if we had the information but in the absence of having the information how can one know how the decision was arrived at? This is exactly my point.

Chairman

There are programmes for dealing with developing areas and we all know where the population has increased.

Question, "That section 5(3) of the Public Service Management Act 1997, be excluded from the Third Schedule of the Freedom of Information Act 1997, as amended in 2003", put and declared carried.

Chairman

The next item on the agenda is the National Pensions Reserve Fund Act 2000, section 13. The Minister has stated the fund does not fall within the scope of the freedom of information legislation. The Information Commissioner has a differing view. I invite members to have a look at the documentation which is to do with the National Pensions Reserve Fund. There is no need to debate this matter because this fund is not within the scope of this section 32 review.

Deputy Burton

Would the committee be prepared at a later date to consider that the National Pensions Reserve Fund should fall within the scope of the Act? Why should a fund that has invested around the world a significant amount of funds belonging to the people not be subject to freedom of information legislation? I made representations at the committee on a number of occasions that the fund should have an ethical investment programme. As a result, the fund chairman informed the committee he has agreed to follow UN conventions with regard to ethics. The exclusion of the fund from the scope of the legislation may be outside the remit of the committee to remedy.

Chairman

It is outside the remit of today's discussion but the committee is free to return to it. The Information Commissioner comes before the committee on an annual basis and the matter may be raised in the context of the annual report of the Information Commissioner.

Deputy Finneran

There is an annual review and a number of bodies are added every year.

Chairman

It is for good sound commercial reasons.

Deputy Finneran

I agree.

Chairman

If all the decision-making procedures of the Irish National Pensions Reserve Fund were open to the freedom of information legislation and other funds in other countries which compete against it ——

Deputy Finneran

We could shoot ourselves not in the foot but in the head.

Chairman

Yes. We would be disadvantaging the pensions fund we are trying to establish for the next generations.

Deputy Finneran

It should be remembered that this legislation was vehemently opposed by the Opposition at the time. Even when it was put in place, we had proposals from Opposition parties that it should be raided and the money invested in some developments here. I am glad to see that the then Minister, Mr. McCreevy and the current Minister, Deputy Cowen, have not acceded to that request and there is now €16 billion in a package.

At a recent meeting OECD meeting in Paris——

Deputy Burton

On a point of information and a point of order——

Deputy Finneran

——OECD member countries informed me and other Deputies that they were delighted with what Ireland had done. They regarded it as a flagship project in the area of pensions provision and that it was a pity other——

Deputy Burton

On a point of order——

Deputy Finneran

——European Union countries had not followed the example of Ireland in the way we had conserved our pension fund.

Deputy Burton

The Deputy is misinformed. The Minister, Deputy Cowen, and the Taoiseach have on approximately four or five recent occasions announced that the National Pensions Reserve Fund is looking for ways in which to allocate funds to Irish infrastructural projects. The Deputy may not have——

Deputy Finneran

That is different from raiding it.

Deputy Burton

There was never any raiding; it was to use it for infrastructure in Ireland as opposed to hotels in Hong Kong.

Deputy Finneran

It was invested but not raided. There is a difference.

Deputy Burton

The Taoiseach and the Minister for Finance have announced on four separate occasions that they wish to do that.

Deputy Finneran

We all do.

Deputy Burton

As usual, Deputy Finneran is talking bull.

Deputy P. McGrath

On a point of order about Deputy Finneran's statement, an allocation of €450 million was made to public private partnerships which has not been taken up. This is not raiding.

Chairman

There are no suitable clients available yet.

Deputy P. McGrath

The only raiding was when the then Minister, Deputy McCreevy stole €600 million from the social welfare fund. That is the raiding about which the Deputy is talking.

Deputy Burton

That was a raid.

Chairman

We are discussing the National Pensions Reserve Fund.

Deputy P. McGrath

That was the raiding about which he was talking.

Deputy Burton

That was the raid.

Deputy N. O’Keeffe

The remark by Deputy McGrath——

Deputy Finneran

It has been an international success and it is a great credit to the former Minister, Mr. McCreevy and the Government of the time.

Deputy N. O’Keeffe

——that Mr. McCreevy stole €600 million is outrageous. He should withdraw it.

Deputy Burton

To use Deputy Finneran's words, he raided it.

Chairman

Even though the Information Commissioner has disagreed, the National Development Finance Agency is outside the remit of this review.

The next item is the request from the Minister for Justice, Equality and Law Reform that section 12 of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act 1993 be excluded.

Deputy Burton

On a point of information, the question of the interception of postal packets and telecommunications messages is related to the area of intelligence. We know that a previous Fianna Fáil Minister during the Haughey years resorted to tapping the telephones of a number of journalists. I ask the Chairman to provide some guidance——

Deputy Finneran

It was not confined to Fianna Fáil.

Deputy Burton

A colleague of Deputy Finneran ended up having to resign his ministerial post when he took the rap for a former Taoiseach. They are all dead now.

I ask the Chairman to provide some guidance as to how this relates——

Deputy N. O’Keeffe

No Minister resigned from any position because of phone tapping.

Deputy Burton

The then Minister for Justice, since deceased, resigned.

Deputy P. McGrath

He was Cathaoirleach of the Seanad.

Deputy Burton

He was.

Deputy N. O’Keeffe

I question the Deputy's statistics.

Deputy Burton

Could the committee have some guidance from the Chairman as to the implications of this proposal with regard to, for instance, the protection of people such as journalists from intelligence interception?

Chairman

This issue deals with the effective lawful interception regime and it is supervised by judicial oversight. This provides the protection in law.

Deputy Burton

What judicial oversight was brought in as a consequence of the telephone tapping in the Haughey years?

Chairman

I have no idea. The Minister for Justice, Equality and Law Reform in his correspondence to this committee is satisfied with the judicial oversight arrangements and the fact that lawful interceptions taking place subject to judicial oversight should remain confidential to the security forces and should not come within the freedom of information legislation. Is it agreed to exclude it?

Deputy Finneran

It supports the security forces in this matter.

Question, "That section 12 of the Interception of Postal Packages and Telecommunications Messages (Regulations) Act 1993 be excluded from the Third Schedule of the Freedom of Information Act 1997, as amended in 2003," put and declared carried.

Chairman

The next item is section 19 of the Refugee Act 1996. The Minister recommends that it be excluded. He refers to the practicalities of including the Office of Refugee Applications and Refugee Applications Tribunal and the confidentiality of information provided by asylum applicants. The UNHCR indicates that confidentiality is one of the key issues in asylum applications. The Minister wants to support the United Nations in granting confidentiality to asylum applicants. The Information Commissioner believes she should have the discretion as to whether the information should be disclosed.

Deputy Burton

This is important, since several barristers sit as application commissioners in asylum appeals.

Chairman

Correct.

Deputy Burton

While we do not know the statistics pertaining, someone making an appeal is not advised why the appeal is successful or unsuccessful. The consequence is that no information is available. For instance, there seems to be zero chance of an appeal being successful in the Cork area. The Minister, Deputy McDowell, is not correct in what he has advised the committee. The information about individual refugees is certainly subject to the protection of their privacy. However, it should be possible to get general statistics and reviews.

We have the same argument about the family law courts. Information should be available about how cases are decided, the points of law at issue, etc. The Minister is misquoting the High Commissioner for Refugees. We are all in favour of protecting the privacy of individual applicants. However, the Minister, as he was recently in a number of cases, is wrong in what he is saying. For that reason in this case I appeal to Fianna Fáil members to reconsider. This would simply enable people to have some information on why some individuals are successful in their appeals and others are not, and why some appeal commissioners may grant 4% or 5% of appeals and others grant 0%.

Chairman

That is very interesting but not relevant to what we are discussing.

Deputy Burton

It is relevant.

Chairman

The section with which we are dealing is section 19 and the issue is about protecting the identity of applicants under the asylum process. The Information Commissioner has said the Department has recommended that no changes should be made to section 19 of the Refugee Act 1996, which provides for the confidentiality of the identity and nationality of applicants for asylum. She takes the view that this includes the continued omission from Schedule 3 and cannot see any good grounds why this should be the case. The Minister wants the identity and nationality of applicants to be protected. The UNHCR agrees with him. Can we have agreement?

Deputy Finneran

It would be most wrong of us to go against the recommendation and advice of the United Nations on this matter. The United Nations has vast experience over the years on the matter. We have a recommendation from both the Department and the Minister, which I support.

Chairman

Can we take it that there is agreement to exclude section 19 of the Refuge Act 1996 from Schedule 3? Is that agreed? Agreed.

The next item is section 97(2) of the Employment Equality Act 1998 and relates to records created for the purposes of examination and investigation by the Equality Tribunal and the Labour Court. It is proposed that these should be afforded the same protections as apply to records of bodies protected. The Minister requests that it be excluded and the Information Commissioner wants it excluded. Is that agreed? Agreed.

The last item in this Department is the Private Security Services Act 2004. The Minister wants to exclude section 18 and part of paragraph 1 of Part 1, Schedule 2, which deals with the confidentiality of the work of members and staff of the Private Security Authority. These sections prohibit members and staff of the authority and others from disclosing information without the consent of the authority. The Information Commissioner believes she should have the authority to disclose this information.

Deputy Finneran

I ask that the Chairman give us a brief note on the matter.

Chairman

When members and staff of the Private Security Authority conduct an investigation, the confidentiality of the work of those members and staff prohibits them from disclosing information.

Deputy Finneran

Who is doing the investigating?

Chairman

The members of the Private Security Authority, a Government established body, overseeing the private security industry.

Deputy Finneran

Public concern has been expressed recently about private security firms and their regulation. I would go along with the Minister on the matter. Of course, confidentiality is important for people in the security business.

Deputy N. O’Keeffe

Can we move on?

Chairman

It refers to the private information they obtain.

Deputy N. O’Keeffe

Let us take their word for it.

Chairman

Is that agreed? Agreed.

We now proceed to legislation in the area of the Department of Transport. It is proposed to exclude the Merchant Shipping (Investigation of Marine Casualties) Act 2000. Is that agreed?

Deputy Finneran

It is not currently listed as a public body for the purposes of the Freedom of Information Act. Perhaps we should ask that it be considered for inclusion.

Chairman

Yes, we will make a note of that separately from our report. It will be reviewed again. We will exclude that particular section from Schedule 3.

I will list the legislation from the Department of Health and Children and we can take a general decision on them: the European Communities (Recognition of Medical Qualifications) Regulations 1976; section 45B of the Medical Practitioners Act 1978; Article 7 subsection B of the European Communities (Recognition of General Nursing Qualifications) Regulations 1980; Article 8 subsection B of the European Communities (Recognition of Midwifery Nursing Qualifications) Regulations 1983; section 38B of the Dentists Act 1985; section 38B of the Nurses Act 1985; Article 20 section 1 paragraph (c) of the European Communities (Active Implantable Medical Devices) Regulations 1994; Article 18 subsection 8 of the European Communities (Hygiene of Foodstuffs) Regulations 2000; Article 17 section 4 paragraph (c) and Article 20 of the European Communities (In-vitro Diagnostic. Medical Devices) Regulations 2001; Article 12 section 4 paragraph (a) of the European Communities (Medical Devices)(Amendment) Regulations 2001; and Article 12 section C paragraph 1 of the European Communities (Amendment of Cruelty to Animals Act 1876) Regulations 2002. In all cases the Minister has requested that these be excluded.

Deputy Finneran

In the documentation available to me, it seems the Minister has not given an opinion in any of these cases.

Chairman

I will explain the format. Legislation from the Department of Health and Children was dealt with slightly differently. The Minister gave us initial documentation last year requesting that all these be excluded. We then sought the views of the Information Commissioner and these are the areas where she had a different opinion. We called officials from one Department before the committee on 20 April, that is, the Department of Health and Children, because 11 sections are to be excluded. It is the Department with the greatest number of exclusions proposed by the Minister.

We had a full meeting with the Secretary General of the Department of Health and Children on this topic. His response was given to us in April in a different format rather than getting a written report from the Minister. The comments column shows the comments of the Minister and the Secretary General who attended the meeting in April. We received the information from the Department of Health and Children in a slightly different format because its officials appeared personally.

Deputy Finneran

The Minister has recently indicated that she is preparing legislation in a number of areas regarding medical practitioners, medical councils and other areas. How appropriate is it, in the absence of the information on the new legislation, that we should make a decision on these ones?

Chairman

If amending legislation is introduced, it may or may not include a section to make it pertain to the freedom of information regulations. That decision will be taken by the Minister at the relevant time. The Minister decided that the National Pensions Reserve Fund, a relatively new body, should be excluded from the freedom of information provisions. The Oireachtas agreed with that decision at the time. Today's meeting has been called to review some aspects of the freedom of information legislation. Further decisions will be taken when future legislation is being introduced. Are the Minister's recommendations agreed?

Deputy Finneran

I would like to speak about one other area.

Chairman

Yes.

Deputy Finneran

I refer to a recent court decision about what might be considered to be an ethical and constitutional matter. I do not know whether the matter has been completed. Does the case in question impinge on the committee's considerations in this regard? Will the Chairman advise the committee on it?

Chairman

I will try to get the detailed file from the Minister. I will refer to the section dealing with the matter raised by the Deputy. I have the report.

Deputy Finneran

It would be important for the committee to get a comment from the Chairman in that regard.

Chairman

Does the Deputy refer to item No. 9, in vitro diagnostic medical devices?

Deputy Finneran

Yes.

Chairman

It states that, except as otherwise provided for by the regulations and subject to any requirement under criminal law, a person shall not disclose to any other person any information obtained by him in the performance of his functions under these regulations. Medical doctors shall not disclose information to any other person if they obtained it during the performance of their functions as medical practitioners when dealing with in vitro diagnostic medical devices. The response of the Information Commissioner states:

The non-disclosure provision identified by the Department in the European Communities (In Vitro Diagnostic Medical Devices) Regulations, 2001 as giving effect to the Directive 98/79/EC should, if it were faithful to the Directive, be a confidentiality provision rather than a non-disclosure provision. The confidentiality provision in the Directive begins with the caveat "Without prejudice to national law. . ." which grants flexibility at Member State level. I recommend that consideration be given to amending the Regulations to align it properly with the Directive in this regard. As it stands, the provision should be included in the Third Schedule.

It boils down to a fine distinction between the EU provision in respect of "confidentiality"——

Deputy Finneran

It refers to "non-disclosure".

Chairman

——and the Government's reference to "non-disclosure". There is a slight difference in the wording. The essence is that it should not be disclosed if it is confidential. They are using two words on a very close copy. The Government is stating there should be "non-disclosure", whereas the Information Commissioner is saying there should be "confidentiality". There is no fundamental or significant difference between the two positions. We will accept the Minister's view. Is that agreed? Agreed.

I would like to bring another matter to the attention of the committee. At our meeting of 20 April last the Department of Health and Children indicated that it overlooked three other non-disclosure provisions in the preparation of its report the previous year. Two of the provisions relate to the transposition of EU directives. The response to the other EU regulations, to which I have referred, applies to those provisions. The third provision relates to the Hepatitis C Compensation Tribunal Act 1997 which contains a non-disclosure clause. The continued exclusion of this provision relates to offering participants a guarantee of confidentiality. We have included the three provisions. The Department wants to retain the guarantee of confidentiality as it relates to the 1997 Act. I think we can all agree with this.

We will move on to the next Department. We have almost completed our consideration of these matters. I ask members to bear with me. I would like to refer to one small item which we did not finalise the last day. It relates to the Department of the Environment, Heritage and Local Government. It will take us a moment to get agreement on this matter. I did not have the information note before me the last day. Section 36(1)(d) of the Radiological Protection Act 1991 outlines what happens when confidential information becomes available by virtue of the provision of three specified international conventions relating to the protection of nuclear materials, the early notification of nuclear accidents and the provision of assistance in the event of a nuclear accident. Do we agree with the Minister’s response? Agreed.

It is also agreed that when the Minister involved and the Information Commissioner agree on the inclusion or exclusion of other specific provisions in the Third Schedule, the joint committee also agrees to such inclusion or exclusion. The Third Schedule has been provided. What I am saying, in simple English, is that we have not discussed approximately 100 provisions, in respect of which the Minister agrees with the Information Commissioner. If the Minister is happy and the Information Commissioner concurs, I do not think we need to try to unravel such matters. Today and the last day this committee has dealt with areas in which there is disagreement.

We have concluded our discussions. I ask the clerk to prepare a draft report before the next meeting of the committee. Members will decide to accept or reject the report, or to propose amendments to it. It will not become a report of the committee until that stage.

Deputy Finneran

I thank the clerk for the helpful comments he has made available to us. The comments allowed us to make progress with our investigation at a far greater pace than otherwise might have been the case.

Chairman

We will conclude the meeting. The committee will try to complete the report on this topic at its next meeting. There may or may not have to be a vote. There will also be a discussion with the Irish Bankers Federation at that meeting.

The joint committee adjourned at 4.30 p.m. until 3 p.m. on Wednesday, 26 July 2006.