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Seanad Éireann debate -
Wednesday, 12 Feb 1997

Vol. 150 No. 1

Freedom of Information Bill, 1996: Report and Final Stages.

I remind Senators they may speak only once on Report Stage, except the proposers of the amendment who may respond to the discussion on the amendment. On Report Stage, each amendment must also be seconded.

Amendments Nos. 1, 2 and 3 may be discussed together by agreement.

I move amendment No. 1:

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

I am pleased to see that many of the concerns expressed on Committee Stage have been taken on board. The original intention of the amendment was that local authorities and health boards would not have three years before complying with the Bill. That is too much time. The Minister has reduced the period from three years to 18 months, and that is a step in the right direction. However, 18 months is too long. If it is appropriate that Departments should be given only a year, the same should apply to local authorities and health boards. Unless we impose a definite time limit nothing will be done. It will not take them as long as one might think to get their affairs in order and nothing will be done until they are confronted by the deadline. The arguments made on Committee Stage are still valid and, while I accept that the Minister has come a considerable way towards meeting the requirement, it would be better to delete the paragraph and to have all parts of the public service and local authorities comply with the legislation within one year of the passing of the Bill.

I second the amendment. Amendment No. 5 is consequential and should perhaps be taken with amendments Nos. 1, 2 and 3.

We are taking only amendments Nos. 1, 2 and 3.

The Minister has exercised considerable flexibility by accepting many amendments from this side of the House. She has behaved in a way that is uncharacteristic of Ministers, irrespective of ministerial political views, and I compliment her for that. Together we improved what was a very interesting and good draft.

There is no good or compelling reason for excluding local authorities or health boards for a minute longer than the Civil Service. The arguments in favour of encompassing the local authorities and health boards in the Freedom of Information Bill are more potent than those for the central administration. The health boards and local authorities increasingly impact upon the lives, well being and interests of the citizen. Our public representatives at local level have been dealing in an unequal struggle.

There is a serious need to balance local government between the powers and authority of the managers and the diminishing role the councillors have had to play. I highlighted this issue by drawing attention to the fact that a Labour councillor in Wicklow had to take the council to the High Court to get information. That is wrong and it should never happen. No councillor should have to put their limited assets on the line to get information from a county council. There are arguments for and against in that case but the situation is illustrated by the Glending Wood action. It is intriguing that, even in the last week, we have begun to get further information about that court action. None of these secrets would have existed if councillors had the right of access to all files.

The Minister spoke about the novelty of seeing the law officers of councils in the council chamber. If I recall correctly, the novelty was so great in the case of the Minister's counsel that the law officer passed out and had to be resuscitated.

It is extraordinary that a part of public administration where significant decisions are made has denied public access to its dealings. That is absolutely wrong and we cannot defend it. I am pleased the Minister has reduced the waiting period from three years to 18 months. It should only be one year but a great deal of good will be done by allowing the Freedom of Information Bill to apply to local authorities, in particular. The Bill will have a major impact on debates about the rezoning of land, planning and all the issues which have created such tension. I, and the majority of our council colleagues from all parties, wish that local authorities were subject to it from day one.

I am not going to press this amendment to a vote but will the Minister ensure that every county manager is put on a state of preparedness because, as Senator Dardis said, we have a tradition of long fingering everything? Unless there is a strong ministerial hand driving this issue some local authorities will drag their heels and will have to be brought kicking and screaming into the information era. None of us who served on a council has any reason to fear public access to information. The only people who are recalcitrant are a small but powerful minority of public officials and this should never be allowed to happen.

I am pleased that there is now only a six month difference between ourselves and the Minister on the issue of the waiting period but she has still not put forward a compelling argument to explain that six months. However, I know she would have preferred 12 months and if we cannot have the best then we can have the second best.

I concur with the points made by Senators Dardis and Roche and welcome the substantial improvements in the amendments on records. This is a fair compromise. Did the Minister look into the possibility of identifying certain categories of records which it might be possible to release earlier than the 18 months cut-off period?

I welcome the reduction in the waiting period. Three years was too long and 18 months is still too long. We are encouraging local communities to become involved in local authorities and in matters which are of interest to them and the failure to get information may inhibit that progress.

With others I have fought for years for people to have access to information regarding planning permission. That was granted under the planning laws and if one goes into a local authority office one can see people looking at the files. This gives them great satisfaction.

Waste disposal is now a major issue. However, the Minister has made an amendment which I welcome.

We had a very good debate on this point on Committee Stage and I conveyed the strong views expressed by Senators to my colleagues, the Minister for the Environment and the Minister for Health. I asked them to examine the practicalities and I am pleased that we are able to move forward by 18 months which is an important advance and a tribute to the points made in this House.

There are practical problems in gearing up organisations who are not in the first round of consultations and who, unlike central Government, have not been in preparation mode over the last 18 months. There could be difficulties about moving on all categories of information earlier than 18 months but it may be possible to take up Senator Lee's point and designate certain categories which would be available sooner than 18 months.

Eighteen months is an outside limit and the clock starts ticking for all public bodies the day the President signs this Bill into law. I look forward to the day when local authorities and health boards, with central Government and other public bodies, move from a culture of secrecy to one of openness and volunteering information first, to their own members, and second, and most importantly, to members of the public. We all agree that good government is best delivered through openness, whether that be at central or local level. I have gone a substantial way to meet the concerns expressed by Senators and I thank them for the high quality of debate we had on Committee Stage.

The Minister accepts that there is a shared determination on all sides to ensure that information is freely accessible to the public and that no impediments are put in the way. Whatever loopholes exist for creative officials to avoid providing information must be sealed off.

I accept that it is more onerous for a local authority to comply within a specified period than it is for central Government, even though a Department's files would be more extensive. It is also important that the provisions of the Bill will come into operation not later than 18 months and that the Minister has the discretion to ensure that it comes in earlier. I hope there will be a determination on the Minister's and the Government's part to ensure that the files could be scrutinised earlier.

I do not want to reopen a debate we had on Committee Stage or to point particularly to a narrow area, but there are more than 2,000 tonnes of toxic waste in County Kildare and a simple question — where and by whom was it disposed? — was asked at the local authority. We still have not received answers and these are the sort of questions to which we should get answers. If members of local authorities have such difficulty in getting information from the county council officials, how much more difficult is it for the citizen to gain access to the type of information to which he or she is entitled? However, in the spirit of the general tone in which the Minister has dealt with it on Committee Stage and come back to us now, I withdraw the amendment.

Amendment, by leave, withdrawn.
Government amendment No. 2:
In page 5, line 38, to delete "3 years" and substitute "18 months".
Amendment agreed to.
Government amendment No. 3:
In page 6, line 2, to delete "3 years" and substitute "18 months".
Amendment agreed to.
Government amendment No. 4:
In page 6, line 11, after "Minister", to insert "and, in relation to a form, means determined having had appropriate regard to the needs of requesters".

This amendment is in response to amendments Nos. 19, 23, 24 and 28 which were tabled on Committee Stage by Senator Lee, where he sought that the forms would be such as might be reasonably sought by the requester. So as to avoid wholesale amendments throughout the Bill, we have decided in this amendment to propose to amend the term "determined" in the definitions so that right throughout the Bill the needs of requesters will be taken into account in looking at the form in which applications or any of the paperwork will be handled.

Amendment agreed to.

Amendment No. 5 in the name of Senator Roche should read "page 17" not "page 18".

There is no point moving that amendment as amendment No. 1 has been withdrawn. Basically, amendment No. 5 was consequential on amendment No. 1. If that is the correct interpretation — because we got ourselves into such a muddle with lines and all the rest of it — I do not think it is possible to move it. If you wish, Acting Chairman, I will not move the amendment and leave the Bill stand as it is.

Acting Chairman

It is a matter for yourself.

Amendment not moved.

I move amendment No. 6:

In page 7, line 36, to delete "understanding" and substitute "specified condition".

Again, this is something which we debated at some length on Committee Stage. It has to do with the information being held by a public body on the understanding that it would be treated by it as confidential. The question arose as to the vagueness of the word "understanding" and the capacity it would generate for an official to decide that something was confidential. The amendment seeks to replace "understanding" by saying it is a "specified condition". In other words, it is only confidential when it is specified to be such. The problem I have with the Bill as it is drafted is that it gives this faceless official far too much leeway to decide that something is confidential when, in fact, it may or should not be confidential, and that is the difficulty I have with the word "understanding".

Acting Chairman

Is the amendment seconded?

I second the amendment because I can see the point Senator Dardis is making. The word "understanding" is a very strong word and "specified condition" seems to me to be more specific. It certainly limits the opportunity for a public official who would wish to be less than open to be creative with his or her interpretation of the Act. It seems there is a great deal of benefit in the amendment of Senator Dardis and Senator Honan.

In the light of the concerns expressed by Senator Dardis on Committee Stage, I received further legal advice on the meaning of the term "understanding". My legal advice is that it means an understanding by both parties and it would not be open to only one person to have an understanding that it be treated as confidential. Whether it is implicit or explicit that it be treated as confidential, an understanding by one party only could not be regarded as an understanding of confidence.

The amendment as proposed by Senator Dardis could have undesirable side affects. First, public bodies hold a great deal of sensitive information on people — medical records, circumstances and the financial position of families, etc. — and if the Senator's amendment was accepted, there would have to be an explicit statement that these were confidential and there could be a risk that this kind of sensitive and intrinsically private information would come into the public domain when it would not be legitimate for it to come into the public domain to third parties.

Second, there is already much information which public bodies hold which will come into the public domain under the Bill, either immediately or as we engage in the rolling back process until it meets the National Archives Act, 1986, information which was supplied without an explicit understanding of confidence but with an implicit understanding on both sides that it was confidential information and should be treated in confidence. Again, this would consist of existing personal records and files and there could be a legal doubt about it. After the Bill is enacted, people will declare that new information is or is not confidential, but there must be a system for dealing with existing information. My legal advice is that the way it is put in the Bill protects against these kinds of dangers. In any event, if there were to be any abuse of this understanding of confidence in situations where it would be unwarranted, one could always appeal to the Information Commissioner.

We have had to and must be careful in enacting legislation to ensure the legitimate right to personal privacy of individuals with regard to personal affairs in which there is no legitimate or overriding public interest. In opening the books and files on general matters and matters which ought to be in the public domain and on which there is a legitimate public interest, it is incumbent on us to ensure that we do not trespass into the individual's right to privacy, which is one of the unenumerated constitutional rights of people which Members of this House on all sides would want to see respected.

I can appreciate that it is difficult to make it so that it is not too confined. I accept the point, for instance, that if there is information on an individual which comes before a housing meeting of a local authority, it would be entirely inappropriate that some of the personal information on those files would be made generally available. I am somewhat reassured by the fact that the Minister said it would be the understanding of both parties and not just of some council official. In those circumstances, I withdraw the amendment.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 7 is a Government amendment. Amendments Nos. 18 and 20 are related. Therefore, amendments Nos. 7, 18 and 20 may be discussed together by agreement.

Government amendment No. 7:
In page 9, between lines 26 and 27, to insert the following:
(3) A reference in section 7, 8, 14, 17 or 18 in relation to a request under section 7 or the receipt of such a request or to an application under section 14 (2), 17 (1) or 18 (1), to the head of a public body shall be construed as including a reference to the body and to any director or member of the staff thereof, and this Act shall, with any necessary modifications, apply and have effect accordingly.".

On Committee Stage, Senator O'Sullivan raised an interesting point concerning the possibility of a loophole if a freedom of information request was addressed to an official as distinct from the head of a public body. This set of amendments addresses a potential loophole which may arise in this area and I welcome the point made by Senator O'Sullivan.

Amendment No. 7 is a technical amendment to ensure that any freedom of information request addressed to any member of staff of a public body would also be acceptable under the Act, so if one applies to the chief planning officer it is the same as if one applies to the county manager.

Amendments Nos. 18 and 20 are technical amendments which flow from making this particular amendment.

I thank the Minister for taking on board that point. It was one I made on a general section on Committee Stage and it arose from practical experience as people would often write to a particular section of a local authority rather than to the county manager or the head of the body. The Minister's amendment covers my concerns and I thank her.

Amendment agreed to.

Acting Chairman

Amendments Nos. 8 and 10 are related, amendment No. 11 is an alternative to amendment No. 10, and all may be taken together by agreement.

Government amendment No. 8:
In page 10, lines 29 and 30, to delete "section 6 (4) or".

In the course of the Committee Stage debate on section 6(4) I undertook to the House that I would come back with mechanisms to improve access to past records. The effect of the deletion proposed in amendment No. 8 is to make it considerably easier to make regulations for retrospection — in other words, they will be passive rather than active regulations. A positive resolution of the Houses will not be required, so a lazy Minister for Finance will not have an excuse to do this in the simple way. This amendment is linked to amendment No. 10 on retrospection.

It is our intention that access to past records should be provided on a rolling basis. Access would apply initially to all personal information of the requester, all current files subject to the security, etc., exemptions and any related historical records needed to understand current files. Access to past records would then be provided on a rolling back basis — first two years, then four years, then six years, etc. I now propose that where there is interest in past records on a particular subject matter, regulations can be made enabling access to these records regardless of how far the rolling back process has generally taken place. For instance, if we have rolled back ten years but someone is interested in 15 year old records on a particular subject, there will be a facility to roll back the period for those records if the general rolling back process has not reached that point. Similarly, if records of a particular period are of special interest — that is, people wish to read 15 year old records but the rolling back process has only reached five years — it might be feasible to allow that in this way as well.

This allows greater flexibility and will improve the rolling back process. Students of administration, archivists and historians can be facilitated in accessing key material; or if there is material in which there is general public interest and the rolling back process has not reached it, particular records can be designated and singled out. That will improve access to past records and I hope it will not be too long before this process meets the 30 year rule under the National Archives Act, so that we will have full access.

Senator Lee's amendment No. 11 is a retabling of his Committee Stage amendment No. 10. The wording of this amendment could cause difficulty as it might be construed as unnecessarily broad. It provides that the records referred to in this section are "any records relevant to an application made by a requester". Theoretically this could result in truckloads full of documents becoming available if all those records are brought in and the requester might not be interested in all of them. It could also impose a substantial and onerous legal responsibility to look for any related records. As the provision is currently worded, if a person wishes to look at a current file, all cognate material needed to understand the file comes under the Bill. If there were related files in other Departments — for example, a memorandum for Government would be circulated to 15 Ministers and there would be a copy in each Department — a trawl for such files could be cumbersome. It could also be counter-productive in terms of what we are trying to do, which is to make access to information quick, speedy and efficient, something which goes with the grain of public administration rather than leading to bureaucrats deciding it is a terrible nuisance which they will oppose tooth and nail.

Also, section 6(2) of the Bill imposes a requirement on public bodies to help requesters with their requests. I believe this requirement — coupled with Senator Lee's amendment to section 10, which we have re-tabled as amendment No. 19, prohibiting a public body from easily rejecting an unfocused request — will ensure that the interest of requesters will be well protected. I think we have taken on board the spirit of the Senator's other amendments on this topic; and if my amendments are accepted, the net position will substantially meet his concerns in a way which will leave the Bill readily operable by public bodies.

I welcome the Minister's clarification of the rephrasing of the Government amendment, which considerably sharpens and focuses the implementation of the principle. I still like my wording but I will not detain the House for it. Is there any way the Minister can indicate the possible timetable of the rolling back? Will there be a built in periodisation? After how long will we have gone back — two years, four years or six years? I appreciate that will vary between different types of record, but when the Bill goes to the other House it would be helpful it were possible to have an indication of the timescales the Minister envisages for major categories of material.

I support Senator Lee's amendment.

On a point of information, what is the interpretation of the phrase "was created more than three years prior to the commencement of the Act" in section 6 (6) (b)?

In response to Senator Sherlock's query, that provision relates to personnel records. A civil servant may look for his or her personnel file and if there is anything on the file which has obstructed his or her promotion, he or she can see the full file, otherwise the files go back three years. This was included at the request of Government Departments for the purposes of managing personnel files created before thought was given to freedom of information. If there was anything on the file which might be inappropriately used, the whole file becomes available.

In response to Senator Lee's query on how quickly we can roll back, the Minister for Finance is the relevant Minister. If I am Minister for Finance in a future Administration it will take place quite quickly, or if I have another portfolio in a future Administration I will put pressure on the Minister for Finance of the day to roll it back quickly. As the Senator understands and as we discussed on Committee Stage, this has been devised in this way because, based on the experience of the introduction of freedom of information in other jurisdictions, the first task faced by public bodies is to get their current and future record keeping systems right as those are the records sought by most inquirers. When that is done, the rolling back process will commence. I hope that it gets moving reasonably fast because that is what has happened in other countries. It is a question of putting filing systems and access in order. The first priority is to look at the present and the future, the second priority is to clean up the past.

Amendment agreed to.
Government amendment No. 9:
In page 12, line 1, to delete "may" and substitute "shall".
This is basically the same as Committee Stage amendment No. 8 tabled by Senator Lee. It will require the Minister for Finance to draw up and publish guidelines for public bodies on giving reasonable assistance to people with a disability in exercising their rights under the Bill.

This is a considerable improvement and the Minister is to be congratulated for introducing the amendment.

I thank the Minister for taking the original amendment on board.

Acting Chairman

We are being very agreeable.

Do not tempt us.

Amendment agreed to.
Government amendment No. 10:
In page 12, to delete lines 6 to 11 and substitute the following:
"(4) The records referred to in subsection (1) are records created after the commencement of this Act and—
(a) records created during such period (if any), or after such time (if any), before the commencement of this Act, and
(b) other records created before such commencement and relating to such particular matters (if any), and
(c) other records created during such period (if any) and relating to such particular matters (if any),
as may be prescribed, after consultation with such Ministers of the Government as the Minister considers appropriate."
Amendment agreed to.
Amendment No. 11 not moved.

Acting Chairman

Amendments Nos. 12, 14 and 19 may be taken together by agreement.

I move amendment No. 12:

In page 13, to delete line 13.

This amendment relates to the necessity to state that the request is made under the Bill. Amendments Nos. 14 and 19 are Government amendments and I am prepared to concede that they are an improvement, particularly amendment No. 14, which goes quite a long way towards dealing with some of the problems we addressed on Committee Stage. The problem was that failure to state that the application was made under the Bill would be grounds for refusal.

Rather than requiring the person to state that they are making the request under the Bill, it should be made part of the application form. It would be better not to have the specification at all, but if it has to be there it should be possible to fulfil the requirement by having it as part of the application form.

The Minister of State referred on Committee Stage to the New Zealand experience in this area and the difficulties which the deletion of the paragraph might pose. I will wait to hear what she has to say before we decide what to do.

I tried to look up some references to the implementation of the New Zealand legislation but I still cannot understand why we need this paragraph. If we were creating a real freedom of information culture it would not be necessary for a citizen to cite the Act. However, the Minister of State has tabled a number of amendments, which we are discussing with this one, which, in a sense, put the onus on the Department to draw to the person's attention that they have a right to access under this Bill. The Information Commissioner should monitor this very closely because if there was a failure to draw citizens' attention to their right under the legislation it should be made an absolute right. However, given that the Minister of State has made some significant changes, the Bill is better in this regard than it was originally.

We will have an opportunity to revisit some of this territory when we debate the administrative procedures legislation which we both have in mind. At that stage, the issues of access and the responsibility of public servants to guide citizens so that can fulfil their rights will be incorporated in that legislation.

In the circumstances, the Minister of State has probably gone as far as she can on this occasion because it is not the done thing for Ministers to capitulate on points. To be fair to the Minister of State and her advisers, she put forward a very spirited defence of the paragraph. I am not sure I am entirely convinced by that defence but it seems to have been based on some interpretation of what was happening in the Antipodes. Perhaps that was because they spend their time hanging on as they live in an upside down part of the world. I am not terribly convinced but, as I said, the Minister of State's amendments have made a big improvement and we are satisfied that we made our point.

I too would prefer if the paragraph were not there. However, I agree that the Minister of State has taken a substantial step towards meeting the concerns expressed. It is much better than it was.

In relation to amendment No. 12, as I said on Committee Stage, we have concerns that deleting the paragraph could remove from citizens the protection of the Freedom of Information Bill if they just made a general request and could debar them from accessing the Information Commissioner. As Senator Roche said, that caused problems in New Zealand.

In amendment No. 14 we are taking on board the spirit of the discussion on Committee Stage. If somebody makes a request for information which would in the normal course be refused as an over the counter request but would be granted under this legislation, there is an obligation on the staff of the public body concerned to inform them of their right to apply for access under this legislation. It is intended to have standard freedom of information request forms. People might not know of the existence of the legislation or might make a mess of their request. In both situations there is an onus on the staff to help people to request access to the maximum possible amount of information.

Amendment No. 19 is essentially the amendment No. 34 which Senator Lee tabled on Committee Stage. Its effect is that public bodies must assist, or offer to assist, a requester to make a request before ruling it out on the grounds that it does not involve due particularity. This also replaces the Committee Stage amendment No. 18 tabled by Senator Roche. We have endeavoured to meet the concerns expressed by Senators on Committee Stage.

The Minister of State has persuaded us to withdraw the amendment.

Amendment, by leave, withdrawn.
Government amendment No. 13:
In page 14, between lines 10 and 11, to insert the following:
"(6) A person shall be deemed to have the knowledge referred to in subsection (3) and (4) if, by the taking of reasonable steps, he or she could obtain that knowledge.".

Senator Lee tabled some amendments on Committee Stage relating to a transfer of a request from one public body to another if it was originally sent to the wrong body. We were concerned that such a provision should not be used as a loophole by public bodies to deny access to the maker of the request. In response to the concerns expressed I have tabled an amendment to section 7 to ensure that reasonable steps are taken by public bodies to obtain knowledge about on whose desk a request should lie. We accept the useful point made by Senator Lee.

Would it be churlish to say "Officials in the Department of Justice, please note"?

Acting Chairman

The Senator will say it anyhow.

The Minister of State's amendment meets the spirit of the original amendment, for which I thank her.

Amendment agreed to.
Government amendment No. 14:
In page 14, between lines 10 and 11, to insert the following:
"(7) Where
(a) a person makes a request for information, or a request for access to a record, to a public body or to a head or a director, or member of the staff, of a public body, other than under and in accordance with this Act, and
(b) it is not or may not be possible to give the information, or make available the record, other than pursuant to a request in relation to it under and in accordance with section 7,
the head shall, if appropriate, cause the person to be informed of the right of access and shall assist, or offer to assist, the person in the preparation of such a request."
Amendment agreed to.

Acting Chairman

Amendments Nos. 15 and 37 are cognate and amendment No. 21 is related. Amendments Nos. 15, 21 and 37 may be taken together by agreement.

Government amendment No. 15:
In page 14, line 19, to delete "in writing" and substitute ", in writing or in such other form as may be determined,".

Amendment No. 15 is a technical amendment to align the wording of this subsection with other sections of the Bill. It allows flexibility for the Minister for Finance to provide notice of decisions in writing or another appropriate form. I have already spoken on amendment No. 4 which requires the Minister to have "appropriate regard to the needs of requesters" in determining the type of form. We referred on the last occasion to electronic transfers of information and so on.

Amendment No. 21 was tabled on Committee Stage by Senator Dardis as amendment No. 37. It amends section 12(1)(b) to allow public bodies provide a transcript in writing of information sought. Amendment No. 37 is a technical amendment to change the position of a comma.

I thank the Minister of State for tabling amendment No. 21. If it were open to the public body to give access to the statement in writing there is a possibility that it may condense and edit the information. A transcript is much better. A deletion from section 2 with regard to copy was agreed on Committee Stage.

I realise the practical difficulty this imposes. We do not want people to receive lorry loads of information and to have the kind of pressure this entails put on the public body. However, it is a significant improvement to have it as a transcript rather than a statement in writing.

Amendment agreed to.
Government amendment No. 16:
In page 14, line 40, after "refusal", to insert "and any provision of this Act pursuant to which the request is refused".

Senator Dardis proposed an amendment on Committee Stage which we have incorporated on Report Stage. It requires that, on refusal, the section of the Act on which the decision is based will be quoted in the decision.

I thank the Minister of State for accepting that.

Amendment agreed to.
Government amendment No. 17:
In page 16, line 34, to delete "or the procedures".

This amendment is similar to amendment No 32 tabled by Senator Lee on Committee Stage.

I thank the Minister of State.

Amendment agreed to.
Government amendment No. 18:
In page 16, line 42, to delete "The" and substitute "A".
Amendment agreed to.
Government amendment No. 19:
In page 16, line 42, to delete "paragraph (c)" and substitute "paragraph (b) or (c)".
Amendment agreed to.
Government amendment No. 20:
In page 18, line 1, to delete "public body" and substitute "head".
Amendment agreed to.
Government amendment No. 21:
In page 18, line 4, to delete "statement in writing" and substitute "transcript".
Amendment agreed to.

Acting Chairman

Amendments Nos. 23, 24 and 25 are related to amendment No. 22 and all may be discussed together. Is that agreed? Agreed.

Government amendment No. 22:
In page 23, line 10, after "section", to insert "and, if the book relates to a local authority or a health board, a copy of it shall be given to each member of the authority of board".

This related to an amendment by Senator Dardis which I accepted on board on Committee Stage. The parliamentary draftsman has produced his preferred form of wording to bring the amendment into line with the wording of the rest of the Bill.

Having had a victory on Committee Stage and having had three words inserted into the Bill, I now find they are removed. However, I accept that the Minister of State has attended to the spirit of my amendment.

I welcome the amendment because it gives increased statutory recognition to the elected members of councils and health boards.

I also welcome the amendment because it is important that members of local authorities and health boards are given the full information they require to carry out their duties. The amendment covers this.

Amendment agreed to.
Government amendment No. 23:
In page 23, to delete lines 11 to 13.
Amendment agreed to.
Government amendment No. 24:
In page 24, line 22, after "section", to insert "and if the publication relates to a local authority or a health board, a copy of it shall be given to each member of the authority or board".
Amendment agreed to.
Government amendment No. 25:
In page 24, to delete lines 26 to 28.

Acting Chairman

Is the amendment agreed?


Amendment agreed to.

Acting Chairman

Amendment Nos. 26 and 27 are related, amendment No. 28 is consequential on amendment No. 26 and all may be discussed together. Is that agreed? Agreed.

I move amendment No. 26:

In page 28, to delete lines 15 to 20 and substitute the following:

"(a) if the record relates to proposals, drafts, opinions, and other similar preparatory working papers, explanatory notes or reports which the public institution itself prepares for purely internal use in its preliminary or preparatory work on a case or policy and where publication of the document in isolation may mislead or provide an inaccurate view of the matter contained therein."

The section I propose to be substituted for the existing section aims to ensure that with regard to preliminary drafts and texts which circulate of necessity among and within Government Departments, and which can give a misleading view if they are taken in isolation, it should be possible to exclude information which would, in itself and if given in isolation, cause confusion and be misleading.

There are similar provisions in other freedom of information legislation. The attempt in those cases, and in the wording attempted to be inserted into the Bill by this amendment, is to prevent the publication of material which would in itself, because of its partial nature, have a contrary effect. Far from giving freedom of information, it would allow for confusion. The amendment would have a similar effect to that proposed in the original draft, but it is more specific in terms of the exclusion.

I second the amendment.

The amendment seeks to protect documents of a public body with regard to drafts or preliminary documents provided two conditions are satisfied: that they are for internal preparatory use on case or policy work and publication could mislead or give an inaccurate view. The spirit and intent of the amendment is close to the Government's amendments No. 27 and 28, which are concerned with changes to a specific section. Both seek a level of protection for deliberation of public bodies at preparatory stage in case work or policy making.

However, this amendment could have unintentional side effects. These were illustrated with regard to access to information on environmental regulations, and situations reported to the Office of the Ombudsman in 1995 in connection with difficulties encountered by people seeking documents on which no work had been done for ten or 15 years and which the local authority concerned said were incomplete. Since no definition or description is provided with regard to what constitutes preliminary or preparatory work, a hostile public body could seek to hide material behind this wording. Many public bodies could argue that virtually everything fell within that category, which is not the intention of the amendment. However, we must be careful in the wording of these provisions.

The option of refusing such information on the grounds that publication could mislead or give an inaccurate view is similarly uncertain and it could be open to misuse in the hands of the kind of local authorities described by Senator Roche and who are intrinsically not in favour of giving information to the public.

I would be concerned that the amendment could indefinitely protect preliminary documents. Such protection would be open ended and not time bound. I am sure that as a historian, Senator Lee would be upset if he could not ever access this kind of information.

By contrast, the Government's amendments essentially require the publication of all such documents once a decision has been taken. They do not permit the withholding of documents because they are or were drafts or because they might mislead; they permit withholding only where damage to the public interest is certain to arise.

The point was well made by Senators, especially Senators Dardis and Lee, that the existing wording of section 20 lacks clarity. The rewording of it proposed by amendments Nos. 27 and 28 makes it sharper and makes the intent clearer. The essential purpose of the section is to protect the deliberations of public bodies where disclosure might lead to premature knowledge of a pending decision of importance. There may otherwise be exceptional circumstances where such information should be protected in the public interest. In such cases the public body is required to demonstrate the virtue of certainty that damage to the public interest would arise.

Senator Lee made the point on Committee Stage that much material could be blocked under this provision and that volumes could be sent to the Information Commissioner, clogging up the system further up the line. However, that has not been the experience of freedom of information mechanisms abroad where the appeals system has a mandate to work informally and flexibly. The appeals system in Ireland will have that mandate under section 37(5), section 34(3) and sections 36 and 39 and will work well and in the interest of requesters. It will narrow the focus of what can be protected and the timeliness of when material is released rather than protect information of a particular nature indefinitely, which may be the unintentional effect of Senator Roche's amendment.

The Minister put her finger on the matter. This issue was discussed on Committee Stage when we debated what was meant by documents relating to the deliberative process, which is itself indistinct. The purpose of the amendment is to try to contain that further. When I drafted my amendment I was not aware of the Minister's amendments and she is accurate. The spirit of my intention is probably more correctly captured in her amendments. She has, after all, had a belly full of the parliamentary draftsman. I will not press my amendment because I am happy the spirit of the matter is more properly captured in the Minister's amendments, which I support.

Amendment, by leave, withdrawn.
Government amendment No. 27:
In page 28, to delete line 22 and substitute the following:
"head, be contrary to the public interest,
and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.".
Amendment agreed to.
Government amendment No. 28:
In page 28, to delete lines 41 to 45, and in page 29, to delete lines 1 to 4.
Amendment agreed to.
Government amendment No. 29:
In page 34, to delete lines 4 to 10, and substitute the following:
"(6) Upon the issue of a certificate, the Minister of the Government concerned shall cause—
(a) a copy of the certificate to be furnished forthwith to the requester concerned, and
(b) a copy of the certificate and a statement in writing of the reasons why the record to which it relates is an exempt record and of the matter by reference to which the Minister of the Government is satisfied that subsection (1)(a)(ii) applies to the record to be furnished forthwith to the Taoiseach and such other Ministers of the Government as may be prescribed.".

This is a technical amendment to align the provisions of subsection (6) with section 25(1). The purpose of the amendment is to ensure, where a certificate is to be issued, that a Minister provides the Taoiseach and other Ministers who are part of the preliminary review process with details of the reason the record concerned is of such seriousness or sensitivity that it justifies the issue of a certificate. It narrows the focus and scope of where ministerial certificates can be issued.

Ministers will be very reluctant to issue certificates. There is a similar provision in the Ombudsman Act and although it is included, nobody would dare to do it because it would bring the sky, the moon and the stars down round their ears. I presume the certification process will also be a matter of public record.

Amendment agreed to.
Government amendment No. 30:
In page 35, lines 11 and 12 to delete "to refuse to grant, or".

This is a technical amendment.

Amendment agreed to.

Acting Chairman

Amendments Nos. 31 and 32 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 31:
In page 36, line 26, to delete "may" and substitute "shall".

This amendment substitutes the word "may" with the word "shall". It strengthens the protection in relation to personal privacy and the privacy of records to ensure that public bodies do not lightly breach that privacy unless the public interest requires it. They shall not release private personal information or private confidential financial information unless the public interest requires it. The purpose of the amendments is to guard against the inadvertent or loose release of material which should properly be private and to guarantee the privacy of the individual.

I agree with the amendment. I ask the Chair to allow me some latitude because, unfortunately, I must leave. Senator Honan will take the Bill from now until it concludes. I wish to thank the Minister for her handling of the Bill and for taking amendments on board. I also thank her officials for listening to Members' comments and drafting good amendments which took those views into account.

Amendment agreed to.
Government amendment No. 32:
In page 37, line 14, to delete "may" and substitute "shall".
Amendment agreed to.
Government amendment No. 33:
In page 42, line 1, to delete "committee of Dáil Éireann" and substitute "joint committee of both Houses of the Oireachtas".

We have probably all arrived at the same point and it may be that my amendments have been taken on board in the Minister's amendments. Both Houses of the Oireachtas, particularly the Seanad, have a genuine interest in this matter. I hope to serve in a different House next time round, but one never knows and one wants to keep all one's options open in this uncertain world. The Minister has accepted my basic point that there is a tremendous interest in freedom of information in the Seanad. There are real, beneficial and pragmatic reasons both Houses should be involved in the future work through a joint committee.

The purpose of the amendment is to ensure that we can draw people with talent from both Houses who are genuinely committed and interested in freedom of information. Some people serving in the Upper House may never be mad enough to seek a position in the Lower House and it would be sad if they could not put themselves forward. That would have been the position under the original legislation. Everybody would be better served if both Houses of the Oireachtas were involved on the committee and the Minister is of a similar view.

Provision is made in the section for reviews from time to time of the operation of any enactments and it appears reasonable and logical that both Houses of the Oireachtas should be involved.

Amendment agreed to.
Government amendment No. 34:
In page 42, line 2, to delete "Dáil Éireann" and substitute "both such Houses".
Amendment agreed to.
Government amendment No. 35:
In page 42, line 15, to delete "Dáil Éireann" and substitute "each such House".

We should record that this is one of those happy occasions when the Government and the chief Opposition party are ad idem.

Amendment agreed to.

I move amendment No. 36:

In page 43, between lines 11 and 12, to insert the following:

"(4) Prior to a resolution pursuant to subsection (3) being moved in either House of the Oireachtas the matter of the resolution shall be the subject of a Consultation Conference between the leaders of the political parties in Dáil Éireann. The consultation process shall take place not less than 7 days before the resolution is moved in either House."

During the Committee Stage debate I had difficulty trying to formulate a way in which there could be some form of consensus with regard to the ultimate appointment of an Information Commissioner. It will not arise initially because the Ombudsman will be the commissioner. However, ultimately, we are putting together legislation for the future. I can foresee a circumstance in the years ahead where there will be an Ombudsman with a wider remit than the current Ombudsman and a separate office of an Information Commissioner filled by a separate personality. This is a good idea.

During the debate on the legislation relating to the Ombudsman there was a view that there should be political consensus, or as much political consensus as possible, with regard to the nominee. It should be above partisan politics and it would be unfortunate if there was a vote and arguments for and against an individual going forward for that office. Those views also apply to this legislation; there is a deficiency in the Ombudsman legislation because no process is included in the Act for consultation with the major political leaders of the State. It is a good idea to include a specific provision in this Bill for a consultation conference between the leaders of the main political parties to ensure there are no unseemly arguments in either House where force majeure will push through a nomination for the Office of the Ombudsman or the office of Information Commissioner.

It was accepted previously on an informal basis that there would be a consultation process. However, I do not agree there should be secret agreements about informal consultation processes. That is not good and we should include in legislation the matters we want put into effect. In this case we should try to create a procedure where there would be as little partisan political or public acrimony as possible about the appointment of a high level public official.

I tabled this amendment because a formal process of consultation is desirable. I specified a period of seven days because I am aware that in the case of the appointment of the Ombudsman the telephone call was made within hours of the press release being made. That is not proper consultation process and leads to unnecessary friction.

We have been lucky with the two holders of the office of Ombudsman and I am sure we will be equally lucky with the holders of the office of Information Commissioner. However, such high level appointments should not be perceived to be in any way tainted by partisanship. This amendment seeks to achieve a process which would allow a nomination that would receive unanimous support in the Oireachtas. It is hard to capture that idea in words but I have done so in this amendment.

I second the amendment. The fact that the first two Ombudsmen have emerged so satisfactorily from a process does not mean that process will always work well. Anything which enhances the public profile of the Ombudsman and the Information Commissioner and draws attention to the roles of those offices is worthwhile. Spreading information and understanding about those offices is a public good in itself. This would be a way of attracting media attention which would help to spread understanding of the functions of the offices. It is not the only way that could be done but it would add an extra dimension to the public perception of the significance of those offices. Their potential significance cannot be exaggerated if full use is made of the legislation.

I appreciate the points made by the Senators about the importance of ensuring that these offices are seen to be above party politics. That is why we have provided in the Bill for a vote in both Houses of the Oireachtas and that appointment will be made by the President. This will afford a status to the office.

As Senator Roche has acknowledged, this issue applies to other constitutional officers such as the Ombudsman and the Comptroller and Auditor General. It may not be appropriate to deal with the matter in a prescriptive way in one Bill for one office. Perhaps each House would consider amending its Standing Orders to provide a flexible mechanism to deal with consultation. Senator Roche refers to a seven day period; I appreciate that it is important to give Opposition parties time to consider nominations. However, it could be damaging to individuals if their names were bandied about in public and they proved unacceptable to a minority.

We should reflect carefully on how a process of consultation might take place and how it might be adapted in the light of experience. While accepting the intention of the amendment to copperfasten the independence of the offices concerned, it may be more appropriate to pursue the matter through amendments to the Standing Orders of each House of the Oireachtas.

I do not believe this is appropriate to the Houses' Standing Orders. There are deficiencies in a number of Acts dealing with the appointment of people to high offices. I accept there might be a little difficulty if the names of candidates were bandied about. However, it would be no harm if the merits of the individuals could be discussed. These people will be appointed to fulfil important public responsibilities. They will operate as an adjunct to the overseeing function of the Houses of the Oireachtas. It is a pity the Ombudsman Acts do not include a statement that the office itself is attached to the Oireachtas and effectively fulfils a responsibility of the Oireachtas to oversee the Executive.

I would have no concern about public debates on the merits or demerits of people gong forward for high public office. It would be healthy and would have the additional benefit of creating more public interest in the office. This may not be the perfect approach but we need to incorporate in this and in other legislation a procedure to try to create a sense of political consensus about the possible candidates. I cannot believe that there would not have been political consensus on the appointment of the two Ombudsmen. However, it would be better to include a requirement in the legislation.

Amendment put and declared lost.
Government amendment No. 37:
In page 47, lines 10 and 11, to delete "in writing, or such other form as may be determined" and substitute ",in writing or such other form as may be determined,".
Amendment agreed to.
Government amendment No. 38:
In page 47, to delete lines 14 to 21.

The purpose of this amendment is to ensure there is no unnecessary duplication between the provisions of section 35(1)(b) and 35(2) which empower the commissioner to request details of particular matters considered by a public body in relation to the public interest. It is a technical amendment.

Amendment agreed to.
Amendment No. 39 not moved.

Acting Chairman

Amendments Nos. 39a, 40, 41 and 42 are related; amendment No. 43 is consequential on amendment No. 39a and all may be taken together. Is that agreed? Agreed.

Government amendment No. 39a:

In page 47, to delete lines 25 to 31 and substitute the following:

"under review and may, subject to subsection (2), carry out an investigation at any time into the practices and procedures adopted by public bodies generally or any particular public body or public bodies for the purposes of compliance with—

(a) the provisions of this Act generally,

(b) any particular provisions of this Act.

(2) The Commissioner shall carry out an investigation under subsection (1)(a) in relation to public bodies generally not later than 3 years after the commencement of this Act.".

The main purpose of amendments Nos. 39a, 40 and 41 is to require the commissioner to undertake a general review of the operation of the Act within three years of commencement. This follows a request to that effect made by Senator Lee on Committee Stage. It may seem unusual that such a simple request gave rise to this number of amendments. Amendment No. 42 is a technical amendment clarifying that any report by the commissioner under section 36 should be appended to his or her annual report which is published under section 40. Amendment No. 43 is a technical amendment which requires that information received by the commissioner for Ministers in relation to their usage for certificates under section 25 must be attached to his or her annual report.

I thank the Minister of State for agreeing to whatever it is she has agreed to that I proposed.

Amendment agreed to.
Government amendment No. 40:
In page 47, between lines 31 and 32, to insert the following:
"(3) The Commissioner may at any time carry out an investigation into the practices and procedures adopted by public bodies or any particular public body or public bodies for the purposes of enabling persons to exercise the rights conferred by this Act and facilitating such exercise.".
Amendment agreed to.
Amendment No. 41 not moved.
Government amendment No. 41a:
In page 47, line 35, after "subsection (1)" to insert "(2) or (3)".
Amendment agreed to.
Government amendment No. 42:
In page 47, line 41, to delete "section 40" and substitute "section 40 (1)".
Amendment agreed to.
Government amendment No. 43:
In page 49, to delete lines 14 to 17, and substitute the following:
"which this section comes into operation—
(a) prepare a report in relation to his or her activities under this Act in the previous year, and
(b) append to the report a copy of any report furnished to him or her under section 25 (11),
(c) cause copies of the report and of any copy referred to in paragraph (b) to be laid before each House of the Oireachtas.".
Amendment agreed to.

I move amendment No. 44:

In page 53, line 16, after "courts" where it secondly occurs, to insert the following:

"or a record concerning the elapse of time in bringing a case to the Courts".

On Second Stage I referred to problems I have with the way our courts operate. Obviously, I was not referring to the way the judges themselves reach their judgments — that is not a matter which the Houses of the Oireachtas or a Member thereof should be second guessing. There is an extraordinary amount of damage being done to individuals in our courts because of the archaic way in which the courts are operated. I think it is appropriate that records concerning the elapse of time in bringing a case to the courts should be accessible. It seems to me, having looked at several cases—I am not going to make specific reference to any individual case currently before the courts — that judges and those who administer the courts seem to be absolutely careless of the fact that a court case which drags on for a number of years wears and grinds down the individual concerned and exhausts their energy. A long and drawn out case also drains their physical and financial resources and at the end of the day, even if the judgment is in their favour, the judgment has been destroyed because of the elapse of time.

We have a situation currently in Ireland where we have a whole series of judges being removed from their judicial responsibilities to serve on tribunals. These judges are very good people. While it is good that they are giving their time to these tribunals, we have to be aware that sometimes where a judge leaves a case half way through, it can result in that case just lying idle for years. The effect of that on a private individual is horrific. It may be that the greater public good is being served by judges who are dealing with a tribunal as opposed to completing a case which is before them. However, it strikes me that the public good should also take into account the impact that these delays have on individuals.

I am not suggesting for a moment that we have the constitutional right to try to second guess the courts in any of their judicial functions but there are extraordinary, barbarous and intolerable delays in our judicial system. An individual should be able to question delays in the system. The information relating to those delays should be accessible to the public. As it stands it is not. I am sure that the Minister has some cogent reason why this amendment cannot be accepted; she knows that my concerns are very real and I think many Members of both Houses share these concerns. What I am looking for is access to information, similar to what we are looking for in other areas of public policy, to apply also within the court system. It may be that we have created such complexities in law and have become such a litigious State that delays in court cases are inevitable. There is an old adage that "justice delayed is justice denied" and I am fearful that the complications in our current system are creating a great deal of denial of justice.

The Minister has gone a long way to dealing with my personal concerns. She has encompassed in the Act some of the bodies that hover around the edges of justice — for example, the Law Society and the Bar Council, in so far as they fulfil any statutory functions which we have given to them under Acts of the Oireachtas. Something needs to be done to open the courts and to make them more responsive to the citizens and to make it clear, if there are delays, why these have occurred. We need to have access to records relating to the way the courts do their business. There is one compelling reason why this should be the case and it is that we currently have no analysis of the delays that occur. There may be a case which goes on for years — I am thinking of a specific case — because powerful authorities will not bother to put together their defences. They will seek further delays while they put together response on various points and they use archaic language to create delays which are unacceptable. Members of the legal profession play this game extremely well. I suggest to the Minister or to any Member of the House that if you want to see the abuse in this regard, you can look at any case which is taken by a private citizen against a solicitor, against the Bar Council or against the Law Society. Extraordinary delays occur before the matters reach a conclusion. This problem does not affect the majority of citizens, but it does affect a small minority and I think it is tragic there is no control over this. The reason I suggest that we should have access to records concerning the elapse of time in bringing cases before the courts is that if we were more aware of what was happening in the courts, I think we would be less tolerant of what is intolerable, injustice.

I second the amendment.

I would like some more information. The Freedom of Information Bill is very welcome. The amendment says "or a record concerning the elapse of time in bringing a case to the Courts". You will be appointing a commissioner under this legislation. Are you saying in this amendment that the same commissioner should be asked by anybody in this State to investigate a reason for delay in bringing a case before the courts. Is that is what is envisaged on this amendment?

Specifically, what I am trying to do is to get at delays which occur within the court. Obviously, on both sides of the case, the plaintiff and the defence will play their own little games. Delays are actually occurring within the courts because of the way the courts themselves order cases, because of the burden of additional duties and responsibilities which are sometimes visited on judges. It is a delay within the court system which I am trying to address, not the delays between plaintiff and defence. For example, where a defence is delaying proceedings, the judge can intervene.

I have given Senator Roche some leeway. Technically, he is only entitled to speak on the amendment.

Of course, I was only trying to be helpful.

We have discussed this issue previously on Committee Stage. The initial advice we have received is that the section, as drafted, which refers to allowing people to look at records concerning general administration of the courts or the offices of the courts, is sufficiently broad to cover the point made by Senator Roche. I appreciate his comments and I think we would all share his concerns. However, we are bound by the constitutional constraints under Article 35 (2) — the constitutional independence of judges — and we need to be very careful about how we word anything in this area. I will seek further legal advice on the provision and if it is necessary to make any changes, if the interpretation we have received on initial advice does not cover the point, and if it is constitutionally possible to make a change, I will report back to Members after the Bill has gone to the Dáil.

Amendment, by leave, withdrawn.

I move amendment No. 45:

In page 54, 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".

I second the amendment. I am disappointed that a Government amendment was not tabled to take on board the spirit of the amendment put down by Senator Dardis and me.

This section of the Bill, which is concerned with fees and costs, was not adequately discussed on Committee Stage because we were nearing the end of the debate. It is very important, because if the costs are pitched in such a way as to be prohibitive, poorer people in the community who might benefit most from the effective implementation of the Bill may be discouraged. They may also be discouraged because of lack of familiarity with official processes and procedures and a lack of information on the functions of the Bill, but they will be further discouraged if the costs involved are not made clear.

I am aware that there are provisions to waive fees and take circumstances into account, but these must be tightened considerably. For example, section 47(7) states that where, in the opinion of the head concerned, the estimated cost, as determined by the head is likely to exceed £40, a deposit must be paid. That may be reasonable in certain cases but there may be people who believe that such a payment is prohibitive. Section 47(2)(b) states:

Subject to the provisions of this section the amount of a fee shall be equal to the—

(b) the estimated cost of any copy of the record made by the public body concerned for the requester concerned,

as requested by the head concerned.

On Committee Stage, Senator Gallagher stated that photocopies made by Cavan County Council cost £1 per page. Who decides the estimated cost of a record? Is it done at the whim and pleasure of county council officials or are there standard charges? How does the Minister anticipate this provision will operate? In that context, if there are officials who will not be wildly enthusiastic about this legislation, will they discover ways to be unhelpful?

I am sure that the phraseology used in the amendment can be improved but it attempts to take cognisance of the variables that may arise in this matter. The section is very important and has not been adequately discussed. I hope the Minister will take appropriate account of the points I raised.

I support the amendment. I agree that this section was not adequately discussed on Committee Stage. A Senator on the other side of the House made the point that a local or public authority could impose additional overheads on to the cost involved and justify them in accountancy terms, but not within those of the Bill. If a person was informed that it could cost between £100 and £150 to obtain information, they might be scared off and might not be willing to invest their money in that way. In so far as possible, information should be free.

On Committee Stage, I made the point that fees should only be charged in respect of the direct costs and not indirect costs, such as administrative overheads, which would push the cost above £1 per page. The fee should be limited to the direct cost involved in producing a record. There should be an absolute freedom for the commissioner to state that no fee or cost should be charged in the circumstances of an individual case. In general, a citizen attempting to support an argument or case they are making should not be obliged to pay. Public officials who have access to information, which belongs to the citizens of the State, are using it to vindicate their viewpoint and there should not be a charge on individuals who are trying to respond to the arguments put forward.

I have no difficulty with charging a reasonable fee which relates to and is calculated on the basis of direct costs to people such as myself, who are involved in research, or journalists. Senator Lee made the point that a rigid formula is required to provide that the cost of the fee cannot be used as a means to defeat the purpose of the Bill or discourage people from seeking access to information. At the very maximum, the fee involved should be reasonable and relate to the direct cost and should not take account of overheads or administrative considerations. The widest discretion possible should be given to waive the fee.

I agree with the sentiments expressed by other Members. Everyone wants to ensure that people would not be denied information because they did not have adequate money to obtain it, particularly if a large volume was required which would cost a great deal. However, I am not sure that the wording in the amendment is precise enough to achieve what is required. A subjective value judgment is needed to decide what is a reasonable fee, particularly in respect of the financial and other relevant circumstances of the requester.

As Senator Lee stated, there are various riders to the point about fees. For example, these can be waived or reduced if the issue is of national importance. However, I agree with what the proposers of the amendment are trying to achieve. I do not know whether it will be possible to reconsider the matter before the Bill returns to the Dáil to see if a wording can be found to take account of the intention behind the amendment. However, I am not sure whether the wording of the amendment will achieve the desired effect.

There are many subsections in section 47. For example subsection (2) states:

Subject to the provisions of this section the amount of a fee shall be equal to—

(a) the estimated cost of the search for and retrieval of the record concerned, and

(b) the estimated cost of any copy of the record made by the public body concerned for the requester concerned,

as determined by the head concerned.

That provision is too flexible. I am not sure but I believe criteria are laid down by the courts regarding requests for information. Perhaps these could be used to tie down the provision which, as it stands, does not seem to be acceptable.

I acknowledge that we sped through the debate on this section on Committee Stage and did not discuss it in detail. It is an important section and the intention lies very much on the lines of the amendment tabled by Senators Dardis and Lee. For example, charges may be waived in respect of personal information where, having regard to the means of the requester, such charges would not be reasonable. In cases where such information is being sought, fees are normally charged in respect of photocopying only. For example, it is not reasonable for a person to pay such a fee to see their old age pension file.

There is an important constraint in subsection (6) which stipulates that a fee shall not be charged where the cost of collecting and accounting for the fee would exceed the amount of the fee. It is intended that fees will only arise in respect of photocopying or limited searches. However, if a large volume of material or material that is difficult to find in a well organised office is being sought, the customer should pay because their request would disrupt the daily business of that office. This is not the case if the information is in the public interest or is required for some other good reason. In general, it is not envisaged that anything other than photocopying fees should be charged. The Minister for Finance will issue guidelines regarding what is a reasonable hourly charge.

This section is designed as a fail safe provision in the event that a person might seek a truckload of material or information that would cause major disruption to the work of the public body concerned. It is not envisaged that fees over and above those for photocopying will apply in the generality of cases. Fees can also be waived where the information required would be of particular assistance to the understanding of an issue of national importance. The fees are subject to an appeal to the Information Commissioner who has a general review function in respect of the Bill.

The question of guiding instructions was raised. These instructions are set out in the long title to the Bill, which states that the purpose of the Bill is to promote information to the maximum possible extent consistent with the public interest and the right to personal privacy. They are the instructions given to heads of Departments and the Information Commissioner in determining how this will work.

No charges will apply in relation to location of records in respect of personal information except where there is a huge number of records involved. We came across a situation in Australia where an individual was trying to avoid paying a tax bill so he sent in a huge number of freedom of information requests, hoping the date would pass and that he would enjoy an amnesty. That is a precautionary tale about the disruptive search for personal records but generally there will be photocopying only for personal records.

In the case of non-personal information, if someone is making a lot of money out of their requests or if the search requires a public official to put a day aside for it, a charge would be reasonable. However, the fee section states that one can only be charged, first, as prescribed by the Minister for Finance and, second, if the records are in order, one cannot be charged for the time taken to find inefficiently filed records. Those are the protections in place.

There was much thought on devising the charging regime and it is not meant to be punitive. The Bill is to free up information, not to make it difficult for people to get it, but there must be safeguards against abuse of access. In most cases it is reasonable that people be charged for photocopying. We were guided by what has actually happened. There was a case of people looking for information on the environment called Earthwatch. In one case they wanted photocopies of eight volumes of planning material. It takes a lot of time for a staff member to stand over a photocopier and copy such material. Arising out of that it might be reasonable to give the information on a computer disk or via the Internet. These provisions are there to ensure this measure works smoothly.

I acknowledge the points. We will examine this before bringing the Bill to the Dáil. The intention is to make this legislation user friendly in the interests of the person making the request but also in the interests of good administration. Freedom of information must go with the grain of how public bodies do their day-to-day job and giving information must be built into the way public officials work. If there is tension between doing the day-to-day job and providing information, it will be difficult to practise freedom of information. It is important to devise systems that ensure that the provision of information goes with the grain of how public business is done. I recognise the concerns of Senators and they are substantially addressed in the provisions as they stand. One can appeal if charges are unreasonable but if there are further amendments or adjustments to be done, we will consider them in the Dáil, and they will be reported back to the Seanad.

I accept what the Minister of State says on building in safeguards. If people have problems and appeal, they can get trapped in the Byzantine minutiae and it becomes another discouragement. Since this should be kept as simple and clear as possible, the guidelines will be very important. Those guidelines will become the criteria.

I referred facetiously to amendment No. 39 and thanked the Minister of State for it but it could be made explicitly part of the commissioner's review of the financial aspects. The Minister of State might consider that.

The Minister of State referred to staff time spent photocopying volumes. Why can the applicant not be given the material, shown the photocopier and told to do it? It need not then impinge to that extent on valuable staff time. There are ways of achieving the the Minister of State's objective which we all share.

Amendment, by leave, withdrawn.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Seanad for a very good debate on Committee and Report Stages. We have teased out the Bill in great detail and made significant improvements through agreement on all sides. It shows the value of an Upper Chamber which, in a very reflective and co-operative mood, can attend to legislation. I am pleased at the non-partisan and constructive debate. With that kind of support across the House, we can show the public and the public service that there is a strong wish for freedom of information and a strong will in this democracy to open the books. That opening should be interpreted in the most generous way possible.

I thank the Minister of State for being so generous in accepting so many amendments. We have reached an extraordinary point in the history of the State because secrecy has been the hallmark of public administration since April Fools' Day, 1922, when the Irish Civil Service officially came into operation. Secrecy has been one of the biggest disservices to public administration in this State because we have a fine public administration that operates to the highest standards. That administration will gain most from freedom of information. It will show citizens the quality of thinking, service and work behind the closed doors of our public service bodies. I am grateful to the Minister of State for accepting a number of amendments, particularly in extending freedom of information to certain agencies which fulfil statutory functions. That will have a tremendous impact, not least on the way those agencies interface with members of the public who come into contact with them.

I am pleased the Minister of State has reduced the time delay in bringing in health boards and local authorities because that is very important. The Bill is rather more complex than such a Bill should be. Ease of comprehension should be the first thing one finds in a Freedom of Information Bill and, though I have struggled through it, there are still some incomprehensible parts. Hopefully, when the Bill becomes an Act and freedom of information becomes a reality, we will have a short, concise, well written, user friendly guide that will be available to every citizen.

The Ombudsman's office should have a budget that will enable it to inform the public of the existence of this Bill and should also have sufficient staff to take the message of freedom of information around the country. I hope this issue is discussed in every council chamber and health board and that public meetings are held so that the people and those who represent the people are fully aware of the impact of this Bill.

This Bill is good legislation. If nothing else were done in the past couple of years in this House, the fact we have finally pushed through the Freedom of Information Bill will be a fine monument not just to the Minister but to Seanad Éireann. Since the time when Deputy Eoin Ryan was a Senator, this House has striven in a non-partisan way to achieve freedom of information, which we have achieved tonight.

I hope the Bill has a speedy passage through Dáil Éireann and that the debate will be as well informed as it has been here. I hope it will not be partisan as that would defeat our aim to open up all the secret files to the people and to show them they are not full of horrors, but that what is being done in their name and on their behalf is good.

Ba mhaith liom mo bhuíochas a ghabháil don Aire as ucht glacadh leis an méid sin leasuithe. I thank the Minister for responding so constructively to our comments. She said the debate was non-partisan, which is true. This was partly due to the personalities of the Senators who participated and to the Minister's personality and her willingness to enter into the spirit of constructive co-operative debate. I also extend that to the officials behind her. I hope that someday, when freedom of information fully reigns, we will know the identities of the officials because the invisible barrier between politicians and officials seems to have reached a point where it is becoming counterproductive for legislation. This has been a co-operative endeavour between the Civil Service, the Minister and this House. I echo Senator Roche's conclusion that the public service will be a major beneficiary from this legislation and that it will enhance its reputation in the eyes of the public.

Although it was my colleague, Senator Dardis, who did the work on this Bill, I, on behalf of the Progressive Democrats, welcome its passage through the House and congratulate the Minister for her co-operation. It is a reasonable attempt to erode the culture of secrecy which has existed for so long. I hope the legislation will ensure that those who do not want to release information will be compelled to do so, which is the Minister's intention. As Senator Roche said, I hope it has a speedy passage through the other House.

This is important legislation which covers all public bodies. I thought I was the only one who had problems getting information until I heard other Members complaining on Committee Stage. This Bill will be seen as another big step on the road to implementing the Government's policy of openness and transparency. The provision of guidelines is important and the sooner this legislation is implemented the better.

I join with my colleagues in congratulating the Minister, whom my party was pleased to support. This Bill is a watershed for the public service. The level of secrecy which dominated the Civil Service was reduced in recent years but not eliminated. As I said on Second Stage, it is not so long ago that the Government Information Service ensured that people knew nothing and that secrecy rather than freedom of information prevailed. We have moved a little, but not far enough since then. This Bill is a watershed which will move us into another era and serve the public service well.

I join with other Senators in expressing satisfaction at being able to participate in the debate on this significant legislation. It has been a positive debate due to the contributions of the three Senators on the other side of the House. I congratulate the Minister, her staff and her draftspersons for accommodating many of our concerns. When the Bill is passed in both Houses, it will be important to make as much information as possible available to the public because this legislation will only be as good as its use by the public. It is important that people know their rights under this legislation. I thank the Minister for taking on board my concerns and those of Senator Gallagher and others in relation to bringing the health boards and the local authorities in more quickly than was originally envisaged. I welcome the fact they will be brought in within 18 months of the passing of this legislation.

Question put and agreed to.

An Leas-Chathaoirleach

When is it proposed to sit again?

At 10.30 tomorrow morning.