Seanad Éireann debate -
Wednesday, 29 Jan 1997

Vol. 149 No. 18

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

Debate resumed on amendment No. 1:

In page 5, lines 37 to 40, and in page 6, lines 1 to 3, to delete subsection (3).

—(Senator Roche.)

Mr. Dardis

In attempting to draft this amendment I would have gone further than Senator Roche. Even section 1 (2), which provides that "this Act shall come into operation on the day that is one year after the date of its passing", does not go as far as I am prepared to go. I would have reduced the time period but, on Second Stage, the Minister of State referred to the difficulties that would be encountered by certain Departments and I am prepared to concede to her argument.

However, to provide three years for a local authority or health board to come within the remit of the Bill is excessive. It is particularly excessive in the context of modern communications and the existence of the information highway, computers and other information technology. It is not as if all the documents held in county council offices will be made available. My reading of the Bill suggests that documents which existed before the implementation of the Bill will not be subject to the same scrutiny as those that are generated after its implementation. That suggests that, following the commencement date, the onus will be on the local authority to ensure that every file it prepares is properly assembled and accessible to the public.

On Second Stage the Minister of State said, in the Official Report, 19 December 1996, Vol. 149, column 1293:

What is contained in the Bill represents the outer limit, that is, that health boards and local authorities will come under its remit by a certain date so there can be no delay beyond that. If it is possible to bring the date forward, we will do so...I will explore bringing forward the date because I agree with the Senators that the sooner we get the information the better.

I ask the Minister of State to deliver on that commitment and accept the amendment. If section 1 (3) is deleted the local authorities and health boards will be treated in the same manner as other agencies which are expected to comply with the provisions of the Bill within one year of its passing. That is a reasonable course of action.

It is unacceptable for a local authority, whether it be a county council or district council, or a health board to seek three years grace before complying. I watched a television programme about the Connemara-Clifden railway recently. A lady could remember leaving Euston Station in London at 6 p.m. and travelling by train to Holyhead, by boat from Holyhead to Dún Laoghaire and by train from Dún Laoghaire to Clifden and all in less than 24 hours. If it was possible to do that at the turn of the century one wonders how much progress we have made in the meantime.

We are treating local authorities like newspapers by giving them a deadline. My experience as a practising journalist would be that one does nothing until the deadline is very near. On some occasions the deadline will have passed before one does anything, so the further away the deadline the less activity there will be. Then there will be a flurry of activity within the last few weeks which we might as well have now rather than in three years' time.

I recognise the Minister's intention with this Bill and the difficulties involved in achieving a balance so that we protect private individuals and sensitive information. However, this is a "yes, but" Bill. Yes, we agree that information should be available but those responsible for distributing information will be able to find reasons why they should not do so. Unless there is a will on the part of these people to disseminate information, be they local authorities or Government Departments, it will be easy for them to find provisions within this Bill to refuse to do so. Both the Minister and I know that would be undesirable. The question is: how can we frame legislation to prevent it happening?

In Scandinavian countries there is an insistence on information being freely available. We could learn many lessons from them. It is possible for a citizen in Sweden, and possibly Norway, to see the Prime Minister's correspondence. This has become a tourist attraction. We are a very long way from that and it is a direction in which we must move. To allow three years for a local authority or health board to get their act together is to allow them too much time and this needs to be restricted.

I endorse Senator Roche's point about the availability of information to members of local authorities. If they cannot get information then what chance has the ordinary citizen? Within some sectors of local authorities there are those who are actively obstructing the issuing of information. This must be done away with and the Minister is to be commended if she can achieve this. I want to improve the Bill to ensure that people will not be allowed to be obstructionist.

We have to draw a distinction between two groups when it comes to matters of a sensitive nature. Firstly, there is the individual who is entitled to see what is written about themselves and, secondly, the individual who wants to see what is written about others. For instance, it should be possible for an individual to see information in a health board file as to whether they are entitled to local authority housing. However, that file should not be available to members of the public. I realise that sections of the Bill attempt to achieve this balance. I know from meetings of my local authority where houses are being allocated subject to the advice of the health board and county council officials, that information can be very delicate. There have been calls for the press to be admitted to these meetings but these calls have been properly rejected. The information discussed should only be available to the individuals concerned.

Mrs. McGennis

I support this amendment as it is probably the only way to ensure that local authorities respond. Let us consider the Title of the Bill:

"An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies..."

The first public body that any individual will come into contact with is their local authority. Far from giving an out to any local authority or health board in a Bill as important as this, local authorities should be giving the lead and showing other agencies that information can and must be made available.

Everyone elected to local authorities has great expectations and hopes of achieving what their predecessor failed to do. Most councillors come up through community councils or residents associations and we attended public meetings where local councillors were unable to answer questions posed by the public. In my experience, and the Minister's is similar, we all intended taking on and breaking the managment system of this structure.

I served with the Minister and saw her ability, tenacity, courage and strength in trying to break down barriers in Dublin County Council. She was a member before I was elected and I used to go into the public gallery in O'Connell Street and watch business being conducted. The Minister was one of the more formidable councillors in tackling management. However, I also saw her frustration in trying to access information and effect change in the council's way of thinking. That situation still pertains, if to a lesser degree.

The system of appointing managers to the Dublin local authorities has changed, so the managers know they have a fixed tenure in office of five or seven years. They do not seem to be holding on to control to the same degree as before, yet they still do to some extent. At committee meetings at which deputy managers and principal officers attend there is a strong tendency to keep control of the information that councillors are looking for.

The setting up of the new Dublin authorities took place in less than two years. The announcement was made in 1992 and, as far as I remember, there was a fixed period of two years. The authorities were born on the 1 January 1995. If entire local authority structures for Dublin could be set up within two years, there is little reason to allow a further three year period for compliance after the year allowed for in the legislation. The Minister is indicating that it is three years in total. If we could create three new authorities and break down a 78 member council in less than two years we could certainly see all authorities conform to the provisions of this Bill within a year.

As has been mentioned, local authorities are very modern in the way they conduct their business and most are computerised. The sections to which one might go, including public areas and the offices, are computerised and people are familiar with technology. I do not understand the reason for allowing this, although the Minister will say it does not mean they have three years but that they have that time in which to complete their business. It is possible that a number of local authorities will do so.

My local authority, Fingal County Council, held a conference yesterday on strategic management initiatives which, unfortunately, I was not able to attend. The concept behind it was responding to the needs of the community and residents in the fastest and most effective way. It is possible that Fingal County Council, Dublin Corporation or Wicklow County Council may decide to take the lead. It is also possible that a number of local authorities will drag their feet and at the end of the three years may come back to the Minister of State looking for a way out and may cite lack of finance. This House will have a debate on local government funding in the next week or two. The standard answer to any question is that due to lack of funding, it is impossible to respond to the question or that resources are not available. Local authorities which are sluggish about doing their business will cite lack of finance and will come back to the Minister of State and say that if she provides them with extra finance, they will comply. Those who feel good about this legislation will do their business.

This has happened in local authorities in relation to the provision of accommodation for travellers with which the Minister is familiar. Local authorities which felt it was their duty and that they had a responsibility to provide accommodation for travellers did so while those who did not did nothing and no penalties were imposed on local authorities who would cite many reasons for not providing accommodation.

The cases to which Senator Roche referred are not unique to Wicklow County Council. A Green Party member of my local authority took a case to court on the landfill site in Kill and, having lost, is still paying the cost to the local authority. It is a brave local councillor who will take on such a task and I take my hat off to those who do so.

There are communities which, for their own reasons, challenge everything a local authority does and I do not hold them in high esteem. Such challenges are not usually due to a lack of information but to try to prevent something being done. There are communities in severely disadvantaged parts of Dublin and rural areas who do not have a halfpenny to take a case to court. These communities invite councillors and public representatives, such as myself, to public meetings to tell us what is happening in their area because they do not have the clout and finance to beat it. In a number of cases, one is hard pressed to believe that what they are saying is not true. Sometimes what is happening in their community may not be as bad as feared but the rumour and innuendo associated with a lack of information will leave those in disadvantaged areas feeling that local authorities have no respect for them and that anything can be foisted on them. Senator Roche cited as examples landfill sites and the provision of local authority accommodation and traveller accommodation.

I am sure the Minister of State will recall asking her county manager — I know I did — about the acreage and location of land within the ownership of Dublin Corporation in Dublin County Council's administrative area. That information was governed by the Official Secrets Act and we could not be told the acreage of land.

Mr. Roche

They did not know.

Mrs. McGennis

They knew about every blade of grass, but under no circumstances could we see a map. I thought there was something very sensitive about maps but when the Local Government (Dublin) Act, 1994, came into effect, maps were lashed out like confetti at a wedding and members were told the value of the land. There was no revolution; nothing happened. Although Dublin Corporation sold as much land as it could in the interim, this information was provided to the three local authorities overnight. Dublin Corporation is still carrying out its business and made £11 million in the process. That is an indication of the stupidity and nonsense of a local authority system where managers dictate what can be made available to members and residents. There is a suggestion, which is hard to believe, that the manager's association dictated this subsection. The Minister should give the lie to that and agree to the amendment deleting the subsection.

Professor Lee

Like every Senator, I welcome the thrust of the Bill. I was not going to speak on this amendment because I am not a member of a local authority or a health board but listening to speakers, I have been shocked to discover that members of those authorities cannot find out what is being done in their name. Before I listened to those speeches, I had some sympathy with these deadlines. I manage a department, although it is not a local government one, and I would hate to be asked to put my finger on a great deal of that information tomorrow morning. I rationalise that on the grounds that the busier, more thrusting and innovative the department, the less time it has to keep its files in order, but that is not a justification to carry it that far in other areas and I do not want to rest the defence of these figures on such an assumption.

What bothers me about the three years, and even the year—because I take Senator Dardis's point on that—is that underlying this Bill and crucial to its success is what many speakers said on Second Stage and what Brendan Ryan said about keeping us in the dark and so on, that is, that we are essentially dealing with a change of culture and attitude. In a sense, these are details which must be co-ordinated to try to drive forward that change of attitude as far as possible. The moment one relaxes on detail, one allows those who do not want to change to find an exit route from the thrust, intention and principles behind the Bill. It is, therefore, important to scrutinise any detail of this type which appears to be slowing down the momentum which the Bill is intended to generate.

It is an educational process which some people will welcome. Others will have to be dragged into accepting that this is the way we look at things. Instead of the assumption that, unless the information can be prised out of a person it has to remain secret, it must be that information should be freely available unless a strong case can be made against that. Senator Dardis and others referred to good cases and I agree with the reasoning that this should not be legislation which will allow every busybody in the country to stick their nose into everybody else's affairs; there are plenty people of that sort around. It is important to keep the pressure on and not relax it.

I would like to ask the Minister of State for information because, not being a member of these bodies, I do not know exactly how they work. It strikes me that the one year mentioned in section 1(2) is fairly generous. Has thought been given—I presume it has—to not having blanket figures and deadlines where all information would become available simultaneously and nothing would become available until all becomes available? In other words, there must be priorities— Senator Roche spoke a great deal about property —in terms of public interest and so on. If local councils or health boards are told a category must become available by a particular date, there is consistency across the country in what categories are prioritised. Surely it will not take three years for everything to become available or even one year in terms of section 1(2)? Is there scope in terms of priority and category for establishing a reasonable deadline for different categories in light of assumed public demand and the Minister's experience?

There should be regular publicity about the pace at which councils and boards achieve the targets so that the best to the worst can be listed. The worst could then be asked why they could not keep pace. Why can some impetus not be given? It could become an achievement for a local authority to implement the provisions of this legislation as quickly as possible as opposed to dragging out matters as long as possible. Maybe that is fantasy or naive, but I ask those who have experience of these matters to say why some form of achievement record could not be built into this Bill. Maybe there is some area which is so difficult as to require three years. I am sure there is and that a case could be made for it, but surely not for every area.

Ms O'Sullivan

I suggest that all county managers be sent to UCC to Senator Lee for a lecture. He has made the point well that we need a change in culture more than legislation to persuade people to consider it a virtue to move forward rather than trying to delay as long as possible. Perhaps Senator Lee would consider giving a special course for managers.

Taking account of what Senator McGennis said about the Minister's record in local government and what I know of her as well, she would not have inserted such a timeframe into the Bill and would have made it shorter if she could. I presume there are good reasons why the figure of three years is in the legislation.

Mr. Dardis

She will shorten it. The Senator should not anticipate.

Ms O'Sullivan

I hope this debate will strengthen her hand in negotiating with whomever she has to, be it the Department of Health, the Department of the Environment, or whoever. Everyone in this House, especially those who are members of local authorities and health boards, wants to see this legislation applied to those bodies as soon as possible.

It is interesting that, as Senator Roche said, legislation already exists which should give us much of the information withheld from us. If the councillor Senator Roche mentioned, Councillor Cullen, won his case in the High Court, I presume it was on the basis of existing legislation.

Mr. Roche

It was a court judgment.

Ms O'Sullivan

I presume the judgment was made on the basis of legislation. We often do not know that we are already entitled to a substantial amount of information. I only recently discovered after 12 years as a member of a local council that I was entitled to a considerable amount of information which I did not know I could obtain.

In my local authority it is extremely difficult to get access to its legal department and to get a law agent to attend a meeting with councillors and respond to their questions. It is like trying to pull teeth to get that department to be forthcoming. A cultural change is certainly needed in local authorities and the purpose of this legislation, aside from its detail, is to do that. I challenge Senator Dardis on his assertion of it being "yes, but" legislation. It is not. It is being specific about what is exempted so that people cannot hide behind generalities which can be quoted to prevent information being given. The point is that it is as precise as it can be in its wording.

I share the concerns expressed and assume that the timeframe exists for a specific reason. I would welcome if the Minister could work any miracles on it during the course of the passage of the Bill.

Ms Gallagher

I am not a member of a local authority or a health board but I am a citizen of this country and know to my cost that freedom of information is not so free. Cavan County Council charge £1 per page for photocopying in the planning office and this has cost me a great deal.

I am already on record as stating that this legislation cannot go far enough and, in my experience, cannot be implemented soon enough. To have a delay of between one and three years, whatever the reason, begs the question of what these people have to hide. It cannot simply be a matter of reorganisation of office structure or whatever in order to make information available to citizens. I fail to see why there should be that delay and fail to see the relevance in any argument put forward by or on behalf of local authorities or health boards.

I will give two examples. In County Monaghan, I live beside the Killarney of the north, Lough Muckno Leisure Park. It is owned by the county council, which decided in secret committee to lease it to an English registered company for what is reported to be a fairly nominal fee. It is actions such as this, which to this day remain unexplained to the people of Castleblayney, which I question. That no one can be forced to give information about it to the citizens of the town seems extraordinary.

Another example of a litany which I could give is in County Cavan, where the county council— at whose behest I do not know — took the fisheries board to the Supreme Court stating that it had no right to seek to have the county council obey or implement the laws relating to pollution control in the county. Some of the councillors, when I asked them, were not aware that a case was taken on their behalf.

It seems to me that the nature and history of this State has been to give more power to individuals who are not answerable to the public and to take it away from those who are, politicians. A county manager in my constituency was able to say to someone, "You're only," I will not quote the next word, "passing through and I'm here for life". If we have one man running each county with whatever vision, or lack of it, he may have, deciding on what land may be bought and used for housing stock, deciding on planning in the county, whether he has planning qualifications or not, it seems to me there is no democracy. For that reason it is most important that freedom of information legislation be introduced to allow citizens access to the information to which they are entitled. I cannot state it more strongly than that.

Mr. Howard

The aspect which has distinguished all contributions so far is the absence of any political motivation behind the arguments advanced. That, I am glad to say, has often been a feature of debates in this House. I did not serve with the Minister on Dublin County Council, but long before she arrived here I recognised her as a crusader on these matters. I also noticed that Senator Lee, in making his objective contribution — he is not involved in local authorities — was amazed that such a system should prevail. He asked the Minister if county councils have to wait a certain period from the day this legislation is passed to release every file and piece of information. I understand from the Minister's reaction that is not the case. As a local representative in Dublin, she is a noted crusader for the rights of the underdog, so we should reserve our position until we hear her response.

I agree with Senator Roche's comments about the experience of local representatives. My local authority overcame this problem many years before Wicklow County Council did. Legislation already exists under which the local authority can be compelled to give information to its members and to the public. However, when we told the local authority about the Application of Enactments Act, 1898, we were still refused the information. It was not until the council's law officer told the executive it was attempting to defend the indefensible that things changed. I have no doubt the original file was a bulky one. However, by the time it was made available to the public, it was much smaller. The job was not done thoroughly because correspondence was missing from it. After approximately four months the file returned to its original size. That Act stated that members of the public could get information provided they came during certain specified hours and paid one shilling.

We are all agreed that new legislation must be put in place as quickly as possible. I will wait to hear the Minister's reply because I believe she will endeavour to ensure that the public is not kept waiting until the last day of the period and that prioritisation will be introduced.

Two excellent officials in my local authority, who are both retired, were in charge of two sensitive areas in the authority but they would not supply information to members of the public under any circumstances. Time after time they were told to get out of the offices. They then asked me and other local representatives to get the information for them. When I telephoned the officials, I was given the information which I then relayed to the persons who had requested it. These officials believed that the public should not be given such information and this created many problems.

Local authorities and health boards will need time to organise themselves. I ask the Minister to keep the legislation as short as possible. Members want the best from this legislation and the points made here today have not been made to gain political advantage.

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

I share everyone's impatience to enact this legislation as quickly as possible. Like Senator Howard and others, I was horrified by some of the examples we heard from Wicklow County Council. I served under a slightly less secretive management structure in Dublin County Council, although I recall one occasion when we sent for the law agent—it was his only time in the chamber—and he fainted and was taken away in an ambulance. During the years I served there I never saw him again.

Mr. Roche

The Minister killed the man.

Ms E. Fitzgerald

It put him off appearing in public.

Mr. Dardis

The Minister has given us all an idea.

Ms E. Fitzgerald

It is particularly important this week to reassure Senator Dardis that personal privacy is strongly protected by this Bill. People will not be able to see private information about other people.

Senator Lee put his finger on it when he mentioned the culture of secrecy which has existed for 75 years. It is a culture with which I have battled at central Government level in my efforts to gain acceptance for this Bill. We decided not to draw up two separate Bills for central Government and local government. I would not be here today with this Bill, and I might not be before you for another year or two, if we had undertaken the same detailed consultation we had with the Departments with the local authorities and health boards. We consulted since June 1994 when I sent my first memoir to Government and to 18 Departments. At that stage there was only a commitment in A Government of Renewal to examine it. It took us from then to last December to publish the Bill. If we had consulted 118 local authorities and eight health boards, this legislation would not be before us today.

We have secured agreement from the Departments. I hope that health boards and local authorities, particularly those which display the culture of secrecy we have heard about in Wicklow County Council, will use the period after the publication of this Bill to make preparations. I regard three years as an outer limit. I also hope that as people see openness in the mainstream Civil Service and the ancillary bodies mentioned in the First Schedule, and with cross party political will, these barriers and the culture of secrecy will begin to fall.

Local authorities and health boards must do their homework because the day this Bill is passed and signed into law by the President, a clock will start ticking to put it into effect. Public bodies, therefore, must take important steps before the people are given the legal right to see files. Under section 15 they must compile detailed manuals of the type of information they have. Under section 16 they must codify all the internal rules and regulations and publish them. Anybody who is denied a benefit, grant or pension because there is a secret rule, guideline or interpretation which they did not know about will have a legal right to have any disability against them redressed. That is a powerful and important task and we looked carefully at how quickly it could be done. Those two legal duties must be in place for every public body.

The third and fourth matters are of a practical nature; they are not specifically legal requirements as the provisions of sections 15 and 16 are but they must happen if this Bill is to work. A public body operating under the Bill must have its information systems in order and must train its staff. Many of us have experience of the regulations on access to information on the environment or have read in the Ombudsman's report about what a disaster they have proved to be for the public. There is a dialogue of the deaf between people looking for information and those whose job it is to provide it. There was no change in culture and no preparation or homework was done, so although people had legal rights they were unable to exercise them. We want to ensure that this works from the first day because, if it does not, there will be rumblings in the bowels of public administration to the effect that this legislation is a nuisance which is not worth a candle and so it should be rolled back. That would an enemy of the openness which everyone in this Chamber wants to achieve. I want to ensure that this works well.

The 12 month lead-in time was chosen carefully after speaking to people from other countries with similar models of Government which had brought in this type of legislation. We talked to officials from Canada, New Zealand and Australia and to people who had studied this process, such as Mr. Robert Hazel of the Nuffield Foundation, who had conducted a study of the introduction process. We took careful advice about how quickly to introduce the provisions. I am impatient about this legislation and if I had been told it could be introduced in six months that would be the time period in the Bill, but we were told this was the minimum. In Australia, for example, it was 21 months before the manuals were ready, so people had a legal right but it was not backed up with information about what was available and could be found. The lead-in period has been pared to the minimum, which is 12 months.

We have yet to do the consultation work with the local authorities, but I was not going to speak to 118 local authorities and eight health boards before publishing my Bill. They will have a specific task to get themselves in order. In particular they will have to codify rules and regulations, which can be about everything from septic tanks to housing applications to rules about square footage in housing projects. There is a great deal of homework to be done.

I want this to be in place as quickly as possible. The three year period is intended as an outer limit. Bodies will know they should not simply wait. They must do this work and if they drag their heels they must introduce the provision in three years, come hell or high water. In the spirit of the forthcoming local government reforms, which are greatly concerned with openness, information and empowering councillors, I hope that people get on with their work and will have this done sooner rather than later.

I take Senator Lee's point about categories of information which might be brought in earlier. If there are and if local authorities are ready to start earlier, that should happen. These periods are envisaged as outer limits. The alternative was to make this a Bill for central Government alone— and I do not think anyone wants that—which is why I did it in this way. I am considering whether it can be done more quickly. I am continuing discussions with my colleagues, the Minister for the Environment and the Minister for Health, and I am confident that there are certain classes of information which we can bring in sooner and I may be able to return to that on Report Stage. At a practical level, this sets an outer limit and if we can bring the dates forward, if all of us work on the "softening up" process and if the homework is done in the local authorities, we will be able to apply the provisions earlier than three years. My strong personal commitment is to get this into action as quickly as possible because the examples given by Senators show how badly it is needed.

Mr. Dardis

The Minister said she had battled with the culture of secrecy, but to what extent has she won that battle? In certain quarters of the public services there is a perception that, apart altogether from it being a matter of right, it is not even good for citizens to be able to acquire the information. As I said on Second Stage, this is a distasteful vestige of colonialism that should be rooted out—the idea that the people are not entitled to know, that one could not trust the natives to govern themselves and that it is good for a benevolent power far across the seas to bring Christianity and white rule to them.

The Minister has not given a plausible reason why the period applying to local authorities should not be less than three years. The consequence of this is that it is local authority members who are responsible, not the officials. Section 2 states:

"director" means a director (within the meaning of the Companies Acts, 1963 to 1990) but includes, in the case of a local authority or health board or any other public body ... a person who is a member of it or a member of any board ...

That appears to mean that it is not the county manager who will be responsible but local authority members; and if that is the case, local authority members unanimously want this matter brought forward. The Minister made a distinction between central and local government which may exist, but that does not mean the delay has to be three years. Section 3 (1) (c) states:

if, during the first 3 years of application of this Act to a public body specified in subparagraph (3), (4) or (5) of paragraph 1 of the First Schedule [those are the bodies we are talking about], any difficulty arises in bringing this Act into operation in so far as it applies to that body, [the Minister may] by regulations do anything which appears to be necessary or expedient for bringing this Act into operation in so far as it applies to that body and regulations under this paragraph may, in so far only as may appear necessary for carrying the regulations into effect, modify a provision of this Act if the modification is in conformity with the purposes, principles and spirit of this Act [.]

That may mean the Minister could force them to do things more quickly, but it could also mean they would be allowed to delay the matter further. I am subject to correction on that and the Minister is shaking her head vigorously, but I think it possible to take that interpretation. It would not be the Minister's intention to extend it beyond the three year period but it is possible under the Bill.

In my earlier contribution on this amendment I mentioned the point about when the legislation becomes relevant to a particular record. Section 6 (1), the most important provision of the Bill, states:

every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access.

That is the principle of the Bill, as we alluded on Second Stage. Section 6 (4) states:

The records referred to in subsection (1) are records created after the commencement of this Act and records created during such period (if any), or such time (if any), before such commencement as may be prescribed, after consultation with other members of the Government, and references in this Act to a record shall be construed accordingly.

Again, it seems the records which will be relevant in the case of a local authority are those which are created after the commencement of the Act. If that is the case I do not see why it could not start in the morning.

Mr. Roche

I am very disappointed by the Minister of State's response. Senator Lee referred to a form of competition between our colleagues in local authorities. The result of such a competition would be a dead heat. The reality is that the local authority managers would bring the Act into operation in the last minute of the last hour of the last day by which it had to come into operation.

Many Members expanded on interesting case histories and examples of local authority recalcitrance. I was struck, in particular, when Senator Gallagher said she failed to see why it would take two years to make information available. Senator Howard pointed out there is a legal basis at the moment on which much of this information should be available. The fact it is not available is indicative of how extraordinarily deeply ingrained it is within the local management culture, and within some parts of the local council culture, to deny members information on which they can act.

I accept, as Senator O'Sullivan said, that one could go to the High Court to challenge the manager. However, I do not have the resources to go to the High Court to challenge my manager because if the manager wins the case I will have to pay the costs; however, if the manager loses the case the council pays the costs. It is an extraordinarily unequal competition. For example, the Green Party councillor in Dublin who tried to seek information and to represent the public was subjected to very severe penalties, running to tens of thousands of pounds. As we all know, legal teams representing local authorities are always well padded out and money is never an object. While the local authority might not have money to fill potholes, provide lights or fix a leaking bathroom tap, it can always find money for the whims of the county manager. I am sure that is not unique in Wicklow; it is an endemic fact of life throughout local authorities that the councillors count for nothing. We should strike a blow for councillors.

The Minister of State said, in reference to the negotiations which went on between her officials following consultations with other Departments, that agreement had been secured. The reality is that we are legislators and we have to decide the right course of action. There is no compelling argument which can be put forward to prevent this Bill applying to local authorities from the most current date.

The Minister of State referred to section 15. The provision of a reference book will be very helpful, particularly to students of public administration. It will be marvellous to have some categorisation of what information is available and how to get it. It will be particularly beneficial to academic research.

However, we are not primarily concerned here with academic research. We are concerned with a culture which is hell bent on denying access to the commonplace. Professor Paddy Lynch of UCD once suggested that one of the features of the Irish public service was that it guarded its most commonplace file as if it contained the last copy of the secret of eternal youth. Why should any discussions between my local authority, on behalf of the citizens of Wicklow, and a major corporation be secret? There is no reason for me or any other citizen not knowing what is being done in our interest, if that is the case. It is being done in our name without our knowledge. Putting together the facts relating to cases could not be so complex that it would require three years to do.

If the three year clause is allowed to stand, notwithstanding what has been said about this being the outer limit, I will press this issue; it will probably be the only issue I press today. If this is allowed to stand it will be carved in granite. Local authority officials, who have a lifetime vocation of denying councillors fundamental information, will bring the Act into operation on the last possible day of the third year. There is no compelling legal problem with any local authority which is interested in public service or making information available for so doing. The reality is that the current denial is evidence that the only problem exists in the minds of men and women who fill senior positions in some of our local authorities and health boards.

No argument has been put forward here on why I should not press this amendment. I am not denying there will be some difficulties. However, it would not take even the biggest local authority three years to order its files and make people aware of the truth. What can there be on the files to hide? This is not a Masonic confraternity but the Irish public service and local authorities which exist to serve the people. Denying people information in the possession of those authorities cannot be in the public interest. It cannot be accepted and I am not accepting it.

I ask the Minister of State to remove the three year clause because one year is more than sufficient. The reality is that information currently in the possession of local authorities is, in law, supposed to be instantaneously accessible. As Senator Howard said, under the 1898 Act a citizen, on the payment of a fee not more than one shilling, has the right to request this information. However, that right is currently denied unless a citizen is prepared to take legal action. That is not good enough.

All we are asking is that the current legal arrangements should apply. Those laws continued to apply when this State came into operation. They did not go out of effect until county managers got too much power and the balance moved from the democratically elected to the non-democratically appointed. We have heard examples of what should not be allowed to happen from councillors from all over the country. I ask the Minister of State to accept the amendment and to tell the local authorities they have one year to comply with the Act.

Professor Lee

I would prefer if there was not a vote because there is greater unanimity on both sides of the House on what is desirable in regard to this issue than on any other recent issue. However, if there was a vote I would have to support the amendment on the basis of what I have heard so far. Speaking from a position of ignorance, I wish to put to the Minister of State some of the implications I draw from what Senators Dardis and Roche said.

They made the point that, under section 6(4), this Bill only applies to records to be subsequently created and not to records which now exist. I was taken aback by that because I have tabled an amendment to extend it to other records. If it is the case that only records which are to be created come under the aegis of the Bill —I am simply repeating the point made by Senator Dardis—what is the difficulty with making those records available from a very early date, so that the ethos of organising them in a way which will facilitate access to them can be inculcated from the outset? It is not a case of every record in the possession of the local authorities being made available in identical form straightaway. Will the Minister of State clarify if that is the case?

The Minister of State said that if some local authorities drag their heels and do not meet the deadline, they will have to come in after three years. However, if they drag their heels what will they come in with after three years? Presumably, they will be starting from scratch if they have postponed these matters and have not begun to internalise the culture of openness. If they are doing it against their will they will be obstructive and will not be in a position to grant open access to their files. It will begin when it can be implemented, which may take longer than three years. What would be the time limit in that situation and why should they not continue to drag their heels?

Sticks and carrots can be used where people are obstructive. What sticks and carrots have the Minister of State and the Government? If there is no other language they understand why not begin to use the financial resources from the outset to get them thinking along these lines now, rather than indicating that penalties will only be applied if nothing has been done after a lapse of three years?

From the outset, the mentality should be imposed with the sentiment that the culture is changing. It has been said that from the day the Bill passes they will begin to think along these lines, but they should have been doing this at least from 19 December 1996, when the Minister of State introduced the Bill to the House. That mindset should already begun to have changed. If the incentive is there it should begin to operate henceforth.

I see no reason, unless it can be shown that in practice it is impossible, why categories cannot be established—the Minister of State said it may be possible to establish classes on Report Stage —with deadlines, incentives and disincentives for their achievement. In this way an attempt should be made to make it clear to the 118 authorities, or whatever number of them are recalcitrant, that this is serious business and that the pressure will be kept on them. General elections will occur and sentiments may be expressed that these pressures may reduce with a change in Government. If one is serious one must begin the process now and not wait for three years.

I take the point about deadlines. I dabble in journalism and am not unfamiliar with the culture of the deadline. It applies to all organisations where change, some of it unwelcome, is being pressed. The earlier the deadline the earlier that changes are made. The modalities of the implementation are probably very important. Much time and thought should be devoted to this, which should begin now, not when there has been heel dragging for three years.

Ms E. Fitzgerald

If a local authority does nothing it is still included. The section to which Senator Dardis referred is a standard section to address technical——

Mr. Dardis

I worry about standard sections.

Ms E. Fitzgerald

These standard sections, which are included for a limited period, are offered by the parliamentary draftsman to deal with technical misprints that tend to creep into even the best proof read legislation. It is not possible under that kind of technical section to do something that would be so contrary to the purpose of the Bill as set out in the Long Title, which is to open up information, rather than give anybody an extension beyond the three years. If a local authority refuses information after three years the information commissioner becomes operative.

Section 6(8) sets out the principle that nothing in the Bill shall stop people giving information which they would be obliged to give or which it would be good practice to provide, other than information which would be illegal for them to give. That is backed up by section 38, which provides a power to the information commissioner to report on this. It attempts, therefore, to push out the boat, even in advance of bodies becoming included under the terms of the legislation.

Senator Lee asked if the information to be made available is only prospective information. When a body is designated, all current files, all personal information files, including those going back over time, and all information needed to understand a current file are included. A current file and its history becomes included, as does full personal information files.

However, the onerous administrative task will be to organise circulars, internal routes and guidelines. A big financial penalty will apply if this is proceeded with incorrectly. This will take time to organise.

I will consider the extent to which we can bring forward categories of information for Report Stage. I have examined this very carefully. Members will know my personal commitment to pushing out the boat as far as it can go with regard to these matters. I have done this in the Bill. The period of three years is an absolutely outer limit. The only restrictions are those governed by practicalities to make access to information as good as can be provided.

Mr. Roche

Given that there is unanimity, I wish to accommodate the Minister of State and not be divisive. I will introduce a similar amendment on Report Stage because it entails a principle which is the core issue in the Bill. It is only fair to give the Minister of State an opportunity to introduce an amendment on Report Stage that would reduce the categories.

The application of this legislation from day one would be in respect of current files. The numbers of current files held by local authorities are not huge. There is no reason why they should not be fully accessible from day one. Councils already have codes for matters such as septic tanks, planning, rules for house, by-laws, planning decisions and so on. All of these are subject to some kind of code. They must be written down in law, which does not present difficulties. The Minister of State's officials should look at these between now and Report Stage and agree that such issues should come into operation from day one.

While I do not accept that it should be the case that there are other issues on which it will be more difficult for local authorities to proceed, if it can be shown to me that this is so, I will not press matters. However, it should be made clear that matters must proceed from the designated dates.

There is no reason why housing applicants to local authorities should not be able to see their files and see why they are not getting the same priority as others. It is wrong and unjust that this pertains. We should not condone injustice.

I will not press the amendment because we have had a lengthy discussion and there is unanimity. However, if it is in order, I will put down the same amendment on Report Stage.

Acting Chairman (Mr. Sherlock)

It is in order.

Mr. Roche

The Minister of State has undertaken to try and do something. I accept there are difficulties. She has been progressive in allowing access to those drafting the Bill. There is a sense, therefore, in which we can proceed together. I do not wish to score a political point; there is no value in doing so.

Mr. Dardis

The Minister of State appears to agree with us in principle. She said earlier that she shares the concern of Members. We make the law, not the parliamentary draftsman or anybody else. They propose and we dispose. If the Minister of State is in agreement with us she should take them on and show us her credentials.

Professor Lee

The Minister of State said that she considered that a major problem would be getting internal circulars and guidelines organised in a coherent manner. I am sure that is true but I have difficulty believing that it takes three years. It may take me three years to find something in my own Department, but it would not take me three years to know under what guidelines I was trying to find it.

Senator Dardis referred to difficulty in understanding the text. It reaches the outer limits of obscurity. I do not know whether the outer limits were further in earlier examples but I do not believe the resources of the English language— to say nothing of another language — do not permit clearer legislation. The irony is that we are discussing freedom of information, in which access to and clarity of information is one of the principles involved, but some of us have great difficulty understanding some of the drafting.

Mr. Dardis

To be understood the Senator should have said the resources in relation to the English language.

Professor Lee

The Senator is correct. Many people, including several Senators and Senator Roche is pre-eminent among them, have argued for years in print, academically and politically about the importance of trying to enhance the role of local government. If that role is to be enhanced, parity of access to information is essential for citizens at local and national level. It is important there is not a two tier system in terms of citizens' esteem for the services rendered by the two levels of government. Anything which distinguishes them should be avoided if possible. An integral part of enhancing the role of local government is to try to ensure its conformity and that, if possible, it responds positively so it does not need to be constantly kicked regarding the principles involved in this area. This is another reason for keeping up the pressure.

Acting Chairman

Is the amendment being pressed?

Mr. Roche

I am not anxious to press the amendment because we have achieved a great deal through consensus.

Mr. Dardis

No, on the basis that it will be reexamined on Report Stage.

Amendment, by leave, withdrawn.

Section 1 agreed to.

SECTION 2.

Acting Chairman

Amendments Nos. 2 and 37 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 2:

In page 6, subsection (1), to delete line 11.

Ms E. Fitzgerald

This amendment is technical. Provision is already in place in section 12(1)(b) and (g) to enable transcripts to be provided. There is a vague danger if the section remains as it stands that people might be given transcripts when they are seeking photocopies and this might delay the process.

Mr. Dardis

My amendment relates to section 12(1)(b) under which a public body may give access by giving a statement in writing of the information concerned. This gives the body huge scope to provide a précis or an abbreviated version of the information. I realise the difficulty in this area. An example is when the Kill anti-dump group, following the public inquiry, arrived at the Department of the Environment with almost a lorry load of material. We must have some sense but my amendment proposes deleting "statement" and substituting "transcript", if that is what is required.

A statement in writing allows public bodies huge scope to condense to an unacceptable degree the information sought. I suspect this is the reason for the deletion in section 2 of the definition of copy including a transcript. I understand it imposes an onus but I would prefer it to be imposed rather than the possibility to circumvent the intention of the Bill by allowing local authorities or other public bodies to provide the person requesting the information with a very condensed version of it.

Ms E. Fitzgerald

I accept the Senator's point. Further advice on how it should be drafted will be sought and we will return to it on Report Stage.

Amendment agreed to.

Acting Chairman

Amendments Nos. 3, 51, 52 and 53 are related and may be discussed together.

Mr. Roche

I move amendment No. 3:

In page 6, subsection (1), line 18, to delete "(e) or (f)" and substitute "(e), (f) or (g)".

The point about the complexity of the legislation arises again regarding this amendment. The difficulty of getting around the Bill which is about creating access to information is extraordinary. It is a complex area but it is not a reflection of recalcitrance on the part of the drafters.

The purpose of the amendment is clearer when one considers amendments Nos. 52 and 53. The logic then becomes obvious. As I said on Second Stage, many bodies have been conferred with certain statutory powers and functions, such as the Law Society, the Bar Council and the various medical registration boards. I am not sure if I mentioned the other example of adoption agencies but I intended to refer to them in deference to Senator McGennis. Many of these agencies were conferred with statutory functions under various enactments and it is fundamentally important that they are included. I will be controversially upfront about this matter because, if we are discussing freedom of information, we must be clear about what we are doing.

I am anxious that the Law Society and the Bar Council, which have played ducks and drakes with people's rights and lives for so many years, are open to public scrutiny. I mentioned the case of a young couple—I am not supposed to mention names—in Greystones who are languishing in limbo because people in the Law Society are prepared to juggle with their lives in a way which I find disgusting. Since I last mentioned the case, the argument involving a number of solicitors, in which this innocent couple is involved, has reached the Supreme Court because the barrister who was originally briefed by their solicitor to represent them turned around and represented the other side and the Bar Council will not get involved. It is extraordinary because the young couple recently discovered that a character in the Bar Council who was handling their case will be in charge of the committee which will examine the grievance about the way that august body mishandled their case.

There is a clear conspiracy between the Law Society and the Bar Council to grind my constituents into the ground and I will not accept it. I am sure if any other Member of this or the other House faced the same set of circumstances they would too would take umbrage at the way these people operate. If a non-statutory agency has been entrusted in law with any power or authority, on accepting that power or authority it must also make itself liable to be as open, transparent and accountable as any statutory agency. I thank the Minister for her assistance because I know she and her officials share my passion in this area. Issues of civil liberties and people's rights are involved in this case.

From my limited experience in my part of County Wicklow, I could mention four or five cases which would illustrate how scandalously the Law Society and members of the Bar have treated people's rights in the State. I am not happy that those people in the privacy of their rooms or wherever they hold their meetings or cabals should be allowed to handle people's lives in that way. I put this amendment down because of two young people, Maureen and Terry Doran, and the way the Law Society has treated them. Everyone accepts in this case that an error was made.

Acting Chairman (Ms Kelly)

The Senator knows he is not to name people.

Mr. Roche

I know, but I am sure Maureen and Terry Doran would not mind me mentioning their case.

Acting Chairman

The Senator has committed the crime again.

Mr. Roche

I am sorry but I am sure that if I could put all of their correspondence on the Official Record with the two societies in question there would be a rush by Members to strengthen this amendment.

Ms E. FitzGerald

I am happy to accept the amendment.

Mr. Dardis

Senator Roche has fainted.

Mr. Roche

I have not fainted. I was consulting with the Whip and saying there would be no vote because the Minister of State has accepted the amendment. I am very grateful to the Minister of State. She has done something very important for the rights of small people who are being trampled on.

Amendment agreed to.

Acting Chairman

Amendments Nos. 5 and 6 are related to amendment No. 4 and can be discussed together.

Mr. Dardis

I move amendment No. 4:

In page 7, subsection (1), lines 36 and 37, to delete paragraph (b),

My difficulty is with section 2 on page seven and is to do with personal information "held by a public body on the understanding that it would be treated as confidential." Whose understanding are we talking about? I had considered altering this to say "on the specification", so that if somebody had submitted information about themselves to a public body and wanted to make a specification as to its confidentiality they would be able to do so.

I understand reasons for confidentiality if there are commercial transactions in which a public body was engaged but I have grave difficulties with the phrase "understanding that it would be treated as confidential". From that, if the county manager decided that in his understanding it was confidential, even though he had not received a specific instruction to that effect, would there be grounds for saying that personal information about an identifiable individual could be withheld?

I welcome the alteration to the Government amendment on information relating to the personal affairs of the individual. That has improved matters by specifying financial affairs. On Second Stage we raised the exclusion of information relating to the criminal history of the individual, which is the substance of amendment No. 6. On Second Stage the Minister said that if a person gained a criminal record for parking on double yellow lines, which is private, others will not be able to have access to that type of information. I am not sure about that and cannot understand why, if one commits an offence, that that should not be in the public domain. Some very trivial matters are reported in local newspapers and I can envisage circumstances in which it would be quite appropriate to have information on the criminal history of an individual made available.

Ms E. Fitzgerald

Senator Dardis seems to have a problem with the word "understanding". The normal situation would be that the understanding would be of both parties, determined either explicitly or by longstanding custom and practice. Generally it would be a mutual understanding.

If we delete the proposal as the Senator suggests—and I will look at "understanding" again —one would have no protection for confidential information. Public bodies often hold sensitive information which would not be appropriate for third party access. This definition of personal information affects the Bill later, as normally when dealing with personal information only the person concerned can see it. There has to be an overriding public interest for somebody else to see it, or in cases where one would see personal information about one's child, such as a school record, or about their next of kin. Generally, only you can see your own file, only I can see mine and it is not open to public access. Deleting that could allow confidential information to be accessible to third parties and that is not what the Senator intends. We will look at "understanding" again but I believe it means a mutual understanding.

On information relating to the criminal history of an individual, under freedom of information a public body cannot ask of anybody who inquires why they are looking for that information. In the week that is in it, if any stranger could walk in off the street and see the youthful indiscretion of somebody else, that would be regarded as completely inappropriate. There are cases at the moment where employers, looking to employ somebody, go directly to the Garda, show their bona fides and would be given clearance or not on the criminal history of the individual. They are asked who they are and why they are looking for that history. This would not cut across that kind of access in controlled and appropriate circumstances, but freedom of information is about somebody walking in off the street and officials being legally precluded from asking them who they are and why they want to know about a third party. In those circumstances it would not be appropriate to look at third party information and that would be the effect of Senator Dardis's proposed deletion. We should be careful because youngsters get into trouble from time to time and it should not hang around them for the rest of their days for any person to access. That kind of open access would not be appropriate.

Mr. Dardis

I accept what the Minister of State says. Trivial matters should not be exposed to the full glare of public scrutiny, but a balance should be struck. Perhaps it is possible to frame this in terms of convictions in the District Court so we have a line drawn on what would and would not be appropriate to be public knowledge. The Minister of State is correct on my difficulty with the word "understanding" and that was why I sought deletion. I found it difficult to substitute a word for "understanding". One way that might be considered on Report Stage is to have a definition of "understanding" in the definitions section of the Bill.

On a trivial point, it is open to confusion to read section 2(1) and then to have all of these (a)s and (b)s. Perhaps the draftsperson needs to look at the technical aspect of that. We should know the part of the Bill we are talking about. It is easy to be confused as to the different parts and subsections.

Professor Lee

I agree and sympathise with Senator Dardis's points. I tend to the Minister of State's view on the importance of privacy. The balance to be struck, to which Senator Dardis referred, is one between secrecy and privacy. The Minister is coming down on the right side, that of privacy. On the Government amendment, one is substituting information relating to financial affairs instead of business affairs. That seems to be a straightforward substitution. However, "or the personal affairs" was dropped. That is a change in meaning. What is the thinking behind that?

Ms E. Fitzgerald

We looked at the working of this in other jurisdictions in relation to privacy Acts. On mature reflection we felt that the way it had been originally expressed was not adequate. "Business affairs" has been dropped; only "financial affairs" is included in amendment No. 5, as business affairs are dealt with in detail in section 27. It was felt that "personal affairs" was too vague and is at variance with the more specific nature of the Preamble. This is based on legislation that is working well in another jurisdiction.

Professor Lee

At the end of several sections there are definitions of the terms used in those sections. Section 14, for example, which runs over two pages, uses several phrases not used elsewhere, such as a "relevant person", and when you reach the final subsection the terms are explained. Why are those terms not in section 2? If they have to be scattered throughout, why not at the beginning rather than the end of the sections? This would make plain common sense — if a professor may speak common sense for once.

Ms E. Fitzgerald

I will put the Senator's very eloquent points to our draughtsperson.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 5 has already been discussed with amendment No. 4.

Government amendment No. 5:

In page 7, subsection (1), lines 41 and 42, to delete paragraph (ii) and substitute the following paragraph:

"(ii) information relating to the financial affairs of the individual,".

Amendment agreed to.

Amendment No. 6 not moved.

Acting Chairman

Amendment No. 7 is in the name of Senator Roche. Amendments Nos. 14 and 38 are related. Amendments Nos. 7, 14 and 38 may be discussed together.

Mr. Roche

I move amendment No. 7:

In page 9, subsection (1), line 18, after "foregoing" to insert "and includes all references to other related records".

I am concerned that there is the possibility—and it is only a possibility given that our public servants are tripping over themselves to be open and accessible — that people might be less than fully forthcoming with information. When a requester lodges an application for a certain type of information, the problem is knowing the right question to ask. If you are an investigative journalist, a humble academic or an even humbler councillor and you are trying to get to the truth, it is often very difficult to know what question to ask. You could get a truthful answer to the wrong question. The person providing the information should have a statutory responsibility in this matter.

It is mentioned elsewhere in the legislation that anybody providing information should provide it to the fullest possible extent. However, it struck me that in this subsection, by adding the words "and includes all references to other related records", you would put down a clear marker regarding other related records about which the requester may not have seen fit to ask. This would appeal to lazy academic researchers — none of whom are in this House. It is a requirement for cross referencing and it makes good sense. I hope the Minister can see this.

Ms E. Fitzgerald

I understand the point being made but I think the matter is dealt with elsewhere. People are required to look for information with due particularity. Also, Departments and public offices have to give guides with references to what is available and will be under legal obligation to help people narrow down the request. Senator Roche referred to this as being a bit belt and braces. If somebody made a routine request, the process would be delayed for a long time while staff compiled all the cross references. It could make a simple request unnecessarily voluminous. It is important that the process is kept as simple as possible. There is a legal duty on public bodies to be helpful. That is the purpose of the reference manuals and of narrowing down requests to what people are looking for.

A public body could, for example, be required to seek records which it does not hold but which are referred to in its records. The mechanism suggested would not work in practice and could discredit the idea of openness. That would be a pity.

Mr. Roche

The Minister spoke of making the Bill unduly complex. Given what has already been said about the complexities of the Bill, the additional phrasing suggested in my amendment does not create undue complexity.

I accept what the Minister says. The intention in the Bill is that people should be helpful, the manuals should be helpful in giving a general view of information. The requirement that one should be as helpful and forthcoming as possible is fine. Maybe between now and Report Stage the Minister would consider the merit of putting in some formula of words. All the material related to an individual case would not be covered in the manual. The manual would be a general guide. There could be internal pressure put on public servants not to give members of the public too much information.

I remember years ago working in a Department and discovering that somebody was not getting what they were entitled to. I committed the cardinal sin of ensuring that the public knew that if they asked the wrong question they would not get their entitlements. I got a severe chastisement and was told that my job was to see that they got as little as possible. That attitude does prevail.

In some public service agencies I can see a willingness, at management level in particular, to withhold as much as possible. If there was the specific requirement to draw attention to cross references, it would be helpful. I accept that there is a difficulty with drafting and that the draft I put forward is cumbersome, but if the Minister could return to the issue on Report Stage, I will not press the amendment to a vote.

Ms E. Fitzgerald

The most efficient way of dealing with this is by asking if we need anything extra in the obligation to be helpful.

Amendment, by leave, withdrawn.

Question proposed: "That section 2, as amended, stand part of the Bill."

Mr. Dardis

I wish to indulge in my annual outburst of pedantry about the "in relation to" disease. Why is it not possible to say "for a Department of State, the Minister for Government having charge of it"? Why must the phrase "in relation to" be used? There was a trend away from the use of the phrase, which was most desirable, but now the trend has turned back. It is a most cumbersome phrase. There is a marked absence of the phrase in the text of early Acts of the Oireachtas. Its use appears to be a modern disease so I make my annual appeal to the parliamentary draftsman in relation to "in relation to".

My other point relates to section 2 (1) (ix) which refers to "information relating to property of the individual (including the nature of the individual's title to any property)". On Second Stage I spoke about the public's fascination with the estates of people who are dead and the need for newspapers to publish the value of estates of the deceased. Is it possible to amend this provision to have it apply to the property of an individual, living or dead? It causes distress to the surviving relatives of the deceased to see details about his or her estate published in the columns of a Sunday newspaper. I accept there is huge fascination with such information, which is why the newspapers publish it, but is it appropriate that such information is published in national newspapers each week?

Ms E. Fitzgerald

I need to take further legal advice to ascertain if the term "individual" applies to the dead as well as the living in this context. The intention is that property information would not be accessible under this legislation. If it is otherwise published people can get access to it but there is no question of making a request under freedom of information legislation to discover how many acres of land somebody has or the details of a car registration.

Question put and agreed to.

Section 3 to 5, inclusive, agreed to.

SECTION 6.

Acting Chairman

Amendments Nos. 9 and 25 are related to amendment No. 8. Amendments Nos. 8, 9 and 25 will be discussed together.

Professor Lee

I move amendment No. 8:

In page 12, subsection (3), line 1, to delete "may" and substitute "shall".

I proposed these amendment to tease out what the Minister of State has in mind with regard to this provision. It refers to people with disabilities and the manner in which public bodies may be issued guidelines by the Minister for Finance on how to respond to their requests. If the principle is accepted as a good one, the phraseology should be strengthened. It should not be a question of "may" but "shall". I have not done anything about the use of the phrase "as he or she considers appropriate" which occurs throughout the Bill and appears to permit much leeway to the Minister. That does not concern me at present.

It is important to use every opportunity available to raise public consciousness and the consciousness of public bodies of the particular challenges that confront people with disabilities. The amendment is a way of both satisfying the aspiration of this Bill and of advancing a worthy general purpose, in terms of raising the consciousness of officials who might be involved in these matters. It is possible that people with disabilities might use this legislation disproportionately if it transpires that they become conscious of a range of rights of which they might not be aware now or do not have an opportunity to use now. People with disabilities are probably active beneficiaries of this legislation and it is desirable that they and the officials involved should be encouraged to respond positively to it. In that case the word "shall" should be used rather than the word "may".

Amendment No. 9 seeks to impose a time limit of four weeks. The time limit is nominal as little can happen in four weeks but it is suggested in order to stress that there ought to be a deadline and to focus the Minister of State's mind on the need to have definite guidelines in place at a particular time from the commencement of the legislation. The principle is good and I hope the Minister of State will see its merit.

Ms E. Fitzgerald

I appreciate the Senator's concerns. All of us wish to see people with disabilities facilitated in using this legislation. The reason the word "may" is used instead of "shall" is that it is more flexible and in favour of people with disabilities. We looked carefully at the experience in other countries and it is only during the period following the implementation of legislation such as this that one can identify practical teething problems. In the first six months the only people with disabilities who might use the legislation could be wheelchair users and not people who are deaf, blind, maimed or people with mental disabilities. If legislation and regulations are cast in tablets of stone it is hard to change them.

We believe the legislation is pro-disability because section 15 (5) obliges the Minister for Finance to put in place the organisational arrangements to make the legislation work. Under that section guidelines and circulars will be issued as problems emerge. At the end of a process the guidelines can be codified into a set of regulations based on experience. The experience in other countries is that following a period of about one or two years one can identify the teething problems and practical issues that must be tackled.

While I appreciate why the Senator has proposed this amendment, the provisions as currently drafted would be more helpful to people with disabilities because issues can be noted as they arise and circulars under section 15 (5) can be issued. That will not mean that the disability issue has been dealt with because new problems can arise. However, it is cumbersome to introduce new regulations. It is better to go through the informal process first and make regulations following experience in the problems that can arise for people with disabilities.

Professor Lee

I am a little puzzled by the Minister of State's response. She appears to be saying the Minister "shall" but shall only do so after a certain delay in order to see what the problems are. Why does one use permissive phraseology for what is intended as presumably an obligatory commitment, but after one has experience of observing what is happening? I would prefer to see the principle of "shall" included and, again, it comes back to the resources of the language to find a way of saying that. If one wishes to say "shall" and specify a period within which it will be implemented, it can be done.

The Minister of State referred to what we have learned from other countries. One of the strengths of this Bill is the fact that the Minister of State has consulted widely and pondered the lessons of other countries. However, that must mean that already a number of these issues will have arisen in other countries so one is not starting in a vacuum. One can already anticipate or identify some of the problems and consultation with some of the organisations representing the disabled would identify others. There is nothing to prevent these being added or finding a phraseology to allow for that. Once one had started with a "shall" the principle would be accepted. It would not be up to an individual Minister and there would be a commitment built in to adding to the list. If we are in agreement on the principle then what I am suggesting is superior to what is in the Bill which does not copperfasten the principle.

I would be grateful if the Minister would look at this before Report Stage. For once I am confident that I am right.

Ms E. Fitzgerald

I will look again at the "may" and "shall" issue and take further advice. This must be read in conjunction with the obligation under section 15(5) for the Minister to put in place necessary organisational arrangements. This is not a stand-alone provision.

The Senator has accepted the point that four weeks would be too restrictive.

Professor Lee

Section 15(5) states that:

The Minister shall ensure that appropriate measures are taken by public bodies, as respects training of staff, organisational arrangements...

These measures involve extra commitments as far as people with disability are concerned. That is all the more reason for initiating this as soon as possible and making it clear that there is a commitment and that it is not simply a possibility in due course. Anything which can exert pressure in this regard is to be welcomed.

Amendment, by leave, withdrawn.

Amendment No. 9 not moved.

Acting Chairman

Amendments Nos. 11, 12 and 13 are consequential on amendment No. 10 and may be taken together.

Professor Lee

I move 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".

I put down this amendment because I could not see how one could confine the legislation to records created after the commencement of this Bill. There were bound to be references to earlier events and that would be an artificial and impossible barrier to set down in terms of the search for information.

I appreciate that the section continues: "Records created after the commencement of this Act...before such commencement as may be prescribed..."

I take it that this recognises the artificiality of saying only from the day the Act comes into effect and therefore it allows for records created previously. This is an extraordinarily cumbersome and permissive expression. "Records created during this period (if any), before such commencement..." The whole of recorded time could come under that phrase. "After such time (if any)..." I am not sure what that means. "Before such commencement as may be prescribed, after consultation with the other members of the Government, and references in this Act to a record shall be construed accordingly." It is not even after consultation between the Minister for Finance and the head of the body or another Minister, but "other members of the Government". This is an extraordinarily all embracing phrase and suggests infinite possibilities for postponement, delay and deferral. I know that is not what is meant but, given the normal processes of administration, delay is built into that phrase. My own phraseology is very simple and speaks of any other relevant records.

I would appreciate a clarification of how this is intended to operate in practice as distinct from what appears to be the impossibility of rapid implementation.

Mr. Dardis

My concerns are almost identical to those of Senator Lee. He has proposed an alternative which I am prepared to accept. My view is that sections 4 and 5 should be deleted and there would be a consequential amendment in subsection (6) which would say subsection (1) rather than subsection (5).

The core of the Bill is section 6(1):

Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access.

We are circumscribing that subsection. The limits which are imposed by section 6(4) and (5) are far too restrictive. There is the capacity to procrastinate because the Minister must consult with other members of the Government and so on. The three years looks like a short period when one considers what might follow from this. The right is so firmly established in section 6(1) that it is inappropriate to confer these extra restrictions.

Ms E. Fitzgerald

The language may be slightly confusing. It is intended that when people apply for records they will be able to see current files and any past information which it is necessary to understand those files. All personal information will be disclosed straightaway.

Section 6(4) is causing some grief but it is prescribing a rolling back process so that, initially, one will see current records and anything necessary to understand those records and all personal information whenever created.

After the Act has been in operation for a while, the Minister for Finance will prescribe a rolling back so one can see records created perhaps four or five years before commencement. Then a further rolling back will reveal records created ten years before and so on until files come under the aegis of the Archives Act.

We took advice from people who brought in freedom of information legislation in other countries, particularly in New Zealand. They spent a lot of time archiving material and looking at old records and nothing was done about current files. The vast majority of requests were for current records but the system for meeting those request was in disarray. On the basis of this advice we felt that the majority of requests would be for current material and it was important to get current and future record systems ready. Only then would we tackle the older files. This is a practical approach and is not in any way an issue of principle. As soon as the system is up and running the Minister for Finance will prepare regulations to start rolling it back until freedom of information legislation meets the Archives Act.

Mr. Dardis

I can see the difficulty involved and am prepared to accept that one establishes a date which is within six months or a year and that everything that is created after that becomes the subject of scrutiny. I realise the intention of the subsection is to allow people to go back. A problem which arises from that is that if the prescription is not introduced, what about the archival aspect?

I tabled a motion at Kildare County Council whereby the council would establish an archive. Legislation has been introduced in this area. It is important that those documents are preserved because they are the most comprehensive social record of the history of the county. However, under this it could be argued that it might not be possible to have access to some of those documents and if one were to adopt the letter of the law under section (4), it might not be possible for the historian like Senator Lee to go back to discover what was in a document of interest to him, assuming he could find it among the files when it is given to him but I will not go back over that again.

Professor Lee

I appreciate the Minister's explanation but I was not speaking from a historical perspective. First, I did not understand what this meant or at least how it applied in practice. If one is talking about current files, why not say records created after the commencement of this Act, etc.? Why not put this into language which people like myself have a reasonable chance of understanding. I believe the principle is admirable and sensible but I have great difficulty extracting that from the phraseology used here. I know draftspeople may have problems, but surely it is possible to give clearer expression to this. The Minister of State said it with admirable clarity and was not getting overtime for being a draftsperson as well. Why can it not be included like that?

Having said that, it is still very permissive as distinct from saying this is what is intended to happen — this shall happen. How are the words "after consultation with other members of Government" to be interpreted? Does consultation take place with them all together or seriatim? If somebody wanted to be a nuisance, the phraseology is so loose and obscure that nothing could happen.

Ms E. Fitzgerald

The roll back would be about all records in a particular period or a specific set of records — for example, if it was a matter of public interest to look back at past records of the BTSB. The Minister for Finance would consult with other members of Government before making these regulations because in most cases, presumably, it will not be the Department of Finance's records. The Minister for Finance is the prescribed Minister for the public service so he would consult with other Departments about the roll back. We hand it in plain English to the draftsperson's office and it comes back as a stamped copy saying it is consistent with the Constitution. It may not be English as I would write it but my English may not get stamped copy status.

Professor Lee

It is time the English of Ministers and their officials began to get stamped copy status. I am becoming more — I do not want to say irritated — bewildered by what is contained in legislation. The Minister of State gave us a clear explanation and I do not see why it should be incompatible with our Constitution to find a phraseology similar to hers which is constitutionally acceptable instead of phrasing it like this and having to have it explained in English. I am serious about this. It seems Ministers are in awe of draftspeople and legal people. If I may say so, Ministers speak far more sense than either of those categories.

Mr. Dardis

To pick up on Senator Lee's last point, frequently legislation is drafted for the benefit of the legal industry rather than that of our citizens and it is to perpetuate that industry. I accept restrictions are imposed on us by the Constitution, which is an easily read and understandable document. Why can we not do the same with legislation?

To return to my original point, I do not see the need for these circumscribing subsections when the principle is so clearly laid down in clear English in section 6(1). We then move into this minutiae. We keep coming back to the official sitting in his office who is determined that the public shall not have access to this material. He will know the minutiae of these subsections and the cross references. Then when poor Joe Public comes in, he will tell him that section X (c)(4)(d) gives a cross reference saying he is not entitled to information. Poor Joe or Sheila Public will go away beaten and subdued by the sheer weight and authority of this official whose sole purpose in life is to thwart the reasonable grounds of the public to access to information.

Progress reported; Committee to sit again.