Seanad Éireann debate -
Thursday, 19 Dec 1996

Vol. 149 No. 16

Freedom of Information Bill, 1996: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Enterprise and Employment (Ms E. Fitzgerald)

I congratulate the Cathaoirleach on his elevation. I am sure he will do a good job.

This House has a fine record in pioneering change and has consistently been to the fore in promoting Bills for reform of our public bodies. Freedom of information is a case in point. As far back as 1985, a small group of Senators presented the first Freedom of Information Bill to this House. Subsequently, Bills were presented in 1988, and more recently, we had an excellent debate on a Bill presented by Senator Roche. Given the foresight of Senators and their persistence for over a decade in pursuing this key change, I have great pleasure in coming here today to speak about the Government's Freedom of Information Bill.

I have no doubt that Members of the House on all sides support the objectives of freedom of information. Our purpose is ensure that we adopt the most effective mechanism for ensuring the culture and practices of secrecy in public bodies are set aside for good. There has been a consistently high standard of debate in this House on the issue, and I look forward to hearing what Senators have to say. I will be open to constructive suggestions which may be made and which could further improve the public's right to know.

Freedom of information gives every person a legal right to ask for and get access to records held by public bodies. It creates a new legal right for citizens to see public files. It recognises in law that public bodies should be directly accountable to the public they are there to serve. Freedom of information overturns the presumption of official secrecy set out in the Official Secrets Act, 1963, and replaces it with the legal presumption that the public has a right to know. The Bill contains a mandate for the public service to provide the public with access to information to the greatest extent possible consistent with the public interest and the right to privacy.

This Bill will mark a permanent change in the way public business is done. Giving people a legal right to know what public bodies do and what information they have is extremely important because public services touch every aspect of our lives — as parents, patients, residents, when we pay tax or draw a pension.

The public bodies to be covered under the Bill include Departments and their subsidiary agencies, including the Blood Transfusion Service Board, county councils and health boards, other public boards, semi-State bodies, organisations which are substantially publicly funded, such as secondary schools, voluntary hospitals or organisations contracted to provide services for people with disabilities.

Lest there be any confusion — and there has been some public comment which appears to be so confused — the list of bodies in the First Schedule to the Bill are those which are to be included, not those to be excluded.

When this Bill is in force, every person will have a legal right to see what is on his or her files held by public bodies and to correct that information if it is wrong. The Bill carefully protects personal privacy and personal information will not be available in the normal course to third parties.

Pensioners and unemployed people will be able to look at their welfare files; taxpayers will be able to see their tax records; people who have applied for grants will be able to see how their application was handled; homeless people will be able to find out where they are on the housing list; parents will be able to see their children's school assessments.

Community groups will be able to look at policies and plans which affect their community and at information on road repairs, waste disposal and recycling and issues which are important for the quality of daily life. People will be able to see how public bodies spend their money, how priorities are set and reasons for delays. Freedom of information will give the public the right to know how and why decisions are taken. Public bodies will have to give answers to the public they serve.

Governments and Government bodies will become more accountable when all the information is out in the open. Everywhere freedom of information legislation has been introduced, it has brought about more open government and better administration of public services. Doing business in the open is the best guarantee of efficiency.

At the very heart of freedom of information is the creation of a new legal right for every person to access any information held by a public body. This right will place an obligation on public bodies to provide the public with information when they look for it. Complementing this, a powerful mandate for openness and access to official information is set out in the Long Title. This establishes that the Bill is "to enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy".

Since the foundation of the State, public bodies have worked in a culture where secrecy was the norm. Overturning the practice and philosophy of three quarters of a century involves radical change. For this reason, the Bill sets out a range of key measures to enable, support and enforce this fundamental change.

Recognising that the public need information to get information, the Bill requires that each public body must publish information on its structures, functions and the categories of information it holds. This is so that members of the public can find out which public body has the information they are looking for and can learn what kinds of information are available.

The Bill places a legal duty on public bodies to help members of the public in making requests so the public can pinpoint the information it wants to see. It imposes a specific duty to help those with disabilities find what they are looking for.

When this Bill is in force, every person will have a legal right to correct any personal information on them in public files where it is incorrect, incomplete or misleading.

Internal rules, guidelines and criteria must be published. In addition, the Bill provides that each public body publish all its internal rules and guidelines which it uses in decision making. In this way the public can be informed in advance of the ground rules and basis on which its application for any grant or benefit will be judged. So, for example, the guidelines used by community welfare officers in deciding on whether the amount of help with an ESB bill and the detailed criteria for assessing income in means tests will be publicly available. The Bill provides that, where a public body fails to publish such guidelines in full, nobody can be placed at a disadvantage where they might have been able to qualify for something if they had known the full rules.

The Bill requires public bodies to give reasons for the decisions they make to the individuals concerned. When a public body refuses a grant, a medical card or welfare payment or says a child is not a priority for orthodontic care, those affected will have a legal right to the reason for that decision. The Bill also requires that people are told the appeals mechanism for challenging any such decision.

Taken together, these changes confer important and powerful new rights on individuals in their day to day dealings with public bodies. The Bill sets out important guarantees that public bodies are fair and seen to be fair in their dealings with the public. This openness is the best guarantee of efficiency and fairness.

The public's right to know will be backed up by a powerful and independent appeals system which is the cornerstone of the Bill. Experience abroad has shown that an effective appeals system is the best guarantee that the public actually get the information it is looking for and that public officials carry out to the full their legal duty to provide information.

The Bill establishes the office of Information Commissioner which will act as an independent watchdog to ensure the public's right to know is upheld and not blocked. The commissioner will have power to issue binding rulings and to overturn decisions to withhold information. He or she will have power to examine all the documents in any case and to send for and examine witnesses. These are powers akin to those of a High Court judge.

In the normal course of events an unfavourable decision on a request for information will be reviewed in the first instance by a higher official in that organisation. If the decision is still not satisfactory, there is a right of appeal to the Information Commissioner. The onus of proof is on the public body to show why the information should not be released. Therefore, the onus of proof is in favour of the person looking for information. Given the fine track record of the Ombudsman as the people's champion, the Government has asked Mr. Kevin Murphy to be the first Information Commissioner.

The commissioner will develop, protect and enforce the legal right of the public to get information. He will enforce the legal duty of public bodies to supply information. The office of Information Commissioner will be a separate and independent one with its own staff. The commissioner will have power to report to the Oireachtas on how the legislation is working and on its operation in any case to which he wants to draw attention. He will have a role in promoting a more open attitude to the release of information generally by public bodies, irrespective of whether it has been requested. He will be able to investigate how any individual public body is meeting its legal obligation to provide information to the public.

There are certain exceptions to the automatic right to see information. These are similar to those in comparable legislation elsewhere, for example, Sweden, the US, Australia, Canada and New Zealand. These are areas which common sense requires should remain confidential, for example, information which could jeopardise security or law enforcement, breach legitimate personal privacy of individuals or where, for operational reasons, release of the information at a particular time would be premature.

The Bill will not be a charter for crime bosses or drug barons and will protect the criminal investigation process. It will not disclose the code to the combination locks at the Central Bank for tell speculators how currency strategy will be managed. Next year's leaving certificate papers will not be available at Easter.

Mr. Dardis

That will make a change.

Ms E. Fitzgerald

Companies doing business with the IDA can be assured that commercially sensitive information they provide will be protected.

Generally speaking, the exemptions are discretionary, not mandatory. They permit information to be withheld but do not require it to be withheld. They are subject to two vital tests, the purpose of which is to ensure that exemptions are not abused. First, release of the material must be assessed as harmful to the interest concerned — it is not material about security but material which could damage security which remains protected. Second, most exemptions can be set aside where the balance of the public interest favours disclosure. The purpose of the exemptions is not to inhibit disclosure but to protect information in circumstances where its disclosure could be contrary to the public interest. Subject to that public interest concern, any discretions under the Bill are intended to be used to the greatest extent possible to provide access to information. That is the mandate as set out in the Title.

The provisions on exempted information are set out in detail. The practical experience of freedom of information elsewhere suggests that openness is better served where exemptions are clear and specific. A broad brush exemption allows more information to remain hidden whereas tightly drawn exemptions ensure the release of information is at a maximum. In the event of a public body using an exemption to refuse to grant access to a record the matter does not end there. It will ultimately be for the Information Commissioner to decide, on appeal, whether access should be granted.

The three main categories of exemption are as follows. First, where there could be a breach of privacy by a third party. Personal information about an individual, commercially sensitive information and information given in confidence will normally remain confidential. In exceptional circumstances, this information may be released where the balance of public interest in disclosure outweighs the merits of keeping the information confidential. In such cases, the individual or company concerned must be consulted if disclosure is contemplated. However, they do not have a veto on the release on information.

For operational reasons, certain kinds of information may be withheld to protect normal day to day functions. Often this material may be exempt at a particular time but could be released later. This material included operations such as audits, exams, test procedures and negotiation strategies. Information prejudicial to audit or testing functions or negotiation strategies may be exempt, unless the balance of the public interest favours disclosure. That very important public interest test it there.

Factual material relating to Cabinet decisions is released as soon as a decision is taken and published, and Cabinet papers are published automatically in full after five years.

Policy consideration can be exempt until the policy decision is made if early disclosure would be contrary to the public interest. Where disclosure of information would damage the financial interests of the State and economic management, information may be withheld, unless the balance of the public interest favours disclosure.

Information may be protected where disclosure could harm the areas of law enforcement, defence, security and international relations. In exceptional cases, where a Minister considers release of information would prejudice one of these areas and the matter is sufficiently sensitive and serious to warrant it which is a very important qualification — a certificate may be issued. This effectively removes the avenue of appeal to the Information Commissioner. Instead, a certificate is reviewed by Cabinet colleagues and must be withdrawn where a review finds insufficient grounds for its use. An appeal can also be made to the High Court.

A number of requirements must be met before a certificate can be issued. First, the matter must be likely to prejudice a key matter under either of the exemptions mentioned. Second, the matter must be of sufficient seriousness or sensitivity to justify the issue of a certificate.

Experience in common law jurisdictions abroad has been that certificates have been rarely used and even then only in the early days of freedom of information. For example, in New Zealand a certificate has only been issued once.

Mr. Roche

That is right.

Ms E. Fitzgerald

Our rules are as tightly drawn as they are there. I wish to emphasise to the House that the clear and absolute intention of the Bill is that a certificate should issue only on a most exceptional occasion where the nature of exempt information is such as to justify excluding the Information Commissioner from access to the records concerned.

The Bill effectively turns the Official Secrets Act on its head. It replaces the presumption under section 4 of that Act that all information is secret unless expressly authorised for release, with the presumption that all information can be made public unless its release would give rise to specific harm. The Bill amends the Official Secrets Act accordingly. A further review of the Official Secrets Act by the Oireachtas Committee on Legislation and Security is nearing completion. I personally look forward to the day when the Official Secrets Act is gone in its entirety.

Where other Acts provide a catch-all confidentiality clause, these, as listed in the Third Schedule of the Bill, are repealed in this Bill. Where confidentiality clauses have been designed in particular circumstances in other legislation, they are not lifted on a blanket basis. What the Bill provides for is a review process where an Oireachtas committee must review these enactments, where the sponsoring Department must report on whether these provisions should be repealed, amended or retained, and where the Oireachtas committee will have an independent view from the Information Commissioner whether these should be repealed, amended or retained.

We are concerned to ensure that when people go looking for information, it will be readily available, that teething troubles will not derail the principle and purpose of the legislation and that foreseeable steps are taken to have a user friendly system that works.

Within the public service, a special group is overseeing the practical steps Departments must take to make access to information a reality when the Bill comes into force. These include reorganising the filing and file retrieval systems and the training of staff. The Bill creates a statutory duty on the Department of Finance to ensure these practical steps are taken to make access to information work. There will be a special unit in that Department to drive the working of the Bill when passed.

There is a lead-in time of one year from the passing of the Bill to ensure everything is prepared and can run smoothly from day one. Most importantly, because all internal rules and guidelines will be published from day one — some of which go back over 75 years in terms of precedents — will have virtually the equivalent force of law, Departments need to ensure that these are compiled, scrutinised and rationalised in time for the Bill's starting date which is a major task. Other important public bodies come in automatically in this first phase — they are listed in the First Schedule — and county councils and health boards come in automatically at the outside two years later.

The long Title sets out the purpose of the Bill as, among other things, enabling the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy. It is the purpose clause which guides interpretation of the discretions offered under the Bill for the release of information.

Part I contains standard provisions in relation to the short Title, commencement and interpretation of various terms used.

Part II establishes a legal right for the public to access records held by public bodies. It sets out arrangements for making requests and determines times within which public bodies must respond and the ways in which access may be granted. In general, people must be given the information as soon as possible, and at the outside within 20 working days, except in exceptional circumstances. Public bodies must publish information about themselves, the information they hold and the internal rules and guidelines used in decision making. This Part also deals with deferral and refusal of access to records. It sets out procedures for internal review. It establishes rights for each member of the public to access reasons for decisions directly affecting them and to have personal information held by a public body amended where such information is incorrect, incomplete or misleading.

Part III of the Bill sets out a series of related measures to protect information relating to key areas of Government activity. Information may be protected as confidential where its disclosure could damage the security or defence of the State, international relations or law enforcement. Matters before Government or information likely to prejudice the operations of Government may also be protected. In addition, information relating to third parties may be protected where disclosure may constitute a breach of confidence, invasion of privacy or damage to commercial interests. Many of the protections outlined can be set aside where the public interest would, on balance, be better served by disclosure than by withholding the records in question.

Part IV establishes the office of the Information Commissioner. The functions and powers of the commissioner and the procedures for review of decisions under the Bill are also set out. In addition the commissioner is required to keep the operation of the Bill under review and may carry out investigations into procedures adopted by public bodies for the purpose of compliance with its provisions.

Part V presumes a decision to have been made in the event of failure by a public body to reply to a request, and provides for appeals to the High Court, legal protections for the release of information under freedom of information, exclusions from the Bill, charges and the amendment of the Official Secrets Act. It provides qualified privilege to authors of documents and those who release them under freedom of information. That removes an important inhibition on the release of information at present.

This Bill will mark a profound and lasting change in the way public business is done. It ushers in a new relationship between citizens and the State, between the ordinary public and the public services they use. Because information is power, it will transfer power to ordinary people from those behind closed doors. Every country which has brought in freedom of information has seen significant improvement in the quality of public administration and in the accountability of public services. This Bill will herald a quiet revolution in the way public organisations conduct their business. It will create a new climate of openness, and I have every confidence it will end forever the culture of secrecy.

Mr. Roche

At the outset of business today there was some discussion whether I would take 45 or 50 minutes to contribute. In reality, I could sum up in two words: "I consent". The Minister of State knows I am a passionate believer that information is not just power but truth. If we can have information we can have truth and the light of public scrutiny flowing into parts of public administration which are obscured by secrecy and anonimity. We can illuminate the excellence which exists in the public service. The public service will gain more than any other sector from freedom of information. It has always been my view that we have one of the best public administrations in the world. It is not besmirched by the scandals which have taken place in public administrations elsewhere. We also have, however, a public administration in which secrecy is an epidemic, anonymity has been elevated to a high order and all that is good is obscured.

I welcome the Bill. Back in those heady days of 1994 when governments were collapsing and new governments were being pulled Adam-style like a rib out of the Dáil, I sought the opportunity with my party leader and other colleagues to put forward a series of propositions which would have been instrumental in producing a revolution in public administration. In the discussions at that time I was pleased that Labour Party colleagues were very willing to accept everything we suggested and I am even more pleased that they were able, in breach of the Copyright Act, of course, to ensure that their new colleagues in Government were willing to sign up for the same agenda. That was interesting from the point of view of academic research. I had 12 pages of propositions which went forward and their number was expanded to 14 in the programme.

I compliment the Minister because she has doggedly pursued this Bill over the past two years. I also compliment Mr. Carney and the officials in the Department — it is unusual to name them — and I thank the Minister for arranging the briefing. I was most impressed by the fact that they share what I regard as a passion for openness. This is positive and it is a sign of good things to come.

I welcome this Bill but I must say some critical things about it which are not in any way personal. First, the Freedom of Information Bill before us comes through a process which I well understand. At the end of the legislative process we do not necessarily see the passion which the Minister or her officials feel about a topic but we see the classic compromise. It is often said that a camel is a thoroughbred which was designed by a committee and there are some of those hallmarks in this Bill. I am not putting the blame at the door of this Minister or her officials, but there are a series of mandarins and political figures who must be dealt with in the legislative process.

This is a classic example of the way we approach administrative reform in Ireland. We are passionately committed to the concept of adminstrative reform but we are a little like the saint who said "Look for reform but not quite now".

The Bill promises a great deal but it is in danger of delivering less than it promises; it is, in fact, somewhat confused. Perhaps it is too little too late. It is most decidedly not the radical Bill I expected and which had been promised in countless press briefings over the past two years. Many aspects are conservative and constrained and in many other areas it is dangerously confused. I hope I am not being uncharitable to the Bill and I will seek to defend each of these points.

However, on the positive side, the Bill gives us a good foundation to put much needed administrative reform on the Statute Book. I know the Minister is interested but if she is, as I suspect, willing to listen to what is said in this House and carry the views of Members, together we can build a real administrative reform which would benefit the Irish people and politics.

Fianna Fáil is committed to administrative reform. In the 1994 negotiations between the Labour Party and Fianna Fáil following the collapse of the last Government, administrative reform was a major item on the agenda. Indeed, it is ironic that Fianna Fáil proposals which had been agreed between the two parties form a substantial part of the current Government's programme. I am not in any way unhappy about that; I celebrate that fact because it means that, for once, we all got it right.

In 1995, Fianna Fáil introduced in this House a Freedom of Information Bill in Private Members' time and the Minister's respones was very generous. That Bill, in stark contrast to the one before us, however, offered a very simple radical response to the universally recognised need for openness and transparency — now a cliché — in the Irish administrative system. That Bill was not simply a Fianna Fáil Bill; it was supported by Members from all sides of the House. Its aim was to create a simple right of information, which is also at the core of the Minister's Bill, which would apply automatically and benefit each and every citizen. Moreover, the Bill I introduced had universal application across the whole administrative system. If I were really critical of this Bill, I would be critical of the exclusions and temerity about its introduction; I will return to that.

In stark contrast to the Bill the Minister is introducing today, Fianna Fáil's proposals were not encumbered by bureaucratic procedures. Fianna Fáil's measures simply set out the rights which citizens should have in the area of public administration. Its proposals broke new ground in that they sought to codify in clear detail the only areas where the administrative system could withhold information. In this regard, the Fianna Fáil proposals can be seen as the precursor to legislation removing the now ridiculously outdated Official Secrets Act, 1963. Again, I recognise the fact that the Minister, like me, regards that Act as an anachronism which should really be consigned to the shredder or the archives because it is a judicrous piece of legislation which presumes everything — from the salary of the chief gardener in St. Stephen's Green to the minutes of Cabinet — is secret. It is so ludicrous that it is unworkable. It is breached each and every day so it is a nonsense to keep it on the Statute Book. I am pleased there is a commitment to its reform. I am not sure it will be easy to simply right it off but we must look at that.

As Fianna Fáil and its leadership are committed to real openness in the Irish administrative system and because I, as the party spokeperson on public service reform, passionately believe that reform of the administrative system is vital and long overdue, Fianna Fáil will not be playing party politics with this Bill. Fianna Fáil will assist the passage of the Bill and will look to its speedy enactment into law. Moreover, when the Bill is enacted we will be seeking to ensure that its provisions are brought into immediate effect in all areas of public administration. However, the party's co-operation will not be given freely. We will demand changes in the Bill, some of which will be major; we will demand an undertaking on the introduction of the administrative procedures Bill, another proposition we put forward in those frenetic days in 1994; we will demand more radicalism with regard to freedom of information than the Minister, constrained as she is by conservative colleagues and powerful mandarins, has been capable of delivering in this Bill and we will demand that inexcusable exclusions of certain areas of public administration in the Bill will not be given a legislative basis. In short, we will be operating as a constructive Opposition should, assisting to promote that which is positive — there is much in this Bill which is positive — and opposing that which we believe to be negative.

I will be asking the Minister today and on Committee Stage, first, to consider the extension of the provisions of this Bill to all areas of public administration with immediate effect. Second, I will ask her to extend the provisions of the Bill to cover not only bodies which are funded directly by the State but also those, such as the Law Society, which have been given responsibility in Statue for regulating the activities of certain professions. I am not singling out the Law Society but certain liberal professions are self-regulating only because the Oireachtas has given them such a statutory right. From my experience as a constituency worker, they do not fulfil that responsibility to citizens.

Third, I will ask the Minister to ensure that areas which have traditionally be shrouded by virtual taboos of secrecy, such as the administration of the courts, the senior courts in particular, and of the operation of the medical services, up to and including clinic judgments, are encompassed in the public's right to know. I will come to the exclusions which specifically deal with the courts and I will deal, on Committee Stage, with my concerns about medical privilege and the issue of clinical judgment, both of which, incidentally, are exclusions from the Ombudsman Acts.

Fianna Fáil will also ask to ensure that some of the Bill's more complex provisions should not become a perverse bulwark which will frustrate the search for truth by individual citizens, academic researchers or investigative journalists. I will be referring specifically to the complexities in section 2. There is a view, and it is my view, that the more complex the legislation, no matter how well meaning the complexity, the more it assists people to frustrate the very intention of that legislation. I understand from the briefing the Minister arranged, why there are complexities in this Bill. However, I fear that some of them may be used to frustrate the very openness which the Minister and the Oireachtas would wish to enforce.

Despite its conservatism, timidity and initial narrow span, Fianna Fáil wishes this Bill well. We think it is important legislation. We will demand that some changes be made to it. I remind the House that when it adopted the Fianna Fáil Bill on Second Stage, it adopted measures more radical than those proposed in this Bill. Our Bill provided more comprehensive cover than this Bill does and I suggest that the House, in keeping with its radical tradition and its interest in information, should broaden and deepen the Bill and assist the Minister in ensuring that it is as we would all wish it to be. We also wish to ensure that when the Freedom of Information Bill is finally passed it will strike a mortal blow at the culture of secrecy which is endemic and pervades all parts of the Irish public administrative system.

We should show more courage than the Bill does in a number of areas because we are not encumbered by the considerations which the Minister and her Department have to bring to the legislative process. We should recognise that, when the light of public scrutiny is allowed to fall into areas of public administration, only good can be done. If it illuminates good practices and decisions people can be assured that they are in receipt of the type of public administration we all want. Where bad administration, practices, poor decision making or individual injustice are illuminated, corrective measures can be taken and in both cases the people will be the real beneficiaries.

I accept that Second Stage is not the occasion to discuss the Bill in detail. I wish to put a number of specific points to the Minister of State and I have outlined one or two of them in briefings with her officials. There should be a degree of openness between us. I agree, broadly speaking, with Part I and I will make one or two specific comments on it on Committee Stage.

Under section 4 of the Bill the head may delegate in writing to a member of the staff of the public body concerned any functions of the head under this Act. Under the Ministers and Secretaries Act this cannot be done without specific statutory authority and it strikes me that this provision contradicts the concept of ministerial responsibility, although ministerial responsibility is another Victorian practice that should be consigned to the archives. Is section 4 viable given the restraints in the Ministers and Secretaries Act?

I fully appreciate why Part II is so complex. It would be very easy to shoot bolts at individual aspects of Part II of the Bill but I do not wish to do so. I have a nagging doubt about this at the back of my mind. I have thought about the very cogent arguments put forward by the officials responsible for drafting this Bill for the complexities of Part II. To summarise those arguments, the Minister in the Bill seeks to create a situation where the regulations will be so tightly drawn that it will be impossible for public servants to refuse to co-operate with the intention and spirit of the Bill. This is very good, but having thought about the arguments on both sides I feel that simplicity is better than complexity. Simplicity is better for a variety of reasons. It will aid the public's understanding of the Bill.

The Minister is right; there will have to be a period of public education to inform people that they can come into public service bodies, look at their files and see that Irish public life is not operated on the basis of nudges and winks, who you know rather than what you know or on the basis of family connections but rather on the merits of a case. I agree that those provisions are necessary but simplicity would be better than complexity which leads to a lack of understanding and I fear these complexities will be seen by the public as exclusive rather than inclusive.

The purpose of Part II of the Bill is to protect the citizens' rights but its complexity could well frustrate that aim. I will illustrate my points with specific examples. I will be opposing section 7(1)(a). This section requires that members of the public cite the Bill in requesting access to the information. That is an unnecessary complexity. The Minister said the purpose of the Bill is to create a right. If the citizen has a right, he or she should not have to cite the Act conferring that right. There should be an automatic assumption that once this legislation is enacted, the right to freedom of information applies to everybody, that every public servant will vindicate that right and will be appraised of their legal responsibilities.

Our administrative code does not impose legal responsibilities on individual civil servants, but we must educate public servants that as soon as a person asks a question he or she has a right to the information. I understand the difficulty in achieving the balance but section 7(1)(a) could provide a loophole by which an unscrupulous administrator could avoid his or her responsibilities under this Act. A civil servant could behave in a scandalous way, deny the right to freedom of information and be able to defend the indefensible by reference to the fact that 7(1)(a) was not complied with.

I am also concerned about the formulation of 7(1)(b). The point about freedom of information is that information should flow freely and without any impediment. Sometimes we know something is wrong but we do not know what questions to ask. Anything that constrains the flow of information could frustrate the purpose of the legislation. Under 7(1)(b) the request for information must contain sufficient particulars. I will give the Minister an example from my days as a very junior civil servant. I remember being appalled at being chastised for telling somebody that they were entitled to something other than that for which they were asking. I was specifically told it was not my job to ensure that the person knew they were entitled to one payment when they were asking for another.

There could be a situation where a public servant could say that he or she would like to help the person but cannot provide the information. This might be the case but the answer to that person's question might be contained in surrounding information. Unless the person knows what question to ask, he or she cannot be sure of getting the answer they require. The Minister is pointing to the fact that there is also a requirement that the public servant be helpful. We all wish for that but we know that people are not always helpful.

Ms E. Fitzgerald

That requirement is under section 6(2)(a).

Mr. Roche

I will come back so that. The other provisions in section 7 are very interesting. These deal with the idea of reciprocal case handling and I welcome them. Such procedures should be in place in a good administrative system. The Minister is now requiring that they operate with regard to information. These are the kind of reciprocal case procedures which would be central to administrative procedures legislation.

Debate adjourned.

An Cathaoirleach

I hesitate to interrupt but I must take a matter under Standing Order No. 29.