Freedom of Information Act 2014: Motions

The purpose of today's meeting is to consider the following motions:

That Dáil Éireann approves the following Order in draft:

Freedom of Information Act 2014 (Effective Date for Certain Bodies) Order 2015,

copies of which Order in draft were laid before Dáil Éireann on 10th March, 2015."

That Dáil Éireann approves the following Order in draft:

Freedom of Information Act 2014 (Exempted Public Bodies) Order 2015,

copies of which Order in draft were laid before Dáil Éireann on 12th March, 2015."

The joint committee also received an order of the Seanad regarding these motions on 31 March. The order of referral requires the joint committee, when we have completed our consideration, to send a message to that effect to the Dáil and the Seanad. The message must be sent not later than 2 April.

I welcome the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, together with his officials. I thank them all for attending and assisting our consideration of the motions. Briefing notes were provided by the Department. The Minister will address the committee, after which we will open the debate to members for questions and comments. Is that agreed? Agreed. I call on the Minister to commence.

I thank the Chairman for facilitating a debate on two orders under the Freedom of Information Act 2014 - a new Act that we debated at some length.

One order provides for a different effective date for certain bodies under freedom of information, as I indicated would happen. The second order provides for exemptions from FOI in whole or in part for certain bodies. Both of these orders are to be made under section 6 of the Freedom of Information Act and require a positive resolution of both Houses before they are made. That is the reason I am here today. I shall deal first with the effective date order.

In the context of FOI, effective date means the retrospective date back to which records are available once an FOI body becomes subject to FOI.

It is about how far back one looks. Section 2 of the Freedom of Information Act 2014 provides that in the case of a body that was not subject to FOI legislation under the 1997 Act but is subject to it under the new Act, the effective date is 21 April 2008, unless provision is made to the contrary by order under this subsection. We debated that issue for some time. My Department received a number of applications from public bodies requesting that I set a later effective date for the application of FOI legislation to their organisations. I considered these applications very carefully. It was always my intention that any change in the standard provisions in relation to a retrospective date would be agreed in respect of only a small number of bodies where there was a clear justification for having an exceptional date. Therefore, the only applications I agreed to and that I propose the Oireachtas agree to are in respect of the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, for which I propose an effective date of 14 October 2014, the date of enactment of the legislation, and the Private Residential Tenancies Board, for which I propose an effective date of 21 April 2012 to coincide with the time when that body moved to electronic operation.

I want to explain the rationale for those decisions. These organisations hold large volumes of information, the bulk of which is personal in nature. Where records created before the effective date relate to personal information on the person seeking access to them, the effective date does not apply. When a person is looking for information on himself or herself, the effective date does not apply as he or she is entitled to access such records back to whatever date on which they were created. My agreement to an effective date of 21 April 2012 in respect of the Private Residential Tenancies Board and 14 October 2014 in respect of the Refugee Applications Commissioner and the Refugee Appeals Tribunal does not, therefore, affect this provision. The bulk of non-personal FOI requests these organisations expect to receive relate to third party requests for access to personal information. Given the nature and sensitivity of the personal information involved in respect of the commissioner and the tribunal, we must give these matters very careful consideration. It is difficult to envisage circumstances where there would be a compelling public interest in the release of such records to third parties. However, if the records were to remain subject to release under FOI legislation, each individual record would be subject to review, giving rise to a substantial administrative burden on the organisations concerned. That is why I have given the effective dates as set out.

I move on to the bodies I propose be exempt in whole or in part. As the committee is aware, a generic definition of what constitutes a public body was included in the 2014 Act. This enables FOI legislation to apply to the widest possible definition of public body. Instead of making orders to apply FOI legislation to bodies as happened under the 1997 Act, the new approach means that an order is needed if a body is to be exempt. The default position now is that a body is in, unless by order of the Houses it is out. The old order was that every body was out until it was put in. My Department has received a number of applications for exemptions from FOI legislation and they have been considered very carefully. I have only approved exemptions where it is clear that the application of FOI legislation to these bodies in whole or in part would affect their ability to perform their core functions or affect the security or financial interests of the State. The exemptions I am proposing to the committee and, subsequently to the Dáil and the Seanad cover six bodies. I am only proposing a full exemption from FOI legislation for two of these bodies. I am proposing to exempt only certain records of another three. A technical change is being proposed to the exemption already included in the Act in respect of schools to reflect the original policy I set out when the legislation was going through the Houses.

I will first deal with full exemptions. The bodies for which I am proposing a full exemption from FOI legislation are the Irish Red Cross and the Shannon Group. The Irish Red Cross conforms to the generic definition of a public body because it was established under enactment and would be automatically due to come under FOI legislation in mid-April. I accepted the case made by the Department of Defence that the inclusion of the society for FOI purposes represented an anomaly in that it had to be established under legislation to ensure, in accordance with the Geneva Convention, only one Red Cross society could exist in the State. It is a charitable organisation operating in an environment where both Exchequer resources and charitable donations have been reducing in recent years. The application of FOI legislation would represent a cost for the body which would require a diversion of resources. The application of FOI legislation to bodies in receipt of Exchequer funding, including the Irish Red Cross, will be considered in the context of section 7 of the Act once the application of the Act to this round of public bodies has bedded down. Members will recall that we debated this issue at some length during the passage of the Act. In this way I would not be imposing an administrative burden on the Irish Red Cross as compared to other national and international independent charitable and humanitarian bodies based in this country that are not included as public bodies for the purposes of the Act. I hope that is not too convoluted a way to put it. In other words, charitable bodies in general will be looked at under section 7. The Irish Red Cross is an anomaly because of its unique nature. It is deemed to be a public body having been created under statute as required under the Geneva Convention.

I turn to the other exempt body. The State Airports (Shannon Group) Act 2014 provided for the establishment of the Shannon Group as a commercial company under the Companies Acts and the subsequent transfer of both the Shannon Airport Authority and the restructured Shannon Development which was renamed Shannon Commercial Enterprises to the group. Consistent with the broader policy approach which we debated at some length and which I have been consistent in supporting, commercial State bodies such as the Shannon Group should not be subject to FOI requirements because of the uneven competitive playing field this would create as compared to privately owned competitors which are not subject to FOI legislation. Given the very important responsibilities assigned by the Government to the Shannon Group in terms of regional development of the mid-west region, it is critical to ensure the organisation is able to operate without commercial disadvantage.

I will now deal with exemptions in part. I am proposing an exemption from FOI legislation for the newly established Strategic Banking Corporation of Ireland, SBCI, in respect of certain specific classes of sensitive records because of the very high standard of banking confidentiality expected by market counterparts in respect of such an organisation. I have been advised by the Minister for Finance that if such an exemption was not provided, there would be a real risk that potential funders, on-lenders and clients of the SBCI would not engage with it and that its capacity to perform its functions would be severely curtailed.

I am proposing two exemptions in respect of records of the NTMA, reflecting recent legislative developments of which it was not possible to take account up to now. The NTMA (Amendment) Act 2014 conferred new legal cost claims management functions on the NTMA in considering and adjudicating on bills for costs presented for payment by third parties awarded their costs by the Mahon and Moriarty tribunals. These functions were previously carried out by the Office of the Chief State Solicitor and attracted an exemption from FOI legislation.

It is necessary for an identical exemption to be granted to the NTMA in respect of records associated with these functions in view of the fact that they are performed by the NTMA on behalf of the Attorney General.

The NTMA also has functions in relation to the Strategic Banking Corporation of Ireland. I have set out the case for putting in place certain specific exemptions for the Strategic Banking Corporation of Ireland to meet market requirements applying to banking confidentiality. The NTMA has been conferred with certain functions under the Strategic Banking Corporation of Ireland Act 2014. For the same reasons, these records need to be protected when held by the NTMA in the performance of its functions under the Act. The exemption I am proposing for the NTMA in this regard is a mirror image of the exemption for the Strategic Banking Corporation of Ireland.

The third exemption relates to Oifig Choimisinéir na dTeangacha Oifigiúla. Exemptions from FOI legislation are proposed for Oifig Choimisinéir na dTeangacha Oifigiúla in respect of records relating to the monitoring of compliance by public bodies and investigations under the Official Languages Act 2003 in order that the office is treated for FOI purposes in a way that is consistent with the approach applied to other ombudsman's offices. Oifig Choimisinéir na dTeangacha Oifigiúla operates as an ombudsman in respect of the provision of services through Irish by public bodies.

Consistent with the broader policy approach adopted under the FOI Act, schools with boards of management are already exempt from FOI legislation under the 2014 Act. I am proposing a technical change to the exemption in the draft order to ensure all schools, other than education and training board schools, will remain exempt from FOI legislation.

I am satisfied that the orders I am proposing are limited, modest and necessary for the reasons I have outlined. They are also consistent with the line I have taken throughout the significant debate we have had on completely remodelling the FOI Act to restore many provisions of the 1997 Act and strengthen it even beyond this. The committee will appreciate that, while previously FOI legislation only applied to bodies explicitly scheduled, every body is now in unless it is out. The relevant Ministers have given their consent to the provisions of both orders and most of them, in fact, sought the changes. I look forward to hearing comments members have to make and replying to questions that might arise.

I am shocked that we are here after the trumpeting of the introduction of freedom of information legislation. We are proceeding to unravel freedom of information legislation. We are introducing new exemptions and changing effective dates. It is a serious rowing back, a U-turn on the promise to reform and expand freedom of information legislation. This raft of changes introduces secrecy in a range of areas that were intended to come under the freedom of information legislation when it was announced. It excludes the performance of the new Strategic Banking Corporation of Ireland, certain aspects of the National Treasury Management Agency, the entire Shannon Group, the Irish Red Cross and investigations by An Coimisinéir Teanga. It also restricts the effective date for the Private Residential Tenancies Board and the effective date for making information available from the Refugee Applications Commissioner and the Refugee Appeals Tribunal. It amounts to eight restrictions being introduced today. I had hoped the Minister would expand freedom of information legislation, not curtail it. This is a serious change in approach and I cannot contemplate how we can support it in the Dáil tomorrow.

We received a briefing note on the effective date. I heard what the Minister had to say about the effective date and retrospective requests for information. He is changing the effective date in respect of the Refugee Applications Commissioner and the Refugee Appeals Tribunal to last October. The briefing note we received from the Department in the context of the motion to be taken in the Dáil contained a paragraph which was left out by the Minister today. The note states, "In the case of the refugee bodies an additional concern communicated by the Department of Justice and Equality is that third party FOI requests would have the potential to delay judicial reviews of the organisations' decision making, giving rise to significant additional cost and direct provision". That is the real reason for the change, but the Minister studiously dropped that sentence from his statement today. Some will agree with him, but I did not think he was in the position where he wanted to send people home earlier and not allow them the full protection of the law applying in Ireland.

On potential judicial delays, I understand third parties who might request this information are probably the legal teams acting on behalf of the individuals concerned, rather than the persons themselves. The legal adviser would be seeking information on other cases and how matters were dealt with in the past. As that information might have helped them with the judicial reviews, it seems the Minister is bringing forward this change to help the Department to defeat applicants in cases of judicial review. He really let the cat out of the bag in the briefing note from the Department of Justice and Equality, which shows that his aim was to reduce the significant costs associated with direct provision, meaning we can send people home earlier. There is a market for that action, but I did not think it was the Labour Party's. New parties around town might agree with it, but I did not think the Minister was in that camp and I am shocked that he is going down the road of reducing direct provision system costs and reducing people's ability to seek a judicial review.

There is also a change to the retrospective date for the Private Residential Tenancies Board. Again, we received a note from the Department on the matter. It stated the organisation would be too busy handling the new deposit scheme which involved a significant amount of additional work. It also stated something which was left out of the Minister's statement today, namely, that the Private Residential Tenancies Board was in the process of taking on significant additional responsibilities in taking security deposits. These will come to approximately €1,000 per tenancy and relate to 300,000 tenancies. The board will be dealing with the regulation of approved housing bodies, approximating to 28,000 households, and there is a concern that the resource implications of full retrospection of FOI legislation to 2008 may encompass large numbers of files which would have the potential to impact adversely on the organisation's ability to successfully discharge these roles. The briefing note stated the body would be very busy in dealing with all of the new deposits and setting up the new system and that it could not possibly be expected to deal with FOI requests. I do not think the board has started to take deposits yet and do not think the legislation has even been finalised yet.

The Minister could have taken another option. A couple of weeks ago he pushed the effective date for EirGrid back from April 2015 to the end of October and that would have been a more honourable way of doing it. If the Private Residential Tenancies Board would have had an administrative problem for six months, the right thing to have done would have been to give it an extra six months. I do not know for how many other bodies the Minister did this. I only came across the information because EirGrid was a big issue in my constituency and I received it by way of a parliamentary question.

On the Irish Red Cross, the Minister might have a point. I do not know, but I understand that organisation is in some turmoil. That is probably the real reason for this and if it is, we would be happier if the Minister said that. I am aware that several senior positions have not been filled but the Minister said he intends bringing this in under freedom of information, FOI, legislation in due course. I do not understand why we are taking it out now only to bring it back in later.

I have an issue with exempting the State Claims Agency from this process because nothing can be disclosed. Adjudicating on bills and costs is essentially an administrative function. There are no legal implications here. It has nothing to do with the substance of the cases before the various tribunals. My view is that if there is an area where there should be more transparency it should be with regard to considering how bills and costs presented for payment by third parties awarded costs by tribunals are being adjudicated on. It is shocking that the Minister wants to put a veil of secrecy over an area that should come under this proposal, even though they are working for the Attorney General. That is an administrative area that should be subject to FOI.

There might be a valid case to be made regarding the Strategic Banking Corporation of Ireland in terms of who will lend money, who it will lend money onto and market confidentiality. Various ombudsman offices are already subject to the Freedom of Information Act. The Minister said he is making Oifig Choimisinéir na dTeangacha Oifigiúla consistent with that. He might explain where it is currently inconsistent and how it will be made consistent with the other ombudsman offices.

The Minister might have a point on the School Exemptions Board. Generally, however, I am very disappointed that he, as a Labour Party Minister in government, is bringing forward some of these proposals to prevent people in the asylum process getting information that could help them with their judicial review. There is also the underlying issue of the cost of direct provision, and the issue of the Private Residential Tenancies Board. We would be better off giving them another six months to get their houses in order internally rather than changing the effective date, which will apply from now on.

I have asked for some clarification on one or two points but it is not a question and answer session. I have read the briefing note but I disagree with the approach being taken.

I broadly share the concerns expressed by Deputy Fleming. I appreciate that the new regime differs in as much as bodies have to be exempted. That is the right approach. However, I am not convinced by the Minister's proposals before us. Above all, I am alarmed in terms of the change of effective date, particularly in respect of refugee bodies. My position on the issue of direct provision is that I want to see it abolished. I want to see cases dealt with appropriately and lawfully and an end to the practice where people spend years in these centres. Children spend their entire school careers coming and going in these centres. The abuses of people's rights, and I put it as strongly as that, are very well documented and it is a scandal that has slowly built and unfolded under our eyes. The system in this State knows it is happening yet it is allowed to continue. It is scandalous. I acknowledge that there is a working group working on this area. I hope that working group manages to abolish direct provision sooner rather than later.

The reason I am deeply alarmed by any limitation being put on access to information in respect of these bodies is because if ever there were a process and a system that is veiled in secrecy and a lack of clarity, it is the process of refuge and asylum in this State. We have an archaic and opaque system that leaves people who find themselves in the midst of that system utterly at sea, often with virtually no support, and in many cases very little information. The Minister might respond by saying that individuals will still have access to their own files. I accept that, but the oversight of third party bodies in respect of this system in particular is essential, and it is wrong for the Minister to introduce this change in terms of effective date. I do not doubt that the line Department in question made the request. That does not surprise me one little bit, but I believe the Minister is making a big mistake in agreeing to it, and it is certainly something I could not countenance supporting. It is simply wrong, and I put it to the Minister in those strong terms. However, I do not believe it is an effort by the Minister or the line Minister to necessarily deny people their legal rights, which is a concern of Deputy Fleming's. I believe it is more that the system is so banjaxed that there has been, and the track record reflects this, a strategy of information containment and keeping things in the dark, and what the Minister is proposing here today adds to that trend. That is most worrying and disappointing, and I ask him to take that particular proposal off the table. Of any issue the Minister has come to committee looking for our assent, this is the most worrying of all of them.

In respect of the Private Residential Tenancies Board, I will tell the Minister my experience of that organisation. It is a miracle if they answer the telephone. They are horribly under-resourced and anybody who has to interact with them can tell the Minister that at first hand. I do not know if other Deputies have had that experience. When one eventually gets through to them I find them helpful, professional and courteous, in fairness to their staff, but it is very clear that they are under-resourced. I do not accept that they should have this limitation in respect of FOI afforded to them. It is a fact, and I accept that they need more staff and more resources, but I am sure all of us in our various constituencies can confirm that, increasingly, there is a huge volume of people presenting in respect of disputes with landlords. It may be most acute in the city of Dublin where property prices are increasing, and rents have increased approximately 9% in the last period. The problem is very acute. This is a body that as we speak is difficult to get in contact with. People report it is difficult to get interactions with its staff. I believe that is a resource issue. Others might have a different view but given the sensitivity of this whole area now I see no argument in policy terms or good practice to limit access to information through this body. On the contrary, we should be looking to resource it more effectively and to make information flow more easily.

I take the Minister's point in respect of the exemption of some of the public bodies. With the exception of the Oifig Choimisinéir na dTeangacha Oifigiúla, I would have thought there are already sufficient checks and balances within the legislation in respect of information that might be deemed to be commercially sensitive. The Minister might recall that during the passage of the legislation we had endless debates on what was and was not commercial sensitivity. It strikes me that those provisions protect those legitimately sensitive areas the Minister identifies. The Commissioner might be a different kettle of fish. I accept the Shannon Group is in line with the Minister's thinking in respect of other commercial semi-State entities. We had that debate here.

I see the logic of where the Minister is coming from in that instance. I am not sure about the Irish Red Cross. My concern relates mainly to the National Treasury Management Agency, the Strategic Banking Corporation of Ireland and the State Claims Agency. I do not accept that the Minister has presented a conclusive argument for the action he is taking. The change that alarms me most is the changing of the effective dates, particularly as they pertain to the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. It is a mistake to do that. If the Minister listens to nothing else I have said today, I ask him to take that point on board and withdraw that particular proposal. It is simply wrong and will make what is a bad situation a whole lot worse.

I have one question which may not, however, be within the Minister's remit. Does he have any information, in so far as it relates to the Oireachtas, as to whether there has been increased usage of the Act since it was enhanced? If so, has it been for the purposes of establishing complex and substantive policy issues, or what has been the nature of it?

I invite the Minister to respond.

I thank members for their contributions. It speaks volumes as to how we are in a whole new regime in that the freedom of information provisions now apply to everybody unless this committee discusses exceptions and both Houses agree to them. That has transformed the system. I do my best not to be discordant but it is difficult to listen to lectures from Deputy Fleming on broadening the application of freedom of information. I am confident that the 2014 Act we enacted as an Oireachtas last year will stand the test of time. It is already regarded as one of the best internationally, unlike the 2003 Act which eviscerated the good work done in 1997. As I outlined, the changes I am proposing fall into two categories. I am changing the retrospective date applying to a couple of organisations for very practical reasons. One of the points we made right through the debate on freedom of information was that we must avoid, within reason, creating burdens that are just too much for any organisation. These are modest changes involving a couple of organisations out of the many hundreds of bodies that are now subject to FOI.

Deputies Fleming and McDonald focused on the slight movement of the date for the retrospective application of FOI to the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, and there was a suggestion that I did not convey the full briefing note in this regard. That note is as comprehensive as we can make it given that I have been asked by the clerk to confine my comments to ten minutes. One has to do some editing in such circumstances. Either I restrict the quantum of information I give in a briefing note or I exceed the instructions as to the time allocated. I cannot do both and it is important to give members as much information as I can. Of course I have an absolute focus on ensuring the refugee bodies deal with applications as expeditiously as possible. I am obliged to heed them and their parent Department when they say that if there is too much backdating and we divert personnel to the processing of FOI rather than the processing of applications, then there will be a negative impact for asylum seekers who need to have their case heard and, where there is a coherent case to be made, need to have their applications approved so they can get on with their life rather than being caught in direct provision.

I share Deputy McDonald's concern regarding the direct provision system. As she knows, the Government has established a review group and the Minister of State at the Department of Justice and Equality, Deputy Aodhán Ó Ríordáin, will report on that matter very shortly. The Office of the Refugee Applications Commissioner estimates that the number of records it holds amounts to 4 million, including paper files and databases, both live and archived. We are going back to 2012 in all of this but any individual who has a concern about his or her own records will not be affected by the change. All individuals will be able access their own records. Likewise, a lawyer acting on behalf of an individual will not be debarred from accessing that person's records.

I am conscious that staff have been squeezed both in the refugee area and in the Private Residential Tenancies Board. All such public bodies have been subject to recruitment embargoes in recent times. We have had to deploy staff more effectively in an effort to save money and reduce the public sector pay bill, as people were advocating for. The burden we place on personnel must be very carefully measured in the public interest.

That is a disingenuous thing to say as regards the refugee process. I do not accept the Minister is so ignorant of the problems in the system as to make that argument. It is outrageous.

The Deputy should let the Minister finish his contribution.

Pardon me, Chairman.

There were no interjections until a journalist arrived.

It has got damn all to do with a journalist entering the room. The Minister should appreciate that, given the publication for which the particular journalist writes.

I will have to ask the journalist in question to leave the room if there is going to be a row.

I want to be clear on this. The outworking of this legislation on FOI, which is, by international acknowledgment, ground-breaking and world class, will change the whole way in which bodies become subject to FOI such that they will be automatically included as opposed to being automatically excluded unless specifically included. However, we do have to have some discernment as to what is practical in terms of bringing in this whole raft of new bodies for the first time. As I said, in the case of the Office of the Refugee Applications Commissioner we are talking about 4 million files. Individuals will have access to their own records without let or hindrance, but we must apply a commencement date in respect of any third party looking for any file if we are to avoid placing an undue burden on the organisation. It is just disingenuous and wrong for people to claim this in any way impacts negatively on the processing of applications. Any individual will have access to his or her records, as will a lawyer acting on his or her behalf. That is the point.

It is not the point.

If we were to allow a raft of third-party people to make applications, that might delay the processing of applications and would not be in the interest of applicants. All of these things are fully encompassed in this comprehensive legislation.

On the Private Residential Tenancies Board, I am, again, applying an effective date of 2012. I picked that date and not 2011 or 2013, for instance, because it is the year in which the board began to gather data electronically. Before that, it operated a paper-based system, processing some 1.2 million paper-based records annually. The workload of the PRTB is heavy and intensive, with 300,000 registrations per annum, 150,000 individual landlords to deal with and 635,000 tenants. Despite Deputy McDonald's difficulty in getting through, I am advised that the board dealt with 54,000 telephone calls in 2013. Clearly, somebody's calls are being answered. One must take a practical decision as to whether it is reasonable to say that the date from which the board began gathering data electronically should be the effective date, or if one should put a burden on the board such that it would have to search 1.2 million paper-based files manually for each year prior to that date.

The answer is if it is the person's own file then he or she will have to do that, but not for a third party. That is a reasonable position. I have argued throughout the debate that I want to be as comprehensive as I can be, but the approach must be tempered by some semblance of reasonableness in order that we do not kill off organisations by putting a burden on them that simply stops them from functioning effectively.

To be clear on the position in response to the question posed by Deputy McDonald on An Coiminiséir Teanga, the coiminiséir has exactly the same status as any other ombudsman. The effect of the motion will put the office in exactly the same position as other ombudsman offices. In other words, the administrative files relating to the office will be subject to FOI but how it deals with individual cases is not. Have I been too long, Chairman?

No, but we have a vote and I propose that we suspend and come back after the vote.

I have said all I have to say.

I wish to make one brief point.

The Deputy should make it quickly before we go.

The Minister has set the commencement date for the Refugee Appeals Tribunal at October 2014.

It was last year.

That is a big mistake. It adds further to the opaque nature of the process and the lack of surveillance of the entire process in which people find themselves trapped for years, and of which direct provision is a part. The Minister knows that as surely as I do. Could he indicate whether it was the Minister for Justice and Equality who sought the measure?

The Minister might be kind enough not to interrupt Deputy McDonald, and to send the committee a note on the question I raised. I am curious to know the answer.

The Minister might also answer which Minister made the request.

Could I finish please? I thank the Minister and his officials for attending. We have now completed our consideration of the motions. Under Standing Order 86(2) the message is deemed to be the report of the committee.