Freedom of Information Bill 2013: Report and Final Stages

Before we take Report Stage, on a point of order, may I ask for some information about the rather unusual fact that the Minister for Transport, Tourism and Sport, Deputy Paschal Donohoe, has seconded several Fianna Fáil amendments to the Bill? Does this indicate the Government’s approval for these amendments? Is it an offshoot of the McNulty affair?

I think the Senator is jumping the gun.

On the amendments list, no fewer than ten amendments have been seconded by Deputy Paschal Donohoe who once was a Member of this House but is now the Minister for Transport, Tourism and Sport. Is this a sign of the Government’s support for the amendments in the name of Senator Thomas Byrne?

The Minister for Transport, Tourism and Sport, Deputy Paschal Donohoe, has not yet joined the Fianna Fáil ranks.

Why is he then supporting ten Fianna Fáil amendments?

I presume it is a misprint on the amendment paper and should read Senator Paschal Mooney instead.

Of course. That had not occurred to me.

Well spotted. I thank the Senator for enlightening the House.

Before we commence, I remind the House that Senators may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on that amendment. I also remind Members that on Report Stage each amendment must be seconded.

I move amendment No. 1:

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,”.

We had a good discussion on this matter on Committee Stage. I raised issues that were in the press and spoke to the Minister’s officials subsequently. Has the Minister had further thoughts or discussions on them since?

I second the amendment.

I have not changed my view. The Senator assumed his proposal was in the legalisation in the United Kingdom. I have checked there and it is not. Its freedom of information system replicates what we have here.

The United Kingdom has guidelines though.

We will have guidelines, too. As I explained on Committee Stage, the import of the Senator’s amendment will be captured, but it would be a bridge too far to require the trawl of every personal account and text that an individual would have in order that there might be something there that would be germane to it. The guidelines will state that any official correspondence on any official matter will be subject to freedom of information.

Former British and Irish Administrations have used personal e-mails to conduct official business. Are there penalties for Ministers and advisers who do this?

I oppose the amendment because there is a sense of peeping-tommery about it. There is plenty of information around already without going outside the official networks and into the personal databanks of people involved in political life.

This will stifle discussion. In the light of the experience of the operation of the original Bill, we should be very careful about extending it all over the place. I cannot help thinking there is a certain amount of grandstanding for public approval for extending the Bill. We should be clamping down on it, looking to see where information is not necessary and where it simply services the prurient appetite of the media.

Amendment, by leave, withdrawn.

Amendment No. 2 is out of order as it does not arise out of Committee Stage proceedings.

Amendment No. 2 not moved.

Amendments Nos. 3, 4, 13, 17, 18 and 26 are related and maybe discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 3:

In page 15, between lines 32 and 33, to insert the following:

"(b) the Office of the President;".

The amendment proposes to include the Office of the President and the financial functions thereof and not to include the President himself or herself. The Minister rightly pointed out the President's office is subject to the Comptroller and Auditor General, the Committee of Public Accounts and an Estimate in the Dáil but not subject, like every other body, to freedom of information. I do not see how imposing this requirement on the office would impinge in any way on the functions of the President as he carries out his role as head of State. The debate has nothing to do with him or any other President but rather the running of the office.

Amendment No. 4 relates to Tourism Ireland. The Minister gave a reason in this regard last week, but it should probably be addressed at cross-Border level at the next talks. Sinn Féin speaks about cronyism, but it appointed a failed local election candidate, who then became a Member of the European Parliament, as chairman of safefood which, as a cross-Border body, is also probably not subject to freedom of information. The Minister should take up this point with his counterparts on the North-South ministerial body.

I will not move amendment No. 13. We have already had a full debate on the points raised in the other amendments.

I oppose this amendment also. The Office of the President should be above this kind of thing. This is dragging the office, the highest office in the land, into the political hurly burly and I do not think it is appropriate. Perhaps the Estimates can be discussed in the Dáil and the Seanad, but the Office of the President is the one thing which must be kept out of politics and, in particular, party politics. There is a danger that were this amendment to be carried the Office of the President would be sullied and would become a target for inappropriate discussion in the House. Under the Standing Orders of the House, discussion of the President and his or her office is excluded. I do not see how we can reconcile these two things. I am sure it was tabled by my good friend, Senator Thomas Byrne, in good faith, but I strongly feel the Office of the President should be totally immune. There is always tittle-tattle about Presidents. I remember Mary Robinson being subject to all kinds of attacks. The current President has had some little bits and pieces said. We should not encourage this kind of thing at all. It should be stamped on firmly and I hope the House will, after reflection, unanimously reject the amendment.

I agree entirely with Senator David Norris. It has always been the tradition, and accepted in both Houses, that the President is above politics. It has been a firm and rooted tradition since the foundation of the State, and accepted in the Dáil and the Seanad, that we do not discuss the President. In keeping with this independence I felt it would not be appropriate to cover the Office of the President under freedom of information. With regard to the matter raised by Senator Thomas Byrne on financial affairs, the Vote is fully scrutinised, presented to the Houses and audited by the Comptroller and Auditor General, and all expenditure is fully exposed and subject to public scrutiny as is right and proper. This is the appropriate extent.

With regard to Tourism Ireland, as I have explained, it and other bodies mentioned are part of the North-South institutions. There will be a meeting of the North-South Ministerial Council tomorrow. I have been formally advised by the Office of the Attorney General that amazingly, it would require a formal reopening of the Good Friday Agreement to include it in the North-South Ministerial Council, but that is where we are.

We will sacrifice it for the sake of peace for the time being. We will try to get it on the agenda the next time changes are being made.

Amendment, by leave, withdrawn.
Amendments Nos. 4 to 6, inclusive, not moved.

Amendment No. 7 is out of order.

Amendment Nos. No. 7 and 8 not moved.

Amendments Nos. 9 and 10 are related and will be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 9:

In page 47, between lines 26 and 27, to insert the following:

"(a) consists of a private communication between two or more members of the Government,".

This arises from a discussion during an earlier Stage of the Bill. I feel strongly the Bill may be going too far. The original Bill exempted private communications between two or more members of the Government. Even political commentators state this would inhibit Cabinet discussion. It would restrict the capacity of the Government to debate freely, frankly, openly and honestly matters of policy. I do not see why we should be so craven and give in to the media's demands, suck up to the press and let them have access to information of this nature. I am very much inclined to go back to the original legislation and exclude private communications between two or more members of the Government. Including it only means certain matters will be discussed off the table and there will be no record. We will be deprived of the historical record in 50 years time when the State papers become available. It does not achieve any positive end. It inhibits historical discussion and the understanding of the historical perspective. I appeal to the Minister to exclude private communications between members of the Government.

I second the amendment.

I am not as upset about this matter as Senator David Norris. With regard to amendment No. 10, there is a gap in the law regarding the private papers of Members of the Dáil and the Seanad. What are the Minister's views on this?

I understand the very clear point made by Senator David Norris and it is a balance between inhibiting proper ventilation of issues for fear they might come into the public domain and putting all options on the table with the need for the public to know what options are considered. The Senator is not right to state he wants to revert to the status quo. This is the status quo, in as much as I am undoing the amendment made by the Fianna Fáil-led Government in 2003. The original legislation was not as restricted. The balance I have struck is about right. I understand the point made, and there will be occasions when people may not want to commit to paper some of their views for fear it may be covered by freedom of information, but on balance one could make an argument against freedom of information in its totality if one believes this to be the case. By and large, best practice internationally shows the usefulness and utility of freedom of information. For this reason I do not propose to accept the amendment tabled by Senators David Norris and Sean D. Barrett.

With regard to amendment No. 10, Senator Thomas Byrne made a very strong point on Committee Stage on private papers and a requirement of the Houses of the Oireachtas in their Standing Orders to define what they are.

I do not know whether the Senators have made any progress in raising this matter at the Committee on Procedure and Privileges of each of the Houses, subsequent to our last discussion. That is somewhere it could be debated.

There is a definition of private papers that is referenced in this legislation, a definition that I forgot to mention on the last occasion. I inserted it into the Houses of the Oireachtas Inquiries Act. Section 42(k) of this Bill provides that FOI legislation does not apply to:

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.

The definition of private papers in the Oireachtas legislation that is enacted, and without prejudice of course to the powers of both Houses, individually and separately, to make rules and Standing Orders pursuant to the enabling provision of the Constitution in Article 15.10, in the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 contains a definition of "private paper" for the purposes of that Act. In acknowledgement of that, section 42(l) of this FOI Bill provided that the FOI Act does not apply, "unless consent has been lawfully given for its disclosure, a record relating to any private paper or confidential communication, within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013". There is a definition. It is reasonably comprehensive because it replicates what we debated on the inquiries Act. It is still open to the Houses of the Oireachtas to set their own rules on the implementation of the enabling provision of the Constitution.

I would like to comment on the Minster's response. I am glad that he sees the point of the argument that I am making, but I wish he would go a little further. I would like him to explain to me the meaning of the word "private". If something is private it means immune to prying eyes. How can a private correspondence be made accessible to the 4 million citizens on this island? It is not private. Where does the notion of privacy go? Is there no room for privacy in Government? Is there no discretion allowed? I find this astonishing. I almost feel a vote coming on.

We should be tougher in confronting the pressures that push towards so much disclosure. If a communication is private, and is intended to be private, other means will be found for making that communication which will leave no trace. It seems an astonishing contradiction that we should allow general public access to communications that are deemed in the legislation to be private. What is the point in things being private if they are public? I do not understand it.

Does Senator Feargal Quinn want to make a brief comment? Technically, he should not, but I shall let him speak for one minute.

I thank the Leas-Chathaorleach.

In regard to the point made by Senator David Norris on what is private, I do not understand why we are going to include it. One of the difficulties we have is encouraging people to enter politics, certainly people who would otherwise accept an invitation to join politics and play a role. If they feel this is another restriction on their lives then it is quite likely we will deter and inhibit people, who would be very suitable Members of this House and the other House, from joining politics.

I call on the Minister to make his final response.

Private communication between two Members of the Government is at issue. What is private communication? Is it anything I deem to be private? Is that private? Can I discuss fundamental issues of public policy outside any scrutiny of any kind and deem them simply to be private?

I know that in the specific case in which I was involved, in the course of the debate of this particular issue in both the High Court and the Supreme Court a great deal of focus was placed on the very important right of privacy. There are countervailing rights such as the right to one's good name and the right to not interfere in the course of justice. If I discussed knowledge I had about a fundamental misconduct of justice that had somebody incarcerated, should my right to privacy be greater than somebody's incarceration? All rights are balanced against other people's and other rights. No right, normally, is absolutely fundamental to the point that it supersedes other's rights, even to live, to not be incarcerated or oppressed, or to be deprived of a range of rights. In those contexts, we can talk in absolutist terms but these things are not absolute. On balance, my view is that to corral into an immune space all communications between two members of the Government that they deem to be private so that it becomes an impediment, a debar and an impenetrable wall is an assertion that would undermine the principle. It has undermined, in my judgment, the proper enactment of FOI legislation since it was amended by Fianna Fáil in 2003.

Amendment put and declared lost.

I move amendment No. 10:

In page 50, line 11, after “member” where it firstly occurs to insert “of Dáil Éireann, Seanad Eireann, or”.

I second the amendment.

Amendment put and declared lost.
Amendment No. 11 not moved.

Amendment No. 12 is out of order.

Amendments Nos. 12 to 15, inclusive, not moved.

I move amendment No. 16:

In page 73, line 7, after “fine” to insert “and/or 6 months in prison”.

This is a point where I felt the penalties were not sufficiently severe. The section states, on page 73 line 5: "Where an FOI request has been made in respect of a record, a person who without lawful excuse and with intention to deceive destroys or materially alters a record shall be guilty of an offence and be liable on summary conviction to a class B fine." That is just a slap on the wrist. There may very well be cases where a slap on the wrist is appropriate because the offence is quite a minor one. In such circumstances and in terms of defacing or destroying of public records, the fact that one may face merely such a fine will allow for many situations in which officials would find it worth their while to act accordingly and accept the fine. By contrast, to have a provision allowing for the possibility of a six months prison sentence would strengthen the Government's hand and protect records which need to be protected. I urge the Minister to look favourably on my amendment.

I second the Senator's amendment. It is a serious matter, as Senator David Norris said, to destroy a public record because one is trying to undermine the Minister in the context of the Freedom of Information Act. It is a form of suppression and merits a penalty that will act as a deterrent for that offence.

I perfectly understand the logic and reasoning of both Senators in advancing this amendment. As they rightly state, under the Fines Act 2010, a class B fine currently stands at not more than €4,000 on summary conviction.

By way of explanation of how such matters come about, we take advice from the Office of the Attorney General on the appropriate level of penalty into which each offence falls. The advice from the Office of the Attorney General is that this category, class B, is the appropriate one in the balancing of fines and penalties in the order of the Bill and in comparison with other legislation. I am minded to accept the advice of the Office of the Attorney General in that matter where the expertise and the consistency of one office's view is important.

That is all very well but Attorneys General are frequently wrong. It would be much more important to take the advice of this House rather than the advice of an Attorney General who may well be wrong. On a maximum fine of €4,000 for defacing records, Garda records, which were a subject of contention between the British and Irish Government and between various individuals in the State and the Garda, regularly go missing. I feel strongly on this. The advice of the Attorney General should be taken into the balance, but I would ask the Minister to think again. This is no deterrent. If there is a situation, for example, involving financial irregularities, the kind of practice that went on during the banking crisis, does the Minister seriously think a €4,000 fine will deter anybody from covering up or destroying? I appeal to him to think again about this. I am sure the Attorney General is a tough enough bird to survive her advice being ignored for once. I feel strongly about this and will call a vote on it. I beg the Minister to reconsider this and give some indication that he will think of it again.

This is a deliberate act. This is the destruction of records that are the property of the people. I spoke about privacy earlier and asked why make private communications available to the mass of the people. Now we have material that is the possession or birthright of the people being treated casually and its defacement and destruction regarded in so light a manner. I cannot understand this.

I cannot speculate on the reasons the Attorney General went through it. Perhaps it is merely that she went through a list of penalties, but legislation is often out of date. In a previous session of Seanad Éireann, the former Minister of State, Mr. Martin Mansergh, when a Senator, introduced a rack of matters going back to the fact that it was a capital offence to omit the words "Crom abú", the Butlers' war cry, and we had immense fun with this kind of stuff. I would not say it is merely a matter of running a scan to see what was comparable. Can the Minister give any indication of comparable offences? I suppose it is an unfair question. In case he has any access to that information, what are the comparable offences? I would like to know them because I do not believe they are anything as consequential as this. This is a very serious matter. This is the deliberate destruction to avoid the exposure of certain information that may be detrimental to the career of somebody in the Civil Service. This is a most serious matter. I beg the Minister to reconsider.

That was passionate advocacy for Senator David Norris's position. I expect nothing less. I will explain a few points. First, this is a new offence. It was not an offence in the original 1997 Act. It certainly was not an offence under the amending legislation brought in by the Fianna Fáil-led Government. I regard this as an important issue to create this new offence.

This is new, in and of itself. It has to fit somewhere in the pantheon of offences and it has to be determined to be appropriate for that. All these matters are subject to judicial practice on which those much more learned and eminent than me would be best placed to advise.

For these reasons, I accept the advice of the Attorney General on these matters. If the Senator reflects further, if someone - he keeps instancing a civil servant - erases information-----

-----deliberately, it might be a minor matter.

In which case one gives him or her a small fine.

If it is a serious matter, there are consequences beyond the contravention of the Act. There are employment and reputational consequences. If detriment or harm fell upon any third party, there is the possibility of other criminal or civil sanctions.

That can be said about murder.

It is not a simple matter, in and of itself. By and large, I am content that the advice of the Attorney General is consistent and needs to be accepted in the context of the Bill.

I am intrigued by Senator David Norris's reference to the former Minister of State, Mr. Mansergh. I presume the Senator refers to the statute law revision work begun some time ago.

The Senator will be delighted to hear that the next tranche of that is about to appear before the House in which a number of offences and declarations are being taken off the Statute Book. It is the final tranche of statute law revision, and it includes our declaration of war against Denmark, which we are now ceasing, and our declaration of war against France. I was not aware, but we are, apparently, still at war with both Denmark and France. Some of these offences carry incredible penalties. The Senator instanced some himself. That is in the context of historical fact.

We try to have a common framework for penalties. That is best determined by one office giving advice across all Departments rather than individual Ministers making decisions on the hoof on the basis of passionate and well-argued speeches. On balance, I will stick with the advice I have.

The equivalent provision in the United States criminal code provides for three years in jail and-or a fine. Although I have not had time to check, I am certain that if one does not keep records for the Revenue Commissioners as a taxpayer, one may well be subject to a criminal prosecution and perhaps more than a fine.

I appeal to the Minister to reconsider the position because it is a serious offence. I accept that this is a new offence and I welcome the Minister's innovation in introducing this offence, but why not make it a real offence? If serious harm is done by the actions of this person, be he or she a civil servant or not, the person certainly should be prosecuted. Six months in jail is not a heavy sentence for a serious case of deliberately destroying or defacing public records. The Minister refers to the reputation of the person involved. What about, for example, where the reputation of a third party is involved in the destruction and the third party has no recourse? Somebody convicted should be sent to jail. If persons are sent to jail for not having a television licence, how is that for comparability?

One only gets jail if one does not pay the fine. The same would apply here. If one does not pay the fine, one will go to jail. However, no jail sentence is set out.

That is a wriggle.

Amendment put.
The Seanad divided by electronic means.

Under Standing Order 62(3)(b), I request that the division be taken again other than by electronic means.

Amendment put:
The Seanad divided: Tá, 11; Níl, 18.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Daly, Mark.
  • Mooney, Paschal.
  • Norris, David.
  • O'Brien, Mary Ann.
  • O'Donovan, Denis.
  • Quinn, Feargal.
  • van Turnhout, Jillian.
  • Wilson, Diarmuid.
  • Zappone, Katherine.

Níl

  • Bacik, Ivana.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Landy, Denis.
  • Moloney, Marie.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • Noone, Catherine.
  • Sheahan, Tom.
  • Whelan, John.
Tellers: Tá, Senators Sean D. Barrett and David Norris; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.
Amendments Nos. 17 and 18 not moved.

Amendments Nos. 19, 21 to 25, inclusive, 27 and 28 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 19:

In page 79, to delete line 7.

We held a good debate on this issue and the Minister is aware of the matters I have raised with him, including in private. I have nothing further to add except to emphasise that some of these authorities are akin to local authorities and should probably be subject to freedom of information legislation.

They fall into the two categories I have instanced. For example, I do not want to disadvantage commercial State bodies that are operating in competition with non-State bodies. The other category comprises North-South bodies. Surprising and all as it is, capturing them would require a renegotiation of the North-South agreement.

Amendment, by leave, withdrawn.
Amendments Nos. 20 to 28, inclusive, not moved.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

I thank Members of the House for their focus on this landmark legislation. Freedom of information legislation is one of the suite of measures that will be transformative of the way we conduct public affairs and, I hope, rebuild a broken trust with the general public. Senators have different opinions on how freedom of information provisions impact, with some more jaundiced than others. Given international best practice in the assessment of the transparency of public institutions, however, a robust freedom of information enactment is regarded as an important part of an open, democratic and functioning modern society.

I thank Senators for their useful and helpful contributions throughout the passage of this Bill and I look forward to its inclusion in the Statute Book as soon as the President does his constitutional duty in that regard.

I compliment the Minister on the way in which he dealt with the passage of this Bill. He was on top of his brief and had the information to hand. Generally speaking, it was a good couple of days' work. However, I regret some of the Bill's broadening effects. It is an incitement to the media to pick up on many efforts. I am glad that the Minister did not accept the inclusion of the President's office. That was appropriate. However, I have a suspicion that one of the Minister's reasons for not accepting any of the large number of amendments was that he did not want to take the Bill back to the Dáil. Let the record show that he is nodding vigorously. I hope that, in a further revision of this legislation, he will consider matters such as using a prison sentence as a deterrent.

This is a work in progress. So far, it is 1-0 to the Civil Service which has managed to protect itself. To be honest, Senator Thomas Byrne made this point to me. I want to give him credit.

Do not get me into trouble.

I will not. I will just give him credit, as it was a good point. The Minister's performance was, as always, good, but I disagree with some of the substance.

I thank the Minister. This Bill has had an interesting passage that was not straightforward. There was a great deal of commentary from the Opposition, interest groups and some Members on the Government side. Significant changes have been made to the Bill since its publication. In the light of the changes made in the Dáil, we support the legislation. In this case, the Dáil rather than the Seanad was the revising Chamber, as the amendments were made on Committee or Report Stage in the Lower House.

I compliment the Minister, whose dedication to this cause is well known and knows no bounds. Anything that I stated on Committee Stage was meant to strengthen his hand and support him.

I express a concern about section 7 of the Education (Miscellaneous Provisions) Bill 2014 which is headed, "Refusal of access to certain information". To draw the Minister's attention to it, the section states: "Notwithstanding any other enactment [for example, what we have been debating today], the Minister [for Education and Skills] may refuse access to information specified". This is a sign that certain people - I am not indicating a ministerial colleague - do not yet share the enthusiasm of the Minister and the Seanad for freedom of information.

As a member of the banking review body, I am concerned about section 42, specifically line 5 on page 67, which states:

(iii) any of the Supervisory Directives,

within the meaning of the Central Bank Act 1942,

We need to be harder on the Central Bank and the banking community for the immense damage they did to the country.

Those listed under section 42 are European and outside our purview.

I would include those in the group's terms of reference. The Europeans seem to operate central banking in ways that appear strange to the Minister, Senators and me. Their secrecy has cost countries like Ireland, Greece, Portugal and so on dearly.

The Minister's philosophy of open access and freedom of information is shared, but could he investigate section 7 of the education Bill and ensure banking is reformed? There are fears that the banks could do it all over again. The presence of people like the Minister in the Cabinet is necessary to prevent this. Go raibh maith agat, a Aire.

I congratulate the Minister on this legislation and on the efficiency with which it was dealt. I hope it does not become a directory for cranks and that it will run well in parallel with the Data Protection Act.

I join in the chorus of compliments to the Minister and congratulate him on taking this important legislation through the Houses. I commend him, as the Bill will make significant changes to the way people access information. This has been a priority for him. I also commend him for being a reforming Minister, given the changes he has introduced to legislation within his Department's remit since his appointment.

I commend the departmental staff for all they have done in researching and drafting this necessary legislation. I say, "Well done," to them.

Question put and agreed to.

When is it proposed to sit again?

Dé Máirt seo chugainn ar 2.30 p.m.