This issue of freedom of information is admittedly fashionable in some cirlces. It is also somewhat difficult and, because it is difficult and because it is not an easy political issue, it tends to be put on the long finger. I introduced this Bill because of a clear need for a comprehensive legislative framework to enable the ordinary citizen to know about Government decisions as they are taken and the way they affect him. It is a conscious attempt to ensure that the Irish administrative process reaches a degree of openness that characterises many of our neighbours within the OECD, the European Community and in many other parliamentary democracies.
The extension for democratic rights to ordinary citizens is not something that happened overnight. Parliamentary reform led to the extension of the franchise to all male voters in 1882 and women's votes came somewhere later. Now that these formal democratic rights have been achieved, it is a very real question as to how such rights can be made effective in a complex modern State. Increasingly, information has become a critical factor in the ability of the Individual citizen to understand and, more important, to influence the political process. Denied information, the citizen will not understand what is going on or the reasons, thinking, or viewpoints upon which administrative political and governmental decisions are based.
Ireland is far behind other countries in appreciating the importance of this issue. Access to public documents has been guaranteed by law in Sweden since 1766. France has provided access to public documents since 1978, enforceable by a Commissioner of Access. There has been a Freedom of Information Act in Australia since 1982. Similar laws have now been passed in New Zealand, Canada, and Norway. A British Freedom of Information Bill was introduced and processed in the House of Commons in March 1984. Such a Bill is needed here not only for the same reasons as provoked its introduction in other countries, but most particularly to make our health and social services accountable and to open up policy matters which affect our nation's one million poor. Such freedom of information laws tend to have a number of features in common. These include a general statement of a right to information, a list of exemptions and a mechanism, or series of mechanisms, to enforce or govern public access.
Several of the legislative Acts introduced in other countries have also attempted to deal simultaneously, because there is clearly an overlap, with the question of personal privacy. I know the Government have introduced a Data Protection Bill in the other House and the sections in my Bill which have to do with personal privacy would need amendment at some stage in the light of whatever form that Bill finally takes when it is passed. It will be impossible to amend such a Bill prior to the Government deciding their own amendments on the Data Protection Bill.
The most documented evidence of the effectiveness of freedom of information has been in the way the freedom of information law operates in the United States. This Act was passed in 1966 and amended in 1974. It was based on the First Amendment of the Constitution guaranteeing freedom of the press and a Supreme Court ruling that it was essential to ensure an informed citizenry which was vital to the functioning of a democratic society and which, in the words of the Supreme Court, needed to check against corruption and to hold governors accountable to the governed.
The 1966 Act required the Federal Government to register and record its information and make it publicly available. It provided for nine exemptions. That Act proved inadequate for a number of reasons. It set no time limit within which an agency had to respond to a request. Federal agencies had the right simply to claim their files were exempt and there was no provision for judicial review. They tended to do this with considerable frequency.
The Congressional Sub-Committee on Government Operations concluded in 1972 — the time is of considerable importance — that public bodies had been guilty of foot-dragging, long delays, delaying tactics and unjustifiable claiming of Executive privilege. As a result, a whole series of amendments were introduced in 1974, coinciding with a growing distrust of Government arising out of the Watergate scandal. President Ford vetoed the amendments on the grounds that they would release military secrets, compromise the police, overburden administration and overwhelm the courts. These are familiar arguments about freedom of information. Congress over-rode his veto by a heavy majority.
The present American law lays down that Government information must be indexed and made available on request, unless it is one of the nine exempt areas. Information must be released within ten days. Costs must not exceed direct photocopying costs. There is provision for appeal. Conflicts must be resolved in the courts and the Executive has no final veto. I use the American example in my remarks because the American example is one of a complex country with considerable problems of national security, international and other considerations and, therefore, it is a conservative example to use.
The American example is important for a number of reasons, first, in terms of the practical effects of legislation, the difficulties, problems, and loopholes on both sides. Second, it shows the practical use to which such a law can be put in other countries. For example, the American Freedom of Information Act of 1974 has been used, among other things, to reveal reports on health and safety at work which would otherwise have been concealed; the use of agent orange defoliant which would otherwise have been concealed; federal plans for nuclear waste disposal, which would otherwise have been concealed; surveillance of student groups in college which would otherwise have been concealed; information available to the Government, but which they would not publish, on items as far ranging as unsafe tyres, ineffective prescription drugs and the cancer risks arising from hormone treatment, and they also elucidated information about medical experiments by Government agencies.
It is an interesting reflection that it was the American Freedom of Information Act which revealed the details of an arrangement between the Irish Institute for Industrial Research and Standards and the American Department of Defence about the role of the IIRS invalidating defence specified components manufactured in this country. The IIRS stated that that agreement was confidential. We were able to obtain a copy of it from the United States via the United States Freedom of Information Act. It is rather ironic when an Irish citizen has to use the legislation of another country to obtain information that is refused to him in this country. This is a particularly good example because of that.
One of the difficulties is that it is impossible to focus with clarity on what an Irish Freedom of Information Act would release. The main areas of development would probably in welfare rights, consumer rights and information and the planning and environmental area. The precedents which exist in other countries give us a useful idea of its likely impact, and that the legal permutations from the point of view of the information-seeker and the giver of information are well known. In other words, there exists a solid legal and practical basis for the drawing up of legislation in this country.
It is a classic one to pretend that this issue is somehow irrelevant or a fashionable liberal issue. In my view, it is far more than that. If freedom of information can work in societies which are far more complex, industrialised and developed than our own, there is no reason why it should not work here. It would not only bring us into line with those countries, but it would also contribute to our development towards the same level of development of those countries by advancing the information base on which citizens operate, and thus the quality of political debate which will contribute enormously particularly to a country with the difficulties we have.
Irish case law — I would not claim to be an expert — points us in the direction of freedom of information. In 1967, Dublin County Council refused to grant outline planning permission to Mr. Joseph Murphy for the development of his lands. In 1968, a compulsory purchase order was put on his land. Mr. Murphy objected and a public inquiry was held. An inspector made a report, the Minister read it, and confirmed the CPO. Mr. Murphy appealed to the courts claiming the ministerial decision was unfair. The Minister refused to publish the report claiming that it was confidential and that it would be contrary to public interest to publish it. He claimed executive privilege.
The Supreme Court ruled on Murphy versus Dublin Corporation in 1971. Mr. Justice Walsh held that there was so such thing as absolute executive privilege. He ruled that, if there was a dispute about a Government document, the onus was on the party refusing disclosure to satisfy the courts. The courts would have the ultimate say as to which was the superior interest in a dispute, and the Government were liable to produce to the court any document the court requested. He added that documents could not be withheld from the public just because they belonged to particular categories.
This Bill that I have introduced attempts to state a freedom of information law within the context of Irish court and constitutional law and in the light of the experiences of other countries particularly that of the United States. It is a conservative Bill — it is not usual for me to be in such a position — that builds on existing Irish case law and on the legislation in other countries. This is not a haphazard operation. This is a carefully researched Bill. It has 41 sections. It is based on, though not identical with, legislation in operation in other countries and it is an attempt to meet a complex problem with a sufficiently complex and balanced piece of legislation.
The main points of the Bill are straightforward. It states a general right to information and access to any Government document and encourages the Government to publish information as a matter of course. That sounds like a simple enough principle but it is not one we have in operation in this country. It lists the procedure whereby a member of the public can apply for information under the Act and it provides that requests for information should be met within five days, with actual access within 14 days. A member of the public will also be entitled to correct or expunge misleading information about himself or on any other issue.
It also requires that an applicant be told the reasons for refusal of access and be informed of his or her right of review. It also lists categories of information that would be exempt from disclosure, and these categories are fairly well established. These include information which would seriously threaten the defence or the security of the State, information relating to criminal prosecutions which would be likely to interfere with the successful prosecution of a crime, trading information which would confer unfair advantage on a competitor, the unwarranted invasion of personal privacy and Cabinet meetings and a number of other issues which are hardly worth going into at this stage.
The Bill provides for review by the courts of contested issues or the refusal of the Government or a public body to grant access. No official documents may be withheld from the court and the Bill endeavours to ensure that, where the court adjudicates that a matter of substantial public is concerned, the courts can ensure that all the costs of a court action are met by the State. The Bill also protects those releasing information from being charged with offences of defamation, etc. It provides penalties also, of course, for the persons releasing information in the exempt categories. That is necessary because the Bill, quite logically, also proposes to repeal sections 4 and 6 of the Official Secrets Act, 1962, and requires the Minister to report to the Oireachtas each year on the operation of this Act.
Circular 15 of 1979 which deals with confidentiality, secrecy and preservation of integrity in the public service, is quite horrific in its open-endedness. I am grateful to a previous Minister for the Public Service for giving it to me because, if any member of the public service, other than the Minister, had given it to me, he would have been in breach of the Official Secrets Act.
The Bill also attempts to come to terms with personal privacy. This is an area of growing importance. I think we all recognise that. It is also an area which the Data Protection Bill currently before the Dáil addresses. Therefore, the provisions contained in this Bill for personal privacy are not ones on which I wish to dwell at this stage because they will clearly need to be amended. I wish to make it clear that the Data Protection Bill is a very specific Bill to do with one area of personal privacy. It is nothing like a freedom of information Bill, but it would overlap in the area of personal privacy. Therefore, it is clear that this Bill will need to be re-written in the light of whatever shape the Data Protection Bill finally takes.
The Bill would have a considerable number of interesting effects. There has been some speculation in this area, but I would identify the welfare rights groups. welfare recipients, public civil liberties groups, consumer associations and, indeed, the media as areas which will have the strongest interest in the availability of information under this Bill.
The interesting thing about this is that the trade union which represents higher civil servants is amongst those who have been most vocal in supporting the principle of a freedom of information Bill. The resistence to freedom of information in this country is not coming from what is the traditionally identified source. The Association of Higher Civil Servants, in a submission to a joint committee of the previous Dáil and Seanad on legislation, made the point that they were vigorously in favour of comprehensive freedom of information legislation. In that context, there are overwhelming reasons for supporting a Bill such as this.
To underline the importance of the Bill, it is useful to list a number of areas of information which the public have not seen in any detail. For instance, on the very first day this Seanad met I sought details from the Minister for Social Welfare on the guidelines and background information under which public servants were operating the Jobsearch scheme, and I was told that it was not the practice to make such information available. This is a scheme which affects 150,000 people who are depending on welfare and we do not know anything about the guidelines, the operational manuals, the criteria for adjudication on people, etc. which the public service are using. This is private information. One hundred and fifty thousand people have been impacted by that particular scheme. People who feel aggrieved with Jobsearch do not know how or on what basis they can remedy their grievance, because they do not know the basis on which decisions were taken which affect their lives.
The confidential guidelines issued to community welfare officers on the operation of the Supplementary Welfare Allowance Act are still confidential and private. Over 50,000 people in any given year depend on this Act for their livelihood, yet the basis on which decisions are reached which affect their day-to-day existence are secret. Indeed, it is almost a State secret to determine what are the precise geographical areas covered by the community welfare officers in this city. Some people would insist that that is a State secret as well.
A 1984 report on criteria used for the initiation of a large scale prison building programme, one on which millions of pounds were spent, was investigated in July 1985 by the Committee on Public Expenditure and they concluded:
The Committee has to report that, despite intensive enquiries with the Department of Justice, it was unable to make a judgment as to whether expenditure to date on the prison building programme was efficiently spent or otherwise. The reason for this view is that the Department refused to divulge the basis on which decisions were made...
We even have the ridiculous position where the Oireachtas itself apparently is denied access to public information.
Attempts by me to get information about various aspects of equipment in the Armed Forces were resolutely rebuffed by the Department of Defence. Eventually I got this information from Sweden. Yet in the United States, which has a considerably greater level of defence expenditure than ours, to coin an understatement, such detailed information of different kinds of weaponry is traditionally available and is not regarded as a matter of national security. It is quite astonishing that we should find it inappropriate to divulge such information even to Members of the Oireachtas.
The 1987 review of rent allowances under the Supplementary Welfare Act is another case in point. This review was conducted by the Department of Social Welfare. It affects all the people who depend on rent allowances to stay off the streets and to avoid becoming homeless. When the Department of Social Welfare reviewed this scheme and took decisions about the new level of allowances and payments the information the Department used and the criteria that led to a new statutory instrument and the report itself, were all secret and will remain so. When a homeless man was discharged to the Cork Simon Community in October 1987 and died soon after, the Department of Health investigated the matter. The report of that investigation will never be published. All we will get are the Minister's decisions in the light of that report. I find that unacceptable and it definitely loads the dice against the public and against the citizen who might have an interest in the area.
A 1985 Government investigation into the role of the building societies was never made public, although the role of such societies is clearly crucial in determining one of the most important parts of any person's life — housing. One wonders what the societies have to hide.
The Craig Gardner report on Social Welfare Fraud, commissioned in August 1986 and shortly due for completion, will not be published in full. One million of our citizens depend on social welfare payments and they are often the victims of all kinds of allegations of cheating. Even so, new procedures could be introduced altering payment procedures which would make it more difficult for ordinary "genuine" people to claim, and the criteria and procedures will be based on secret reports.
A secret 1981 report — and this is a very useful example — on alleged social welfare fraud by members of the travelling community was used to justify procedures whereby all travellers are required to sign on at the same time, 11.30 on Thursday mornings. A secret report in which evidence was presumably presented making allegations against the travelling community was used to justify what is, in my view, a racist practice and the travelling community will never have an opportunity to refute the evidence because they will never be allowed to see it.
The final report of the Task Force on Unemployment in Cork, set up in January 1984, was never published. All we got were the decisions taken in the light of that report. That report was also deemed to be confidential. Industrial development in the city has since been planned on the basis of that report but we, the citizens of that city, will never be judged mature enough or capable enough to see what was being written about us.
The Department of Health this month will lay down new procedures for the discharge of homeless people from hospital, a report occasioned by the need to ensure quality after care services. But it will be an internal report. The information reaching the Department, indications as to whether present arrangements are good or bad, the analysis, the thinking behind the new approach, all these things will be "confidential". Neither homeless people, hospitals, social workers nor voluntary organisations will be able to judge the wisdom of the Department's decisions and assumptions. All the information will be "confidential".
The Department have an inspectorate inspecting nursing homes and they assess a number of things. They assess safety regulations, quality requirements, fire-escape devices, hygiene and heating standards and whether a nursing home is overcrowded, etc. The information these inspectors collect is not published. We have the ridiculous position where we have a Government Department having detailed technical assesments of the quality of private nursing homes around the country. Yet, if a consumer wants to judge whether a particular nursing home is suitable, he or she is not allowed access to that information because the information is "confidential". There is an even greater irony because the usual phrase used to justify the suppression of the information is that it would not be in the public interest. One of the things I have noticed in my limited political career is that those things the public are most interested in are those things which most Governments decide are not in the public interest to be published. I find that a delicious but somewhat painful irony.
In the United States, by way of contrast, reports on nursing homes were amongst the first things to be published under the Freedom of Information Act. There were, of course, improvements in standards as a result. Despite their importance to consumers, several reports of the Restrictive Practices Commission have not been published. These include the study on competition policy in 1977, the study on the fixing of fees and restrictions on advertising in the accountancy profession in 1987 and, finally, by way of an example, and a particularly Irish example, it was revealed only last month that a 1984 study on Ireland's air pollution was still not published.
According to a senior official of the European Commission, it was unacceptable that air pollution plans should be kept confidential. The same individual also found unacceptable the Irish practice of implementing public EC circulars by private internal circulars. One could go on forever.
Various people have written on this issue. The environment correspondent of The Irish Times has come to the conclusion that it is impossible to deal with a host of environmental issues until we have a freedom of information Bill. In a lot of work I have done in the area of welfare and housing, I am equally convinced that you cannot do it. Many people in the area of industrial policy are beginning to wonder whether it can be done. There is an unequal battle between the citizens and the State, because the State more and more has a monopoly on all sorts of information. In the interests of what is described as the “public interest”, most of what the public is most interested in is kept from the public.
One of the interesting consequences of a freedom of information Bill would be to increase accountability within the entirety of the public service and also between the Government and the public. That accountability would be a superb incentive to efficiency. A Bill like this would promote democratic participation and ensure that administrative decisions are well informed. It is a logical, necessary and vital extension of the rights of the citizens.
I am happy to be here to introduce this Bill. It is one of these issues which should not be dealt with emotively but just because it is not emotive does not mean it is not important. Therefore, I move the Second Stage of the Bill and urge the Members of this House to give it a Second Reading and then let us move on to what should be the really important discussion on this, the discussion on the details of such a Bill.
