Seanad Éireann debate -
Wednesday, 12 Mar 2003

Vol. 171 No. 18

Freedom of Information (Amendment) Bill 2003: Committee Stage (Resumed).

SECTION 6.

Question again proposed: "That section 6 stand part of the Bill."

Mr. McDowell

We were discussing section 6 which extends the number of areas in which a refusal can be made in circumstances where the head neither confirms nor denies the existence of information in the first place. I spoke to some of the Minister of State's officials yesterday after the debate and they persuaded me that there were some limited areas where it was appropriate to proceed in this way. Nonetheless, this is still structured in such a way as to leave it open to abuse. Our real difficulty is that where a refusal is made in those circumstances, it is not open to be tested. We cannot test, in particular, whether the public interest has been taken into account to the extent it should by the person making the decision.

Perhaps the Minister of State can help me as I have never seen a refusal of this kind. Is it normal practice to refuse information while telling people such action is not intended to confirm or deny whether there is information available, or is somebody refused simpliciter? Is there a specific line in the refusal telling people the information may or may not be available? I seek a situation where people are informed that this provision is being invoked in order that they can appeal it to the Information Commissioner and can be properly reviewed.

Mr. Leyden

This section was given a great airing last night and we were about to conclude on it. When the Minister of State has responded, we should move on, otherwise we will not reach all sections.

Dr. Henry

I regret the inclusion of this provision, particularly as I have seen the Taoiseach's comments in the Dáil. He said changes in the Bill would not reflect on the individual but I do not see how that can be with this amending provision. The Taoiseach would not want such an amendment introduced.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. M. Ahern)

At present there can be a refusal to confirm or deny, for example, in relation to Cabinet records under section 19, for legal privilege under section 22, for security reasons under section 23 or for law enforcement reasons under section 24. The provision covering those areas is invoked subject to oversight by the Information Commissioner. The requester is to be informed he or she is being refused for those reasons and he or she can then go to the Information Commissioner to have him review the decision if he or she requires it.

Mr. McDowell

That is helpful. Is the requester explicitly told that this provision is being invoked?

Mr. M. Ahern

They are.

Question put and agreed to.

SECTION 7.

Mr. Higgins

I move amendment No. 1:

In page 7, line 2, to delete paragraph (a).

This amendment seeks to delete the provision in paragraph (a) which includes a reference to paragraph (c) of section 10(1) of the principal Act, which will state:

(1) A head to whom a request under section 7 is made may refuse to grant the request if –

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,

(b) the request does not comply with section 7(1)(b),(c) in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned.

I seek the deletion of this paragraph because up to now it has proven difficult enough to get information due to the reason I have just cited – it would mean too much work for the Department involved and cut across its primary work. The Bill extends the provision. If one reads the observations of the Information Commissioner, the provision was used wrongly by Departments. This will make it far easier for a public body to refuse requests on the basis that it would cause too much interference and disruption with the work of a unit – in other words, a subsection which could be a small section in a Department or public body. Not alone will a request be disqualified on the basis that it interferes with the work of the entire public sector, but section 7 will narrow down its application to allow requests to be disqualified if they disrupt the work of a unit within a public office. This provision is wide open for abuse and should be deleted.

Dr. Mansergh

I appreciate Senator Higgins has taken his objections to the provision from the commentary supplied by the NUJ. This is an entirely reasonable change. The wording refers to the work of the public body in question and there is no reference to units.

Mr. McDowell

They are mentioned in the explanatory memorandum.

Mr. M. Ahern

I regret that I cannot accept the amendment as its effect would be to diminish the protection contained in section 7 against requests involving a substantial and unreasonable interference with the work of a public body as opposed to other work. The use of the term "other work" in this context has the potential to set the threshold much too high.

It is correct that a substantial and unreasonable interference with, for example, the work of a division of a Department of State as opposed to the work of the entire Department should constitute grounds for refusal of a request. The threshold for a public body to refuse a request on grounds of interference will continue to be high. The request must still involve a substantial and unreasonable interference before it can be refused and the Information Commissioner has the power to review any decision.

Mr. B. Hayes

I support my colleague, Senator Higgins, on this issue. The Minister of State refers to requests which cause substantial interference to the work of a Department or unit. In the event that a person makes a request to a public body which then invokes this provision to reject the request on the grounds that it is unreasonable, will the requester be automatically informed that the request was denied because section 7 of the Bill revoked certain powers to access information in the principal Act?

The Minister of State is correct that the Information Commissioner did not specifically refer to this provision in his analysis of the Bill as proposed in appendix 1. However, it has come to our attention in respect of the users of the legislation that it can be a stone around their necks when trying to obtain information. We must set a reasonable threshold. Senator Higgins has argued that his amendment would establish the reasonable balance we seek in respect of the rights of the requester to obtain the information he or she wants.

Mr. McDowell

There appears to be merit in the amendment. It is possible that a detailed application made to a relatively small section, in which two or three people are engaged, would substantially disrupt its work if staff required two or three days to deal with the information request. To refuse a request, the Act, as framed, would require a substantial degree of disruption to the whole Department or section, as opposed to requiring the time of two or three people with responsibility for a particular area for a few days.

The real problem does not appear to lie with the substance of the change, but with the possibility that it will create scope for substantial abuse. The provision provides a good excuse for a person in a Department to refuse a request. He or she could, for example, decide that his or her time is so valuable he or she cannot afford to take two days out of work to deal with an application. I support the amendment.

Dr. Mansergh

The original drafting, which refers solely to disruption of "other work" as opposed to "the work" of a Department or public body, is a little illogical. If the case for rejecting a request is prima facie unreasonable, there is a strong chance a dissatisfied requester would make an appeal to the Information Commissioner. We should move away from the notion that civil servants will be prone to abuse the Act. The legislation is open to public scrutiny and we have an Information Commissioner to whom appeals can be and are made. The assumption that public servants will abuse this provision is not justified.

Dr. Henry

I support the amendment. A case has not been made to show the current provision is causing disruption.

Mr. Higgins

I agree with Senator Mansergh that the word "other" appears a little incongruous. What is the distinction between the "work" and the "other work" of a Department or public body? The Department should be performing its work per se.

The Senator stated the word "unit" is not used in the legislation. When one reads the explanatory memorandum it becomes clear that the intention is to subdivide Departments into sections or units for the purpose of this section.

Dr. Mansergh

The explanatory memorandum refers to "the work of a particular unit or section".

Mr. Higgins

Correct. It also makes the distinction between such work and the general work of the Department or public body as a whole. It states, "The deletion of the word "other" in paragraph (c) is intended to clarify that a substantial and unreasonable interference with work, whether that is the work of a particular unit or section or the work of a body generally, can constitute grounds for refusal of a request.” As other Senators have pointed out, the section narrows down the focus of the definition in the principal Act to small sections in Departments in which, possibly, only two or three people are employed. This constitutes a further attempt to obstruct freedom of information and gives an absolute right to civil servants to refuse a request when they feel it interferes with their work and an incentive to allow the matter to be decided on appeal.

Dr. Mansergh

It is illogical to allow disruption of other work to be used as a ground to refuse a request, while excluding as a ground disruption of the work to which the request relates. There is no logical defence of this position.

Mr. M. Ahern

This provision has not been invoked often. However, when it is invoked the public body in question must consult the requester and ask him or her to narrow down the scope of the request before it can be refused. From experience, requesters who make voluminous requests generally agree to narrow down the scope of their requests following consultation with the relevant public body.

On the question of absolute rights and the possibility of abuse raised by Senator McDowell, a decision can be appealed to the Information Commissioner.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Mr. Higgins

I move amendment No. 2:

In page 7, lines 3 to 7, to delete paragraph (b).Section 7(b) proposes to insert in section 10(1)(e) of the principal Act, “, or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the head, appear to have made the requests acting in concert” after “vexatious”,”. Section 10 of the principal Act states that a head may refuse on administrative grounds to grant requests under section 7, if:

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,

(b) the request does not comply with section 7 (1) (b), [We have already discussed paragraph (c)]

(d) publication of the record is required by law and is intended to be effected not later than 12 weeks after the receipt of the request by the head;

(e) the request is, in the opinion of the head, frivolous or vexatious .

First, who is the competent authority that will decide whether something is vexatious or frivolous? Second, the wording states: "or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters". Who decides whether the requests are unreasonable?

In his report, the Information Commissioner deals with this section in considerable detail. For example, he refers to cases where the number of requests submitted by the requester is very large. He states that, of itself, the fact that a requester has submitted a large number of requests does not indicate that any of them are frivolous or vexatious. He further states that, apart from any other consideration, the question of what constitutes a large number of requests is so subjective as to be of little value in practice in determining whether section 10(1)(e) might apply. In addition, he states that the number of requests received by a public body, both generally or from any one requester, must depend in part on its attitude to the release of information. He gives the example of a public body routinely resisting requests for information which perhaps other public bodies would release administratively and states that it may end up receiving a large number of FOI requests. He goes on to state that it could hardly be correct that its subsequent difficulties in processing these requests should be laid at the door of the requesters who are merely seeking to exercise their statutory rights. In saying this he is not suggesting that the difficulties which the Department has experienced – a case is referred to earlier in the report – with Mr. A.B.W. are of its own making but is merely making the point to show the difficulties in refusing requests solely because the requester has made a large number of requests.

Of all the sections we have dealt with so far, this one is wide open to abuse. We are talking about definitions of the terms "vexatious" and "frivolous" and somebody barraging the Department with what appear to be reasonable requests, but which are being made en bloc. There is a major prospect that this section will be used on the basis that the requests are too numerous, they are coming from somebody who has been using the Act too frequently or that the requests are vexatious or frivolous, an area which is wide open to interpretation.

Dr. Mansergh

The House has to have an interest in good and efficient administration and it is extraordinary that fellow Senators should create difficulties about excluding frivolous, vexatious and manifestly unreasonable requests from the Bill. Who decides on these requests? In the first instance, it is the body or the persons in the body who receive the request. However, if their decision is unreasonable or there is a pattern of unreasonable decisions, there will be appeals to the Information Commissioner and case law will be established.

I am aware from experience that Departments pay attention to decisions of the Information Commissioner and this provides guidelines on how borderline cases are to be decided in the future. We could never pass any legislation on the basis that it could be abused. All legislation can be abused, but there are safeguards in place to prevent that. There are good safeguards in this case. There is an Information Commissioner, who will establish precedence and case law, but it is indefensible for us to be excluding manifestly unreasonable requests. We should concentrate on matters of more substance than that. In terms of the basis of abuse, we can hardly pass legislation on anything if one adopts that assumption.

I worked for 25 years in the public service and the notion that public servants will, at the drop of a hat, abuse let-out clauses is wrong. My experience of the people involved, having worked on the specific area of freedom of information, is that they are exceptionally conscientious and want to make the right decisions.

Dr. Henry

I do not believe we have been given evidence that the original Act is causing problems in this area. The Information Commissioner's report, which we received yesterday, outlines ways in which a persistent requester can be dealt with. No one wants to make some sort of charter for people who make frivolous or vexatious claims, but that is already in the Act. Legislation that has been working well should not be spancelled. People may have good reasons for making repeated requests for information if they have not got everything they want. This is important in view of the fact that there will be changes in that the term "contain" will be included in the Act rather than the phrase "relate to". That is welcome because one might not ask the right question the first time and may get a little more information from the second request.

We must remember that this section will greatly affect Members of the Oireachtas, a large number of whom may have to make repeated requests for information. We will not be able to get that information either. I am not just asking about this on behalf of citizens. I want to know if Members of the Oireachtas will be able to get information that we know exists somewhere, even if our initial request is not as close to the mark as whoever is giving the information believes it should be or that it does not contain, for example, something relevant to a particular person. How many requests does one have to make before one is considered to be a repeat requester?

I have no doubt that many actions can be taken in this area. For example, if a requester is acting without good cause and fails to agree to the suggestions of the Department as to how the requests should be dealt with, it appears to be easy to move them on. In addition, if they make many requests they can be asked to put them in some sort of priority and be required to agree to whatever system the Department believes should be used to make the request. That is only right because we all agree the other work of a Department has to continue. I am anxious that we are trying to make it more difficult for people in that if they do not decide at the outset the type of information required, they may find that subsequent requests are refused.

Mr. McDowell

The provision in the existing Act about frivolous and vexatious applications was open to serious abuse by people who wanted to frivolously make applications but there is not much evidence that that has happened. The report of the Information Commissioner is fair and comprehensive in coming to that conclusion. To that extent, I endorse what Senator Mansergh said because it is important that those of us on this side of the House record our appreciation of the fact that most public servants are operating the Act in good faith and deal with what is for them a novel situation in the best way possible.

My difficulty with the Government's amendment is that it does not add much to the provision already there. It would simply require the person making the decision to define what amounts to a manifestly unreasonable request. That person is already required to decide what is frivolous and vexatious. It will not be any easier to come to a reasonable definition or explanation of what amounts to a pattern of manifestly unreasonable requests. The Minister is not adding greatly to the security or certainty which most public servants would crave in operating the section.

Dr. Mansergh

While I go along with the Senator to a large extent, frivolous is not precisely the same as vexatious, which in turn is not necessarily precisely the same as manifestly unreasonable. Any public servant would be very slow to find any FOI requests from Senator Henry or any other Member of the Oireachtas to be manifestly unreasonable. One can turn the argument around. If it is accepted without contradiction that it is acceptable to exclude requests that are frivolous and vexatious, then I do not see the problem in also including manifestly unreasonable as all three are roughly on the same level.

Mr. Higgins

In his original contribution, while defending the public service, having come from such a background himself, Senator Mansergh said in his general experience the public service has operated the spirit of the Act almost to the letter. He stated there have been very few occasions on which it was open to abuse as such. The Information Commissioner's report gives a classic example of what can occur. I mentioned earlier the case of Mr. ABK and the Eastern Health Board. This relates directly to section 10(1)(e), which is the subject of these amendments. The report states:

The relevance of section 10(1)(e) was one of the issues considered by me in this case. The requester had sought access to records relating to himself, his former partner and his daughter. The Eastern Health Board (EHB) refused the request on the basis that all relevant information had already been made available to the requester by means of discovery in earlier court proceedings and that therefore the request was frivolous and vexatious within the meaning of section 10(1)(e).

I agree with Senator Mansergh in pointing out the difference in the meaning of words. When asked for his decision on appeal the Information Commissioner said: "In my review decision I found that the request could not be considered to be frivolous." This is a blatant example of the health board misinterpreting this and deliberately deciding the person was not entitled to the record on the basis that the request was both frivolous and vexatious. While the commissioner does not deal with the vexatious aspect, he states it could not be considered frivolous. He goes on to state: "However, I accepted that Mr. ABK's [the plaintiff's] purpose in making the request was to advance his case and, therefore, the request could not be said to be vexatious."

I have two problems with this. I have problems with the interpretation of frivolous and vexatious, and in the worst case scenario at least the existing Act should stand as it is without adding this other complicated addendum to it. That is why I tabled my amendment that the Government's proposal should be deleted.

Dr. Mansergh

It should be acknowledged that public bodies, civil servants and public servants can make wrong decisions or decisions that are found to be erroneous by the Information Commissioner without this being blatant, deliberate or in bad faith. We have no evidence from the commissioner's report that the Eastern Health Board was acting in bad faith and we should not assume that.

Regardless of the wording used, from time to time mistakes will be made and that is why the commissioner is there. That is not an argument for not including "manifestly unreasonable".

Dr. M. Hayes

I agree with Senator Mansergh. I have some experience working these things, both as an official and as an ombudsman. There are vexatious complainants just as there are vexatious litigants from whom the courts occasionally have to refuse to accept actions. It is an exercise in judgment. The trouble is that requests might be off the wall in 98 cases, but the next request might not be so. Like Senator Mansergh, I do not believe any evidence has been produced from anybody's experience of public servants having unduly used this.

There needs to be some protection against people simply going on fishing expeditions and inordinate cost is a sufficiently reasonable response to these. People who are really interested and have boned up on the subject will know the questions they want to ask and these are generally answered. This section does not seem to limit the scope of the original Act in any way. I would be inclined to let it go.

Mr. McDowell

I find Senator Maurice Hayes's remarks very interesting. They point to the difficulty that it would be possible for someone to make 98 unreasonable requests but the one on which he is finally refused under this section is reasonable. It would be possible to surmount this by simply substituting the word "and" for "or" in that section so that it would be frivolous, vexatious and part of a pattern of unreasonable requests.

Mr. M. Ahern

I will not accept this amendment as it would mean that a clear pattern of manifestly unreasonable requests from a single requester or a group of requesters acting in concert could not constitute grounds for refusal. The need for such protection was adequately demonstrated by the Minister for Finance in his speech to the House on Second Stage, when he drew attention to the example of a requester who made scores of requests to a single public body within the 18 months of the Act coming into force. These requests alone were estimated to have cost the body concerned in excess of €127,000. Each request from that requester had to be considered as a totally new request and there was no basis for dealing with the reality by linking those requests.

As already stated, the Information Commissioner has oversight and he will look at the meaning of frivolous or vexatious by reference to the Oxford English Dictionary. The commissioner has already stated that repeated requests for the same information with the intention of causing obstruction to the body in its day-to-day operations are vexatious. The central policy unit of the Department of Finance will give guidelines to public bodies on the use of this provision, as it does on various issues on the correct application of the Act.

We have no problem with the example cited by Senator Higgins. If public bodies misuse the provision of the Act it is right for the Information Commissioner to point this out. That is his role and this will not change.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Mr. McDowell

I move amendment No. 3:

In page 7, paragraph (c), line 10, after “requester” to insert “made within the previous 12 months”.

This is a minor amendment that seeks to ensure a person cannot be refused an application on the grounds that he or she previously failed to pay a fee. I concede that it is reasonable to take into account the fact that a person did not pay a previous fee, but there should be a cut-off point.

Dr. Mansergh

Does this amendment relate to paragraph (e) rather than paragraph (c)? I do not see the term “requester” in paragraph (c).

Mr. McDowell

It relates to paragraph (f) of the original section.

Acting Chairman (Mr. Mooney)

The quotation relates to paragraph (f), but the amendment relates to paragraph (c) in section 7 of the Bill.

Mr. McDowell

Only the failure to pay a fee in the past 12 months should be taken into account when refusing an application, rather than trawling through someone's record in the distant past.

In the early months of the operation of the Act, I applied to the Department of Finance for records concerning regionalisation. I received a demand for a considerable sum of money from a section of the Department. I approached the section again and asked if it felt it was appropriate for me to apply to the Department of Finance for money so that I could pay it back to the Department of Finance to allow me to do my job. In any event the fee was waived, but no doubt it blots my copybook and, in theory, I could be refused a request. It is reasonable to take someone's immediate record in failing to pay a fee into account, but there should also be a cut-off point.

Dr. Henry

This is an amendment the Minister of State can accept without phoning Cheltenham.

Acting Chairman

I would prefer if remarks of that nature were not made. They are very amusing, but they have no relevance at all and are becoming tiresome.

Mr. McDowell

We make them to oblige the Acting Chairman to defend the Minister and Minister of State, time and again.

Dr. Henry

This is a practical amendment that would enhance the Bill because otherwise people who made requests ten years earlier will be covered by the amended Act. This is an innocuous addition.

Mr. B. Hayes

There was disagreement about the term "requester". There is no definition of the word in the principal Act or the amending legislation. Could it be a corporate body? A corporate body might be a frequent requester and then an individual from that body would attempt to find information about a different issue or from a different source. Would that person be regarded as being the same requester as the corporate body?

Mr. M. Ahern

I am opposed to this amendment. There are no grounds for restricting to 12 months the period for which a public body could invoke the provision whereby a failure to pay a fee properly charged under FOI can constitute grounds for refusal of a request. This would serve to restrict unduly a public body when taking unreasonable behaviour into account.

The payment of a fee is a requirement under the Freedom of Information Act and it is only correct that a previous failure to pay a fee should constitute grounds for refusal of a request, regardless of when that failure occurred. The fee of £127,000 incurred by one person was mentioned. The body involved reduced the fee to €600 and the individual even appealed that. If a person ran up such a fee and after 12 months and one day decided to submit a request, that fee and the cost involved would be the responsibility of the body. He could then do the same again a year later.

In Australia, a minimum of €1,800 is charged for a request. In addition, a person can go to the Information Commissioner for a review if he or she is not happy with the decision made by the public body.

Mr. B. Hayes

What about the requester? The NUJ made the point that there must be definition of this term. If a reporter from the Irish Independent had not paid a fee for a previous request, or was disputing a fee, this section could technically block a request from a reporter on a sister publication, in respect of completely separate records, until the original fee is paid. Is the requester an individual or could it include a newspaper or group of newspapers?

Dr. Henry

I am not trying to be vexatious or frivolous, but it is profoundly depressing for us and for the Minister of State, because he is perfectly competent, to know that we are going through this and he is not in a position to take even an amendment as minor as that before us. I sympathise with him and Senator Mansergh because some of these issues are so minor that if the Minister of State was dealing with a Bill from his own Department he would accept them.

Dr. Mansergh

The NUJ argument about sister publication is exceptionally far-fetched.

Mr. M. Ahern

According to the 1997 Act, the requester is the person who makes a request under section 7. It is an individual, not a group. It should also be borne in mind that the public body can waive fees if it deems the circumstances suitable.

Amendment put and declared lost.

Section 7 agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. McDowell

As I understand it, this section deals with requests where some information is disclosed and part of it is withheld in circumstances where it is neither confirmed nor denied that the latter is the case. It would seem to make matters more difficult in circumstances where part of the information is being disclosed. Is the requester also told there may or may not be additional information which is not being given? If not, it is clearly not possible to apply the public interest test to the information, the very existence of which is not being disclosed.

Mr. M. Ahern

With regard to the section, the purpose of this technical consequential amendment is to ensure that, where access is granted to parts of records and there is a refusal to confirm or deny the existence or non-existence of a record under the provisions of sections 19, 20 or 21 of the Bill, public bodies are not obliged to disclose the existence or non-existence of a record in a notification to a request under section 8(1) of the principal Act.

Mr. McDowell

If I apply for a record and am given part of it, will I be told there may or may not be material which I have not been given? Anybody obtaining records would assume they are getting the full record unless some indication is given that there may or may not be other records which are being refused. Obviously, if one gets something and does not know there is something else, one is not in a position to appeal the refusal of the other information.

Dr. Mansergh

In the case of the National Archives, documents are released with sections blacked out and, therefore, it is quite clear there are items missing. I assume, in the case of a Government record being given out, other than re-typing and giving it in that form, it must be obvious from the deletions or blacking out that it is incomplete.

Mr. McDowell

That would be the case where one is clearly being refused part of the records, but what we are dealing with in this regard is a situation where one is not being clearly refused part of the records, where, in respect of part of the records, there is a neither confirm nor deny provision in place. Accordingly, there would not be anything as clear-cut as a blacking out of some information.

Mr. M. Ahern

The Department officials would be glad to brief the Senator on the intricacies of the question he has raised.

Mr. McDowell

Is the Minister of State suggesting that can be done later?

Mr. M. Ahern

Yes.

Mr. McDowell

I cannot really refuse that. However, although it may sound somewhat complicated, somebody being given or refused information will assume, unless informed otherwise, that this is all the information available. What I really need to know is whether there is, potentially, another section of information the existence of which will not be disclosed.

Mr. M. Ahern

A person might sometimes request information which he or she knows to exist but which cannot be disclosed for certain reasons. It is a very technical area and I suggest it would be better if the Senator went through it with the Department officials.

Question put and agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Acting Chairman

Is section 9 agreed to? Agreed.

Mr. McDowell

Could the Chair slow down a little?

Acting Chairman

I had asked the question.

Mr. McDowell

I am aware of that. I ask the Chair to do me the service of slowing down so that I can keep up. Nonetheless, I commend the Acting Chairman for his enthusiasm and expediency.

Acting Chairman

Just to be clear, I was not going all that fast. There are many sections in the Bill and I have put the questions clearly.

Mr. McDowell

I am fully aware of that.

Acting Chairman

I would expect a response and, in the absence of a response, I move on.

Mr. McDowell

I will do my best to keep up with the Chair.

Acting Chairman

If I was really going fast, the Senator would be aware of it.

Mr. McDowell

It is kind of the Acting Chairman to put it that way.

Acting Chairman

On which section does the Senator wish to speak?

Mr. McDowell

I wish to speak on section 9.

Acting Chairman

We have already agreed section 9.

Mr. McDowell

No, we have not.

Acting Chairman

Yes, we did. I asked the question very clearly on section 9 and it was agreed. However, I will be flexible on this occasion.

Mr. McDowell

The Acting Chairman is kind. However, I am not hugely exercised by section 9 in any event. I merely wish to ask the Minister of State whether there is any check or if any guidelines are offered in relation to the persons to be notified in circumstances where a withdrawal action takes place. Is that covered by guidelines or is it entirely within the discretion of the person making the decision?

Mr. M. Ahern

Section 9 amends section 14 of the principal Act by the inclusion of the amendment, consequential to the amendments proposed in sections 19, 20 and 21. Also, subsection (viii) is being substituted. The effect is to require a head to notify any person whom he or she considers relevant that an application of section 14 of the principal Act has been withdrawn. Guidelines will be issued by the CPU.

Question put and agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill."

Acting Chairman

Senator O'Meara has indicated her opposition to this section.

Mr. McDowell

I will seek to articulate Senator O'Meara's opposition to the section. The difficulty relates exclusively to the fact that it is now open to the Department of Finance, as the responsible Department, to issue the section 15 manual purely by electronic means. While I am in favour of Government, in so far as is possible, moving to electronic means, we have to be realistic in recognising that, at least for now, many people still do not have access to the Internet or to PCs. Accordingly, it will not be possible, at least for the next number of years, to access the information if it is only published by electronic means. I assume that is being done for administrative reasons.

Mr. M. Ahern

There will be a hard copy.

Mr. McDowell

In that case, we can shorten the debate considerably. If it is intended to continue to publish the information manual concerned in hard copy for the next few years, I am happy to withdraw opposition to this particular section. It may well be reasonable in ten years to rely on electronic means only, but for now that is somewhat ambitious.

Mr. M. Ahern

In response to the Senator's comment on cutting the debate short, a hard copy will be available on request to anybody seeking it. I should add that these amendments have been recommended by the Information Commissioner.

Question put and agreed to.

Section 11 agreed to.

SECTION 12.

Dr. Henry

I move amendment No. 4:

In page 8, lines 40 to 43 and in page 9, lines 1 to 18, to delete paragraph (a).

I am out of the traps at last. It is unfortunate that we have to table amendments at all. The main thrust of the Bill was to be that the time limit for disclosure of Government papers would be extended from five to ten years. I would have no difficulty with that if, for the workings of Government, it is found easier to put in place a longer period, having regard to the fact that many people involved in making decisions five years ago are probably still in power. The real difficulty is that we now seem to have extended the definition of Government to virtually any two or three people who are gathered together in the name of the Government, no matter how vaguely connected. Consequently, whatever they may discuss will remain undisclosed for ten years and freedom of information will not apply to quite important documents which may relate to Government decisions. That extension is far too great and, consequently, we have put down this and subsequent amendments.

Dr. Mansergh

This amendment reflects the fact that in recent years much Government work is carried on in Government sub-committees and much of the ground is cleared by those sub-committees. In the case of particular problems relating to a Government decision, one could delegate a group of three or four very senior officials, which, depending on the question, might or might not include an adviser, to look at the matter and report back to a Minister. Obviously it is desirable that all that deliberative process, much of which of course would be oral, should also be done in writing because anything one does in writing is inevitably more systematic and also it is reviewable in a way that merely oral exchanges are not. We are talking about the deliberative process which is all part of the whole. These days it is entirely artificial to treat Government sub-committees as being totally different and apart from Government.

I am glad to say we have not moved in the direction of, say, the British Government, where I gather Cabinet meetings last on average only half an hour and literally everything is done in sub-committees. There are still Cabinet meetings here. They are not as long as in the days when Garrett FitzGerald was Taoiseach, when they lasted far into the night, but there are Cabinet meetings which take two or three hours and occasionally all day.

Almost always, on any difficult question before Cabinet, the relevant Ministers, with or without officials, are assembled. There may be papers which are being worked on. These are all part of the one deliberative process. It is entirely artificial to separate them and put only a minimal definition on what is involved, that is, literally only the paper that goes before Cabinet. Therefore I can see the logic of these changes. It corresponds accurately to the reality of modern Government.

Dr. Henry

May I point out to Senator Mansergh that, according to the definition in the Bill:

"‘officials' means two or more of the following:

(a) a person holding a position in the Civil Service of the Government or the Civil Service of the State;”.

Nothing here says anything about senior officials. It could be anyone. It continues:

"(b) a special adviser within the meaning of section 19 of the Ethics in Public Office Act 1995;

(c) a person who is a member of such other (if any) classes of person as may be prescribed.”.

Therefore it is not the sort of person Senator Mansergh is suggesting. It can be anyone, according to this section.

Acting Chairman

Senator Henry, could you advise me as to where you are quoting? I am looking at section 12.

Dr. Henry

It is here on page 10. Senator Mansergh stated that these officials would only be senior officials.

Acting Chairman

Am I correct in saying that you are not dealing with this amendment?

Dr. Henry

Sorry, but Senator Mansergh spoke about the officials. That is why I thought I had better clarify what I was talking about. I am not the one who started talking about them. It would be a good idea if we were all talking about the same matters at the same time.

Dr. Mansergh

We are talking about several deletions in amendments.

Acting Chairman

We are talking about one amendment involving deletions.

Dr. Henry

Yes, but I am not the one who started talking about the officials. As the amendments will not be accepted anyway, why am I wasting my breath?

Dr. Mansergh

This is a matter of legitimate debate on this section.

Acting Chairman

With respect, we are not talking about the section. We are dealing specifically with amendment No. 4.

Dr. Mansergh

I accept that. It involves the deletion of several lines in this section.

Acting Chairman

We are talking, not about the lines to which you refer but about the deletion of paragraph (a) and the substitution of the following paragraph:

"(aa) consists of a communication–

(i) between two or more members of the Government relating to a matter that is under consideration by the Government or is proposed to be submitted to the Government, or

(ii) between two or more such members who form, or form part of, a group of such members to which a matter has been delegated by the Government for consideration by the group and the communication relates to that matter,".

Dr. Mansergh

That is what we are discussing. We are discussing committees that report to Government or sub-committees of Government.

Acting Chairman

I understand that but, with respect, Senator Henry's quotations were not related specifically to the amendment. This is very difficult and complex, but we are dealing specifically with this amendment. I am not admonishing anybody. I am pointing out to the House what we are dealing with.

Dr. Henry

We are always being told in other legislation that we are not to put in "shall" and we must have "may", and here the Minister is doing the opposite.

Mr. McDowell

I will speak specifically to the amendment, although obviously it sits in the heart of a section which, together with the following section, forms the core of the Bill. These two sections really are the core of the Bill presented by Government and they go a long way to drawing down the veil of secrecy over the way in which Government operates. They make it almost impossible to find out what discussion is going on between various sections of Government – Ministers, Departments, Civil Service or whatever – about what is currently under discussion, and indeed for some time afterwards. It is with this, I suppose, that we are primarily concerned in this amendment.

It seems to me that there are three different parts of paragraph (a) which are cause for considerable concern. First, there is the substitution of “shall refuse” for “may refuse”. Section 19 of the 1997 Act allows the Secretary General of a Department, at his discretion, to release all the records that are dealt with in that section, that is, records relating to decisions of Government and meetings of Government, if he decides that it is in the public interest to do so. To the best of my knowledge, Secretaries General or heads of Department, the people who make these decisions, have rarely, if ever, decided that information of that kind is to be made available. It seems to me, even in those circumstances, that it is still reasonable to allow the discretion to lie with the Secretary General to disclose such information if it is in the public interest.

I wonder why Government finds it necessary to be as directive as it clearly is by making it mandatory on a Secretary General to refuse the availability of that information, even in circumstances where it might be in the public interest. For example, I am not at all clear about how stands the public interest test in the latter part of section 19, if we are making it mandatory on the Secretary General to refuse the information in the first instance. It seems to me that the public interest test therefore becomes literally redundant.

The second part of the amendment proposed by Senator Henry is, as I see it, the major shift from the word "solely" to "primarily". The 1997 Act was drawn up fairly tightly. It was drawn up specifically to limit the number of records which could claim the protection of constitutional privilege so that it would not be possible for civil servants, by preparing stuff largely, primarily or perhaps to go to Government, to say that this is a record of Government which will not be available now or ever – or at least not for five years or what is now likely to be ten years.

The use of the word "solely" in the 1997 Act was deliberate. It was intended to limit the discretion which deciding officers would have. It was intended to ensure that the maximum possible level of information would become available in the public interest. It was intended specifically to give a stimulus to public debate and to put as much information in the public domain as possible within the confines, which we all acknowledge, of constitutional collective responsibility and so on.

A shift from saying "solely" to "primarily", that is to say, records created primarily for Government, allows, in my view, far too much discretion to people who are making decisions effectively to hide information. There is no requirement that the information should come to Government. It could have been drawn up or formulated with some broad notion that it is simply a policy option which might or might never end up at the Cabinet table.

If we are trying to make some sense of this and the Government is determined to go down this road, we should at least insist that the information or records required have actually come before Government, rather than there being some vague possibility of their having done so or doing so in the future. If we do not try to tighten these provisions in some way, a coach and four can be driven through the Act in so far as it relates to policy making decisions.

Paragraph (aa) contains the new definition of communication between two members of Government or a sub-group of Government. It seems that the protection offered by this new definition will cease once the deliberative process is over. The original section 19 states that “[a] head may refuse to grant a request . if the record concerned . has been, or is proposed to be, submitted to the Government”. The reference to communication between Ministers does not state “has been” but is phrased entirely in the present tense. That a communication between, say, the Minister for Finance, Deputy McCreevy, and the Minister for Health and Children, Deputy Martin, may have been intended to be submitted to Government in the past and was not is no longer relevant. I would like confirmation from the Minister of State's officials that my understanding of this is correct: once the deliberative process is over, communications of this kind between Ministers should be available and are not caught by the ten year rule set out in later amendments.

Mr. Higgins

I support Senator Henry's amendment on the basis of both her arguments and those of Senator McDowell. Looking at the original Bill one can see that "[a] head may refuse to grant a request under section 7” if certain conditions apply. Now we are taking away any discretion on the part of the head of a Department of the assigned person to make a decision to release information. Does that not show an enormous lack of faith in the judgment of their fellow heads of Department by those who drafted this legislation, the so-called expert group? They cannot even allow them the discretion of deciding whether, in extremis, such a record could be released under the terms of the 1997 Act. We all know that in the past this discretion was exercised stringently and only in the most extreme circumstances. Even that possibility has now been withdrawn. Arguments have been made that we are bringing down an information iron curtain. This is an example of just how restrictive this legislation is.

The Bill states, "(aa) consists of a communication . between two or more members of the Government”. Time and again during the Second Stage deliberations we made the argument that one of the things that had turned people off politics was the veil of secrecy that had enveloped decision making in government. We need to open up government, make things more open and transparent, allow people to become greater stakeholders in what is going on and shine a light into the portals of decision making. Even if there are differences of opinion on what should be done, so what? They should also be put into the public domain. No two people think alike, nor do any two Ministers or sets of advisers on every single issue. If there are differences, we should let them be exposed in order that we may show how decisions are arrived at. They come from people with divergent views but ultimately a consensus is reached, collectively, on behalf of the Government. This section is guaranteed to diminish further people's confidence in how decisions are arrived at. At a time in which we should be opening up the process it is further restricting access to information.

I sat at the Cabinet table as Government Chief Whip for the better part of two and a half years. A system of was in vogue at the time that came in for a lot of criticism – the system of programme managers. When Fianna Fáil and the Labour Party went into government back in the early 1990s, I was one of the strongest critics of the system. However, having seen it operate at close quarters, I can now say that it was very useful. It enabled Ministers to have an outside, objective view, facilitated decisions on a one-to-one basis between programme managers and cut down on the kind of Cabinet meetings to which Senator Mansergh referred: the long, deliberative meetings at which everything was thrashed out at the table. I can say without divulging anything that I never saw, within the Cabinet of 1994 to 1997, a division on any item or memorandum before it.

There were differences between programme managers, of which we were well aware. I cannot see the reason the initial differences between programme managers on decisions should not be put in the public domain. A consensus was arrived at, compromises were sought and finally a decision was brought before Cabinet with which everybody was happy. I am at a loss to know the reason this section has been inserted. It is restrictive and guaranteed to diminish people's confidence in the government process. If there is a difference of opinion between decision makers, either at advisory or Cabinet level, there is no reason it cannot be made public. A considerable public interest would be served by so doing.

I fully support the view on the replacement of the word "primarily" with "solely". This is another example of the iron curtain. If there is any possibility whatsoever that the matter under discussion or the information being sought will arrive some day at the Cabinet table, it is prevented from becoming public. "Solely" means that it is specifically designed for Government. "Primarily" means that it may at some stage arrive at Government but there is no guarantee it will do so. It is a further example of the determination of those drafting this report, which has been bought lock, stock and barrel by the Government, to restrict access to information even further.

Dr. Mansergh

All three clauses covered by this first amendment are to do with facilitating good and consistent government. The problem with the word "may" as opposed to "shall", although I accept that it would prevent the release of information only rarely, is that it implies an element of discretion: it opens up the possibility of people reaching different decisions on similar cases. It is about clarity and consistency of practice in government.

I agree with the points made by Senator Higgins about how government has become more complex, with pre-discussion of issues and differences. The essence of this Bill, for the most part, is consistent with freedom of information also having freedom of deliberation. The difficulty is that if everything right up to the discussion at Government level went out to the media, differences would be blown up. It is entirely natural to have differences between a Minister for Finance and any other Minister, the Minister for Health and Children being the most current example, but it could be made out to be a deep, personalised rift. Differences such as this are absolutely normal.

At the committee tomorrow we will hear distinguished public servants who have an interest in good government speak about whether there should be a space in which people are free to discuss and debate without differences being distorted or exaggerated. This puts an onus on them because, if all this is going to become public immediately, it may distort behaviour as people believe they have to cover themselves vis-à-vis one constituency or another.

Senator Henry made some comments about the first few lines of page 28. In practice the pre-discussions of Government decisions involve senior officials and occasionally non-senior ranking experts in a particular field. This is not a blanket definition that covers everyone, down to the most junior entrant to the Civil Service.

The word "solely" is too restrictive. This is a question of practicality. The amendments are informed by the experience of operating the Act over a four or five year period and clearly the word "solely" is too restrictive. The notion that the public service and the Government want to drive a coach and four through the legislation is untrue. There are clear safeguards against the abuse of the legislation. No one can muzzle the Information Commissiner or stop him making strong comments about refusals. I do not see the dangers because there are safeguards built in.

Mr. M. Ahern

The provisions which the amendment would delete reflect the Government's considered view of the limited changes necessary to the protections available for Cabinet records to ensure effective government, consistent with the principles underlined in the Freedom of Information Act 1997. The relevant provisions also reflect the Government's considered view of the additional protection necessary to ensure the exercise of collective ministerial responsibility is not adversely affected by the operation of certain provisions of the Act. During the deliberative process of an issue by a Government it is essential that members of the Government can communicate with one another in an open and frank manner. These communications should be capable of being carried out on a completely confidential basis. Protection for inter-ministerial communications is a feature of the FOI legislation in Australia, Canada and the United Kingdom.

In reply to Senator McDowell's question, after the deliberative process is over, records are protected under the ten year rule.

Mr. McDowell

I was looking to distinguish between the two. The way paragraph (aa) is drafted refers to communication between two members of the Government relating to a matter under consideration or proposed to be submitted to Government. If I apply now for correspondence between Ministers in respect of a decision made by a Government six months ago, that exemption will not save those records from disclosure. Perhaps I should not point this out to the Minister of State but it seems that as soon as the decision is taken, those records will be available and will not be caught by the ten year rule.

Mr. M. Ahern

They do not.

Mr. McDowell

I do not see how they do.

Mr. M. Ahern

That is covered under subsection (c) in lines 35 to 39.

The provisions also reflect the expert opinion and experience of the five Secretaries General who conducted the review of the operation of provisions of the FOI Act impacting on sensitive areas of government. I will not accept the amendments as their effect would be to remove provisions which, as I have said, are based on the opinion of the Government and the five Secretaries General.

Section 12 also provides for a mandatory exemption for all Government records covered in section 19 (1) of the principal Act by substituting the words "shall refuse" with the words "may refuse" in subsection (1). This is based on the recommendations of the high level group. A mandatory refusal of such requests will clarify the de facto position whereby such records are rarely, if ever, released in response to an FOI request. It also amends section 19 of the principal Act, substituting the word “primarily” for the word “solely” in paragraph (c) of subsection (1). This amendment will allow for advice, created for the primary purpose of Government business, to be protected. The word “solely”, in this context, can work to preclude records also created for incidental purposes and is considered overly restrictive.

I do not agree with Senator Higgins's analysis that the ten year rule would be equivalent to an iron curtain being brought down over decisions.

Mr. Higgins

No. I referred to the insertion of the word "shall" for the word "may", which does not give any discretion to senior public servants to make a decision, even in the rarest of circumstances, to release records.

Mr. M. Ahern

The Senator says "shall". The Government's decision is that the word "shall" will be substituted for the word "may".

Amendment, by leave, withdrawn.

Dr. Henry

I move amendment No. 5:

In page 9, lines 19 to 23, to delete paragraph (b).

This is a small change to the original Bill and I cannot understand the reason it is being made. Perhaps the Minister of State will explain.

Mr. M. Ahern

I will not accept the amendment as its effect would be to delete what is a necessary consequential amendment to one contained in section 12 (a) of the Bill, namely, the substitution of the words “shall refuse” for the words “may refuse” in subsection (1) of section 19 of the principal Act.

Amendment, by leave, withdrawn.

Dr. Henry

I move amendment No. 6:

In page 9, to delete lines 24 to 39, to delete paragraph (c) and substitute the following:

"(3) Subject to the provisions of this act, subsection (1) does not apply to a record referred to in that subsection–

(a)if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or

(b)if the record relates to a decision of the Government that was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned.”

Mr. M. Ahern

I will not accept this amendment as its impact would mean that communications between Ministers inextricably connected with the Cabinet process and the exercise of collective responsibility would not be subject to protection for ten years on the same basis as other Cabinet records. This would go against the general thrust of the Bill and the report of the group of Secretaries General which has clearly identified the need for enhanced protection in this area.

Dr. Henry

As I said, my concern with the Bill is not the extension, from five to ten years, of the protection of Government deliberations but that they are to be excluded from the provisions of the Freedom of Information Act.

Amendment, by leave, withdrawn.

Mr. McDowell

I move amendment No. 7:

In page 9, line 32, to delete "10 years" and substitute "6 years".

This amendment is proposed in the context of the Bill which the Labour Party introduced to the Lower House last night. It seeks to give the Government a cooling-off period within which it could discuss the impact of this provision. The Dáil is considering that Bill on which it will make a decision later today. We are looking to offer the Government an opportunity to get off the hook and take time out to consider it.

This Bill is being rushed through this month because the Government feels obliged to meet the April deadline, presumably because, once the five years are up, there will be an avalanche of requests to find out what the Government was doing this time five years ago. In order to meet the concerns of Government, we considered we would amend the existing Act by providing a full year wherein we could take a more serious look at the Bill and the operation of the 1997 Freedom of Information Act.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.

Ms O'Meara

While there is a number of significant amendments, this one has been widely publicised by the Government. I have heard some poorly informed commentators say this Bill is only about extending the five year Cabinet secrecy rule to ten years and wondering what all the fuss is about. If it was only this issue, we would not get so worked up. In a discussion on this matter on radio this morning it was pointed out that the five year rule was liberal when compared to the rule in other jurisdictions; it was said almost as if Ireland should be entirely consistent with other regimes. While it may be liberal, it is in the context of the spirit of the 1997 legislation which sought to create a real balance between the right of citizens to have access to information, particularly about how Government decisions are made, and the necessity of Government to maintain a level of secrecy from time to time.

It was the intention of those who framed the legislation that a five year rule would apply to Cabinet memoranda. The Bill before us proposes to increase this to ten years. It is before us because the Government has been re-elected. Within it there is clearly a view that the release of Cabinet memoranda relating to decisions made in 1998 could be a source of embarrassment. This is the main reason the legislation is before us. The Taoiseach does not want information on Government decisions from 1998 to be available under the Freedom of Information Act and accessible to public representatives, journalists or members of the public. It is worth looking back on the thinking behind the intentions of Government of the day regarding this provision and worth remembering the Oireachtas agreed this legislation, including the five year rule, at the time. A different view is now taken.

This amendment seeks to reduce the ten year limit to six years. It is a reasonable amendment which is consistent with the Private Members' Bill the Labour Party has published. It would give the Government one year to consult, not only on this rule, but also on what it perceives to be a need to review the legislation. This would be reasonable considering the report of the Information Commissioner, the work of the Joint committee on Finance and the Public Service which is to commence tomorrow, and the strong interest of the public in the matter as indicated by the letters pages in the national press. Having discussed this in a public way the Government could then attempt to achieve an agreed position about extending the rule to seven or more years. While there may be circumstances in which this might be necessary, it should include wide consultation and, if possible, consensus. It is not possible to reach consensus when legislation is being rushed through in this manner.

No time has been given for consideration or real discussion. It is not enough to hear the views of experts on national radio in the morning – one should hear the views of experts in proper forums and have time to consider them and to examine the legislation. We should have time to examine the operation of the Act and listen to the reaction of users with a view to reflecting those views in new legislation. That is clearly not the intention of the Government. It is not too late for it to take heed of the views of the Opposition. Accepting this amendment and dropping all the rest would give breathing space and the time necessary to institute a proper review. Amendments could then be made to this important legislation.

I have mentioned the report of the Information Commissioner. Considering there is only a little time left in this debate I wish to signal the intention of the Labour Party to table amendments on Report Stage relating largely to appendix 2 of the commissioner's report. In other words, it will be our intention to put down amendments in relation not only to the sections we have discussed so far, but also to sections 15 to 18, inclusive, 22, 23, 26, 29, 32 to 35, inclusive, 37, 42, 43 and 46 and to insert a potential new provision. I wish to signal that now in case there is a debate, as it were, on procedure with regard to Report Stage amendments. That is our intention.

Dr. Mansergh

The amendment is based on the Labour Party Private Members' Bill, which is a clever and ingenious parliamentary device such as one might expect from the leader of that party. However, it concedes the principle that five years is too short. Ten years will still be at the liberal end of the spectrum with regard to international practice.

I expressed the view on Second Stage that ten years is enough and if Fianna Fáil was to be returned to Government, I would not welcome any effort to reopen it. I am not, of course, presuming there would be such an effort. The passage of ten years, regardless of who is in Government – it may even be the same people – ought to be possible without interfering with the freedom of deliberation. Freedom of deliberation in Government, consistent with freedom of information, is at the heart of this legislation, along with creating the necessary space to make reasoned decisions.

Despite the fuss and furore about the legislation, there is little serious challenge to the change from five to ten years. The argument is about the logical consequences of doing that and what it should cover. I readily concede that five years ago people on all sides of both Houses were, perhaps, a little too enthusiastic. However, we have had five years experience to gauge what is and is not practicable. Ten years is eminently sensible. The commissioner does not say a word about this issue in either section of his report. It is a reasonable change, the purpose of which is to balance the need for good Government and freedom of deliberation within the Government with the right to freedom of information, which I also support, for the public and the media.

Ms O'Rourke

I wish to take up a point made by Senator O'Meara, who served as a valued and valuable adviser to the then Minister of State, Ms Eithne Fitzgerald. I was served in Cabinet for a number of years. The Senator said it was her belief that the reason for changing from five to ten years was to ensure that decisions taken in 1998 by the Cabinet would not now see the light of day. Given that I was a Cabinet Minister for those five years, I wish to make it clear that it is widely agreed, even if it is not often said, that this measure is not at all, to quote one of the words used this morning, outrageous. In fact, the commissioner has not commented on it. In the context of other countries, ten years is relatively early.

I cannot let the debate proceed without stating clearly that I was a member of the Cabinet for those five years and never missed a Cabinet meeting in that period. I am not seeking a good attendance mark, but simply explaining my position. The Senator seems to presume that dark events occurred because she said that events that have happened since 1998 cannot be judged in the light of day. That is incorrect. I speak not just for myself but for the general Cabinet. That should be on the record.

Dr. M. Hayes

I have no difficulty with this section—

Ms O'Rourke

Senator O'Meara can laugh as much as she likes, but it is the truth.

Ms O'Meara

I wish to clarify something. The Leader said that my remarks were incorrect. Perhaps she would clarify that. Are they technically incorrect or is it her view that what I am saying is not the case? She would say that she would be happy for any decision she made as Minister or any decision the Cabinet made while she was Minister to come out. I would be delighted if that is what she means. Perhaps she would clarify that. If that is the case, what is the problem with five or six years?

Ms O'Rourke

The fact is that I was a member of the Cabinet. It might not suit the Senator to acknowledge it, but I acknowledged the Senator's role in the drafting of the legislation. I speak for myself. Decisions might not have been popular, but that is a separate issue to decisions being taken improperly, as is the implication—

Ms O'Meara

No.

Ms O'Rourke

I did not say the Senator said that. It is the implication of what she said. It would be wrong for me, as a former Cabinet member, to sit passively and let it pass.

Ms O'Meara

A Leas-Chathaoirligh, I never—

Ms O'Rourke

I am entitled to say my piece.

Ms O'Meara

I never suggested – it cannot be implied that I did so – that anything the Leader did as a Minister was improper or incorrect. I never suggested that. If she took it up the wrong way, I apologise. I said that this measure was about the Taoiseach exercising control over decisions which were made in 1998 and which he does not want to be revealed. There is no other suggestion. I wonder what is causing the sensitivity. There is no suggestion in the opinion I offered that anything the Leader did as Minister was improper or incorrect in any way.

Ms O'Rourke

I was speaking in a collective sense. One person at the Cabinet table does not take a decision; they are collective decisions. Although I spoke in my own voice, I spoke on behalf of collective Cabinet decisions.

Dr. M. Hayes

I do not wish to intrude on private grief or private quarrels. If I do, I apologise in advance. I have no difficulty with this part of the Bill, but I have enormous problems with the later part, which we will discuss later. Five years is too short. The proper limit is a matter for discussion. Ten years does not appear to be extravagant. I differ from the conclusion drawn by Senator O'Meara. It is not necessarily a desire to cover up what happened five years ago, but to preserve the vitality and the integrity of the discussions that take place.

It is hugely important that people engaged in that argument feel free to do so. I would be more enthusiastic in propounding that view if some of the Ministers who are so anxious for the ten years limit were not themselves leaking information when it suits them.

Ms O'Rourke

That is an eccentric remark.

Dr. M. Hayes

Yes, I am an eccentric person and I am entitled to be so. Of course, I am drawing on experience from elsewhere, as one would know, rather than in this jurisdiction.

Being what it is, I do not think human nature is likely to change. A serious point that would arise in any business or grouping is that people must be free to have discussions. As to how long the record of such discussions should remain inaccessible under the freedom of information legislation, I think the lifetime of two Governments, or something of that order, would be a safe period. There is a real danger of developing a culture of reticence whereby people will not say what they otherwise might or should say and where people will not commit anything to paper.

I recall going into an American Government office shortly after the freedom of information law had been enacted there and I asked an official how he dealt with personal files and other such details under the new legislation. He held up a sheet of yellow sticky pads and said, "That's the way we do it and we scrub them all off when the files have to go anywhere". That attitude is also wrong, however, so we must strike a balance. The balance being struck in the Bill is not all that bad.

While we have not come to it yet, I have severe difficulties with the next part of the section because the line is being drawn too widely about what might constitute Government business. On the narrower point, however, I think the ten year period is not unreasonable.

Mr. Higgins

I will be brief because in the time left at our disposal it is obvious that we will be hard pressed to reach some of the other essential parts of the Bill.

I agree with Senator Maurice Hayes that people have a certain right to discuss their business in confidence, but for how long should the veil of secrecy prevail? We have to get the balance right. Senator Mansergh said that the Labour Party's amendment concedes the principle that five years is too short. It recognises the fact that the Government has a difficulty, but it does provide a breathing space of one year. It is a sensible amendment which provides the Government with an escape hatch. Certain members of the Government – perhaps the Government as a whole – might think ten years is too long a period within which to keep records totally under wraps. We should support the amendment.

Mr. O'Toole

I agree with Senator Higgins's assessment. Effectively, for the first time in three days, the Government side is right about an argument. I happen to agree with what Senator Mansergh is saying. I said the same thing in 1997 when I considered that five years was too short a period and I still believe that to be the case. I support the amendment for the reasons given by Senator O'Meara, namely, that it gives a year to allow the Government to make a proper assessment without having to open up confidential records. This just means that we will return to it in a year. As many speakers and I said on Second Stage, the period should be a minimum of ten years. I am uncomfortable, however, in dealing with an aspect of the Bill about which Fianna Fáil and the Government side of the House generally are comfortable. I would like to have a vote on this amendment before moving on to the matters about which the Government side is excruciatingly embarrassed.

In yesterday's debate, the Minister of State quoted an authority – a woman whose name I do not recall – in support of some argument. Perhaps he could clarify who that person was.

Mr. M. Ahern

That was Maeve McDonagh from UCC.

Mr. O'Toole

What she was saying today on "Morning Ireland" was significantly different from the views the Minister of State attributed to her last night.

Mr. B. Hayes

Correct.

Mr. M. Ahern

I did not hear "Morning Ireland" so I cannot comment on that.

I will be opposing the amendment. The Government is satisfied that commencement of the release of Cabinet records after five years would prevent the articulation of views by Ministers in memoranda and other records coming to Government. This would be detrimental to a process which relies on Ministers freely articulating views prior to their submission to Cabinet so that there is the maximum opportunity to forge a consensus. I do not believe that a one year extension from five to six years would serve to address these concerns in any meaningful way. The Government has taken the considered view that a ten-year period of protection is necessary so that Ministers can continue to have confidence that views given by them in memoranda will be sufficiently protected. A period of ten years, which is still very short by international standards, represents a reasonable balance between the requirements of openness and transparency and the need to ensure that the processes of Cabinet function effectively.

Question put: "That the figure and word proposed to be deleted stand."

Tá

Brennan, Michael.Callanan, Peter.Cox, Margaret.Daly, Brendan.Dardis, John.Feeney, Geraldine.Fitzgerald, Liam.Glynn, Camillus.Hayes, Maurice.Kenneally, Brendan.Kett, Tony.Kitt, Michael P.Leyden, Terry.Lydon, Don.

MacSharry, Marc.Mansergh, Martin.Minihan, John.Mooney, Paschal C.Morrissey, Tom.Moylan, Pat.O'Brien, Francis.O'Rourke, Mary.Ó Murchú, Labhrás.Ormonde, Ann.Phelan, Kieran.Walsh, Kate.White, Mary M.Wilson, Diarmuid.

Níl

Bannon, James.Burke, Ulick.Coghlan, Paul.Finucane, Michael.Hayes, Brian.Henry, Mary.Higgins, Jim.McCarthy, Michael.McHugh, Joe.

O'Meara, Kathleen.O'Toole, Joe.Phelan, John.Quinn, Feargal.Ross, Shane.Ryan, Brendan.Terry, Sheila.Tuffy, Joanna.

Tellers: Tá, Senators Minihan and Moylan; Níl, Senators McCarthy and O'Meara.

Question declared carried.

Amendment declared lost.

Mr. Higgins

On a procedural point, as there are still quite a number of amendments to be dealt with, can amendments Nos. 8, 9 and 12 in my name, which all deal with the role of the Attorney General, be taken as a group in order to expedite matters?

An Leas-Chathaoirleach

They can if the Members agree to the grouping of them. Is that agreed? Agreed. Therefore, amendments Nos. 8, 9 and 12 will be taken together by agreement.

Mr. Higgins

I move amendment No. 8:

In page 9, line 34 after "or" to insert "the Attorney General certifies in writing that the said decision is on a matter of vital national importance in that it relates to an issue of public health or safety, national security or the vital economic interests of the State and upon the Attorney General so certifying a period of 10 years shall be required before subsection (1) shall apply, or".

These amendments have the same purpose, which is to limit the impact of the extension from five to ten years to those decisions the Attorney General is willing to certify as vital to the national interest. I have cast the net quite wide regarding areas the Attorney General could define in that way. We are saying the five-year rule should apply in normal circumstances, but that, in extreme circumstances where the national interest is determined by the Attorney General as being central to the release of these records, he or she would have to certify those decisions. The areas are the same in the three amendments and if the Attorney General certifies the decisions they will be kept under wraps for ten years. That is, if the Attorney General certifies in writing that the said decision is on a matter of vital national importance in that it relates to an issue of public health or safety, national security or the vital economic interests of the State, upon the Attorney General so certifying, a period of ten years shall be required before subsection (1) shall apply.

Mr. B. Hayes

I second the amendment. The argument is that the Attorney General should be the deciding officer when it comes to determining what information should be published in the national interest.

The Attorney General is in a unique position in Cabinet. If not a Deputy, he or she does not speak publicly on issues, although the previous holder of the office did so. The Attorney General has a knowledge of all Departments because he or she is not only legal adviser to the Taoiseach but also to the Cabinet. That gives him or her the independence and knowledge of Departments to be able to make this call. Everyone understands and accepts that it is important that some documents, particularly those relating to Northern Ireland and other matters of national security, should not be published. There is merit in asking the Attorney General, who is legal adviser to the Government on most issues, to take this position and Senator Higgins's amendment is constructive in that it concedes on the ten-year rule for areas of national interest. The suggestion has merit.

Dr. Mansergh

While I understand the reasoning behind the amendment, we are discussing freedom of deliberation for Government consistent with freedom of information across the board. It is artificial to pick out particular areas which would require judgment; a simple rule would cover the entire business of Government. The ten-year period is reasonable and is liberal by international standards. We should not divide Government business into different categories. The Attorney General has an enormous amount of work to do and I would not add to it in this way.

Mr. M. Ahern

I oppose amendment No. 8, which would qualify the protection that is available to all Cabinet records in a way that is not applicable under the existing Act. I am satisfied that the potential for the release of such records to undermine collective ministerial responsibility is not limited to the categories set out in the amendment. It is notable that the framers of the original Act did not restrict the protection available for Government records in this way, nor would one find much support for such restrictions in FOI legislation overseas.

Regarding amendment No. 9, the group of Secretaries General argued cogently for the need to protect ministerial communications relevant to ongoing or pending Cabinet deliberations. The potential for the release of such records to undermine collective ministerial responsibility is not limited to the categories set out in the amendment, which I also oppose.

I also oppose amendment No. 12 as the Government is satisfied with the continuing need to protect Cabinet records as a class, including records of committees established to support Cabinet decision-making. The potential for the release of such records to undermine collective ministerial responsibility is not limited to the categories set out in the amendment.

The Attorney General's role is to give advice to the Government on a wide range of complex legal issues. It is not appropriate that he or she would have a certifying role regarding freedom of information.

Mr. Higgins

Regarding the Attorney General's role in advising the Government on a range of issues and the Minister of State's comment that it is not the role of the Attorney General to provide certification, who said that? That has come from the Minister of State's advisers, but there is nothing to stop the Attorney General from being given this power. As Senator Brian Hayes said, the Attorney General is in a unique position in that he or she is of the Government yet detached from it as its legal adviser. The Attorney General is in a position to advise the Government in a dispassionate, non-political way on which issues are in the national interest. We have kept the provision both wide and precise enough on issues such as health, safety, national security and the vital economic interests of the State. Those are the categories in which we would ask the Attorney General for a clear definition.

I am sure the Attorney General often gives a written opinion to the Government. We want him to give a written opinion on whether the information sought comes under these categories, should not be released and comes under the extension of time from five years to ten years.

Mr. Dardis

It would be inappropriate to confer this duty on the Attorney General. I do not dispute what Senator Higgins has said regarding the role of the Attorney General, but it would be going a step beyond that to give him an executive function and ask him to make decisions which could have direct political implications. From that perspective, he or she would not be the appropriate person to do this. I also subscribe to the argument put forward by the Minister of State that one either includes everything or one excludes everything. If one gets into the business of saying it should be A, B or C, there is a recipe for total confusion.

Mr. M. Ahern

As Senator Dardis said, it is not appropriate for the Attorney General to become involved in executive decision-making. He or she has a role in advising the Government and it would not be appropriate to change that role to give the Attorney General decision-making power.

Mr. B. Hayes

There is some suggestion that the Attorney General and his office have no role regarding the freedom of information regime. However, his office must circulate documents when there is a request from members of the public.

Mr. Dardis

All the more reason to exclude the Attorney General.

Mr. B. Hayes

There was some suggestion in what Senator Dardis said that the Attorney General is completely excluded from this. While the Office of the Attorney General is within the Department of the Taoiseach, I understand it is separate and information can be obtained within it in the same way that it is obtained from other Departments and offices.

Mr. Dardis

I do not want to labour the point, but there is a distinction. Within the Office of the Attorney General, the designated person, not the Attorney General, would make the decision. That is why this amendment gives him an inappropriate function and has the potential to draw the Attorney General into political controversies in which he should not be involved.

Dr. M. Hayes

This seems to be a beautifully academic discussion. I have no difficulty with the Attorney General making these decisions because it is not an executive role but a quasi-judicial one, though we need not go into that. If we have already agreed that these papers be closed for ten years and if one applies the principle of Occam's razor, there is no point in discussing what one would do with individual papers. The discussion should really fall on that basis.

Mr. Dardis

I bow to the Senator's greater experience.

Amendment put and declared lost.

Mr. Higgins

I move amendment No. 9:

In page 9, line 39 after "concerned" to insert "or the Attorney General certifies in writing that the said decision is on a matter of vital national importance in that it relates to an issue of public health or safety, national security or the vital economic interests of the State and upon the Attorney General so certifying a period of 10 years shall be required before subsection (1) shall apply".

Amendment put and declared lost.

Mr. O'Toole

I move amendment No. 10:

In page 9, line 40 to delete subsection (d).

The amendment addresses the need for the Government to consult party leaders before taking certain decisions. Its acceptance would ensure a degree of consultation would take place with those who were Ministers during the period to which a specific request related. Earlier Senator O'Rourke reflected the thinking behind section 19(4)(a) of the principal Act when she said members of the Cabinet, both individually and collectively, would have a view on matters raised under freedom of information requests.

While the original Act was being passed, the current Government parties, the then Opposition, supported with alacrity the consultation process outlined in subsection 19(4) which remains an important part of the Act. I call on the Minister of State to continue his party's initial policy of support for it.

Dr. Henry

I strongly support the comments of Senator O'Toole. Common politeness suggests it would be advisable to inform former Ministers of what might be coming down the tracks in terms of the disclosure of information. They should at least know the nature of the request.

Mr. M. Ahern

Before replying, I wish to address an issue raised by Senator O'Toole concerning Maeve McDonagh who was mentioned in the Dáil yesterday in relation to the issue of personal information and the proposed amendment in section 4 to substitute the words "relate to" with the word "contain". I understand the focus of the discussion on radio this morning was the remit of the Information Commissioner. These are two different issues.

Mr. O'Toole

We might be prepared to accept the Minister of State's position if he accepted Ms McDonagh's advice on both issues. Now that this side has been forced to accept it on one issue, will he be consistent and accept it on a second? Senator Leyden likes consistent behaviour.

Mr. M. Ahern

He is not here today.

Mr. B. Hayes

We are making considerable progress without him.

Mr. O'Toole

We are flying through the Bill.

An Leas-Chathaoirleach

The Minister of State, without interruption.

Mr. M. Ahern

The amendment will be opposed as its effect would be to delete a necessary consequential amendment. The consultation requirements set out in section 19(4) of the principal Act will be redundant in view of the provision contained in section 12(a)(i) which substitutes the words “shall refuse” for the words “may refuse” where they appear in section 19(1) of the principal Act. The effect is to remove the requirement for consultations under section 19(4) of the principal Act.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 11 should refer to the deletion of lines 1 to 37, rather than lines 1 to 46.

Mr. O'Toole

I move amendment No. 11:

In page 9, lines 41 to 46 and in page 10, lines 1 to 37, to delete paragraph (e).

The amendment proposes to delete the text between line 40 on page 9 and the table on page 10. Why has it been changed to leave the table in the Bill?

An Leas-Chathaoirleach

The table relates to an earlier subsection.

Mr. O'Toole

That is fine. Section 12(e) is the meat of the legislation, without which I would support many of the changes being introduced by the Government. As I stated during my Second Stage speech, the crucial issues to which we object are all included in this section which is inconsistent with the report of the high level group. As I recall – I stand to be corrected – the group did not mention special advisers. The Information Commissioner states it is clear the intention of the Freedom of Information Act, as originally framed, differs from that of the high level group.

The principal Act contains certain protections for communications between Ministers. The Bill proposes to substitute the definition of Government in section 19 with a new definition. It states:

‘Government' includes–

(a) a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of–

(i) members of the Government, or

(ii) one or more members of the Government together with either or both of the following:

(I) one or more Ministers of State,

(II) the Attorney General .

I am open to persuasion as to the necessity of this part of the new definition, which is not what disturbs me most. I accept it is sometimes important not to release into the public domain issues raised during the course of deliberations. However, having passed an amendment to increase the time period before which documents will not be released to ten years I cannot accept the next part of the definition which proposes to exempt committees of officials. The proposals place a cloak around Government and officials and make every option for obtaining information more difficult.

While the top level group proposed extending the Freedom of Information Act, the Bill proposes to exempt a committee of officials which does not even include a member of the Government. It is outrageous that the deliberations of such committees should become exempt. There is no convincing argument in favour of the proposal other than that freedom of information requests are a slight irritation to Government.

Cabinet memoranda are a separate issue. The Bill proposes that where the Government establishes a committee of officials to advise it or draw up a report, its material will be exempt from the Act. This is completely wrong. It turns the Act on its head and is at the core of the proposed close-down of the Cabinet. The Bill falls apart, not on the extension of the time period for access to documents to ten years or the other matters we have discussed, but on the proposed redefinition of Government.

Having extended the definition of Government to officials the Bill then extends the definition of officials to include civil servants of both the Government and State. Not only will those working in Departments be covered but all those working for the State in other areas also. While I am not certain which employees will be covered – perhaps it includes the staff of Leinster House or other public offices – the proposal will mean that all work undertaken by such officials will be covered by the exemption.

This may be bad but even worse is the fact that spin doctors, special advisers, are also included.

Dr. Mansergh

They are lesser people.

Mr. O'Toole

They are fine people.

Mr. B. Hayes

I wish we could have some of them.

Mr. O'Toole

I have a great deal time for them. They do a very good job and I wish I had some of them working for me. The Bill proposes to place a wall of secrecy around those whose job is to control the flow of information. This is a retrograde step by any standards. The Government will probably respond by defending the honour of special advisers. I will save it the trouble; my comments are not a reflection on the decent people who work for the Government of the day.

I am unique on this side of the House in several respects. I was one of the people who wanted a longer period, which we discussed previously. I also support the idea of programme managers and spin doctors because the Government should get the right message out to the people. That makes for good Government but if the special advisers, better known as spin doctors in some cases, are now exempt, that does not make any sense.

It is completely unacceptable and there is no support for that position outside the Government parties. Does Maeve McDonagh, the authority the Minister of State quoted last night, support it? Does the Information Commissioner support it? A former ombudsman is in the House and he has offered views on this position. It is impossible to understand the reason we should put in place something which denies us access to the information provided by groups such as spin doctors and others.

I will give a classic example of what is happening currently. The Government recently set up a committee to advise it on spending in the health service, reporting directly to the Government and not to the Department of Health and Children. I do not know who is on that committee but if they are people from various Departments, we would not have access to it. In other words, the next time a committee of officials is set up to consider a vitally important issue, the information will suddenly become exempt. That is nonsense. There is no support for this position. In fact, I withdraw all references to the committee I just mentioned because I can see what will happen. We will have a 20 minute debate on its membership. Let us forget the example I gave and stick to the principle, which is that under this provision people who are preparing documentation and advising Government, even outside the deliberative process, are now exempt. That is not acceptable and everything being said by the Information Commissioner confirms that. There is no support outside Government circles for this measure.

The people who welcomed this in 1997, whoever they may be, are all opposed to it now. That is the reality. This is the wrong signal to send out to ordinary people at a time when nobody makes a distinction between various politicians. They are referred to as "those politicians". Unfortunately, we are all lumped together in that sense. This is an effort to restrict and control the information flow. It is like something from George Orwell.

Dr. Mansergh

Rubbish.

Mr. O'Toole

I realise that is embarrassing for Senator Mansergh and that it goes against all his principles.

Dr. Mansergh

It is not embarrassing.

Mr. O'Toole

We are trying to make it easy for him. I do not know why he is putting himself through all this pain. He is sharing our pain in defending a Government measure to which he is intellectually opposed in principle. That is the reality.

I might give way to other speakers at this stage, although I have not yet started on my script. I was merely warming up. I will come back to the amendment.

Acting Chairman (Mr. Dardis)

I am surprised you have a script.

Mr. O'Toole

I am speaking metaphorically. My heart is my script.

Mr. Higgins

I will be brief because we are very restricted regarding time and other Members want to come in. Article 28 of the Constitution is clear. It is headed, The Government, and states: "The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution". That is a clear definition. There is an attempt in this legislation to introduce a much broader definition of the Government. There are committees of officials, programme managers, spin doctors and advisers. Anybody the Government wants for the purpose of its interpretation of this legislation can now be defined as "Government".

I am not the only person with that view. One only has to examine the report issued yesterday, which came into our possession yesterday afternoon, from the Information Commissioner. In the clearest possible terms he states:

The proposed amendment [in section 12 of the Bill] is designed to exempt records of a "committee of officials" set up to assist the Government directly in relation to a particular matter. This is effected by substituting for the definition of "Government" currently contained in section 19(6) a much more far-reaching and constitutionally unrecognisable definition, which is, perhaps, unnecessary to achieve the objective it appears to have been designed to achieve [as explained in the explanatory memorandum to the Bill].

On the next page of the report the Information Commissioner goes on to state:

In addition, apart, altogether, from the constitutional unrecognisability of the definition as so extended, the proposed inclusion of a "committee of officials" within the definition of "Government" is likely to lead to difficulties of interpretation as the proposed amendment does not go so far as to indicate sufficiently clearly, if at all, when the expression "Government" in section 19, would admit to the possibility that a committee of officials is being referred to and when it would not.

They are two very clear expressions from the commissioner on what he believes to be a flawed section in terms of what the Government is trying to do. He refers to a constitutionally unrecognisable definition and constitutional unrecognisability. It is beyond me why the Government should put itself in a position where it is in clear conflict with the Constitution and import into the Bill a section which would have the effect of having the entire Bill struck down to facilitate the incorporation of officials, programme managers, spin doctors and so on to bring them under the title of "Government".

Ms O'Meara

Hear, hear.

Mr. Higgins

It is clear that this section is fundamentally flawed. The Government should seriously consider withdrawing it either today or on Report Stage tomorrow. Otherwise, the consequences are clear.

Mr. B. Hayes

Hear, hear.

Mr. Higgins

An independent officer, the Information Commissioner, has got legal advice on this matter and that legal advice is clear in terms of the unconstitutionality of this measure. It should be withdrawn.

Dr. Mansergh

As with every other Bill that comes before this House, I am sure the question of its constitutionality or otherwise has been carefully examined by the Attorney General. I am not a lawyer, neither is Senator Higgins. The question has been raised but one can take it that there has been clear advice on the subject.

Mr. B. Hayes

One does not have to be a lawyer to read the Constitution. It is black and white.

Dr. Mansergh

Modern government is quite complex.

Mr. O'Toole

So let us make the move.

Dr. Mansergh

The fallacy of the argument being made is that it assumes that anything done, said or written by officials, special advisers, spin doctors or whatever is covered by this exemption whereas in fact the clause is very tightly drawn. It states: "(b) a committee of officials . appointed by the Government for the purpose of assisting the Government in relation to a particular matter that has been submitted to the Government for their consideration”. Many issues come before Government that involve complexities on which the Government finds it necessary to have further study and deliberation. It may be a sub-committee attended by both Ministers and officials. It may be delegated to senior officials like the Secretary General of the Department of the Taoiseach and one or two other officials and occasionally, although not very often, it can include special advisers, more so when the rainbow Government was in office and the Department of the Tánaiste was mainly made up of such people.

Mr. O'Toole

That remark does not become the Senator. It is irrelevant.

Dr. Mansergh

I am being factual. It is not a pejorative statement, it is a factual statement.

Mr. B. Hayes

They spoke to each other at that time.

Dr. Mansergh

The crux of the argument is that it is not possible to separate the deliberation of Government to purely what takes place at the Cabinet table. Much spadework has to be done before going into Cabinet and the important decisions are almost never taken at the first meeting. Some matters are discussed several times before a decision is made and senior officials have to tease out details. We are talking about the process as a whole. Bearing in mind that even this section is subject to the Information Commissioner, contrary to what the Senators opposite maintain it is tightly drawn. It is not related to anything officials or special advisers may do. It is not a blanket exemption, but a tightly drawn one affecting a group appointed by the Government to resolve a difficulty in respect of a decision it must make. As it relates to that type of work, it is perfectly defensible.

Ms O'Meara

Senator Higgins has elucidated the comments of the Information Commissioner on the issue of extending the definition of Government, particularly in relation to this constitutional unrecognisability. I fully support his remarks. It is extraordinary that a Bill containing a provision which an independent officer would call constitutionally unrecognisable should come before either House of the Oireachtas. Senator Mansergh said that modern Government is complex. However, the Constitution is very clear on what constitutes Government in this country and that is unchangeable. Although I am not a lawyer, it seems to raise a major question over the constitutional reliability of this legislation.

Senator Mansergh stated that the Government's intentions in respect of the committee of officials are clearly set out in the legislation. He also stated that the committee would assist the Government in a particular matter. However, the section later defines an official as "a person holding a position in the Civil Service or the Government or the Civil Service of the State" and "a special adviser". Having been a special adviser, like Senator Mansergh, I know they do make a contribution from time to time.

Mr. B. Hayes

What of it?

Dr. Mansergh

And will continue to do so.

Ms O'Meara

I agree. However, the third definition of an official is "a person who is a member of such other (if any) classes of person as may be prescribed."

Mr. B. Hayes

Unbelievable.

Ms O'Meara

Anybody walking down the street could be told they are an official.

Mr. O'Toole

I am sure Senator Mansergh knows of a good reason for that.

Ms O'Meara

The 102 task forces, committees, etc., currently operating under the aegis of the Department of Health and Children – which provide cover for the Minister and replace the need for decision-making in his Department – would obviously come under the exemption contained in this provision. The section also provides that it is mandatory for the workings and writings of these officials to be exempt. This is the extent of the blanket of secrecy thrown around Government decisions. As Senator O'Toole said, this is very much personified in the section. It goes to the heart of the intention behind this amending legislation, which is concerned with covering decision-making. The Bill is also concerned with covering documents produced during the process of decision-making, a matter to which Senator Mansergh referred.

I ask the Minister of State to provide an example of one Government decision that has been harmed, undermined or affected in a negative fashion by the operation of the Freedom of Information Act 1997, particularly concerning documents relative to the deliberative process. I was quite interested to read Frank McDonald's article about Stadium Ireland in today's edition of The Irish Times. That article might explain why the Taoiseach has proposed the legislation. The freedom of information legislation allowed the public to find out about the potential overrun on the Taoiseach's pet project, Stadium Ireland. This revealed how much it would could cost the taxpayer and how decisions were being made. Is that why the Bill is before us today?

Mr. O'Toole

It could explain it.

Ms O'Meara

I cannot resist making a point about Cabinet secrecy and the debate that took place in 1997. I know the Acting Chairman is in a neutral position. The PD spokesperson at the time, Deputy O'Donnell, said that section 19 of the legislation did not go far enough. She tabled an amendment, accepted by the then Minister of State, Eithne Fitzgerald, which narrowed the exemptions for documents going to Cabinet. This was mentioned in last weekend's Sunday Business Post and I would like to thank Mr. Vincent Browne.

Mr. B. Hayes

I feel a revolt coming on.

Mr. O'Toole

As our current Leader would say "That was then and this is now".

Ms O'Meara

It is important from the public's point of view to point out the utter inconsistency between the PDs' position in 1997, when they were in favour of open Government and criticised then Minister of State for not being open enough. That party tabled an amendment, which the Minister of State accepted, in order to ensure that the legislation would be as liberal as possible and that the issue of Cabinet confidentiality would not be used in such a fashion as to keep the public in the dark.

Mr. O'Toole

Will the Acting Chairman indicate if this is true?

Acting Chairman

Senator O'Toole knows this very well. He keeps asking me questions he knows I cannot answer and he did the same yesterday.

Mr. O'Toole

I feel so embarrassed for the Acting Chairman.

Acting Chairman

I am well able for embarrassment.

Ms O'Meara

To save the Acting Chairman further embarrassment, perhaps I should point out that at the time Deputy O'Dea called the Bill a grave disappointment. He said it was minimalist and called for the repeal of the Official Secrets Act, which he said was excessively restrictive.

Acting Chairman

I was tempted to tell the Senator earlier that she should not refer to people in the Lower House and I do so now.

Mr. O'Toole

On a point of order, it is quite in order to quote from speeches made in the other House.

Ms O'Meara

While I accept it is a political point, it is very relevant to this debate. This is particularly true when one considers that the ideology of the party now in power with the major political party has changed dramatically. That fact needs to be pointed out to the public in general.

Acting Chairman

I remind Senators that several people are offering and they should be conscious of the time if they want to hear the Minister of State's response.

Mr. B. Hayes

Is he accepting the amendment?

Mr. O'Toole

Is the Acting Chairman proposing to guillotine this discussion? Is it embarrassing the Government? I hope nobody hears about this.

Dr. Henry

All the points have been covered. I previously stated that the definition of official is so wide that, as Senator O'Meara pointed out, anybody can be included. On the Order of Business I mentioned all the committees within the Department of Health and Children. The real problem is that they do not report and now we will not be able to find out anything about them.

I would like to read into the record the last words in the report by my new friend, the Information Commissioner. I am glad that I supported his appointment. I never thought I would find him so valuable. He states:

Accordingly, it would appear that defining "Government" in such a way as to include a "committee of officials" may be an overly loose, unclear and inefficacious way of achieving what the Explanatory Memorandum sets out as the goal of the proposed amendment.

This will return to haunt the Government as one of the most stupid items of legislation ever to come before the House. Like everyone else, I do not mind the change to ten years. This is the nub of the Bill. We will not be able to get information on anything once two or three people, who might have come in off the street, have gathered together and stated that they are acting in the Government's name.

Dr. M. Hayes

We do not want to elevate the words of my old friend, the Information Commissioner, to the status of holy writ any more than we would want to elevate the words of the high level committee. There could have been better constitutional proof reading of this section because Bills have gone to the Supreme Court before on this ground and been found wanting.

I have great difficulty with this section. While I supported extension of the closure of Cabinet papers to ten years, I expected an extension of that order would be paralleled by a relaxation rather than a tightening of the restrictions. A line must be drawn but in this case it is too broad. I agree with Senator Mansergh about the complexity of modern government but developing a domino theory along these lines could cover everything. It might be snobbish of me but I take offence at the extension of the status of civil servants and special advisers to include people of any description found about the place, although that might be a form of eccentricity on my part.

We should take another look at this matter on Report Stage to ensure the mantle of secrecy cannot be so easily thrown over any group or subject. Background papers are vital when one is making an assessment. I have written reports for Government on various issues and always tried to ensure I had the right of publication because if I am to be hanged, I want to be hanged for what I said myself, not for the gloss some Minister puts on it.

This is an important part of understanding what government is about. It is in the interests of good government that we do not draw this too tightly.

Mr. B. Hayes

The intention of the original legislation in 1997 was to let the public see the workings of the decision making process. That was the serious purpose of the Act. The tittle-tattle about Ministers going to Honolulu for St. Patrick's Day and how much it cost and how many they took, the tabloidisation of FOI, was irrelevant. The most significant sections concern decision making.

By excluding committees, expert groups which report to Government and background papers, Ministers are being denied the opportunity to be seen to make decisions independently. I suspect that the Minister for Finance, Deputy McCreevy, is totally opposed to this. He regularly reads reports from expert groups and comes to the totally opposite opinion. He is entitled to do this, he is a politician who stands up and says he disagrees with civil servants and when he stands for election, he takes the rap one way or another. I admire the guts he has shown, although I might not agree with the positions he has taken.

What is so wrong with allowing reports from expert groups being made public, whether an issue is resolved? Senator Mansergh said last night that the views of the taxation strategy group would continue to be published. I would like to hear the Minister of State's view because I doubt they will be.

When tax individualisation was introduced, there was a huge public debate on the issue. We were entitled to know the views of the expert group which helped the Government form opinions. It was good for politics. It is good for the public to see that there is real debate among those who give their views to Ministers. That was the objective of the legislation. All the other stuff about how much trips cost and the class at which a Minister travelled is irrelevant.

This is at the heart of the public knowing about the Government decision making process. By excluding committees from the workings of the FOI regime we are doing a huge disservice to the dissemination of information in the State.

Dr. Mansergh

I do not read it that way. Senator O'Meara quoted the 1997 debates. We have seen in practice in the last two days something that is not always understood – the job of the Opposition is to be devil's advocate. She has played that role well.

Ms O'Meara

It is also my job to reflect certain political opinions.

Mr. O'Toole

There are also Independent Members.

Dr. Mansergh

It is not necessarily a reflector of what that party would do if it was in government. It is the Opposition's job to put the opposite point of view to that of Government.

Mr. O'Toole

So what is the role of Independent Senators? What is the role of Senator Maurice Hayes?

Dr. Mansergh

It is their role to put independent points of view. As Senator Dardis is tied by being in the Chair, I will give my understanding of the Progressive Democrats ideology.

Mr. O'Toole

The Senator is going to interpret the Progressive Democrats ideology? This should be good.

Dr. Mansergh

I understand it as a liberal ideology. The party is associated with the Liberal group in the European Parliament.

Mr. B. Hayes

This Bill is not liberal.

Dr. Mansergh

The end result will be very liberal. I read this key section in a much more restrictive fashion. It is not meant to cover the reports of expert groups or advisory groups. The interpretation of this section will be decided by the Information Commissioner when disputed cases arise.

Mr. B. Hayes

We know the commissioner's view.

Mr. O'Toole

He has already told us.

Ms O'Meara

The Government has tied his hands. These are his instructions

Dr. Mansergh

Where a difficult decision comes to Government and issues are referred back for further study to a committee of Ministers, Ministers and officials or even senior officials, that is different from the reports of expert groups.

Mr. Higgins

The groups which will be covered by this are made up of good people but they cannot be considered a part of Government.

Dr. Mansergh

This section should be interpreted very tightly as relating strictly to the deliberative process at Cabinet and intermediate stage.

Ms O'Meara

The Senator should read the Bill.

Dr. Mansergh

That is what it states. The Opposition talks about blanket exemptions but there is none. If any official tried to operate a blanket exception, he or she would be shot down by the Information Commissioner.

Ms O'Meara

Read the Bill.

Mr. O'Toole

There is no restriction on the number who may be prescribed under the Bill.

Dr. Mansergh

In my experience it is very rare that there are outsiders at meetings of officials or of officials and Ministers. To address the concerns of the House, section 12(2)(c) could be clarified.

Mr. Ryan

On the Order of Business this morning I asked about the procedure to be used at 4 p.m. At that time 15 sections of the Bill will remain. I pointed out this morning that under Standing Order 107, all sections would have to be debated unless Standing Orders were overruled. As no motion has been put before the House to overrule Standing Orders, I would like the Acting Chairman to clarify what will happen at 4 p.m.

Acting Chairman

The Senator will find out at 4 p.m. what will happen.

Mr. Ryan

That is not acceptable. The House is entitled to have its Standing Orders recognised.

Acting Chairman

I am confident that Standing Orders will be complied with at 4 p.m.

Mr. Ryan

Perhaps the Chair will tell me at that stage which Standing Order is being applied.

Mr. Quinn

Although I have been a Member of this House for ten years and taken part in debates on quite a few Bills, I have never seen anything like section 12(2)(c). It becomes meaningless if one includes a provision referring to “a person who is a member of such other class as may be prescribed”. Why take a page and a quarter to deal with this, rather than simply making it applicable to any committee that contains anybody? It is just ridiculous.

What really saddens me is that this Bill contains quite valuable measures but is spoiled by the inclusion of this provision. A number of Senators have expressed their agreement with the extension of the five year period to ten years. It is acceptable that any legislation should be reconsidered after five years. However, to include something as foolish and outrageous as, in effect "this covers everybody" is totally unacceptable. It could just as easily have been stated in one line on the previous page.

I am disappointed that we have ended up in a situation where this Bill is being rushed through the House. I will be even more disappointed if we do not get the Minister of State's response. I hope we will at least hear his response and that we will not be subjected to the guillotine as has been suggested.

Acting Chairman

As it is now 4 p.m., I am now required to put the following question in accordance with an order of the Seanad of this day: "That amendment No. 11 is negatived, that each of the sections undisposed of is hereby agreed to, the Title is hereby agreed to and the Bill is reported without amendments." Is that agreed?

(Interruptions).

Mr. Ryan

There is no question before the House other than the amendment.

Mr. B. Hayes

The Minister of State must reply.

Mr. Ryan

We are entitled to have a written motion to that effect put before the House. I will not stand for a charade.

Acting Chairman

I have put the question.

(Interruptions).

Mr. Ryan

The Leader's predecessor never guillotined a debate in this House.

Mr. B. Hayes

On a point of order, we have opened a discussion on an amendment and this House is entitled to hear the Minister of State's reply to that amendment.

Acting Chairman

As the question has been put, we cannot take points of order.

Mr. B. Hayes

I respectfully ask the Leader to provide at least some time to hear the reply from the Minister of State to this very significant amendment which is at the heart of the Bill. I ask the Leader to allow the House to hear the Minister of State's reply to that amendment.

Ms O'Rourke

When the question has been put, as I understand it, there can be no further debate.

Acting Chairman

The question has been put. I will repeat it if necessary.

Mr. O'Toole

We never had a guillotine in the previous term of the House.

Acting Chairman

That is not a point of order. The question has been put.

Mr. O'Toole

It is not acceptable that this debate is being guillotined. It is the choking off of a flow of information. It is quite outrageous—

Acting Chairman

The question has been put.

Mr. O'Toole

—and I do not know what the Government is worried about.

Mr. B. Hayes

I wish to inform the House, on behalf of my group, that we are withdrawing from this Stage of the Bill as it serves no purpose whatsoever to continue with this charade.

Acting Chairman

The question which has already been put is as follows: "That amendment No. 11 is negatived, that each of the sections undisposed of is hereby agreed to, the Title is hereby agreed to and the Bill is reported without amendments." Is that agreed?

(Interruptions).

Mr. Ryan

That is not in accordance with Standing Orders. I challenge the Acting Chairman to tell me where, in Standing Orders—

(Interruptions).

Mr. O'Toole

It is disgraceful.

Acting Chairman

It is in accordance with Standing Orders and the Chair does not have to justify its rulings.

Mr. Ryan

The Acting Chairman has not got the authority to do that.

Acting Chairman

I do have the authority. I am in the Chair, I have ruled that the question is in accordance with Standing Orders and I do not have to explain to the Senator.

Mr. Ryan

I propose to raise this at the next meeting of the Committee on Procedure and Privileges.

Acting Chairman

There was an order of the House and the Chair has carried out that order.

Mr. Ryan

I regret that Senator Dardis is in the Chair because he is a very decent and honourable person, but that is not the way to do business. The Government is running away from its responsibility.

Acting Chairman

The Chair carries out the order of the House and has no function or responsibility other than to do so – and to do it properly.

Mr. Ryan

The Government side will not even put down a formal guillotine motion. They should be ashamed of themselves.

Mr. O'Toole

On a point of order, it is absolutely disgraceful that we have been stopped from doing our business as legislators by going through the Bill section by section.

Acting Chairman

That is not a point of order.

Mr. O'Toole

It is the first time we have had a guillotine. We went through the entire previous Seanad without a guillotine. It is an appalling decision to take at this stage. It reflects very poorly on the Government as well as on the House.

Mr. Ryan

This will have an effect on the attitude of Opposition parties to Government business.

Mr. O'Toole

Out of respect for Deputy John Bruton, who is about to address the House, I will not continue my argument but I completely reject what has happened. It is absolutely disgraceful.

Mr. Ryan

And it will have repercussions.

Question put and agreed to.