I am pleased to introduce the Freedom of Information (Amendment) Bill 2003 to the House. I am conscious that the Freedom of Information Act began its life as a Seanad Bill and that this House played an important role in shaping that legislation. It is essential that citizens have confidence and trust in Government and public administration. The Government is firmly committed to this principle, as was its predecessor. That is the reason we significantly extended the Freedom of Information Act from just 67 bodies when it came into force in April 1998 to include 370 or so today.
At regular intervals, beginning in October 1998, the Government has made significant extensions to the remit of the original Act, first, by extending it to local authorities and health boards, then to voluntary hospitals and subsequently to numerous other State agencies, bodies and institutions, including those in the enterprise, broadcasting and third level education sectors. By extending FOI throughout the public service, the Government has ensured it has become a permanent and valuable feature of public administration.
The Government has committed itself to a continuing programme of extensions with the aim that by the end of 2005 all bodies, organisations and groups appropriate for inclusion will be covered. It has also expanded the scope of the Act through secondary legislation. For example, regulations have been made to allow for the release of records to the parents and guardians of minors and persons with a disability and to the relatives and representatives of the deceased.
Usage of the FOI Act bears out its important role in public life today. Since April 1998 tens of thousands of requests have been made to public bodies, of which the large majority have been granted in full or in part. However, the success of FOI cannot be judged solely by such statistics. It was anticipated before FOI was introduced that it would serve to encourage the release, on an informal administrative basis, of information which would previously not have been readily available. A recent example of this can be seen in the move by universities and other third level education institutions to release students' examination scripts without requiring students to invoke the Act formally. A further example is available from the health boards, where, I understand, some three quarters of requests for personal records are dealt with informally, with requesters not being required to go through the formal FOI process.
In these and other ways FOI has served to improve public administration and heighten public confidence in the institutions of State. By significantly extending FOI and introducing a range of other measures such as the Standards in Public Office Act, the Prevention of Corruption (Amendment) Bill and the Local Government Act, which established a comprehensive ethics framework for local authority members and officials, the Government has shown it is firmly committed to the maintenance of standards and improved accountability in public life.
The Government is also committed to effective government. While freedom of information is important, it cannot be the major determinant of how the Government conducts its business. All organisations have the right to decide how to organise their business and the Government is no different. Our work is complex. In reaching decisions on important economic and social issues the Government has to look at different alternatives and approaches, debate these freely and then reach a joint decision on behalf of the community. The framers of the original Act recognised this when they enshrined in the Act key protections for Government records which would last five years. It was also recognised that these records had to be protected.
It is becoming increasingly clear, however, that five years is not an adequate period for this purpose. As the high level group established by the Government to review the operation of the Act stated: ". as experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short space of time". I have no hesitation, therefore, in recommending to the House that the restriction of five years for Government records should be raised to ten. A ten year limit still leaves Ireland with a liberal regime. In other jurisdictions, such limits range from ten to 30 years. Canada, for example, operates a blanket restriction for 20 years on a wide range of records under the general heading of "Cabinet confidences".
Another change contained in the Bill to the exemption for records of the Government relates to inter-ministerial communications where such communications deal with a matter already on the Government agenda, on which a submission to Government is proposed or relate to an issue delegated by the Government for resolution between Ministers. Specific protection for such records was recognised as being necessary by the high level group as they are an extension and in direct support of the exercise of collective responsibility.
There is also a measure to provide for exemption of records of a committee of officials set up specifically to assist Cabinet deliberations on matters before it, where that committee is mandated to report directly to the Cabinet. In order to ensure that such protection is only afforded to records which genuinely fall within the categorisations mentioned, the Bill provides that the Secretary General to the Government must certify that the committee concerned meets the relevant requirements. The focus of the new Bill is, therefore, on the business of Government. This was also the focus of the work of the high level group which looked very carefully at the working of the existing Act and made a number of recommendations.
While there has been a particular focus on Cabinet records – including the extension of the period of protection for such records from five to ten years – the high level group also recommended a number of other important measures, including the introduction of up-front fees. Such fees are long overdue. The cost of administering FOI is not reflected in any meaningful way in the existing fee provisions. While mandatory, these provisions have not operated as was originally intended. The original Act clearly states that a fee must be charged for an FOI request unless the request is for personal information or in cases where exceptional circumstances apply. In practice, the opposite has been happening with charges being the exception rather than the rule.
One requester asked a couple of years ago for access to the diaries of a number of civil servants and Ministers. There were hundreds of records. Every diary and thousands of pages of documentation had to be read through, assessed and considered for release and personal or sensitive material deleted. The cost of processing that request was probably well over €10,000, but the cost to the requester, including photocopying, amounted to around €600. I understand those charges were appealed.
The cost of servicing democracy through FOI, therefore, does not come cheap. A single FOI request can take many hours to process. This involves the basics of acknowledging the request, discussing the matter with the requester to ensure the request is adequately focused and understood, estimating the search and retrieval time required, locating relevant records, examining each record line by line for any exempt matter and considering public interest arguments for and against release. Where third party information is involved, the process can be even more onerous, particularly in light of the requirements to locate and contact third parties, issue formal consultation letters, consider submissions and notify appeal rights. The Oireachtas recognised that a fee should be imposed for FOI requests as a reflection of this burden.
The difficulty is that the fees have not always been charged. The true cost of FOI is not recognised. The Bill, therefore, contains a provision that will permit the Minister for Finance to prescribe fees for requests for access to records and for applications for reviews of decisions, which must be paid before anything else happens. Contrary to some reports in the media, the level of such fees has not been decided. I will be giving careful consideration to the setting of these fees and, in doing so, will be careful to strike a balance between the burden and cost of administering the legislation – which is unquestionably significant – and the need to allow people to continue to have access to information. I should stress that the Government does not favour the charging of an up-front fee for personal information and the Bill explicitly precludes this possibility.
A number of other measures in the Bill provide an enhanced degree of protection in key areas of Government and parliamentary activity. These include enhanced protection for records relating to ongoing deliberations, particularly the deliberations of Departments of State.
The extent of a deliberative process can be difficult to define. Accordingly, a measure is proposed whereby a Secretary General will be able to certify when a deliberative process has concluded. This should provide greater certainty in relation to the level of protection available for records related to the ongoing deliberations of Departments of State. At the end of the deliberative process, the Secretary General must revoke the certificate and the records will then be considered for release.
There is also a proposal to enhance the protection available for certain sensitive records related to international relations, security and defence. While the existing Act appears to provide, in subsection 24(2), a high level of protection for diplomatic communications and other records, the high level group identified difficulties in the interpretation of this section which have given rise to concern. The Government has, in turn, decided that certainty is needed to protect certain sensitive material so that Ireland's ability to function effectively at international level is not restricted by a lack of confidence about, for example, our ability to protect sensitive exchanges with other countries or international organisations.
Other notable measures in the Bill will provide greater clarity and enhanced protection in relation to the work of tribunals and public inquiries and protection for parliamentary briefing papers. I look forward to elaborating on each of these areas as the Bill progresses through the Houses and to the contributions of Senators.
The Bill contains a series of technical measures to improve the operation of the Act. These include a strengthening of the administrative protections available to public bodies against manifestly unreasonable or vexatious requests. Senators may recall a case that came to light within the first year of FOI where a single individual made 466 requests, and was responsible for 101 internal review applications and 35 appeals to the Information Commissioner. Of these requests, 194 were made to a single public body. As the authors of a technical report on the Act noted in relation to this case "neither those who campaigned for FOI nor the majority of requesters who make reasonable use of the Act would have expected that a single individual would, through extreme usage of the Act, cost the taxpayer well in excess of £100,000 or €127,000 in an eight month period following its introduction." While it must be emphasised that the vast majority of requesters act responsibly and make good use of the Act, I am satisfied that measures must be taken to provide an enhanced degree of protection against those few individuals who choose to use FOI in a vexatious way.
Other technical measures in the Bill include a new provision clarifying that protection is available for records whose release could endanger the life or health of persons, the removal of the restriction on an appeal to the Supreme Court from a decision of the High Court and an extension of the basis on which a public body is empowered to refuse to confirm or deny the existence of records. The Bill also provides for an extension of the period that the Information Commissioner has to complete a review under section 34 of the Principal Act from three to four months. Experience to date indicates that the three month deadline envisaged by the Act is not achieved in many cases.