Freedom of Information (Amendment) Bill 2008: Second Stage.

Senator Dominic Hannigan

I move: "That the Bill be now read a second time".

I welcome the Minister of State at the Department of Finance, Deputy Noel Ahern. The Labour Party believes that the best form of government is open and honest. The reputation of politicians on this island suffered in the 1970s, the 1980s and in the early 1990s to the point where permanent changes were needed to the way we operated and did our business. It took the introduction of three Acts to provide the foundation for a code of moral practice for parties in Government.

The first Act to which I refer is the Ethics in Public Office Act 1995 which was designed to draw a line between the business interests of politicians, their private interests and their role as public representatives. It introduced stipulations regarding disclosure of donations, gifts and any other interests. The Electoral Act 1997 was designed to expose political expenditure, party donations and electoral spending. The third Act was the Freedom of Information Act 1997 which was established to lift the veil on Government and to allow people to get access to information on how their Government worked for them.

The Minister's brother, our outgoing Taoiseach, Deputy Bertie Ahern, in an enthusiastic speech at the time of the introduction of the Freedom of Information Bill in 1998, said it was essential in order to deepen our democracy. I do not think his enthusiasm was very long lived because only four years later five Secretaries-General from various Departments got together, headed by the Secretary-General from the Department of the Taoiseach, to review the operation of the Freedom of Information Act. After six months of review they presented a 21-page document to the then Minister for Finance, former Deputy Charlie McCreevy, outlining some changes that they wanted to see in the legislation.

It was not clear whether other Ministers, civil servants or Freedom of Information committees in any of the Departments were consulted at the time. Was the Information Commissioner consulted? My fear is that none of those people was consulted. The result of the review was that several changes were introduced to the operation of the legislation. There was a ten-year exemption on all Cabinet papers — along with a broadened definition of a Cabinet paper and a Government meeting. This meant more and more documents were included in the exemption process.

There was then a review of the information pertaining to policy development. This effectively disallowed members of the public from seeing how policy was put together and formulated, who weighed into the decisions and what was said by whom. There was a dramatic broadening of what constituted a concealable document by the Department of Foreign Affairs. This was broadened to include various EU negotiations. This flies in the face of what we are trying to achieve at the moment as regards the Lisbon treaty, when one of the benefits we are advocating for people is more accountability and more openness. The Council of Ministers has to be open to the public when legislation is being discussed, yet one of the changes to our legislation a few years ago made it more difficult to find out what was going on when it came to European Union negotiations.

The other area where change was introduced was in regard to fees. A fee of €15 to €150 was attached to applications under the Freedom of Information Act. This has resulted in a significant reduction in the number of applications. In the first quarter of 2003, there were 3,000 applications. This dropped off in the second quarter to 1,700, after the introduction of the fee and by the third quarter there were just 1,000 applications. The fee effectively reduced the number of applications by two-thirds. Also, a fee of €150 was introduced for the appeals process. When we tried to find out how this was justified, we were told we could not have this information under the Freedom of Information Act. One of the problems is that it has become more and more difficult to get information as a result of these fees.

These amendments have led to further increases in the number of exemptions allowed. As a result people such as the Information Commissioner, Emily O'Reilly, have called for the abolition of these fees. She claims the public is being put off by the costs involved in seeking information. Commissioner O'Reilly even pointed out that Ireland is out of line with the European Commission which does not charge any fee for freedom of information requests.

There is a necessity for bodies such as the Central Bank and the Garda Síochána to be included in a properly working Freedom of Information Act. The Labour Party has included a proposal in this regard in the legislation it is proposing today. We are seeking to re-establish the Freedom of Information Act in its entirety. We want to eliminate the cynical changes that were made a few years ago. We also want to introduce certain recommendations that the Information Commission has been pushing for over a number of years.

We seek to redefine the public bodies that will be open to Freedom of Information Act requests, including the Garda Síochána, the Irish Financial Services Regulatory Authority, the Adoptions Board, the Personal Injuries Assessment Board, the Law Society and many others. Since the introduction of the Government's amendments in 2003, many Departments have sought refuge from the Irish public by hiding behind clauses of secrecy provided by other Acts, and this Bill will introduce more than 70 specific provisions to end that and guarantee that the Irish people have full access to information. It will abolish the regressive 2003 amendment that introduced fees for FOI applications and appeals. At the time the then Minister for Finance, Deputy McCreevy, estimated that each application was costing about €400. The total cost of producing them was about €5 million at the time. It is clear the Government is well aware of the costs of open government, but still has no concept of the value freedom of information produces.

The Labour Party is not the only group calling for the changes proposed today. As I said, the Information Commissioner has strongly criticised the Government for what has happened to the original Freedom of Information Act. This week the most recent OECD report was published. It states:

The government should reduce barriers to public information by making all requests under the Freedom of Information Act 1997 free and extend its reach to a wider range of state agencies.

While user charges may limit frivolous requests, they also serve as a disincentive to greater openness.

We believe it is time the Government took the hint from sources such as the OECD and the Information Commission. It is time it began to trust the public again and we believe this Bill will reintroduce open and public government.

Senator Phil Prendergast

In 1997 we saw the introduction of the Freedom of Information Act which obliges public bodies such as Departments, the HSE and local authorities, among others, to publish information on their activities and to make personal information that is held available to citizens. The Act also provides for assisting members of the public in "obtaining access to the greatest extent possible" to information in the possession of public bodies, with a provision that people should also have the right to have inaccurate information corrected.

With regard to the latter, this was and continues to be a very basic and important right for the citizens of Ireland in an ever-growing world of computerisation and compilation of databases, where the risk of inaccuracies grows with the continued development of such means for acquiring and storing information. The Freedom of Information Act was a step toward openness and transparency founded on the belief that public bodies, in their positions of power, must be accountable to the public they serve. While the ideal is excellent, over the years the original idea of total transparency differs enormously from what has evolved. The initial Freedom of Information Act that was to provide for improved accountability and ease of access to information has been diminished by the large degree of delegation exercised in Departments. The Minister at the head of a Department is now far removed from the coal face and in many cases there is very little accountability in evidence.

The Department of Health and Children is a case in point. With the creation of the HSE, it appears the Department of Health and Children is no longer responsible for the management of health related issues. When a query arises it is referred to the HSE and from my experience, working on behalf of clients, it is an absolute nightmare trying to navigate through the system and ultimately find someone prepared to take any responsibility or to provide a reasonable answer. That also means there is no reasonable period of time within which they are obliged to provide an answer.

In recent times, we have had the unfortunate misdiagnoses of many women. After internal investigation attributed these fiascoes to system failures, we must question the transparency in this regard. No one knows what happened despite the reports, no one is accountable and, as a result, little changes to improve the system. The service, and ultimately the type of mismanagement that created the climate where such tragedies could happen, is simply not being addressed.

In the past, the Information Commissioner has made reference to the delay in publishing reports. In particular, I refer to the commissioner's encouragement of the HSE in her 2004 and 2005 annual reports to publish reports of its inspections of nursing homes, based on section 38 of the Freedom of Information Act. This states the commissioner should, "foster and encourage the publication by public bodies of information of relevance to the general public in relation to their activities and functions generally".

In June 2005 the HSE committed itself to publishing nursing home inspection reports in response to the commissioner's 2004 annual report. The HSE was to publish nursing home inspection reports on its website as a matter of course and in October 2005, while work was reported to be advancing well on national standardised nursing home inspection and reporting arrangements, it took almost a further year before inspection reports were published. I believe that recommendations made by the Information Commissioner should be prioritised by Departments and while acknowledging the logistics involved, it should not take more than two years to implement a recommendation. In the case of nursing home reports, undoubtedly families refer to these when choosing a facility for their family members. In my eyes that is the essence of the freedom of information ethos — assessment and publication of comprehensive and current reports, which will directly influence the quality of service provided by such enterprises. However, these reports must be published in a timely manner.

In 2003 an amendment was made to the Freedom of Information Act which saw the introduction of fees of between €15 and €150, as stated by my colleague, Senator Hannigan. These charges undoubtedly led to the subsequent decline in the number of queries submitted. Prior to the amendment, in 2003 some 18,443 requests were made to public bodies under the Freedom of Information Act. This was an increase of 1,247, 7%, over the 2002 figure and an increase of 3,015, 20%, over the figure for 2001. The latest available annual report for 2006 shows that 11,804 requests were made to public bodies under the Freedom of Information Act in 2006, a decrease of 19% on the 2005 figure of 14,616, and 6% below the 2004 figure of 12,597. When the 2003 figure of 18,443 is considered alongside the 2006 figure of 11,804, it is evident that there is a clear correlation between the introduction of fees and the drop in requests.

Prior to 2003, a fairer system was in place with charges only applied once access had been granted. It is essential now that we revise the fees downwards to address the decline. Following the 2003 amendment a charge was applied on initial application for the relevant records with additional charges being put in place for applications for internal review of a refusal and for appealing a refusal to the Information Commissioner.

Excessive delegation, delayed reporting and unfair fees have had a negative impact on the effective operation of the Freedom of Information Act and we now need to address this issue in a meaningful way, returning to the original spirit of the Act of transparency, accountability and good governance.

Acting Chairman (Senator Diarmuid Wilson)

I welcome the Minister of State, Deputy Noel Ahern, on this historic occasion for Ireland in the United States.

Minister of State at the Department of Finance (Deputy Noel Ahern)

The Government will not be accepting the Private Members' Freedom of Information Amendment Bill 2008. The Freedom of Information Act 1997, as amended in 2003, provides the right balance between facilitating public access to information held by public bodies and allowing Government to function effectively. This is the aim of the Act, as set out in the Long Title which states that it is:

An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies.

It is almost exactly ten years now since the 1997 Act came into force. Over that time, more than 130,000 requests have been made to public bodies, of which the large majority have been granted. The range of requests covers the whole span of Government activities and includes requests for both personal and non-personal information, requests from members of the public, business, journalists, staff members of public bodies and elected representatives.

When the Act came into force, it applied to just 67 bodies. At regular intervals since then, the Government has extended the remit of the Act, first by extending it to local authorities and health boards, then to voluntary hospitals and subsequently to numerous other State agencies, bodies and institutions, including those in the enterprise, broadcasting and third level education sectors. In 2006 we saw the greatest ever extension of the Freedom of Information Act involving some 137 bodies. This means that more than 520 bodies are now part of the freedom of information regime. The new bodies covered by the 2006 extension include county and city enterprise boards, education support centres, regulatory bodies in the health sector and a wide range of other bodies. Full details are available on the Department of Finance freedom of information website. By extending freedom of information throughout the public service, the Government has ensured it has become a permanent and valuable feature of public administration. Work is ongoing in the Department of Finance for extension of freedom of information to a further group of public bodies later this year.

Over the past ten years, freedom of information has brought greater openness and accountability to the conduct of public business. In this regard, it has complemented a range of other measures designed to increase public confidence in the institutions of the State, including standards in public office and ethics legislation.

The success of freedom of information cannot be judged solely by statistics, a point that should be carefully considered when quoting the figures. It was anticipated before the Freedom of Information Act was introduced that it would serve to encourage the release, on an informal administrative basis, of information that would previously not have been readily available. There are many examples of this, including universities and other third level education institutions releasing students' examination scripts without requiring students to invoke the Act formally. I understand three quarters of requests for personal records from the Health Service Executive are dealt with informally, with requesters not being required to go through the formal freedom of information process. The same is true of many Departments and also the Houses of the Oireachtas. As officials know that people have the right to the information, rather than dragging them through the process they co-operate and give the information earlier. We are getting that culture of co-operation and openness established. Figures for freedom of information requests can be misleading. It is not related to charges, but to the fact that the culture of most agencies and Departments now giving the information informally without putting people through the formal system has become established

The years of freedom of information have coincided with huge advances in information technology which have facilitated the publication of information by public bodies to a degree that could not have been envisaged when the Freedom of Information Act was first introduced. People can also access much of the information themselves. The websites of Departments and public bodies now contain vast amounts of up-to-date, easily accessible information on a vast range of Government activities. I would encourage Senators to look at the excellent citizen's information website hosted by the Department of Enterprise, Trade and Employment which is regarded as an example of best practice in the EU. It provides one portal through which the citizen can access a very wide range of public information covering services and entitlements from across a range of different State agencies.

In 2002, after the Freedom of Information Act had been in operation for four years, the Government asked a high level group of Secretaries General to review the operation of the Act. Following the report of this group, the Government introduced an amending Bill which made a number of important changes to the 1997 Act. The amending Bill was debated at great length in both Houses and the Freedom of Information (Amendment) Act came into operation in April 2003. One of the key changes in the 2003 Act was the extension of the period of protection for Government related records from five to ten years. In its report, the high level group had stated:

[A]s experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short space of time.

The Government agreed with this view. For Government to function effectively and in line with the doctrine of Cabinet responsibility, Ministers must be able to express their views fully and frankly without feeling inhibited by the risk of disclosure of their views after such a short time. As the Minister for Finance pointed out at the time, by international standards a ten-year limit was still liberal and at the lower end of limitations for Cabinet related records.

Another important amendment in the 2003 Act was the introduction of upfront fees for freedom of information requests for non-personal information. While the original Act had provided that fees be charged for freedom of information requests for non-personal information, the fee regime was not working properly. Four years of experience had shown that the cost of processing an average freedom of Information request was considerable. It was estimated at the time by the Department of Finance as being €425. There were also cases of individual requesters making requests where the costs involved were clearly an inappropriate use of taxpayers' money. There were different examples of this. I could mention the example of a request for access to the diaries of a number of civil servants and Ministers that involved reading through thousands of pages of documentation. They had to be read, assessed and considered for release with personal or sensitive material deleted. One individual made 466 requests, 101 applications for internal review and 35 appeals to the Information Commissioner.

The 2003 Act provided that the Minister could set the level of the fee through regulation; it was subsequently set at €15, with a reduction to €10 for medical card holders. While this in no way reflects the administrative cost of processing an FOI request, I am satisfied it strikes a fair balance between recognising the administrative burden of administering the legislation and at the same time facilitating access to information. The fee has not been increased since 2003.

The 2003 Act also contained a number of other carefully considered measures designed to provide an enhanced protection in key areas of Government and parliamentary activity, including records relating to international relations, security and defence. It also included a series of technical measures to improve the operation of the Act.

I think it is fair to say that ten years on, FOI is now well embedded in our public administration and overall it is operated effectively by public bodies. Its implementation is well supported by ongoing investment by Departments and public bodies in training and other supports, including the central policy unit of the Department of Finance, which has a key role in overseeing the implementation of the Act across the public service. I believe the Act, as amended, strikes the right balance between the public's right to know and the effective functioning of the administration.

The Private Member's Bill before the House today seeks to row back the changes that were made in 2003. These changes were fully discussed in both Houses in 2003, they were based on careful consideration and experience and I have already recalled the background to them regarding the protection of Government records and the provision for up-front fees.

As regards the proposal that the definition of public bodies should be changed so the Act is automatically applied to a number of bodies, I do not agree this would be a useful approach. Under the Freedom of Information Act, the Minister by regulation prescribes bodies that are covered by FOI and the Act provides a definition of the bodies that are eligible for inclusion. This approach was introduced in the original Act to allow for case by case consultation with public bodies to ascertain the degree to which their functions should be covered by FOI, for example the Information Commissioner is not subject to FOI for her investigative functions, and to allow a lead-in time for preparation and training in the public bodies involved to ensure the Act is properly applied.

As regards the proposal to include additional non-disclosure provisions in the Third Schedule, the Act already provides, at section 32, a mechanism for the review of non-disclosure provisions by a joint committee of the Houses. The committee carried out such an examination in September 2006 and sought the views of the Information Commissioner and of relevant Ministers. It prepared a report that recommended the inclusion of certain non-disclosure provisions in the Third Schedule and Departments have been instructed to implement this recommendation. Therefore, this is an area that has been already thoroughly examined by the joint committee.

The Bill also contains a number of amendments, drawn from the Information Commissioner's report of March 2007. Many of these are technical in nature and relate to the practical operation of the Freedom of Information Act. However, having considered the Information Commissioner's report, I do not agree that any further technical amendments to the Act are required at this time. The operation of the Act is kept under continuous review by the central policy unit in the Department of Finance, which co-ordinates the FOI networks across the public sector, and I am satisfied the Act operates satisfactorily. If difficulties emerge in the future that require legislative solutions, they can be addressed.

To conclude, we are ten years down the road and I believe we have in place a strong FOI regime that is supported by robust administrative arrangements for ensuring proper implementation of the legislation. The legislation achieves the correct balance between making information available and providing effective Government, including through the fee regime. It is working well and change is not necessary.

Senator Dominic Hannigan

On a point of information, the Minister of State may not be aware that his speech has not been made available to us. We could request it through the Freedom of Information Act but it might be easier to use a photocopier.

Senator Liam Twomey

I was around when the Freedom of Information Bill went through Dáil Éireann in 2003 and I do not recall many concessions being made to the Opposition. There was plenty of discussion but very few Opposition amendments or views were taken on board. The Government had just been through a series of embarrassing situations due to information released through the Freedom of Information Act and was anxious to close it down before things got worse. The Minister of State may suggest that the Government was balancing the access rights of citizens with good governance but ending Government openness was the real thinking behind the 2003 legislation. Since then, to some degree, the transparency and accountability of the Government has suffered.

Some of the measures taken in 2003 were draconian. During the course of the debate in the Dáil and on Committee Stage I agreed with some of the Government's views and decisions. Regarding Cabinet papers, the extension of time from five to ten years made sense, as did the restriction of sensitive information from Departments. However, I feel that fees were used to block access to information.

In any area of Government one can find reasons to explain an action or a decision. The Minister of State related cases of vexatious requests that were made but a few individuals may have been responsible for the majority of such requests. Many people made freedom of information requests simply seeking information and I believe that in the short period the older legislation applied, it contributed to openness and transparency in Government. There were costs involved for civil servants but many civil servants were gathering and collating information they never would have expected to be subject to public scrutiny. The Act changed how business was conducted in the Civil Service with regard to record keeping and having information in an accessible format. If we had progressed down that road for the past five years we would have contributed to more open Government. This avenue has been closed and I think this was done, to a degree, out of Government self-interest, rather than a desire to look after citizens.

In discussions in this House on the public service, including the Health Service Executive, the Health and Safety Authority and numerous other State bodies, people often wonder whether negligence is involved in how business is conducted. They wonder whether incompetence exists to such a degree that something should be done. The HSE gets a great deal of bad press and some of the worst press it receives originates from Fianna Fáil Senators and Deputies who do not associate it with their actions. We really do not know if the HSE is as useless and incompetent as is claimed because we cannot get the information needed to assess it. We cannot examine the HSE's management and governance because the relevant information is not made available to us. We, therefore, do not know it is incompetent. For all we know, the HSE could be a good and well-run organisation but under resourced with too much political interference. Many Ministers do not want information pertaining to their Departments and quangos under their remit — which are becoming increasingly familiar — to become publicly available because what is said behind closed doors is at variance with their public statements. They do not want such contradictions exposed in public.

The most important reason for freedom of information is that it stems the tide of corruption in politics. When one party has been in power for a long time, a certain arrogance emerges. Having transparency in the Government and Civil Service ensures corruption and arrogance do not become endemic or embedded.

According to the Minister of State, Deputy Noel Ahern, Departments have structured themselves to ensure information becomes routinely available. This was used by Ministers to stop freedom of information requests being made. For example, information from a request from a news reporter is often put on departmental websites, available to everyone, and negating its exclusiveness. It allows Ministers to claim they are doing the most for transparency.

It would be better if such a sentiment were more genuine. Information requested and allowed into the public domain should from then be made available routinely without the need for requests. For example, every year Members' expenses are requested by the media under the Freedom of Information Act. Instead, there should a standard procedure where Members' expenses are routinely made available without the need for an annual request.

The majority considers the Office of the Information Commissioner to be independent and free from political interference. The Government should take on board its recommendations on how to improve the freedom of information process. An independent review should be undertaken of the first four years of the legislation and the past four years since it was amended. It may find an opportunity to amend the legislation to ensure better governance in the Civil Service and other public bodies.

Senator Marc MacSharry

I thank the Labour Party for introducing this Private Members' Bill. It is a better use of Private Member's business to debate a Bill rather than a motion on a particular issue. It is important the effort taken in the preparation of such a Bill is acknowledged.

The Government side, however, will not support this Bill. As the Minister of State outlined, since 1997 the Freedom of Information Act has served the country well. It was amended in 2003 and the schedule of bodies that falls under its remit has been extended on a constant basis.

When I was chief executive officer of Sligo Chamber of Commerce, I used the legislation in preparation for the chamber's bid to become a gateway centre under the national spatial strategy. Our strategy was to wait until the last possible moment and request the submissions from the other 114 towns. We then based our bid on the information we gleaned.

The freedom of information process is easy to use and not as prohibitive as some Members claimed. The costs structure involved in the process is more than reasonable. While there has been a reduction in requests since the introduction of fees in 2003, it may be found that over the entire period of the legislation, requests were already in decline.

One reason for a reduction in requests may be that more information is readily available through websites and other publications. Increasingly, our system of government is becoming more transparent. This should not be confused with individuals or groups having frustrations with the workings of some State agencies, most notably the HSE, with which nearly every Member has an issue.

The Freedom of Information Act has enshrined the rights of individuals as citizens and shareholders of public knowledge. It gives them the right to examine and review the deliberations and processes of public bodies. Every citizen has the right to know what information is held in Government records about him or her personally, subject to certain exemptions to protect key interests, to inspect files held about or relating to him or her and to have inaccurate material on file corrected. Groups and individuals who are affected by decisions of public bodies should have the right to know the criteria used in making those decisions. Decisions by public bodies should be more open to public scrutiny, thus providing greater appreciation of the issues involved in policy decisions and stronger public ownership and acceptance of decisions made.

The Act established three new statutory rights, namely, the legal right for each person to access information held by public bodies; the legal right for each person to have official information relating to himself or herself amended where it is incomplete, incorrect or misleading; and the legal right to obtain reasons for decisions affecting oneself. The main features of the Act have not required amendment since 1997. Further bodies will be included later this year under the Act. As with all legislation, as circumstances change we must keep an open mind. I admit some provisions of the Labour Party's Bill merit further reflection and I am sure the Minister will take them on board.

Requesting information from the HSE has become a lengthy process. All Members have different views on the health board system before the HSE's establishment. In my experience, one could inquire about a particular aspect of health services from the former North Western Health Board and have an answer in days. With the HSE, such inquiries can take up to several weeks. An answer will go from various bodies to the Minister and then the final draft probably goes to a public relations agency. This is not good value for money. The review of the public services as a whole, which has been alluded to by the Tánaiste, Deputy Cowen, and the release of the OECD report yesterday is to be welcomed. These could help with the frustrations many of us feel towards several Government agents, with the HSE at the top of that list.

I thank the Labour Party for bringing forward this Private Members' Bill. Perhaps we could see more of such Bills from the Fine Gael and Independent groups in the Opposition Private Members' time. By doing this we can come up with genuine improvements. While we oppose the Bill on this occasion, I am sure it could form the basis of improvements to legislation in the future.

Senator Rónán Mullen

I propose to share my time with Senator Norris. He appears to have, in the words of JK Rowling, disapparated.

Senator Jerry Buttimer

Here we go again.

Senator Rónán Mullen

I am not sure whether he did so by——

Senator Jerry Buttimer

The Senator should not make the wrong quotation.

Senator Rónán Mullen

——Portkey or through the floo network.

Senator Joe O’Toole

The Senator is so young.

Senator Rónán Mullen

I expect he will be back. Senator Norris said that he would like to speak for one minute but I doubt he will be so stingy with his insights.

Acting Chairman

It is possible Senator, with respect.

Senator Rónán Mullen

Perhaps after five minutes the Acting Chairman can notify me.

Acting Chairman

Is that agreed? Agreed.

Senator Rónán Mullen

I welcome the Minister of State, Deputy Noel Ahern, one of my local Deputies to this House. I thank the Labour Party for proposing this Bill. This is an important issue and it is essential in a democratic society that there is transparency and that people are entitled, as a matter of principle, to access information — not just about themselves — about the workings of public bodies. It is a good thing, to state the obvious, that we have a freedom of information regime in Ireland.

The Government will refer to the extension of the freedom of information regime to public bodies and the proposed extension of the legislation to further public bodies. Naturally, the Labour Party has issues with the restrictions of the freedom of information regime. This reflects the necessary balance to be struck between preventing, as far as possible, vexatious and trivial applications under the freedom of information legislation on the one hand, but also keeping in mind the presumption of a real openness that enables people to carry out their duty and exercise their rights as citizens and to access information about the workings of state and public bodies.

There are several issues deserving of special consideration with the current operation of the freedom of information regime. The imposition of fees for FOI requests is totally out of line with comparable legislation in other countries which seek to make the administration more accountable in this manner. The fall-off in the number of FOI requests since the amending legislation in 2003 illustrates the extent to which fees have curbed the number of people seeking information from the Government.

There is also an issue with the practice of creating, through stealth enactments, a series of exemptions to FOI provisions and hiving off areas of departmental competence, declaring them off limits for the purposes of freedom of information applications under section 32 of the Freedom of Information Act 1997. In drafting certain legislation, the Government has created non-disclosure enactments which authorise, or require, the non-disclosure of a record which might be the subject of an FOI request. Moreover, it has been reportedly standard practice for the Government not to properly notify the Information Commissioner as to which exemptions are being inserted in such enactments. For example, in a report to a joint Oireachtas committee concerned with the operation of the FOI Act, the commissioner stated: "in mid September 2005 my Office became aware that the FOI Act had been amended by the Safety, Health and Welfare at Work Act 2005 which had commenced on 1 September 2005". The commissioner goes on to state:

This information was given to one of my staff by a member of the public while dealing with an inquiry. The effect of the amendment is that, for all practical purposes, the Health and Safety Authority is no longer subject to the FOI Act. While I, as Information Commissioner, have no statutory entitlement to be consulted in relation to amendments to the FOI Act, it would seem sensible (and indeed many would assume this would happen) that some such consultation should take place.

The Commissioner goes on to state: "I think it is undesirable that the FOI Act should be amended in a piecemeal fashion; such an approach tends to favour the sectional interests of particular public bodies over and above the purpose and principles of the FOI Act generally". As has been said earlier about this trend, it is disquieting that Ministers can bring in legislation which essentially guts the intent and spirit of earlier legislation without reference to that statute. Given that the FOI Act is specifically intended to increase the openness and transparency of government, ongoing governmental interference seems even more troubling. A state of affairs where there is what the Information Commissioner describes as "a growing list of non-disclosure provisions" which appears to be dismantling the Freedom of Information Act, is a cause for serious concern.

It is necessary to keep under review the extent to which there is respect for the right of the public to gain access to information to allow them fully discharge their duties as citizens. The presumption must always be in favour of making information available. I grant there is a need to limit it by reference to preventing vexatious requests and important matters which need to be undisclosed and remain confidential in the interests of fairness, security, justice and so on. It is important that we do not have a stingy and mealy-mouthed attitude to the right of the public to access information. I commend the Labour Party for raising this matter.

Senator David Norris

I thank my colleague, Senator Mullen for sharing time. I have but a few brief observations to make. I congratulate the Labour Party for putting down this Bill. It is the same Bill that has been presented to the Dáil by Deputy Joan Burton and it is a very good day's work.

Most of the time I come across freedom of information business when I get a slip saying that some newspaper has inquired into the expenses of all Members of the Oireachtas. Sometimes the requests are rather prying and looking to rake up a little muck and fire it at politicians. However, it is all in the interests of public accountability and I have no problem with this. We should be transparent in these matters.

I have also the same concerns as the Labour Party about the limitations being imposed. The idea that the Minister has to denominate specifically those bodies that are to be covered by it, the various exemptions that apply and the development of quangos — referred to in the very good information leaflet or explanatory memorandum — is unsatisfactory. I share these concerns, especially with regard to the Garda. I think it very important that we have access, through freedom of information, to the operations of the Garda. I say this because I have received in the recent past several very serious complaints against the Garda. It has been quite difficult to arrive at the truth. It may well be that these complaints are unfounded but I need to be in a position where I can ascertain what the truth is.

With regard to the Office of the Refugee Applications Commissioner there is some very nasty material in the undergrowth. People are denied information routinely. This is a body that has a very complex history. The Government is acting in a very strange way by re-appointing as the appeals commissioner the very man who has been discredited as chairman of the previous body.

Freedom of information is important, so that justice can be given to citizens. I have a case that I am putting down as an Adjournment matter of a man whose reputation is destroyed. He was traduced by a Department and, in the process, denied information to which he should have been entitled.

The freedom of information charges are very mean-minded and are clearly intended to limit applications. It has been successful in so doing. If we are interested in accountability, transparency and so on, this is a dangerous course to take. Similarly, fire brigade charges should be dropped because they inhibit people in their reporting of what they believe are minor fires they can put out. I support the Bill and commend the Labour Party on moving it.

Senator Dan Boyle

As a former Opposition spokesperson who spoke strongly against the amendments in the 2003 legislation——

Senator Joe O’Toole

We remember. The Senator spoke well.

Senator Jerry Buttimer

He has not changed his mind.

Senator Dan Boyle

The debates on Second and Committee Stages have been read avidly since. Not much has changed in my attitude.

Senator Jerry Buttimer

Good.

Senator Dan Boyle

Beyond the ten-year moratorium, which contains some logic given multi-term and five-year Governments, the 2003 changes were not particularly politically inspired. The formation of the high-level Secretary Generals group provided as much of the impetus as anything else. The Secretary Generals involved were motivated by administrative convenience and a culture within the Civil Service, namely, that doing a job effectively on behalf of the country requires working in the shadows as much as possible. Given modern technology, this attitude need not pertain. On Committee Stage, I complained to the Secretary General of the Department of the Taoiseach, who is still in situ, that what was being proposed was the administrative equivalent of dribbling towards the corner flag in a soccer match to use up time without playing the game.

The nature of any vibrant democracy is access to information. Since participative democracy depends on the active involvement of all citizens, the legislation should be based on them having access to relevant information. Strides have been made. The original Act, the extension of the number of bodies covered and the role of the Information Commissioner comprise progress in access to information and participative democracy.

The legislation must be embellished. The Government's position is not set in stone. While this matter was mentioned but not agreed on during the negotiations on the programme for Government, it is the nature of coalition Governments that issues be revisited. I hope that discussions between parties in the Government allow new legislation, but certain changes must be made anyway given the review mechanisms in the Act. A provision in the programme for Government will change this issue radically, namely, the commitment to enshrine in legislation the Aarhus Convention on freedom of information in respect of environmental matters. This commitment, which will be fulfilled in the coming months, means the practice of access to information will exist on a level not previously seen but extant in other European countries. This Government decision must be welcomed because it pushes the boundaries of freedom of information and citizens' participation in the practice of government.

A fair comment was made, namely, that fees prevent people from participating and making full use of information. There are two arguments. I am of the opinion that fees should be minimal and not act as a barrier, but the alternative argument is that, because accessing information carries a cost, our political society must decide the extent to which the State can and should subsidise the citizen in accessing information. The level between minimal and exorbitant fees is open to legitimate debate.

We must be honest concerning the abuses of freedom of information requests, including lazy journalism. Our political system contributes to this by withholding information that should be public.

Senator Phil Prendergast

Absolutely.

Senator Dan Boyle

A journalist's request for information on the amount of money received by every public representative or on who works for them should not need to be made. As a House of the Oireachtas, we should make that information available regardless——

Senator Jerry Buttimer

Hear, hear.

Senator Dan Boyle

——and let people judge as they see fit. The more honest and open we are as a democracy and the more information we make available, the fewer the FOI requests or the calls for legislation of this type. I would like the political debate to move on this level.

Since my party joined the Government, the issue of getting the balance right has been revised. There is a process of thinking out loud in the Government. To what extent should one be given information on the decisions made or access to the preceding considerations? As a public representative, what I state goes on the record. However, what I think stays in my head often. If it became public, it would frighten most people.

Senator Jerry Buttimer

We are scared as it is.

Senator Dan Boyle

The process of formulating policy involves large groups comprising a diversity of opinion, much of which is off the wall, before a consensus is reached on the making of a particular decision. Legislation must determine how to provide the public with access to information on the point at which a decision process has been finalised, where people have taken responsibility and how a decision has been reached. Current legislation does not make this determination. In fact, it works both ways. I understand the political and Civil Service uncertainty regarding access to raw and unfinished information that has nothing to do with finalised decisions. On these grounds, there is a compelling case for a review of freedom of information legislation. It can never be seen to be set in stone. While current legislation might be seen as illiberal in many ways, the boat it pushed out into many areas may need to be retracted. The public interest is not served because it is too wide-ranging in some areas and not sufficiently open in others.

We should be honest enough to debate this matter on a collegial all-party basis. It is not a question of protecting the political interests of Government parties or the interests of those serving the country in the Civil Service. Rather, it is a question of the integrity of the political system. In a democracy, we must believe that the system is enhanced by regular changes in the business of government, be it in terms of individuals or political parties, and by the Opposition's role in the electoral process. If we desire better freedom of information legislation that can be shaped, involves the political process, reflects citizens' needs and gains their confidence, we need a debate.

Senator Jerry Buttimer

It is a pity Senator Boyle is leaving. Given his speech, he should be on this side of the House. I hope that, instead of addressing freedom of information legislation, he revisits the Government's decision on Cork Airport.

I commend the Labour Party on this timely and opportune Bill. At the heart of this issue is the provision of information to the people. I cannot comprehend how, according to the Minister of State, this Bill will row back the 2003 changes.

I have a simple viewpoint regarding a matter touched on by Senator Boyle in his address. I have nothing to hide in terms of staff or salary, just as I had nothing to hide in terms of conference fees and so on when I was a member of a local authority.

Senator Joe O’Toole

The Senator has nothing to hide.

Senator Jerry Buttimer

Information should be open and transparent. Protectionism and the syndrome of keeping information are not understandable. While I may be in a political minority, we should be frank with people, give them information and move away from the Sir Humphrey and "Yes, Minister" syndrome or telling people a small amount, taking it back and confusing them.

Democracy, which is about people, participation and sharing information, would be enhanced by the Freedom of Information (Amendment) Bill. The Minister of State noted that 520 bodies now come under the umbrella of the Freedom of Information Act, which I welcome, but usage decreased by 19% in 2006. The freedom of information report referred to the education redress board in that regard.

I am pleased that 77% of requests were made by members of the public, along with 10% by journalists, 1% by politicians and 7% by business people. I am curious, however, as to why politicians have to put down freedom of information requests at all given that information should be available to them as a matter of course, regardless of how trivial it may be. I hope journalists will desist from using freedom of information requests as an easier option to investigative reporting.

On one of his first days as Taoiseach, John Bruton made a simple remark about the need for openness and transparency which still stands.

Senator Joe O’Toole

The phrase he used was "wall of glass"

Senator Jerry Buttimer

That was important.

Senator Joe O’Toole

It soon became less than transparent.

Senator Jerry Buttimer

He was a very good Taoiseach.

An Leas-Chathaoirleach

Senator Buttimer without interruption.

Senator Jerry Buttimer

The Freedom of Information Act is positive in its genesis and development thus far but it needs to be developed further. The word Informare is the Latin for “to inform”, as Latin scholars such as Senator O’Toole from Corca Duibhne will know. I cannot understand why we are hesitant to give people information. The Minister of State noted the changes that have taken place since 1997, which are welcome, but Departments and public bodies, including the much-maligned HSE, must be made accountable. We have to be able to access information.

The fees imposed in Ireland are out of line with other European countries. I do not subscribe to the view that we should provide everything for nothing and I am aware of the labour and other costs involved in procuring information. I do not think the Labour Party advocates the provision of information without charge. A minimal charge should be imposed because the evidence suggests that the current fee is prohibitive. I am aware that the Freedom of Information Act is used by some people for spurious reasons but we must educate them in order to stop that practice. Charges may impose unwelcome barriers to the provision of information. If the charges cannot be reduced, a moratorium on increases might be imposed for ten or 15 years.

The Labour Party referred to the Garda. I have an open mind on whether the Garda should come under the Freedom of Information Act because, while I agree with Senator Norris that accountability is necessary, I am concerned that the work of the Garda Síochána Ombudsman Commission would be duplicated.

This Government has established more quangos than any other Government in the history of the State. Their boards have been filled by supporters and friends.

Senator Joe O’Toole

The Senator should check the records for June 1977.

Senator Jerry Buttimer

I believe the Minister for Enterprise, Trade and Employment, Deputy Martin, who represents my constituency, has appointed the largest number of people to boards over the past 12 months. The Fine Gael Party's spokesman on enterprise, trade and employment, Deputy Varadkar, has exposed issues pertaining to quangos which need to be addressed. At yesterday's meeting of the Joint Committee on Health and Children, an individual spoke about being denied rights when one board was abolished and another created. This week, an OECD report criticised the Government's approach to the issue. The HSE leads the charge on requests for information.

I hope there will be perestroika and that information will be opened up to everybody. Why are we hiding behind a blank canvas when we can have an open pane of glass? By introducing change, the Minister of State will be forever remembered as the one who tore down the Berlin Wall.

Senator John Hanafin

I would not be happy to change the Freedom of Information Act as to do so would create the potential for divulging confidential information, much of which is held by the Garda and the HSE. Other areas have also opened up, including business related activity. If for example, a company submits a tender and subsequently finds through a freedom of information request that it is first on the list, it could reach the conclusion that it will get the contract because it is the only company to have applied. Clear inferences can be drawn from information inadvertently released. The system as it currently stands is essential in a democracy. A Minister for a rural constituency, who has taken collective Cabinet responsibility, might decide the local hospital has to close in the interest of the State. In such a case, 100 years would not be sufficient for freedom of information because the decision would never be forgotten. Confidentiality is intended to protect the people who must make difficult decisions.

I agree with the Minister of State that vexatious claims have been made. It is recognised in legal circles that people can cost the courts vast sums of money with such claims. Certain people are rightly barred from making claims.

The €15 fee for freedom of information requests is reasonable.

Senator Jerry Buttimer

What about €150?

Senator John Hanafin

I have found that Departments give reasoned responses and it is rare that something would be found under the Freedom of Information Act to justify a decision, so we must consider vexatious claims.

The purpose of the Freedom of Information Act 1997 is to confer rights on members of the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy. The principles underlying freedom of information included the following: citizens, as shareholders in public bodies, should have the right to examine and review the deliberations and processes of public bodies; every individual should have the right to know what information is held in Government records about him or her, to inspect files held about or relating to him or her and to have inaccurate material on file corrected; groups and individuals who are affected by decisions of public bodies should have the right to know the criteria used in making those decisions; and decisions by public bodies should be more open to public scrutiny, thus providing greater appreciation of the issues involved in policy decisions and stronger public ownership and acceptance of decisions made.

The Freedom of Information Act 1997 was supplemented in 2003 by the Freedom of Information (Amendment) Act 2003. A number of regulations have been also made under the Act since 1998. Freedom of information currently applies to more than 500 public bodies through an ongoing programme of freedom of information extension.

The Freedom of Information Act establishes three statutory rights, namely, a legal right for each person to access information held by public bodies, a legal right for each person to have official information relating to himself or herself amended where it is incomplete, incorrect or misleading, and a legal right to obtain reasons for decisions particularly affecting oneself. Regulations made in 2003 provide parents, guardians and next of kin with rights under sections 17 and 18 on behalf of an individual.

On the main features of the Act, a person can seek information from any public body covered by the Act by sending a written request to that body. The Act specifies that requests must specify they are under the Freedom of Information Act, be clear enough to enable the public body to identify the records sought, and, unless the request is for personal information, be accompanied by a fee of €15, or €10 in the case of a medical card holder. In cases where the public body is not clear as to the records being requested, staff are obliged to endeavour to assist the requester in identifying the relevant records.

Public bodies will normally have up to four weeks in which to respond to a request. There is provision to extend this timeline by a further four weeks under certain circumstances. Any official information held by public bodies listed in the First Schedule of the Act can be sought under the Act. However, to allow Government business to be properly conducted, it is necessary to exempt from release certain types of information in some circumstances. These exemptions are set out in Part III of the Act.

Among the key exemptions are records relating to meetings of the Government, deliberations of public bodies, investigative functions and negotiations, law enforcement and security, confidential and commercially sensitive information, personal information, that is, information other than the information relating to the person making the request, and the economic interests of the State. Most of these exemptions are not absolute. In most cases, information may be withheld only if it can be demonstrated that a specific harm or injury would arise from disclosure. Many are subject to an overall test of whether disclosure would be in the public interest.

There is a right to appeal. In the event of a request being refused, requesters can appeal to have the decision reviewed by someone more senior than the person who made the original decision. This process is known as internal review. The reviewer can uphold, vary or annul the original decision. Internal review must be completed within three weeks. If the requester is still unhappy with the decision, he or she has the right to appeal the decision to the independent Office of the Information Commissioner.

Application for appeals for non-personal information must be accompanied by the appropriate fee, namely, €75 for internal review or €25 for medical card holders and €150 for an appeal to the Information Commissioner or €50 for medical card holders. Further rights of appeal to the High Court and the Supreme Court are available to parties affected by a decision of the Information Commissioner.

In July 2003, a new system of fees was introduced. This requires a requester to pay a €15 fee up-front if the request is for non-personal information. An internal and external appeal of a decision on such a request attracts fees of €75 and €150, respectively. There are reductions for medical card holders. The introduction of some form of up-front fee arrangement was recommended by a high level group of Secretaries General which reviewed the operation of the original Freedom of Information Act in 2002. Provision for such fees was included in the Freedom of Information (Amendment) Act 2003, which came into force in April of that year.

In general, the fees were designed to encourage a greater appreciation of the cost of administering the Freedom of Information Act by public bodies while ensuring that people can continue to have access to information. The average cost of processing a single freedom of information request has been estimated in the past at approximately €425. No doubt that figure has increased to more than €500.

The fees also provide enhanced protection for public bodies, and the taxpayer, against those few individuals who might choose to use the Freedom of Information Act in a questionable way. There were examples of such usage prior to the introduction of up-front fees, which had resulted in considerable costs and disruption. In one case, as the Minister mentioned, in a relatively short period one individual made 466 freedom of information requests, 101 internal review applications and 35 appeals to the Information Commissioner. A total of 194 of the requests were to a single public body. The total cost of these applications was estimated at the time to be in excess of €127,000.

There has not been a major fall-off in people making freedom of information requests. When the Act came into force it was expected there would be a large number of requests. That was reflected in the fact that in 2003, 18,443 people made requests, in 2004, the figure was 12,500, in 2005 it was 14,616, in 2006 it was 11,800, and in 2007 it was 10,708. A significant volume of people, therefore, still have genuine reasons for requesting information but the changes suggested in the Labour Party motion are unnecessary. For obvious reasons of security, health, business and Cabinet confidentiality there had to be certain restrictions, and those are at a minimum.

Senator Joe O’Toole

I congratulate the Labour group on bringing forward this Bill. I must live in a different world from Senator Hanafin because the figures he gave clearly indicate a drop in the numbers using the service. The Labour Party Bill deals with the reasons the Senator outlined, namely, security, health, which is covered by personal data, defence and other issues. They are covered in the Bill and the record should reflect that. Whether people agree or disagree with them is another issue but the Bill is not found wanting in that area.

On the question of openness, transparency and accountability, I am a late covert in that respect. It could be because of the part of the country in which I was born and reared — we are "givish" about everything except information. I had to work my way around it. The commitment of the then Taoiseach, John Bruton, that his Government would operate behind a wall of glass gave me nightmares. The idea that the Government would not have an unspoken thought is not something that appealed to me and I never found the word "transparent" to be of great value. In the town where I was reared it was a word used to describe somebody who was not the "full shilling" in one way or another. Transparency is not a virtue that properly describes what I am trying to achieve and it does not describe the objective of the Bill.

Previous speakers clearly made the point about access to information for parliamentarians. Much of the information we need is not available to us. Parliamentarians should not have to make freedom of information requests but that is the only way we can operate. Unlike Senator Hanafin, I have never got a straight answer to a request. I have not used it on many occasions but I have found it very unsatisfactory. I have asked for simple information on a decision making process but did not get it.

I got two queries to my office today from two schools in different parts of the country. I cannot find out for them simple information on when they are likely to get the go-ahead to build their schools. In addition, I cannot explain to them the decision making process that will give them that decision. It is not often the exact data the people are requesting that is the problem, it is the process through which that information is made available. In the schools area, for example, there is something seriously wrong if I cannot explain to people why they are not getting information. People do not have to tell me the answer to my query but they should be able to tell me how we got to the point we are at and the process that was put in place. I cannot find out information about the process, never mind the outcome.

The Labour Party Bill deals clearly, succinctly and effectively with the whole question of the deliberative process, which is crucially important. That is the reason I would disagree with government operating behind a pane of glass. Government is entitled to have translucency at the very least to protect it when it is going through its decision-making process. That is covered in the Bill, and in fairness to the Labour Party that should be stated clearly.

It is important to highlight a number of issues, including the proposal that the High Court should ensure a decision of the Information Commissioner is put into operation and that people have to comply with it. It is daft that decisions can be taken and outcomes reached without the Information Commissioner insisting on them being implemented. There is a difficulty.

I sat on the committee with Senator Boyle when we dealt with this in 2003 and, in fairness to him, he led the charge about how bad the amendment was. He also led the charge in questioning the four Secretaries General of the various Departments dealing with the Departments of the Taoiseach, Finance and the Public Service and Enterprise, Trade and Employment. He was very vocal and clear on the matter.

The reality is this is not about getting information on Cabinet decisions. I do not disagree with the idea of a charge in certain cases but it is how the charge is implemented. If we agree access to information is a central plank of democracy, we also agree there must be some cost and charge attaching to it. if we accept that as a principle we can consider implementation. If the implementation leads to one person putting in 400-odd various information requests in the course of a year, that is not what we were looking to do. We should try to catch that person. In the same way we could give a certain amount of slack before putting in place a charge. If people come back with a certain number of requests or a request that takes more than a certain number of hours, a charge could then kick in. That makes sense somewhere along the way but the idea of a charge for everybody at all times is unacceptable and goes against the spirit of the original legislation.

It also goes against the practice in other similar jurisdictions operating similar legislation. In terms of what we are trying to do and what the Labour Party is proposing, every one of the difficulties raised by the Government side have been anticipated. The Minister of State told us he does not believe they are necessary. It is a logical position, although I do not agree with it.

The Minister of State at least recognises that difficulties exist and has indicated that the operation of the Act is to be kept under continuous review. I do not know what that means exactly and the only review I am aware of is the review done on an annual basis by the Joint Committee on Finance and the Public Service, which looks at the extension of the Act to various new bodies, which is fair enough. I am not sure of the continuous review by the central policy unit of the Department and its outcome.

The Minister of State has indicated the Act is operating satisfactorily and if difficulties emerge in future which require legislative solutions, they can be addressed. Nobody disagrees with that but which one of the Labour Party proposals is unacceptable? I have not heard an answer to that, although the Minister of State considered each of them. Surely it is reasonable to allow a decision to be made on frivolous and vexatious applications. Surely also the proposals deal with the deliberative process and it is good that the High Court can be called upon to implement the proposals of the Information Commissioner.

If we can exempt issues relating to personal data, security, defence of the State, international relations and other issues, it would cover important issues. Surely it is good that if somebody deliberately falsifies records, they could be held responsible for a criminal offence.

Nobody has told me why these are bad ideas. These proposals have emanated from the Information Commissioner previously and I have discussed these with her on a number of occasions. I do not see why we cannot implement them.

It is appropriate that the Garda Síochána is included. It will be protected by issues of defence and security in the deliberative process. There is no reason normal pieces of information, dealing with the process of its work, administration of the Garda and various aspects of the issue, should not be included. The Garda would not oppose it as long as the provision would not be abused. We should put in place legislation to ensure it would not be abused, while at the same time allowing citizens general access to relevant information. That is a central plank of our democracy.

I will support the Bill and I compliment the Labour group for bringing it forward. It is a fine piece of legislation.

Senator Ivor Callely

I commend the Labour Party on bringing the Bill forward and there are many points in it worthy of discussion and debate. As I read it, the primary purpose of the Bill is to extend the remit of freedom of information to include the key authorities and public bodies, to amend section 32 of the 1997 Act and to revoke the statutory instrument under which fees are charged due to applying for records under the Act.

A number of speakers have put forward their argument for and against on these issues, and the Bill is a little wider than the points to which I have referred. I have listened with interest to the various comments. We all agree with the consensus that the Freedom of Information Act 1997 was a milestone on the road to good governance and best practice in terms of openness and accountability. The Freedom of Information Act has secured transparency, not only in Government but with public bodies as well. A commonly-held belief is that business conducted in an open manner tends to be more proficient and well-managed. Many will agree the 1997 Act has brought about these results.

I avail of this opportunity to reassert my commitment to freedom of information in the best public interest and, equally, measures to prevent certain abuses. The current Freedom of Information Act confers the right to access records held by public bodies, the right to amend records of personal information held by public bodies where such information is incorrect, incomplete or misleading and the right to obtain reasons for decisions made that affect the individual.

The Act also sets out a number of exemptions that are not available to FOI requests. Disclosure depends on whether the potential harm is outweighed by the benefit of potential disclosure. Some records may be withheld as they may belong to a particular class or disclosure would be harmful to third-party interests.

In considering this remit it is very difficult to strike the right balance. Going back to where we were in 1997 and the preparation and later enactment of the Bill, we have come a long way in the broader sense. Information officers are available, customer care provisions have been put in place in the various institutions and bodies and there has been development of Internet resources and website pages, etc.

There have been similar developments across the globe. Freedom of information is available in many different countries, giving right of access to public documents under individual legislative bases in jurisdictions. Regardless of where such legislation is enacted, it is the same broad principles which apply. Equally, the problems encountered are broadly similar, regardless of jurisdiction.

I listened to the Minister of State's opening remarks. I support his view, to a certain extent, that it is important to get the right balance in the operation of the Act. That is what we are trying to achieve in this debate. What is the balance between facilitating public access to information and allowing the Government, public bodies and key authorities to function effectively? Where in the Act are alterations to the regulations required? That should be spelt out.

It is just over ten years since the Freedom of Information Act 1997 came into force. During that period its provisions have, by and large, operated well and not too many of those who have utilised them have run up against a brick wall. Some 130,000 people have availed of the provisions of the Act and a high number of their requests have been granted.

Freedom of information has brought about greater openness and accountability in the context of the way public business is conducted. It has complemented a range of other measures to which I referred earlier, such as those relating to customer care, etc. Institutions such as the Standards in Public Office Commission, which was established under the ethics legislation, have also assisted a great deal in this regard.

As already stated, there have been major advances in information technology. These have made available to the public a level of information that could not have been envisaged when the freedom of information legislation was originally drafted in 1997. We have come a long way. Congratulations are due to the individual sections of most Departments and public bodies that have made vast amounts of information available.

When I served as Minister of State at the Department of Health and Children, I worked closely with the Citizens Information Board — formerly Comhairle — which has a tremendous website that is always up to date and is one to watch for those anxious to avail of services or facilities. Departments and agencies across the board provide people with major volumes of information and give them access to a high level of facilities.

The previous speaker referred to the Garda Síochána. I am not sold on the need for FOI across the board in respect of the force. The Garda Síochána has a website and this can be used by those who wish to obtain information on the processes to which the previous speaker referred. Whenever I have been in contact with the Garda and its press office, I have found them to be fantastic in the context of providing information. I have no doubt that under Garda Commissioner Fachtna Murphy we will see a continuing improvement in the force's customer support and information services.

I wholeheartedly support the Labour Party's introduction of this Private Members' Bill for the sake of debate. Senator Hannigan highlighted that the Information Commissioner and her predecessors put forward a series of proposals relating to the improvement of the freedom of information legislation. I am not sure whether the Minister of State provided clarity in respect of this matter. Perhaps at some stage he might inform the House as to the amendments in the Information Commissioner's report that are "technical in nature and relate to the practical operation of the Freedom of Information Act". If they relate to the practical operation of the Act, it should be spelled out. Either this House or the appropriate committee should be provided with the relevant information in that regard.

Senator Pearse Doherty

Cuirim fáilte roimh na deise labhairt sa dhíospóireacht seo agus molaim Páirtí an Lucht Oibre as an reachtaíocht seo a thabhairt chun tosaí sa Seanad. Tabharfaidh mise lán tacaíochta don reachtaíocht seo.

In 2003 Sinn Féin strongly opposed the retrograde amendment to the Freedom of Information Act 1997. There was justifiable alarm at the time regarding the dilution and undermining of an important item of legislation. Freedom of information legislation must be recognised as an important tool in combating the corruption that constitutes a serious threat to a democratic system. An open system of government and an informed electorate act as preventative measures to public officials who may be inclined to disregard the law. Claims made in 2003 that the changes introduced then were necessary because the Civil Service has becoming over-burdened with nuisance freedom of information requests were bogus. Protections were already contained in the 1997 Act whereby the authorities could refuse such requests on the basis that they were frivolous or vexatious.

Public access to information should be a basic right and not a privilege granted by the State.

Senator Alex White

Hear, hear.

Senator Pearse Doherty

Government information belongs to the public. It is the Government that is the trustee of that information on the public's behalf. State secrecy hides bad decision making, inefficiencies and corruption. The Freedom of Information Act 1997 was a long overdue attempt to address the tradition of secrecy.

The 2003 amending legislation represents a considerable setback for participatory democracy and the practising of active citizenship. I welcome the fact that the Labour Party's Bill seeks to repeal many of the worst aspects of the 2003 amending legislation. In particular, I am glad it seeks to repeal the change introduced in the Freedom of Information (Amendment) Act 2003 under which fees were made chargeable where one applies for records under the Act. Previously, fees were charged only where access was granted. This undoubtedly represents a deterrent for those contemplating making freedom of information requests.

I also welcome the fact that the Bill seeks to implement proposals put forward by the Information Commissioner and her predecessors in their statutory commentaries on the Acts. It is important that the views of the Information Commissioner, including proposals to delete some of the changes introduced in 2003, are taken on board and acted on. Section 3 contains some important amendments, such as those to provide for an annual statistical review of the operation of the freedom of information apparatus and to delete the exemptions from disclosure of material prepared for the purpose of replying to parliamentary questions and records relating to the enforcement functions of the Health and Safety Authority.

In light of the failure to introduce orders — as required under existing legislation — to apply the legislation to certain public bodies, it makes sense that the definition of "public body" be amended as proposed in the Bill in order to apply freedom of information automatically to many public bodies rather than their having to await their individual designation by the Minister for Finance. If freedom of information legislation is to perform the function for which it is intended, it is crucial that it applies to the public bodies listed in the Bill.

I again commend the Labour Party on bringing forward the Bill. I hope it will not merely serve for the purposes of debate but that people across the political divide will support it and allow it to proceed to the next Stage.

Senator Alex White

I thank colleagues on all sides for their contributions. I strongly agree with the emphasis Senator Doherty put on the importance of freedom of information. I also agree with him on the context in which he placed it.

I represent something of an unreconstructed approach to freedom of information, namely, that the presumption should be precisely that freedom of information. The case should be made for the exception and not the other way around. The rationale behind the 2003 amendments was, and much of the opposition to what we are proposing is, motivated by a completely different approach to freedom of information. The latter is, in part, grudging. At the very least, it can be characterised by a sense that the individual must make a case for obtaining particular information rather than it being presumed that the information should be freely available, but with reasonable and rational exceptions. The starting point should be to have the widest possible latitude and freedom while a case can be made in legislation and administrative rules for where the exceptions should apply. It has as much to do with our culture and approach to the issue as it has with the individual legislative provisions.

I am sorry to say that the Minister of State's contribution is from the old school. We know the Act was introduced in 1997 and that extra bodies have been added. We know all these things, which have been set out in the Minister of State's speech. To take the fees issue, however, it is difficult to see how the change in fees in 2003 was motivated by anything other than a desire to deter people from making freedom of information applications. Why else was it done? The Minister of State ought to be more direct with us as to why that was done. It comes through in his speech which quotes the extreme but interesting example of a request for access to the diaries of a number of civil servants and Ministers — the very idea of it. It involved reading through thousands of pages of documentation. At least that particular application had the advantage of only ever having to be done once as regards the diaries of civil servants and Ministers.

We understand that there is a burden on the State and the public service in respect of freedom of information. By introducing legislation in 1997 and believing in freedom of information, as Senator Callely said, we must be prepared to accept that a burden goes with the freedom we want to provide. It is no use taking the approach that it is so onerous and requires so many hours of work that we must restrict it. The presumption in any democratic society, especially a modern democracy such as ours, should be to make the information available, accept the burden and live with the cost to the State. I accept there is a cost to the public purse in providing freedom of information, but most entitlements we introduce come with a price tag. We must be prepared to accept that price tag within reason. It is not good enough for a Minister to point to the extraordinary cost or how onerous it is on us.

I was taken with Senator Boyle's contribution when he said he felt the motivation for the 2003 changes was to some extent associated with a desire by senior civil servants for administrative convenience. I have no doubt the Civil Service has an important stake in this issue and that its voice must be listened to. I have enormous respect for civil servants who are the ones who have to administer this legislation but, as has been said many times in this House concerning this and other issues, it is for politicians and Governments to make decisions. Of course, we must listen to the Civil Service, including senior civil servants such as Secretaries General whose voices are vital. This is a crucial element of the public service so their views on how it works must be taken on board. Ultimately, however, politicians and Governments make decisions. Sometimes they have to tell senior civil servants that administrative convenience is trumped by an important citizen's right to freedom of access to information. That right should override any considerations of how onerous or expensive the process may be.

In fairness to him, Senator Boyle said that issues can be revisited in Government. He pointed to the Aarhus Convention regarding information on the environment. If it is good enough in that area, why is it not good enough to extend to other areas of public concern? If he wants to have that wider debate, I would like to join him in it. For us to have a serious debate with this Bill as part of it, however, we would need to have heard something more positive in the Minister of State's speech in terms of a commitment to act. Senator Boyle also said that there is a compelling case for a review of freedom of information legislation. However, the kind of review we need is not the notion of having things constantly under review in the Civil Service or having a look at them every now and again. There should be a review in these Houses in which the public can participate. That is the kind of review I am interested in having but, unfortunately, although we have brought this Bill before the House, it would appear the Minister of State is not prepared to countenance it.

The Minister said nothing in his speech about extending the Act to the Garda Síochána. I am surprised by that because it is a substantive issue in the Bill. Some of my colleagues have expressed concern about that, including Senator Buttimer who said he was not convinced and remained to be persuaded, which is a reasonable approach to take. Others were less certain and were supportive of it. I am surprised, however, that the Minister of State said nothing about extending the freedom of information remit to the Garda. It is not something that the Labour Party alone is advocating. As far back as 2003, the then Information Commissioner, Mr. Kevin Murphy, called for such an extension of the remit. The current Information Commissioner has called for that extension on a number of occasions, in 2006 and again last year. At least one member of the Garda Ombudsman Commission, Mr. Conor Brady, has also called for an extension of the remit to the Garda. It is important to note that of 26 member countries in the Council of Europe, Ireland is the only one that excludes its police force from freedom of information legislation. It is an extraordinary state of affairs. Mr. Brady, to whom I referred, said he saw no reason administrative matters in any institution should not be covered by freedom of information legislation. That is the point I made at the outset.

The overarching point I urge on the House is that the presumption should be for the widest possible latitude to be given to freedom of information requests while a case can be made for the exception, rather than the other way around. I regret to say our culture is still dominated by the latter view, including in the Civil Service throughout many Departments and in Government itself. I dare say that Senator Boyle has found that culture exists there, although I do not doubt his good faith in saying that he favours revisiting the matter. From what I have observed of the Government, the public service and the Civil Service in particular, there is no doubt in my mind that the culture is the other way around. It concerns the freedom of information threshold they can live with rather than a presumption of the widest possible information being made available to the public.

It is unfortunate the Government side has indicated it will not accept the Bill. I would be happier and more convinced of the Government parties' bona fides if they said that while they would not accept the Bill, they would be prepared to bring forward some measures to address the many issues raised in our Bill. However, it has not done that. I do not know when the review Senator Boyle mentioned will happen or if it will, but if there is such a review, it is vital that the public and the Houses of the Oireachtas are involved in it. I believe this Bill would have been an interesting and helpful first step in such a review. I thank the Members for their commitment, attention and interest in this Bill.

Question put.

The Seanad divided: Tá, 18; Níl, 25.

Tá

Bradford, Paul.
Burke, Paddy.
Buttimer, Jerry.
Coghlan, Paul.
Cummins, Maurice.
Doherty, Pearse.
Donohoe, Paschal.
Fitzgerald, Frances.
Hannigan, Dominic.
McFadden, Nicky.
Norris, David.
O’Reilly, Joe.
O’Toole, Joe.
Phelan, John Paul.
Prendergast, Phil.
Ryan, Brendan.
Twomey, Liam.
White, Alex.

Níl

Boyle, Dan.
Butler, Larry.
Callely, Ivor.
Cannon, Ciaran.
Carty, John.
Corrigan, Maria.
Ellis, John.
Feeney, Geraldine.
Glynn, Camillus.
Hanafin, John.
Harris, Eoghan.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
McDonald, Lisa.
Ó Domhnaill, Brian.
Ó Murchú, Labhrás.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Sullivan, Ned.
Ormonde, Ann.
Phelan, Kieran.
White, Mary M.
Wilson, Diarmuid.

Tellers: Tá, Senators Phil Prendergast and Brendan Ryan; Níl, Senators Dan Boyle and Diarmuid Wilson.

An Cathaoirleach

When is it proposed that the House sit again?

Senator Dan Boyle

Ag 10.30, maidin amárach.

Seanad Éireann debate - Wednesday, 30 Apr 2008

Freedom of Information (Amendment) Bill 2008: Second Stage.

Tá

Níl

Seanad Éireann debate -
Wednesday, 30 Apr 2008