On the restriction of the Freedom of Information Act as it would apply to a record relating to the examination or investigation carried out under this Act, why is the exemption so all-embracing?
Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Bill, 1998: Committee and Remaining Stages.
The Comptroller and Auditor General is already exempt from the Freedom of Information Act because of the necessary confidentiality of the information. In this investigation the Comptroller and Auditor General will receive the information under compulsion. The exemption provided for under section 22 is necessary to ensure that progress in the inquiry is not inhibited by fear of disclosure to which the full application of the Freedom of Information Act might give rise. This is a belt and braces provision. The Comptroller and Auditor General is probably covered under the Freedom of Information Act. However, we included this specific provision because of the novel role being given to him.
I do not understand.
The activities of the Comptroller and Auditor General are exempt under the Freedom of Information Act. This section ensures that the investigations in this regard are exempt also under the Freedom of Information Act because of the role of the Comptroller and Auditor General vis-a-vis private institutions. Information gathered by the Comptroller and Auditor General is exempt as of now under the Freedom of Information Act. This will ensure that people will co-operate fully with him in his investigations.
I am at a disadvantage because I did not realise that the Comptroller and Auditor General is entirely exempt. The section as written appears to suggest that a record created before the commencement of the examination or investigation, or a record relating to the general administration of the office of the Comptroller, is not exempted under the Freedom of Information Act. I have no problem about the issue the Minister raises. Of course, sensitive information should not be disclosed. The principle of freedom of information is not to allow people to pry into other people's private affairs or to pry into matters that deserve to be kept secret. It is to make sure nothing is kept secret simply because it is more convenient to keep it secret, because it might be politically embarrassing or might enable people to conceal mistakes and so on. I am not concerned about the specific exemptions from the Freedom of Information Act because they are reasonable but I am concerned that there is a blanket exemption under this provision and nothing can be done about it. That is too generous to everybody.
Section 22 provides that the Freedom of Information Act will not apply to the Comptroller and Auditor General for the purpose of the investigation provided for in the Bill. This exemption does not apply to a record created before the commencement of the examination or investigation or to a record relating to the general administration of the Comptroller and Auditor General's office. This is in line with the position of the Comptroller and Auditor General under the Freedom of Information Act. The general administration of his office comes within the scope of the Act while constitutional functions are excluded. After the investigation commences there might be sensitive or confidential records in the general administration of the Comptroller and Auditor General's office which could be accessed by requests under the Freedom of Information Act. The exclusion is to prevent this happening.
At present, the Comptroller and Auditor General in the exercise of his constitutional functions is not covered by the Freedom of Information Act but the general administration of his office, like any other Department, is accessible under the Act. The purpose of section 22 is to ensure that any confidential records which might be in the general administration of the Comptroller and Auditor General's office would also be exempt during the lifetime of these investigations.
That is the point I wished to make. I accept that many of the records in the office of the Comptroller and Auditor General should not be covered by the Freedom of Information Act. That is reasonable. However, just because there is a fear that something might slip into the general administration area, even though in that area sensible exemptions apply to commercially sensitive material, personal records and so forth, there is an unfortunate tendency to use a general exemption. That has a sledgehammer effect.
If that argument were to be carried to its conclusion there would be no freedom of information legislation. Sometimes items such as correspondence between the Minister for Foreign Affairs and the Secretary General of his Department are released to the public because of the Freedom of Information Act. The logic of the Minister's argument leads to the conclusion that the Act should be repealed even though nobody wishes to do that. As a matter of policy a general exemption is a bad idea. Reference should be made to specific records and exemptions and when the exemptions should apply to specific records.
One can also look at this another way. There might be something in the general administration of the Comptroller and Auditor General's office which the Comptroller and Auditor General might be considering to enhance his investigation. It might be relevant to his tactics or his approach to a problem which he might not wish to be generally known. The exemption in that case would be to the benefit of the Comptroller and Auditor General in his investigation.
That type of situation is envisaged and protected under the Freedom of Information Act. Reports that are not complete and strategies or tactics relating to matters which are not resolved are already covered by the Act. That is how the legislation ought to function. Nobody wishes to make it possible for people to have advance notice of the tactics the State or the Comptroller and Auditor General will pursue. However, they are covered by the Act and correctly so. It would be ridiculous if they were not.
This provision appears to be an example of slightly sloppy drafting. The easiest option was to include a general exemption rather than deal with it in the spirit of the freedom of information legislation, that is, by providing that exemptions which are applicable should be applied. Instead there is a scattergun effect and that is a pity.
I wish to make a brief comment before the debate concludes. Senator Ross was being playful rather than harmful in his comments on my contribution, particularly my expression of hope that there will be a more compliant tax culture in the future than there has been in the past. I am not an apologist for the banks and I have never been lobbied by anybody on their behalf with regard to what I should say in the House. I support the Bill and the Minister's comments on it and I hope its objective will be secured efficiently and speedily.