I welcome the Minister, Deputy Brendan Howlin, to the Chamber.
Freedom of Information Bill 2013: Second Stage
I am delighted at being back in the Seanad and wish all Members a fruitful new parliamentary session.
I am pleased to bring the Freedom of Information Bill 2013 before the Seanad today. This Bill has benefited significantly from the detailed consideration given in its passage through the other House and I look forward to an equally constructive and productive debate in this House.
In line with the programme for Government commitment, the primary purpose of the Bill is threefold: to restore the substance of the access to information regime put in place in the original 1997 Act; to extend freedom of information, FOI, to all public bodies, including some noteworthy long-standing exclusions, as well as providing the power to extend FOI to non-statutory bodies that get significant funding from the Exchequer; and to enhance and strengthen our FOI legislation in order that it works more effectively and is consistent wholly with the objectives for FOI set out in the initial 1997 legislation.
The FOI Bill is, of course, merely one of a broad suite of political and legislative reforms which the Government has initiated. Since I became Minister for Public Expenditure and Reform, I have placed great emphasis on the reform element of that role and intend to continue to focus on delivering open, accountable and ethical public governance arrangements in Ireland for both the operation of Government and the public service generally. My aim has been to strengthen citizens' trust in Government and in the institutions of the State and to promote a transparent, efficient and effective public system.
Real progress has been made on many fronts, including, as this House will be aware because of its detailed consideration of these pieces of legislation, the extension of the Ombudsman's remit in 2012, the enactment of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Bill in 2013, the recent enactment of the protected disclosures legislation better known as the whistleblowers' Act, the publication of the draft Bill to regulate lobbying, the overhaul of ethics legislation and preparation of a general scheme which is at an advanced stage of preparation and on which I look forward to returning here shortly, significant steps to advance Ireland's participation in the open government partnership, OGP, which I recommended to Government, and the development of proposals to strengthen Civil Service accountability on which front significant initiatives will be advanced in this parliamentary session. The reform of FOI legislation is central to the Government's goal of rebuilding public trust in the State and to enhancing public governance through a significant strengthening of openness, transparency and accountability of government and public administration.
The introduction of freedom of information legislation in 1998 was a milestone in terms of defining the relationship between the Administration and the citizen. Effectively, it substituted the presumption of openness in relation to official information for the presumption of secrecy which had obtained up until then. It also allowed both citizens and commentators to become much more informed on the deliberations which preceded decisions affecting them. Before FOI, the work of the Administration was carried out behind closed doors in accordance with legislation such as the Official Secrets Acts. The introduction of FOI lifted this veil of secrecy for the first time, allowing information relating to the governing of the State to be made openly available to the public. FOI has also been instrumental in bringing issues of vital public concern into the public domain and has facilitated stronger oversight of the actions of Government and the public service.
The 2003 amendment Act introduced by the then Government severely restricted access to records in a number of respects and represented a significant curtailment of the approach to openness and transparency that the 1997 Act had introduced. My starting point in introducing this reforming legislation was to reverse the majority of the 2003 changes so that Ireland's FOI regime could again compare favourably with the best access regimes internationally. In that regard, I am reversing the wide definition of Government introduced in the 2003 amending legislation. I am amending the strict definition of what constitutes a Cabinet record and restoring the original definition. Communications between members of Government will no longer be exempt from FOI legislation. The ten-year prohibition on the release of Cabinet records is being restored to the original five-year gap - one of the most liberal provisions on access to Cabinet records that exists anywhere. The mandatory power to refuse an FOI request relating to Government records, or records to be submitted to Government, introduced in 2003 Act is being removed. The power for Secretaries General of Departments to certify the existence of a deliberative process with no scope for appeal is being repealed, and the public interest test applying to records relating to the deliberative process is being restored - that replicates what was in the original Act.
The reform of the legislation provides for some liberalisation of the mandatory "class" exemption put in place in 2003 in relation to diplomatic communications and defence matters. Significant protections for highly sensitive or obviously secret information will be maintained.
The restriction of the Act to the costing by a public body of political party proposals is also being repealed. Where a commercial State body provides a service under a contract to a public body subject to FOI legislation, the records relating to that service will now also be subject to FOI. In addition, I am removing the power to impose an application fee for making FOI requests.
In terms of extending the application of FOI legislation, I am proposing to introduce a generic definition which will allow the Act to apply to all public bodies subject to strictly limited exemptions as set out in this Bill. As I did in other provisions I brought before this House, everybody is included unless there is a compelling legislative reason to exclude him or her that must be set out in law. This represents a reversal of the current position where a public body is included only if it is explicitly scheduled in the Bill. This will result in a number of long-standing high profile exclusions from FOI legislation being brought under the scope of the legislation, including An Garda Síochána; public financial bodies such as the NTMA, NAMA, the NPRF, the NDFA and the Central Bank of Ireland; and the refugee agencies.
As a result of this new structure, public bodies excluded either in whole or in part from FOI legislation need to be specifically set out in the Bill. This introduces a high degree of transparency in respect of any body that is not subject to the exclusions and ensures that there is a full examination by the Oireachtas of the rationale for any proposed exclusion in the future. In that regard, I am providing that a positive resolution of both Houses will be required before any orders are made concerning the application of FOI to bodies. If there is any change, including or excluding, it will have to come before the House and stand up on its own merits.
Certain exemptions are proposed in the public interest for some bodies. FOI legislation does need to perform a balancing act between meeting the public need for information while seeking to deliver public administration effectively. In the interests of transparency, I have adopted a policy of providing, to the greatest extent possible, for the exemptions from FOI legislation for public bodies, in whole or in part, in a Schedule to the Bill. It is important to note that the inclusion of exemptions for specific public bodies in the Schedule is intended to facilitate scope for their removal or amendment if that decision was to be taken at any time in the future.
Official information held by the public sector can and should be made available but without compromising citizens or leading to privacy concerns. It is an interesting balance. I gave a talk on FOI at a public forum. As I went into that public forum a group protested on one side demanding transparency while a group protesting at the other side of the door was demanding privacy. There are concerns that we get the balance right, particularly in regard to private information in respect of any individual citizen.
The protests were balanced.
They were. Official information held by the public sector can and should be made available but we must have regard for privacy concerns. Where exemptions exist, they correspond to those found in FOI legislation in the most regressive jurisdictions that I have looked at. In addition, many of these exemptions are not absolute but will require to be subjected to public interest tests. My FOI reforms also encompass some highly significant enhancements and innovations in the legislation that are aimed at substantially transforming the environment for FOI in Ireland. We looked very carefully at what is happening in the best jurisdictions abroad in that regard.
A key element in the Bill is the requirement to prepare and furnish publication schemes - there has been some misunderstanding about this - to promote the proactive publication of information outside FOI legislation and in a more accessible form. These publication schemes will set out the nature of the information an organisation publishes on its website, including extensive information on the nature, role, responsibilities and activities of any such organisation. To ensure that there is no question whatsoever that less information would be made available by public bodies under the publication schemes than under the current regime, I made an important amendment in the Dáil specifying key information that would be required for inclusion in a publication scheme. The idea is to promote the proactive publication of as much information as possible without the need for FOI and there should be an access point for all of that.
Other innovative elements of the FOI reform legislation that are very significant include the inclusion in the Bill of key principles to guide public bodies in the performance of their functions under the Act. During this whole process I learned that the application of the original 1997 Act was treated differently by different public bodies. Some embraced it enthusiastically and some less enthusiastically. There is a need for standard guidelines and proper training for FOI officers, as provided for in this Bill, including the need to achieve greater openness, strengthen accountability and decision making and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies. Also in the Bill there are provisions to enable extension of FOI legislation to non-public bodies in receipt of significant Exchequer funding by way of ministerial order in the future. There are many public bodies who receive a large amount of their funding from the State purse and there is no reason, simply because they are NGOs or private sector bodies, they would not be subject to FOI legislation if the taxpayer is funding them. I was asked outside if I could include An Taisce. I do not know because I do not know what funding it gets. There are bodies that can be looked at in that regard if they are significantly funded by the State.
Does the Minister have any problem with that?
I am sure not. The Senator asked me that question on my way here. I give that answer by way of illustration.
There is an animus against An Taisce in this House.
Very much so on one-off housing.
There are many bodies, significant charities and so on - we had some controversy about that issue - that would be delighted, as the Senator rightly said, to be completely open and subject to FOI legislation. I understand there is a burden involved but we have to help all bodies to meet obligations as they are rolled out and I am cognisant of that. There are new provisions in the Bill to ensure FOI requests relating to information held electronically are dealt with effectively; an amendment at section 11 to clarify that there is a general right of access to records; and records should be released unless they are found to be exempt. That is the fundamental principle. In applying the exemptions the right of access is only to be set aside where the exemptions very clearly support a refusal of such access.
I turn to the matter of fees, the point of greatest controversy in the passage of the Bill so far. There was considerable discussion in the Dáil on the issue of fees for FOI requests and between Committee Stage and Report Stage I gave extensive consideration to the matter including the commissioning of an international trawl of best practice and met many international colleagues. I attended a number of fora under the open government partnership to ascertain the best practice. I asked my officials to undertake a detailed assessment of the case. The assessment, a copy of which is available on my Department's website, was approached in the context of the Government's commitment to securing substantially greater openness, transparency and accountability.
On the basis of the assessment, I decided that a complete reform of the FOI fees regime was required, reflecting elements of good practice in other jurisdictions such as Australia and the United Kingdom, including the removal of the application fee, the setting of caps on what can be charged for search, retrieval and copying fees, providing some search, retrieval and copying time free of charge up to a reasonable limit and the proposed provision of information in simple administrative form outside FOI legislation, through more proactive publication of information and open data policies, as well as other access regimes such as access to environmental information and the EU re-use of public sector information directive.
In summary, the amendments to the FOI Bill in regard to fees that were agreed in the Dáil and are now before this House include the abolition of the €15 application fee. As I have removed the power in the Bill to set a fee - some said I should reduce the fee to zero - any reintroduction would require primary legislation. In addition, there is the introduction of a cap on the amount of search, retrieval and copying fees that can be charged at €500 which involves about 25 hours work; and the introduction of a further upper limit on estimated search, retrieval and copying fees at €700 which involves about 35 hours work by a civil servant above which an FOI body could refuse to process a request, unless the requester was prepared to refine the request to bring the search, retrieval and copying fees below the limit. The idea is that one would not make a complicated multifaceted request, for example, a genealogical search where a person wants to know their family tree to the Norman conquest.
Very modest of them.
My retort would be that one should hire a researcher. There can be discreet bespoke FOI requests that would take less than 25 hours of search and retrieval by a public servant. That is a more reasonable way of proceeding. I am also providing for the introduction of a minimum threshold of €100, five hours work, below which no search, retrieval and copying fees would be charged; that would mean that for the majority of requests there will be no fees whatsoever. However, if search, retrieval and copying of records are required above that level the full cost of search, retrieval and copying would apply subject to the cap of €500. The idea is to have a focused rather than a general trawl for information. This will enable a person to ask for sequential information in discreet bites as opposed to a general trawl that would take a number of civil servants days to work through it.
From having spoken to colleagues internationally, that is the way to go.
There is also the introduction of a definition in the Bill to ensure there is clarity on the activities for which search, retrieval and copying fees can be applied fully in line with the intention in the original legislation, which includes all activities carried out leading up to the finalisation of a file containing the records for review by the decision maker. The reduction in costs for internal reviews and appeals to the Information Commissioner had been agreed by Government from the outset. Appeals will also be much cheaper. I am strongly of the view that my freedom of information fees reforms complement the overall thrust of the freedom of information reform legislation and other key initiatives such as the open government partnership, which I think is a very important international initiative, the planned revision of re-use of public sector information legislation, and open data to increase significantly the volume of official information made available to all our citizens. These measures should be acknowledged as a far-reaching reform of freedom of information legislation in Ireland.
This freedom of information reform legislation is being introduced in tandem with the development of a code of practice in relation to its operation. This is the outcome of a short, focused and targeted operational review of freedom of information which I initiated last year. The review was carried out by an expert group comprising academics, journalists and other users and a public body review group consisting of freedom of information experts in the public service itself. The draft code, which is currently out for public comment, is an essential development. It will support the implementation of freedom of information and promote best and, I hope, uniform practice in its operation. It will guide and inform the performance of public bodies in relation to their responsibilities under the Freedom of Information Act and help to minimise the administrative burden, particularly on smaller organisations that will now be subject to it. It will seek to ensure appropriate consistency and standardisation of approach for the benefit of both requesters and the public bodies themselves and will deepen and widen the expertise and capacity of public bodies in freedom of information and assist them in handling requests effectively and efficiently. I believe implementation of the code, due to be finalised on enactment of the Bill, will enhance the overall efficiency of Ireland's freedom of information regime and secure a sustained improvement in the performance by public bodies of their responsibilities under freedom of information.
I will now briefly outline the provisions of the Bill. Part 1 contains sections 1 to 5, inclusive, which deal with preliminary and general matters - Short Title, definitions, etc. Part 2 contains sections 6 and 7 which enable freedom of information to apply to all public bodies unless they are specifically exempted, and to other bodies that are significantly funded by the Exchequer.
Part 3 contains sections 8 to 27, inclusive, relating to central elements of the legal framework. Section 8 deals with the publication scheme. Sections 9 and 10 provide for the amendment of records relating to the personal information and the right of a person to information regarding an act of a freedom of information body affecting that person. Section 11 has been amended to provide key principles to guide freedom of information bodies in the performance of their functions under the Act. It also repeals the 2003 provision which limited the potential for access to records relating to services provided under a contract of service to a public body by a commercial State body or other private bodies.
Section 12 deals with requests for access to records and contains a new subsection enabling requesters to be advised of other regimes for access to official information, thus potentially reducing the cost to the requester. Section 13 deals with decisions on requests and section 14 relates to the extension of time for consideration of freedom of information requests. Section 15 provides for a refusal of an freedom of information request on administrative grounds and section 16 permits deferral of access to a narrow range of records.
Section 17 covers the manner of access to records. It requires freedom of information bodies to take reasonable steps to search for and extract electronic data from databases. It also clarifies that where records are available in electronic form, they may be released in electronic and searchable format. Sections 18 to 20, inclusive, relate to access to parts of records, failure to reply to a request within the timeframe specified, and the delegation of functions relating to freedom of information to enable more effective operation of the Act. Section 21 provides for internal reviews.
Section 22 provides for reviews by the Information Commissioner of decisions of a freedom of information body. A number of technical changes are being proposed in section 22 to improve the functioning of the Act, as has been requested. Section 23 allows the commissioner of Information to require a freedom of information body to provide more detailed reasons for refusal to grant a request. Section 24 provides for appeals to the High Court. Some amendments have been made including broadening the grounds for appeals.
Sections 25 and 26 set out precautions against the disclosure of exempt information and a stay on certain decisions which may be subject to appeal. Section 27 relates to fees which I have already set out in some detail.
Part 4 contains sections 28 to 41, inclusive, providing a series of exemptions to protect sensitive information. Section 28 relates to Government records. I have reversed the restrictions on the release of such records that were made in the 2003 Act. Section 29 relates to deliberations of freedom of information bodies. I have restored this to what it was originally in the 1997 Act. Sections 30 to 32, inclusive, largely re-enact the current sections 21 to 23, inclusive.
Section 33 relates to security, defence and international relations. The absolute exemption from such records relating to the tactics, strategy or operations of the Defence Forces and certain diplomatic communications is removed and made subject to a harm test. The mandatory exemption remains only for highly sensitive confidential communications relating to, for example, negotiations between the State and international organisations, and for information relating to intelligence in respect of security or defence of the State.
Section 34 re-enacts the existing section 25 relating to the issue of ministerial certificates. Sections 35 to 37, inclusive, retain the original exemptions in the 1997 Act for confidential, commercially sensitive and personal information held by a freedom of information body. Section 38 outlines consultation procedures to be followed if a head proposes to release, in the public interest, information referred to in sections 35 to 37, inclusive.
Section 39 maintains the original exemption for information relating to research and natural resources, subject to certain conditions. Section 40 protects information where disclosure could reasonably be expected to have serious adverse effects on the financial interests of the State or the ability of the Government to manage the economy. Section 41 upholds the operation of specific secrecy and non-disclosure provisions in other enactments unless such provisions are based on Schedule 3, in which case they are all subordinate to freedom of information.
Part 5 contains section 42 which, as in the 1997 Act, restricts application of freedom of information to administrative records for a number of limited public bodies. There are some additions to this section including highly sensitive crime, security and intelligence activities carried out by An Garda Síochána which are excluded from the scope of freedom of information. The section also excludes records held by the Central Bank of Ireland which are subject to professional secrecy obligations under EU law, which cannot be overridden by national law.
Part 6 contains sections 43 to 47, inclusive, relating to the Information Commissioner in terms of his or her powers, reviews, and so on. Some new provisions are included in section 45 such as to allow the Information Commissioner to apply for a court order to oblige a freedom of information body to comply with a binding decision of the commissioner where the body has failed to do so.
Part 7 contains sections 48 to 55, inclusive. Section 48 provides the Minister with the power to draw up and publish a code of practice and guidelines to assist freedom of information bodies, and that is what I intend to do. Section 50 amends the Central Bank Act 1942 to allow the Bank to furnish information to the Information Commissioner in the performance of the commissioner's functions. Section 52 provides that it will be an offence to destroy or alter, wilfully and without lawful excuse, a record that is subject to an freedom of information request and sets out a fine on summary conviction. Section 54 is a saver provision. Regulations made under the 1997 Act relating to the scope of the application of freedom of information to particular public bodies, other than those listed in Schedule 5, will cease to be in operation on the commencement of this Act. Section 55 provides for transitional arrangements for any actions commenced but not completed under the 1997 Act. For example, if legal proceedings are pending to which the Information Commissioner is a party, the proceedings may continue as if the 1997 Act had not been repealed.
In the Schedules, as I have indicated, Schedule 1, part 1 details the bodies included, in part, under freedom of information, while Schedule 1, part 2 is a list of bodies exempted from freedom of information in full. Schedules 2 and 3 re-enact current Schedules but have been updated. Schedule 4 details the repeals of both primary and secondary legislation affected by the Bill, and Schedule 5 lists the statutory instruments made under the 1997 Act which are to continue in force on enactment.
I trust that Senators will strongly support this very significant reforming measure and that they will welcome the positive set of measures which I place before them in this Bill. I commend the Bill to the House.
I welcome the Minister to the House once again. He has brought forward much legislation, most of it to improve the situation with regard to transparency, open government and the reform of our institutions, which I welcome. The country will benefit from this and the Minister will have a legacy therefrom.
Fianna Fáil supports the Freedom of Information Bill but there has been much spin from the Government along the lines that somehow freedom of information, FOI, is being restored. FOI has never been stopped. Some 18,000 FOI requests are made annually and it is difficult to know what extra-----
I apologise to the Senator, but I have previously committed to budgetary meetings at this time. However, I will watch and read his contributions with interest.
As the Minister is here often enough, we will not blame him for his absence. We might not allow some other Ministers the same latitude. I welcome the Minister of State at the Department of Finance, Deputy Simon Harris.
The Government often talks about restoring freedom of information, FOI. Some 18,000 FOI requests are made every year and a significant volume of information has been given out every year since the original FOI Act was introduced and since the amending Act in 2003. In this debate, that reality is often ignored. There is a huge amount of information and most records that people might want are available on request.
The FOI process is extremely important in holding public bodies and officials to account and I welcome many of the changes in this Bill. The Bill underwent a complicated legislative process in the Dáil before coming to this House. Fianna Fáil did not support the Bill in its original form, as it would have brought even more restrictions on FOI in terms of the charges that were originally proposed by the Government. I am glad that there was such a deliberative process in the Dáil to examine this legislation line-by-line, to force the Minister and the Government to go back and adapt it, and to listen to what was being said by interested parties, by the Opposition, and even by some members of the Government.
Some of the quirks of FOI legislation have annoyed me over the years. For example, the fee certainly does block some requests, but the need to pay by cheque is a bigger barrier to access. Chequebooks are no longer issued routinely and it is difficult to go down to a post office and get a postal order, although I encourage people to buy as many postal orders as they can from their local post office. That definitely had a dampening effect on the type of information that was being released. However, a huge amount of information has been revealed to the public, and rightly so. In some cases it was shocking information which we are glad was revealed under the existing legislation.
The FOI Bill significantly extends the range of bodies likely to be covered by FOI legislation and the categories of documents affected. I am particularly glad that during that legislative process in the Dáil, EirGrid was added to the list of bodies subject to FOI legislation. However, port companies are listed as exempt in this legislation. This should not be the case, particularly for the smaller port companies which are akin to local authorities as they are not really commercial. They are not operating in an open marketplace in which one must protect commercially-sensitive material. I am talking about Drogheda Port, possibly Dún Laoghaire Harbour Company and Galway and New Ross ports. Waterford, Shannon and Dublin ports are large but Wicklow Port is not.
I do not understand why Wicklow, Drogheda and some of the smaller port companies are not included under FOI legislation. They function as local authorities for the areas they cover, as well as running the ports. The Minister for transport is currently examining proposals to bring the ports within the remit of local authorities. If that were to happen, some of the smaller ports would then be subject to FOI legislation; why not do it now? Those port companies should be examined to the same extent as the local authorities beside them are examined. I will be proposing amendments on this topic next week. I am sure that the process of bringing ports within the remit of local authorities is well under way and will happen for some of the smaller companies. I hope it will happen, as some of the smaller ports are more suited to existence under a local authority structure than as independent semi-State companies.
Section 31 of the Bill relates to the issue of parliamentary papers. There is a specific exemption from FOI legislation for Members of the European Parliament and members of local authorities. While there is a constitutional provision in relation to the private papers of Members of the Houses of the Oireachtas, there is no exemption from FOI legislation. I do not believe the Houses have Standing Orders relating to this issue, although perhaps they have. My concern is not about the material usually obtained under FOI legislation about Members of the Houses, but rather information about constituents. The private papers of Members of the Oireachtas would cover personal information on constituents, which I hope would not be obtained. This is just a query. I do not believe it is a major issue and I am certainly not seeking any reduction in the transparency expected of Members. I would like as much information as possible to be made public. However, the constituency or legislative work of Members should not be subject to FOI legislation.
Having said that, as I have said before, people who meet us in Leinster House should be subject to FOI legislation. They should all have to sign in and the signing-in book should be open to the public.
More signing in, more bureaucracy.
It would be just as well if some of the characters one sees wandering around these Houses were out in public. They might not show up then, and might not annoy us with the lobbying they do at times. It sometimes seems that there is an open-door policy in these Houses. One wonders how people get in although any Member can allow them in.
They might wonder how we got in here.
That is another point, but we are here through the constitutional process. We can also be put out by a constitutional process. A book at the front door that everyone must sign, with the possible exception of school groups, would do no harm because there is too much of that. I spoke before in this House on this issue on another piece of legislation, the lobbying Bill. I mentioned that on that particular day, I walked past three unaccompanied lobbyists in the Houses and wondered how they would have access to the Houses. Needless to say, they were coming from the direction of the Dáil and the stairs to the cabinet, because certainly they would not be coming up to the Seanad.
I apologise to the Senator. I had not heard him correctly and did not realise it was lobbyists he was talking about.
In general I am talking about lobbyists, but I am unsure as to how one would exclude anyone from this measure. Most visitors will not be of interest.
We support the Bill, but FOI legislation is already in place and will continue. We are glad that the Government has made significant changes to this Bill in the Dáil. We will be tabline more amendments.
It is a pity the next Stage is less than a week away and we have little time in which to table amendments. This Bill has been knocking around for quite some time, certainly since it was passed eventually by the Dáil in July. The Seanad should have a little more time to deliberate on it, given the significant changes to this Bill in the Dáil. Perhaps we can perfect this Bill and make it the best it can be. The Government will benefit from that, as would the public and the Oireachtas.
I welcome the Minister of State, Deputy Simon Harris. As this is my first time to speak since he came here, I wish him well on his appointment; he is already doing a fantastic job. I am taking this debate on behalf of my colleague, Senator Tom Sheahan, who has been called away to a meeting in the Department of Agriculture, Food and the Marine.
Senator Thomas Byrne has expressed a wish that Members of the Seanad perfect the Bill and make it the best it can be.
The Seanad is all about enhancing legislation and ensuring we can identify areas for improvement. We seek to make legislation foolproof and as good as possible.
The notion of freedom of information took off during the Government that ran from 1994 to 1997 and was led by Eithne Fitzgerald. It was a new departure in transparency, openness and accountability. When John Bruton was elected as Taoiseach he spoke of a transparent, open and accountable Government in his inaugural speech. I believe he said the Government should operate behind a sheet of glass and this is an aspiration with which we all agree. Unfortunately, the Freedom of Information Bill that passed in 1997 was tweaked and restrictions were put in place. Historians will decide whether those restrictions were well-intended but the Bill is now being recalibrated appropriately to ensure the openness and accountability that people expect of us. It is right and good that bodies in receipt of significant taxpayer funding will now be subject to freedom of information provisions. Some charities in Ireland received up to €40 million and €50 million of taxpayers' money and there was no access to their records. They were dragged kicking and screaming before the Committee of Public Accounts and even then the level of co-operation was frighteningly poor. We in this House have the power to change this and this piece of legislation will do so.
There is always the prospect that freedom of information can be abused. I know of a local authority where the equality tribunal process was abused in such a way that every decision the local authority made was appealed to that body by a specific individual. As the legislation facilitated this, I must ask whether there is a way to rule on rogue claims. Standard freedom of information requests should be free but we must ensure the process is not abused because we are still in a challenging financial environment.
Bodies providing information should have the right to insist it is only provided electronically. We should avoid the use of reams of paper to provide information. In the spirit of the paperless society, exemplified by the elimination of Department cheques, we should move towards electronic freedom of information. We should promote environmental objectives.
This Bill is appropriate and correct, though we may not get much recognition in the media for this important legislation. When we do good things here they are rarely covered so I appeal to members of the fourth estate to alert the general public to the fact that this debate is taking place. We are attempting to proactively open up Government. During the 2011 presidential election one or two of the candidates were prepared to open their affairs to the scrutiny of freedom of information requests.
We saw how the media behaved then.
This was very welcome because I do not think the Office of the President is mentioned in this legislation. If it is unmentioned then it is open to such scrutiny. I am open to correction because I have not studied the legislation and am only filling in for Senator Tom Sheahan. Overall, this will be an interesting discussion as it is also on the schedule next Thursday for Committee Stage. There will be a positive engagement and I would like the Bill to pass relatively quickly. Senator Thomas Byrne is correct that there must be sufficient time to debate this issue, but I would like it to pass without undue delay. The sections should be enacted and signed into law as quickly as possible. This is a win-win for all of us so let us win when we can.
I welcome the Minister of State, Deputy Simon Harris. The Minister, Deputy Brendan Howlin, explained the Bill well before the Minister of State arrived. I remember well the introduction of the 1997 Bill and I was doubtful as to whether we should support it. I have now become an enthusiastic supporter of freedom of information and I wish to make some suggestions for improvement.
I received some information yesterday from the Genealogical Society of Ireland - it raised a number of questions and suggestions and, like Senator Thomas Byrne, I would like sufficient time to go through the Bill properly to table amendments on Committee Stage. I very much welcome the legislation because the general feeling is there has been some regression in the area of freedom of information. The FOI system has been of great benefit to society in uncovering scandals and it should be viewed in a positive way.
As was widely noted, Ireland is the only country in Europe with mandatory, up-front charges for all freedom of information requests. According to reports, the only other country permitting such charges is Malta but they are not routinely applied. The Minister explained the steps that will be taken to cover this issue.
There is a need for legislation on electronic records and an amendment in this area may be necessary. I am interested in State institutions that keep electronic records. Article 19, a human rights organisation, has stated that in many countries one of the biggest obstacles to accessing information is the poor state in which records are kept. There is, therefore, a need for legislation on electronic records. Despite this being the era of e-mail, there is still much confusion around how Department records are stored. I notice the Bill requires public bodies to prepare and furnish publication schemes consistent with international best practice to promote the proactive publication of information outside of FOI. There are other important questions on this. Who oversees a Department's records and decides which documents to keep? Is it normal for a Department to move its papers regularly? Perhaps the Minister would accept an amendment requiring State bodies to store electronic communications, especially e-mails. This would contribute to the freedom of information by serving the public and setting conditions for the future.
There is a need for a public spending website. The key principle underlying the Freedom of Information Act 1997 was allowing the public access to official information. This principle can be achieved in ways other than parliamentary questions, which are inefficient, and freedom of information requests. To cut down on freedom of information requests I have argued on several occasions that we should include all public bodies in a simple, easily accessible public spending website. This website would be based on the US Federal Funding Accountability and Transparency Act 2006, which was introduced by Barack Obama when he was a Senator. It has worked well in the United States.
The number of FOI requests would fall dramatically if the public had access to more raw data. It would not be necessary to ask a local TD to raise questions in the Dáil if the data were available. Patients should be able to access medical records more easily as this relates to freedom of information and transparency. They could then keep track of their health and make more informed decisions. A study conducted for the European Commission states that only 4% of European hospitals grant patients online access to their medical records.
Could Government contractors be subject to FOI legislation?
I suggest this could be an amendment.
It is interesting to note, in the context of the extension of FOI legislation by the Minister for Public Expenditure and Reform as contained in this Bill, that the Scottish Government considered extending its transparency laws to major government contractors. While the plan was overwhelmingly popular, it was dropped on the grounds that the contractors themselves were opposed to it, understandably. Does the Minister of State have a view on this? If a contractor is in receipt of millions of euro in taxpayers' money, surely the public is entitled to get an insight into that business? The Minister explained earlier that bodies such as charities in receipt of significant sums of public money will also be covered by the FOI provisions.
Would it be possible to provide for the naming and shaming of State bodies that do not release information? There is an interesting example of this from the United States of America in the form of the www.foia.gov website, launched in 2011, which allows people to see whether agencies are fulfilling their obligations to disclose information under the freedom of information legislation of that country.
Can businesses use FOI provisions more? I believe that is an interesting question to consider. Can businesses make more use of information generated by the State and turn such information into successful business ideas and create jobs? There is an opening there.
I would also like to raise the issue of the wiping of information from Google searches by employees of State bodies. I note that under the legislation it will be an offence to "wilfully and without lawful excuse" either destroy or alter a record that is the subject of an FOI request. While there are sanctions for bodies that destroy their own records, do we need sanctions or fines if public bodies do not keep records? Do we need to get State bodies to do more in this area to ensure that they keep records? On a related note, as we have seen in recent months, private citizens now have the ability to wipe certain information from Google. Last May, a court ruling reinforced people's "right to be forgotten". However, I wonder if people employed in State institutions could ask Google to "forget" certain information. Do we need to include something in this legislation to ensure civil servants do not simply apply to Google to make certain information that is not to their liking less accessible? That is a legitimate question. If we do not include a provision in this legislation to protect against such action then the public's access to information could be limited. For instance, if a Department was involved in some sort of scandal, staff could ask that this information be removed from a Google search. Should this be allowed? It is an interesting question to consider in the context of this legislation.
The Bill covers a broad area and it is only when we get down to studying it in detail that we will realise how much is in it. I urge that we be given adequate time to consider the Bill. Senator Thomas Byrne said earlier that he is concerned that we might not have enough time but I am sure the Leader and the Cathaoirleach will give us enough time to debate the legislation properly in this House. I welcome the Bill and believe the legislation is in good hands - its provisions were explained very fully to us today.
I welcome the Minister of State. It is rare for the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, not to attend for the entire debate on his own legislation, as Senator Thomas Byrne acknowledged. The Senator also acknowledged that the Minister has brought much legislation through this House.
I believe the Minister would welcome robust debate. There are those who were critical of him when he reviewed the legislation and the costs involved. They argued that he had to be forced to do this and that this was a weakness on his part. Actually, it is not a weakness in my opinion when a Minister takes on board observations, makes changes and accepts amendments. That is the democratic process and that is how legislation ought to be progressed. That is the strength of both of these Houses. Although the Minister is not here right now, I think it is safe to say that he will welcome robust debate and the thoughts that others, including Senator Feargak Quinn, have offered.
Regarding Senator Feargal Quinn's observation on Google, I attended a debate on that very matter hosted by Google recently. I was one of the speakers in a discussion on the right to be forgotten as part of the Hay Festival in Kells this summer. One of the issues that emerged from the conversation was that the final decision on who gets to be "forgotten" will be taken by Google's lawyers. That begins to look like the privatisation of information because the information is held by Google and if Senator Feargal Quinn or Senator Susan O'Keeffe makes an application to be forgotten, the assessors of that application will be Google lawyers. That is a very interesting departure or change. In some ways it was inevitable that when an organisation like Google attained such dominance in the information market it would find itself having to make decisions of this kind.
I welcome the Bill which represents a strengthening of the existing legislation and a return to the spirit of the 1998 legislation. One of my prouder moments was receiving an award from the Campaign for the Freedom of Information in the United Kingdom for my own work from the then Minister of State, former Deputy Eithne Fitzgerald, who was the guest of honour that day. I have long believed in the importance of freedom of information.
This Bill is very important and many of the new thoughts that have been brought to it are strong and good. That said, there is room for further debate, particularly about record keeping. Not only are there are questions to be asked about the way in which records are held, but also about the way records are created. The more one opens up the idea of freedom of information, the less information is recorded. Therefore, one ends up in a situation where, having opened the door to it, people become quite clever in finding ways to record less. In that way, what we seek to achieve we do not actually achieve. This is partly due to the fact that we are all human and will find ways to defeat the system.
Senator Feargal Quinn made reference to progress made in America in the context of freedom of information and the freedom of information regime in America is pretty good. However, it is worth noting that five years after President Obama directed agencies to invoke the "deliberative process exception" less frequently in order to withhold materials that describe decision making behind the scenes, withholding went up to a record of 81,752 refusals. Senator Patrick Leahy, Chairman of the US Senate Judiciary Committee said: "It becomes too much of a temptation. If you screw up in government, just mark it top secret." Further analysis showed that the US Government more than ever before censored materials that it turned over or fully denied access to them. This is in a country where freedom of information was always cherished. The United States is always cited as the country that understands freedom of information best.
Let us not lull ourselves into some false sense of security that by legislating in a much wider fashion we are changing the way in which information is put into the public domain. We are not doing that. We are making small progress. It is good progress and I welcome it but it is not a panacea or the answer to everything. There will always be ways and means for Governments, Departments and people to keep secrets. We are very good at that, as human beings. Indeed, in this country we have a long record of networks of people keeping secrets, not just individuals. In the context of the work I did on child abuse and the Catholic Church, it was very clear that there was a network that supported the secrecy surrounding that. Despite the fact that we are a small country and we often talk colloquially about how everybody knows everybody, that did not stop us keeping really robust secrets which is quite a scary matter. It is always going to be difficult to legislate for freedom of information and to find means to make information readily available. In that sense, I welcome the fact that the Minister has worked very hard during his time in Government to find all sorts of means to open up government. We have been in this House discussing many Bills with him relating to defamation, whistleblowers and so on.
It is also interesting to note the situation in other countries with freedom of information legislation, like Pakistan, for example.
It has a record of shooting people who do not agree with it and look for information. It is on the list of countries which have freedom of information. I am not suggesting for one moment it would ever happen here or that legislation would encourage it, but it can be difficult to legislate and have a framework which is robust enough to withstand the ways and means by which people will seek to protect information. Knowledge is power, after all, and keeping knowledge gives one greater power, as we all know.
I highlight the fact the Bill extends to all public bodies. That has been the subject of much discussion and now it includes the Central Bank, the NTMA, NAMA, An Garda Síochána and so on. The inclusion of the refugee agencies, in particular, is a good addition. We will see a change in the way journalists do their work in regard to the use of FOI. Senator David Norris might have particular views regarding this-----
Journalists may change the way in which they use-----
I wish they would.
Indeed. I thought the Senator might say that. I refer, in particular, to the work done by Heather Brooke in the United Kingdom, which many of us will recall, regarding the revelations about the House of Commons and how moneys were spent. People forget that it took her four years to overcome the hurdles involved despite having freedom of information in place. Admittedly, freedom of information legislation in the UK is relatively limited, but nonetheless she operated under it and it still took her four years to get the information into the public domain.
Those in the media understand the use of data and records. Senator Thomas Byrne was correct when he said many records are already in the public domain. I hope we will see a sea change, whereby journalists will seek to use freedom of information in the manner in which it ought to be used in order to bring real light and exposure to the way decisions are made, including those which are made well and those which are made badly. Journalists submit FOI requests to find out how many days Members of these Houses have reconciled in past years. Some of those inquiries are fishing expeditions and they can carry on doing that if they wish, but I am not sure that is what freedom of information ought to be about.
I look forward to further discussion on the Bill. It is welcome. This is a good day. When governments water down, exclude or try to limit freedom of information, as was done in 2003, it sends a very clear signal to the public at large that it is okay for leaders, government and people in power to close the doors and keep things secret. That was not a good day for this country; this is a much better one.
I thank my colleague, Senator Denis O'Donovan, for yielding his place in the debate to me. I also welcome the Minister of State.
I have travelled in a radically different direction from Senator Feargal Quinn. He was cautious and did not welcome the original 1997 Bill. I did, but I now would advise caution to the Government. There is far too much information being floated around all over the place. It is the responsibility of the Government to govern and not to be constantly looking over its shoulders at what the public thinks about this, that or the other. It is complete nonsense.
With regard to journalists, something which has turned me against the Bill is the prurient interest in income and the personal affairs of members of the public. The presidential election was mentioned. My God, I have recollections of it. Disinformation and downright lies were propagated by virtually every single media organisation in this country against me. I will never forget it.
There is misinterpretation, either deliberate or calculated, by journalists when they get hold of these figures. Senator Denis O'Donovan will correct me if I am wrong, but I think I am correct in saying that voting records were produced and analysed, and he was criticised. He was in the Chair; he did not vote. What clown did not realise that?
There is also the matter of the Government jet. I thank God every time it is used. The newspapers include the capital cost, petrol and all the rest. If it is sitting on the tarmac it is depreciating and wasting money. They never provide a realistic context. The Government is always too gutless to come out and say it and keeps silent.
There are also expenses. I remember an occasion when somebody who was a student of mine in Trinity College Dublin called from one of the tabloids. I did not want to talk to him but was persuaded to do so. He asked about expenses and what I received for this, that and the other, and raised various other matters. I told him about the regime and told him that out of the 60 Senators I was the second lowest in this regard and that the only person who was lower than me was Senator Feargal Quinn. As the Senator had just sold what he modestly called his shop for €440 million, I suppose he did not need the few bob. What appeared in the newspaper was a headline reading "Politicians with their snouts in the trough", a photograph of me and a line saying I received €6,000. All of those things were true individually, but together were calculated to promote a falsehood.
There are vexatious applications and so on. The Minister referred to an overhaul of ethics legislation. What a yawn. One cannot legislate for ethics. The crooks will get away with whatever they are at, regardless of whatever legislation is introduced, and it will be plodding auld fellas like me on the bank bench who will have to waste time keeping records, getting accountants and all the rest, instead of doing what we are supposed to be doing, which is legislating and not dealing with receipts and all the rest. It is complete rubbish. One cannot legislate for ethics.
There are questions of openness, accountability, transparency and all the ballsology that goes on. Last night on "Tonight with Vincent Brown" a member of the Government acknowledged that Ministers being questioned in the Dáil do not give answers, rather they stonewall, obfuscate and do not provide the information when they have it. I would say people were astonished to hear that. The Minister of State involved, Deputy Tom Hayes, is a very decent fellow, but they are all at it.
There is the question of the Cabinet records. Communication between members of a Government will no longer be exempt from FOI legislation. Of course, they should be. How can one possibly have decent government if one cannot have disputes and people taking unpopular positions which perhaps voters might not appreciate? We hear from the Government and spokespersons all the time that they are paralysed and do not keep records of this, that and the other, but instead go into corners and huddle-muddle among themselves about decisions. Exempting communication between members of the Government should be done.
It is welcome that An Garda Síochána, public financial bodies such as the NTMA, NAMA and the Central Bank and the refugee agencies are being included. That is fair enough if we are going to have this kind of thing.
One of the major topics I took up during the debate on the 1997 legislation was the question of fees because I felt they were being introduced in order to deter people from making applications. I very much welcome what the Government is doing. There is a section in the Bill on fees, which is very good. There is a code of best practice and a review will be carried out by an external group comprising academia, journalists and others.
That is rubbish. Having academics and journalists getting together into a huddle is the worst way to get something done.
The offences and penalties are far too weak. If an official or Government employee, or body, deliberately, wilfully, alters, defaces or destroys information that is requested they should go to jail. A class B fine is just a slap on the wrist. It is nonsense. Let us have some tough legislation about the people who act against the interests of freedom of information.
Might I suggest there be some kind of primary school for journalists? They could do with a few ehics. They could do with some assistance to allow them disentangle the truth behind the bald figures they get. I am very cautious about the Bill and will consider putting down some amendments.
I wish to raise the lack of transparency in An Taisce. Is it covered by this new legislation? If so what exactly is covered? I do not have a problem with An Taisce as a body. It has a duty and an obligation to protect our heritage. I have had difficulties with its continual objection to one-off rural housing, where there was a dire need in parts of rural Ireland.
It abuses its privilege regularly.
I was involved in rural housing issues for 20 years as a councillor, for genuine people who wanted to live in their own locality. In some instances An Taisce got involved and deprived the community of a much-needed house for a family. In one instance, which was not 100 miles from where I live, a family with four members who had special needs, some of whom were adults, wanted a bigger house. An Taisce objected and it was taken all the way to An Bord Pleanála and shot down. The family should have been encouraged and granted aid and help. What are the criteria for objecting to one-off rural housing and what are the criteria by which An Taisce frequently objects to various types of planning throughout the country? I have seen a lot of bad planning in villages and towns throughout this country in the form of ghost estates but I never saw An Taisce speaking out and objecting to such developments. Maybe I am wrong on this, but I doubt I am.
We need to ensure it is included in this legislation and subject to freedom of information. There are instances in west Cork and County Kerry where An Taisce has been used subtly, by a developer or an objector who does not like his neighbour, through an agent whether a solicitor, an accountant or a third party, who gives An Taisce a small subscription and asks it to do his bidding. In some instances I am certain that An Taisce has been naively unaware that it has been used. Recently, when a SuperValu supermarket wanted to relocate within Bantry, properly zoned within all the parameters and outlines set by An Bord Pleanála, An Taisce objected. I have seen doughnut developments around towns that have destroyed town centres where An Taisce has failed to act. It seems to cherrypick. It is being used. How do we get the information on how it has been used and what are the criteria it uses for such objections?
I was pilloried when I said here that An Taisce was like the Ku Klux Klan because nobody seemed to know who its members are. Maybe I went over the top. A former Fine Gael Senator in the Beara Peninsula, who is now deceased, tried to find out who its members were in his area and encourage them to have open meetings, be transparent and discuss planning issues and policies with local councillors but that did not materialise. We, as public representatives, should know about the funding of An Taisce, its statutory foundation, full remit, who and what its members are and its objectives. We should peel away the layers of the notion that it is a beautiful holy body up in the sky protecting our heritage and environment. I would love if that were the case. There are Fine Gael, Labour Party and Independent councillors throughout the country who have had this difficulty with An Taisce and have been beating their heads off a brick wall.
I came across a family with an elderly member who had a disability whose son and his wife wanted to get planning permission on a site a farmer was providing. The council said it was a difficult situation. The county manager and senior planners said because of the criteria in Cork County Council they would bend the rules slightly to allow for this special need. Somebody, not too far away, who did not like this couple building a house across the road, courted An Taisce, piggybacked on it and despite four years of efforts by the local authority overturned the planning permission because of An Taisce’s powerful influence with An Bord Pleanála. My faith in An Bord Pleanála is also significantly diminished. This is not the first time I have said it. Its transparency and the reason it was set up are far from what they should be.
It needs to be abolished.
I say this although it is not the issue today. Before Committee and Report Stages of this Bill, when I propose to table certain amendments, I would like to know to what extent An Taisce comes within the remit of this legislation. I asked my own party why it was not done in the previous legislation. I am looking for transparency. I do not want to get rid of An Taisce. I have had arguments with Senator David Norris, but I have said that it has a role to play. In some instances, however, that role is demeaned by the fact that in certain instances it is being used subtly, cleverly, as a pawn for developers or for individuals who have an issue with a particular planning application. That should be cleared up.
I would like under this Bill to see An Taisce explain why it objected to the cases I mentioned and others going back ten or 15 years, setting out its criteria, why it got involved and used its influence with An Bord Pleanála. That is wrong and we need the power of this Act to get to the truth, to have transparency and do away with the smoke and mirrors that have made it untouchable. That has been the case since An Taisce was created in 1981. It is regrettable. Public trust could be restored if that was done. That is all I ask for, transparency, honesty, integrity and to see how it is funded and how we can restore faith in a body that needs a good shake-up.
I welcome the Minister of State. I know of the enthusiasm the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, has brought to this area. Our briefing note tells us that overall, the Bill has been cautiously welcomed by stakeholders and commentators. The spirit of the Bill is very welcome. The Minister referred to seven extensions but the Bill refers to 38 exemptions on pages 79 and 80. Each one of those should be discussed on the next Stage. How do people manage to talk themselves out of something which the Minister and Minister of State are persuaded of? The clue I always seek in legislation is who has opted out. Thirty-eight bodies have opted out.
I am nervous about the use of PR people. The executives of State companies to whom we pay substantial sums of money should not employ PR agencies or departments. They should answer questions. I am critical of Irish Water in that regard.
Will the Minister of State confirm its position? The briefing notes we have state the exclusion from freedom of information of Irish Water has been criticised, in particular due to the fact the agency will have a monopoly on water provision in the State and derive 100% of its income from the public. It was not mentioned in the Minister’s speech but is contained in the briefing notes from the helpful Library and Research Service.
I have seen some of the correspondence concerning Part V planning applications, which is draconian, to say the least. The public is treated with contempt by some county councils, which is against the spirit of this legislation. The absence in the Minister’s speech to local government was notable too and must be reviewed on subsequent Stages. In the past, many decades ago, councillors were corrupt and, therefore, significant local government powers were transferred to county management. This must be brought in under this legislation in the interests of the democratic openness as was intended by Eithne Fitzgerald when she introduced this legislation.
Senator David Norris blamed the legislation for introducing a tradition of not writing anything down. However, I do not blame the legislation but the way the Sir Humphreys responded to it in seeking to circumvent what the Houses wished to have implemented. It is a serious problem in the banking inquiry, which the Minister of State knows about as he was on the Committee of Public Accounts which investigated it thoroughly two years ago. At crucial stages, records were not kept, which the Department of Finance told the Committee of Public Accounts. The phrase used by the committee was that it just ran into the sand investigating some matters. Why did codes of conduct for bank directors disappear, for example? There should not be a get-out-of-jail clause because of not writing matters down. The incorporeal Cabinet meeting should also fall into this category.
The misleading answers to parliamentary questions goes right back to work Senator Susan O’Keeffe did many years ago. The hundreds of hours and hundreds of thousands of euro spent on inquiries would not have been needed if people had answered parliamentary questions properly. I hope this culture can be got out of the system. The purpose of a parliamentary question is to give the information to the Deputy, not to conceal it to such a degree that so much parliamentary time and public moneys are subsequently wasted.
Tourism Ireland, InterTradeIreland and Waterways Ireland are exempted bodies but are vital North-South bodies created under the Good Friday and St. Andrews Agreements. All politicians want to get together in a spirit of openness. I do not understand how cross-Border bodies cannot disclose information to either Members, Members of the Northern Ireland Assembly or citizens of both jurisdictions. How did 38 bodies, in the face of overwhelming public and Cabinet opinion regarding the extension of freedom of information, manage to persuade the Minister that they should not be included in it?
I support the Minister’s intentions with this Bill. If there is anything I can do from these benches to assist in introducing the kind of public administration envisaged in the legislation, I would be delighted to do so.
While I welcome this legislation and note it has been well debated in the other House, Sinn Féin has some issues with the new fees regime it will introduce. Sinn Féin is committed to giving citizens a real say in how politics works. We welcome the opening up of government, which is needed to strengthen democracy and empower citizens as well as giving them ownership of the political system. They can only participate fully if they have access to the relevant information. Freedom of information legislation gives people access to information as to how public institutions are governed, taxpayers’ money is spent, etc. Access to this information should be based on need, public interest and not necessarily on any ability to pay. That is why we believe scrapping freedom of information fees is crucial for better governance.
The gutting of the freedom of information legislation in 2003 was a major step backwards for democracy because it restricted the oversight of public spending and Government policy-making. We welcome this legislation as it proposes a reduction in the period of exemption for Cabinet papers, along with the extension of freedom of information to a new layer of public bodies which are significantly funded by the State.
Earlier, the Minister committed to restoring the legislation to its pre-2003 format, namely, the scrapping of fees. This Bill does not fully scrap fees but introduces a new fees regime. During the Committee on Finance, Public Expenditure and Reform hearings on the legislative proposals, open data advocate Gavin Sheridan testified that Ireland was the exception rather than the rule when it comes to fees. The British Commons justice committee recognised that freedom of information fees set at a level high enough to recoup costs would deter requests with a strong public interest and, in turn, would defeat the purpose of the legislation. The former Information Commissioner, Emily O’Reilly, speaking in 2011 on the publication of her annual report, said, “The punitive regime relating to fees should be overhauled so as not to discourage people from seeking out information”. It is worth remembering that following the introduction of fees, freedom of information requests had halved.
While a new regime has been introduced, our issue is that there are fees in the first place. Access to information should not be a limited privilege in any guise but a fundamental right. TASC, Think-tank for Action on Social Change, estimated in 2010 that, based on figures provided by the Government, the cost of freedom of information to the State was 0.012% of overall expenditure, noting it was far from an exorbitant price to pay for stronger democratic oversight.
Sinn Féin will be introducing amendments on Committee Stage in this regard which we look forward to discussing further.
I am pleased to be here on behalf of the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, who, as Senator Susan O’Keeffe pointed out, was sorry he was unable to take the full debate due to another commitment.
I thank all Senators for the constructive, informed and insightful contributions to this debate. This legislation is a real example of how parliamentary democracy and scrutiny of legislation can work very well.
We all agree, including the Minister, that the point at which we have now arrived with the Bill is even better than when it was first published. When we consider legislation from the Department of Public Expenditure and Reform, all too often attention is on the public expenditure side, important as this is, but the Department is also responsible for reform. This legislation, with legislation on whistleblowers, a register of lobbyists, which picks up on the point made by Senator Thomas Byrne on who wanders the corridors here, and Civil Service renewal are some examples of how we have seen true and meaningful reform in how we operate as a State and how the agencies under the auspices of the State operate also.
The broad support for this crucial legislation is most welcome and mirrors the positive response the legislation has received from the current and former information commissioners, which reflects many recommendations made by the office to improve the operation and effectiveness of Ireland's freedom of information regime.
As was highlighted in the opening speech of the Minister and also reflected in many of the contributions in the debate, freedom of information plays a key role in helping to keep the Government honest. It supports a climate underpinning more open, transparent and accountable government and administration. The Government's commitment on freedom of information in the programme for Government could not have been more clear-cut on the restoration of freedom of information and its extension to all public bodies. The Bill delivers on these objectives. However, it should be clear to any person who looks at the Bill in detail that it does much more than just restore the status quo. In addition to consolidating freedom of information legislation, the Bill substantially modernises our freedom of information regime and contains significant innovations and enhancements.
It also strikes the right balance embodied in the Long Title of the original Freedom of Information Act, regarding enabling access by members of the public to official information consistent with the public interest, and we must remind ourselves of this. When the then Minister, Eithne Fitzgerald, introduced the Freedom of Information Act it was with this very purpose in mind, to ensure access for members of the public to official information consistent with the public interest. I am satisfied the Government's proposals navigate a balanced, proportionate and sensible course through the difficult and complex issues which can arise.
It should be emphasised that the principles of openness, transparency and accountability underpinning freedom of information are strengthened in the Bill by its provision for a general right of access to records and that they should be released unless they are found to be exempt. What is more, in applying exemptions the right of access must only be set aside where the exemptions clearly support a refusal of access so the presumption is there that one should have access to records.
The Bill also makes explicit what was always intended, that in performing their functions under the Act public bodies must have regard to the need to achieve greater openness and promote transparency in Government and public affairs and strengthen the accountability of public bodies and improve the quality of decision-making. As an aside, and it was touched upon during the debate, while we welcome the strengthening of freedom of information legislation as a society, State, Government and Oireachtas, we need to move to the point where information is readily available without the need to seek recourse to freedom of information. Every Department has websites and I was struck by Senator Fearga Quinn's reference to the US website. Let us put as much information as possible in the public domain to save people the hassle of having to go through freedom of information.
Transparency and accountability must be the yardsticks against which public bodies are measured when we speak of open government. Irrespective of the quality of the legislative framework for freedom of information, if it does not operate effectively the overall value and potential contribution of Ireland's freedom of information is weakened. Therefore, it is not surprising that many significant practical implementation and operational issues related to the implementation of freedom of information were also raised in the debate in this House, the other House and at committee meetings. Contributions made included points on the need for public bodies to have better records management, proactive publication of information in open format, a consistency of approach in dealing with freedom of information requests, and adequate training for staff on freedom of information. The Government and I strongly concur with all of these objectives and the drafting of a code of practice for freedom of information was embarked on in this context.
As the Minister mentioned in his opening remarks, the preparation of the draft code was strongly informed by the work of an advisory group composed of experts on freedom of information drawn from the media, academia and civil society, with extensive experience of using the legislation to seek official information. I note this gathering of individuals seems to have upset Senator Norris, but when putting together an advisory group to look at a draft code the balance of people from media, academia and civil society is quite appropriate in terms of harnessing the extensive experience these groups can offer the Government and the Oireachtas.
There is broad acceptance that the implementation of freedom of information is quite uneven, with clear examples of where public bodies have adopted quite different approaches in their interpretation of their legal responsibilities to make official information accessible and available to the public. The code is strongly focused on addressing such inconsistencies and ensuring as much as possible that Ireland's freedom of information regime is operated by public bodies in a common template consistent with the aims and objectives of the legislation. As the Minister mentioned, the intention is that the code, which is at public consultation phase, will be finalised in tandem with the enactment of the legislation.
As was the case in the Dáil, there was a general welcome for the Government's proposals for the reform of the freedom of information fees regime, although I note Senator Kathryn Reilly's comments to which I am sure we will return on Committee Stage. Senators would agree that the fee proposals as outlined represent an enormous advance on the current situation, and the abolition of the application fee in particular has been very warmly welcomed by the NGO sector. In terms of the public interest, it is essential to ensure the administrative system has the capability to effectively and efficiently manage the demand for freedom of information while at the same time being in a position to continue to provide a service to the public. The five hours free search and retrieval time and the cap of €500 on such charges should ensure the appropriate balance is achieved. It is about balance and ensuring, as Senator Martin Conway touched on, people can access information and there is no barrier in terms of costs, and that the public service can manage the demand and deal efficiently and effectively with queries and provide the public, in the public interest, with the information required. Charging for actual time spent on search retrieval and copying in respect of a freedom of information request is a key feature of the many freedom of information fee regimes in OECD countries and is not one we propose to remove.
From the tone of the debate I reckon Senators welcome the provision included in the legislation which ensures freedom of information will apply automatically to all public bodies. Several contributions were made on various exclusions in whole or in part included by the Government in the public interest, and I note the comments of Senator Sean D. Barrett. I am sure there will be an opportunity to debate and stress test these specific proposed exclusions on Committee Stage. As should be clear from the Bill, however, the Government has sought to frame the exclusions as narrowly as possible and target them precisely where it was concluded by the Government there was risk of serious harm to the public interest if particular records of specific public bodies were potentially available for release under freedom of information.
Senators will also note that to the greatest extent possible the Minister, Deputy Brendan Howlin, has provided for exemptions in a Schedule to the Bill; therefore, they can be amended by way of ministerial order in the light of experience under the legislation and the Government's intention is to keep the Schedule under regular review.
There will be an opportunity to debate these issues more thoroughly on Committee Stage, but I will attempt to provide some context to the issue raised by Senator Thomas Byrne on the differentiation between ports and I am sure this issue can be returned to on Committee Stage. All of the ports listed in the Schedule as exempt are those designated as commercial in the Harbours Act. At the time, a number of harbour authorities were transferred to local authorities and they are now subject to freedom of information. If there are further changes with more transfers to local authorities these can be considered in due course.
Senator Martin Conway referred to electronic facilities. We continue to do all we can to move towards e-government. We will have e-day on 19 September whereby public bodies will no longer accept cheques from businesses. We cannot compel ordinary members of the public to make payments electronically, but the changing fees regime will assist in this regard.
Senator Feargal Quinn made a number of points on record management. The Minister has acknowledged this and it has been a feature of the debate that improvements can be made on records management, and this is provided for in the draft code of practice. The Senator also spoke about contractors providing services to the Government. Where bodies provide services under contract to a freedom of information body, they will be covered by the regime. I presume this will be a feature of the debate we will have on Committee Stage.
Senator Denis O'Donovan sought clarification on whether An Taisce is covered by the legislation. An Taisce is not covered under the Freedom of Information Act by which we are governed today. Section 7 contains a power to enable bodies funded by the Exchequer to be brought under the Act. Consideration will be given to which bodies should be brought in as a priority in due course. Criteria will have to be agreed as we need to ensure proportionality. No Senator or Member of the Oireachtas wishes to see small bodies in receipt of small sums overburdened, but a number of bodies receive significant public funding and such bodies can be brought in under the Act by way of ministerial order with the passage of a positive resolution in both Houses.
Obviously Senator Denis O'Donovan has strong views in relation to An Taisce. While this is an issue he can return to on Committee State, that is the factual position.
Senator Sean D. Barrett referred to the issue of parliamentary questions. All Ministers attempt to answer them and certainly the current Government is doing so in the most wholesome way possible. Certainly, I try to answer mine in that manner. There is recourse for Members who are not satisfied with the answer to seek to have the Ceann Comhairle adjudicate or if a question is disallowed or if they feel the question has not been answered adequately. I take the point he made which is similar to the point I made, namely, that if we can make more information readily available, people will not need to have recourse to FOI legislation.
The six North-South bodies established under the British-Irish Agreement 1999, with Tourism Ireland which was established separately under the framework of the British-Irish Agreement, operate under an FOI code of practice for North-South bodies which has been approved by the North-South Ministerial Council and which has regard to the FOI legislation operating in both the United Kingdom and Ireland.
The Government has decided that it would be more appropriate for these bodies to continue to operate under the code of practice approved by the North-South Ministerial Council rather than to bring them under this FOI legislation in respect of their activities in this jurisdiction. Those seven bodies are the language body, the special European Union programmes body, the Food Safety Promotion Board, the trade and business development body known as InterTradeIreland, Waterways Ireland, the Loughs Agency and Tourism Ireland. That is the rationale behind those seven bodies.
I thank Senators for their insightful and detailed contributions. A number of issues have been raised to which we will return on Committee Stage.
When is it proposed to take Committee Stage?
Is that agreed?
My party would prefer if it was held the following week as it would give us more time. Other Senators may wish to comment on that issue. Perhaps the Leader might take it into consideration.
I will fix it for next Tuesday.
It will be on the Order of Business next Tuesday.
Is it agreed to take Committee Stage next Tuesday? Agreed.
When is it proposed to sit again?
At 2.30 p.m. on Tuesday, 23 September 2014.