I will not be accepting amendments Nos. 30 to 32, inclusive, or 34 to 36, inclusive.
I will not be accepting amendment No. 30 which would delete a number of provisions which are integral to the Government's proposals. I will also not be accepting amendment No. 31. I am satisfied that Government records require mandatory protection and that the policy underlying section 19 of the Act is that, as a general rule, Cabinet records should be exempt from release for a specified period of time. The Information Commissioner has drawn attention to the uncertainty around how discretion of this kind might be exercised.
A widespread exercise of discretion by FOI decision makers could weaken the confidence of Ministers that views given freely by them in Cabinet records would come into the public domain in such a way as to undermine collective responsibility.
I will not be accepting amendments Nos. 32 and 34 which concern interministerial communications. The information specified in these amendments would appear to be constitutionally protected and already exempt by virtue of subsection 2 of section 19 of the main Act.
The provisions in section 12 related to interministerial communications are not just concerned with what was said around the Cabinet table. The process of forging consensus around proposals to Government is an important part of the Cabinet process which needs to be encouraged and supported. Therefore, these provisions are also concerned with creating a certain space for the exchange of views between Ministers on matters directly related to the making of Government decisions or to the formulation of Government policy. The aim is to give Ministers the freedom to exchange frank views on pending or live Government agenda items.
The Irish Act is somewhat unusual in not containing explicit protection for interministerial communications related to Government decision making. Protection for such records can be found in the Canadian and UK models, for example.
I will not be accepting amendment No. 35. In its report, the high level group drew attention to the way in which the word "solely" had caused doubts about the eligibility for exemption of records which had been created for the purpose of submission to Cabinet but which might incidentally be created for certain other purposes. The word "primarily" will not fundamentally alter the fact that the original purpose for which a record was created remains the key determinant of its status.
I will not be accepting amendment No. 36 as its effect would be to retain the existing text of paragraph (b) of subsection (2) of section 19 of the main Act. There is a requirement to substitute this provision as a consequential to section 19 of the main Act becoming a mandatory exemption. The removal of the discretion given to a decision maker in relation to records covered by section 19(1) renders the reference in subsection (2) to records, “referred to in paragraph (a) or (c) of subsection (1),” redundant.
Section 12 reflects the Government's considered view of the limited changes necessary to the protections available for Cabinet records to ensure effective Government consistent with the principles underlying the Freedom of Information Act.
The provisions also reflect the Government's considered view of the additional protection that is necessary to ensure that the exercise of collective ministerial responsibility is not affected adversely by the operation of certain provisions in the FOI Act. They also reflect the expert opinion and experience of the five Secretaries General who conducted the review of the operation of provisions in the FOI Act impacting on sensitive areas of Government.
Section 12 provides for the following amendments to section 19 - meetings of the Government, of the principal Act: mandatory exemption of all Government records covered by section 19(1) of the principal Act by substituting the words "shall refuse" for the words "may refuse" in subsection (1) and a consequential amendment to subsection (2)(b) to reflect this mandatory exemption; protection for communications between Ministers dealing with matters under consideration by the Government under section 19(1) of the principal Act. This is provided by the insertion of a new paragraph after paragraph (a) of subsection (1); substituting the word “primarily” for the word “solely” in paragraph (c) of subsection (1). This amendment will allow for advice created for the primary purpose of Government business to be protected; extension of the period during which records covered by section 19(1) are protected from five to ten years by substituting “10 years” for “5 years” in paragraph (b) of subsection (3) of the principal Act; deletion of subsection (4). This is a consequential amendment following on from that used in the first amendment listed above; amendment of subsection (6) to extend the protection available under section 19(1) to records of certain committees, including working groups, where the committee concerned is certified by the Secretary General to the Government as having been established for direct support of Government deliberations. The amendment also includes a definition of the term “officials” which is generally intended to include civil servants and special advisers.
Regarding these provisions, the position is as follows. First, the replacement of "may" by "shall" gives clear expression to the policy intent that Cabinet records should be exempt from access for a reasonable period of time by removing the option of discretion being exercised in this area. I am fully satisfied that a mandatory exemption is the only appropriate exemption if the Cabinet process and the exercise of collective responsibility are not to be constrained to the detriment of effective decision making based on free and frank expression of views. The discretionary "may" was not exercised in practice but it did lead to uncertainty on the part of decision makers as to the circumstances in which access to Cabinet records might be granted.
Second, the replacement of "solely" by "primarily" was recommended by the high level group because, in practice, "solely" has tended to be overly restrictive and has caused unnecessary doubts among decision makers about the eligibility for exemption of genuine Cabinet records, which incidentally might be applied to other purposes. This is a sensible amendment which reflects the realities of the Government process.
Third, the extension of the protection for Cabinet records to interministerial communications dealing with Government business recognises the reality that communications between Ministers may sometimes be a direct extension of the exercise of collective responsibility and should therefore be protected on the same basis as Cabinet records. Protection for interministerial communications is a feature of FOI legislation in Australia, Canada and the UK.
Similarly, the extension of protection for Government records to committees of officials established to report to Government on specific issues reflects the complexity and reality of modern Government decision making. The need for this provision was based on the fact that, while the papers of Cabinet committees are protected under the legislation, from time to time groups of officials are asked to address issues in a context that is really an extension of the Cabinet process. This protection was recommended by the high level group.
In framing this provision, the Government was conscious of the need for limitations within this provision to ensure that the exemption cannot be misused. For that reason there are tight restrictions on the circumstances in which it might apply. Specifically, the matter to be examined by the committee should be one which has been submitted to Government for its consideration, the committee must be mandated to report to Government and the Secretary General to the Government must certify, at the time of its establishment, that it is such a committee.
I am also providing by amendment for the annual reporting to the Information Commissioner of the number of such committees certified. While in practice such committees are likely to consist of civil servants and special advisors, the Bill also allows that the Minister for Finance may, by regulation, allow for other persons to participate in this work. This could allow for the inclusion, for example, of independent experts if this were considered necessary.
The extension of the period of protection for Cabinet records from five to ten years was recommended by the high level group, which stated that as experience is gained in the operation of the Freedom of Information Act, it is evident that a five-year moratorium on the release of Cabinet records is too short.
The Government is satisfied that commencement of the release of Cabinet records after five years would prevent articulation of views by Ministers in memoranda and other records coming to Government. This would be detrimental to a process which relies on Ministers freely articulating views prior to submission to Cabinet so that there is the maximum opportunity to forge consensus.
The Government has taken the considered view that a ten-year period of protection is necessary so that Ministers can continue to have confidence that views given by them in memoranda will be sufficiently protected. A period of ten years, which is still short by international standards, represents a reasonable balance between the requirements of openness and transparency and the need to ensure that the processes of Cabinet function effectively.
