Amendments Nos. 18, 34 and 35 are related; amendments Nos. 17, 18, 34 and 35 are being discussed together by agreement.
Freedom of Information Bill, 1996: Committee Stage (Resumed).
Debate resumed on amendment No. 17:
In page 12, subsection (1), line 45, to delete paragraph (a).
—(Senator Roche.)
The central point of this amendment relates to discussion which took place last week, and it is that it should not be possible for officials who are asked for information to find reasons for not granting the information. As far as possible the Bill should be amended to ensure that impediments could not be put in the way of the requester and that the stated objective of section 6(1), that "... every person has a right to and shall, on request therefor, be offered access to any record held by a public body...", is the central ethos of the Bill and the provisions of the Bill should be in accord with that ethos. Therefore, it is unreasonable to ask the requester to state that the request is made under the Act. It is an unnecessary imposition. If somebody gets in touch with a local authority or a Department seeking information on a planning file or some other matter, it should be taken for granted that the provision of the information is covered in the Bill and it should be unnecessary to state that the request is made under this Bill. Once the request is made it is, by definition, in accordance with the Bill. I do not see the necessity for this provision. Many ordinary people will make requests as a result of the publicity about the availability of information and they will receive letters to the effect that, since they did not make the request stating that it was made under this regulation, they will be obliged to resubmit it. That is why I believe that this subsection should be deleted.
As I told the House last week, the authorities in New Zealand applied their access to official information legislation without people having to specify that the requests were being made under the Act but they then found that the appeal mechanisms did not kick in unless it was a request under the Act. The practice which has now emerged there is that people are being asked to specify on a voluntary basis that it is a freedom of information request so that the appeal system will come into play. That is really the important thing because if it is a plain, ordinary, non-statutory request across the counter, one does not get access to the appeals system. Presumably, if one makes a straightforward application for information one would get it in the normal course of events, but if one is refused information for a particular reason only freedom of information requests invoke this particular Act in which one has a right of appeal to the Information Commissioner. I know it sounds a little technical but we expect the detail will contain application forms which will state that people may make a freedom of information request. We will look at that type of detail in the implementation process.
A number of amendments were taken with amendment No. 17 which also deal with the issue of due particularity. I propose to accept amendment No. 34 tabled by Senator Lee which means that the due particularity provision only applies where somebody has been advised and helped to narrow down the request. I have been advised by the draftsperson that I do not have to accept amendment No. 35 as a consequential one if I accept amendment No. 34. That deals with the due particularity point made by a number of Senators.
I thank the Minister of State for accepting amendment No. 34. If I understood what Senator Dardis said correctly, acceptance of my amendment meets a large part of Senator Dardis's concern to try to make this legislation citizen friendly. There is an important educational dimension to this Bill. As I understand it —the Minister of State can confirm if this is a correct interpretation—under section 7(1) (a) a person who did not say this was under the Act would be advised that it was there. In other words, the assistance dimension would mean that those who were not aware of the Act or who did not make the request under it would be alerted to its existence and if they wished to make the request under it they could do so and this would, in due course, allow them access to the appeals system if it came to that. Is that a correct interpretation of what is involved?
The assistance dimension is imaginative and it is important that this is not seen, as far as possible, as hostile or adversarial between citizen and official. It is important that we try to get across to both sides the fact that we are on the same side, which will take time. The assistance provision is imaginative and constructive and I understand the Minister of State is extending it to section 7 (1) (a). If my interpretation is correct, I would be glad to have it confirmed because it would answer Senator Dardis's and my concern about people. If this is not extended to section 7(1) (a), I would like the Minister of State to advise on how it can be to make the provisions as effective as possible.
Once again I am in awe of the capacity of the Independent benches to have amendments accepted. I have a lamentable record in this area but I will keep trying. Some day having tilted at the windmills for long enough, they will all fall over. I do not understand the logic of the New Zealand example. Section 7(1) states "a request in writing". Nobody will go into an office looking for file X, Y and Z. If a request is made in writing——
We have amended that.
I apologise; I was looking at amendment No. 15. I should collapse in a heap. Having tilted at the windmills, I will go back defeated. I still do not understand the reason people's rights are eroded in terms of the New Zealand example and why their rights are enhanced by the removal of the statement which requires them to say the request was made under the Act. I do not understand the logic of the Minister of State's argument and I would like her to clarify it further.
We want the Bill to be as pro-requester and user friendly as possible. We looked carefully at the experience in other countries and found that not specifying it turned out to be anti-requester. It is pro-requester to say that it is under the Bill because then there are very specific time limits within which you must get answers. There is a record in the system that it is a freedom of information request and there is an appeal system in place to deal with it. That tends to "soften the cough" of people who are responding because if it is an ordinary, straightforward request for information, that does not kick in the rights of the citizen under this Bill. The citizen may be disadvantaged by that request. That had been the practical experience and is the reason I wanted this to be made as simple as possible.
Senator Lee asked whether accepting his amendment technically meant that the advice had to include advising people that they should specify that the request was made under the Bill. It does not do so explicitly but the Minister for Finance has to draw up guidelines in terms of implementing the nuts and bolts of it and my staff are involved in the groups that are dealing with this operation. That is something we would advise and put in place on an administrative basis.
We touched on this issue on a previous occasion. I was smiling when the Minister spoke about being user-friendly. My own humble efforts at a Freedom of Information Bill which were supported by most sides of the House, including the Minister, ran to three pages of text whereas this one runs to 63 pages. User-friendly is not a term that I would readily apply to this Bill. I fully understand there are very complex issues dealt with here. It seems to me, however, that we are dealing with complex issues in an inordinately complex way.
I believe that if we are giving people the right to information, the law has to provide that every civil servant will read into every request that the law provides people with the right to information. The Minister stated that it is necessary to contain section 7(1)(a) because it is a good thing to specify in your request that this is a serious request and that it is covered under that section. The reality is that the majority of Irish citizens will never have heard of section 7(1)(a) of the Freedom of Information Bill, 1996 and they will never be aware of that. Unless we create a culture where there is a proactive, pro-information, pro-client attitude among all civil servants, the problem is that 7(1)(a) might provide a bolt-hole for civil servants who want to be less than pro-client and less than pro-active as regards the freedom of information.
The problem we are attacking in this Bill arises because of the attitude of a very small percentage of public servants. My experience is that most public servants make a big effect to be helpful and informative. I have had the experience of public servants taking risks in going out of their way to draw obscurities to the attention of citizens whom they wish to help. There is, however, a minority of civil and public servants in State and local authorities who will do everything in their power to maintain a veil of secrecy over the activities which they perform in our name and under laws that we set down.
While I understand at an intellectual level the point the Minister is making, I believe that section 7(1)(a) will be a bolt-hole for public servants. The fact that there are 63 pages in the Bill and that there will be journals produced outlining procedures to be adopted, is testament to the extent of the problem of secrecy. Secrecy is deeply ingrained in our administrative culture. Senator Howard and I were speaking earlier today about public servants whom we know, who are good people but who have an extraordinary attitude to secrecy. They have an extraordinary unwillingness to share with the common people, those who pay their wages, the secrets that they possess. They exist in a kind of confraternity and certainly do not wish to share their secrets with someone as humble as an elected representative. I fear that if a person does not cite the Act because they are unaware of its existence, they will be denied the information they require. We must consider some formulation other than section 7(1)(a). I put down an amendment in this regard but I will not press it to a vote because we are attempting to achieve progress through consensus.
Could the Minister of State work on the concept of inference before Report Stage? In other words, where it is clear that a person requesting information has a right to do so under the Act, a civil servant cannot depend on section 7(1)(a) to deny that right. I am not expressing my argument very well but I believe the Minister of State understands what I am trying to achieve. I know she shares my view that this legislation should deliver the final hammer blow to the citadel of secrecy. Let us banish the attitude of mind which created that citadel.
Our deliberations remind me of the debate on the Ombudsman Act when, from some people's reactions, one would have believed that the sky was about to fall and that civil servants would be dragged into the centre of Merrion Square and burned at the stake. Nothing of that sort happened and there is no reason for anyone who carries out their work in a satisfactory fashion to fear the enactment of the Bill. However, Members have reason to fear that public servants who do not wish to be forthcoming with information will abuse section 7(1)(a). I apologise for harping on this issue but I believe it is central and must be addressed.
I believe Members are on the same wavelength in respect of this issue. It is merely a question of finding the best means to achieve what is desired. I do not disagree with earlier contributions on this matter. Perhaps my comments will be redundant when the Minister of State replies. However, on amendment No. 17, in which Senator Dardis suggests the removal of section 7(1)(a), she stated that, in light of the experience in New Zealand, it is necessary to retain paragraph (a). I would not dismiss her statement lightly because she made a valid argument.
I am not in complete agreement with Senator Roche but I am anxious to hear the Minister of State's response. The Senator stated that section 7(1)(a) places a severe burden on ordinary citizens seeking information. He indicated that they must make very clear, in their request, that they are seeking information under section 7(1)(a) of what will be the Freedom of Information Act. I do not believe it is necessary to be that detailed but I would like to hear the Minister of State's comments. It should be sufficient that people indicate they are seeking information under the Act. The Minister of State stressed that it is necessary to retain paragraph (a) because, in light of the experience in New Zealand, the right of appeal by a citizen to a refusal by a public official to provide information will not be jeopardised. In that context, I would prefer if the right of appeal by the citizen were not put at risk by the removal of paragraph (a), particularly if the Minister of State remains of the view that, on the basis of the examples to which she referred, it is necessary to ensure that right is protected.
Would it amount to a revolution in administrative law and if so, is it a revolution one should strive to pursue? If we approached the matter from the opposite end and included a stipulation that it would be assumed that any request made is met under this Act, unless the applicant specifies to the contrary, I am sure assistance would quickly come from an official who wanted to be covered under other legislation.
Senator Lee has made the precise point I wished to make—that we should turn this on its head. I accept the logic of what she says as regards appeals and that unless there is a specific reference to the Bill, the appeals system may not operate. The onus should be on the body which has the information to reply to the written request saying the information will not be provided under whatever section of the Bill, and that the person has time to appeal.
Section 7 (6) states a form of request may be determined for the purposes of subsection (1) and, if such a form stands determined, a request under that subsection shall be in that form or a form to the like effect. That is reasonable and will put the onus back on the officials. The other possible way of dealing with it is that it should be specified that the form which is produced shall contain a reference to the Bill. Section 7(2) gives too much strength to the provider of the information to resist the request. In practice people will not be aware of the provisions of the Bill.
As regards the culture of secrecy, I do not want to reopen the debate we had last week but the Minister knows what it is like serving on a local authority. On Monday last, Kildare County Council considered the draft development plan for County Kildare. In advance of consideration of that plan, we were asked to submit in writing questions and amendments to it. There was a reference in the plan to 2,000 tonnes of toxic waste being produced in the county. I asked the council officials in writing, in advance, where and by whom this toxic waste was generated and how it would be disposed of. At the council meeting, I received a verbal answer that this matter was contained in the toxic waste management plan for the county and the information I required was there. During the meeting, that plan was distributed but there was not one reference to a specific company. It said "a company" produces cadmium or "a company" produces lead, but the people were not specified.
If it was possible a few weeks in advance of that for Kildare County Council to specify the companies which had applied for air pollution emission licences, and to have those listed, it was also possible for them to produce that list. That is part of the culture we are trying to destroy and is a matter which should, of necessity, be on public record. If it was Britain and Sellafield, we would not tolerate it.
We have highlighted this central issue. In this Bill, we either create a right to information or a right to ask for information. There is a significant difference because one has to know what questions to ask if it is the second kind of Bill and most citizens do not. In section (1) (a) of the Freedom of Information Bill, 1995, I tried to create a right of information for citizens which would put an onerous responsibility on every public servant, without equivocation, to provide information. This would have torn asunder the citadel of secrecy.
This Bill enacts a right to ask for information. There is a subtle but important difference. As Senator Dardis's case highlighted, one has to be punctilious in specifying that one is using this Bill in every request for information. I understand that in debates and exchanges in county councils, people will not be so appraised and, as we have found in the past, half-truths and untruths will be passed off as public information. This is very serious. We have to ensure there are no bolt holes in this Bill for scoundrels who wish to withhold information from the people who elect us and pay them. That is the reality and it is a core issue.
I do not want to press my amendment because, as Senator Lee and Senator Dardis said, if there is a reasonable inference that people want to have information under this Bill, it should be supplied without them having to specify it. It would be possible for the Minister to add to this clause on Report Stage. That would more than meet my requirements. I want to be supportive of the Minister.
I have listened carefully to the debate. We all want to ensure this Bill works for requesters. Senator Lee made two suggestions and Senator Dardis and Senator Roche repeated one of those about the inference that any request was a freedom of information request unless otherwise proved. We will look at those suggestions and come back with something on Report Stage, which I hope will meet their concerns. I want to ensure it is practical and works in administration so people can access their time limits, etc. Section 6 (1), which we have already agreed, confers a right to information, not just a right to ask for it.
Amendment, by leave, withdrawn.
Amendment No. 18 has already been discussed with amendment No. 17 and cannot be discussed again.
I am not discussing it, but I think the Minister indicated that she would look at it. It is a small technical point and I am happy to accept what she said.
Amendment No. 18 not moved.
Amendments Nos. 19, 23 and 24 are cognate and amendment No. 28 is related and may be discussed together.
I move amendment No. 19:
In page 13, subsection (2), lines 5 and 6, to delete, "or in such other form as may be determined" and substitute "as may be reasonably sought by the requester".
These are drafting changes meant to highlight the issue of access by the applicant and the user friendly nature of the legislation. As regards the term "as may be determined", who would do the determining? When I read the earlier section I saw it is determined by the Minister for Finance. This amendment is an attempt to add—if I was doing it again I would not use the term "substitute"—something more in the line of a reasonable request for the manner in which it should be submitted. It is intended to try to get the Minister to be alert to what is of greatest convenience and use to the applicant.
Does the Minister feel there is a reason for modifying or revising the phraseology "in such other form as may be determined" to some extent as it is an extremely dirigiste formulation? I do not want to say "to substitute for" because I will not press the amendments in terms of substitutions now I am fully aware of what the formulation means. Does the Minister think it is worthwhile using additional phraseology which would indicate that the determination is intended to be in the best interests of facilitating applications?
These particular sections deal with a situation where somebody has made a request. It is basically the form of acknowledgement they receive telling them what is happening to their request. We inserted "or in such other form as may be determined" to allow returns by E-mail or other electronic communications as they develop, such as the Internet.
It may be a trivial example, but if someone requested that an annulment of their request be written on the side of a cow it would be totally unreasonable. This is about administrative procedure. We will have another look at it on Report Stage but it is intended that this would be very simple. We are leaving in "or in such other form as may be determined". At the moment, people would normally be informed in writing but it will be open to them to send a reply by E-mail and this will make it easier to do so.
I accept that, and if this is not seen to be a major substantive issue I am certainly not pressing it. We had a discussion the last day concerning the fact that not everybody who ought to be in a position to take advantage of the Bill will be literate, some people might be among those who derive least from our administrative system, whether they be travellers or the disabied. It seems to me that "or in such other form as may be determined" should take cognisance of that as well as technicalities of the type the Minister mentioned. Such people are even less likely to be familiar with E-mail than they are with writing if they are not literate in the first place. Perhaps the Minister could keep that dimension in mind.
We will look at it to see if we can make it practical. It is all governed by section 36 where the Information Commissioner has an overseeing role to ensure that, in practice, this is implemented in a reasonable way. It is a safeguard that the citizens' rights are there. We did not want, however, to tie ourselves down to one form of communication by saying "writing" because new forms of communication may become the norm in future.
Amendment, by leave, withdrawn.
Amendments Nos. 20, 21 and 22 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 20:
In page 13, subsection (3), line 15, after "of" to insert ", or in the opinion of,".
These amendments are slightly pernickety but they try to ensure that the greatest elasticity possible is built into facilitating access to information. This operates if the head definitely notes that this information is held by another specific public body they can pass it on but if they do not know, what happens then? They may assume and say "it is highly likely that", but here it is phrased "to the knowledge of the head is or are held".
The amendment suggests inserting "or in the opinion of". That is likely to be held as the outer limit of where you begin looking around if you do not know. It is a simple matter for a head to say that they do not know where these things are. They may be right, they may not know, but from their experience they are likely to have a shrewd opinion of the first place to which you might turn. However, as the Bill stands, it is a definite formulation. That is the intention behind the amendment.
I support Senator Lee's amendments which are very reasonable. The head might not have definite knowledge as to the location of the file but he might have a good idea where it is. That is why it is desirable to insert "or in the opinion of".
I tabled my related amendment to include the words "or more" after "one of the other bodies" specified under subsection (3) because, from my reading of it — and I am prepared to stand corrected by the Minister — it appears it would be possible to limit it to one. I do not think that is the intention of the Bill. If more than one body is involved, they should all be treated in the same way and not restricted to one. It is a small procedural point. If the Minister believes otherwise then I am prepared to accept that it may not be required.
I am sympathetic to the points being raised and with what Senators are trying to do. The wording "the knowledge of" in section 7(3) is based on Australian legislation and we are not aware of any particular difficulties arising from it. We want to ensure this works in the best interests of the applicant and we will not have people saying the request is for somebody else. In that way they could fob it off and send the request around the administrative system.
The word "knowledge" is there so it is the duty of the first person to know where it should go. The requester is realistically entitled to expect that the second body to whom any request is passed on should actually deal with it, in other words, it will not do a tour of the system based on opinions but will immediately find a proper home based on knowledge. That was the thinking behind it and it seems to be working well in another jurisdiction from where the language was lifted.
The same point applies to "likely to be". If we tie this down the way in the Bill as drafted, it imposes tighter obligations on the first body to find a good home for it. If we leave it loose, the request may be sent around the system without finding a good home because one person may think it is somebody else's job and will not have the duty to find out.
I am sympathetic to Senator Lee's amendment No. 25 which requires the Minister to prepare guidelines. I propose to adopt that on Report Stage. We will come to that later. This will guarantee fairness, in other words, there will be guidelines on how to transfer requests. In addition, the commissioner will be involved in overseeing guidelines for requests. That will ensure that what we are looking for will actually happen.
In relation to Senator Dardis's amendment No. 22, we are concerned that it should not be too wide, but that it will be tied down to somebody who has responsibility for replying to the request. The provision is based on practical considerations. Very often a document or memo that is created in one Department is copied to the other 14 Departments for information or comment. The main information source is obviously those who created the document and who have responsibility for collating it.
From their experience of the public service, Senator Lee and Senator Roche will be familiar with the memorandum for Government procedure and round robins. I understand the reasons for the amendment, placing an unreasonable burden on public bodies to express and consider all other bodies who may hold copies of the record, without conferring a particular benefit on the requester. The interests of the requester, however, are more directly served by placing responsibility on the primary holding body of the information and to let them do any other picking up that is required.
There is some discretion in the section whereby the head may alternatively direct the requester to a body that is otherwise more appropriate. Sometimes two Departments may have parts of the information so the responsibility would lie with somebody to pull it all together.
We may be able to return to this on Report Stage. We will have another think about what the Senator is trying to do. In our view, it is drafted in the most pro-requester way. This matter is quite technical but Senator Lee's amendment No. 25 brings in the commissioner to oversee that these procedures work well. I do not want to insert something that ends up with requests getting lost in the system. I am sure Senators share my view.
I am very appreciative of the acceptance of amendment No. 25. However, had I read subsection (3) as the Minister is doing — that "the knowledge of" implies that it is the duty of the head to find out and then proceed — I would not have tabled the amendment. That covers exactly what I am trying to achieve, but that is not how I read it. "To the knowledge of" means to me that the person knows where the request ought to be going. If the Minister is satisfied that the phraseology can only be interpreted in the way in which she has indicated, I gladly withdraw my amendment. However, if there is any possible doubt I hope that, on Report Stage, there will be a phraseology which would make it crystal clear that it is the duty of the head to have that knowledge or to find out that knowledge if they do not have it themselves and to ensure that it proceeds to the proper terminus.
There seems to be no difference in intention between what the Minister wants to achieve and what we want to achieve. It is a question of how to devise an appropriate system to do this.
I do not wish to make a major issue of the "or more" phraseology. However, the subsection makes an earlier reference to records which, to the knowledge of the head are being "held by one or more other public bodies". The reason for the second "or more" is not to create a paper chase but for consistency where the person who is responding to the requester has knowledge of information being in the possession of more than one body.
We keep crossing backwards and forwards in this debate over the foundations of the Freedom of Information Bill and administrative procedures legislation. The type of arrangement Senator Lee mentioned was one of the most intriguing and welcome innovations in French administrative structures introduced by former President Mitterand. He introduced the extraordinary diktat that a civil servant or a public servant who received a request from the public could not simply say "this is not for me" and discard it. They now had a statutory responsibility to direct that information to an appropriate person within the administration, to inform the requester in writing where the request had gone and to ensure that the second recipient civil or public servant responded. The full name, address and telephone number of the second recipient had also to be given to the citizen. It was an extraordinary innovation.
I agree.
It changed an administrative culture at the stroke of a pen. If we had the promised administrative procedures legislation we would not be discussing this problem.
As Senator Lee outlined, we want to ensure that reasonable requests are not fobbed off in an unreasonable manner. Perhaps the Minister would look at this point again.
Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
Acting Chairman
Amendment No. 22 has already been discussed with amendment No. 20.
Will the Minister comment on this?
Acting Chairman
It was discussed. Are you moving amendment No. 22?
It was never replied to.
Amendment No. 22 not moved.
Amendments Nos. 23 and 24 not moved.
Acting Chairman
Amendment No. 25 has already been discussed with amendment No. 8.
I move amendment No. 25:
In page 13, subsection (5), line 40, to delete "may" and substitute "shall".
Amendment agreed to.
Acting Chairman
Amendments Nos. 26 and 27 are related and may be discussed together.
Government amendment No. 26:
In page 13, lines 43 to 45, to delete subsection (6).
Senator Dardis praised this section but we have put an amended subsection (1) covering the same point thus making subsection (6) a duplication.
Amendment agreed to.
Amendment No. 27 not moved.
Question proposed: "That section 7, as amended, stand part of the Bill."
The section says that the request for access to the records has to be addressed to the head of the body. Section 4 says the head can delegate functions to various people but if I write to the planning officer of a local authority seeking information under this legislation, would the request be invalidated because I did not write to the manager? I want to ensure that a request for information would not be turned down because of the way in which the request was submitted.
"The head" could be a Minister and the Minister cannot readily delegate responsibilities under the current legislation without first getting the agreement of the Oireachtas. Does this confer a general right on Ministers to delegate responsibility in a wide sense? If that is the case something is happening under the Ministers and Secretaries legislation that has never happened since 1924, namely, that the Oireachtas is giving a general right to political heads of Departments to delegate activities. There could be an extraordinary abuse of that power. A Minister, faced with the possibility of some politically difficult situation, could delegate responsibility for the difficult areas of administration without the Oireachtas discussing it. I know that sounds farfetched, but for the first time we are giving a general right to a Minister to delegate functions in a general way within their own Department. If that interpretation is correct, then it is an extraordinarily wide development and I wonder what its impact would be?
We have enough meat here without discussing the Ministers and Secretaries legislation. What we are delegating are simply functions under this Bill. If there was any Minister misbehaving under this legislation, the fact that the independent Information Commissioner can intervene is an important protection for the citizen.
In relation to Senator O'Sullivan's point, section 15 deals with how requests are made. I will have a further look at the specific point made and return to it when I have considered it in detail.
Question put and agreed to.
SECTION 8.
Amendment No. 28 not moved.
I move amendment No. 29:
In page 14, subsection (1), between lines 5 and 6, to insert the following paragraph:
"(d) if he or she decides to refuse the request, whether wholly or in part, to give notice in writing to the requester stating the grounds for such refusal and citing the section of the Act upon which the decision was based."
I spoke on Second Stage and subsequently about the complexity of the Bill and the difficulty of cross referencing its provisions, so the point dealt with in the amendment might be covered in another part of the Bill.
Section 8 (2) (d) provides that if a request is refused the reason for the refusal must be given. However, the refusal should specify the reasons under the Bill. If it is consistent to state that the requester must make the request under a provision of the Bill, it is reasonable that where the request is refused the relevant section of the Bill under which it is refused should be quoted. Section 8 (1) (a) refers to the decision on whether to grant or refuse a request and section 8 (1) (b) further states that if the request is granted a head shall "determine the form and manner in which the right of access will be exercised". There are grounds for including a similar provision in respect of a refusal whereby it should be mandatory to state the grounds for the refusal and to cite the section of the Bill on which the refusal is based.
I agree with the Senator about the importance of giving reasons. That is partly covered in the provisions of section 8 which the Senator quoted. Section 8 (2) (d) requires that the requester be given both the reason for refusal and "the findings on any material issues relevant to the decision and particularly of any matter relating to the public interest". Section 35 deals with instances when the reasons given are inadequate. I will look again at the Senator's point. I assumed that giving the reason would include quoting the section under which the request was refused, but I will check if that is the case.
I thank the Minister of State. The amendment seeks to formalise the matter. I expect any reasonable official will quote the parts of the Bill that are relevant to the refusal but it is important that it be specified in the Bill.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 30 and 31 are related and may be discussed together.
Government amendment No. 30:
In page 14, subsection (2), lines 32 to 34, to delete paragraph (e).
These are technical amendments removing the requirement to give notice of extension of time from section 8 to section 9. It is more appropriate to include time extension procedures under section 9. Two further technical amendments to this subsection will be proposed on Report Stage to align its wording with other provisions in the Bill, in other words, linking the period mentioned in section 8 (1) and including a reference to in writing or in such other form as may be determined. We are also examining proposing technical amendments to section 8 on Report Stage to permit flexibility in terms of future forms of electronic communication.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
Government amendment No. 31:
In page 16, between lines 9 and 10, to insert the following subsection:
"(2) Where a period is extended under this section, the head concerned shall cause notice in writing to be given to the requester concerned, before the expiration of the period, of the extension and the period thereof and reasons therefor.".
Amendment agreed to.
Question proposed: "That section 9, as amended, stand part of the Bill."
I wish to advise Senators that I am considering proposing technical amendments to section 9 on Report Stage.
Question put and agreed to.
SECTION 10.
Acting Chairman
Amendments Nos. 32 and 33 are related and will be discussed together.
I move amendment No. 32:
In page 16, subsection (1) (c), line 24, to delete "or the procedures".
I put down the amendment to seek clarification of what is involved. I understand why "a substantial and unreasonable interference with or disruption of the other work... of the public body..." is a serious cause for concern. However, I am not clear what is meant by "or the procedures of the public body concerned". Can the Minister of State clarify that phrase?
This is a sensible amendment and, subject to drafting advice, I propose to take it on board on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 33:
In page 16, subsection (1) (c), line 25, after "concerned" to insert "and is not in the public interest".
Acting Chairman
I indicated this amendment would be discussed with amendment No. 32. The Senator did not indicate that he wished to speak.
My normal courtesy, reticence and good manners prevented me from standing. Freedom of information does not apply in the House if one is given such directions. The suggestion that the words "and is not in the public interest" be added was intended to have the same effect as the previous amendment. This subsection is complex and its impact could be wide ranging and run counter to the concept of openness. We do not know what procedures or arrangements exist in the bodies concerned. The interest which must always inform the application of the Bill is the public interest and an interest which would contract the application of the Bill would be contrary to its intention.
Perhaps the Minister of State would examine the content of this amendment. She has accepted the intent of Senator Lee's amendment and has indicated that she will propose a technical amendment on Report Stage. I will not press my amendment because sufficient ground has been gained with amendment No. 32.
I propose to accept amendments Nos. 32 and 34. They will strengthen the interests of the public in this regard. We need to be careful with regard to Senator Roche's proposal. It could have unintended side effects.
The provision in the Bill is based on a system that has worked well in other jurisdications for over a decade. One can appeal to the commissioner if one is refused a voluminous request and he or she will decide if the public interest is served by a person receiving 18 or so truck loads of documents. However, it is important to provide protection against excessive voluminous requests. A number of safeguards are already provided for the public interest and a refusal can be appealed to the Information Commissioner. Public bodies are obliged under section 10 (2) to assist or offer to assist a request before claiming it is voluminous and the level of assistance which is offered in terms of narrowing the request can be investigated by the commissioner when considering an appeal. The provision is working well in other jurisdictions so I advise caution.
Amendment, by leave, withdrawn.
I move amendment No. 34:
In page 16, subsection (2), line 32, after "to", to insert "either paragraph (b) or".
We will accept amendment No. 34 on Report Stage subject to drafting advice.
Amendment, by leave, withdrawn.
Amendment No. 35 not moved.
Section 10 agreed to.
SECTION 11.
I move amendment No. 36:
In page 17, subsection (2), line 28, to delete "4 weeks" and substitute "8 weeks".
The intention of this amendment is to give more time to the requester of the information. In other words, information is being made available and, under the Bill as drafted, the record is to be kept available for a period of four weeks. The public bodies have been given a long time in which to respond and they have far more resources than the private individual. It would be liberal to give the private individual a good degree of flexibility. I understand that if the period is too long it could create working difficulties and there could be a backlog of documents to be looked at. However, two weeks is too restrictive for the ordinary citizen and four weeks would be more appropriate. I am prepared to say it should be eight rather than four weeks but I will accept a different figure.
Section 11 permits deferral of access to a narrow range of records in specified circumstances. The time limits are aligned with the availability of records and the standard provisions in section 8(3). This section states that public bodies should hold records for four weeks if an individual wishes to inspect them on the premises of that body and in this narrow range there could be a deferral. We are using the same time limits as in section 8(3) because it would not make sense to have different time limits in the two circumstances. The papers we are talking about tend to be current working records and it would be unreasonable for the Minister to expect a public body to set them aside for eight weeks and not have them available for ongoing work. Four weeks is more reasonable.
I am still a little unhappy. I accept the point about consistency but that could be dealt with by way of Government amendment to section 8(3) which would amend it to eight weeks. There is a difficulty and four weeks is too restrictive for the ordinary citizen. It should be longer but I am prepared to go some way to meet the Minister.
Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12.
I move amendment No. 37:
In page 17, subsection (1) (b), line 45, to delete "statement" and substitute "transcript".
I have already signalled that we will be returning to this amendment with a view to adopting it subject to drafting advice.
Amendment put and declared lost.
Section 12 agreed to.
Sections 13 and 14 agreed to.
SECTION 15.
Government amendment No. 38:
In page 22, subsection (5), line 42, after "Act", to insert" and, without prejudice to the generality of paragraph (b) of section 3 (1), regulations under that paragraph may make provision for the management and maintenance of records held by public bodies".
Amendment agreed to.
Acting Chairman
Amendments Nos. 39 and 40 are related and may be taken together.
I move amendment No. 39:
In page 22, after line 50, to insert the following new subsection:
"(7) A book referred to in subsection (1), (2) or (4) shall, on publication, be circulated to each elected member of the local authority or health board by which it was prepared'.".
I welcome the provisions in the Bill whereby a reference book will be prepared and that information will be made available. However, it is important that this would be circulated to members of local authorities and health boards. By virtue of the fact that they are in the same position as the ordinary citizen and would not be overly familiar with the terms of the Bill, it would be useful for them to have the reference book. My local authority has agreed to this in respect of planning guidelines so they would be available to planners, developers and members of the council. Information should be given to elected local authority members on how to access information and how to advise members of the public to do the same.
This is an eminently good idea. It is an indication of the gulf that exists between local authority members and management that we should have to contemplate this amendment. However, it is prudent that we should do so as we may have some nonsensical interpretation by a manager who wants to be less than helpful to his or her local authority.
In general the Bill does not distinguish between requesters but states that we should not ask who people are or why they are looking for information. I am prepared to accept the amendments given the strong case made about the difficulties experienced by local authority members in accessing information. However, it would be good practice for local authorities to give this information to their elected members as well as publishing it.
I thank the Minister for accepting these amendments.
Amendment agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."
There is some permissive phraseology as far as heads or Ministers are concerned. Line 49 on page 22 states that the Minister "shall cause notice of those places to be published in such manner as he or she considers adequate for the purposes of this section." Potentially, there are several Ministers or heads involved. Is it envisaged that there would be some degree of consistency or will it be left to the discretion of individuals? I presume the intention is to have it as generous as possible but is there any way of ensuring that such will be the case if a Minister or head decides otherwise?
Elsewhere in the Bill it is left to the discretion of the individual and one would assume a certain consistency would be preferable.
There is a problem in that there is no guarantee of consistency in the attitudes of different Departments and agencies because of the degree of discretion allowed. This is understandable. I was planning to table an amendment but I could not see a way to amend it to achieve the point made by Senator Lee that there must be consistency in the interpretation. If a query went to appeal before the commissioner, that is where the ultimate decision would be made. However, it strikes me that it would be good at the same time to try and ensure a consistency. Would it be possible to signal an amendment on this section on Report Stage? I have examined it and cannot think of an amendment which would address the point Senator Lee made but I am prepared to return to chiselling at the quarry face. The Minister is sympathetic and her attitude has been the same as ours throughout this, but there is a little problem here.
Under section 15(5), we propose to strengthen on Report Stage the management function and the role of the Minister for Finance in ensuring that everything works smoothly and that records are properly kept and managed, etc. Senator Lee may be aware that the Archives Act does not apply to local authorities.
Under section 15(6), the Minister is the Minister for Finance and the intention is that there would be general uniform guidelines. The places we would expect these manuals and copies of guidelines to be available would obviously be the offices of the public body concerned. The intention also is that the Department of Finance would ensure that they would be available, for example, in local public libraries and that there would be a pattern to the places where this information would be available. The Department of Finance would also prepare a summary of the guides which would be available in all public libraries and public offices throughout the country. That is the intention of the subsection.
One matter which might be considered between now and Report Stage is incorporating into the section a small one line proposition that the commissioner would have the right to review the guidelines produced by individual bodies with a view to enforcing good common practice. That is what we have in mind but it is difficult to word. I am sure the Minister's officials, who have shown extraordinary dexterity with the English language in all other matters, would have no difficulties wording such a proposition.
I may have inadvertently misled the House in saying there might be an amendment to section 15(5) on Report Stage. I was in fact referring to amendment 38 which was already agreed. It was dealt with the last day. I misled Senators by saying that I would return to the subsection on Report Stage as I have already dealt with the point. We will consider whether there is any necessity to review matters for Report Stage arising out of the points made. We are trying to move this Bill in the same direction, in the direction of its working well.
Question put and agreed to.
SECTION 16.
I move amendment No. 40:
In page 24, between lines 15 and 16, to insert the following new subsection:
"(7) A publication referred to in subsection (1) or (2) shall, on publication, be circulated to each elected member of the local authority or health board by which it was prepared."
Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 and 18 agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
I have problems with the early parts of section 19. I understand the constitutional imperative and that Cabinet secrecy is concerned here, the relaxation of which we look forward to. I have difficulty specifically with section 19(1)(c), which deals with the grounds for granting a request. It says "contains information (including advice) for a member of the Government, the Attorney General, Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.". I understand we are dealing with the constitutional aspect but I have some questions about the inclusion of the Minister of State. Could the Minister explain why it is required that a Minister of State be included with the other categories of people?
Minister of State, Deputy Rabbitte.
It bothers me that if there were something extremely sensitive which the Government did not want released, the easy way out would be to raise it at Cabinet thereby circumventing the intention of the Bill.
It should be understood that this section greatly relaxes access to Government papers. At the press conference where I announced the Bill, there was a stunned silence when I explained exactly what this section meant. It provides limited and time bound protection for matters prepared for Government, related briefing material and Government records. This material can become available and the protection will be no longer applicable when five or more years elapse from the relevant decision being made or, in respect of factual information, where the associated decision has been published, unless another exemption protects the information. Basically, after a Government decision has been made and published, the factual material relating to that decision is released. Secondly, within five years, the whole memorandum is released, unless there is some degree of protection because it concerns security or the personal affairs of an individual. In other words, the material is intrinsically covered by another exemption.
The exemption under section 19 only applies to material specifically prepared for Government. It would not be open to someone to run something past the Government thereby acquiring protection. It is simply not available. It only applies to material specifically prepared for Government. Such material would ordinarily consist of a Government memorandum, for example. Government decisions are protected up to the point where the decision is communicated.
As regards the point made about the Minister of State, in all Administrations the Government Chief Whip is a Minister of State, attends Government meetings and would in the normal course receive such Government papers.
Therefore, why not specify the Chief Whip rather than a Minister of State?
This is a valid point because, as I understand it, the Minister of State who is Chief Whip is not a member of the Government. He or she is there in a purely advisory role and has no constitutional status. The Constitution does not recognise political parties nor does it recognise Deputy Rabbitte.
That is the point about having the high chair at the Cabinet table.
It seems to me that this draft has had to be introduced because of the peculiarity of the high chair at the Cabinet table. This is a serious point because Ministers of State are not Ministers of the Government. The Chief Whip is not a member of the Government and has no constitutional standing as such. There is no reason whatsoever that papers produced in the office of the Minister of State should be accorded this exalted status way and above the status of such an office, with all due respect to the Minister of State present.
Tell us, Minister. Is this the Deputy Rabbitte subsection?
First, let me congratulate the Minister on this important section. It makes a major contribution to opening up possibilities. In fact, when I read this I actually asked myself "Has she really got this through?" and I decided that I would not ask her in case she must say "No".
For a contemporary historian, section 19(4)(a) is a very powerful argument in favour of single party Government so that there cannot be vetoes by leaders of small parties.
There are no vetoes. It is consultation.
The point I want to make is that Senator Dardis and Senator Roche have a strong point: that instead of saying a Minister of State, one should be as specific as possible. Even allowing for the Deputy Rabbitte situation, or if something like that happens with future Governments or if something cognate happens with future Governments, let a specific amendment to this Act be introduced for the duration of that particular Government rather than have an encompassing clause as general as this. One would not object to specific amendments in specific situations for specific cases rather than trying to anticipate the totality of possibilities in advance.
The definition of a meeting of the Government includes a meeting of a Government subcommittee, which would involve one or more Ministers of State. From time to time, for various purposes and under all Administrations, those kinds of subcommittees — such as the Cabinet subcommittee on drugs, for example — are set up. It is for that reason that we have the generic term "Ministers of State" there and it is not a back door way for people to receive Government papers because they happen to have been seen by a particular Minister of State. They do not come out into the public domain; they are kept in the normal way and come out in the normal, regular way as provided for in this section — in other words, factual information as soon as a decision is published and a full memorandum within five years.
Question put and agreed to.
SECTION 20.
I move amendment No. 41:
In page 28, lines 12 to 17, to delete paragraph (a).
This amendment has to do, again, with reasons for refusal to grant a request. Section 20(1)(a) states:
if the record concerned contains matters relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and
The reason I moved the deletion of the paragraph was that I found it extremely difficult to devise a form of words which would try and get across what I wanted to achieve. To return to the example of a county council, whereby advice is given to the members of the council, I do not see why such advice should not be in the public domain. I can understand the circumstances where there is legal advice in respect of a court case or some such matter and there might be some grounds in such a case for not releasing the advice until the court case was resolved.
This paragraph imposes undue restrictions. It is the loophole to which I referred last week, the "yes, but syndrome". Yes, we are in favour of freedom of information, but there are all these circumstances in which the information cannot be given and this paragraph imposes undue restriction on the freedom of information. I am prepared to accept that the paragraph should be amended but I moved to have it deleted because it is difficult to come up with a wording which will meet the objective I have in mind.
I support the thrust of Senator Dardis's amendment partly because I see words like "relating to the deliberative processes of the public body". Processes can encompass almost anything and that raises questions in my mind about what could be hidden behind "processes".
Second, section 20(1)(b) states:
the granting of the request would, in the opinion of the head, be contrary to the public interest.
Presumably, "in the opinion" means at the head's absolute discretion subject to an appeal to the commissioner. Does section 20(1)(b) not cover section 20(1)(a) in a sense? If the head wants to say that revealing what is included under section 20(1)(a) would be contrary to the public interest, let he or she make that case. If it cannot be shown to be contrary to the public interest, it does not need to be there in the first place so it seems to me to be undesirable and, if not, redundant.
I agree. It is both undesirable and redundant and it should be removed. To illustrate the "deliberative processes", the deliberative process of Wicklow County Council recently led county officials to giving certain advice to councillors and the Glendine Wood, an area which would be well known to Senator Dardis, was rezoned. The hill of that national heritage site will now be completely obliterated. The moat and the last outpost of the Hiberno-Viking Kings of Dublin will be destroyed in its entirety. The county council was told at one stage that the Office of Public Works had produced work which stated there was nothing of archaeological value there. It turned out it had produced work which stated that there was nothing of archaeological value in one of the 147 acres which have been destroyed at the 175 acre forest. The "deliberative process" there involved the interpretation which some of the county council officials put on the document they received from the Office of Public Works which now has been greeted with derision.
It strikes me that sometimes the very essence of the questions which one would seek to ask about public bodies is the information and advice which informed the deliberative process; and if that particular section remains as it is, it could be used as a means to prevent people from informing themselves after the event of occasions where public representatives were misled, particularly in local authorities.
I suggest that the protection which the Minister of State wants to achieve in section 20(1)(b) and section 20(1)(a) is better achieved by section 20(1)(b) simply by reference to the public interest, because the commissioner could determine at the end of the day. To extend that protection to matters relating to the deliberative process would be absolutely disastrous. The Minister would be aware of this from experience in local authorities.
I suggest that the Minister re-examine this section. I am putting down a marker that, having looked at it and thought about it, I will propose that it be removed or dramatically changed on Report Stage.
It is a very complicated section. Subsection (2) states that subsection (1) does not apply in certain situations relating to section 16 and there are a list of such situations. Subsection (3) states that section 20(1)(b) does not apply to certain other aspects of the matter, so it is quite complicated and I would appreciate some clarification from the Minister.
If one reads section 20(1) in isolation, it appears to be something with which we would all disagree; but when one reads the subsequent subsections, it does not appear to be——
It is modified by the subsequent subsections.
——as controlled as it first appears. We would all like some clarification from the Minister. If possible, she could clarify it in relation to the two subsequent subsections.
Senator O'Sullivan's point is a good one because subsection (2) almost makes subsection (1) redundant. It would seem to make far better sense to consolidate section 20(1), but that is a drafting matter.
Senator Lee's point, about where the head believes the request would be contrary to the public interest, is correct also. This would reinforce the argument that section 20(1)(a) is not necessary. Why should it be included?
The purpose of this section is to protect certain narrow elements of the policy making process until a decision has been taken. The request can only be refused under the section where it would be contrary to the public interest to reveal the information in advance. As Senator O'Sullivan pointed out, section 20(2) lists the protection offered to a range of information, including matter used, factual, including statistical information, reasons for making a decision, reports of investigations into efficiency and so on and scientific and expert reports. The protection offered by that subsection to information is extremely narrow. It is the only section where one can invoke the protection where it would damage the public interest if one gave out the information.
A severe hurdle must be overcome by a head of a public body who decides to withhold information under this section. If we move along the lines suggested by Senator Dardis, it would give no guidance to a head in terms of discretion, which section 20(1) does. It seeks to narrow this down. If we delete section 20(1) it would leave discretion to a head to refuse a request where a grant would be contrary to the public interest without reference to the type of material involved. We felt it would create undue ambiguity about what might qualify for protection.
This provision was carefully constructed and is modelled on similar provisions in Australia, Canada and the US. I am worried that if we adopt Senator Dardis's amendment, it would disable the provision and both the public bodies concerned and the information commissioner would have no guidance as to what this was about. The exceptions to the exemption in section 20(2) are sufficiently broad. Material may be protection in only a narrow range of circumstances.
The purpose of the section is to ensure public bodies can get on with making decisions. It also deals with instances where premature disclosure half way through the policy making process would damage the public interest. There is a severe test in that a head of a public body would have to satisfy and give reasons to the information commissioner that the premature release of the information would damage the public interest. We are not looking at a major loophole; this is a narrow and tightly drafted section. Other jurisdictions which have freedom of information have found that they need limited protection for the policy making process. This section is modelled on that and it exempts as little as is practically possible.
I am still not convinced by the Minister of State's argument. She spoke about the advice one might give to a head. I think it was Wellington who said publish and be damned— Senator Lee can correct me if I am wrong as I bow to his knowledge on the matter. That is the type of perspective I have on this. What is wrong with all these restrictions? It is extremely difficult to read this section and then to say precisely what is in mind. Even granting a request that is contrary to the public interest is circumscribed by section 20(3) and is extremely complicated. My intention—I suspect it is that of the Minister of State as well—is to ensure that as much of this material comes into the public domain as possible. If, as Senator Roche said, it is part of the deliberative process of the public body, I do not understand why any of this information should be withheld.
I labour under the disadvantage of not being a member of the bodies likely to be involved in this decision making. Like Senator Dardis, I am a little uneasy about this. Section 21(2) states: "Subsection (1) shall not apply in relation to a case in which the opinion of the head concerned, the public interest would, on balance, be better served...". That brings us back to the point about consistency in that the judgment of the heads concerned could vary from one to another and this might be appealed to the Information Commissioner.
A huge problem with the Ombudsman and the Information Commissioner is the resources they have to conduct their affairs effectively. The more appeals that can be made to them, the more clogged up their offices will become trying to decide on matters unless they are given more resources. The role of the Information Commissioner is crucial but the more appeals that are made, the less effectively the Bill will work in normal circumstances because it will mean that one side or the other is dissatisfied with what is happening. I hope a torrent of appeals will not be made to the Information Commissioner from both sides.
Having said that, the Minister of State mentioned the danger of premature disclosure in terms of the deliberative process. I agree that if something is confidential while a decision is being made, it would not be open to anybody trying to discover something at that time. There should be some type of designation about when information could become available in those circumstances.
The Minister of State spoke about certain narrow circumstances. Looking at the phraseology of section 20(1)(a), "processes" is a very elastic concept. The paragraph states "(including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body...)". That blocks fairly comprehensively whatever it is setting out to block.
It is subject to section 20(1)(b); it must be contrary to the public interest which is a severe test.
I take that point. If section 20 (1)(b) is included, why is section 20(1)(a) required? If it is contrary to the public interest and that the head will make the decision, it can be appealed. If it is not contrary to the public interest, he or she should not be making that decision. I do not see the need for section 20(1)(a) if section 20(1)(b) is included.
If we delete section 20(1)(a) — I believe Senator Dardis said he was not particularly in favour of deleting it but he could not think how it could be amended—the section would read that a head may refuse to grant a request where the granting of the request would, in the opinion of the head, be contrary to the public interest. It does not say what the protection is about. The purpose of the section is to allow a limited degree of protection to the policy making process where it would be contrary to the public interest to have premature disclosure until decisions were made. Unless we specify that in section 20(1)(a) it would become a free flowing public interest matter about which we and the Information Commissioner would know nothing. This ties down what this is about. It is a limited and time bound protection for the policy making process.
In the normal course, once a decision has been taken and promulgated, it would not be contrary to the public interest for the material and negotiations which proceeded to come out. There may be occasions—and this is dealt with in another section—in terms of bargaining stances where information coming out after the event may be inappropriate. This is about instances where premature disclosure would be contrary to the public interest and it is literally limited to that. We do not see the protection in this section applying to factual information or expert reports. That information comes into the public domain whether a decision has been taken or the policy process has been completed. There is a great deal of openness here. We are tying down and specifying in a narrow way to what the exemption refers.
We are talking about preliminary drafts and documents that inform a debate which has not been completed or which is part of a negotiation process. I tried to achieve that, not very successfully, in section 5 (a) of my own Bill because in the Norwegian legislation, as one of the Minister's officials pointed out, they took the view, and it is a logical one, that a preliminary draft which is prepared to inform a debate and which is part of a negotiation process clearly could not be in the public domain until such time as the decision is made. At that stage, it would be part of an historic record and it would be good for that information to come into the public domain.
That is what the Minister is trying to get at and I do not think anyone would deny that, in practical terms, it must be achieved. However, it could be achieved in a more simple and understandable way than what is proposed. Will the Minister look at something along the lines of section 5 (a) of my Bill? I intend tabling a Report Stage amendment on it.
Having listened to what Senator Roche has said, I would be happy to look at whether we can simplify or clarify the amendment on Report Stage. I will see if we can do that, in the light of the discussion we have had.
I wanted to make the same point as Senator Roche and also to thank the Minister. Section 20 could be looked at either on Report Stage or between the time the Bill goes from this House to the Dáil. I believe the Bill is extremely cumbersome and will provide people who do not want to divulge information with a reason for not doing so.
I accept the force of the Minister's reasoning but she has used a phrase "where premature disclosure would be contrary to the public interest" as the main, if not the sole area, to which this applies. That sounds very reasonable. Why not insert a phrase like that in order to make it crystal clear?
It is in subsection (3).
If it is covered that is fine but, read on its own, section 21 (a) does not necessarily lead to that conclusion and I would like to see it tied into it quite specifically. If it were, it would allay the unease expressed.
I welcome the Minister's assurance that she will look at this and see what can be done. I am very sympathetic to a number of the points made on the other side of the House. This Bill was drafted before any discussion took place here. There are certain trends which have emerged throughout the discussion here and which the Minister has very generously taken on board on a number of occasions.
A number of Members have cited the difficulties they encountered in accessing of information in local authorities and other bodies. With the benefit of that discussion, the Minister has offered, on a number of occasions, to examine certain aspects of the Bill. The attitudes that have been expressed here and the difficulties that have been identified also concern section 20 and I am confident it will be amended on Report Stage.
Amendment, by leave, withdrawn.
Section 20 agreed to.
Section 21 agreed to.
SECTION 22.
Government amendment No. 42:
In page 29, subsection (1) (b), line 25, to delete "production in a court" and substitute "disclosure".
This amendment clarifies the wording of the exemption relating to matters which would constitute a contempt of court. Something could be disclosed in a court without actually being physically produced, so it is to cover both situations.
Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 and 24 agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
I intend to bring forward two technical Report Stage amendments to improve transparency in relation to the issue of certificates.
Question put and agreed to.
Section 26 agreed to.
SECTION 27.
Question proposed: "That section 27 stand part of the Bill."
I am not happy with the discretion the section confers on the head of a public body to release confidential business information. We are having another look at the wording on that and we will come back to it on Report Stage.
Question put and agreed to.
SECTION 28.
Government amendment No. 43:
In page 38, subsection (5), line 15, to delete "Notwithstanding subsection (1),".
This is a technical Government amendment tidying up the wording of section 28(5).
Amendment agreed to.
Question proposed: "That section 28, as amended, stand part of the Bill."
I have read section 28 several times and I feel a great sense of unease about it. My unease arises because this entire section seems to be unnecessarily complex. I would like the Minister to assure me about the level of power and authority that seems to be granted to the head. I see the point that the Minister is making in this section of the Bill. It is that personal information which is in the possession of the public body must be retained and guarded in order to protect the rights of an individual. However, this section overdoes it. I would have felt, particularly with the passage of time as it includes information relating to someone who is dead, that it would be in the general interest that information would be made more freely available. I know this is difficult. I recognise that the aim is to protect a living person against any personal information which has come into the possession of a public body being made freely available to people who have a prurient interest in their lives. I can see that, with the passage of time, it would sometimes be in the greater public interest for such information to be made available.
I am not sure how I could word an amendment on this. I had intended to contact the Minister's Department on this matter, but if the Minister could assure me that this would not mean that historical records would be locked up in the Department forever, I would be quite happy. If not, I will try to word an amendment for Report Stage.
This section is to protect the personal privacy of individuals and that unstated constitutional right to personal privacy. It is important to ensure that personal details which individuals supply or which are available for legitimate purposes in a public Department are not available to all sorts of people. It is proposed that the Minister for Finance will make regulations covering access to information for next of kin or parents in respect of their children because such issues are sufficiently sensitive that it would not be appropriate to put it into primary legislation.
However, one of the cases made very strongly to us when we were drafting this legislation is that in the normal course of events, if my husband was dead, I would get his medical records but there can be situations where, for example, in the case of somebody who is suffering from AIDS who is dying, a person wants an absolute assurance that the cause of death will not be conveyed to their parents. They would die happy and in comfort knowing that the information will remain private. It is in order to allow for that kind of detail and sensitivity that this matter will be dealt with by means of regulation. Equally, with regard to the example of a minor child being entitled to their records while their parents cannot see them versus that of a parent being allowed to see a child's school records, at what point is a parent entitled to see the medical records if their child is using contraception, etc? These are difficult issues which we propose to address by way of regulations rather than by specifying in the primary legislation.
I reconsidered the wording and I am not completely satisfied about circumstances where the public interest can override the right to personal privacy. In that context, I propose to substitute "may" for "shall" because it is important that we respect people's right to privacy.
With regard to Senator Roche's point, the Archives Act allows access to information following a period of 30 years. This would permit access, for historical purposes, to the records of deceased persons. I received correspondence from distressed relatives regarding articles written about deceased persons. The Law Reform Commission made a recommendation in its report on defamation that a defamation of the dead should apply in cases of recent death because of the distress that could be caused to families. Members are aware of the Hilliard case and the distress caused by an article published in The Phoenix, which the owners of the magazine later admitted was utterly untrue. The Law Reform Commission's recommendation emerged as a result of that case and is being carefully examined by the Department of Equality and Law Reform.
In terms of historical access, the Archives Act should prove adequate. However, people are entitled to know, within reason, that their secrets will not be revealed immediately after their death. For this reason, we propose to deal with the sensitivities surrounding access to information in respect of deceased persons by means of regulations.
This is a useful discussion because, ardent advocate though I am of freedom of information, I believe in the right to privacy. Legislation must ensure that, as far as possible, the right to privacy is protected where the balance is in favour of that right, contrary to any other considerations. I agree with the Minister of State about the way records can be misused, including those under archive, despite the fact that, as a historian, I am anxious to have access to as much information as possible. I am aware of cases where unsubstantiated charges and accusations made against persons were reproduced by people using the archives, as if they were valid, without any attempt to state the opposing argument or note that archive material had been refuted or was not substantiated. That can happen not only in relation to the dead but also in respect of those who may still be alive and who may not wish to become involved in reopening matters in respect of which they were totally innocent. There is scope for abuse of information by irresponsible people and those who might be so abused are entitled to have their rights protected by the State.
With regard to the examples the Minister of State quoted regarding the area of health, she is justified in reconsidering the relevant provision to ensure it is drafted in a satisfactory manner. It may seem slightly pedantic to ask but the term "to avoid a serious and imminent danger to the life or health of an individual" is used in section 28(2)(e). It is left to the opinion of the head to decide what is meant by "serious and imminent danger", presumably medical advice, etc., is taken in that regard. By definition, "imminent danger to life" is serious. What scope exists in respect of the opinions of individual heads — this can vary from case to case — regarding the interpretation of what constitutes "serious and imminent danger"? Imminent is a somewhat elastic concept. I do not want to press the issue but I would be reassured if clarification were offered.
The Minister of State's response was very enlightening. I believe regulations are the appropriate way to deal with this complex issue. It was interesting that the Minister of State referred to the Hilliard case. I am familiar with that case because I knew the man who died and his wife was a work colleague of mine. That case is a good example of how the reputation of deceased persons can be seriously maligned by people who are careless about the way they use information received after the event. The Minister of State reassured me and I will be interested to see what she will do on Report Stage. On balance, however, she answered the questions put to her.
Question put and agreed to.
SECTION 29.
Government amendment No. 44:
In page 38, subsection (1), lines 41 and 42, to delete "section 26(5), 27(3) or 28(5) applies" and substitute "section 26(5) or 27(3) applies or to which section 28(5) applies".
This is a technical amendment to tidy the wording of section 29(1)(2) and align it more accurately with the wording of sections 26(5), 27(3) and 28(5).
Amendment agreed to.
Section 29, as amended, agreed to.
Section 30 agreed to.
SECTION 31.
Government amendment No. 45:
In page 40, subsection (1), line 27, to delete "shall" and substitute "may".
The purpose of this amendment is to provide that the exemption in relation to the economic interests of the State should be discretionary rather than mandatory in accordance with the principles and spirit of the Bill to facilitate, to the greatest possible extent, access to official information.
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Acting Chairman
Amendments Nos. 46 and 47 are related and may be taken together by agreement. Is that agreed? Agreed.
Government amendment No. 46:
In page 42, subsection (2), line 1, to delete "(‘the committee')".
These are technical amendments that deal with the Dáil committee which will review the secrecy provisions of other legislation.
Why is a Dáil committee charged with the responsibility?
We had the option of spending a further three years trawling through the secrecy provisions of all other enactments and receiving reports as to whether they should remain, be amended or otherwise. It is proposed instead to charge a committee of the Dáil with carrying out that function, consider the various Acts, receive reports from Government bodies and lay its own report before the House, which will also be placed in the public domain. The section provides that the Information Commissioner may give a report on the secrecy provisions of any enactment. For example, there are secrecy provisions in the IDA Acts which were put in place for very good reasons. Companies such as Intel or Motorola engaged in business with the IDA supply confidential commercial information and it would not be fair that that information would be available to their rivals via the freedom of information mechanism. Those secrecy provisions will stand the test of any review process.
However, if a Department puts forward an unduly conservative reason — which would not stand up to scrutiny in today's modern world — for retaining a particular secrecy provision, the committee will have available to it a report from the Information Commissioner if it so requests and can make recommendations in respect of what will happen with the secrecy provisions in question. By taking this line, we have ensured that the Freedom of Information Bill was introduced a number of years earlier than had we trawled through each individual case.
On Second Stage, Senator McGennis raised the issue of adoption information which involves particular sensitivities. We are not engaging in a blanket repeal and that matter is sub judice at present because of the Supreme Court case to be heard at the end of March. This allows a mechanism where on a case by case basis, confidentiality or secrecy provisions in particular Acts, some of which may be there for good reasons or others which, in the light of modern thinking or the passage of time no longer apply, may be repealed. In the Third Schedule to the Bill, a series of blanket, catch-all secrecy provisions as regards the Official Secrets Act, 1963, the Gas Act, 1976, the Restrictive Practices (Amendment) Act, 1987, etc., are repealed in toto with the Freedom of Information Bill.
I thank the Minister for that comprehensive reply which did not quite answer the question I asked. Why can there not be an Oireachtas joint committee of both Houses? It is my entirely biased view, which I am sure is not shared by anyone in either House, that the deliberations on freedom of information legislation conducted entirely by Members of the other House did not necessarily improve matters because many issues which should have been dealt with at that time were not.
Historically, there has been more interest in this House on the issue of freedom of information. With respect, there has been a passion for freedom of information in this House which has not been shared by the Dáil. Why is the Seanad continuously ignored in this matter? I am sure there is a perfectly adequate reason why we cannot have an Oireachtas joint committee. I would like to hear it as I cannot imagine what it is.
In getting the widest possible spectrum of views it would be a good idea if this committee carried out a continuous review. A committee established to support the freedom commissioner and the concept of freedom of information should be a joint committee of both Houses. I am not sure if my colleagues in my parliamentary party in the other House support me and I do not particularly care if they do or not.
One of the legislative committees of the Dáil has already reviewed the Official Secrets Act, 1963, and have been assigned this continuing work.
With respect to that committee, I do not think I would be doing them an injustice in saying they have an extraordinary range of responsibilities as a Dáil legislative committee. The Minister is probably aware it is my view that many of the committees we have in both Houses are not clearly focused anyway. We should have functional committees in specific areas of Government looking at the spectrum of those functions rather than individual specific committees dealing, for example, with legislation. I do not think that committee can possibly deal with that whole remit. That is a wider issue of Dáil reform and the committee system.
Historically, there has been a positive interest in freedom of information in this House, going back over at least three Seanads. Members such as the former Senator Brendan Ryan debated the matter. The creation of an Ombudsman was discussed in the early 1980s. There has been far more active interest in those issues in this House than there has been in the Dáil, because of its nature.
The Dáil committee should not be an existing committee which is already overburdened and not clearly focused. It should be an Oireachtas joint committee that looks at the issue of information. There would be benefits in this. We need a standing committee in both Houses to look at the issue of public service reform, which is where this issue belongs.
I have no principled view as to why it should be a joint or select Oireachtas committee. Members in the Dáil are increasingly complaining of the difficulties of manning Oireachtas committees. It is a major problem to man the plethora of committees for smaller parties like mine. In terms of manpower it makes sense to establish a joint committee. I agree with Senator Roche that this House has a better record in terms of concern about freedom of information. From a practical point of view, it makes eminent sense to make the committee a joint one.
I am entirely persuaded by the eloquence of the Members and the compelling case they have made in this excellent debate. I am sure Senators will have something to contribute. We will come back on Report Stage with an amendment proposing a joint committee.
Amendment agreed to.
Government amendment No. 47:
In page 42, line 2, after "Dáil Éireann", to insert "(and such a committee so authorised is referred to subsequently in this section as ‘the committee')".
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
Acting Chairman
Amendments Nos. 48 and 54 are related and may be discussed together.
I move amendment No. 48:
In page 43, subsection (3), line 11, to delete "the person" and substitute "such person as has been selected by the serving members of the Civil Service Commission".
I am returning to an old hobby horse of mine. There was a debate in this House in the early 1980s about the creation of an Ombudsman. One Member who went on to the Dáil, the late John Kelly, did me the great honour of quoting extensively from an article I had written in a magazine called IBAR, attacking the Ombudsman proposals as extremely timid. The issue of the appointment of a commissioner or of independent authorities is that they should be independent.
During the debate in the other House on the creation of the Ombudsman, the then Taoiseach accepted as a point of principle that the Ombudsman should not be seen to be coming exclusively from the Government and gave an undertaking that the Ombudsman should not be seen as the favoured nominee of Government. He indicated there would be a process of consultation in which the leaders of other parties would be informed in advance of the name of the Ombudsman. Prior to the press release going out with the name of Michael Mills and later Kevin Murphy, the names were circulated to the Leader of the Opposition, which was not what was intended by consultation. Under this section, the Ombudsman will be the commissioner.
The first commissioner.
Yes, accepting that the Ombudsman will be the first commissioner, it would be good practice if we could have an independent production of the listing of people we would consider for this position. I believe, and this in no way reflects on the qualities of either Mr. Murphy, the current Ombudsman or Mr. Mills, his predecessor — one of them, as the Minister knows, worked closely with me for years and I have been a friend of the other for years — that in the Ombudsman Act a tremendous opportunity to produce a name through political consensus was lost. Michael Mills was particularly inspired as the first Ombudsman, but it should be up to the Houses to suggest a shortlist of names which would be looked at. There should be some nominating process.
Looking at the legislation relating to the creation of the Ombudsman office, the difficulty in establishing the nomination process has been a difficult issue which has been a grain of sand in the shoes of those who have written about it. In most legislation the Executive makes the proposition and the Opposition react to it. There is the nucleus of an idea here that is worth exploring. The absolute autonomy and independence of these offices could be established if there was an autonomous or apolitical process of selection and nomination.
I realise there are difficulties in doing that, but there is a precedent and there is much discussion about it in literature. It is important that these offices, which are among the highest in the State, are seen to be what they are — offices which are associated with the people and not with the parties. It is important that these offices, particularly those of the Ombudsman and the Information Commissioner, are seen to be more closely aligned with the Houses of the Oireachtas than with the Executive.
I realise that this is simply a symbolic thing, but sometimes symbolic gestures can be important. I made the proposition that we should discuss this in the context of the existing people who form the commission drawing up the short list and submitting it to a committee of both Houses. I have outlined the process as a point of discussion. The selection and nomination process is a way of copperfastening and registering in high measure the independence of this office.
There is another benefit. People who are politically associated may well be appropriate for some of these offices; but because there is such a reluctance in political circles nowadays to admit that there might be anything meritorious in their own following, people are sometimes are excluded from office simply because of past career choices. I can think of ex-Taoisigh and ex-Ministers, for example, who would fulfil some of these roles with great zest.
And some who might not, either.
I can think of one or two who might not. This is an opportunity of creating some sort of system that takes the nomination and selection process away from what looks like partisan politics but, in fact, is not. I do not know any partisan operations of either Ombudsman. I have no problems with either person because they were inspired choices in both cases. It would help, however, to confirm the independence and autonomy of such offices if we could evolve some nomination/selection process. It is an important point that is worth discussing.
Senator Roche has raised an important and substantive point. The fact that we have had two outstanding appointments as Ombudsman should not divert attention from the significance of the selection process. What nomination process does Senator Roche have in mind? Would it be up to the Civil Service Commissioners to draw up their own short list, or could people apply for the post? Anything that enhances the profile, dignity and public standing of the post, which is now a dual one for all practical purposes, is in line with the thinking expressed here on the importance attached to the function. It is appropriate to raise the selection process as a matter of principle which is detached from an appointment that has already been made.
That is a very pertinent point. I see no reason why political leaders should not suggest people. This country lacks a list of the great and the good and, as a result, every time somebody is appointed to a State-sponsored body somebody starts digging into their background to see what way they voted at some stage.
I already mentioned John Kelly, and I remember an extraordinary contribution he made in the Lower House. Just because people voted in a certain way in one election does not necessarily mean that they are unfit for any other form of public office. If you were to do that you would, as he said, exclude from public life everybody who ever had any interest in the State. You must assume that people have political leanings and so on.
If you had commissioners, you would have an opportunity for the widest range of personages to offer their names, including individual citizens. I see no problem with that; nor do I see a problem with members of the Government putting forward names of people who would be examined.
In the United States they have the extraordinary procedure whereby committees of the Houses of Congress actually vet names — in a quite obnoxious way, in my view — that have been put forward by the Executive. Because of our system we have never given enough thought to this process of selection and nomination. Let us face it, we have had this problem in the Judiciary. There is a view abroad that the Judiciary is politically appointed, but that is not always necessarily true or fair. The most important thing is that people are able to fulfil these functions without reflecting a political bias. I am trying to provoke a debate on the autonomous individual who is not seen as the puppet of any political master. It would be a person in whom the citizenry can have absolute confidence and need have no query about.
We need to stimulate public debate on this, but it is difficult because cynicism is rife. The healthiest pastime in Ireland is to be cynical about everything. Appointments such as the Ombudsman, and others we are attempting to create, should be protected against cynicism by a process of nomination and selection which, albeit in a human world, would be detached from possibility of their being seen as patronage. I do not believe that appointments which have been made are bad or that there is anything wrong with them; but if they had gone through a process such as this one, their independence would have been even more evident. It is probably not a working proposition but I have put it down to provoke a debate.
The impartiality of those who have occupied the office of Ombudsman is self-evident, and nothing in the history of either incumbent would suggest otherwise.
I have clearly made that point.
I realise that and I am not saying the Senator did not. I accept the desirability of having a system which is not political. Unfortunately, the reality is that if the nomination is made by the Houses of the Oireachtas it will reflect the complexion of the Government of the day. Perhaps the Government should make the nomination in the first place. That would short-circuit much of the debate, although that in itself may be useful.
I do not share Senator Roche's distaste for the American system, although there certainly are aspects of it which are raw. A committee which does not reflect a Government majority and which has equality within it would be a reasonably good way of making some of these appointments. It would show that there is impartiality in the appointment. The alternative to that would lead to a system of canvassing which would not be desirable. Even though we have some models we regard as preferable to the existing one, it is difficult to devise a superior system which would give us people of superior merit. A good job has been done by the people we have and had.
The Oireachtas had a bearing on the reappointment of one such pereson when he was in office. There was a suggestion at the time that somebody might not be re-appointed, but the Oireachtas made its views firmly known on that occasion. I do not know whether that was instrumental in ensuring that the person remained in office, but the Oireachtas had a view on it.
I can see Senator Roche's point but it is a much broader issue than the specifics of this legislation. I agree with Senator Dardis that there is no easy way to what Senator Roche is trying to achieve. One could ask who appoints the members of the Civil Service Commission. I presume they are appointed by somebody. It comes down to who appoints anybody. We have a system of democracy which gets us here in the first place. In local government we often speak of people being self-appointed. There is no easy way to what the Senator is trying to achieve but I sympathise with his aim. I do not have a particular answer to it.
This has been a very interesting debate. We would like to see the total independence of these offices and that is why in appointing an Information Commissioner we followed the procedures of appointment for the Ombudsman, which require a positive vote of both Houses and appointment by the President. This will lend status to the appointment in a way which appointment through the Civil Service Commission cannot. In a situation where a named individual, whether Ombudsman, information commissioner or somebody who carried out both tasks, was strongly opposed by the Opposition, their position would be untenable. A de facto consensus exists by this method of appointment. It will not be possible for the Government to steamroll through an appointment, even in the present happy situation where the Opposition has a majority in the Seanad.
I have difficulty with the proposal put forward by Senator Roche regarding the present Ombudsman, who has displayed extraordinary flair, commitment and interest in relation to freedom of information. He has been approached in relation to this post. If we were to go back to the Civil Service Commission he would be out of the loop. That would be a pity as he is a person who in his office and his work commands wide respect as somebody who is a genuine guardian of the public interest.
On behalf of Seanad Éireann I wish to welcome to the House members of the House of Lords European Communities Committee, which is led by Lord Barnett and includes Baroness Ó Catháin. I hope you enjoy your visit to Ireland.
I welcome the visiting delegation. It is nice to hear Baroness Ó Catháin's name being pronounced correctly. I have listened to it in all its many variations on Radio 4.
I made reference to the word "selected" because I accept it would be quite inappropriate if we appointed a commissioner for information or the Ombudsman through the Civil Service Commission. What I was referring to was the short listing. If you advertise for this position there will be an abundance of applications. What would be wrong if a list of people was put forward and discussed at a joint committee of the Oireachtas?
We could use the freedom of information legislation to get the information required by the committee.
The reality is that the Senator agrees that it would be desirable to have a nomination process which would involve all sides in political life rather than it being seen as a spoil system appointment by those who happen to have the majority in Government at a particular time. While I accept what has been said about the current and previous Ombudsman, I could foresee a situation where a Government could make an imprudent appointment and thereby destroy the offices we value. There is a need for debate regarding how we can ensure that something other than partisan considerations apply in the selection and the nomination process.
Acting Chairman
Are you pressing your amendment, Senator?
I think on a point of principle I will.
Amendment put and declared lost.
Question proposed: "That section 33 stand part of the Bill."
The technicalities require us to take amendment No. 54. We will not have an opportunity to discuss it when the relevant section is debated. Perhaps Senator Lee has made a mistake as the amendment suggests that the remuneration of the information commissioner be determined "in conformity with the purposes, principles and spirit of this Act". I do not know whether he intended those phrases to apply to something else.
I put that in quite deliberately, knowing that it was wholly irrelevant and inappropriate, as a vote of spiritual confidence in the direction we are trying to go. I lifted the phrase from section 3, subsection (1), paragraphs (c) and (d), where there is a general rubric that in so far as we do anything under this Bill, we do it in the spirit of the Bill. This is a financial proposal which is therefore out of order, but that should not prevent us from discussing it. The intention behind the amendment was that we should be as supportive as possible of the office of commissioner.
Did I detect the Minister in error in a reply to Senator Roche? Did she say that the Opposition have a majority in this House? It would be more correct to say the Government did not have a majority, but the Independent Members are very jealous of their independence.
I stand corrected.
Question put and agreed to.
Section 34 agreed to.
SECTION 35.
Question proposed: "That section 35 stand part of the Bill."
I will be considering putting forward technical amendments to this section on Report Stage.
Question put and agreed to.
SECTION 36.
Question proposed: "That section 36 stand part of the Bill."
I will be putting forward technical amendments to this section on Report Stage.
The Minister might think about this for Report Stage. I have not an amendment down on it. It is quite important as to how the legislation shall be evaluated in due course. It is permissive as it stands, allowing the commissioner to investigate whatever he or she wants to investigate in terms of implementation. However, would it strengthen the commissioner's hand if a review were made mandatory after a certain period, that the commissioner shall, after three or five years from the implementation of the legislation, review the working of the legislation and report accordingly to the Oireachtas? That would strengthen the commissioner's position vis-a-vis all the authorities he or she would be dealing with. If they know that this sort of report has to be made, the commissioner's authority would be reinforced.
The Bill provides that the commissioner will make an annual report and could develop in it any issues in relation to the operation of the legislation. Placing a time limit on the commissioner might inhibit reviews after two and a half years if they were appropriate. The facility for an annual report, therefore, may be the best approach, but we will look at the point raised.
I think it is a substantively serious point. The commissioner will almost certainly be overwhelmed with work. Resources always lag behind what is necessary in these matters, and when one is overwhelmed with work one becomes immersed in the detail of the immediate. Annual reports are part of the immediate in this context. I do not intend to establish a fixed period and the provision could state "within a period of" a certain number of years. I will defer to the Minister of State's judgment on Report Stage. However, in terms of reviewing the implementation of legislation, the knowledge that there must be an overall review, in which one stands back from immediate detail, helps to focus people's minds on the overall function of the legislation.
Question put and agreed to.
Sections 37 to 39, inclusive, agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."
I give notice of my intention to bring forward a technical amendment to this section on Report Stage.
Question put and agreed to.
Sections 41 to 45, inclusive, agreed to.
SECTION 46.
Question proposed: "That section 46 stand part of the Bill."
Under this section the provisions of the Bill do not apply to certain records. Section 46 (1) (f) refers to "an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential,". That would permit the Buchanan report, which was given to the Committee on Procedure and Privileges this afternoon, to be deemed confidential. A subcommittee of the Dáil's Committee on Procedure and Privileges is currently considering the Buchanan report. Under this provision it would be possible for that committee to arrive at a conclusion and say that the conclusion must not be published. I doubt that the Minister of State or the committee would like that to happen, but it is possible under this provision. What is the Minister of State's advice on this matter?
These provisions are governed by Article 15.10 of the Constitution, which provides that the Houses of the Oireachtas make their own rules. The Executive cannot override the provisions of that Article. Other aspects of the work of the Oireachtas to which this exemption might apply include legal advice given to a committee. Such advice would be covered by professional privilege and by Article 15.10 of the Constitution. It is up to the Houses of the Oireachtas to make decisions in this regard as the Executive cannot overrule the Houses. That is the reason for this exemption.
Senator Roche expressed concern on Second Stage as to whether section 1 (a) was sufficiently broad to facilitate access to records on the administration and management of various aspects of a court. Our initial advice is that the section is probably adequate but if we receive further advice we might put down an amendment on Report Stage.
The Minister anticipated my contribution on this section. Last week I referred to the case of two of my constituents, Mr. and Mrs. Doran of Greystones, who do not mind their names being mentioned in the House. They are suffering in an extraordinary way because of the manner in which our courts and various bodies in this land operate. Their case is due to come before the Supreme Court so I will not discuss it.
However, information on records concerning matters other than the general administration of the courts should be made available. I can envisage a situation in which a judge, because of indolence or careless disregard for the rights of individuals, would delay a court case to the point where people would simply be ground down. It would be in the public interest to know if a judge behaved in that manner. I can envisage a case where a court action could drag on for years or where a judge could become involved in so many other things that he could not reach a determination in a case and justice would be delayed beyond what is acceptable or could be expected. In such circumstances we should have a right to have information on how that judge performed his or her duties. I am not referring to a specific case because I am prohibited by the rules of the House from speaking about specific cases.
Last week the Minister of State accepted that the Law Society and the Bar Council will be brought within the scope of this legislation. With the limited resources available to a Member of this House I have been unable to draft the type of amendment I have in mind to deal with that. I also have not had conspicuous assistance from members of the Bar, because the cases I have in mind are too well documented. I can envisage situations where incredible injustice is done either willingly or unknowingly by incompetence on the part of the Judiciary and we have one or two prime bozos in the Judiciary. It would be in the public interest if information were available as to how this rather obscure part of the State operates. Judges and courts are most important and it is critically important that we have confidence in the operation of the courts.
Acting Chairman
The Senator is getting specific and, regardless of the wishes of his constituents, it is not practice——
I am not referring to their case.
Acting Chairman
They have been named by the Senator and the Senator is being specific about members of the Judiciary who were involved in this case.
I am talking about the Judiciary in the wider sense. I can think of another case——
A non-specific case.
Acting Chairman
The Judiciary is independent of the House——
The Judiciary is independent of this House but it is not independent of public scrutiny. Its members are not appointed to be removed from the cares and concerns of private citizens.
Acting Chairman
I am aware of that. It is the manner in which the Senator referred to the Judiciary in this case.
I will moderate my language if it offends anybody. I have heard judges speak about politicians in language which is intolerant and intemperate——
Acting Chairman
Not with me in the Chair.
Most of them will never be back in this House. However, grave injustices can be done through our courts because of the snail-like, glacial pace adopted in certain cases. There might be valid reasons for that pace. The judges might be so encumbered by other matters that they cannot organise business otherwise and they might also be reluctant to voice these problems.
However, it would be good if we could create a situation which would enable people to access information relating to how judges have proceeded with existing cases in order to know that those judges have not done damage unconsciously or consciously to citizens of the State. It is wrong that we should create an institution that is above question. Tragically, over the years we have created a number of institutions which we have elevated to the point where their actions can never be questioned. Most citizens do not have the resources or stamina to go through the courts system. I accept that the interpretation of law has nothing to do with us but is solely a matter for the judges and I would be the last to suggest that the Houses of the Oireachtas should secondguess the courts. However, there is an abundance of evidence available to anyone who does constituency work that, from time to time, people's interests are injured by judges and by the way the courts are administered and I would like to see a review of the administration of the courts. I am not questioning the right of judges to interpret the law but if there is a delay someone must ask why.
I apologise if my language was intemperate. I am close to a number of cases. During the debate on the Solicitors Bill in the other House——
Acting Chairman
The Senator should not mention any names.
I have no intention of doing so but in a previous existence in another House I illustrated a case in which six different solicitors were involved in an appalling case. The amendment which the Minister accepted would allow openness in an investigation of that type of matter.
We had a detailed discussion on section 2 about information relating to the criminal history of an individual. The Minister has made the point about whether information on parking offences, for instance, should be made available. I do not see why the criminal history of an individual should not be available — if they commit a crime it should be part of the penalty.
The Minister confirmed that, under the Constitution, it is open to the Houses to decide that something will not be published. This comes back to the point I made about the Buchanan Report, that it would be possible for the Committee on Procedure and Privileges to say that it was not going to publish the report. Freedom of information must begin with ourselves. We cannot demand things of local authorities and public bodies which we are not prepared to demand of ourselves. It makes me wonder why we have a difficult and complex compellability of witnesses Bill going through the other House which is criticised for not being strong enough. We can compel witnesses to attend but, at the end of the day, it comes back to the point that was made about the Ombudsman, that because the Houses have the complexion of the Government of the day if the Government wants to suppress something it is in a position to do so.
The Buchanan report was published as quickly as it was received and the committee is to be commended on that. We are bound by constitutional constraints in what we can write into law. In keeping with the principles and spirit of this Bill I want to see everything on the table, including matters relating to the Houses. However, it is not open to me to write that in here because I am constrained by Article 15.10 of the Constitution.
The general administration of the courts will be fully subject to freedom of information. The legal advice suggests that administration will include matters relating to management of the courts, proposed policy or organisational changes as well as matters of general administration and use of resources. The provision we have is based on section 6 of the Australian Act.
However, we must recognise the constitutional independence of the Judiciary under Article 35.2. If the reason for a delay is judicial that would not be open to scrutiny under this Bill and it would not be open to us to legislate in relation to judicial behaviour other than in those provisions in the Constitution which allow for the impeachment of the Judiciary on grounds of stated misbehaviour. The Judiciary is not answerable to this House and we cannot ask it to be so. We are stuck with the constitutional constraints and we must respect that.
The administration of the courts is ultimately governed by the judges and we should not be talking about secondguessing judicial interpretation of the law. However, between those two parameters there are occasions when untoward things happen in the courts which are never explained. Undue delay in the handling of cases is one example, particularly when the cases are with one judge or group of judges. I do not know the answer. It is a frightening dilemma and we have no way of asking for information about why these things happen, how logjams can be broken and how justice can be done?
We know the adage that justice delayed is justice denied and we could all find cases which have gone on for years for no good reason. I said it previously that the wigs do not pay too much attention to the Legislature but perhaps on this occasion they will become aware of the discontent that is beginning to flow in relation to a number of cases, some of which have already received widespread public comment. I will try to find a suitable wording for discussion of this matter on Report Stage.
Question put and agreed to.
SECTION 47.
Acting Chairman
Amendments Nos. 49 and 50 are related and may be discussed together.
I move amendment No. 49:
In page 54, subsection (1), lines 21 and 22, to delete" a fee of such amount as may be appropriate" and substitute" a reasonable fee, calculated in as consistent a manner as practicable for all public bodies, and notified, as far as practicable in advance, having regard to the financial and other relevant circumstances of the requester, and".
This is an important issue. I do not know whether the phraseology in my amendment is the most appropriate but it would be contrary to the spirit of everything we have said, and the Minister's intentions, if access to information was inhibited by cost. I know that there are provisions for waiving charges but we are not giving sufficient guidance to the heads or the commissioner as to what would constitute the type of charge the Oireachtas has in mind. How is the commissioner to decide if there is an appeal about charges? If people are inhibited because of the charges it would be difficult to appeal.
Section 47(1) states "a fee of such amount as may be appropriate..." but this is far too loose. I used a circuitous phraseology in the amendment but it incorporates the principle that we should instruct those responsible for implementing this legislation that it is our intent should be applied. There is scope to block it and, even without any intention to do, there is scope for delay and discouragement.
I agree with Senator Lee. We are back to the "yes, but" aspect of the Bill — yes we want freedom of information but there are many reasons it cannot be given. We now have an additional reason: it would be open to someone who did not want to release information to set the fee. The Bill states that "a fee of such amount as may be appropriate having regard to the provisions of this section shall be charged by the public body concerned...". That is far too open. A fee should reflect the actuality of assembling the information and that is contained in subsection (2). Every effort should be made that no one is denied access to information by virtue of the fact that they cannot afford it.
I accept the principle and the concerns of Senators. The Minister for Finance will be drawing up guidelines on fees and these concerns will be reflected in that.
I accept that and am grateful but I ask the Minister to keep in mind that many of those who stand to benefit most from this Bill can least afford fees.
Amendment, by leave, withdrawn.
Amendment No. 50 not moved.
Section 47 agreed to.
Section 48 agreed to.
FIRST SCHEDULE.
I move amendment No. 51:
In page 58, paragraph 1 (5) (e), line 42, to delete" or".
Amendment agreed to.
I move amendment No. 52:
In page 58, between lines 42 and 43, to insert the following:
"(f) subject to paragraph 2, any other body, organisation or group on which functions in relation to the general public or a class of the general public stand conferred by any enactment, or".
Acting Chairman
There should be a footnote to the amendment stating that the figure "2" in the amendment is the appropriate reference if amendment No. 53 is accepted.
Amendment agreed to.
I move amendment No. 53:
In page 58, between lines 45 and 46, to insert the following:
"2. A body, organisation or group standing prescribed pursuant to regulations for the purposes of clause (f) of paragraph 1 (5) shall be a public body only as respects functions referred to in that clause.".
Acting Chairman
The footnote to this amendment states that the clause (f) in the amendment is the appropriate reference if amendment No. 52 is accepted.
Amendment agreed to.
First Schedule, as amended, agreed to.
SECOND SCHEDULE.
Amendment No. 54 not moved.
Second Schedule agreed to.
Third Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Acting Chairman
When is it proposed to take Report Stage?
Next Wednesday at 8 o'clock.
Report Stage ordered for Wednesday, 12 February 1997.