Freedom of Information Bill 2013: Committee Stage
Section 1 agreed to.
I move amendment No. 1:
In page 10, line 33, to delete “21 April 2008” and substitute “1 January 2007”.
This issue was discussed during the proceedings in the Dáil. It concerns the date on which the entity was not considered to be a public body within the meaning of the 1997 Act but is proposed to be considered to be a public body under the new legislation. Why was the date of 21 April 2008 chosen? The amendment proposes - my party made this proposal in the Dáil - that a retrospective period of seven calendar years be used. It is important for the sake of public confidence, as well as in the interests of open government, transparency and accountability, that a period that is potentially relevant to accessing information on the economic crisis not be excluded on the basis of being out of time. That is the reason for the change of date proposed in the amendment.
The Senator is correct that this issue was debated in the Dáil. Obviously, I am anxious that there be a reasonable period of retrospection. I am under considerable pressure not to have retrospection for six full calendar years, as I am proposing to do, but I consider it desirable and practicable. However, one must consider the issue of practicality when one intends to do something retrospectively. Most laws are not retrospective but apply from a current date. To provide that people are obliged to marshal, organise, catalogue and present data, in freedom of information form, for the last six years is a big burden. On balance, it is as far as it practicably can be done.
It is only a matter of a couple of months. The additional burden would not be great.
Even so, it would not be a huge burden. Senator Kathryn Reilly made a good point. From the point of view of freedom of information, it is important to get access to the greatest degree of information on the financial crisis.
It was for that reason I chose 2008, which predates all of the financial crisis issues.
Amendment, by leave, withdrawn.
Amendments Nos. 2, 3 and 13 form a composite proposal and may be discussed together.
I move amendment No. 2:
In page 11, line 15, to delete "or prescribed body".
I welcome the Minister and thank him and the Minister of State, Deputy Simon Harris, for their responses.
I am on the Minister's side and hope that the amendments I have tabled will be of use in strengthening the Bill. That is the spirit in which they are offered. As stated in a previous discussion on these issues, these measures are absolutely necessary because as Sir Humphrey is not a natural democrat he will, unfortunately, use all of his skills to conceal information from the public. As a parliament, we are trying to bring information into the open.
Amendments Nos. 2 and 3 arise out of the Explanatory Memorandum, and on the basis of the speech made by the Minister on the last occasion we discussed this Bill, which states that this Bill will enable FOI to apply to all public bodies. Essentially, FOI is being extended to the widest possible definition of public bodies. Amendment No. 2 seeks the deletion of the phrase "or a prescribed body" so as to provide that FOI applies to all public bodies. It is nudge economics. We are nudging bodies and people into this area and want to ensure there are no loopholes through which they might escape. For example, a future Minister may be less enthusiastic about this matter and may not so prescribe. Should we not, therefore, be providing that this applies to all public bodies and, ditto, in respect of all voluntary bodies in receipt of public money? There should be no fudge around this. All bodies know where the Exchequer is when looking for funding and should also know where the parliament is when seeking information. That is the spirit in which amendments Nos. 2 and 3 are proposed. In other words, there is no need to prescribe and every body is included.
Amendment No. 13 relates to voluntary bodies and incorporates words from a later section of the Bill, which states:
(1) Having regard to the need to ensure the oversight of entities that, although not public bodies, receive funding from the State and the need for such bodies to adhere to the principles of transparency and accountability in government and public affairs as respects those of their activities that are funded by the State, such bodies and activities are subject to this Act.
This amendment seeks the provision of more power for the current Minister and his successors. I know the Minister will utilise his power but I want to make sure his successors are similarly constrained. It is a strong message of support which is influenced by the work being done by Deputy Ciarán Lynch in the banking arena, where there were amazing bouts of amnesia and failure to keep records. Bodies should not be permitted to say that they do not keep records lest somebody at the behest of the Minister, Deputy Howlin, starts asking FOI questions. As I said, I am on the Minister's side on this. That is the spirit of the amendments. All bodies and organisations which receive funding from the Exchequer should be included, as is every public body and, therefore, there is no need to prescribe.
I welcome the Minister to the House. I also welcome this Bill, which as stated by Senator Barrett we all approve of in that it seeks to extend the parameters of freedom of information and to ensure that the widest possible definition of public bodies is covered. I appreciate that Senator Barrett is on-side with the Minister and Government on this one, as indeed we all are.
It is important that the words "or a prescribed body" be retained. Public bodies are already covered within the terms of the Act. The prescribed body provision expands the categories of entity covered by FOI provisions to include non-public bodies which receive significant funding from the Exchequer. Amendment No. 13 seeks to do something similar to that provided for in section 7 as drafted. I do not see the merit of changing that section as suggested by Senator Barrett. To remove "or a prescribed body" from the definition in section 2 would be to undermine the purpose of the legislation and the stated intention to ensure that not only are all public bodies subject to FOI but so too are a large category of prescribed bodies, namely, non-public bodies which receive significant funding from the Exchequer. I am sure the Minister will respond more fully to the Senator's amendments but I wanted to make those points given all of us are in agreement on the intention and purpose of the legislation.
It appears to me that the Bill as drafted requires the Minister to prescribe bodies that are not public bodies. I note the Minister is shaking his head. Senator Barrett's amendment seeks to provide that they be included any way. It is particularly important they are included. In light of the scandals that surrounded the rehabilitation area and so on it is important to ensure that these bodies are comprehensively covered even though only part of their funding comes from the State.
All public bodies are already captured by the Bill and will remain so. As I explained in my Second Stage contribution, this provision is to broaden FOI to include private bodies in receipt of State funding. However, this needs to be done in a structured manner. Not everybody who from commencement of the legislation receives a bob from the State can be captured. As such, there must be a rational process for doing what is proposed. This is what I am setting out to do. It is my intention that the type of bodies referred to by Senator Norris would be fully captured. There will be people who might receive a donation from the State in some form or other who should not be under the burden of FOI, including small charities and so on. We need to ensure balance in that regard.
I wish to assure Senators that all public bodies will be captured and that the extension to prescribed bodies, which are essentially private bodies who receive some portion of public funding, will be provided for in a way that is practical and proportionate. That is the intention of the Bill.
Perhaps the Minister would respond to the situation in respect of An Taisce, which, as highlighted by my colleague, Senator O'Donovan, on the last occasion we discussed this Bill, is not publicly funded but has statutory functions.
Does the Minister envisage An Taisce being subject to FOI requests?
I did respond to that question on the last occasion, at which time I was a little beaten up for having singled out a particular organisation. It is that class of organisation that will be subject to FOI.
What will be the position in respect of other organisations which are not publicly funded but do have statutory powers? In other words, An Taisce, which, public funding aside, has the statutory function of considering planning applications. I am not sure if there are other examples.
That is an issue on which I will have to reflect further. The notion was that all public bodies would be captured. That was the original nexus of the Act. I want to extend that to capture other bodies that receive State funding. Whether bodies who have a statutory function-----
I can think of one in the UK, which does not apply here.
-----but do not receive any State funding can be captured is more problematic.
I am not sure if we have here an equivalent of the RSPCA in the UK.
Yes but it does not have the same functions. The RSPCA in the UK as a private body has a prosecutorial function. Its equivalent here, the ISPCA, does not. Are there bodies here that have similar powers but are not necessarily State funded?
By way of clarification and on my earlier remarks in regard to public bodies and prescribed bodies, what I said is that public bodies are automatically captured and other bodies in receipt of partial State funding have to be prescribed by the Minister, otherwise they are not captured. As such, my assumption was correct.
I would like to address two points that have arisen in the debate. First, it is clear from the definition of "public body" in section 6(1) that an entity established by or under any enactment, in other words a statutory entity, will be covered by the legislation. As such, the type of entity mentioned by Senator Byrne would be covered.
On the other point in relation to Senator Barrett's amendment No. 13 to section 7, as stated by the Minister if accepted this would allow for the inclusion of far too wide a group. Section 2 defines an entity as "a person, body of persons, organisations or group". Acceptance of amendment No. 13 would result in any private company that has a contract with the State to supply goods or services of up to €100 being subject to FOI. That is far too broadly drawn. It is not at all within the spirit of the legislation that that type of entity would be captured. The structured approach provided for in the current draft of section 7 is preferable, although I do appreciate we are all trying to get to the same place. It is a more carefully drawn set of provisions to allow for the prescribed bodies to be captured under this legislation, rather than providing that any entity that receives State funding of any kind will be subject to FOI.
Does the Minister have anything new to add?
Not very much. That is a fair representation of the position. It is my intention, as soon as the Bill is enacted which I hope will happen very shortly, to have the widest possible trawl of any body which receives State funding, conducts public business and should properly be amenable to FOI legislation. This is something which will be formally reviewed by the Oireachtas from now on. If there is any lacuna in the listings, it can be brought to my attention and that of the Committee on Public Oversight and Expenditure.
I thank the Minister. All public bodies should be included. We will discuss later some 38 which are exempt. In the case of voluntary bodies, are there rules of thumb? For example, a figure of 10% of a certain level funding or X thousands or hundreds of thousands of euro should mean that questions would have to be answered, but I will leave that matter with the Minister. I welcome what he said and will not move my amendments to this section. We are all moving in the same direction.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
I move amendment No. 4:
In page 14, between lines 16 and 17, to insert the following:
“(e) any correspondence electronic or otherwise even if such correspondence is not carried out on the official networks of the public body,”.
I want to highlight an issue that I am not sure is covered in the Bill. I discussed the matter last week with the Minister's officials, to whom I am grateful. The former Minister, Deputy Pat Rabbitte, announced that he kept a parallel diary, separate from his official diary, in order to avoid FOI legislation. In the United Kingdom private e-mails can be subject to-----
I will read the article to be sure to be sure.
The headline on the article was "Rabbitte foils FOI by hiding his meetings".
That was written by a sub-editor, rather than the former Minister.
The article stated: "Pat Rabbitte has revealed he very deliberately avoids recording all his meetings in a ministerial diary to prevent the contents being released under the Freedom of Information Act". The quote from the former Minister is as follows:
In my case it's a digital diary but I keep a parallel diary ... I don't necessarily put everything that I do into [the digital diary], very deliberately. I deal with some issues of considerable commercial sensitivity (already covered under FOI legislation) ... But yes, there is a digital diary and it has been sought under Freedom of Information (FoI) on many occasions and the whole lot has been put out there.
In the United Kingdom such diaries or private e-mail correspondence which I have tried to target in the amendment are subject to FOI legislation. In New Jersey Governor Chris Christie's e-mails were subject to FOI legislation and nothing incriminating was found. It was only when for an assembly hearing there was a subpoena to obtain all of his private e-mails that all of the dirt on him and bridgegate was found. It is clear there are such practices. Are there codes of practice or rules about using private e-mails, diaries or text messages which, if sent over the official networks for correspondence, could be subject to FOI legislation? The amendment highlights an issue which has not been addressed. It proposes to include e-mails, even if they are private, under FOI legislation. Does the Minister have proposals in that regard?
I have concerns about the amendment. First, it does not specify that it would have to be related to a particular matter. It could be quite private.
It would still be covered by FOI exemptions.
I do not agree with the amendment. The explanation offered by the Senator concerning the former Minister, Deputy Pat Rabbitte, relates directly to the point I made on Second Stage. This overuse of FOI legislation means that no records are kept of discussions at the Cabinet and elsewhere which are held privately, off the record and lead to critical decisions being made because Ministers do not want to be accessible under FOI legislation. They wish their discussions to be covered by confidentiality. The Government is there to govern, not to constantly look over its shoulder to see what the public or, more likely, representatives of the media are trying to trawl through. I would be very careful and have hesitations about the Bill, for which support is not unanimous, as Senator Ivana Bacik implied. I have strong reservations about the extension of freedom of information provisions.
The definition of "record" in section 2 is very broad and does encompass paper-based and all electronic correspondence, including e-mails. The additional text proposed by Senator Thomas Byrne would not be workable for the very reasons set out by Senator David Norris. It would extend coverage beyond official records to the personal records and personal accounts of individuals. I do not think that is what Senator Thomas Byrne intended.
It is. If the official business of the State is being carried out in private e-mails, which has been a problem in the United Kingdom-----
Please allow the Minister to complete his response. The Senator can then contribute.
The official business of the State takes place on official networks and so on and anything germane to it should be found on them. In terms of confidential discussions, as instanced by Senator David Norris, there is hardly a Senator in the House who has not had such discussions with me on some matter-----
Which we do not want to be made public.
-----and not sought to give advice on something, sometimes against his or her party's view. Sometimes that is appropriate. The idea is to have an official document on the process of decision-making in order that we know who had an input and so on. The notion that one's personal records would be-----
That is not what I am looking for.
I am advised that would be the effect, if not the intent, of the amendment. I assure the Senator that any official information sent electronically to the Department from someone's personal account or by the Department to someone else's account is a record for the purposes of the Act. All information received or stored on any Department's ICT system is amenable to FOI legislation.
Would Deputy Pat Rabbitte's secret diary fall under FOI legislation? From what the Minister said, I understand it would not. I am not referring to private correspondence, personal information or commercially sensitive information, which would be exempt. The concerns raised by Senator David Norris are not a problem. I am trying to address something which happened in the United Kingdom and is now happening in Ireland, that is, Ministers down to other levels in the public service are bypassing official networks in order to bypass FOI legislation. That decisions of State are not included in official networks is a problem. The former Minister, Deputy Pat Rabbitte, admitted to doing this.
The freedom of information commissioner in the United Kingdom said that in certain cases the private e-mails of officials or Ministers could be sought if they related to the official business of the state and came under FOI legislation. I do not refer to somebody booking a holiday or sending a note to his or her family; rather, I am referring to information which would come under FOI legislation if it was sent on official networks. What does the Minister propose to do to stop the avoidance of FOI legislation? Is there a code of conduct on what records should be kept or whether Ministers should send e-mails via Yahoo! or Gmail if they relate to official business? If a senior union official, in the course of negotiations, sends a text message to a Minister, does it come under FOI legislation? If a letter was sent, it would; why not a text message? It is a means by which FOI legislation can be avoided. The Minister needs to draw up rules and practices governing how the system will work.
On the notion that one could solve the problem to which the Deputy referred by making all personal communications amenable to FOI legislation, that is not a road I would travel. This issue was put to the information commissioner as far back as 2003. There was a question about whether people would not keep records or keep them in a different way because of FOI legislation. The information commissioner responded to the Committee on Finance and the Public Service to this effect:
I would certainly feel it would be rash on my part to say, "I better not keep records because of freedom of information." The reverse is true.
I think people will want to have on record the policy issues dealt with.
The Minister, Deputy Rabbitte, was referring to the fact that if he had confidential meetings with potential investors, who would not put a cent into the country if they knew we were even discussing this, they should not come into the public domain.
They would be exempt anyway.
I am saying that is why he said he was doing it. On the specific question, I do not know if the Senator has had a chance to read the draft code I published, Chapter 5 of which deals with records management for each public body, which should have guidelines and a policy in place for the use of personal mobile phones and e-mail addresses for work purposes in so far as FOI is concerned. The code of conduct will have a clear direction in terms of business being business and personal matters being private.
What the Minister has set out in the draft guidelines is not as strong as the UK Information Commissioner’s approach, which is as follows:
Information held in non-work personal email accounts (e.g. Hotmail, Yahoo and Gmail) may be subject to FOIA if it relates to the official business of the public authority. All such information which is held by someone who has a direct, formal connection with the public authority is potentially subject to FOIA regardless of whether it is held in an official or private email account.
I will leave it at that and withdraw the amendment, but it is an important issue that requires more attention.
We have debated this enough. Does Senator Norris have something new to add?
Yes. In light of the discussion between the Minister and Senator Byrne, could a member of the public or the media be given access to the appointments diary I keep in my office?
That is outrageous and scandalous. I see no reason why a member of the public should have access to my appointments diary and I strongly object to it. It is an invasion of privacy.
They already have access to it under existing FOI legislation, except that there is a constitutional provision regarding the private papers of Deputies and Senators.
Amendment, by leave, withdrawn.
Amendments Nos. 5, 11, 18 and 35 are related and may be discussed together.
I move amendment No. 5:
In page 14, line 24, to delete "who" and substitute "or company (within the meaning of the Companies Acts) which".
I welcome the Minister. The Bill is welcome and any amendments that have been tabled here are efforts to improve the Bill. This amendment aims to clear up any confusion about so-called "service providers", meaning persons or companies which provide services to FOI bodies. On Second Stage of the Bill, the Minister of State, Deputy Harris, said in the House:
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.
While I note the fact, the amendment is useful in clarifying that not only persons but companies that provide services to FOI bodies will be covered by the legislation. If a contractor receives millions of euro of taxpayers’ money, the public’s right to access should be clearly stated. The amendment would clear up confusion and ensure State contractors are open to public scrutiny. It is worthy of consideration.
I am interested in Senator Quinn’s point. I would make a slight grammatical change to it. I wonder if "entity" would be a better word than "person," given that “entity,” as defined in section 2, covers a person, company or group.
Given that we are using it throughout the Bill, would the Minister consider replacing "person" with "entity" on Report Stage?
I am confused as to why amendment No. 11 is grouped with amendment No. 5.
I withdraw amendment No. 11.
The Senator cannot do that until we reach it.
It seems to me that the grouping should comprise amendments Nos. 9, 10 and 11-----
That has already been discussed. Would the Senator allow the Minister to answer?
We are discussing amendments Nos. 5, 11, 18 and 35.
I fully appreciate Senator Quinn’s sentiments that where a non-FOI body, whether public or private, carries out a service on behalf of an FOI body, the records relating to the service should be subject to FOI. On receipt of the Senator’s amendment I requested confirmation from the Office of the Attorney General that "person" as referred to in the definition of service provider on page 14 of the Bill does include a company within the meaning of the Companies Act. Therefore, the intent of the amendment, that "person" would capture the word "company", is already, on the advice of the Office of the Attorney General, the position.
Amendment No. 11, tabled by Senator Byrne and other Fianna Fáil Senators, raises the issue of Bus Éireann's school transport operations. It was always intended that the Bill would include Bus Éireann school transport services carried out on behalf of the Department of Education and Skills. I advised that the service would be covered within six months of the Bill's enactment through the restoration of the application of FOI records held by service providers in so far as the records related to a service provided under contract to the Department. This was the original construction of the Bill. However, a recent High Court judgment determined that the Department of Education and Skills does not have a contract with the transport providers but has what the High Court determined to be an administrative arrangement - not a contract - with Bus Éireann for school transport services. On foot of this judgment, I amended the definition of service provider in section 2 on Report Stage in the Dáil to ensure that school transport services provided by Bus Éireann to the Department of Education and Skills would be subject to FOI. The amendment I made in the Dáil addresses the concerns of Senator Byrne and his colleagues.
On amendment No. 18, also tabled by Senator Byrne and his colleagues, it would not be possible to provide a list of bodies that might provide services under contract to an FOI body into the future. It is deemed unnecessary to provide such a list, since the provision came into operation subsequent to the 1997 Act, and I am not aware of any difficulty that has arisen since. It would be an extraordinary thing to try to project which bodies might conceivably provide services into the future.
Amendment No. 35 seeks to remove Bus Éireann from the list of exempt bodies, and the House knows my view on this. Where there is a unique provider of a service, such as the school transport service, it is subject to FOI, but where it is in direct competition with the commercial sector it would seriously disadvantage a State body if it uniquely were subject to FOI. Therefore, I am not extending FOI to the commercial semi-State bodies that are competitive.
I thank the Minister for his explanation, but I am still not happy. Section 2 states: " "service provider" means a person who, at the time the request was made...". While the present Attorney General has said it also applies to a company, I question whether a future Attorney General or a lawyer might argue very strongly that he or she understood it to mean a person or individual. Senator Bacik’s suggestion of "entity" would solve this, and I urge the Minister to consider it. I will not press the amendment, in the hope that the Minister will reconsider it before Report Stage.
While we all want simplicity and plainness in the law, we are obliged to have consistency in the use of terms throughout the law. That is why we have the Interpretation Act, which applies to all legislation.
Section 18(c) of the Interpretation Act 2005 determines that "A "Person" shall be read as importing a body corporate, whether a corporation aggregate or a corporation sole, and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of "person" shall be read accordingly." That sounds legalistic but for consistency and transparency, we cannot start using different phrases in different enactments.
I understand the point but I urge the Minister to reconsider whether it is possible that that could be misunderstood in the future.
Amendment, by leave, withdrawn.
Amendment No. 6 is in the name of Senator Quinn. Amendments Nos. 6, 17 and 27 are related and may be discussed together by agreement.
I move amendment No. 6:
In page 15, between lines 2 and 3, to insert the following:
“(6) The interpretation of “personal information” in this section shall not be construed so as to impede or otherwise restrict public access to the records held by the General Register Office in accordance with section 61 of the Civil Registration Act 2004 or in accordance with the Civil Registrations Acts 2004 to 2012.”.
This issue was brought to my attention by the Genealogical Society of Ireland, which was anxious to have this amendment accepted. The insertion of this new subsection will guarantee that this Bill does not impede access to information vital for genealogical research or historical reasons. The amendment aims to ensure that the current status of the records of the General Register Office as public records will be reaffirmed. It is important to include this text in the legislation.
The report of the Joint Committee on Finance, Public Expenditure and Reform pointed out that this legislation could have the unintended consequence of restricting rather than broadening access to certain records, especially those of a genealogical potential. Genealogists are very concerned about the reclassification of the records held by the General Register Office from their current status as "public records on individuals held by the State" to personal records on individuals held by the State.
The reference in section 2(1) of the principal Act is of particular concern as it makes direct reference to the interpretation provided by the Civil Registration Act 2004, which deals with life events of the individual as follows: "event" means a birth, stillbirth, adoption, foreign adoption, marriage, death, decree of divorce or decree of nullity occurring or granted anywhere in the State or a birth to which section 26 or 27 applies or a death to which section 38 or 39 applies and includes a birth, stillbirth, adoption, foreign adoption, marriage or death that could have been, but was not, registered in a register formally maintained under the repealed enactments.
However, section 2(1)(b)(viii) of this Bill states, "information relating to the religion, race, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2(1) of the Civil Registration Act of 2004) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual". That seems to suggest that a number of the above recorded events would be reclassified as personal records. Indeed, parts of section 2(1)(b) could be interpreted so as to impede access to land records, electoral rolls and other records of huge interest to genealogists and to local historians. The Genealogical Society of Ireland believes that is an extraordinary and wholly unnecessary reclassification of public records. It also believes that an amendment such as the one I have tabled would clear up other issues such as death certificates and refusals for information by freedom of information, FOI, bodies.
Overall, the organisation believes that the Bill as drafted has the potential, although I am sure unintentionally, of greatly impeding genealogical research by anyone not directly connected with the family or the individual being researched. For these reasons I urge the Minister to accept this amendment to ensure that genealogists are not restricted in their work and that the spirit of the freedom of information principle is protected.
My amendment No. 17 also relates to genealogy matters. It simply aims to further guarantee the right of access to records. It is not a ground-breaking amendment but a simple clarification that aims to ensure that FOI bodies consider the public's access to records. The clear statement in this Bill of public ownership and right of access to records is very important, especially when improving our overall FOI culture, that is, I believe a clear principle of public ownership and right of access to our genealogical heritage should be included in the text of the legislation. This can serve as a guide for FOI bodies regarding public records, laying the foundations for what I would call a customer charter.
From a business perspective, this amendment aims to further ensure that this country continues to develop its expanding ancestry tourism market and top sustainability of Ireland as a destination for genealogical research. More important, this amendment aims to ensure a people's human rights as well as their cultural rights that are protected in terms of allowing them access to records. I hope the Minister can accept this amendment because I believe it will further improve the relationship between FOI bodies and the public, and ensure that the spirit of freedom of information is further enhanced.
Amendment No. 27 refers to including "in relation to the operation of the principle of public ownership and right of access to a genealogical heritage." This is a relatively straightforward amendment and one that the Genealogical Society of Ireland supports. It is about improving the culture of freedom of information and, in some ways, ensuring there is a better interaction between the service provider - the FOI bodies and the customer - and the public who are seeking records.
As I stated earlier, the word "principle" is very important. I believe the over-arching principle of public ownership and right of access should be clearly stated in this Bill. State bodies should give the Minister this as a guiding principle, and I hope the Minister can accept this amendment for that reason.
As the Minister can gather, to a certain extent I am quoting what the Genealogical Society of Ireland has asked me to put forward.
I call Senator Norris to speak to amendments Nos. 6, 17 and 27.
I also received this briefing from the Genealogical Society of Ireland and I completely concur with what Senator Quinn has said. I would have put down the amendments but Senator Quinn put them down first and I am happy to add my name in support of them. It would be extraordinary if a freedom of information Bill had the impact of restricting information in what are relatively non-controversial areas.
Marital status, trade union membership, sexual orientation - that should all be "FOIable".
Unless people want their sexual orientation to be known, they will not put it down anywhere and therefore it will not exist. That is the fact.
But if it is, it should be accessible. The Senator does not want it-----
Personally, it does not bother me in the slightest. I do not think too many people in this country are unaware of my sexual orientation anyway.
We are not doing it for ourselves, Senator. We are-----
With regard to the sexual orientation point-----
Or anything else. Marital status, trade union membership-----
I was thinking in terms of the genealogical aspect, and records already exist including parish records, censuses and so on. It seems to be unnecessarily restrictive. I do not see any reason the Minister should not accept the amendments. I was in the House when Prime Minister Hawke from Australia was visiting and there was an exchange between him and the then Taoiseach of genealogical information regarding Irish people in Australia. That had the effect of increasing tourism. I refer to the recent phenomenon of The Gathering when people returned to Ireland looking for their roots. What Senator Quinn is attempting to do, in association with the Genealogical Society of Ireland, is to ensure continued access to this information.
If the Minister can guarantee and put it on the record of the House that access to this kind of information will not be barred under the operation of this Act, I am sure the House will be satisfied but it is important that people interested in their family background and the general conditions in the country should not be frustrated. It is part of our culture and our history, and it should be accessible to citizens.
I thought Senator Norris would have been on my side on this issue. I will first deal with the concerns expressed by Senator Quinn and those expressed on behalf of the Genealogical Society of Ireland by him.
I can categorically reassure the Senator that there is no reclassification of what constitutes personal information in this Bill. The definition of personal information in the Bill has been updated simply to take account of changes in the 17 years since the 1997 Act was drafted. In that regard, the reference to the Civil Registration Act in the definition of personal information relates to civil status. It does not matter whether a person is married or unmarried and it should not matter whether a person is in a civil partnership. That is not the type of information that should be accessible. We have updated the legislation to include other things. Basically, it takes account of the changes in the legal position of civil partnership since the original Freedom of Information Act was enacted.
I have also included information on whether an individual was or was not a member of a trade union, because there are many places where a person would not be employed if the employer knew he was a member of a trade union.
What is the point of being a member of a trade union if it is unable to represent a person?
Senator Norris should talk to the trade union movement if he does not understand the point.
A good deal of that happens.
Many people have been shut out, sacked, fired and discriminated against because of their trade union membership.
They can represent a person afterwards at tribunals and so on.
These are the types of personal information in question. The idea of FOI is not that anyone can have a prurient trawl of everyone else's data. The purpose is to have information important to the public discourse available in public; it is not to have everything known about people available. Let us consider the things that are excluded. Information on the medical, psychiatric or psychological history of an individual is not subject to FOI; nor is information relating to the financial affairs of an individual, by and large, and so on. The details are listed on page 14 of the original 1997 Act.
I am making no change to the current status of records of the General Register Office as public records. I see no basis for Senator Quinn's concern that parts of the definition could be interpreted as impeding access to records or electoral rolls. That is not the case. Certainly, that is not my intention, and my advice from the parliamentary draughtsman is that this is not the effect of it. The updating of the definition of personal information that I have carried out has no impact, good, bad or indifferent, on access to information. It simply modernises the definition of personal information to include the two things to which I have referred. Marital status has been broadened to include civil status, and I have included trade union membership as well.
The updating does not impact on access. Indeed, an amendment on Report Stage in the Dáil that I accepted expanded the definition of what is not classified as personal information. Information relating to the terms and conditions of any individual who holds or has held any public office or any position in a body subject to freedom of information requirements and in respect of the remuneration of that person was excluded under the original Bill but is now included. Information on everyone who is being remunerated from the public purse, unless it is specifically excluded, is incorporated into the Bill.
The General Register Office is part of the Department of Social Protection. All the information held in the General Register Office is therefore subject to freedom of information provisions, and this will continue to be the case. The proposed legislation does not prevent access to the register as provided for under the Civil Registration Act.
In the case of amendments Nos. 17 and 27, I am satisfied that the Freedom of Information Act can be availed of by genealogists for the purpose of seeking access to records in connection with a search in respect of an individual's genealogical heritage. That has been the case up to now and it will continue to be the case. It is not affected in any way, good, bad or indifferent, by what I am suggesting now. I am not of the view that the legislation should be reconfigured specifically with the purpose of identifying such searches as a particular function of the Bill. Freedom of information requests can be used for genealogical research, but that is not the prime purpose of the legislation. I have previously pointed out in this House, for example, that if Senator Norris submitted a freedom of information request to all Departments to trace the Norris family from the Norman conquests-----
It would not get very far. My father was English.
-----and set 20 civil servants to work, that would not be the intended use of the provisions. People will not be excluded from doing normal trawls, but we should not embed that as a central function of the Bill. All the records covered by the Acts are available for FOI requests, subject to the legislative protections in respect of personal information to which I have referred. There is nothing in the Bill preventing the General Register Office or any other public body from giving access to personal information, provided it is done in compliance with the legislation. I believe this meets the full intention. I hope the concerns of Senator Quinn are fully assuaged by what I have said.
I wish to clear up a couple of things. I am still not convinced about marital status being excluded from the freedom of information provisions, and I will outline why. First, a marriage or civil partnership is a public declaration. Why it should subsequently be restricted is beyond me. Second, there may be cases in which a person is considering getting involved in a relationship and institutionalising it through marriage, civil partnership or whatever there is. Let us suppose there was a concern that the other party had already been involved in a civil partnership or marriage. Surely the person should be entitled to research and examine the matter to determine if there are any records and find out the position to avoid a bigamous situation. First, it is public information and, second, it is useful to people who are considering getting involved in these relationships.
Reference was made to the trade union situation, and I understand the sensitivity in this regard. I am a member of three trade unions and I am a strong supporter of the trade union movement. If membership of a trade union must be kept secret, how can the trade union effectively represent that member?
That is no problem. It can do so.
I would be interested to hear. It would be part of the learning process for me.
I will speak to Senator Norris afterwards.
I am genuinely keen to find out. Let us suppose an individual is victimised at work and the trade union is called in. Then it is perfectly obvious that the person is a member of the trade union. I know there are companies in this country that deny the right to membership of a trade union to their employees. This is completely and utterly wrong. Either it is or it should be unconstitutional. Anyway, I am unsure how effectively a trade union can represent a member who is anxious to conceal that membership from the employer.
Senator Norris is next. Sorry; Senator Quinn is next.
I do not have a beard but I can understand how you could make that mistake on occasions. I understand the Minister's point and that it is not the prime purpose of the legislation to do some of the things that have been done here. However, Senator Norris makes a strong case in regard to marriage and civil partnership. I am unsure whether that should not be evident, particularly for genealogical purposes.
Reference was made to trade union membership. I have not been a member of a trade union, except, perhaps, IBEC, which is a trade union of sorts. If trade unions do not want membership disclosed then I can understand why the Minister is responding to the request. I take the point. Certainly, I do not intend to push this amendment at this stage. If any changes are to take place, perhaps they might take place between now and Report Stage.
For my tuppence worth, I agree with Senator Norris on marital status but I disagree on the trade union issue.
I take the opposite view. I rather agree with the trade union point. I worked with a trade union before I came into this job. I know that many employers will not employ people if they are members of a trade union. Many people pay by direct debit, but a major service is provided by trade unions in the event of someone being let go by an employer in the wrong, being unfairly dismissed or whatever.
The unions can represent one in hearings of the Labour Relations Commission and there are many steps that they can take afterwards. In addition, one has access to the legal team of the union afterwards. Believe you me, it is work being in a trade union. I agree that it should be exempt.
The proposal would broaden the scope of the FOI mechanism beyond its intention. It is simply a mechanism to provide information to people. Nowadays it would be quite improper to ask a job applicant about his or her marital status or whether he or she is a member of a trade union. Certainly in the public service, one would not be allowed to ask. One is not allowed to make decisions on the basis of discriminating against somebody because he or she is married or single. It cannot be stated in an advertisement for a job that only single or married people may apply. That is how it is and we should not be able to circumvent modernised labour law with a freedom of information Act. I have stated my intention in that regard.
I hope I have answered Senator Quinn's general question on access. He can assure the Genealogical Society of Ireland that it is not disadvantaged a whit by the changes I am now proposing.
Amendment, by leave, withdrawn.
Section 2 agreed to.
Amendment No. 7 not moved.
Section 3 agreed to.
Sections 4 and 5 agreed to.
I move amendment No. 8:
In page 15, between lines 32 and 33, to insert the following:
“(b) a local authority;”.
I hope it is an omen for two days hence that there is a Kilkenny person in charge of these proceedings today. The purpose of my amendment is to include local authorities to rule out doubt. Having an explicit reference might assist the citizen in dealing with local authorities. The Minister said several times that all bodies are covered, which I accept, but I have seen some correspondence on citizens' attempts to engage with local authorities and I noted that the level of arrogance, particularly in the use of Part 8, is not in the spirit of this Bill. Would it assist the Minister to have a specific reference to "a local authority"? He may conclude it is covered elsewhere or by his use of the word "all". I hope the county managers are listening. It is worrying that although a motion was passed by 54 votes to two at a recent meeting in Dublin, the two were declared the successful people. It is necessary to bring some county managers to heel, and it is necessary to do so at a very early stage so citizens can engage on the basis of being secure in the knowledge that the local authority is covered. They should not be blinded by legal science stipulating it is covered somewhere else. My amendment's purpose is to state it upfront. I do not wish to delay the House. I seek an assurance that those making requests of county and city councils will have access to the provisions and assistance the Minister has set out to give them in this Bill.
I thank the Senator again. Local authorities are established under legislation and therefore comply with the definition of "public body" in section 6(1)(b) of the Bill. In any event, section 6(1)(h) provides that anybody already subject to FOI under the 1997 Act will remain subject to it under this legislation. Therefore, they are caught twice, to be doubly sure. On that basis, I do not propose to accept the amendment. Local authorities are now and will continue to be subject to FOI provisions.
I will not press the amendment. Suffice it to say that I have come across cases where people certainly have not entered into the spirit of what the Minister is saying. However, the law is in place and I thank the Minister.
Amendment, by leave, withdrawn.
Amendments Nos. 9, 10, 12, 24, 25, 31, 32 and 41 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 9:
In page 15, between lines 32 and 33, to insert the following:
"(b) the Office of the President;".
These amendments seek to insert some extra bodies and important offices so they will be within the scope of the legislation.
Amendments Nos. 9 and 24 relate to the Office of the President. An amendment along these lines was tabled in the Dáil and I gave it very careful consideration.
Reflecting the constitutional provisions on the President, it has always been accepted that the President and the Office of the President are beyond the normal fray and to and fro of politics. The tradition, both in this House and the other is that we do not discuss the President. My approach is in keeping with the long-held tradition respecting the status and independence of the Office of the President. All sides of the House agree this is vital to the dignity and role of the Office of the President and presidency. This is very much appreciated by the public at large.
The FOI Acts exclude records relating to the President. This obviously reflects the accepted view. The amendments before the House do not propose to remove the exclusion of the records relating to the President, only the Office of the President, but I am of the view that the smallness and intimacy of that office would make distinguishing between the President and Office of the President very difficult.
Amendments Nos. 10 and 41 seek to include the administrative functions of Tourism Ireland under FOI. The Minister of State, Deputy Simon Harris, in my absence on the closing of Second Stage, explained it is one of the North–South bodies established under the British-Irish Agreement of 1999 and given statutory effect under the British–Irish Agreement Act. Since I am dealing with aspects of the North–South agreement constantly under the Special EU Programmes Body with my Northern colleague, I can confirm that we cannot unilaterally alter the conditionality of bodies established under it. This is done in a bipartisan way under the auspices of the North–South Ministerial Council. It is not within our legal remit. However, the FOI code that applies to North–South bodies is based on FOI legislation both in Ireland and the United Kingdom. Its primary objective is to facilitate access to information held by these bodies. In view of this arrangement, which ensures there is appropriate openness and transparency in regard to the bodies' activities, consistent with their status as North–South bodies, it is not possible to include them.
Amendment No. 12 seeks to include receivers and administrators, whether appointed by NAMA or other secured lenders, under the definition of "public bodies" in section 6. The receiver or administrator, as the Senator is aware, is an independent legal officer appointed to take control of and realise the assets of securing any particular loan. The receiver or administrator acts as the legal agent for the benefit of the borrower and not the lender or secured creditor. The receiver or administrator's costs are borne by the receivership and not by the lender. Accordingly, it is not appropriate to define receivers and administrators as public bodies. I cannot accept the amendment.
Amendment No. 25, tabled by Senator Barrett, would delete the reference to any of the supervisory directives and the reference to "within the meaning of the Central Bank Act of 1942". The confidentiality and professional secrecy requirements contained in and stemming from the European system of Central Banks, ESCB, statute require that similar protections be provided in domestic law. Under EU directives relating to banking supervision and the non-banking financial services industry, there is an obligation imposed of professional secrecy on the Central Bank of Ireland. In proposing to bring the Central Bank within the scope of FOI, I had to be cognisant of what is actually allowable within EU law and notify the European Central Bank in that regard. In view of these EU and Eurosystem constraints, which take precedence over Irish law, as the Senator knows, I proposed that the FOI Act be extended to the Central Bank of Ireland on a basis which excludes records relating to its ESCB-related tasks and those subject to the obligations of professional secrecy relating to financial obligations and the regulatory role under the supervisory directives of the European Union.
On this basis, it is not possible to accept the amendment.
On amendment No. 31, the Labour Relations Commission and the Labour Court are being provided with an exemption under FOI legislation to protect their functions in so far as they relate to dispute resolution, conciliation or mediation on a voluntary basis to settle disputes. It includes the role of the Labour Court, the Rights Commissioner Service and the Labour Relations Commission in resolving industrial disputes. The possibility that such records might be subject to FOI legislation would, potentially and, I think, almost certainly, undermine the value of these organisations in performing an extremely important public role. It would deter individuals, public and private bodies and the unions in participating in this voluntary process. Moreover, continued recourse to the State's industrial relations machinery to resolve industrial disputes is considered central to maintaining a stable industrial relations environment. It is for these reasons that I do not propose to accept the amendment.
Amendment No. 32 has been tabled by Fianna Fáil and concerns the NTMA and the terms and conditions of staff. I understand fully its import. Notwithstanding the established and strong general principle that pay information on persons employed by a State body should be subject to FOI legislation - a view that I know that Senators will strongly support - I have, after long consultation with my colleague, the Minister for Finance, accepted that there should be partial exclusion. As Members will know, there is a guideline whereby bands of pay are disclosed. That is the appropriate balance to be achieved without putting at risk the potential of the NTMA and its family of companies to maintain the best category of employees. As the economy improves, the pressure to recruit such persons into the private sphere is all the greater. I have accepted the reasoned argument in that respect, but I know people will wish me to go further. It is my view that information on remuneration should be in the public sphere and I have personally engaged on this matter. It is the appropriate balance to be struck at this time.
When we talk about the Office of the President, I am not talking about President Michael D. Higgins. I have never discussed him in this Seanad and will not do so today. Let this be understood before the debate goes ahead.
The Constitution talks a lot about the presidency. It talks about the possibility in some cases, as mentioned before the last election, of impeaching a President. There could well be discussions at some time in the future about the President, but I think the Office of the President is different from the President. Nobody is looking under FOI legislation for a letter that he sends to a Head of State, in the same way that I could seek a letter the Minister present might send to the Minister with responsibility for expenditure in Belgium. In terms of the Office of the President, the money spent on the administration of it should be subject to FOI legislation. Many of the people who work it are civil servants who do a great job.
It is subject to normal accountability procedures.
In terms of their actions, they would be subject to FOI legislation if they were working in a different Department, but I would like to see the scope being broadened to some extent. We are not looking for information on the President's affairs. We are not looking for information on his business, as Head of State, with other Heads of State, meetings with the Taoiseach or any of these functions. However, the Office of the President should be subject to some level of scrutiny.
On the NTMA, I urge the Minister not to just listen to the Minister for Finance but to talk to some of the stockbroking firms around town that have lost staff to the NTMA. They have told me that the reason they have lost staff is that it pays higher wages. I accept the point that things might change, but I was told about the higher wages paid when we met various interest groups around town. The Minister should make a few more telephone calls on the matter before making his final decision.
Amendment No. 25 in my name was listed in the midst of Senator Thomas Byrne's amendments and I thank the Minister for his reply. The purpose of my amendment is to delete the line: "any of the Supervisory Directives, within the meaning of the Central Bank Act 1942". I refer to the supervision that failed and which has been a disaster for everybody in the House and the country. A journalist calculated that an official in charge had forgotten, could not remember or had no recollection of evidence 89 times. All we have to do is look at the material we have found since produced in the Regling-Watson, Nyberg, Wilson and Honohan reports, by the Comptroller and Auditor General and the Committee of Public Accounts. There was a building society - I kind of knew as it was located not far from me - and everybody knew it was on the rocks. The people in charge - this the phrase that has been used to describe them, as the Minister knows, were asleep at the wheel.
The idea of stricter regulation of the appointment of directors to banks seems to have disappeared into the sand, a phrase used by Mr. Sean Cromien, a former Secretary of the Department of Finance. Why did people move from the Department of Finance to the Central Bank more or less on an assembly line? Why did nobody know that when one moved from a banking system based on deposits to wholesale borrowing things changed? Why did nobody in the banks know that one had to have strict rules on loan to value and loan to income ratios when lending?
Like Senator Aideen Hayden, I commend the work Deputy Ciarán Lynch is doing with the committee. Banking is the last sector which should receive an exemption because it crashed the country. In the Central Bank which had 1,400 employees apparently two of them were supposed to regulate banks. Finding all of this information, as a society, was like extracting teeth. I would hate to think the slap dash way the Central Bank regulated was acceptable to anybody in Parliament. We have all paid the price - all of our constituents have it, which is why I tabled my amendment. We must get the message across to those involved in banking and those in the banking section of the Department of Finance and the Central Bank that we want records to be kept and that what went on in the country was unacceptable and that it had such disastrous consequences.
As the Minister will know, one of the matters on which Deputy Ciarán Lynch and the committee will place emphasis - not just the night when the bills finally came - is the hopeless analysis of banking by the bank regulator and hopeless conduct of banks. Do we know, for instance, if the incentive structure in Irish banking was changed in order that people would not bother to check incomes and if banks paid bonuses for shovelling money out? A large amount of damage was done by this sector, which is why I was reticent that it should receive an exemption. Of all the information sought we need to know how they engaged on supervisory directives.
It has been mentioned that the Europeans told us to do this. The Europeans were not of much use to us when this country had to take the burden of defending the euro. I hope there will be wider discussions between the Minister for Finance and Mr. Draghi. Ireland was let down by design faults in the euro system. Did anybody know this in the Central Bank? We badly need its records and I would appreciate any help the Minister can give us in that regard.
My concern is that I am not so sure the banks and the property sector would not do the same all over again. I am not so sure the new Central Bank Governor Honohan is trying to build is powerful enough yet to take on the continuity Central Bank which was rubbish and deserved the disapprobation of everybody for the way it supervised bank regulations. These are my concerns that led to my tabling of amendment No. 25.
I will deal with Senator Sean D. Barrett's concerns first. He has not said anything with which I do not fully and completely agree. I am afraid that there was a deliberate policy which had nothing to do with the Central Bank of light touch regulation that disempowered proper supervision for a long period. These matters will be investigated in a different fora and we will see what transpires over time.
I made it clear that I encompassed that as far as legally possible. I cannot propose to this House law that is contrary to European law and under the European system of central bank statutes and the EU directives relating to banking supervision, there is a requirement for secrecy regarding some of the operations of the Central Bank of Ireland as a subset of the European system under the European Central Bank and it is not legally possible for us to enact a proposal that undermines European law, which has uniform application across the eurozone, in that regard.
With regard to the Office of the President, Senator Byrne instanced all the aspects that should not be covered by FOI, with which I agree, but then he said that the only aspect that might be captured is the financial affairs of the office, how the money is disbursed and so on. That is covered by a formal Vote to the office, subject to normal scrutiny by the Comptroller and Auditor General and the Oireachtas. I agree with him regarding all the aspects that should not be captured by FOI and it is inappropriate for us to do that.
I hear what the Senator said regarding the NTMA.
A health Estimate is put before the Dáil as well and it is voted on. It also votes on the President's Vote.
More than 100,000 people work in the health system.
Yes, but we often do not often find out details until we send in numerous FOI requests. We do not find out how the money was spent or whether it was spent rightly or wrongly until a response to an FOI request issues. The fact that it is voted on in the Dáil is surely enough to make it subject to FOI and the Minister should consider that. There must be a way of drafting this to exclude the incumbent's functions as Head of State but to include how the office spends money. We need accountability at all levels of society. The President has a job to do but he or she has an Accounting Officer. Is he or she exempt?
He or she is exempt from FOI but is answerable to the Comptroller and Auditor General and the PAC and accountable for the expenditure of every cent to the Dáil in a transparent way.
But the Accounting Officer is exempt from FOI.
Yes but he is the Secretary General to the President-----
But his functions are exempt from the FOI legislation because he is in the President's office. That is no reflection on the incumbent, who is a good person. The officeholder changes from time to time. Is the Minister happy that one branch of the Civil Service is excluded under the legislation? He is essentially arguing in favour of this. The Dáil votes on the money provided to the President's office. The Minister is correct that the office is accountable to the Comptroller and Auditor General and PAC, although it is not accountable to an Oireachtas joint committee. Why then exclude those functions from the legislation? There is no logic to it.
I have explained this in detail. The Senator knows my views full well. The only net point he is raising is accountability in terms of expenditure. That is fully transparent and accountable through the formal financial controls over any Vote. A tiny group of people work in the Office of the President. It is not right to compare its expenditure with the billions of euro expended by the health service on thousands of different functions.
The Minister introduced that equation into the debate.
Amendment, by leave, withdrawn.
Amendments Nos. 10 and 11 not moved.
I move amendment No. 12:
In page 15, between lines 32 and 33, to insert the following:
“(b) receivers and administrators working for/employed by the National Asset Management Agency;”.
Amendment put and declared lost.
Section 6 agreed to.
Amendment No. 13 not moved.
Section 7 agreed to.
I move amendment No. 14:
In page 21, between lines 17 and 18, to insert the following:
"(5) If the material specified in paragraph (e) of subsection (2) is not published and made available in accordance with this section or the material so published and purporting to be the material aforesaid is incomplete or inaccurate and a person shows—
(a) that he or she was not aware of a rule, procedure, practice, guideline, interpretation or precedent referred to in subsection (2)(e) or of a particular requirement of the rule, and
(b) that, but for such non-publication, non-availability, incompleteness or incorrectness, as the case may be, he or she would have been so aware, the public body concerned shall, if and in so far as it is practicable to do so, ensure that the person is not subjected to any prejudice (not being a penalty imposed by a court upon conviction of an offence) by reason only of the application of the rule or requirement if the person could lawfully have avoided that prejudice if he or she had been aware of the rule or requirement.".
The amendment re-inserts an important provision in the original FOI legislation. The Bill removes the legal protection regarding the right to redress by a member of the public if an FOI body does not fulfil its legal right to print a publication scheme or produces such a scheme in an inadequate manner. The original Act provides the public with the opportunity to seek redress before the courts if the publication scheme is not in place or is inaccurate. The amendment will restore this provision. The Minister is going backwards by removing it and I urge him to properly consider the amendment to ensure citizens are able to exercise their full rights when it comes to accessing information. It is worthy of consideration.
Senator Quinn has raised an important issue - the right to redress by a member of the public if a public body fails to fulfil an obligation, in this case concerning publication of information. I considered whether this provision should be maintained in making an amendment to the Bill in the Dáil to specify key information that would be required for inclusion in a publication scheme. However, when I examined this closely, I questioned the appropriateness of the provision in an FOI Act.
If a public body, or a body funded by the public purse, provides a service or operates a scheme for members of the public, and by virtue of the fact that the body did not publish information or published incomplete or inaccurate information, which resulted in a person being prejudiced or penalised or impacted negatively in some way because he or she was not aware of rules or procedures concerning that scheme or service, he or she should have a right to redress in the normal way. That is how it is done under the Ombudsman's legislation. The person has the right to redress. The old adage in law is ignorance is no defence. There has to be an impartial adjudication of whether, for example, I did not pay my water charges because I did not receive the letter. There has to be some reasonableness about this. Rather than providing for this in FOI legislation, which simply relates to information, the non-publication of information or any other act that impacts negatively on the citizen is subject to the broadened powers I have given to the Ombudsman in the most recent legislation. That is the appropriate vehicle to deal with the issue raised by the Senator. I considered this and that is the way it should be as opposed to being couched in an odd way in FOI legislation. It is a general administrative issue that would have an impact across the public service where people gave false information or withheld information. That has to be adjudicated on and the Ombudsman is the right person to do that to see if the complainant has a case or whether he or she is trying it on.
I understand what the Minister is saying and I accept his reply.
Amendment, by leave, withdrawn.
Section 8 agreed to.
Sections 9 and 10 agreed to.
Amendments Nos. 20, 26 and 28 to 30, inclusive, are related to amendment No. 15 and they may be discussed together.
I move amendment No. 15:
In page 25, between lines 35 and 36, to insert the following:
"11. The Minister shall, within 12 months of the enactment of this Act, make provision for the establishment of a database to include all information released under the Act and such database shall be made available to the public.".
I share the objective of Senators Quinn and Barrett in amendments Nos. 20 and 28 in respect of ensuring good records management. The issue was considered in depth during the review of FOI legislation carried out by both an internal group of public bodies and an external group composed of academics, journalists and representative groups while the Bill was being drafted.
The external group's report, which was published on my Department’s website last July, underlined the importance of good record-keeping and records management.
On amendments Nos. 15 and 30, I have also given consideration to the issue of disclosure logs and the keeping of freedom of information statistics. The report of the external review group set out that some Departments, including the Departments of the Taoiseach and Environment, Community and Local Government, already publish a disclosure log. In addition to publishing details of what has been requested, a number of other Departments, such as the Departments of Communications, Energy and Natural Resources and Transport, Tourism and Sport, publish the records disclosed. While the external review group recognised the benefits of publishing such information, it also acknowledged the potential legal, administrative and practical difficulties of widely publishing information released under freedom of information legislation. In addition, the Departments in question advised that there was no evidence that the publication of the records led to a more efficient freedom of information regime which reduced the number of freedom of information requests received from the same individual.
Section 48 is a general overarching provision on the publication of a code of practice and guidelines for freedom of information. While I do not intend to make specific reference in section 48 either to the records management issue or to the provision of statistics on freedom of information, as proposed by the Senators, I have addressed these issues in the draft code of practice that I published. I hope Senators will have an opportunity to examine the draft code in some detail.
In amendment No. 26, Senator Byrne of the Fianna Fáil Party seeks that a code of practice be drawn up and published within three months of enactment. I hope my decision to publish the draft code of practice last July meets the Senator's concerns.
In amendment No. 29, Senator Byrne seeks to substitute the word "shall" for the word "may" in the sentence, "The code shall include provisions to promote the publication of official and other information", on page 71 of the Bill. I assure Senator Byrne that the Bill already provides that public bodies "shall" prepare and publish publication schemes, which are regarded as best practice internationally for FOI as a means of publishing and disseminating significant information relating to functions and activities of public bodies in a proactive way.
I will speak briefly to amendments Nos. 28 and 30. It will be necessary to ensure electronic information is provided. Let us take the issue of obtaining records on Anglo Irish Bank, a point made by Senator Barrett. If we had known what was going on in that bank, could we have tackled the problem earlier and saved taxpayers billions of euro? I hope the Minister will be open to accepting the amendment.
Private companies are not subject to freedom of information legislation.
That is correct but there must be some link. Reference was made to a company that was awarded a major contract from the State.
The Minister is correct in the case of Anglo Irish Bank.
It took a large amount from the State.
Yes, it was not contracting to the State.
We already knew that when it was taking from us.
I accept the Minister's point.
Amendment No. 30 proposes that the codes may include provisions to publicly document cases in which bodies that are subject to freedom of information legislation fail to release information, including the time it takes for such bodies to release information. The amendment has been tabled in response to the launch in 2011 of the website, FOIA.gov, which allows people to see whether Government agencies in the United States are fulfilling their obligations to disclose information under the country's freedom of information laws. We should consider naming and shaming State institutions and branches of Government that do not release information or do not do so in a timely manner. This may be pertinent given that certain State-funded quangos or institutions still do not reveal key data such as the salaries of their chief executives. The amendment aims to give members of the public better access to records by showing which bodies are not fulfilling their obligations. This will give bodies subject to freedom of information provisions a nudge to release information. I hope the Minister will consider accepting the amendment.
Amendment No. 20 is in my name. The Department of Finance had and should have had a role in this issue. After the crisis hit, some people argued that they had seen the bust coming, knew when the boom would end and were worn out telling people the bubble would burst. How come the records showed that these people were all what one could describe as "soft landing merchants". The records were clearly not comprehensive and adequate. People deliberately set out to deceive, yet we hear that everyone was on the right side and the crisis was caused by the sloth, neglect or indolence of someone else. Those who do not have records should receive some sanction in law, rather than by means of a protocol or code of conduct because it is their job to keep records. I agree with Senator Quinn and the Minister on the value of having records. There were massive failures in information systems.
Does the Minister not consider it a bad idea to have a banking system based solely on property? We are trying to encourage innovation and entrepreneurship, yet our banking system is obsessed by property. We are not being told anything about the system by the Central Bank, nor do we hear of any concerns about the system in the Department of Finance. While I hope our procedures have improved, I frequently doubt that is the case. I believe we could do the same all over again.
I ask the Minister to consider introducing some form of sanction. We want better records than were revealed in this awful episode which did so much damage to the country. Practices such as moving money into a financial institution at ten minutes before midnight and moving it out again just after midnight to pretend it was lodged in the bank for the entire year or disguising the amount of deposits were condoned. A great deal of deception and corruption was missed.
The Minister used the phrase "light touch regulation" in connection with the banking sector when the term "non-supervision" is more appropriate. In most countries the state is, unfortunately, the lender of last resort in the banking sector. I do not mind how dress hire companies conduct their affairs because if they go broke, someone else will get their business. It is appalling, however, that in banking, which was an unregulated system, the State was the lender of last resort. The purpose of amendment No. 20, which I do not propose to move, was to address this issue. If anything can be done before Report Stage to improve information and record keeping in the banking institutions which we are supposed to be supervising, it would be valuable to the country, even if it comes late in the day.
I am sure the Senator has had an opportunity to read the draft code I published, chapter 5 of which deals with the review and updating of records and guidelines. While the system will probably not be foolproof, it is a fairly good and robust approach to the issue.
The issue here is not solely one of knowledge. We knew many things we did not want to hear. In one famous incident, a former Taoiseach told people who took a contrarian view that they could kill themselves. It is not all simply about having information. Many people wanted to party on, as another senior politician stated at the time, and did not want to hear that dark days could lie ahead. This is a societal issue that goes well beyond access to information.
Amendment, by leave, withdrawn.
Amendments Nos. 16 to 18, inclusive, not moved.
Section 11 agreed to.
Sections 12 to 14, inclusive, agreed to.
Amendment No. 19 has been ruled out of order as it involves a charge on the Exchequer.
Amendment No. 19 not moved.
Section 15 agreed to.
Sections 16 to 22, inclusive, agreed to.
Amendment No. 20 not moved.
Sections 23 to 26, inclusive, agreed to.
Question proposed: "That section 27 stand part of the Bill."
I raised this issue on Second Stage and it was discussed at length during Dáil proceedings. In the Dáil, a new section 27, which introduced the new fees regime, was inserted. While it eliminated the standard €15 charge, it has not eliminated fees in their entirety. There is concern that it will undermine rather than enhance a rights-based regime of access to information in so far as it makes access to certain kinds of information dependent not on need or public interest but on ability to pay or the cost to the State. In some cases, applicants could be required to pay a charge that is many multiples of the previously imposed €15 standard charge. The Government amendment provided the power to refuse requests on administrative grounds due to time and cost and, in addition, required applicants to pay a deposit before any information, search or retrieval work commenced.
The Minister has spoken about the open data regime. Once that is up and running, it should significantly reduce the need and therefore the demand for freedom of information requests. There should be no introduction of a new fees regime prior to the completion of the open data regime. While I accept that there will be an open data regime, eliminating the fees regime until that point is a possibility if the Minister introduces further amending legislation.
The package of proposals for reform of the freedom of information provisions that I put forward goes well beyond what was done to roll back some of the advances made in the original Bill but goes beyond the original Bill in making access to information as cheap as possible. Up to five hours of public service work, which will encompass the vast bulk of freedom of information requests, will be free under this system. I am conscious of the significant burden this will impose on the public service, which is a public service that I have reduced in quantum over the past few years because of economic necessity.
Bluntly, the notion that Sinn Féin expounds is that everything should be free, that there should be no cost to anything, no charges for anything and no taxes on anything, and that we should expend any volume of money on anything. My colleague in the other House took issue with Sinn Féin on that point, but there comes a time when one cannot be all things to all men. At the same time as every service imaginable should be free and open-ended, with no additional taxes of any kind, Sinn Féin is against any charge or any imposition of any kind. Sinn Féin is all things to all men. The fees regime we set out in this enactment, which I thought might be acknowledged for once, is among the most progressive, liberal and inexpensive in any state. That is where we should be, and the fact that we can be in that place while still in economic distress is a credit to everyone in the Houses.
I acknowledge what the Minister has changed in respect of the section. The Minister encountered significant and justified opposition to the original proposal. Fianna Fáil and Sinn Féin opposed it strongly, as did many freedom of information advocates. What was originally proposed was wrong but, in fairness, what the Minister has come back with-----
What was proposed was an improvement on what the Fianna Fáil-led Government enacted.
It was not; it was a disimprovement. I am about to praise the Minister.
On a point of order, Fianna Fáil completely undermined the original freedom of information legislation by introducing the fee structure.
That is not a point of order.
The reality is that no one will be turned away from freedom of information because of the section. This proves that the Shinners - let us call them what they are - are against everything.
Senator Byrne wants to dance with me, really. I know he does.
No fair assessment of the section could criticise it. We provided fair criticism of the section in the Dáil because what was originally proposed was outrageous. The Minister listened and changed it, and we should acknowledge that rather than saying "No". That is not the talk of a government, and it is no wonder Sinn Féin is thinking about pulling out of the Northern Ireland Executive.
Question put and agreed to.
Sections 28 to 30, inclusive, agreed to.
I move amendment No. 21:
In page 50, line 11, after “member” where it firstly occurs to insert “of Dáil Éireann, Seanad Eireann, or”.
I am curious as to why the private papers of Members of the Oireachtas are not mentioned in the section. They were not mentioned in the original Bill. They are mentioned in the Constitution but the Constitution does not give carte blanche in terms of privilege for private papers. It says that the House may make Standing Orders on that point. Could this provision be inserted? This is very similar to the situation concerning the President. This is not about exempting Members of the Oireachtas from the kind of freedom of information requests that have been submitted over the years. It is about the matters Senator Norris spoke about, concerning our diaries or e-mails with constituents and whether they should be private.
I refer the Senator to section 42(k) of the bill, which states that "a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential".
That is the point. There are no Standing Orders in that regard.
That is a matter for the House, not for me.
Can the Minister not accept the amendment to cover it in the other section?
No. I have some experience of dealing with personal papers, since I have been through the High Court and the Supreme Court in respect of my papers. There is an obligation on the Houses of the Oireachtas to have such Standing Orders. That is the determination of the court.
In this section, are we not giving an exemption to the private papers of MEPs and councillors? The section states that a head shall refuse to grant a freedom of information request if the record concerned consists of the private papers of a Member of the European Parliament or a member of a local authority. What is the effect of that?
The private papers of a Member of the European Parliament or a member of the local authority are covered under section 6, which states that the head shall refuse to grant such a request.
Why can the Minister not include Members of the Oireachtas? It is a different matter if we make Standing Orders. This matter is about freedom of information and those documents would be privileged from court action.
These are exemptions for private papers. Section 42, which I quoted, exempts in total the papers of the Oireachtas because of the constitutional imperative.
Yes, if we enact Standing Orders, which we have not done.
That is a matter for the House.
At the moment, a private e-mail that I send to someone could be requested under freedom of information because the Houses of the Oireachtas have never acted on that constitutional provision.
I do not know that such Standing Orders do not exist, but if they do not I would ask the Committee on Procedure and Privileges to deal with it.
That is a major gap. The idea that the local county councillor has more-----
He does, because while the request in respect of the councillor will be refused, Members are exempt in the same circumstances if Standing Orders are introduced. The constitutional provision has nothing to do with freedom of information, because the concept had not been heard of in 1937. It has to do with court proceedings and all sorts of privilege. It is much wider than freedom of information. I do not see why the same exemption cannot be included for Members of the Oireachtas.
To be clear, the idea of personal papers of some categories being exempt is covered in the section we are dealing with but section 42 Part V states that this Act shall not apply to the categories of records which are the records relating to the Members of the Oireachtas. I refer the Senator to section 42K which provides that a record relating to the private papers, within the meaning of the article of the Constitution of a Member of either House, is required by the rules of Standing Orders of either or both Houses to be treated as confidential. They are excluded in their entirety from all impacts of the Act.
There is a difference with the Members of the Oireachtas because there is also the constitutional provision.
The constitutional provision does not provide a carte blanche; the constitutional provision is there if we decide to enforce it and change Standing Orders.
That is the answer to the question the Senator is asking which is why they are not included in section 31.
I want to be very clear in case the media misunderstand. This has nothing to do with expenses or financial records or anything like that. If anyone makes that mistake he or she will be in trouble and the Minister knows I am clear on this. It is about our private papers, the records we hold about constituents and the papers associated with our parliamentary work. The Constitution does not give carte blanche; it states that we may make Standing Orders on this matter but as far as I am concerned, we have not included that provision in Standing Orders. The Minister is being dismissive, in my view. The Constitution is not about freedom of information. Members of the Oireachtas have complete exemption if we decide to change our Standing Orders. However, the Minister is giving an exemption from freedom of information to councillors and MEPs which he is not giving to Members of the Oireachtas because the Standing Orders do not cover that issue. If we leave it to the Committee on Procedure and Privileges nothing will be done.
In replicating the wording of the Constitution I am giving the capacity for the Houses of the Oireachtas - I am surprised they have not done so - to enact such Standing Orders as would be expected.
As a member of the Seanad CPP it is a matter we should bring to the next meeting of the CPP to investigate. I am not clear either. It may well be that we have Standing Orders to deal with this. We need to have a look at that. If not, we will certainly bring it before the CPP.
To be clear, we are not trying to hide information that has been generally available to the public over many years.
The Chair does not often intervene but as Chair of the CPP, I ask for an instance where such an issue might arise.
For instance, if someone made a freedom of information request on my diary or on Senator Bacik's diary or on e-mails or papers in our respective offices; it could be argued that the Constitution did not envisage e-mails.
I can give an exact example of something I had to deal with. It has since been covered in the whistleblower legislation but if a person writes a complaint to the Cathaoirleach that someone was acting corruptly and the Cathaoirleach caused that matter to be investigated, the Cathaoirleach would not want the person making that allegation to have that person's name in the public sphere. That complaint would be protected as private papers in normal circumstances.
I raised this issue with the Minister of the time when I was in the Dáil. I might ask the Chairman of the CPP as the Cathaoirleach, to examine it, to ensure the House has a proper provision while not restricting the normal information about Members of the Houses that journalists may request under freedom of information.
I will not press amendment No. 21 but I am depending on the Cathaoirleach's undertaking because there is a gap in that legislation.
Amendment, by leave, withdrawn.
Section 31 agreed to.
Sections 32 to 36, inclusive, agreed to.
Amendment No. 22 not moved.
Section 37 agreed to.
Sections 38 to 40, inclusive, agreed to.
Amendment No. 23 not moved.
Section 41 agreed to.
Amendments Nos. 24 and 25 not moved.
Section 42 agreed to.
Sections 43 to 47, inclusive, agreed to.
Amendments Nos. 26 to 30, inclusive, not moved.
Section 48 agreed to.
Sections 49 to 55, inclusive, agreed to.
Amendments Nos. 31 and 32 not moved.
Amendments Nos. 33, 34, 36 to 40, inclusive, and amendments Nos. 42 and 43 which are physical alternatives to amendment No. 33, may be discussed together.
I move amendment No. 33:
In page 78, to delete lines 40 to 42, to delete page 79, and in page 80, to delete lines 1 to 9.
I compliment the Minister that Part IV, sections 28 to 42 of the Bill, lists very comprehensively the principles of exemption, including parliamentary and court proceedings, law enforcement, public safety, security, defence, intergovernmental matters, commercial confidentiality, sensitive information, personal information, financial and economic interests of the State. Is it necessary to have belt and braces? Why are a further 38 bodies exempted if they do not qualify under the principles between sections 28 to 41? How can one say that a body is exempt because a body is No. 29 on the list and therefore does not have to deal with freedom of information correspondence? The Minister's principle is that they are all in unless they qualify for exclusion under the principles of sections 28 to 41. Is it necessary to also have a list of exempt bodies?
The Education (Miscellaneous Provisions) Bill has a section dealing with refusal of access to certain information and provides that the Minister may refuse access to information and the public body shall refuse access to specified information if information could be used for the compilation of further information.
The general principle of amendment No. 33 is to get rid of the opting-out list. I ask the Minister to take a look at the Education (Miscellaneous Provisions) Bill which we dealt with during the week which sought to exclude information in the education sphere which is a very important provision for the rights of children in their education. I question whether a list of exempted bodies is required once the Minister has set up the principle in those sections. What device exists to stop people trying to escape from the legislation which the Minister is promoting and supporting?
I wish to raise an issue about some of the smaller port companies that are akin to local authorities.
While I picked them out without researching each one, there are proposals to merge some of these authorities with local authorities. Some of them are extremely small, are not really commercial semi-State bodies, although that might be their title, and manage areas that in many cases could be managed by the local authority. They should be subject to FOI.
I hear what the Senators have said. The amendments, taken together, seek the deletion of the entire list of exempt bodies. By and large, I want to exempt only two categories of bodies, namely, commercial bodies and North-South bodies. It is wrong to expect commercial companies that happen to be owned by the State, but operate on the same playing field as their competitors, to be subject to FOI, including FOI requests by their competitors. It would spancil the capacity of commercial semi-State companies to operate in that realm. This is their strong argument to me and I strongly adhere to this view. Unless one held the view that we should not have commercial semi-State companies, one would have to allow them to operate as commercial entities on the same playing field as everybody else. I have already explained that the North-South bodies cannot be included because they are part of the Good Friday Agreement, an international agreement that we would probably have to renegotiate and, probably, have another referendum on, to alter in substance, and this is impossible. Senator Byrne raised the issue of the harbours.
Particularly the smaller ones.
The port companies I have exempted are the remaining nine commercial port companies. Others have been merged. The port companies proposed for deletion by the Senator are all commercial port companies established under the Harbours Act 1996. Under the Act, 11 of the commercial harbours under the Harbours Act 1946 were established as companies under the Companies Acts, while others were either transferred to local authorities or dissolved. Since then, Shannon and Foynes have merged and Dundalk Port Company has been dissolved and its functions subsumed into the Dublin Port Company. The nine remaining port companies which operate as commercial ports are captured by the exclusion.
Amendment, by leave, withdrawn.
Amendments Nos. 34 to 43, inclusive, not moved.
Schedule 1 agreed to.
Schedules 2 to 5, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take Report Stage?
Report Stage ordered for Tuesday, 30 September 2014.
When is it proposed to sit again?
Next Tuesday at 2.30 p.m.