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Seanad Éireann debate -
Wednesday, 29 Jan 1997

Vol. 149 No. 18

Freedom of Information Bill, 1996: Committee Stage (Resumed).

Debate resumed on amendment No. 10:
In page 12, lines 6 to 11, to delete subsection (4) and substitute the following:
"(4) The records referred to in subsection (1) are any records relevant to an application made by a requester".
—(Senator Lee)

We have been looking at how the rolling back has been phrased and we may come back to it on Report Stage.

I have used the word "requester" because that is what is used in the Bill. It is not a word that would have crossed my mind from A to Z of a thesaurus. I hope it is not the Minister of State's term. I have never seen it before and I do not know why the word "applicant" cannot be used. The only reason it is there is because it is in conformity with the drafting.

Amendment, by leave, withdrawn.
Amendments Nos. 11 to 13, inclusive, not moved.
Government amendment No. 14:
In page 12, between lines 41 and 42, to insert the following subsections:
"(9) A record in the possession of a person who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body, and there shall be deemed to be included in the contract a provision that the person shall, if so requested by the body for the purposes of this Act, give the record to the body for retention by it for such period as is reasonable in the particular circumstances.
(10) Where a request under section 7 would fall to be granted by virtue of subsection (9) but for the fact that it relates to a record that contains, with the matter relating to the service concerned, other matter, the head of the public body concerned shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate of so much of the record as does not consist of the other matter aforesaid and the request shall be granted by offering the requester access to the copy.".

What does it mean?

Acting Chairman

It was discussed with amendment No. 7.

Our discussion at that stage focused on amendment No. 7. It might be no harm if we had a brief exposition as to what amendment No. 14 means.

If somebody is carrying out a function under contact for a Government body, the records relating to that contract are considered a public record. However, if that person has private business which is not connected to the Government contract, it would not form a public record. For example, it allows records relating to a building contract for the Department of Education to be included but not other work in which the builder is involved.

Amendment agreed to.
Section 6, as amended, agreed to.

Acting Chairman

Amendments Nos. 15 and 16 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 15:
In page 12, subsection (1), line 43, to delete "in writing" and substitute", in writing or in such other form as may be determined,".

This relates to requests for access which may be in writing or in such form as may be determined to allow people to apply by E-mail, by phone or whatever. It is important that people know a request is made under the Bill because it is then eligible for the appeals procedure under the Information Commissioner.

I had not seen the Government amendments when I drafted mine. As a result, both amendments are nearly identical. Had I thought about it further, I would not have drafted my amendment in the same way.

Does "in such other form as may be determined" mean that it will be determined by the Minister for Finance?

I presume the Minister will want to be reasonable but I have a wording in later amendments which states "in such other forms as may be reasonably sought by the requester". There is a substantial proportion of illiterate people of whom some might be travellers. Also, some people are blind. There are different categories of people for whom writing cannot, unfortunately, be taken for granted. In certain circumstances, people might not even be familiar with using a phone. I know the intention behind the Minister's amendment is to facilitate but I would like that to be more explicit. I have amendments to later parts of the Bill where I substitute "in such other forms as may be determined" with the alternative "as may be reasonably sought by the requester". I accept the intention behind the amendment but it does not quite cover the full range of what we might wish it to.

This amendment is about how someone applies for information and allows the Minister to say that a person can apply in different forms because writing is becoming an almost obsolete mode of communication. I have an outline which the Senator might enjoy. Under the Interpretation Act, 1937, writing is defined as follows, "The word writing includes printing, typewriting, lithography, photography and other modes of representing or reproducing words in visible form and cognate words shall be construed accordingly".

We shall have to see that in writing before we support the amendment.

I might engage in an electronic means of communication to let the Senator see it. The amendment allows for application by the Internet and E-mail and other new forms which may develop and for the Minister to describe those. The reason for some visible form being the generally preferred method is so that a record exists of the request which can be used when someone has the responsibility for following it up. A request will be known as one made under this Bill in terms of it having access to the right of appeal. The amendment is meant to be proactive and not intended to constrain.

Amendment agreed to.
Amendment No. 16 not moved.

Acting Chairman

Amendments Nos. 17, 18, 34 and 35 are related and may be discussed together by agreement.

I move amendment No. 17:

In page 12, subsection (1), line 45, to delete paragraph (a).

This amendment suggests deleting the paragraph which states that a request must be stated as a request under this Act. If we are creating a right to information, this is superfluous and such a request should not be made. Paragraph (a) is unnecessary.

Amendment No. 18 replaces paragraph (b) with the words "containing such identifying particulars as are known to the person requesting concerning the subject matter in the record". I can see a circumstance where a requester might not want to make all such identifying particulars available. For example, if one were investigating something, it might be enough to provide sufficient particulars to identify the matter which is the subject of the request. A requester might make available such information which they believe sufficient to identify the subject matter. Who makes the judgment as to what is sufficient? I am trying to create a situation where there is no possibility for an adjudication that a valid request will not be dealt with because someone says there are insufficient particulars. An excessive degree of judgment is permitted in the existing wording to someone who wished to frustrate the Bill. I want to create a situation where the intention of the Bill will not be frustrated because the set of words "containing sufficient particulars" allows a degree of latitude to someone who might wish to frustrate the Bill. I suggest that it should be the requester's judgment which counts and not some third party in some public agency who might wish to frustrate the requester.

The more important of the two amendments I have tabled is that which proposes the deletion of section 7(1)(a) because such a matter should not be stated in the Bill.

Section 7(1)(a) states that one must state that a request for information is a request made under the Bill. That is unnecessary and superfluous. We are, after all, asking people to make a request in writing which is quite formal. I would hate to have a situation where a person made a request in writing and a fortnight later got a letter from the county manager saying that the request did not state that it was made under this Bill and asking the person to resubmit the request or refusing to give them the information requested. This is another restriction on the right of access and is, in my view, unnecessary. People looking for information will probably not be familiar with all the aspects of the Bill and will not know that it is required of them to state that their request is made under the Bill. They will write a letter to the county manager or some official asking for information only to receive a reply saying they cannot have it as they did not request it under the Bill. That is silly.

The reason for section 7 is informed by experience in New Zealand which did not request people to specify they were applying under the Act. As a result, people asked for information. The staff dealing with it on the other side were careless about time limits because it was not labelled as a freedom of information request so they did not realise that it had to be answered within a certain period to allow access to an appeals system and so on. Officials in New Zealand are now telling people to specify that their requests are under the Official Information Act so that it will kick in their rights. It does not preclude people from making a telephone call looking for information. This gives a mandate to public bodies but it could take four or five years for the culture of secrecy to change. When a person applies under the Freedom of Information Bill, they will have a right to appeal the decision. However, it is uncertain if those rights of appeal will apply if they make a telephone call. It was included as a pro-applicant clause based on hard experience.

Progress reported; Committee to sit again.