Freedom of Information (Amendment) Bill 2003 [Seanad]: Committee Stage (Resumed).

NEW SECTION.

I move amendment No. 16:

In page 7, before section 8, to insert the following new section:

"Amendment of section 12 (manner of access to records) of Principal Act.

8.-Section 12 of the Principal Act is amended in subsection (2)(b)(ii) by the insertion after ’concerned)’ of ’which, in the opinion of the head, would be likely to result in significant impairment of the rights of the copyright holder.’.”.

This is an amendment suggested by the Information Commissioner and it is in that context we are putting it forward.

I am not accepting this amendment. I note the Information Commissioner has suggested a similar amendment with a view, it appears, to limiting the ability of a public body to refuse access to a record in a particular form or manner where to do so would involve an infringement of copyright. This amendment raises an important legal issue as to whether a public body can effectively infringe copyright in certain circumstances. It is not clear that any substantial difficulties have arisen in relation to this area that would support such a change. The issue is in relation to the form in which access to a record is given, not whether access to the record should be given. In this context, we would be very reluctant to place public bodies in the position of having to decide whether an actual breach of copyright involves a financial loss to, or political impairment of, the rights of a third party. Such issues are not easy for a public body to decide and there is an obvious need for caution, given the potential for litigation.

My party supports the reasonably argued amendments put forward by the Information Commissioner, as in this case, although I appreciate there is sensitivity with regard to copyright and intellectual property rights. Nonetheless, the problem with the Bill is that it changes the whole tenor of FOI from enabling and encouraging the maximum possible availability of information to a new regime which is clearly, on a series of fronts, to be much more restrictive. I regret that the Minister is not willing to accept my party's amendment.

This amendment relates to copyright and the possible infringement of copyright. It has nothing to do with access to records. Public bodies adopt a very simple and pragmatic approach to this issue. Where a requester seeks access to records where an infringement of copyright arises or may arise, access to the record is granted by inspection.

The amendment is concerned with intellectual property, copyright, patent rights and other rights. I do not see any particular significance in the Minister's proposal. He has been very practical in his approach to this amendment and I am disappointed that Deputy Burton has been led by people outside the House on this issue.

Amendment put and declared lost.
SECTION 8.

I move amendment No. 17:

In page 7, line 33, to delete ", 27(4)".

On the basis that the Minister has given an undertaking that section 20 will provide a public interest test, I withdraw the amendment.

Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 7, paragraph (a), line 50, to delete “paragraphs”.

Amendment agreed to.
Section 9, as amended, agreed to.
NEW SECTION.

I move amendment No. 20:

In page 8, before section 10, to insert the following new section:

"10.-Section 15 of the Principal Act is amended in subsection (7) by the deletion of 'for purchase'.".

This amendment is moved with reference to the phrase "for purchase" in the principal Act. The Information Commissioner's commentary stated that the phrase represented a discouragement and that it would be better if the Bill was to be amended in this particular way - for positive reasons - to increase accessibility and the ability of citizens to interact with the legislation. On those grounds and given the arguments already made on its behalf by the Information Commissioner, I support the amendment.

I will not be accepting this amendment. Sections 15 and 16 of the main Act require public bodies to prepare and to publish reference manuals to facilitate members of the public in exercising their rights under the Freedom of Information Act. While I gather the practice is that a charge is not imposed for such reference manuals and that copies are available free of charge from citizens information centres and from most libraries, the manuals can involve considerable expense and I am, therefore, reluctant to remove the discretion that the principal Act gives the head of a public body to impose a charge.

I am disappointed that the Minister has declined to accept the amendment. It relates to the central point, which we will probably come to later in the debate, concerning fees and the economic value of fees that can be imposed under the current Act. It is not beyond my experience, with regard to documents such as environmental impact statements, that charges over and above the economic cost are charged by local authorities as a discouragement measure. As far as possible, we should try to get rid of whatever measures exist in legislation that allow authorities not so much to engage with the general public, but to discourage them from operating what should be their natural rights in the area of information retrieval and the use of information. On those grounds, I press the amendment.

Amendment put and declared lost.
SECTION 10.

I move amendment No. 21:

In page 8, line 19, to delete paragraph (a).

This amendment is introduced in the context of a further amendment which the Minister proposes with regard to section 15 of the Act. In that amendment, he is, essentially, deciding that he will no longer present a collation of summaries, or reference book, referring to all of the different Departments and bodies, with freedom of information issues set out and a general description of each organisation, access and so on. Such a reference is of some value and I question why the Minister would do away with this provision.

I will not be accepting this amendment, the effect of which would be to retain the requirement for the Minister to collate and publish summaries of reference manuals prepared by public bodies under section 15 of the principal Act. The removal of this requirement was suggested by the Information Commissioner.

Section 15(4) requires each public body to furnish a summary of its reference book required under section 15(1) to the Minister for Finance who, in turn, is obliged to publish a collation of all the summaries furnished to him or her. What value such collation and publication serves is questionable, and I and the Information Commissioner would be of the same mind in believing that few if any members of the public would ever require to read such a document.

Already included in the section 15 manuals is information relating to FOI in each public body. This includes a general description of its structures and organisation, functions, powers and duties, any service it provides for the public and the procedures by which any such services may be availed of by the public, and it is published.

The manual also provides information such as names and designations of the members of the staff of the body responsible for the carrying out of the arrangements for FOI within that public body. Each body is required to revise this manual not less frequently than three years after it has been made available to the public. All the necessary information in relation to FOI is made available to the public in this manual. I am satisfied that the requirement to collate and publish summaries is not necessary in this context.

If both the Minister and the Information Commissioner take the view that such a publication would have no function, it is hard to object. Therefore, I will not press the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 22 and 23 are cognate and may be discussed together.

I move amendment No. 22:

In page 8, line 34, after "accordingly" to insert "provided that a non-technical summary has been published in hard copy and that any request by a member of the public for a printout in whole or in part shall be acceded to".

This arises from a discussion about whether the obligation to produce manuals and provide guidance to the public can be fulfilled by the production of an electronic version. The Minister proposes that it will be sufficient to publish an electronic version only, but I suggest in this amendment that such a version will be sufficient provided that a non-technical summary has been published in hard copy and that any request by a member of the public for a printout of the original publication in whole or in part shall be acceded to. I note that the Information Commissioner's view of this matter is in line with the amendment I have brought forward. It is important that we accede to the view of the commissioner, which I have sought to set out in my amendment to this section and section 11, if we are to treat those who are and are not comfortable with electronic material equally. I say this in light of the generation gap that exists in relation to electronic material - people over a certain age do not have the same level of familiarity with electronic sources as the younger generation.

I oppose this section.

I will not accept Deputy Bruton's amendments. Sections 10 and 11 of the Bill contain provisions which define "published" as including publication by electronic means. As I have said, this does not mean individuals who are not computer literate or who do not have access to the Internet will be precluded from obtaining the reference manuals prepared under sections 15 and 16 of the main Act. I do not see a requirement for hard copies of "non-technical" summaries of reference manuals to be made available, as there is already a requirement for such manuals to be made available in accordance with the conditions set out in sections 15(5) and 16(5) of the main Act. As I said, these manuals are circulated to libraries and to citizens information centres and I am satisfied that there is no question of individuals being unable to obtain hard copies.

Did the Minister mention section 15(5)?

The correct reference is to section 15(7).

Section 15(7) of the 1997 Act says that "a book referred to in subsection (1), (2) or (4) shall be made available for inspection free of charge, and for removal free of charge or, at the discretion of the head concerned or the Minister, as may be appropriate." Is this section not open to discretion so that people could refuse to make a hard copy available without the provision I am proposing?

When one gives somebody discretion, that person can say "Yes" or "No". What advantage is there in saying "No" in this era? I cannot think of any reason to say "No". People are given discretion so that they can exercise good sense and judgment.

One could argue that one has judged that the information should be made available on-line. A failure to make hard copies available could be justified by saying that persons coming into the office can read the information from a computer at the counter. One could argue that one has used one's discretion in coming to an administrative decision.

Is the Minister encouraging this?

I am not. It would be a strange public official who would act in such a manner. I am sure such behaviour would be reported in the media by 5 o'clock that evening. Perhaps someone would send a note to that effect to Deputies Bruton, Burton or Fleming.

Why is the Minister making this change at all, if it is at the head's discretion to make the information available? Why bother to make a change?

The purpose of section 10, which allows the Minister for Finance to make his annual report on a calendar year basis, is to define "published" to include publication by electronic means. That is all that is being done here.

Why bother doing even that much if, as the Minister says——

The change is being made to ensure that the publication of a document includes publication by electronic means.

The Minister is providing that a Secretary General does not need to publish a hard copy.

There are 370 bodies but less than 20 Secretaries General.

The Minister is providing that bodies do not need to publish in hard copy and allowing for discretion to make it available in hard copy to individuals. The Minister's change is creating the potential for the removal of the public's right to a hard copy.

I am not doing that.

The Minister is doing so - it is the sole purpose of this amendment.

No, I am removing the requirement to prepare a summary of a reference book.

The Minister is defining "published" to include publication by electronic means. He is saying that publication in hard copy is not necessary. I am saying that if a head of a body avails of such an option, he or she should, at a minimum, have a hard copy of the summary available and make available a hard copy on request. The Minister's response to my suggestion is that such people have the discretion to accede to such a request, but I am asking why it cannot be made obligatory that they should accede to such a request, if it is the Minister's intention and belief that no reasonable head of a body would refuse such a request. We might as well tie up the loose end rather than leaving it open. I fear that many heads of bodies who read this section of the Bill will take the view that electronic publication is sufficient.

Section 15(7) of the original Act states that "a book referred to in subsection (1), (2) or (4) shall be made available for inspection free of charge, and for removal free of charge or, at the discretion of the head concerned or the Minister, as may be appropriate, for purchase, at such places as the head or, as may be appropriate, the Minister may determine". The discretion relates to making the book available for purchase.

Will the Minister ensure, at least, that a summary is available in hard copy, free of charge?

That provision is already in place.

That is what is important.

It will not be in future.

This section of the Bill removes the requirement to prepare a summary of a reference book for the Minister for Finance to publish and collate. I do not see where the difficulty lies.

If one wants a hard copy of a non-technical summary, but one is not electronically minded and not tuned into electronic systems, there should be an obligation to provide such a document. This section of the Bill seems to allow for some doubt as to whether such a free copy will be available, as a consequence of a combination of a new definition of "published" and the discretion to impose the charge. This combination appears to undermine the minimum provision that I would consider acceptable - that this legislation should, at least, provide that a hard copy of a non-technical summary should be available to the public to acquire without charge.

Section 6(2) of the 1997 Act states that "it shall be the duty of a public body to give reasonable assistance to a person who is seeking a record under this Act in relation to the making of the request under section 7 for access to the record". Public bodies have a duty to make the information available in whatever form a person desires.

My party did not table an amendment to this section because any attempt to neutralise the torturous elements of this section would be foolish. The entire section needs to be opposed because it causes the kind of confusion that has just been exhibited by the Minister and his officials.

I want to take issue with the Minister's last response, because it is the net point. Under section 10 of this Bill, the Department of Finance will no longer be able to publish a summary of the section 15 manuals, which, as the Minister said earlier, are required to be published every three years. The manuals used to be sold for about £10 and were used by academic institutions, journalists, libraries and media students, in particular. They collated all the information into one manual - a State directory, in effect - that was produced every three years. Those working in this House, the Minister and his civil servants might query the point of a three-year State directory. If nothing else, it is useful to researchers, students and county librarians. Even if Joan or John Smith, who was the FOI officer in some State body two years ago, has now left that job, the directory can tell one, for example, where Laois County Council's FOI office is to be found. I do not know who proposed this. Its cost in terms of the total expenditure of Government funds is minuscule, but it is useful to the people who take advantage of it, particularly those who have no knowledge of public service structures. The response the Minister's official supplied to him is correct. The 320 bodies must publish information about their freedom of information accessibility and availability, but the problem from the point of the view of the second year journalism student is that information will have to be sought from each at its separate location. The manual brings all of the material together in one location and it does not cost very much to produce.

I understand that the point is technical and because of my background in academia, I am aware of the way in which this part of the Act works. If the Minister wishes to confer, we can take a short break. This service is used by many people and it will now be available in hundreds of separate locations. If you go to the Cork County Council librarian, he or she will have to look information up under all the different headings. Community groups and other bodies which, like students, use this from time to time will find that under the structure of local development we have all been involved in creating, a consultant will have to be taken on for a couple of hundred euro to seek out this information. Until now, the information was collated in the State Directory every three years. It did not cost a vast amount of money to put it out to allow people to use it. Rather than try to fine tune, the old situation should be maintained. The cost of the directory could even be increased as long as it is still produced centrally. It was far more useful to people. The State will pay down the road when it has to meet the costs of consultants. Some of them will be employed to search for this information. Mountrath Community Council will pay a graduate student to look it up on their behalf.

While the information will be available, it will be more costly to access by the State organisations who use it. The current method is better and I would be inclined to leave well enough alone.

I am advised that the purpose of section 10 is to allow for electronic publication and that the list does not change the right of access.

The Minister's official confirmed that the removal of subsection (4) means the State directory requirement is no longer in place. The State directory was a large book which was published every three years. The Minister has probably seen it. Everyone here knows that the names of section heads change over time, but the directory is useful to many other people. The State will end up paying consultants and others to pull this information for interested voluntary and community bodies and librarians. The Minister should ask county librarians before coming to Report Stage, but I suggest that things are best left as they are.

As Deputy Richard Bruton mentioned, I said, when speaking to amendment No. 21, that section 25(4) requires each public body to furnish a summary of its reference book required under section 15(1) to the Minister for Finance who, in turn, is obliged to publish a collation of all the summaries furnished to him or her.

That is the manual.

The value of such collation and publication is questionable, however, and I and the Information Commissioner are of the same mind in believing that few, if any, members of the public would ever require or read such a document. My view is also that of the Information Commissioner.

The directory is used by academics, journalists, researchers and librarians.

Mr. Murphy has been quoted liberally. On page 76 of his document, he says section 15(4) is redundant and was never a practical proposition. He proposes therefore that the provision should be removed from the Act.

By deleting subsection (4)——

The Deputy does not like it when Mr. Murphy disagrees with her.

Does the Minister agree that by deleting the provision there will no longer be a summary? There will be no central mechanism in the future for collating all section 15 manuals. As the Minister's official said, all bodies which come under the Act will still have to publish the information, however, it will not be collated in a central directory either electronically or as a hard copy. It does not matter which method is used because the people accessing the information will likely be well able to use electronic media.

It is obvious the Minister is reading from the status quo and that our friend, Deputy Richard Bruton, is reading from the document issued by the National Union of Journalists.

I know the person who wrote the manual. He is an expert on this subject.

I do not know for which side we should opt. There is no major issue involved. The Deputy says that consultants will be employed.

That should be avoided.

The Deputy has also mentioned the State directory. I have not seen a State directory for a long time.

It is only published every three or four years. It is used quite extensively despite the fact that for Members of the House it goes out of date. It is an historical reference point.

We are in danger of suffering from information overload rather than from information underload. My officials are trying to think of how many times this has been raised.

The end cost to the State will be higher.

Off the top of my official's head, we have 15 or 16 manuals, we have decision makers' manuals, we have guidelines, we have a list of all freedom of information officers, we have a hard copy, we have electronic means and the information is available from libraries also.

The point is that all of this was collated.

Is that electronic today?

The publication includes an electronic version.

Can the Minister give me an assurance that any member of the public can get a non-technical summary free of charge? Will there be no question of the head of a body using his discretion to charge for such a non-technical version?

There will not be a charge. If the Deputy knows of a case where a charge is imposed, he should bring it to my attention.

How will people access the information they require? While the information is definitely available once someone has identified the correct public body, in the absence of collated information, many voluntary and community groups will end up charging the Department of Finance to pay for consultants to identify where they need to go. That information should be available and they should be able to access it themselves.

I do not accept that.

To clarify the amendment for the benefit of Deputy Ned O'Keeffe, it seeks to do something the Minister says is redundant. I will press the amendment. The amendment seeks to give an assurance in the Act that any person who is not electronically literate will have access to a non-technical summary free of charge. They should be able to get a print out. At worst, my amendment is redundant, but at best it reassures the public, particularly the non-electronically literate. On that basis, I hope the committee will accept it.

There are two different points being made by Deputies Bruton and Burton. I understand the point being made by Deputy Bruton. Regarding Deputy Burton's point about academics and librarians, the electronic system is surely ideal for them.

Absolutely.

I do not understand why that should be brought into the discussion.

I will explain the point again. I agree with the Deputy that there are two separate issues. One is the preparation of a collated compendium of information, whether in hard or electronic form, while the other, the subject of amendment No. 23, is Deputy Richard Bruton's proposal which would, in effect, make all information available in electronic format, regardless of whether it has been collated.

The Minister stated the information would also be available in hard copy.

Deputy Richard Bruton's argument relates to whether the Minister will give us an assurance.

The Minister gave such an assurance five or ten minutes ago.

He undertook to address refusals I bring to his notice, which does not amount to satisfactory legislation. This is no way to govern on any issue.

This discretion has been in place since 1997 when the principal Act was introduced and has not caused any difficulties. The Deputy's proposal would change the principal Act.

The Minister has introduced an amendment which would mean hard copies do not need to be made available.

No, I have introduced amendments on collation and publication. The Deputy's amendment would remove the discretion with regard to——

The Minister's amendment would mean such manuals would merely need to be published electronically. My amendment proposes acceptance of the Minister's amendment, provided he gives an assurance that non-technical summaries and print-outs of the relevant manual in whole or in part will be made available to the public free of charge. The Minister's defence is to cite section 15(7), which states that a head can provide for the publication of a manual, but may charge for doing so. At a minimum, a non-technical summary must be made available free of charge to the individuals concerned.

The discretion regarding the charging of a fee for a manual copy of the non-technical summary under the principal Act will remain with the head. This provision has not been used and is unlikely to be used in the future.

Opposition Deputies have raised questions on the electronic copy versus the hard copy. The way forward is to use modern technology to print off the electronic copy. I also support the Minister's stance on the discretionary charge. If vexatious requests in which applicants asked for large numbers of copies were to arise, as has been the case to date, they would impose significant costs on the agency in question. The charge would be appropriate in such circumstances.

The Deputy deals with too many electronically-literate farmers. Many older people are not electronically literate.

I am delighted by the Deputy's observation.

Both amendments are unnecessary as the current position is largely satisfactory. The charging regime is modest and should remain.

Deputy Richard Bruton is proposing to change the position.

I am expressing my point of view, not speaking on behalf of Deputy Richard Bruton. Neither amendment should have seen the light of day. Considerable effort was probably invested in producing little or nothing of substance. The two sections of the Act to which the amendments relate operate well. The number of people interested in this area is, correctly, very small and a hard copy is currently available for a modest charge, which is a reasonable position. If the current regime was to continue, none of us would notice because it operates so seldom and without problems. The Minister should leave it as it is.

The Information Commissioner, based on his experience, proposed the position I have taken.

He was cited many times yesterday on this issue.

Is amendment No. 22 being pressed?

Amendment put and declared lost.
Question, "That section 10 stand part of the Bill", put and declared carried.
SECTION 11.

I move amendment No. 23:

In page 8, line 38, after "accordingly" to insert "provided that a non-technical summary has been published in hard copy and that any request by a member of the public for a printout in whole or in part shall be acceded to".

Amendment put and declared lost.
Question, "That section 11 stand part of the Bill", put and declared carried.
NEW SECTIONS.

Amendments Nos. 24 and 25, 27 to 29, inclusive, and 85 are related and amendments Nos. 27 and 29 are alternatives to amendment No. 25. We will discuss the amendments together.

I move amendment No. 24:

In page 8, before section 12, to insert the following new section:

13.-Section 18 of the Principal Act is amended by inserting the following subsection after subsection (5):

'(5A) Notwithstanding subsection (1), the Minister may provide by regulations for the making of an application under that subsection-

(a) by the parent or guardian of a person referred to in that subsection if the person belongs to a class specified in the regulations, or

(b) in a case where such a person is dead, by a member of a class specified in the regulations.’.”.

As a division has been called, we will suspend and return immediately after the vote.

Sitting suspended at 11. 55 a.m. and resumed at 12.30 p.m.

We are dealing with amendment No. 24 in the name of the Minister. It proposes the insertion of a new section. Amendments Nos. 25, 27, 28, 29 and 85 are related and will be discussed together, by agreement. Amendments Nos. 27 and 29 are alternatives to amendment No. 25.

The Freedom of Information Act confers three rights on citizens: the right to access records held by public bodies; the right to have personal information amended where such information is incomplete, incorrect or misleading; and the right to obtain reasons for decisions taken by public bodies affecting the individual.

The first of these, the right to access records, can be exercised by parents, guardians and by next of kin. I have already introduced regulations under the relevant section of the Act to enable such persons access records on behalf of relatives who are unable to directly exercise their rights. However, the other two rights cannot be exercised in this way and these amendments will address that issue.

Amendment No. 24 will permit me to provide the regulations for the making of an application under section 17 of the main Act for the correction of personal information by the parents, guardians or next of kin of an individual if the individual belongs to a class specified in the regulations.

Amendment No. 25 will permit me to provide these regulations for the making of an application under section 18 of the main Act for reasons where decisions have to be provided to the parent or guardians or next of kin of a person, if the person belongs to a class specified in the regulations. In each case, as with requests for access to records, such classes will encompass minors, the intellectually disabled and deceased persons. These amendments are really suggested by the Information Commissioner. In each case, as with requests for access to records, such classes would encompass minors, intellectually disabled and deceased persons. These amendments were originally suggested by the Information Commissioner. I said on Report Stage in the Seanad and Second Stage in the Dáil that I would deal with this matter on Committee Stage.

Amendment No. 27 in my name was similar to the Minister's and although it was not quite so full in form, it sought to make the same change. I thank the Minister for making the change. It is important that we ensure that access to records can be availed of, particularly in the case of people who are intellectually disabled. The change the Minister is making will copperfasten a right which I expect was probably being respected in practice, but at least it is now properly founded in law. I welcome the change.

I welcome the Minister's amendment. It proves the value of the discussions that were held by this committee and, in particular, the value of there being an open and considered debate on the Freedom of Information Bill and changes to the existing Act. The Minister was generous last night in conceding the point on personal records, and we welcomed that. Similarly, we should welcome the provisions he is making in amendments Nos. 24 and 25. It throws into relief his refusal to listen to the advice gleaned from a wide-ranging debate among all sections of society in respect of other sections of the Bill.

I welcome what the Minister is trying to do. In light of the Government's new trend of closing down on freedom of information, I hope that bodies such as health boards and other public institutions will receive a loud and clear message from the Minister that they should give the fullest possible co-operation when parents seek information on their children, particularly deceased children or children with an intellectual ability.

The Government is running away from freedom of information, particularly in respect of parents who may be under distress because of the death of a child or because of the requirements of looking after a disabled child. It is often difficult for them to deal with officialdom and bureaucracy. In the Livingstone case, we saw how difficult it was for the parents and grandparents of the baby in question to access information.

I have dealt with a number of cases, such as cases pertaining to deceased members of the Defence Forces who died on foreign duties with the UN. The amount of bureaucracy one encounters when trying to get information about how a serving soldier died is quite shocking. I hope the Minister takes the opportunity presented by today's session to indicate that he is in favour of freedom of information and that the often unaccountable heads of bureaucracy will be told to get their act together and to deal with parents who are trying to access information decently and with humanity.

I tabled amendments Nos. 28 and 29. Like other colleagues I welcome the Minister's amendments, amendments Nos. 24 and 25, which address substantively the proposition in amendment No. 29. However, I do not recognise that the central focus and purpose of my amendment, amendment No. 28, is being addressed by the Minister. Maybe he will advise us of his position on this. Amendment No. 28 is a recommendation of the Information Commissioner and relates to section 17 of the Act, which allows citizens to apply to have incorrect or misleading information held by public bodies about them corrected. The Information Commissioner pointed to the anomaly that, where the information is publicly available, there is no provision to have that information corrected. I ask the Minister to follow the Information Commissioner's advice and to accept amendment No. 28. I will reserve further comment until I hear his response. All of the commentary has been taken up with his amendments that affect my amendment, amendment No. 29. I withdraw this amendment and thank the Minister for addressing the issues reflected therein.

The Minister signalled this change in advance and promoted it as one of the selling points of the Bill on Second Stage. I welcome it and it improves access for the category of people involved.

Will the Minister or his officials clarify the position on adopted people and the phrase "parent or guardian"? Does the "or" in that phrase imply "and/or" or do an adoptive parent and a birth parent have the same right to access information on their children, depending on their circumstances?

The purpose of the amendments was signalled on Second Stage. I understand that adoptive parents are in the same position as natural parents.

Does an adoptive parent or a birth parent have the superseding right or do both have the right to seek the information?

I assure the Deputy that the adoptive parent is the legal parent in the eyes of the State.

I am raising this issue because I am concerned about it. It might be addressed on Report Stage.

The adoptive parent is the legal parent under Irish law. No further clarification is required and it is not a matter for this legislation.

I thought the Minister would respond to what I had to say.

Amendment No. 28 is covered by my amendments Nos. 24 and 25, which address the difficulties that were raised.

Let me be more specific because I am having some difficulty in rationalising the Minister's claim. I acknowledge that he addresses the key thrust of amendment No. 29, which I have withdrawn accordingly. Will he confirm that the points in amendment No. 28, based on the Information Commissioner's contribution, are addressed in his amendments?

The note in the Information Commissioner's submission states:

It is suggested that consideration might be given to extending the scope of this section to include the amendment of records relating to personal information whose release is provided for outside of the Act, as per section 46(2). It is considered somewhat incongruous that, by virtue of section 46(2), a requester cannot succeed in having a record amended which contains incomplete, incorrect or misleading personal information which is available to be inspected by members of the public.

Amendment No. 26 will deal with that matter.

I am dealing with it in amendment No. 28 and that has been proved in this section. It is not addressed in any of the other amendments to this section. Amendment No. 26 is Deputy Burton's amendment and amendment No. 28 has now been discussed. I am continuing to make the point that where a record is only available to members of staff of the public body, the requester can seek to amend it. Let there be no doubt in anyone's mind that far greater damage will be caused to the requester in the case where the record is available for inspection by members of the public. As far as I can tell, the amendments tabled by the Minister make no consideration of this. Amendment No. 28 is important and seeks to achieve the important right for any citizen to have invalid, inaccurate or incomplete information about his or her person corrected. This is central to the Freedom of Information Act.

Does the committee want to go into private session?

I want to make a point that backs up what Deputy Ó Caoláin has said. Within public bodies where the Freedom of Information Act has been extended, there is often an informal agreement by FOI decision makers to correct information that is wrong, such as, for example, someone's record of employment or a serving soldier that might be the subject of an adverse comment regarding an incident. It is disgraceful that this farce of a committee is proceeding here and is not providing an opportunity to discuss the issues raised by Deputy Ó Caoláin and others. These issues often affect individuals and are important to them. The civil servants present do not have a particular detailed knowledge of how the Act works in institutions from the point of FOI decision makers. Mr. Brady of the NUJ made this point on several occasions. The training work that was done in the initial stages of the Act by the users' group and other groups in the Department of Finance was to address these detailed issues. While these issues are often not easy to answer, they are often incredibly important to an individual. If an individual is subject to stress or has a dispute, it can put him or her over the edge because he or she cannot get redress.

The Deputy is talking about the amendments made to personal information obtained outside the Act. The FOI Act was not applied to records that were readily available through other means. This is enshrined in section 46(2) of the Act and provides that it does not apply to records that are already available to members of the public through other channels. Such records can be made available on an administrative of statutory basis separate from the FOI Act. I believe these will be dispatched when we reach amendments Nos. 26 and 96.

I do not accept Deputy Burton's point about the liaison between FOI decision makers throughout the public service. I am sure a FOI request could seek to collate the number of seminars, meetings and conferences that have been held about this over the years.

With respect, the Minister and his advisers are not addressing the proposition. I am getting annoyed because this was being dismissed in the first instance. We are now moving from single syllable responses to an effort to string a few sentences together. I did not go to the work and effort of tabling these amendments to entertain either the Minister or anyone else at this meeting. The dismissive notion that it has no application is nonsense. While I indicated how difficult it was for members of the committee to prepare for these engagements having only seen the Minister's amendments on the eve of the commencement of Committee Stage, I must say the Minister and his colleagues have made little attempt to address the amendments I and others have submitted and they have much greater resources than I do.

As I have demonstrated, to insert the new section before section 12 will amend section 17 of the principal Act. By this formula we will address the serious anomaly people face when seeking the correction of a record relating to their person that is invalid, incorrect or incomplete. The Information Commissioner addressed this to the committee in a clear and cogent way. I refer to the main text of the reports, 76 and 77, to what he had to say on section 17. These are relevant to sections of the amending Bill. I again make the point, it is suggested that consideration might be given to extending the scope of section 17 to include the amendment of records relating to personal information whose release is provided for outside of the Act under section 46(2). It is considered somewhat incongruous by virtue of section 46(2) that a requester cannot succeed in correcting a record that contains incomplete, incorrect or misleading personal information that is available to be inspected by members of the public. The notion that this information cannot be corrected is unacceptable. As the Information Commissioner clearly stated to this committee, much greater damage is being done to the character of the individual, his or her rights and standing in society by allowing erroneous information to be available to members of the public from public bodies.

We are being told this cannot be addressed in this instance. It can be addressed, as the Information Commissioner made clear. In my presentation on amendment No. 28, I have made it clear that it can be facilitated within this Bill and this is where it should happen. I am intent on pressing this.

I explained to Deputy Ó Caoláin that the FOI Act was not applied to records that are already available through other means. This principle is enshrined in section 46(2) of the Act that provides, essentially, that the FOI Act does not apply to records that are already available to members of the public through other channels. Such records can be made available on an administrative or statutory basis completely separate from the FOI Act. For example, the Land Registry has expressed serious concerns about this proposal. The Land Registry holds some 3 million public records, essentially folios and maps, to which section 46(2) applies. It operates under the Registration of Title Act 1964 and land registration rules of 1972, both of which already provide a mechanism for the correction of errors and consequent amendment of the register on production of the necessary proofs. If these amendments were to be implemented, the Land Registry would require an exemption for the registers maintained under the Registration of Title Act 1964 thereby ensuring that requests for amendment of the registers would be dealt with under the Registration of Title Act as heretofore rather than the FOI Act. This amendment would complicate matters.

If one gets information under the FOI Act it can be corrected. If information is availed of under the other Act then one must work under that Act. That is the principle of section 46(2).

We have it within our gift to make the necessary amendment. As the Information Commissioner stated, a consideration might also be given extending that principle to section 18. Some progress in that regard may be taken from amendment No. 25, but we are not addressing it here and there is nothing in what the Information Commissioner said that dissuades me from pursuing this amendment. It is essential that we do so and that the citizen has an expectation or a belief that fundamental reforms of the existing legislation will come about from this exercise and that we are not just witnessing the rowing back of the FOI legislation by the Government. Other important aspects have to be addressed. An anomaly has been outlined and acknowledged but there is no political will to address it.

I do not accept that section 46(2) excludes the taking of amendment No. 28, which seeks to add a new section before section 17 of the principal Act and insert the following:

(a) in subsection (1) by inserting the following after “public body”:

'(including a record that is available for inspection by members of the public whether upon payment or free of charge, or a record a copy of which is available for purchase or removal free of charge by members of the public)'.

It is clearly showing that records in relation to individuals that are held by public bodies that there is a right, across the board, for that person to have that detail corrected. Paragraph (b) provides for the following:

By inserting the following after subsection (5):

'(6) The Minister may provide by regulations for the grant of a request under section 17 where-

(a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester is the parent or guardian of the individual, or

(b) the individual to whom the record relates is dead.’

Those provisions echo amendment No. 29 and the Minister's own changes.

The key and critical point is that we are providing for access for the individual, where a record is available for inspection by members of the public, and that the record can be corrected. To go through this entire exercise and not accommodate that change is to leave a significant deficiency - an unacceptable deficit in terms of the rights of the individual remaining in the principal Act. I intend to press the amendment.

In the Minister's view, what is the purpose of section 46(2)? Why is he defending it so stoutly, because it seems Deputy Ó Caoláin's——

It refers to a record that is available for inspection by members of the public, whether upon payment or free of charge or a record, a copy of which is available for purchase or removal free of charge by members of the public, whether by virtue of an Act other than this Act or otherwise.

The FOI Act does not apply to records as defined in section 46(2) and it would be inappropriate to have the FOI Act correcting records to which the Act does not apply.

What alternative redress does someone have to correct these records?

If the records are available to the public and a particular Act applies, they should go about doing it by those means. If, for example, the Deputy found a mistake on the records about his lands in County Meath, it is his responsibility to correct it under the particular Act - if he can do so under its rules. Deputy Ó Caoláin is mixing up the principle with what we should do with personal information. Correcting personal information is a serious thing to do. The FOI Act was major step in allowing the release of personal information about people. Therefore, it should relate to a set of defined circumstances. The FOI Act should not be applied to other Acts under which information is available to the public. Whichever Act is available to someone's case, such as the example I gave of the Deputy's land, is used to correct information.

Deputy Ó Caoláin cannot suggest that we use the FOI Act on other Acts regarding personal information. That would be a step too far.

Section 46(2) states, subject to subsection (3), this Act does not apply to (a) a record that is available for inspection by members of the public, whether upon payment——

I was saying that.

We are pointing up a considerable anomaly about which the Minister has the wherewithal to make the change. It is arguable and sustainable that the Act can empower the individual and bestow a right and a duty on all public bodies holding information on individuals to allow for a process of the correction of inaccurate, incomplete or erroneous information - it is imperative. The Information Commissioner pressed the case forcefully in the course of his presentation.

I am sorry, but the Minister and I differ on this matter. I do not believe, as the Minister argues, that this is not permissible - I believe it is desirable.

We disagree.

Mr. Whelan, an official in the Information Commissioner's office, put this issue succinctly in his correspondence with the Department of Finance. The memo reads:

It is suggested that consideration might be given to extending the scope of this section to include the amendment of records relating to personal information, whose release is provided for outside of the Act as per section 46(2). It is considered somewhat incongruous that, by virtue of section 46(2), a requester cannot succeed in having a record amended which contains incomplete, incorrect or misleading personal information which is available to be inspected by members of the public. Where a record is only available to members of staff of the public body, he or she can seek to amend it. Although, far greater damage could be caused to the requester in the case where the record is available for inspection by members of the public. Consideration might also be given to extending this principle to section 18.

The requester could seek that information under FOI, in which case it would have to be corrected.

The point is that, because of section 46(2), a requester cannot succeed in having a record amended where the information is for some reason wrong, incomplete or misleading. I wish we had some of the FOI decision makers here from a health board or an institute of technology, because they deal with this regularly. It is important to individuals because the information may concern their records of employment or records of doctors in the general medical service.

If, in the case the Deputy refers to, a person's information was not being corrected on any other basis, he or she could make an application under FOI and have the information corrected.

In the interests of clarification, my understanding of what Deputy Burton quoted is that a person cannot succeed in having his or her record corrected under the Freedom of Information Act because that is the only issue to which the freedom of information officer was referring. However, the person can succeed in having his or her records amended if it is held that they can be accessed under the Data Protection Act or other legislation. There may be something on a planning file in a local authority but one cannot amend a planning file under the Freedom of Information Act. One must go back through the planning files and the planning Acts. The record can be corrected, but not through the Freedom of Information Act. It can be corrected through the legal mechanisms and provisions that allow the record to be corrected.

Why does the Information Commissioner not make this recommendation?

He says it is incongruous.

That is because an injustice has been done.

The Deputy should understand that this is the difference. It can be corrected through other mechanisms but not through the Act.

However, the damage is done if it is released through the Act and the information is wrong. That is the point.

No, he mentions files that are available for inspection, like a planning file——

This is worse. It is already available and in the public domain.

Is it not the case that those files should be corrected through the planning office and the planning Acts, not the Freedom of Information Act?

There is no mechanism: it is almost at the behest of the heads of those Departments or sections.

Let us get back to basic principles. What does the Deputy think was in the minds of the people who introduced the FOI Act in 1997? It was not the purpose of the 1997 Act to make available to the public records that were already available. Surely the whole point of the Act and the legislation that relates to it was to give people access to records that were not publicly available. Back in 1994 there was no Freedom of Information Act. Is that not the point of the Act, or have I missed something in the last decade?

What the Minister is saying is perfectly correct, but occasionally in a public body, by accident or design or in some cases malice, a record may be incorrect, incomplete or misleading. A requester can obtain that information correctly under FOI - we are not disputing that. However, if for some reason the information is wrong, the FOI decision maker must release it. What we are saying is that the person who is affected by it cannot, under the FOI, request that the information be corrected. We are not disputing that the information can be released under FOI, but we are talking about the capacity to correct it. It is a technical point, but occasionally these issues arise. We may need a personnel officer or a union representative or an FOI decision maker here to confirm this, but these cases do arise and they can often cause distress to the individuals involved.

Let us imagine that the situation was as it was in 1994 and the 1997 Act had never been brought in. If the Chairman came across a publicly available record that was incorrect, what would he do about it?

I would go back to the organisation and ask it to correct it.

Absolutely, and he would use whatever mechanisms were available. However, in 1997 the Act, which makes available information that was not previously available to the public, was introduced. This Act should apply to those records. That is sensible. Otherwise, any Act introduced in any area could be extended to all areas. There could be no end to these matters. We should be reasonable about this. People are getting themselves excited about very little.

We should speak to Senator O'Toole about this. He understands this very well and has often dealt with problems such as these.

I do not know the Senator's views on this matter. The records dealt with under the FOI Act cannot be corrected under the Act. I am not intending to change the world here. It seems like common sense to me.

The Minister says we are getting worked up over nothing. We are not trying to open up a broad vista. We are talking about public bodies and about information being held in public offices. We are pointing out clearly an anomaly in the principal Act which should now be addressed if this is indeed a serious amending Bill and not a Government facilitation Bill, as many believe. This anomaly has been pointed out not only by members during this afternoon's discussion, but by the Information Commissioner in his contribution to the committee. It is an eminently sensible point and easily understood where there is a willingness to try to understand. We have moved on somewhat from the initial glib dismissal we received to some degree of engagement. The reality is that this Act, by virtue of section 46(2), precludes an individual from having a correction made——

Under the Act.

Yes. Information is being sought through the Act, yet it cannot be corrected. I must point out that this is not always the case. I have been a local authority member for 18 years and I have heard enough stories about planning files to fill the day. Deputy Burton opened up a real vista when she talked about the decisions of individual people and how much access they will gain. I can tell her it is not a balanced story across the jurisdiction. It is imperative that we address any instances, whether unwitting or not, in which people are precluded from pressing for a correction of key or critical data about themselves which is being held by public bodies. Surely this is a natural human right, which we should be affirming with this simple amending mechanism that does not challenge the intellect of anybody in this room.

I may be sitting apart from my colleagues, but that does not mean I agree with the Minister. However, I do see some merit in what he is saying. He feels we should not be mixing different areas of legislation when it comes to the Freedom of Information Act. What is being said is important, but we need a good solid example of what this is about. I do not want to become too bogged down in discussing different parts of various Acts because we have to deal with some significant amendments further on. It might be best if we could just stick to those for the moment, unless the Deputies have a solid example, because I can see the merit in what the Government side is saying.

The Minister has certainly not convinced me.

I can give a theoretical example, which is unlikely to arise because it would usually be dealt with informally. I am blowing this up slightly because it would not happen in practice. Privately, however, I can give some real examples.

Suppose a journalist requested information under the FOI Act about the cost of the service of members of the local authority to the authority itself, and the manager of the local authority took the view that this referred not just to the members' costs and expenses but also the running costs of the local authority buildings, services, heat and lighting and so on - rather like adding up the costs of the Government jet. This means that the costs of the members are unreasonably inflated. We all know, as we have all been on local authorities, that this would not really happen: there is a format for dealing with it. However, in our example, the FOI decision maker is probably a principal officer or assistant principal - not a terribly high up person in the organisation. The problem is that he or she must go along with what is on the file when it is released. It may be difficult for people to go in and correct the file if it is unfair to them and is published in that format. By seeking even to amend the file the person may draw more attention to the issue. I discussed cases with Senator O'Toole where this issue arises. It does not arise for most public bodies because they are well run but in the small number of cases that arise, it amounts to an abuse that can cause great distress. Perhaps the Minister might discuss this with Senator O'Toole before Report Stage.

Amendment put and declared carried.

I move amendment No. 25:

In page 8, before section 12, to insert the following new section:

13.-Section 18 of the Principal Act is amended by inserting the following subsection after subsection (5):

'(5A) Notwithstanding subsection (1), the Minister may provide by regulations for the making of an application under that subsection-

(a) by the parent or guardian of a person referred to in that subsection if the person belongs to a class specified in the regulations, or

(b) in a case where such a person is dead, by a member of a class specified in the regulations.’.”.

Amendment agreed to.

Amendments Nos. 26 and 96 are related and they will be taken together by agreement.

I move amendment No. 26:

In page 8, before section 12, to insert the following new section:

12.-Section 17 of the Principal Act is amended in subsection (5) by the deletion of 'under this Act'.".

This amendment, suggested by the Information Commissioner, serves the same purpose. Under the 1997 Act, correction of errors only has to be notified to people who access the information under FOI. It should be wider to cover those who are given the information generally outside of the Act. This amendment aims for broad redrafting where errors occur.

I have already said that I will not be accepting these amendments and I have given the reasons for my refusal in my reply to Deputy Ó Caoláin.

Amendment No. 96 echoes the amendment we are dealing with.

We have been talking about it for the last 15 minutes.

It would insert in subsection (2) "by inserting after 'this Act' the following: '(with the exception of section 17)' ". I will not go through the arguments again - I have put them forward and the Minister has his own views but I will press the amendment when we come to it.

Amendment put and declared lost.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 8, before section 12, to insert the following new section:

12.-Section 17 of the Principal Act is amended-

(a) in subsection (1) by inserting the following after ’public body’:

'(including a record that is available for inspection by members of the public whether upon payment or free of charge, or a record a copy of which is available for purchase or removal free of charge by members of the public)' and

(b) by inserting the following after subsection (5):

'(6) The Minister may provide by regulations for the grant of a request under section 17 where-

(a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester is the parent or guardian of the individual, or

(b) the individual to whom the record relates is dead and the requester concerned is a member of a class specified in the regulations.’.”.

I was strongly tempted to put this amendment to a vote but I will come back to it on Report Stage. I hope that in the intervening period, more energy will be employed by the Minister to understand the import of the amendment.

Amendment put and declared lost.
Amendment No. 29 not moved.

Amendments Nos. 31 to 37, inclusive, are related to amendment No. 30 and they will be taken together by agreement.

I move amendment No. 30:

In page 8, lines 40 to 43 and in page 9, lines 1 to 23, to delete paragraphs (a) and (b).

We are coming to the meat of the Bill. This is the area that those who oppose the Bill find most objectionable. Amendment No. 30 seeks to delete the proposed amendment of paragraphs (a) and (b) of section 19 of the Act. The language is being made more restrictive and it flies in the face of the spirit of the principal Act. Section 19 (a)(i) will be amended by inserting “shall refuse” in place of “may refuse” - it turns a conditional into a mandatory and removes the freedom of action that had been talked about generally in other areas of the Bill.

Paragraph (a) of the section prohibits the making available of communications between members of the Government or between two such members of the Government who form part of a group that is discussing, having been delegated by the Government, a matter of importance as designated by the Government. This would remove from future public inspection the type of correspondence that helps inform, elucidate and entertain public debate, such as communications between the Ministers for Finance, Health and Children or Transport or the correspondence between the Attorney General and the Minister for Education and Science. It can be seen as nothing less than an attempt by the Government to ensure its workings are not open to the fullest possible scrutiny. Members are denied the opportunity to put the Government under pressure on most occasions in the Dáil so this section cannot be accepted by the Green Party or any other Opposition Members.

Paragraph (b) deals with prohibiting from public view any record that is not a decision the Government has made public on its own behalf. It is a restrictive clause that is not in the spirit of freedom of information. I ask the Minister not to proceed with the suggested changes.

The next amendments are concerned with paragraphs (d) and (e). I have not sought to delete paragraph (c) because it is the hook on which the Bill was originally sold - the making available of Cabinet information after a five year period. The preference of the Government is to extend this to a ten year period. I am open to hearing the argument why this might happen but I do not accept a decision that if a Government is re-elected, it should not be accountable for all the decisions made in the previous term. I will leave it at that.

Is there not an amendment down in my name?

Yes, amendment No. 31.

I strongly support the view that we need to go back to basics on this section. The original Act had a presumption of openness. The Minister, and the Civil Service, have generally sought to create the impression that refusal in relation to Government records is mandatory and should be done at all times. That is clearly wrong. The Information Commissioner, in page 41 of his report, states very clearly that his view of the intention of the Act, which was clearly the intention of the Oireachtas when the Bill was presented in 1997, is very different from the interpretation that is now being imposed.

He makes the following interesting comments:

It appears, in practice, that decision makers rarely, if ever, consider exercising their discretion to release. Nor have decision makers been provided with any guidelines as to when it might be appropriate to exercise their discretion to release or how to go about the consultation process envisaged by the section where release is contemplated. This has led to a perception among some decision makers that the section 19 exemption is mandatory in its entirety. It has also resulted in situations in which decision makers appear to feel obliged to refuse access to Government memoranda, even though their contents had already been released in their entirety by way of press release.

This again underlines that the intention of the Act was always to have a presumption towards openness unless a specific harm was caused by the release of a record. What the Government is seeking to do instead is to impose a blanket of secrecy around all of these decisions. Later on, we will see that the Government goes even further and attempts to create a ten-year blanket of secrecy, not being content just with five years. At this stage, however, we are only dealing with this provision.

The Minister is making this a mandatory refusal - in other words, withdrawing provisions whereby the head can make a decision in the public interest to release information, as envisaged by the Act. He also then extends this to ministerial communications. My amendment is designed to go back to first principles in relation to ministerial communication. It is acceptable that ministerial communications would have protection if they were of the sort envisaged in the original Act, that is, if they were actual communications submitted to Cabinet, would infer a Minister's statement to Cabinet or were put together solely for a meeting of Government. Such communications would rightly be protected. What the Government is seeking to do, however, is to throw a much wider blanket of secrecy across ministerial communication so that anything that is under consideration by Government, a very vague term, could now be made inaccessible.

My amendment, therefore, puts forward an alternative. The only communications that would have this protection would be ones that contain the whole or part of a statement made or to be made at a meeting of Government or information that reveals or from which could be inferred the substance of the whole or part of such a statement. In other words, ministerial communication would be protected if it referred explicitly to a decision process at Cabinet. This would deal with the concern of the high-level group of Civil Servants about protecting the opportunity for Ministers to have exchanges before Cabinet in order to facilitate the emergence of compromises prior to Cabinet meetings. My amendment would facilitate such communications but would not offer the blanket exemption that the Minister is seeking for his colleagues over all sorts of communications on any bit of tittle tattle that could conceivably be related to matters under consideration by Government. This needs to be pinned down extremely tightly so that Ministers do not abuse this privilege and only use a rightful privilege of secrecy in its proper context. The high-level group spoke of this privilege being used sparingly and in an appropriate context. Under the provision the Minister has provided, it would be used neither sparingly nor in an appropriate context.

I do not see the value of Government amendment No. 33, which substitutes the term "delegated" to a committee for "referred" to a committee. The creation of these committees of officials, whether they are delegated to or referred to, is already a process that has gone too far, and the Minister's amendment would seem to provide protection to an even wider number of such committees. Amendment No. 34, in my name, is designed to tighten the exempted records of these committees. I would envisage that a very limited number of committees that were specifically dealing with an individual subject before Cabinet could be protected, but only in so far as it contains the whole or part of a statement made or to be made at a meeting of Government or reveals or from which may be inferred the substance of a Minister's statement. Thus, the Bill would be tightened to exempt certain records of a committee where the committee would make explicit recommendations that Cabinet members would use in their deliberations. That is the sort of protection that was envisaged in the 1997 Act.

My amendment No. 35 is designed to return to the provisions of the original Act, whereby only records prepared solely for Cabinet would be protected. The Minister is seeking to widen that protection, but I do not see the merit of that. This section and later sections go to the heart of the Bill. We must take a view as a committee as to how we see the duties of Ministers. Is it the duty of Ministers to uphold Cabinet confidentiality and the quality of memoranda they submit to Government when important decisions are being made? Should Minister's carry out such duties without fear or favour, bearing in mind that they will be examined five years later on the quality of their decision making? The Minister is trying to change that provision, but it is good for the public. It means Ministers make their decisions knowing that the opinions they express and views they take must stand up to public scrutiny within a reasonable period. The time period is long enough not to interfere with the decision-making process but is nevertheless sufficient to make Minister's conscious of the importance of making proper decisions in the public interest.

It is not right for the Minister to ask this committee to impose sacrifices on the public in relation to their rights of access to information in order to protect Ministers who are unwilling to take their responsibilities seriously. That is the core of this issue. These Ministers went into office knowing they had a statutory obligation to be examined in five years time on the quality of their decisions. Now, as we come up to the examination date, Ministers are suddenly declaring they do not want the burden of being examined on the quality of their decision making. They want to put that off and do not feel they should be subject to scrutiny. That is wholly wrong, and I do not accept that Ministers should come charging into the Dáil at break-neck speed at five minutes to midnight with this effort to change the rules of play in order to protect them. That is the wrong way to govern and will not improve the governance of this country. Nothing the Minister has said has persuaded me of that. Not a shred of evidence has been offered of decisions that have been interfered with by the existing legislation. This is a bad day's work if we end up accepting the changes envisaged by the Minister.

Are we concluding at 1.30 p.m.?

We shall conclude now. Deputy Ó Caoláin will be in possession when we return at 2.30 p.m.

Sitting suspended at 1.29 p.m. and resumed at 2.30 p.m.

We resume on amendment No. 30. Deputy Ó Caoláin is in possession. We are discussing amendments Nos. 30 to 37, inclusive.

As has already been said, this and the following section are the most damaging and dangerous parts of this amending Bill. Arising, I suspect, from the high level group's deliberations and report, there is a view that the more secret the deliberations of the Cabinet and the advice that comes to it, the better the running of Government. I reject that notion out of hand since it flies in the face of the ethos of the original Act.

This is where the first of these amendments comes in because this Bill makes in mandatory for a head to refuse a request for a Cabinet record. In section 12, there is a proposal to substitute "shall refuse" for "may refuse", which is a certain and definite instruction. As the Information Commissioner pointed out, this will lead to a ludicrous situation where information which is already in the public domain, by way of press statement or ministerial speech, will not be automatically available. In many instances, such information will be automatically refused as a result of the diktat - "shall refuse" rather than "may refuse". That is a strict determination and material already out there will now be debarred as a result of the introduction of this proposed change in the substantive Act.

When we go on to page nine, paragraphs 15 through 18, we see that the substitution of the word "primarily" for "solely" is equally damaging. The prospect is opened up of much of the information that is now available being restricted in the future. This is at the centre of the arguments against this amending Bill. The idea that Cabinet attention to documents and discussions can be used as an aid to refusal is what is being created. Sadly, it is not beyond the bounds of possibility that we will see abuse of this device as documents and other material are run through the conveyor belt of Cabinet attention in order to arm a head with the opportunity of refusing the release of the critical information on the basis that it comes under the Cabinet confidentiality ruling. The Irish Council for Civil Liberties comments that a document could be withheld just because it was considered by the Cabinet, with all that interpretation might entail. It is such a wide interpretation. Even though a document could be used subsequently in other decision-making processes, the fact that it was actually addressed to or seen by the Cabinet would preclude it under these changes from release to any requester. The extension of the period of protection of Cabinet records from five to ten years is, as I described it on Second Stage, a real clanger. Nobody is under any doubt but that it is convenient for the current Government whose period of scrutiny would commence as of the 21st of this month. It means only one thing - that the present Government is - for whatever reason and still unknown to us - seeking to protect itself. As I suggested on Second Stage, this current Dáil might well run its full term. If, God forbid, the electorate was to return a similar coalition after the next general election - I am sure, Chairman, you will, like me, say, "perish the thought" - will we see a further amendment at that stage moving it from ten to 15 years because the Government does not want any information getting out that it is trying to maintain under lock and key? No sound argument has been advanced to support this change. Yesterday, on more than one occasion, I asked the Minister to outline a single instance where the smooth working of Cabinet or Government was in any way impaired as a result of the Freedom of Information Act 1997, as it stands. No examples are being given, however. Earlier we discussed an amendment at some length and people sought specifics, but if it works that way it also has to work the other way. Can somebody present us with a real, descriptive instance of how this Cabinet or its predecessor was left in an imperfect state as a result of the rigours of the Freedom of Information Act 1997?

Although the Minister rejected the phraseology yesterday when it was used by another member, the widening of the definition of Government to include committees and working groups of officials, is yet another restriction of the original Act. It is also another potential block to the right to access information. The scope for sleight of hand is substantial. The provision whereby the Secretary General to the Government can certify the committee or working group and preclude their deliberations from the provisions of the Act is a significant development and a retrograde one. Rather than dealing with the documents sought on an individual basis, based on their actual content, this is another section that creates entire categories of documents and information that will escape public scrutiny.

Section 12 cannot be reformed and while there are many amendments, which I commend and will support in line with the thrust of the arguments presented by colleagues, this section should be deleted. This is because it raises a key question as to the raison d'être behind the Government's efforts to railroad this legislation through in advance of the existing Act's application to the deliberations of the last Cabinet returned after the general election of 1997. No amount of denial or dismissal will change that public view, unless the Minister outlines clearly and in cogent terms exactly how the substantive Bill has affected good governance - something we have seen so little of in recent years.

I oppose section 12 and I call on the Minister either to outline clearly the reasons, or to withdraw the section in line with my request and that of Deputy Burton.

I do not have any problem with extending the five-year rule to ten years. I do have a problem, however, with how widely the rule will be used to cover everybody. It surprises me that the Minister has the task of moving amendments that would prevent access to information concerning Ministers' decisions and the role played by a plethora of quangos that either obstruct or assist in the Government's decision-making process. The Minister has never been slow to express his own viewpoint and he also takes the trouble to explain it. What is even more surprising and probably gives an idea of the Minister's self-confidence, is that he can change his mind when the situation requires it. It is regrettable therefore that the Minister is enacting legislation that will shield Ministers who refuse to answer questions properly.

I have had a specific problem where a Minister continues to issue soundbites on a subject, yet after three months he has still refused to respond to my letter seeking more clarification on a subject. That is why I have such difficulty in accepting the widening of the restrictions of the Freedom of Information Act. Arrogance or incompetence may be behind the problem I mentioned concerning a specific Minister but we are still a long way from having openness, transparency or accountability. It is a retrograde step to introduce such restrictions that will support all these quangos and allow Ministers to make decisions and say what they like without having to respond to anybody.

The ten-year rule is not a problem because that is for good government but the extension of the rule will be detrimental to good government.

The Labour Party is opposing the section. As I indicated in the first amendment I moved, I offered the Government a year, including the extension of the protection of Cabinet records for a year, in order to allow a proper discussion to take place, including consultation with interested parties from the general public, community organisations and the media, including journalists. I remember the famous headline in the Irish Independent and the Evening Herald on polling day in the 1997 general election which said "It's payback time". In many ways, this Bill represents payback time by this Government because it was re-elected. As the Minister said when he was doorstepped at Cheltenham races by an RTE camera crew, the people made their decision last May. The Minister says that gives him the right to do this, although the people were not aware that that was the intention of the Government.

We have had a limited consultation process through this committee with the higher civil servants. Their input and comments were apparently the cause of this Bill being presented but, as they reassured us, they are just inputs. We also met various other people who have presented all sorts of views. The Taoiseach and other Ministers, including Deputy McCreevy, have been asked repeatedly to provide concrete examples of where the availability of freedom of information legislation has been damaging to the Government or has impeded decision making by the Government. However, we still have not received a single example. The deadline on secrecy and the protection of the previous Government runs out at the end of April. While the Minister may not be particularly anxious about that, what has the Government got to hide? What are the Minister, the Taoiseach, the Tánaiste and other Cabinet members afraid of being released, given that they, unexpectedly but happily for them, have gained a second term in office?

Happily, yes, but not unexpected.

It was unexpected as far as the Progressive Democrats were concerned. The party has not stopped celebrating since. However, there is a thing in politics called hubris and I suspect this will be one of the issues——

Hubris is a Greek word, not a thing in politics.

Good politics.

The Greeks knew a thing or two about politics. The gods decreed a change in fortune of powerful people because they had become arrogant and overweening. While the Minister is at the height of his power currently, it is hard for him to think that at a future date the public will see fit to withdraw that power on the basis that he has sought to bring down and destroy democratic institutions that were working well.

This is ironic, given that in an earlier part of his career, the Minister was involved in a movement within Fianna Fáil to reclaim democracy from the excesses of Charles J. Haughey when he was Taoiseach. He was not afraid to be open and speak his mind. Deputy McGuinness similarly chose to speak out today about the overweening power of the junior partner in the Government. I do not know what contribution the junior partner has made to the legislation but the suggestion from many Fianna Fáil backbenchers is that its input was significant and, in particular, the Minister for Justice, Equality and Law Reform was offended by having to work under the FOI Act in his Department.

The Information Commissioner indicated the amendments to sections 12 and 13 are likely to give rise to costly litigation. The former Chief Justice, Liam Hamilton, stated at the conclusion of the beef tribunal that if questions had been answered at the appropriate time, none of the costs of the tribunal would have been incurred. The Minister proposes to switch off the light of public information. The core of his proposal is contained in section 12 under which he intends to amend the definition of "Government" and abolish public scrutiny of correspondence between Government members, even if the correspondence has nothing to do with the business of Government.

The Minister is also substituting the words "shall refuse" for "may refuse" and providing protection to conservative heads of Government Departments to screen information without public knowledge about how the Government expends taxpayers' money. The beef tribunal cost almost £75 million and Mr. Hamilton concluded that most of the costs could have been avoided if information had been made public so that decisions could have been changed, incorrect policies addressed and the issue could have been subject to public scrutiny. The Minister proposes to run away from the structure that has served us well.

Who is he protecting? What does he have to hide? What went so disastrously wrong for the previous Government that he wants to protect? We are living with a public transport system that is a shambles, a health system which, despite all the money lavished on it, is a disgrace and an education system which was once the boast of Europe but is now an embarrassment as children attend rat infested schools. What does the Minister want to hide? The documentation and notes of discussions between himself and other Government members will be hidden.

Senator Mansergh is a member of the Oireachtas Joint Committee on Finance and the Public Service. He has given distinguished service as a public servant, an advisor to Fianna Fáil and a Member of the Upper House. He warned in explicit terms of the risk the Minister is taking in extending the definition of Government committees to include advisors and other parties and bodies. If he is not prepared to take advice from disinterested people such as the Information Commissioner, could he not listen to one of the most respected Members of the Oireachtas, who is also a member of his own party? Senator Mansergh warned, based on his experience, that there is significant scope for the proposals in the Bill to go wrong.

The result of the changes will be to significantly reduce media access to information about Government, which, in turn, means the public will know less and less about the workings of Government and how taxpayers' money is spent. Initially, the Minister may feel that will be helpful but in the long run, as a Minister for Finance who is trying to eke out value for money from line Departments, he will rue the day when the Secretaries General of such Departments can hide almost every memorandum and working paper involved in decision making indefinitely under the legislation.

My only amendment to the section proposes to extend the period of a year. The section is wrong and is a disservice to democracy in the State. The Minister is amending the section on the basis of payback and he is entitled to do so because the electorate voted for him. However, the electorate is beginning to march about substandard schools and hospitals and the trampling on the rights of people with disabilities, yet the Minister is introducing a veil of secrecy over maladministration by the Government and its agents and servants. He can make his amendments but when the electorate gives the Labour Party an opportunity to be part of a Government again, we will take the earliest opportunity to reverse them and fully restore freedom of information, media access and freedom of the press.

The Minister and the Tánaiste are great admirers of American culture and ways. I pointed out this to the Minister on a previous occasion. The United States has had a freedom of information Act operating for 40 years and, even in a very divided society where opposition to the war America is undertaking is extremely high, no one, not even on the far right or among those the Minister admires coming from his specific ideological background, has tried to close down freedom of information. It is of great disservice to Ireland that the Minister should try to do so here.

I am glad to have an opportunity of saying a few words on these amendments and especially on section 12. We have come to the meat of the Bill and the reason it has been brought forward. The Government decided, probably prior to the election, that this amendment was necessary and that it would have to bring forward a Freedom of Information (Amendment) Bill. Naturally it did not inform the electorate of this but, had the parties not been back in Government, they would probably still have brought it forward as a Private Members' Bill.

What they did not want coming on stream from later on this month was a flow of information on all the decisions they had taken in Government along with all the background information that would become available. They decided long before the election that that would have to be closed off. If I were in the Minister's position and had something in recent years to cover up, I would have found it horrible that various documents would be released and revelations made on an almost weekly basis. It would have been disastrous for the Government over the next five years. That is why it brought this Bill forward.

I am surprised that the Minister, Deputy McCreevy, is shoring this up. If he were in Opposition, he would not be debating it. However, I have no doubt that there are others who would be prepared to take his place. Some of the young tigers within Fianna Fáil seeking promotion would have been anxious to steer it through or bat on his behalf. However, I am surprised that the Minister is doing it because he is one of the people who says that Ministers are paid enormous sums of money to make decisions. He has said that repeatedly in the media, in the House and elsewhere.

I make the decisions as well.

Yes, some of which I agree with, others not. The Minister is closing off the opportunity to scrutinise his decisions and those of other Ministers and will protect them. He is able to stand over and defend what he does but some of his colleagues are not, are very poor at doing so and let themselves down badly. If they are paid so much, why should they want to hide the information and advice they receive?

It is very interesting to see what people said when the original Act was debated in 1997. The great fighters for democracy were wheeled out, those hoping to be chosen in a future Government on the basis of their excellence. For example, Deputy O'Dea, now a Minister of State, launched an attack on the original Act saying that it was not free enough and that he wanted to repeal the Official Secrets Act so that all this material would come on stream. He spoke about briefing documents that would be given to Cabinet and so on and could not understand why they and even other Cabinet documents should not be available. No doubt he will vote for this Bill and say that it should all be closed off. Perhaps we should think that, at the time, he was anxious to impress the leader of Fianna Fáil in the hope of achieving perhaps even the Minister's position. I am sure it would not have been beyond his aspirations.

I was spokesperson on finance at the time. I must have forgotten to contribute to the Freedom of Information Act.

The Minister did not contribute and I know this because I went looking for his contribution.

I wonder why.

I thought the Minister would have given us gems of wisdom at the time. It is a wonder he did not contribute and point out the difficulties with the five year rule. He did not foresee it at the time. Why was that? Did he think it was all right? Why did he not come forward at the time with amendments changing the five year limit to ten years? The Minister said it is impossible to govern with the current situation. Why did he not spot that in 1997 and do something about it?

Deputy Woods made a fantastic contribution at the time. He was anxious that the Act be extended because it did not go far enough. He wanted the Official Secrets Act changed and said the Freedom of Information Act was inadequate. I suppose he was also hoping for preferment when the new Government took office, and he got what he wanted.

An interesting follow-on is that, the activities in which Deputy Woods engaged as Minister in the run-up to the previous general election showed that he was fighting for preferment but did not get it. Unfortunately, his career will be blighted by those actions in the last 12 months in office which is sad for a man with a distinguished career.

The ray of hope was Deputy O'Donnell of the Progressive Democrats, a person of principle whom one would think would remain consistent. She made a brave stand on overseas aid but when it came to the crunch, she did not resign and voted with the Government. No doubt she will do so again over the next few days. It is sad to see those who are supposedly such great defenders of democracy rowing in when the chips are down.

We heard Deputy McGuinness on the airwaves talking about Fianna Fáil losing track of where it was going, the tail wagging the dog and so on. The interviewer failed badly because, when Deputy McGuinness spoke about local government and being opposed to the change in the dual mandate, the next question that should have been asked of him was whether he would vote against it, but perhaps there was an arrangement that the question would not be asked.

On a point of information for my elucidation, is the Deputy in favour of ending the dual mandate?

The Minister is not up to date because, if he were, he would know that last May, after the general election, I resigned from the two positions I held on local authorities.

Deputy Durkan will join the Deputy as he has always been of that view.

I am glad the Minister asked me that but am surprised he is not up to date.

I have not been speaking to Deputy Cassidy recently.

He was opposed to the abolition of the dual mandate as well, until he went into Government and received preferment.

Deputy Conor Lenihan, who is a member of the committee and who I am surprised is not present, spoke at budget time about Government being rudderless, of having lost sight of where it was, of Fianna Fáil having forgotten what it stood for and having forgotten about ordinary people and the poor. Deputy Lenihan is back on board. I do not know how the Minister gets them all back on board when he needs them.

Many people are concerned about us. Even Deputy Ó Caoláin's party were concerned about us last weekend.

Maybe it is because we are so concerned about the Government that we are prepared to try to put it on the straight road and persuade the Minister that what he is trying to do with this Bill is an about-turn where democracy is concerned. It goes against what the Minister stands for and about which he has spoken, namely, Ministers taking responsibility for their decisions.

Why is the Government trying to place a restriction on the papers and information that would be released to the public? Why has it changed its mind so dramatically from 1997 when the Minister's party said the Freedom of Information Act was not liberal enough? Several of its spokespersons indicated that it should go much further. Why has the Government changed its position so dramatically? Is it because the application of the five year rule is about to begin this month and will bring on stream many of the papers the Government is anxious to hide? We all have experience of getting information under the FOI Act - in my case information denied to me in the Dáil. That was part of the reason behind the beef tribunal. If information on the issues which led to the beef tribunal had been available freely by way of parliamentary questions there might not have been a need for an extensive Freedom of information Act. I am disappointed the Minister will persist with this and not row back on it. It goes against his principles of making people accountable for their decisions. As the Minister said before, they get huge salaries to make these decisions, so why should they hide and not give the reasons behind their decisions?

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.

The changes adopted go further by far than those recommended by the high level group, for example, in its report regarding section 19(1) and the issue of communications between Ministers. The Minister did not deal in detail with his amendment No. 33 which proposes to delete the word "delegated" and substitute the word "referred". Is it that in his anxiety to cast as Government almost anything that reflects on Government policy, he is substituting the word "referred", which seems a much lighter and looser term, for the word "delegated", which sounds as though there is a process. Normally, when one delegates one draws up papers and memoranda and says, "This is your delegated responsibility", whereas a referral may be a very casual relationship. The Minister has not given any justification for what seems to be the Government seeking to extend even further its capacity to close down freedom of information.

I refer to the section of the Minister's speech where he dealt with subparagraph (e)(ii)(c) on page 10 which states that an official is “a person who is a member of any of such other (if any) classes of person as may be prescribed.”.

I want to go back again to what Senator Mansergh said at this committee and what the Information Commissioner said in his report. We have been warned of an appalling vista, not just in Mr. Justice Hamilton's terms, of things like the beef tribunal repeating themselves because people refused to answer reasonable questions in relation to information. Now we have added a superstructure in this amendment. All of us here can understand, in referring to Government, that it is not unreasonable in terms of current practice to talk about Ministers, Secretaries General and senior officials in Departments, but the Bill extends that to "any other class of persons as may be prescribed". This is a Government which, because of its incompetence in terms of spending public money can no longer get the Civil Service in most line Departments to administer but instead buys in consultancy and experts all the time and these consultants and experts, many of whom are not even Irish, will be able to be co-opted into this definition and ambit of Government. This is wrong, unwise and foolish and it will turn out to be costly for this State. The Minister is abusing the public in doing this. He is abusing the media and the whole notion of freedom of information and a free press by extending the definition of Government.

I remind the Minister of a quotation of Jonathan Swift: "Providence never intended to make the management of public affairs a mystery to be comprehended by a few persons of sublime genius". That is what Jonathan Swift was able to say in this country a good few hundred years ago and it has not been bettered yet. The Minister is proposing to cast the net so wide that almost anything can be included in the definition of the workings of Government. The Minister is doing a bad day's work. Senator Mansergh was correct when he, particularly, was concerned and worried about this class of person who may, as yet, be prescribed.

This is a charter for bad Governments and for weak Ministers to hide behind a veil of secrecy. The Government, particularly the Taoiseach, employs more than 72 spin masters. From now the Government can choose how to disclose information and what to disclose. The Government commissions expensive studies, whether the PriceWaterhouse report on the national stadium or the various reports in relation to, for instance, the operation of the health service. The Minister himself in recent times commissioned Professor Brennan and a number of other people to study the health service and to try to make sense of the chaos everybody is experiencing, whether workers in the health service, the Minister for Health and Children or the patients who are lying on trolleys, as we heard this morning, in some cases for 15 days. Once this provision goes in it is the Minister's call as to whether we, the Parliament or the press ever see the Brennan report. We know lots of the Brennan report has already been selectively leaked, presumably by the Minister's Department, to soften up the media, the Dáil and the Minister's party for what he is proposing to do to try to make sense of the shambles of the health service. Under current freedom of information legislation, sooner or later it will be possible to see the Brennan report. I am sure the Minster will say that he intends to publish it anyway. The point is that a different Minister who did not intend to publish it would be able to hide under this provision and make the report a secret for ten years. That is not good government. It is actually abuse. What the Minister is doing is an abuse of our democracy. He has not yet given us a good reason for it. It is a charter for incompetent Ministers and an incompetent Government to hide behind and it is wrong.

The Minister has given us no reason for the change in terminology from delegated to referred. Maybe the Civil Service feels that would serve its needs for more secrecy even better. I do not know. Maybe the Minister would comment on that.

The Minister and his colleagues are seeking to turn the clock back to a pre-tribunal Ireland, when Ministers were regarded as being the owners of information and having the right to career around making decisions and not being accountable to anyone. Unfortunately, this House bears a lot of the mark of that legacy, with a very weak system of committees, no resources and very poor accountability of Ministers in relation to parliamentary questions in the Dáil, where they have a freedom to ignore questions if they choose. The Government, which claims to be part of the new post-tribunal Ireland trying to put that behind it and saying accountability is an important plank of the political citizenship we are now trying to develop, is at the very first test buckling at the knees in fear of how the public will regard the decisions it has made on their behalf. It is a very poor reflection on the Government and on the Minister in particular. Maybe he never approved of freedom of information. He seemed to suggest that in his contribution earlier. To dismantle it is not something we would have expected of him.

The Minister claimed at length that experience has proven that the legislation must be changed. This committee has sought, through hours of questioning of officials, to find an example of the experience that has proven that these changes must be made. We have sought in vain. High level officials have told the committee they knew of no example where a Government Minister had failed to put proper information into memoranda that were presented to Government. They told us there was no evidence that Cabinet was now becoming long, unwieldy, cumbersome or unable to reach decisions because Ministers were reserving their comments for the protection of Cabinet where they could never be reported.

We have seen no such evidence from any source, whether ministerial, official or otherwise. What memoranda did the Minister spike that he should have presented to Cabinet and which he now feels he will present to Cabinet with this protection? Can he give us some examples of times when he refused to put an opinion in writing? Let him give us examples so that we can see that changes occurred in governance in the past five years which were bad. Ministers state the pretence that this Government is running very well and that its Cabinet business is run efficiently. These are Ministers who have been working for five years under these obligations. Is it only now when they realise that papers will be released on 21 April that they suddenly discover that they should have been suppressing information for the last five years? Is that what the Minister means? Does he mean that it did not happen to date but it will happen in future because these thick Ministers did not realise that they had an obligation to have their decisions laid before the public after five years of administration?

I fail to understand any argument that this proposal promotes better governance. There has not been a shred of evidence presented to support such an argument in either the Chamber or in this committee. I see all the evidence that this is about weak Ministers protecting their hides. They do not want to see debates about the national stadium where, in my view, very foolish decisions were taken. I do not believe that the Minister for Finance was in any way part responsible but foolish decisions were taken that cost the taxpayer money. That money is now lost and certain individuals do not want that sort of information to be exposed. This has nothing to do with Cabinet not working well or memoranda being incomplete: this is about bad decisions being buried.

The Minister is talking about extending the protection of Cabinet to all these other expert committees that advise the Cabinet, which is very wrong. The taxpayer is paying for this information and paying for these expert advisors that the Minister says are to come together. It is paying the salaries of these senior officials. If they examine options they ought to be available in the same way as factual information and evaluation and analysis of options. This is a blanket exemption that these explorations will not be released. This is a "shall" and not a "may". All the material of analysis and options available to the Cabinet should be exposed and available to the public.

I agree that there is a limited category of advice from such a committee such as a submission to Cabinet which could be protected under the existing provision by simply making it part of the memorandum to Government. This change is not needed to do that. I can see why there should be a five year embargo on the release of such information because it is part of the Government's deliberation in Cabinet and it could expose the views of a Minister who decided to present and endorse these recommendations. I see no reason for the blanket coverage of exclusion proposed by the Minister. He is defining these committee members as if they were members of Cabinet and they could be academics or officials. The high level group never sought any such protection for themselves and that was very clear from their presentation. They did not regard that officials or communications between officials would have any such protection. A very narrow category of exemption was suggested by the high level group which the Minister has gone far beyond.

The Minister has drifted into this issue of whether it should be ten or five years and which, strictly speaking, we are not discussing at the moment. In my view, the real argument behind the proposal for five years is that it was the legal responsibility under which the Minister and his colleagues operated for the last five years. They are obligations which the Minister and his colleagues undertook when they accepted their seals of office. They knew that was their duty, the President appointed them and they were the terms. Now at five minutes to midnight with the realisation that their decisions will now be exposed, they want to change the rules.

If we had a debate at the outset about five or ten years then there would have been a debatable argument in good faith but there is no good faith now. This is about saving the hides of Ministers who knew they would be accountable on 21 April and now want to back away. This House and the media that seeks to serve the public has already one arm tied behind its back in the way in which Ministers can avoid and evade proper accountability within the House. To find that the media will be further hamstrung while the sultans of spin that the Minister employs in his Department will be going around with leaks and statements, official and otherwise, and paying no heed to the value of protecting the integrity of Government is not a fair way to handle freedom of information and respect for the media who serve the public just as the Government does. I roundly reject everything the Minister is seeking to do in these sections.

I was pondering what would have been if a different Government had exited last May and the Minister and his colleagues had been returned as a result of the general election not having been in power in the previous five years. Would the same set of amendments to the Freedom of Information Act 1997 be now introduced with the same enthusiasm if it was to expose the deliberations in Cabinet of Deputies Bruton, McGrath and other colleagues over the previous five years? I do not think that is likely. They would not bring in those amendments just quite yet with 21 April approaching.

This is the kernel of the matter. While the Minister on the one hand protests that this is not the raison d'être behind their speedy move, on the other hand he fails to provide any evidence to support the view that this amending Bill will facilitate better government. I have no doubt that the secret shroud has been brought down over the deliberations of Cabinet - and not only of Cabinet but of all the information flow through Cabinet. I described it in my earlier contribution as Cabinet becoming a conveyor belt for secrecy. Other documents and other material and paraphernalia relevant to the workings of Government will be passed through and refused on the basis that it was brought to the Cabinet's attention and cannot be released. That facility will be abused whether Deputy McCreevy is supportive of it or not - I would not expect that he would - but nevertheless there will be others for whom the temptation will be too great.

It is the denial of access to critical information because it is recognised that knowledge is strength and that information empowers. There will be a refusal to release critical information which is knowledge and information that will empower others, and a denial of the rights of the individual for access to Cabinet deliberations and the informing of Cabinet discussions. This is not just a row-back, as some have described. This section in particular flies in the face of the very ethos of the 1997 Act. It is impossible to comprehend because we are dealing in a vacuum of information.

We are talking about the Freedom of Information Act but the information that will inform the Opposition spokespersons as to the reasons this Government is pressing ahead, to allow us make an informed judgment, is not being given. The deadline of 21 April is undoubtedly the only answer, and the only view and belief we can hold and it is one that is universally held, is that this Government does not wish to facilitate the introduction of information into the public domain about its deliberations five years ago. It is taking all the criticism not only of elected representatives, but of broad sections of the media which recognise this is a fundamental challenge to the very ethos of the 1997 Act. Changing the words "may refuse" to "shall refuse" is a clear diktat, which will be welcomed by certain sections in Government and those who influence Government thinking in the higher Civil Service. The substitution of the word "primarily" for "solely" is equally an intrusion on rights that already exist. It is ludicrous that both these changes will deny access to information that is already in the public domain. They will deny access to information, discussion and contributions that have been already articulated by Ministers in interviews or press releases following Cabinet deliberations. Are we going to say people will no longer be able to get information that has been already released under the FOI Act? It will close down that avenue.

The widening of the definition of Government to include committees and working groups of officials is a very dangerous development. As I mentioned earlier, it will not apply to everyone, but there will be always those who will use it and recognise it as a facilitation for sleight of hand that will be employed by those for whom the Freedom of Information Act has been always viewed as a monster.

In the absence of information to explain why we are seeking to press ahead and given that the Government has refused even the very reasonable proposals from other parties to defer for 12 months, there is no doubt in the minds of people watching these deliberations unfold that this is all about getting in there before a damaging or embarrassing deadline that is fast approaching. That is what this is all about and the Minister cannot refute it. As one who subscribes to the ethos of the Freedom of Information of Act, the Minister's first responsibility is to protect it in the interest of good governance and public rights.

I oppose section 12. I do not see any way it can be amended. It needs to be opposed outright.

I am intrigued by the Minister's depiction of the need for the members of the Cabinet to have a space to allow them to communicate frankly with each other. Could it be the case that the Minister for Justice, Equality and Law Reform speaks more frankly at Cabinet than in public? If so, that is a frightening prospect. Could it be the case that the Taoiseach expresses an opinion - any opinion - at Cabinet, when he so studiously avoids expressing any opinion in public? Could it be the case that a strong-willed Minister might have proposals constantly rejected at Cabinet when the public has no perception of that Minister standing down about anything in public? This is the kind of scrutiny that a democratic government demands.

Does the Minister not have any sense of irony in the fact that he was elected as a public representative and on becoming a member of Government he feels to do that job better he needs less public scrutiny? The notion of that as a principle of Government is abhorrent to any clear thinking rational view of democracy. That we are discussing these motions belittles us all as parliamentarians. I appeal to the good sense of the Minister to recognise the wrong-headed approach he is taking in this regard. He should replace these amendments and not proceed with the stated intention of the Bill.

I have a fear, which goes beyond those of other Opposition spokespersons, that the definition of Government and the people with whom the Government interacts could be extended ad infinitum. There still exists a politically corrupt culture relating to public appointments. People are appointed to a myriad of Government boards and State bodies with little public scrutiny of their background, qualifications or abilities. However given our process of government by Cabinet and the way such people interact on an individual basis and even on a party political basis, the provision proposed here will allow those interactions to be closed off from public scrutiny.

On those grounds, the potential for greater political corruption coming out of a period when we are still coming to terms with a political culture that has not served this country well is not a good day's work for this committee or Parliament. I again appeal to the Minister not to take us down this road. It is not what many of us believe public life should be about.

We have seen a massive number of working groups and their associated costs across a large number of Departments. These will now be restricted under the new changes to the Freedom of Information Act. The recommendations of such working groups often come to nothing. In the medical service, there have been three medical manpower task forces in the past 15 years. There has been the health strategy, the primary care strategy, the value for money report and Professor Brennan's report.

As someone who works in the health service, I have seen very little change occurring on the basis of the recommendations of these task forces and working groups which, no doubt, have cost a substantial amount of money. Sometimes it takes so long to implement the recommendations that the circumstances have changed and the reports are no longer relevant. I refer to one report on the North-Eastern Health Board that could be impacted by the proposed changes. This report stated that GPs in County Monaghan were willing to work the accident and emergency department of Monaghan General Hospital even though no GP in County Monaghan was asked if he or she would like to work in the accident and emergency department. Given that some of the reports are obviously not based on facts, perhaps they should be covered by this new provision of the Freedom of Information Act.

Why is the Minister so keen to protect these working groups when the information should be published quickly so that everyone has the opportunity to establish what is factual? This is especially true of the manpower task forces of recent years. No recommendations of any significance have been implemented, yet they are churned out every few years.

Deputy Burton referred to amendment No. 33 in my name, which proposes in line 10 to delete "delegated" and substitute "referred". This is a technical amendment recommended by the Attorney General. I understand the Government cannot delegate matters under its jurisdiction and that the word "referred" is a superior legal formulation.

The provision concerning officials is to allow flexibility if needed for the inclusion of experts, for example, local authority officials or health board officials if required. In practice this is unlikely to arise very frequently, if at all. In answer to Deputy Twomey, the working groups to which he refers would generally not be caught under this definition of Government. A pretty stringent test needs to be applied here. The group must be set up by the Government to assist it in its deliberations at Cabinet. The groups require certifying at the time of initiation by the Secretary General to the Government.

The timing of it is also——

It depends on the purpose for which the group is established. Most groups involved in the deliberative process will be interdepartmental committees that arise from Government decisions or to assist the Government in arriving at a decision in a particular area. On occasion, outside experts may also be brought into a group on a matter which is about to be considered by the Cabinet. The position is tight. I am not directing my remarks exclusively at the Deputy. Other speakers in both Houses have either deliberately misconstrued the contents of these sections or have allowed it to be misconstrued for them. All the proposed changes in the sections relate to matters as part of the governmental process and items relating to the Cabinet. Under the principal Act, Cabinet memoranda etc. are exempt, not being released for five years. We are now extending that to ten years and people have expressed their views in that regard. All of the other changes relate to Cabinet matters and the question of what is a Government matter relating to Cabinet. One cannot simply say a group is to meet in relation to a particular departmental area. That would involve stretching the term too far. There appears to be a supposition that Secretaries General——

I regret to have to interrupt the Minister. A vote has been called in the Dáil. We will suspend now and resume immediately after the vote.

Sitting suspended at 3.52 p.m. and resumed at 4.18 p.m.

We were dealing with amendments Nos. 30 to 37, inclusive. The amendments have been moved and discussed and the Minister was in possession.

I have two follow-up questions.

The Minister may conclude the remarks he was making before the vote.

As I cannot remember where I was, I will conclude now.

To be helpful, I asked specifically about the Minister's commissioning of the Brennan report in regard to the management of the health services. Significant elements of that report have been already leaked or intimated to the media - I am not quite sure how it is done. In any case, somebody has released large slices of the report and, therefore, we broadly know the framework, the proposed changes to the health boards and so on. It is clear the operation of the health services and the relationship between the Ministers for Finance and Health and Children is a critical area for Government consideration. I am asking the Minister a specific question. It seems it is possible under the terms of section 12(e)(ii)(c) of this Bill, to which I referred earlier, to draw such a report within the ambit of the exclusion by FOI. It remains the prerogative of the Government and the Minister for Finance, as the commissioning Minister, to leak or publish in full the Brennan report. Section 12 of this Bill refers to “officials” as two or more members “of such other (if any) classes of person as may be prescribed”. The Minister has chosen not to publish the Brennan report so far.

I agree with the point that was made by Senator Mansergh and I ask the Minister to consider it. This section of the Bill is drawn up in a dangerous and invidious way. Everybody who is involved in Government now or in the future will come to regret it. The Senator rightly pointed out that the definition I have mentioned is far too wide. One could argue that a special advisor within the meaning of section 19 of the Ethics in Public Office Act 1995 comes within the definition. All Governments have advisors, some of whom have been high calibre and independent people of great experience. Others have been party people, like Senator Mansergh, of great experience. They have brought enormous resources of intelligence and experience to the operation of Government. I wish to make clear that the Labour Party is in favour of advisors. Is it right, however, that all advisors should come within the scope of this Bill? Some Ministers have had as advisors people who are essentially constituency managers, or who have stepped up from such a role, and that is fine or may be fine. Why should such people, as well as all their doings, fall within the ambit of "Government"?

I want to reiterate a second question. A number of studies were conducted in the course of the recent Abbotstown project, in which I have a detailed interest as it is in my constituency. I refer to the studies carried out by HighPoint Rendell and PricewaterhouseCoopers, which were extremely informative not only for the Opposition and the media, but in equal measure those who were in favour of the project and those who were against it. The studies were obviously extremely informative for the Government during its deliberations on the cost and likely success of the project. It seems that both of these expensive studies, which were commissioned specifically by a Minister, are good examples of the kind of matters which will be certified by any conservative Secretary General as falling within the deliberative process and the deliberation of Government. The high level group, in fairness to it, was much tighter in its approach to how this was to be defined. This Bill goes far beyond the suggested definition. I have made the case on behalf of the Labour Party and I ask the Minister to listen to the case made by his colleague, Senator Mansergh.

Regardless of the way in which a committee is set up or the actions of the committee, the deciding officer is the final arbiter of a decision. His decision can be appealed to the Information Commissioner. All matters will be the subject of a decision of the Information Commissioner, on appeal, under the 1997 Act and this amending Bill. The committees we are discussing are set up to assist the Government in its deliberations. The next section relates to the deliberative process - when it ends and when it continues - so we can put it aside for the moment. If it is clear that the deliberative process has ended, the nature of the committee to be covered by this Bill depends very much on the way in which it was set up. A committee of officials that was set up to help the Cabinet in its deliberations and was so certified at the time of its establishment by the Cabinet secretary comes within the ambit of this amending Bill.

As a matter of interest, the Brennan report was given to me this week. Other reports that are due in the health area will be published officially after they have been brought before the Government. I am not giving away any secrets by saying that is my intention.

The question of whether a committee will be included in the definition of "Government" under this Bill depends on the basis for the committee's establishment. Paragraph (e) of section 12 of this Bill, which replaces the definition of “Government” in section 19(6) of the 1997 Act, is identical to the 1997 Act as far down as “the Attorney General”. This Bill contains new provisions after “the Attorney General” in sections 12(e)(i)(b), which makes provision for “a committee of officials”, and section 12(e)(ii), which defines “officials”. The final part of the latter definition - section 12(e)(ii)(c) of this Bill - includes in the definition of an official “a person who is a member of such other (if any) classes of person as may be prescribed” by the Minister for Finance.

That is a new provision.

That is what I was saying. Everything after "and", which comes after "the Attorney General" on page 10 of this Bill, is new.

The new elements in this section include the inclusion in the definition of "Government" of "a committee of officials", appointed by the Government and certified "at the time of its appointment that it is a committee of officials falling within this paragraph" by a Secretary General. Section 12(e)(i)(b) states that a committee of officials covered by this section is one “that is appointed by the Government for the purpose of assisting the Government in relation to a particular matter that has been submitted to the Government for their consideration” and “that is requested by the Government to report directly to them in relation to the matter”. These definitions relate to the business of Government and the business of the Cabinet. The question of whether a committee is one that falls under paragraph (b) depends very much on what it was established for, who is on the committee and what the committee is supposed to be doing. As I said to Deputy Twomey earlier, if the committee relates to matters that do not qualify on that basis, it falls outside the scope of this paragraph.

I would like to continue my question——

As Chairman, I would like to make a point of clarification.

It might help if I outline my understanding of this matter, which seems to have been the source of a great deal of confusion in this committee up to now. I understand that "Government" includes——

It is on the top of the page.

The 1997 Act states that "Government" includes:

a committee appointed by the Government whose membership consists of-

(a) members of the Government, or

(b) one or more members of the Government together with either or both of the following:

(i) one or more Ministers of State,

(ii) the Attorney General.

This Bill will include "and a committee of officials" after "the Attorney General".

No. Can I stop the Chairman there?

No, I am putting the point across.

No, that is the old Act.

Let me make my point for the purposes of clarification.

I ask the Deputy to bear with me as I try to tease this matter out. When this Bill is enacted, I understand that "a committee of the Government" will mean a committee with members of the Government or one or more members of the Government, and/or the Minister of State and the Attorney General and it can have officials. I ask members of the committee to bear with me. Do I interpret this section of the Bill correctly when I say that a committee of officials, on its own and without reference to members of the Government, is not covered by the new definition of "Government"?

The Chairman is reading it incorrectly.

I understand that the existing arrangement relates to a committee, the membership of which consists of members of the Government, or one or more members of the Government, together with a Minister of State or the Attorney General, or both. This Bill will add "and" officials. I stress that it states "and" officials and not "or" officials. The point on which I seek clarification is——

It does not say "and officials"; it says "and a committee of officials".

Two committees are defined in paragraphs (a) and (b). The committee of officials defined in section 12(e)(i)(b) of this Bill does not contain any members of the Government.

Section 19(6) of the 1997 Act refers to:

(a) members of the Government, or

(b) one or more members of the Government together with either or both of the following:

(i) one or more Ministers of State,

(ii) the Attorney General.

It finishes there. Everything after "and" is a new addition in this Bill. That is why Senator Mansergh, the Information Commissioner and many public officials are very concerned.

The committee referred to is a committee of officials appointed under three headings. It is appointed by the Government for the purpose of assisting it in relation to a particular matter that has been submitted for its consideration. It is requested to report to the Government regarding the matter and the Secretary General of the Government must certify in writing at the time of its appointment that the committee is a committee of officials which falls within the remit of this paragraph. That is belt and braces stuff.

I object to 12(e)(ii)(c). That is dangerous.

On a point of order, we are jumping all over the place. We are supposed to be discussing amendments Nos. 30 to 37, inclusive, but we are in fact debating amendments up to amendment No. 51. We have alternative versions and we will find that we are repeating this discussion when we come to the individual amendments.

We have given this a great deal of time because we intended to debate the general section. Regarding the comments of Senator Mansergh, the problem is with 12(e)(ii)(c) which displays a serious lack of wisdom. The Minister’s special adviser, if he has one, may be a person of excellent merit.

I do not have one.

Many Ministers have advisers.

Technically, of the two people, I have always had, one person could be classified as a special adviser, but not a special adviser in the sense the Deputy and I would term it.

Some advisors are very high level staff, as was Senator Mansergh. They are part of the workings of Government. Other advisers are essentially constituency managers. It is unwise to decide to include them as part of Government as it fundamentally changes the nature of the public service. The Minister will regret this down the road. That is what Senator Mansergh was saying.

I accept that I might have stretched my definition of a working group. I will wait until we discuss section 13 as my question depends on the time factor.

At this stage we have had over two hours on these amendments and I want to bring discussion of them to a conclusion.

We have not had two hours on these amendments because we have been debating different amendments. I wish to have a few points of clarification from the Minister. Regarding the ability of the Information Commissioner to revisit these issues, am I wrong——

An appeal can be made to the Information Commissioner.

Am I wrong to think that when we change the word "may" to "shall", the Information Commissioner on appeal cannot deem a superior public interest in releasing a memorandum of Government?

There is no public interest and there never was in relation to Government memoranda.

There was.

There was not in relation to Government memoranda.

Not in the Minister's view, but in the view of the Information Commissioner it was fair to say there was. I quoted the section earlier. The commissioner has said that this has led to the perception among some decision makers, including the Minister for Finance, that the section 19 exemption is mandatory in its entirety.

Section 19 of the principal Act does not include the public interest test.

It uses the word "may" which indicates discretion.

That is section 19 as is, not our section 19. I mean section 19 of the principal Act.

It uses the word "may" which means that a head may refuse, but is not obliged to.

The Deputy is thinking of the public interest. It is a separate question and we are dealing at cross purposes.

The first amendment we are dealing with is my amendment to paragraph (a) of your——

We will not get confused about it. Deputy Bruton mentioned the public interest. Regarding Government memoranda, the public interest test is not in the original Act, nor is it in this Act.

It is implicit in the Act because the word "may" is used.

It is not and it was left out deliberately in 1997 in relation to the deliberations of Government. The Deputy can check that with former Deputy Eithne Fitzgerald. Deputy Burton, who is quite expert in the Freedom of Information Act, can confirm it. The public interest test does not apply to matters relating to the deliberation of the Government and it was never intended to do so.

Can the Information Commissioner decide that a committee certified by the Secretary General of the Government has been inappropriately certified and that it is in the public interest that information be released? Otherwise, is there a point to the Minister telling us that all decisions can be appealed to the commissioner.

They can be appealed.

Not successfully.

They can be appealed, but we are changing the definition for the purposes of clarity by changing the word "may" to "shall". In future, the head shall refuse to grant access to records which makes the provision quite definite.

Is that also putting——

Let me be clear that it is the intention behind this change and I make no bones about it.

Then why is the Minister talking about appeals to the Information Commissioner?

All decisions relating to any part of the Act can be appealed to the Information Commissioner.

That is not true.

Only within the interpretation of the——

Perhaps the Minister should seek the advice of his civil servants. The new Bill takes away the right of appeal in certain cases. He is correct about Government deliberations.

Not under section 19, which relates to deliberations of the Government. Regarding the next section, which pertains to the Secretary General, the provision is final and conclusive.

The two are inextricably linked.

They are not.

They are.

The question is when is the deliberative process over and when is it ongoing. We are introducing a new section to make it categorical that the matter is subject to certification by the Secretary General. That is not open to appeal, but the provisions created by the amendment to section 19 are open. The amendment provides that the head of a Department shall refuse to grant a request. That change is deliberate.

The Minister has changed the word from "may" to "shall". What possible function would an appeal serve if the Secretary General of a Department is required by the use of the word "shall" to refuse to grant access?

The Deputy has mixed up the sections. The provisions relating to Secretaries General of Departments and the deliberative process are dealt with in the next section of the amendment Bill. This section relates to the Secretary General to the Government who certifies that a committee is a committee under the Act. The next section relates to the Secretary General of a Department referring to the deliberative process within his particular organisation. This section relates to what is generally referred to as the Secretary General of the Government who is usually referred to as the Cabinet secretary. At the present time that is Mr. Dermot McCarthy.

I need protection from interruption to make my point.

No interruptions.

According to the original section 19, a head may refuse to grant access. In the new section 19, a head "shall" refuse to grant access to things the section goes on to specify he must. It is very clear that in the original Act there were two categories of record relating to meetings of Government. In the case of one category, it was provided that the head "may" refuse which implied that he could release material. In terms of the second category of records, the Bill provided that the head "must" refuse to grant access. The second category of record relates to records which infer the views of a Minister which should be presented to Cabinet.

There is a very clear distinction in the original Act between the two types of record that refer to memoranda of Government which is why the Minister was wrong to suggest that there was none. The Information Commissioner is correct when he states on page 51 that there has developed a perception among some decision makers, including the Minister, that the provisions of section 19 make exemption mandatory. It is only mandatory in regard to records that infer the substance, in whole or in part, of a statement a Minister intends to make to Cabinet. That is the crucial issue. The Minister is making everything obligatory and he is ruling out all access to records with the result that the notion of an appeal to the Information Commissioner is of no value, contrary to the Minister's contention. There are no grounds on which the Information Commissioner can overrule the Act as amended by the Minister.

The provision betrays the fact that the Minister came to the committee believing something that was not the case. Those around him, including the high-level group, gave the Minister and us to believe that this was a mandatory protection. It was not. There was always a presumption in favour of openness if the public interest was better served by it. A public interest clause may not have been inserted, but a very clear distinction was made between records which "may" be released and those which "shall" not. There is a category of records that can be released. There is no doubt that the Minister is rowing back on that provision, of which he seems to be proud. The defence he has offered that an appeal can be made to the Information Commissioner is incorrect.

My other question——

On the Deputy's first point——

I will ask two questions at once to save us both time. The Minister has dismissed amendments Nos. 32 and 34 in which I seek to narrow the types of records from committees and communications between Ministers which will be exempted from the requests to make them much more explicitly connected to discussions which take place in Cabinet. The Minister has not provided a reason for not ensuring such communications are more closely tied to Cabinet discussions.

The amendments would allow the Minister to protect communications he has with other Ministers on imminent decisions and such protection would apply for five years. They do not allow him to throw the blanket wider by giving a list of subjects under consideration by Government. He would not, for example, be able to argue that because the Estimates are being considered by the Government, all communications between Ministers are effectively protected. I am trying to narrow the focus, while providing the protection the Minister seeks with regard to genuine committees. However, he does not seem to be prepared to give any succour as he continues to oppose the amendments.

The Deputy is correct. A clear distinction is made between subsections (1) and (2) of section 19 of the principal Act. Subsection (1) states a head "may" refuse to grant a request. We propose to change the word "may" as the question of whether a record fulfils the criteria set out in the subsection is too open to debate and confusion. Section 19(2) sets out the grounds on which a head shall refuse to grant a request. It is mandatory to refuse a request where the information sought relates to meetings of the Government or matters connected thereto. I propose to substitute the word "may" in subsection (1) with the word "shall". This would give each subsection the same standing, thus ensuring there is no confusion. We are deliberately making this change.

The Bill contains a right of appeal. For ease of reference and in order to avoid confusion between the position of the Secretary General to the Government and the Secretaries General of Departments, to which the next section refers, the former will be referred to as the Cabinet secretary. The Cabinet secretary is the person who must certify at the time a committee is being established whether it is a committee within the definition set out in the Bill. This decision can be appealed to the Information Commissioner and if it is found to be wrong, all relevant information from the committee in question will be released.

The Minister gave the impression that everything could be appealed. The only matter which can be appealed is the decision of the Cabinet secretary on certification.

It will be the job of the Information Commissioner to decide if the Cabinet secretary is wrong.

Let us take as an example a letter from the Minister to the Minister for Health and Children concerning the failure of the latter to comply with the spending allocations in the Estimates. Under this legislation, the Minister could refuse to release the letter by offering the defence that the issue to which it related - public expenditure - is being considered by Government.

I do not make such decisions.

I refer to the head of the relevant section rather than the Minister.

The deciding officer in the Department to which the information request is made will make that decision in future.

If he rules that the matter is under consideration by Government——

If he rules that the request relates to ministerial correspondence relating to a matter that either is or will be on the Cabinet agenda, he will, under the amended Act, refuse the request. Such a decision would, I presume, be appealed by the requester to the Information Commissioner.

The Minister is not willing to accept my amendment which would change the vague term "under consideration", which could cover almost anything, to matters which are specifically before Cabinet.

The Act was passed after the Deputy left office. I brought it into effect in 1998 at which point only some 60 bodies were covered by the legislation. Since then, many more have been added and some 370 bodies are now covered. Presumably, the Deputy's party will be in Government again some day. Decisions are made by the officer in the relevant Department without reference to anybody else. As such, I never know about decisions on freedom of information requests.

The term "under consideration" is very broad.

From my observations of the material released into the public domain, it appears my Department goes out of its way to ensure requested documents are released. This does not cause me problems.

Why then is the Minister changing the legislation?

I am changing it for the reasons I gave on Second Stage and on many occasions during this debate. The Government is entitled to order its business in the best possible way. The Freedom of Information Act has led to officials in all Departments being cautious about putting their views on paper and frequently refusing to express their real views in writing because they wonder how they will appear if released under freedom of information legislation. There is also another class of officials - rare I hope - who like to get other officials in their respective Departments into trouble. These developments have led to a less than frank exchange of views at all levels. The Government is entitled to get the best views possible from all its officials without intimidation. Officials, not just Ministers and politicians, do not want to read their views on certain matters in the media a few months after the event. Anyone who knows the real world, knows this to be correct.

There is a great deal of hypocritical comment about this legislation.

The Minister should give examples.

The main offenders in this regard are Members of the Oireachtas whom I have heard during meetings ask whether minutes would be taken and, if so, whether they would be subject to the Freedom of Information Act. The same Deputies and Senators have described the proposed changes to the Act as terrible. The next time they come to the Department of Finance in a deputation, I will make sure officials remain in the meeting and minutes are taken. We could then hear what they have to say. This is a fact.

Deputy Twomey has not known me for long. While I can tolerate nearly anything, I despise hypocrisy which seems to be endemic across politicians of all parties.

What the Minister is describing is incompetent public service management. I am well used to exercising due natural caution and do not ask people to go out on the barricades. If the Minister is implying that senior civil servants are afraid to commit their view on matters of public expenditure to paper, it is no wonder the country is such a shambles. It would amount to a disgraceful dereliction of duty. The Public Service Users' Network has highlighted the need for record keeping.

I shall give an example of the mindset we are discussing by quoting from a letter from one civil servant to another which recently came to my attention:

Can I remind you that the Secretary General's brief for the Public Accounts Committee in early February will be subject to FOI and that a number of the 1999 Public Accounts Committee briefs of other Departments have already been sought and released to journalists.

As the Minister just stated, he and a number of his colleagues have a fairly open attitude to giving information, whereas a number of others are so tight with information they would not give their confirmation date. The letter continues:

If there is anything particularly sensitive that you wish to bring to the attention of the Secretary General in advance of the Public Accounts Committee examination, please do so separate to the formal briefing being prepared for him. If we are asked to release the brief under FOI, we would hope to be able to do so in its entirety.

This is an example of a civil servant being honest and cautious. Is it the kind of dilemma the Minister mentioned but is afraid to describe?

Surely the purpose of all this is to ensure the best decisions are made after taking the best advice. Both society and Government have moved on. Government in 2003 is different to what it was in 1933. Does the Deputy believe that better decision making in Government will be served by having all of these things open to everyone so that people will be looking over their shoulders as they do their work? It is a fact that people do so.

Does the Fine Gael Party believe that records of their Front Bench meetings should be kept and released, as the party is a fundamental part of the democratic process? Does the Labour Party believe that its meetings, which are also a fundamental part of the democratic process, should be open to scrutiny? Does the Sinn Féin Party hold the same view in regard to minutes of its Ard Comhairle meetings, after the deliberative process? I do not think so. Parties are entitled to make their decisions in privacy.

It is not the same thing. They are not spending public money, which is the essential difference.

Since I became Minister for Finance quite an amount of public money has gone towards funding Deputy Boyle's party, and that of the other Deputies - more than under any other Minister for Finance.

And there is accountability built into that.

In the case of the Labour Party, we have a very clear accountability process.

Let us not go down that road. I believe that the answer is to get the best result. I am the man who has implemented FOI since 1998 and I know from my experience of it that it has led to bad record keeping. People are reticent because of it. I agree that there was too much secrecy in the way business was conducted in the past, but going completely the other way does not lead to better decision making either. A balance needs to be struck between the two. We have learned from the experience of the past five years. The Act was due for review and we proposed certain changes. It will be reviewed by another Government at some future date and it can make its own decisions. I am satisfied the decisions we are making in the Freedom of Information (Amendment) Bill are correct for this time. I am perfectly happy with them.

The Minister's analogy is incorrect, when he speaks about opening the decision making process of Government being akin to having available the records of political parties' Front Bench meetings. It is not a fair comparison.

We are not even talking about having the records of the Fianna Fáil Party put on public display. We do not need to know how it does its business. We do not need to know what is happening in the parliamentary party meeting today, whether Deputy McGuinness is being clapped on the back or being told he is a bold boy. We are not looking for that kind of information. Decisions taken by political parties do not involve the expenditure of public finances in the same way as decisions of Government. They are so different that the two cannot be compared. The Minister has said this in the Dáil as well, that it is like opening up the party to scrutiny. It is ridiculous.

No, that was the Tánaiste, Deputy Harney.

I did not say it in the Dáil before. It is my first time to say it here.

Deputy Harney said it almost word for word.

It is not a correct analogy. If the Minister thinks that the Government is operating like the Fianna Fáil Party, the Fine Gael Party or any other party then he has a misconception of his responsibilities as a Minister and member of Government. This is a distorted view of democracy.

The Minister has taken up the challenge in a more exercised way at this late stage in the discussion. He has implied that better Government will result from the amendments he proposes but he has never given us an instance over the past five years where decisions have been taken that were——

Before Deputy Ó Caoláin goes any further——

Allow me to finish.

The Deputy is not the first to bring up this point. Deputy Bruton, in particular has focused on it. I am aware that I may do some extraordinary things, and have done so in my career, but does the Deputy think I am daft enough to list out now things that we did not think were good on account of freedom of information over the past six years? Some people might portray me as daft, but does the Deputy think I am also a certifiable case?

With all respect to the Minister, if he can hold back for one moment——

With all due respect, if Deputy Bruton, who has made more of a point of this than Deputy Ó Caoláin, thinks I or any other member of the Government are nearly ready to be taken away, that I am going to list out examples, then I must ask if he is really serious.

The Minister may——

He should think about it for a moment. He wanted an answer. Furthermore, does the Deputy think that any civil servant going before a committee if asked what he did not put down, would say "Oh God, I should have put . . . but I did not." Does he think they are so bananas that they would do that?

I asked the Minister a question.

Have the aliens come and taken all the Deputies away? Am I the last man left here?

I asked the Minister a question. Has the Minister withheld information from a Cabinet memorandum because of these provisions? He need not tell us the detail.

Let me touch the Deputy to see if he is a real person.

Is it naiveté——

No, but it is very dodgy Arabic.

I asked the Minister a question which he refused to answer and now he chooses to answer it in this rhetorical way. Has the Minister spiked memoranda - withdrawn material from them - because of the fear that they would be exposed?

The Minister interrupted me when I had the floor. I heard his bellicose response but we all have an opportunity to question him. This is the closest he has come to acknowledging that perhaps he has made daft decisions. He acknowledges how daft he would have to be to outline them here. I have no doubt that there is quite a list of them, and not all of them are confined to the absence of commitment to the promises outlined in the manifesto prior to the last general election. He has inferred time and again - he was quick to point to higher ranking civil servants - that they felt compromised and inhibited by the presence of the Freedom of Information Act 1997.

He pointed to Deputies on the Opposition benches and spoke about hypocrisy. He should name them. He said they asked him if certain meetings would be subject to the rigours of FOI but he has not acknowledged this reality in regard to his Cabinet colleagues and his own role and function in Cabinet. How can he attempt to draw an analogy with political parties? We are not talking about the Fianna Fáil parliamentary party, the Ard Comhairle of Sinn Féin, the national executives of Fine Gael, the Labour Party or anyone else. We are talking about Cabinet, about Government - the people entrusted on behalf of the public to carry out the specific function of governance and control over public finances. The Minister is accountable under the FOI and that is the key point.

Under the Constitution, the Government acts collectively.

He is accountable to the public under the existing Act which he is admitting more openly now, by his defensiveness in terms of how daft we may think he is, but we will ignore that question for the moment. This is all about closing off access to the deliberations of the former Government elected in 1997, before the April 21 deadline. The Minister acknowledged that here today. That is what it is all about - lowering a shroud of secrecy over the records of the engagement of Cabinet and the flow of information to Cabinet. What is being created is a conveyor belt to allow for a whole raft of detail and documentation to go past the eye of Cabinet, or across the Cabinet table, and for the Cabinet secretary, as he would to prefer to refer to that individual, to authorise that such a document cannot be released as it falls within the remit of Cabinet documentation. That is the bottom line and the reality. The Minister is endeavouring to defend the indefensible.

I am not sure if Deputy Ó Caoláin is naive but it is a bit rich for him to be talking about a shroud of secrecy. I know there are a few families around the country that would like to get some information from him, his party and his colleagues.

It is a democratic political party and we are quite prepared to account for our deliberations openly and publicly, as we do at successive elections. That is why I am here.

One aspect of the changes being introduced concerns whether Ministers or officials would perform better under the present legislation than under amended legislation. Obviously, the Government has taken stock of the legislation after five years and feels it has deficiencies. Also, the expert group charged with evaluating the matter came up with the same conclusion. I have never been in Government but I have been in the Seanad and the Dáil for some time and feel it is vital that the views of people who might argue against a decision at a Cabinet meeting for one reason or another should not warrant media attention given that Cabinet decisions have collective responsibility. The same applies to officials. If the best advice committed to paper is to be available to Ministers, there should be protection for officials. They do not want to be exposed to ridicule if they give advice on a particular issue which is not accepted on a collective basis at a later stage.

Is today's debate about good government or about having the Government sit in the Phoenix Park with everybody listening to the proceedings and all the advice? If that is the type of government we are to have, nothing would get done. I remember some past Cabinets that sat all night and day and which sent for chicken and chips and other things because they could not make a decision. At least we have a proposal that will allow Government to make decisions. It is in the best interest of Government, which is in the best interest of the country.

Regarding the restriction on gaining access to information for five years, is it not ten or 20 years in every other country where there is a common law system? I heard Sweden being touted by several members of the Opposition in respect of Cabinet memoranda, but there are no detailed memoranda or minutes kept of Cabinet meetings in Sweden. That was questioned here on a previous occasion and that is why I reiterate my point today. A decision has been made after a five year analysis of how FOI applies to Government and how it is perceived to interfere with decisions and with the opportunity for frank and honest discussion between Ministers and officials. The expert group has come forward with the same proposal. Certainly, it is courageous and proper that the Minister has come forward with his proposal, which is in the best interests of good government in the longer term.

We are getting to the main point as to why the Minister is so uncomfortable with freedom of information and why he is trying to restrict it. He should remember that collective responsibility of Cabinet means collective responsibility and accountability of Government to Parliament. Deputy Finneran and the Minister have implied that they wish to escape from scrutiny and accountability. The Minister is trying to sell the idea that doing away with effective scrutiny and accountability in relation to Government decisions is somehow helpful, which it is not.

I remind Deputy Finneran that there are no detailed records kept of Irish Cabinet discussions. There are records kept by the Cabinet secretary of Government decisions, not of Cabinet discussions. Everything that happens in Cabinet, where Ministers are free to speak their minds, is absolutely privileged on grounds of Cabinet confidentiality and was fully protected by the then Minister of State, Eithne Fitzgerald, in the Freedom of Information Act 1997. Let us not cod ourselves in this respect. The Minister is trying to set up a system whereby the Government can avoid scrutiny and accountability to the Parliament, which is elected by the people. That is the thread running through the argument.

Furthermore, the Minister has still not answered my question on the Brennan commission, a committee of experts established by him to scrutinise the chaos in the health services. Under his proposal, it will be possible to extend the definition of Government to include the workings of that committee. He or his spin masters may continue to be free to publish, leak or disseminate parts or all of the Brennan commission report if they choose to do so, but if the proposal goes through under the section to which Senator Mansergh and I objected, the Government, the Cabinet secretary and Secretary General of a Department will be able to co-opt the work of the commission into the work and deliberations of Government under sections 12 and 13 of the Act.

The second question the Minister refused to answer concerned the fact that this country was offered an option by the previous Government of spending about €1 billion of taxpayers' money on the project at Abbotstown. There were different views in and out of Government on the wisdom and cost of that project. The PD candidate in my constituency had a button published for the election with a photograph of a toilet. The slogan on which the Progressive Democrats ran in Dublin West was to flush Abbotstown out of the political system and down the toilet. There were varying views on the Taoiseach's proposal for Abbotstown and there were people madly in favour of it who felt it could not be big enough.

Through the efforts of the media, studies were published under FOI by both Pricewaterhouse and HighPoint Rendel. The Government could have chosen to publish them or leak them at any stage but the point is that there was no capacity for real scrutiny or accountability to the Dáil or public about the cost of the decision on the project or the wisdom, or otherwise, of making it. If this Bill goes through, the Minister will obstruct the capacity of the media and the Parliament to scrutinise future decisions in the same vein. Such decisions will be difficult to make, but the more information that is available the easier it will be. The Minister is restricting freedom of information.

I want to move on because there has been much repetition and points have been well made. However, I want to clarify the Deputy's statement, made on a couple of occasions, that the Brennan commission could be covered. The commission is already established——

I am giving it as an example of an important committee established by the Government and it is not in paragraph (a) or (b) or in any of the things on page 10 until one gets to (c).

To clarify for the Deputy, to qualify for that, the Secretary General to the Government must certify in writing the committee officials at the time of its appointment. This provision did not exist when the Brennan commission was established.

My point is that it will exist in the future.

Future reports, not the Brennan report. The Deputy continually refers to the Brennan report.

I am giving it as an example of important work, commissioned correctly by the Minister, to find out about the shambles in the health service and trying to lighten the darkness for the Minister for Health and Children.

Committee officials must be appointed by the Government, not by Ministers. Every report mentioned here has been appointed by Ministers and does not fall within the ambit of what is in front of us. Unless the committee is appointed by the Government it does not come within the ambit of this section.

Can I refer you, Chairman, to your re-reading on page 10, subsection (b)(ii) refers to a committee of officials, “that is requested by the Government”, or in subsection (b)(iii) a committee of officials, “in relation to which the Secretary General to the Government certifies in writing”. The definition there is as long as——

Subsection (b)(i) also states, “that is appointed by the Government”. It must be appointed.

They are self-reinforcing and mutually exclusive, as they have to be.

The Deputy has forgotten the word "and".

The section states, "and (ii) by adding the following definition: " 'officialsmeans . . . "

This includes part (c) and Senator Mansergh pointed out the danger of it.

I am closing the discussion on this point. It says that a committee of officials that is appointed by the Government is requested by the Government and is certified at the time of its appointment by the Secretary General. All three issues must be complied with. We have had a long discussion and repetition is occurring. The points have been well made and there are other amendments to be discussed in this section.

The Minister has not answered a point——

I have answered ad nauseam.

I have clarified the matter and will not allow the Minister to answer it as I have already done so. The Deputy referred to the Brennan report and I have clarified it.

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Caoláin, Caoimhghín.

Níl

  • Finneran, Michael.
  • Fleming, Sean.
  • Lenihan, Conor.
  • McCreevy, Charlie.
  • McGuinness, John.
  • Nolan, M.J.
  • O’Keeffe, Ned.

I move amendment No. 31:

In page 8, paragraph (a), to delete line 41.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 32:

In page 9, lines 3 to 6, to delete all words from and including "matter" in line 3, down to and including "Government" in line 6 and substitute the following:

"particular matter which has been submitted to the Government for their consideration, and which communication contains the whole or part of a statement made or to be made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement".

Amendment put.
The Committee divided, Tá, 5; Níl, 7.

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Caoláin, Caoimhghín.

Níl

  • Finneran, Michael.
  • Fleming, Seán.
  • Lenihan, Conor.
  • McCreevy, Charlie.
  • McGuinness, John.
  • Nolan, M. J.
  • O’Keeffe, Ned.

I move amendment No. 33:

In page 9, paragraph (a), line 10, to delete “delegated” and substitute “referred”.

Amendment agreed to.

I move amendment No. 34:

In page 9, line 13, after "matter" to insert "and contains the whole or part of a statement made or to be made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement".

Amendment put and declared lost.

I move amendment No. 35:

In page 9, to delete lines 15 to 18.

Amendment put and declared lost.
Amendment No. 36, by leave, withdrawn.

I move amendment No. 37:

In page 9, paragraph (b), line 19, to delete “(2)(b)” and substitute “(2)”.

Amendment agreed to.

We will suspend the sitting for the Dáil division and resume at 6.30 p.m.

Sitting suspended at 5.25 p.m. and resumed at 6.30 p.m.

Amendments Nos. 39 and 40 are alternatives to No. 38 and Nos. 41 and 42 are mutual alternatives and are related. We will discuss Nos. 38 to 42, inclusive, together. I ask people to keep the debate focused on the wording of the amendments before us. We had a wide-ranging discussion yesterday and today and if we discuss only the amendments from now on we can make some progress.

This is like a little race - perhaps the Minister will open a book on it. One amendment is for five, another is for six, another is for seven - I am wondering who will convince us.

We will see.

I move amendment No. 38:

In page 9, line 32, to delete "10" and substitute "6".

I outlined the reasons for my amendment earlier. The Ministers entered this Government knowing that at the end of five years they would be subject to public scrutiny of their decisions. It is in the public interest that such scrutiny should occur because this ensures that decisions will be taken on the basis of the best advice, because Ministers know they will be held accountable for them. They will want to ensure that they obtain best advice and that they take decisions on grounds that stand up to public scrutiny. This five-year rule, far from being a burden on Cabinet, as the Minister and others seek to portray it, is an advantage, ensuring better public decision making.

As we know, Cabinet discussions are absolutely protected. There is no change in that, so discussions in Cabinet will have indefinite protection. The Minister's attempt to draw analogies with the front benches of political parties shows that he does not quite understand the protection he already enjoys. All his discussions at Cabinet are fully privileged and can never be discovered. That is as it should be.

It can be seen that it is doubly important that we stick to the five year rule when one considers the significant extensions the Government is seeking to make: to go far beyond Cabinet, which should still be covered by the five-year rule, so that committees not comprising any members of Government - the Chairman thought, in error, that all committees would include members of the Government - will be defined as Government and have the same ten-year privilege. This is wrong. It is not good for the taxpayer, who ultimately pays for all the advice, time, consultancies and independent experts involved. I am disappointed that the Minister has not seen fit to tie down these definitions in a much tighter way in this and later amendments.

The five-year rule is for the good of the country. It is better that decisions are made subject to public scrutiny. It is right that Ministers who have been working under this obligation should now honour it. There are many who feel the Government has pulled the wool over their eyes and they see, rightly, that this is an effort to bury the evidence after fooling the people in the run-up to the election. What the Government seeks to do is a mistake. It is not good for governance, nor for political accountability. For all these reasons, we should stick to the provisions of the Act, which, as my colleague Deputy Paul McGrath pointed out, were deemed to be a fig-leaf and totally inadequate by the Minister and his colleagues when first introduced.

I differ from Deputy Richard Bruton as I can see an argument for changing the period from five to ten years. We should put ourselves in the Minister's position and ask if we would like information to come out from only five years previously. I have a problem, however, with the broad definition of Cabinet work.

Prior the Freedom of Information (Amendment) Bill coming before the committee, I had little knowledge of the Act. I was singled out as a hypocrite by the Minister and I would like to make it clear that I had never met him previously and had never asked what was covered by the Freedom of Information Act in conversation with other Ministers.

I singled Deputy Twomey out because he has not been here long enough for me to form an opinion of him in this area. I take him at this word that he is not a hypocrite.

I do not want the limited information that might come out in a few months to be misconstrued.

The purpose of amendment No. 38 is to give the Minister a final chance to extend the Act for one year to allow for the deliberation and consultation that must take place. The Minister's argument, however, was interesting. I do not know if it was accidental or because there has been a meeting of minds, but his arguments about political parties were almost word for word what the Tánaiste said about the Labour Party in her contribution.

Deputy McGuinness got it right.

When the Labour Party Private Members' Bill was introduced to allow for the one year delay, the Tánaiste got unusually heated about why the full proceedings of the Parliamentary Labour Party and its national executive were not fully open and available. The Minister is a friend of the Tánaiste and they must have discussed this to have such coincidentally similar language.

The high level group said that the disclosure of arguments and views contained in Cabinet papers, other than on a historical basis, would lead to Ministers opting to convey those views during discussion at Cabinet where they would enjoy absolute protection. The Labour Party is like the Cabinet - discussions, unless they are open, are confined to those who attend details of decisions and resolutions are then published. That is what all political parties do and in Cabinet the same protection exists, the 1997 Act copper-fastened that.

It is also protected in the Constitution where, along with the notion of collective Cabinet responsibility to Parliament, there is the notion of the confidentiality and collegiality of Cabinet to make for efficient working. No one in the Opposition disagrees with that. We are asking why memoranda and advice to Cabinet should not be released within a reasonable time, designated in the Act as five years after deliberation.

I agree with the Minister that many things have changed in the State, some good and some bad. The State is more economically prosperous. We routinely talk about the Government spending billions of euro. The Taoiseach gave €9 billion with an increase of €1 billion in spending to health this year. If we are to get a transport system for Dublin God knows how much we are talking about. To allow for scrutiny and accountability, it is vital that the memoranda and written advice that form the basis of Cabinet decision making should be available.

In Eamon de Valera's Ireland, nothing ever happened and it could be asked if it mattered if material came out in five, ten or 20 years because everything stayed the same, but things have changed. There are significant changes in the economy in five to seven year cycles.

I ask the Minister to keep the five year provision or to accept the Labour Party's generous offer of an extension of a year to allow consultation to take place.

In moving amendments Nos. 40 and 42 my inclination is not only to leave the five year period in the Bill, but to reduce that period. Deputy Finneran talked about the inadequacies of the Swedish system but freedom of information legislation allows Swedish citizens to view mail sent to the Swedish Prime Minister the day it is received if it is in connection with his office.

It is obvious the Minister is determined to change the five year period. He has already rejected the Labour Party Bill that would have allowed for a one year delay. I have tabled an amendment to see if he believes the ten year period is the optimum or if consideration can be given to a shorter time period. I suggest a period of seven years and hope the Minister is similarly inclined.

I will not accept amendments Nos. 38 to 42. The basis for moving from a five year to a ten year period of protection for Government records should be clear. The high level group identified very clearly the harm that would be caused to the process of collective Cabinet decision making and effective Government if Cabinet records were released within a relatively short period of time. I am fully satisfied that the arguments in favour of a longer period of protection far outweigh the arguments in favour of retaining the existing five year period.

The Government could have decided to adopt a much longer period. Support for a 15 or, indeed, a 20 year limit can be found overseas. That the Government chose not to go beyond ten years demonstrates its desire to strike an appropriate balance in the Act.

Democratic government has come a long way since its origins in the city state of Athens, when individuals partook in direct democracy by voting on every issue. Due to the complexity of government over the centuries, a system of parliamentary democracy has evolved in the west. A cornerstone of such democracy is a system of cabinet government and a doctrine of collective responsibility.

The demands on modern Irish Governments are immense. Apart from the pressures arising from the myriad national issues requiring resolution, there are the added dimensions of our membership of the European Union and the peace process in Northern Ireland which place significant demands on the members of the Government. In order for the Government to function efficiently and effectively, therefore, it is essential that memoranda submitted to Government for decision contain well developed arguments from the sponsoring Minister and his or her Cabinet colleagues in an open, frank, candid and robust fashion. We no longer have the luxury in Cabinet, as we did in Eamon de Valera's time, of lengthy Government meetings which do not conclude until their is unanimity around the Cabinet table on all issues. Such lengthy meetings also took place during Dr. Garret Fitzgerald's time as Taoiseach. One of the most entertaining books I have read is Gemma Hussey's diaries of her time in Government. Eamon de Valera used to keep Cabinet meetings running forever until a consensus was reached. We would never get anything done nowadays if that was still the case. Cabinet meetings would run as long as this committee meeting if we allowed that to happen.

Due to day-to-day pressures on Ministers, it is essential that Ministers attending Cabinet have access to all the arguments prior to attending the meeting so that decisions can be taken without the need for lengthy discussion. I do not wish to see a return of the practice in the 1980s, long before the Freedom of Information Act 1997, when a number of memoranda submitted to Government stated that the Minister would make his or her views known at the Cabinet meeting. The high level group of Civil Servants were of the view that the present five year limit was an inhibiting factor on a frank exchange of views and recommended a ten year limit. The Government agrees that ten years is a reasonable timeframe and is liberal by international standards.

Sweden has been mentioned by Deputy Finneran, so I will tell the committee how they get around to making Government decisions in Sweden. I have before me a Swedish report, which states:

It is the practice of Ministers who are not otherwise engaged to meet daily for lunch in the Prime Minister's dining room. In practice, much of the consultation of Ministers takes place in this forum. No record is kept of these lunch time discussions.

That is how they make decisions. There are no such things as memoranda and no way to work out what the views of Ministers were.

In Sweden, people know that a meeting is taking place and who is at the meeting. That is the beauty of the Swedish model.

I have been at one of those meetings in Sweden, and I can tell the Minister more about it.

That must be a great consolation to everybody.

The Minister is trying to laugh this off as if it is not a serious issue——

I wish to conclude one point and will then give way to the Deputy. I deliberately refrained from making available to the committee the views of other members of Government relating to the Freedom of Information Act 1997.

Is the Minister referring to members of the current Government?

No, members of the rainbow coalition Government of Fine Gael, Labour and the Democratic Left.

This is totally irrelevant. The Government took a decision. I do not know what those views are which the Minister refers to and do not care because they are a total red herring. The Minister believed——

The Deputy was a member of that Government.

I am unaware of the views to which the Minister is referring. The Minister is attempting to use bluster and bombast——

Not all members of that Government were delighted with the Freedom of Information Act 1997. Deputy Bruton will certainly know that because he was a member of the Cabinet.

The only thing the Minister knows about is shouting down his opponents when he is uncomfortable. The Cabinet took a unanimous decision during the rainbow coalition Government to adopt the Freedom of Information Act 1997, and they are the rules under which the Minister was elected to serve. Why did he not discover until the end of his period in Government that this was such a harmful and burdensome system that was destroying the operation of Government? He did not discover that because it did not happen.

The Minister came in here bombastically refusing to admit to his mistakes. However, when his civil servants were asked if they had any experience of memoranda in which Ministers were not willing to offer their views, they said they had no such experience. Each of the five Secretaries General on the high level committee indicated that there was no experience of Ministers suppressing what they would allow to go into memoranda because they were afraid of the information being revealed five years later. There was no evidence of that nature or evidence that Government was taking inordinate lengths of time during the last five years. There is no substance to the Minister's arguments.

The reason he discovered in June 2002 that things were different was that he realised he now had a massive majority and could bully his way towards suppressing information about gross errors and mistakes that were made. He was unwilling to abide by the law of the land that applied throughout his period in Government and wanted to slink away from his obligations under law. With the majority he found himself with in June 2002, he was willing to ram this legislation through. The Government did not express this as an issue when seeking a mandate from the electorate in May 2002. It was not mentioned in the programme for Government. No public view was sought on this issue, either before or after the election. If he could have avoided it, the Minister would have had no discussion in the Dáil either. He did not want to facilitate the sort of discussion we have had in this committee. This is an example of the worst type of legislation. Even the Minister would note that legislation on which the public has not been consulted is bad legislation. It is a denial of what a democratic legislature is about. The Minister is harking back to ancient Athens to seek justification. He might have learnt from history that ramming through legislation on the back of a majority and without consultation does not constitute proper democratic accountability. I do not accept the Minister's arguments.

Cabinet meetings will go on forever, according to the Minister. There is no evidence that this has happened in the last five years, and the Minister has not offered any evidence. He comes here and says he would be a fool to give any examples, but his senior civil servants do not have the same reticence. They have said there are no such examples.

Deputy Bruton is a sound man in a general sense but he has taken leave of his senses. Does he really think that any senior civil servants would come here and say that, yes, there have been instances of that?

The Minister is expecting us to accept that the public pay for his unwillingness to abide by the rules under which he was appointed. He comes here and expects the Oireachtas to roll over and say the Minister is doing a great job and that we all want things to be done in secret for the next ten years. That is what he wants us to endorse, but it does not deserve endorsement. He has offered no evidence that Cabinet is burdensome, cumbersome or unable to reach decisions. He has offered no evidence of any decision by either the head of a body or the Information Commissioner that has been damaging to good governance. There is no basis for this change other than a political motivation.

The only people the Minister knew he could go to and rely on getting the sort of views he wanted to hear was a group of his own senior advisers, so that is who he went to. They are undoubtedly people of integrity, but they are not independent when it comes to deciding what records should be made available to the public. They represent one side in that transaction, not the two sides. This is a political stroke for which the Government did not seek a mandate. It did not include it in its programme for Government. Neither was it in the Fianna Fáil Party election manifesto. The Government did not cry foul at any time during the five years that this legislation was in operation to indicate that there was a real problem or that the Oireachtas had to act because Government was grinding to a halt. There was no indication of that sort, not a whimper until that fateful day in June, the same day on which the Government discovered that the money to pay for election promises was gone. It then suddenly discovered that it had to suppress people's rights to information. That is the long and the short of it.

No evidence has been offered to in any way dispute the fact that this is a politically motivated change driven by the short-term need not of the Minister for Finance, who is willing to stand over his decisions, but of other Ministers who do not want to be subjected to the sort of the scrutiny that the public ought to demand of Ministers.

I would like to go back to Athens also. It was Percules who said that although only a few may originate policy, we are all able to judge it. That was the Athenian concept of policy making. Article 28 of the Constitution provides that the Government is responsible to Dáil Éireann. It establishes the collective authority of Government and extends the principle of confidentiality to discussions of meetings of the Government.

The Minister has agreed that modern Government has changed. The key change in modern Government was in many ways brought about by the Labour Party and Fianna Fáil in their coalition Government of 1992 to 1994. Labour Party leader Dick Spring had experienced Garret FitzGerald's Government of the 1980s, when people did send out for chicken and chips late at night at Cabinet meetings. Not everybody enjoyed that, least of all Dick Spring.

He most certainly did not.

One of the innovations he introduced, which was very controversial at the time but has since shown its merit, was the introduction of special advisors and the advisors' meeting in order to speed up the process of Government decision making. That is a good system and is probably essential nowadays, when Ministers have commitments in the EU and everywhere else. However, it does not in any way negate the principle of accountability - in fact, it makes it even more necessary.

The Minister knows, as an accountant, and I know from my experience of accountants, as does the Chairman, that the less accountability one has, the more possibility there is for fraud, corruption, wrongdoing and improper management of assets and resources and the money paid by the taxpayer. In the speeded-up version of modern Government that we have, in which the Government has direction over massive amounts of public expenditure, it is absolutely essential that there is scrutiny by Parliament and by the public of the decisions that are made. Scrutiny on behalf of the public is carried out by political parties and the Opposition. However, the other really important scrutineer on behalf of the public is the media, whether we love or loathe them. We all have mixed feelings towards the media - if it is on our side it is wonderful and if not, we do not like it. That is the way it should be. However, if the media is restricted from being able to access the critical documents that went into the deliberative process within a reasonable period of time, at a time of massive public expenditure how can we have the informed public that is the cornerstone of democracy?

I want to read a further quotation from a certain Irish politician. It states:

However, we have inherited from Britain an intensely secret approach to government. There was a need to sweep away the stupidities of the Official Secrets Act. This could be done by having a Freedom of Information Act, which would take the lid off so many decisions that affect our daily lives. Far from being a threat to those working in the public service, such an Act offers the best opportunity to build a bridge between the Government and the people.

What outstanding democrat and member of the present Government wisely said those words?

I thought it was Charlie Haughey.

It was Deputy Brennan. Do the committee members remember what they said earlier? Deputy Bruton gave us instances of what people had to say, as did Deputy McGrath. I do not know whether this view was so widespread during Mr. Haughey's time, but I should say - it must have been before he got to Iraq and sold all that beef - it was held by Deputy Brennan. If this view was correct at the time it was given, how can it be so wrong now? There must be times when the Minister feels scared about the money that goes into the health service, for example, for which we have so little to show. I will not say the Minister must wake up at night, but the figures for the output are genuinely scary - it is a black hole.

What is to be served by hiding all that information? It may in the long run make the whole thing much more difficult, because we will not have available the information the Government has commissioned. Instead, information will be selectively leaked and the Minister will attempt to tell us only what he chooses. The people should be treated like grown-ups - the electorate deserves better. It was a sad day on which the Government decided to turn the clock back like this. As Deputy Brennan has indicated, we inherited a colonial framework which was very oppressive and we have suffered from a neo-colonial mentality for many years. We had finally begun to break free from this. We have started to make the rules for ourselves and, in some cases correctly, we have looked to the USA, where for 40 years there has been a Freedom of Information Act. Even during a war, the USA has not backtracked on this. Why should we, when the system has patently worked?

Today, as the Minister is probably aware, many people who are account holders in equity investments in SSIAs are receiving the bad news about how their SSIA investments have done which for the most part have been halved. The Minister made a decision and, whether we agree with it or not, he took it. Through the mechanism of the FOI we were able to obtain indicators of the cost of the decision and the public was able to debate whether the decision was good. We were able to get a sense of the thinking that informed the Minister's decision and its cost. As I said, because of another Act introduced by the Minister, which dealt with the area of financial regulation, financial agents, investment companies and so on are obliged to give the equity investors information about what has happened to their investments. The news is bad, but there have been days on which the news was good and there will be more. What is wrong with giving people information they can use to make intelligent decisions? That is what the Minister is closing off and for that reason, what he is doing is wrong.

Amendment put and declared lost.

I move amendment No. 39:

In page 9, line 32, to delete "10" and substitute "5".

Amendment put and declared lost.

I move amendment No. 40:

In page 9, line 32, to delete "10" and substitute "7".

Amendment put and declared lost.

I move amendment No. 41:

In page 9, line 37, to delete "10" and substitute "5".

Amendment put and declared lost.

I move amendment No. 42:

In page 9, line 37, to delete "10" and substitute "7".

Amendment put and declared lost.

Amendments Nos. 44 and 45 are alternatives to No. 43 and amendments Nos. 46 to 51, inclusive, are related. We will discuss Nos. 43 to 51, inclusive, together. We had quite a discussion on these issues before the break, so we should avoid any repetition as the points were well made.

I move amendment No. 43:

In page 9, line 40, to delete paragraph (d) and substitute the following:

"(d) by substituting the following subsection for subsection (4):

'(4) The Secretary General to the Government shall, in each year after the year 2003, furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year under paragraph (b) of the definition of “Government” in subsection (6).’, and”.

Amendments Nos. 48, 50 and 51 are technical drafting amendments. Amendment no. 43 will require the Secretary General to the Government to furnish the Information Commissioner with a report showing the number of certificates issued in relation to committees of officials in the preceding year. Such details will then be included in the annual report of the Information Commissioner.

I also propose to take amendments Nos. 44 to 47, inclusive, and 49 together. I will not be accepting amendment No. 44, in the name of Deputy Richard Bruton, the effect of which would be to retain subsection (4) of section 19 of the principle Act. This subsection is redundant by virtue of paragraph (a) of section 12. The subsection provides for prior consultation with the leaders of political parties and any member of the Government who was not a member of a political party prior to a decision maker exercising his or her discretion to release a record to which paragraph (a) or (b) of section 19(1) applies. As paragraph (a) of section 12 removes this discretion, the question of such prior consultation does not arise.

I will not be accepting amendments Nos. 46 and 47. The provisions in section 12 relating to records of committees of officials, have been prepared to reflect the decision-making processes of modern government. The Government has in the past considered it necessary to establish specialist committees of officials to assist in resolving issues related to a complex issue under consideration by the Government.

Essentially, such committees operate as an extension of Government by assisting it to tease out and resolve issues being discussed around the Cabinet table. Experience has shown that it can be very difficult to draw a line between the records of such committees and the records of the Government as the issues under consideration are so very closely bound to discussions around the Cabinet table.

The high level group identified the dilemma here and recommended that special recognition for the records of such committees should be made. In order to ensure that only those committees that are appropriate for these purposes would come within the scope of section 19 of the Act, the Bill provides that the Secretary General to the Government must certify the committee at the time of its appointment.

I am satisfied of the need for special recognition to be given to committees of officials operating in direct support of Government and will therefore not accept any amendment that would serve to exclude or significantly limit the protection contained in section 12 for the records of such committees. I acknowledge the concern that such committees should be properly constituted and that they do not become a means of hiding information not directly related to Government deliberations. However, I believe the concerns that have been expressed on this point are not well founded. First, in order for the records of committees of officials to attract protection as Government records, the Government must have appointed the committee for the purpose of assisting it in relation to a particular matter that is on the Government agenda in order to support and inform a pending decision of the Government. Second, the Government must have requested the committee concerned to report directly to it in relation to the matter concerned. As an added stricture, the relevant committee must be certified by the Secretary General as being appropriate for these purposes. It is clear from these provisions that the committee must have been established for a specific purpose with a narrow remit.

I will not be accepting amendment No. 49, the effect of which would be to remove the definition of "officials" from section 12 of the Bill. In view of the recognition being given to the records of committees of officials, I am satisfied of the need to define "officials" for the purposes of section 19 of the principal Act. The provision that would permit me to prescribe in regulations additional classes of persons as "officials" is simply to allow for some flexibility if, for example, it was found in the future that committees in direct support of Government were tending to require the input of persons who were either not civil servants or special advisors.

As the Minister said, this amendment presupposes that we would remove the mandatory obligation. Obviously, it is born out of the old view of the Freedom of Information Act that information was to be open where it was in the public interest but, unfortunately, now that principle is being abandoned, this does fall foul of the Minister's view. I still cling strongly to the view, however, that freedom of information is about releasing information where it is in the public interest and not releasing information where it is likely to cause harm. If the Minister had the confidence which he expressed so trenchantly about the damage that would be done to Cabinet Government, he would allow these decisions to be made on the basis of harm being established. Of course, he is not willing for any test to be applied because no evidence has been adduced of harm in the past and none is likely to emerge in the future. Clearly, the Minister does not want any such tests to be involved in this area, hence the nature of the Government amendments. They are not only to suppress information but to throw away the key as well. That is one of the most objectionable parts of this Bill.

As Deputy Burton pointed out, when we had hearings here previously, real concern was expressed on the part not only of Opposition members but also Government members of the committee regarding the extraordinary definition of Government in the section. Even the Chairman, having sat through the discussion, still nurtured the belief that we were talking about committees that had at least one Government member but that is not the case. These are committees that have no Government member. Admittedly, they will be appointed by the Government and will be requested to report to it, but the protection they are given is that they will, once appointed, become as if they are a Cabinet committee. They will have all the protection of communications between them, including documents they might use, and will become like a Cabinet. This is an extraordinary distance to go because it is not just the communications from this advisory group to the Cabinet that will be protected but also the interactions between them, including the way they gather information. These groups will mostly be gathering information which the public ought to see so that it can be well informed about decisions.

The only issue that could deserve protection concerns submissions to Cabinet where there might be an inference as to the view of the Ministers. I accept that should be protected but the Minister is going well beyond that. He has rejected my amendment No. 46 even before I moved it. The amendment seeks to limit the protection of those committees to submissions that would be made genuinely to Cabinet. I have drawn the language from the existing Act so that, as the high level group said, this would be used sparingly and only in appropriate cases. The appropriate case would clearly be where explicit advice is being offered to Cabinet which should be privileged and protected for five years or, as now seems will be the case, ten years.

The Minister is seeking to go much further, however, in that information concerning these committees will effectively be entirely closed down for ten years. I see absolutely no justification for that. I can see no circumstances in which the operation of Government could be undermined by having access earlier than ten years to information considered by committees of officials or independent experts. No matter how hard I rack my brain, I cannot fathom any such example, yet when we ask the Minister for examples he will studiously refuse to offer any.

The only exclusion to which the provision will not apply is the tax advisory group and I suspect that is because it is under the Minister's control, rather than that of any of his colleagues. Will the Minister give us some examples which have arisen during the past 12 months of the committees that he sees as being privileged, so that we can get a feeling for the damage that we are in danger of wreaking upon the Government if such records become available? That would be helpful for us, if the Minister is genuinely interested in trying to get a debate going and create an understanding of what he is doing. It is a mystery to me.

I have tabled a series of amendments in the hope that if the Minister was not willing to go the whole way, he might at least meet us half way in respect of these committees. I would be willing to give some protection to these committees within the terms of the high level group in appropriate circumstances but used sparingly. The way in which it is being done, however, will not accomplish that, which is why we should change this section.

For a start, the Information Commissioner was correct to point out to the committee that defining Government as being a group of independent experts gathered from different colleges defies all constitutional recognition. No one could conceivably consider a group of people asked by the Government to advise it on, say, opening an accident and emergency department, as the Government. How could those people be so considered? There is no conception that they are the Government and it is an abuse of language to say so. If one wanted, as the Minister alleges he does, tightly defined conditions instead of having this open-ended and unspecified certification procedure by the Secretary General, one would set out criteria concerning the sort of committees, work and advice to Cabinet, and they would be ringfenced. No effort has been made to ringfence them here, however. There is no basis for appeal to the Information Commissioner and no test of reasonableness in the certification of these committees as being likely to cause harm. Nothing that comes out of the spirit of the old Freedom of Information Act has been reproduced in this section. These are smothering tactics. It is the sort of approach of which our friend, Mr. Clive Woodworth, who manages the English rugby team, would be proud. He would like to smother all opposition and make it impossible for it to break out. That is the philosophy behind the legislation. It replaces the philosophy of the original Act, which was borne out of hard experiences in recent years. Unaccountable government is bad government and the more accountable and open it is, the better it is for Government. People will know decisions are subject to proper scrutiny, which was not possible in the House in the past. I am sad the Minister will never be willing to give examples of cases of harm or committees that will be given this protection. I would like to hear a little more about the practical implementation of this proposal. As I read it, it is a smothering tactic to be spread as far as possible so that anyone who comes close to the Government cannot be discovered.

I do not know if it is possible to appeal to the Minister to lessen the harm he intends to do to our democracy, for which he is taking direct responsibility. Amendment No. 43 states the Secretary General to the Government "shall in each year after 2003 furnish to the commissioner a report in writing specifying the number of certificates." Will the Minister spell out exactly what is involved?

Having listened to the Second Stage debates in both Houses, I noted that I should examine this section. This point was not made by anybody in particular. There is provision in the existing Act to list various things and for various reports to be made. However, the Secretary General to the Government can issue certificates relating to committees and there is no follow up to say how many certificates were issued. I decided it would be appropriate that the Secretary General should state in a report to the commissioner every year the number of certificates issued, which the commissioner, in turn, can publish in his annual report.

The report would contain the number.

Would the Minister object if the subject matter and the number and names of committee members were included if he is trying to helpful? Secrecy is the great friend of people who want to do wrong. His intention is to protect Cabinet Government and not facilitate the corruption uncovered by the beef tribunals and the costs that involved. Will he accept an amendment on Report Stage regarding the certificates? For example, there could be three, four, ten, 20, or 40 certificates issued in the first year, which will set a benchmark. In year two, 69 certificates could issue as opposed to 29 in year one, which is a significant increase. The notion could be that if 29 certificates always issue, we would stop paying attention to the report. What would be wrong, in order to make the information useful, with identifying the subject matter and the membership of the committee?

I do not intend to do that. I intend to make this amendment so there will be transparency in this area regarding the number of certificates issued. There is a provision in section 25(11) of the 1997 Act for certificates to be issued by a Government Minister having consulted the Taoiseach or the Tánaiste and been signed by them.

That is correct.

While I have been Minister, only three certificates have issued. All related to one area——

Mr. McCarthy, during the presentation by the high level group, referred to the process of cross-certification requiring one member of the Government for approval. He pointed out that one would want to be sure of one's ground before taking on the Taoiseach, the Tánaiste and a Minister.

The Taoiseach, the Tánaiste and the Minister for Finance.

Dermot McCarthy said one would want be brave and sure of one's ground to obtain certification from such high level members of Government.

There has been a limited number of such certificates.

There has been a limited number because people think cautiously. Why can the Minister not go a step further and set out the subject matter of the certificate?

Because the Information Commissioner will be empowered to decide whether the Secretary General in certifying a committee was right to do so. There is a mechanism provided for appeal to the Information Commissioner where the Secretary General says "this is a committee within the terms of the new Bill." If the Information Commissioner decides it is not, then it is not.

Yes, but we will not have information regarding the membership of the committee. Will such a committee be comprised of Ministers plus advisors plus civil servants plus other bodies? Will the committee be comprised exclusively of other bodies? Issuing a report about the number of committees is a small step.

Let us go back to a few basic principles. This process relates to matters to be debated or considered by the Cabinet. Under this section the setting up of a committee is an extension of the Cabinet and it is a committee of the Cabinet.

We want committees protected in the same way Cabinet members are protected. It would be illogical, therefore, while that process is going on and to protect it for the period of Cabinet years, that we then outline what the committee was about and what it was deciding when the committee is meant to be covered in the first instance.

What would happen——

Can I continue?

The Information Commissioner can decide on the certification by the Secretary General but——

Cabinet subcommittees have dealt with decriminalising homosexuality and abortion, for example, on many occasions. There might have been a sub-committee on Abbotstown. Such sub-committees are a regular feature of Government nowadays in order to expedite business. The Government normally says it is setting up a Cabinet sub-committee to deal with X or Y. We do not object to that because we all recognise that is part of normal governance.

However, the Minister stated one example of a sub-committee would be specialist committees of officials.

Debated before the Cabinet and referred by the Cabinet.

He referred to specialist Cabinet committees as an extension of Government or the Government process. The Minister knows every child is entitled to know the members of the Government. We do not live in Iraq. The Minister is extending the definition of "Government" to include these additional sets of people. We know who Government advisers are because their names are published. We know, by and large and, I believe, definitively, who senior civil servants are because their names are published and this information is obtainable. We do not know who is on these other bodies and specialist committees the Minister says are extensions of Government. I accept the Minister's argument in terms of the efficient working of Government but every child in a democracy is entitled to know who is in the Government.

Will the Minister consider this issue and possibly withdraw the amendment and re-table it on Report Stage? If he says that these bodies are extensions of Government, and we have heard long argument from him in this regard, how can he say that membership of an extension of the Government will be a secret in future? We might as well go to Iraq. Someone from Mountrath could be a member and poor Deputy Fleming would not know.

The Deputy is going overboard.

In the interests of clarification and to be of assistance to the Deputy, the issue of the number of certificates issued by the Secretaries General was a matter I followed up as a result of what had been discussed at committee meetings. We knew about the ministerial certificates and I was happy to know that only about two or three had been issued. The committee made a big deal about the potential involved if the number of certificates issued ran into large figures. I said during the debate that it would not be a problem if the number issued was very small, but that if the figure was large, we would know there was an issue and it could be dealt with by the Oireachtas at a later stage. The first step was to establish the number of certificates involved. I felt the best way of dealing with this, because of the claims that this could potentially cause enormous problems, was to say that time would tell and we would know from the number of such certificates. This was the first step.

Has the establishment of Cabinet sub-committees been a secret before this?

No, but that is where the issue about numbers arose.

I have never known——

Do you remember DermotMcCarthy's presentation to us, Chairman?

I felt it was step one. I accept what has been said but at least this was a step in the right direction in that we would know the extent of this issue. Members of these sub-committees or bodies must be prescribed by the Minister. It is not done in secret.

I accept what you say, Chairman, and we spent many hours on this.

That is where it came from.

Yes, and you will remember Dermot McCarthy and what he said to the committee. I received the detailed amendment from the Minister and have been waiting to ask him about this because I was aware of the other matter to which Dermot McCarthy referred in his evidence. I am not an expert on the Bill and am trying to follow it through. Perhaps the officials would furnish us with a copy of the Minister's speaking note on this section. I wrote down "specialist committees of officials" and "extension of Government".

The Government cannot have it both ways. If the members of these committees or bodies are part of Government for the purposes of freedom of information, then under any democratic rule, we must know who are the members of Government, the subject matter with which the committee is concerned and its title, be it health, social affairs or abortion referendum or legislation. The people are entitled to know this and will want to know it.

There is an attempt to create the impression that something can be put in place in secret by the Cabinet or individual Ministers. In fact, checks and balances exist if one examines it. The Secretary General to the Government must certify such a committee. If it is put in place by a Minister, it is subject to freedom of information. That point has not been made, yet there is an attempt to tie this secrecy element to Ministers, which is not the case.

There is a suggestion that what is at issue is that the Government may not accept a committee's advice. However, that may not be the option or may not be possible. The expert committee may give three or four options and the Government may have to make a decision on them.

It would be impossible for a committee certified by the Secretary General to the Government to conduct its business in a proper way if it were at a later stage to be subject to the Freedom of Information Act. We would not get people to operate in the system in the manner we would expect and to be open and frank in their discussions and advice.

It would not be available until five years later.

I did not interrupt DeputyRichard Bruton.

The Minister did repeatedly and the Chairman did occasionally. I would not be too sensitive about it.

I did not interrupt the Deputy and would like to finish my point. The Minister has stated clearly and it is included in the legislation that there is an appeals system which entitles the Information Commissioner to question the granting of a certificate. That is the check and balance.

Amendment No. 43 tabled by the Minister states that the Secretary General shall after a year furnish to the Information Commissioner a report in writing specifying the number of certificates issued by him or her. Either we have committees that can advise the Government or we do not. The Government obviously wants them and, if we are to have them, they must have some protection because we will not otherwise recruit the right people as members. Only three certificates in this regard have been issued. As regards the identity of committee members, this can be extended to their size, sex, religion and so on. We are going overboard on this. This is a practical approach to providing necessary technical support to Government.

I think we have debated it——

Sorry——

Who has indicated?

I think others wish to contribute. It is fundamental.

The difficulty we in Opposition have is that the Minister has not given any examples of the type of committees in question. My experience has been that there is no secrecy about the establishment of Cabinet sub-committees and that they are assigned to a specific task. If the Minister wants to give them this additional protection, it should be given to them only in so far as they specifically offer advice to Government. The Minister wants to go further and protect all their deliberations and information gathering activities which I do not see as warranted. He wants to go even further and make them anonymous so that certain committees can have the protection of Government and be deemed for the purposes of freedom of information to be Cabinet sub-committees but which no one will know exist. They will be secret and protected entities. That does not appear to have any logic.

We need to obtain from the Minister some examples of what is involved. Is the tax advisory group a potential example of such a committee?

Is it an example of a committee which assists Government and falls under the definition of Government for the purposes of the FOI? It assists Government.

It is to assist the Minister for Finance in preparing the budget so it could be seen as assisting the Government also. I have indicated the tax advisory group become available——

That is the Minister personally as a politician. We all acknowledge that he is quite generous with information. We know the tax advisory material is up on the web and so on but there are other Ministers - or possibly future Governments - who are completely secretive.

If that were the case the Secretary General would have to certify it is one of these committees within the meaning of the Bill.

We would not know that——

No. The Information Commissioner will get the information from that committee if someone appeals it on request. The commissioner can decide it as he or she wishes.

So he or she can publish the list?

He or she will publish the names and numbers of the members, subject matters——

No, appeals can be made to the Information Commissioner to have information relating to that committee. The Information Commissioner may decide the committee was not set up properly——

How can we know of the existence of the committee? The Minister is not telling us it has been set up. How can members of the public appeal to the Information Commissioner about a committee whose existence they do not know of?

On a point of information, I requested the Minister's speaking notes on this section——

I have a lot of them.

——and I will have to get legal advice on this. I received this information late and have read it and I stayed here as long as the Minister was here, bar ten minutes last night in order to hear him explain this. He has gone on and on today about pages 9 and 10, about the extension of the concept of Government, for the purposes of FOI, beyond members of the Government to three other categories - civil servants, special advisers and persons who are members of any other such body. I tried to make a note of what the Minister was referring to - members of specialist committees of officials and he used the term, "extension of Government." It is a fundamental principle of democratic government everywhere in the world that one is entitled to know the members of one's Government. If, for the purposes of the Act, the Minister is expanding this - he said he won the election and is entitled to expand the definition of Government - we are at a minimum entitled to know who the members of the Government are. We are entitled to know the titles and subjects of the committees.

I gave some examples - the committee dealing with abortion or that dealing with decriminalisation of homosexuality when the Minster and I served together in Government, as well as committees dealing with the national stadium.

For Government press officers it has always been the custom and practice as they finish the day's work on a Government meeting to say the Government has set up a sub-committee on certain issues with the Minister for Finance or so on as members. That has been a well-established practice for ten years but the Minister is now, at a stroke, giving extraordinary new powers of confidentiality and secrecy about something the Government was normally anxious to explain to us.

Will the Deputy explain to me why the Government would not continue to do the same as it does now? The Government does this now without having to do it at all.

It is because in the Minister's legislation - I acknowledge his motivation——

The Labour Party is seeing conspiracies.

——may not be secrecy. Earlier today the Minister threw some brickbats at Deputy Ó Caoláin on the subject of democracy——

He threw some in his own day.

——in all our political parties. One of the criticisms the Minister would have made of Deputy Ó Caoláin is the level of secrecy which until recently was associated with his party or organisations associated with his party. The Minister should not say an independent Irish Government, which we have had since 1922, is going to make secret membership of the Government, or organisations associated with and deemed to be part of the Government. That is not acceptable and the Minister will be taken to the European Court of Human Rights.

This amendment relates to the records of these committees. If someone makes an FOI request about how the committees were set up and their membership, that will be dealt with in the normal way. What is being protected by this amendment are the records of the committees, which relate to the processes of Cabinet. The issues of how many there are and their membership will presumably be released under the FOI legislation.

That is what we have been talking about for the last half an hour.

They will not be. The Minister told us they will not.

We have been talking about it for the last two days.

The Minister told us they will not. He said in his amendment we would be told the number and when I asked if we could get the subject matter and members he said no.

The amendment I am bringing in, at the request of Deputy Fleming and others, is to establish the number of these certificates. It was felt by the committee it would be useful to have that information in any one year to know how many or how few there were.

The Minister is trying to distort what we are saying. It seems reasonably logical to me that if committees are going to be established and the Secretary General to the Government gives them certain privileges, the public should know about it. This information should be laid before the Oireachtas, which would be standard in other legislation, or given to the Information Commissioner or published on the day of the Cabinet decision. The Minister must give us some assurances as to how it will be published, even if he tells us it will be published in some other way. We can live with that. However, he is saying of course it will be published but is not saying how. He says an FOI request would elicit it but if no one knows it exists they have no grounds for making such a request.

If one is sending an FOI request to the Department of the Taoiseach or the Department of Finance to note how many committees are to be set up——

Why is the Minister playing cat and mouse? Why not publish this with the Cabinet's decisions of the week?

The Cabinet does not produce decisions of the week, as the Deputy well knows.

No, but it can. Generally the Cabinet can issue a press release on the day——

No, it does not.

I have seen press releases issued by Cabinet——

The Deputy's party had to do something to keep all the advisers it had working.

The Minister has 82 spin doctors working for him. They do not always do a great job.

Who is working for me?

The Government.

I thought the Deputy said me.

The collective you - "ye".

If anyone makes a freedom of information request to the Department of the Taoiseach about the number of committees set up, that is automatically given out. What is at issue are the records of the committees. We have extended——

Why accede to the request to list, not only to number but to list? That would end the debate.

The subject and——

No, I am not going to do that. I have responded and that is what caused the big hullabaloo.

Are records not made available 12 months afterwards? Is there not an appeals system to the Information Commissioner? There is a system of checks and balances.

I will not be distracted by the Minister's barbed personal remarks.

I did not make personal remarks.

Focusing on the current debate in relation to section 12, I have not tabled any of the amendments being discussed and I listened as well as one can to the exchange. The debate started from a different premise and developed as a result of information the Minister provided. More than 30 minutes later, the Minister is now presenting a completely contradictory position. That is factually the case. As the record of this meeting - I have no doubt it is being kept and will be openly available - will show, the architect of this exchange, which is one of the most protracted, is the Minister himself. The Minister indicated that Government was going to facilitate the worst practices of Freemasonry, in terms of never knowing who, whom, what or why, and absolute secrecy.

The Minister has only himself to blame. He has left the members of this committee in some confusion.

The Minister has attempted to correct people who were misrepresenting him. He was misinterpreted.

Indeed not. I do not think what he said was open to being misinterpreted. The Minister's response, as I recall very clearly, was quite specific, sharp and clear. Going through the exchange and having tried to weather the storm of Opposition Deputies' criticism of what he stated earlier, he is now stating that is no longer what applies.

This is a very serious situation because there are key fundamental questions here. These committees will, ostensibly, be extensions of Government. Government is supposed to be elected by the people, for the people and accountable to the people yet this Government is proposing to create an extension of government that will not expose its make-up, its number, who its members are or what they are deliberating on. Their influence and input will have no public scrutiny. That is what the Minister indicated earlier. Despite his efforts to say that is not the case he is showing no good faith on the concerns of Opposition Deputies by his stoic refusal to adopt the necessary amendment, to allay and alleviate the concerns, not only of Opposition spokespersons here, but of the wider public. That is the situation and the Minister is going to have to make a full clarification. Otherwise, what Deputy Burton is suggesting may be the only course members can take.

My view is that section 12 should not be included in this Bill. That is why I have not engaged in any detailed way in the recent discussions. However, I make these observations now and I hope we will get the answers required.

I want to put a proposal. I want an agreement where this committee is adjourned so that I, as a responsible member of it, can get legal advice and parliamentary advice from my colleagues in the Labour Party. I have waited more than 12 hours today and yesterday. I got this amendment and spent hours listening to the Minister's explanations. I was very concerned, and I made my concerns very clear two hours ago, about the extension of the definition of government contained in page 10. What the Minister then read out in relation to amendment No. 43, together with the debate we have had about paragraph (b) and subparagraphs (ii)(a), (b) and (c) on page 10, fills me with alarm. I feel absolutely entitled to make this request.

The Chairman has behaved impeccably in chairing the meeting. I know he is a member of the Government party. We spent days listening to the advice of different people. I still have not had a copy of the Minister's speaking note on section 43, which I asked for about three quarters of an hour ago. I do not see why the officials cannot give us that note. Could I have a copy of it? What the Minister said was complicated legally. I wrote down some words from it and I want an actual copy of it in front of me. Other members of the committee are entitled to have it as well. Could one be made for all the members of the committee, in fairness?

I actually want to get advice on this, in view of the seriousness of it. Each of the Opposition parties is working on its own. I am not a lawyer and I do not know if any of the Opposition members is a lawyer.

This is not a court of law. It is a parliamentary gathering.

I want an opportunity to get reasonably good legal and parliamentary advice. This committee has a parliamentary legal adviser. I need parliamentary and legal advice on this.

I am not acceding to the Deputy's request to adjourn the committee. We have a lot of work to do. The Bill is scheduled for Report Stage next week and there is time between now and then. The Deputy can re-table the amendment and get legal advice between now and Report Stage.

Deputy Burton is trying to turn this into a charade. This is not a court of law. It is a parliamentary gathering. We should get on with our business.

What is being done to the notion of Government and democracy is a charade. That is how low Fianna Fáil has been brought by this charade.

I will not accept a motion to adjourn the committee for legal advice. I am making that ruling and I will not move on it. That is my own personal assessment. We are here as parliamentarians. Members will have an opportunity to get legal advice between now and Report Stage if they so wish. I will not delay Committee Stage of the Bill for that.

Deputy Burton is running for the headline on this one today. That is her big interest.

That is a cheapshot remark. Deputy Finneran should withdraw it.

I have no intention of withdrawing it.

We have had no background or explanation.

Deputy Burton has not accepted the Minister's explanation on the matter.

Because Deputy Finneran is a member of the Minister's party he may have had privileged information. Not even the Chairman has had advice on the meaning of this section. I am not a lawyer. I have had to read it and to listen very carefully to what the Minster said regarding page 10 and on these subsections. I am alarmed by what he has said. We are to have extensions of Government and the membership and the subject of government by committee from now on will be a secret. That is wrong.

I am at a loss to understand why the Minister should be sticking his heels in on the secrecy of these groups. I did not understand on Second Stage or at any time when we were discussing this with the high level group that the existence of these committees would be anything other than wholly open or that their existence would be anything other than wholly known.

That is the situation.

Where is that set out?

Under the principal Act the existence of a committee is not secret. What is going to be protected is the record of the Government and of the committee of officials, as redefined in section 12.

This debate could be brought to a close in two seconds if the Minister was willing to say that not only would he number them but that he would say who they are.

And the subject matter.

Yes. He could say a committee was dealing with abortion, tax, accident and emergency departments or whatever.

That is the situation that exists now, that will be the situation that will exist in the future and it is not necessary to put it into the Freedom of Information Act.

No, that is incorrect. This definition of a committee of officials as being a sub-committee of the Cabinet is entirely new. There is no precedent for that. A new precedent is being created and the Opposition is asking for something that is reasonable and the Minister seems to agree to it but is not——

The existence of any committee is the same before and after the Bill. What will be different will be the protection of the records of such a committee and what constitutes a Government committee. What is being changed here is the definition of the constitution of a Government committee. Nothing else is being changed except the definition of a Government committee. It defines what constitutes "officials".

I wish to address my comments through the Chair without the interruption of the Minister for Finance, if I may. The Minister made a suggestion on Second Stage which has been accepted that there would be a list available of the number of committees. The Minister says it will be common knowledge as to what these committees are. I do not know where to search for——

The Freedom of Information Act 1997 is the relevant key to the documentation which——

I do not believe that as a Member of the Oireachtas I should have to write to the head of a section with a freedom of information request and then wait four weeks for that reply on the grounds that the Minister is too stubborn to accede to a minimal request that is being made by this committee.

The same information can be obtained by parliamentary question.

If the Minister will set out in the legislation that this will be available to the Oireachtas, I would be happy.

This is a puff of smoke.

It is the Minister's red herring. We are trying to discuss the substance of section 12 and we were proceeding to deal with this and the Minister has thrown in a red herring. He is suggesting that they would be listed but would remain unknown.

That is not the situation.

The Minister needs to satisfy the committee that there will be some process through which this will be made available other than expecting Members of the Oireachtas to make freedom of information requests that are clogging up the system. The Minister is responsible to the Oireachtas for making decisions. If a sub-committee of Cabinet is established to assist the Minister and it is being conferred with the privilege of being treated as if it is a sub-committee of Cabinet with its records protected, then the Minister should take the next step and inform the Oireachtas that this committee has been appointed. That is not an unreasonable request and it would allow us resume the debate instead of the wasting of time imposed by the Minister. We should be debating whether the extension of these privileges is properly drawn. It is my belief that the Minister is drawing these protections too widely for a committee with potentially no member of Cabinet sitting on it. It should be protected only in relation to the advice it would tender to the Cabinet which could compromise Cabinet collegiality or confidentiality. That would be a proper provision and I would support it. I am afraid that the provisions for protection will be much wider and these committees will have the protection of Cabinet as if they are the Cabinet. As regards information gathered by them that would be of benefit to the public - such as the rejigging of the health boards - the factual research should be available and the advice given to Cabinet should be the protected element.

The Minister has pushed us back and we are debating whether we should even know of the existence of the committees.

I suggest we dispose of the point about their existence.

I suggest the Minister offers us a solid way of disposing of it.

There are two issues - the existence of the committees and the directives of the committees. We fundamentally disagree about the directives of the committees because section 12 of the Bill makes a change there. The Government has decided to proceed in this way. Regarding the existence of the committees, the situation after the Bill will be the same as it was before the Bill. There is no change about this matter. If anyone interprets what I said earlier as the opposite, that is not the case. I disagree with Deputy Bruton regarding the principle of what is in this section. He takes one view with other members of the committee and we take our view.

I wish to ask the Chair for time. I have been given a note which does not include the speaking notes that I heard the Minister speak in relation to section 43. I admit I may not be as fast on the uptake as some people or as the Minister is with a team of civil servants to help him. I heard the Minister and I wrote some notes about specialist committees of officials and the extension of Government. I ask the note takers to read back what the Minister said.

It is on the top of the second page.

Okay. Let us go back through this debate——

What is wrong with that?

The point is there is nothing wrong with that. The Minister and I had a discussion earlier about the evolution of Government and Cabinet practice in Ireland whereby special advisors were introduced in the 1992 Fianna Fáil-Labour Government. We commented on how well the system worked. As Deputy Ó Caoláin said we discussed section 12 earlier and the fact that on page 10, the original FOI Act is added to by the words "and a committee of officials". Government includes a committee of officials appointed and requested by the Government. We added the following definitions of three classes: a person holding a position in the Civil Service, a special advisor and a person who is a member of any other class. I refer to the Minister's speaking note on section 43. I have waited all day because I was aware that the Chairman was trying to help this committee.

It uses the same terminology as at the bottom of page 9. It states:

The Government has in the past considered it necessary to establish specialist committees of officials to assist in resolving issues related to a complex issue under consideration by the Government. Essentially, such committees operate as an extension of Government by assisting it to tease out and resolve issues being discussed around the Cabinet table. Experience has shown that it can be very difficult to draw a line between the records of such committees and the records of the Government as the issues under consideration are so very closely bound to discussions around the Cabinet table.

The senior civil servants who drafted that knew their business because it is a perfect argument for discretion. We have spent hours arguing and contesting the Minister's case as to why this extension of Government should be widely drawn in the amendment Bill for the purposes of FOI. The Minister says in amendment No. 43 that the Secretary General to the Government shall in each year after 2003, furnish to the commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year. He said there was a right of appeal to the freedom of information commissioner but he confirmed to me in his first answer when I asked him if he would entertain that the subject matter of such committees and such certificates and the membership of such committees should be matters of public record. I understand what the Government is trying to achieve and disagree with it. While the Minister may have convinced his Cabinet colleagues to extend the definition of Government for the purposes of the Act, it is a cornerstone of democracy that membership of the Government must be identifiable. We are not living in Iraq.

On a point of order, Deputy Burton failed to read out the first sentence of the third paragraph which clearly identifies the Government's position. The high level group identified the dilemma and recommended that special recognition be given to the records of such committees.

Yes, the Deputy should read on. The point is to allay the fears all members of this committee have. The Chairperson rightly shared and acknowledged these following the discussion we had with the Secretary to the Government, Mr. McCarthy. The Minister proposed a limited amendment. I am not a lawyer. I will repeat this slowly for the Minister. We have now had a chance to discuss page 10. Based on that discussion and the Government amendment, the reality is that there is no provision specifying the Government is capable of releasing the names of the membership of these committees, which are now in the Minister's words an extension of Government. The Minister is saying the Government always releases the names of such committees on topics such as abortion, but there is no requirement to do so. The only requirement is to give a report, one year in arrears, of the number of certificates.

Will the Minister give this committee an assurance that he will amend or accede to an amendment on Report Stage that will set out the subject matter of such committees and their membership or that he will by regulation or whatever other means require that such information be laid before the Houses of the Oireachtas? That is the net position of the members of the Opposition and is the minimum that we are entitled to seek.

Under the principal Act, the membership of such committees would assuredly be released. Even if the Government was stupid enough not to have released the names in the first place, either following a parliamentary question or request, it would not be appropriate to specify that in the Freedom of Information Act because it was not in the original Act. I do not recall any case in the past where the membership of a Cabinet sub-committee was not released. The purpose of the amendment is to provide that the Secretary General each year would give the number of such committees where a certificate was so issued. This will allow people to see the numbers of committees set up that include members of Government and a committee of officials. In the proposed amendment in lines 10 to 25 of page 10, the Secretary General's certification process relates to the committee of officials.

The Opposition is going down a blind alleyway and looking for a way out.

We are not. We are in a very important alleyway, not a blind one.

The Government is clear and the Opposition is clear. There is only one way to resolve this, which will happen shortly.

The Minister is being extremely disingenuous. The list to be supplied as a result of this amendment is essentially meaningless. If we are to acquire the information by other means a whole series of questions must be asked. We must ask whether committees are in existence, what those committees are, for what purpose were they established and what is their membership. Even when we have all that information, then and only then do we ask the final question of whether they are certified.

With respect, what is being done here is to extend what a committee of the Government is by including extra officials. At the moment all the Deputy's questions are answered. All that has been added is what is a committee and what type of officials on it can be regarded as a committee of the Government.

What will happen in two years time? That appears to be the tone of the question.

Ireland will have won the European Championship.

I do not think the Minister is hearing what we are saying. Listing the number of certificates issued is essentially meaningless and does not say anything. We need to know the names of members of a committee for that listing to have any value whatsoever.

The Minister has made it clear that information is available outside the Act and through the Act.

One has to require it separately.

One has to require it if one is looking for it.

That is what people do at the moment.

People have to ask for it in some way.

No, I want to take issue with what the Minister has just said. I apologise to Deputy Ó Caoláin, perhaps I should speak after him.

The Deputy should proceed.

The purpose of the Bill is to draw back on what the high level committee of officials sees as the excesses of freedom of information. Even Deputy Finneran would agree that is the purpose of the Bill.

I do not agree.

The Minister said there was a feeling that damage was being done to Government with people being frank and open. We have now been presented with a new regime for information in this country. The Minister is correct in saying Government sub-committees, which have grown up as a practice, have not been subject to any regulation. They do not feature in the Constitution, nor in any Act of recent years and maybe Deputy Bruton could confirm that. It is a practice that has grown together with the appointment of Government advisers.

While I would like to talk to a lawyer because I do not know for certain, in my understanding this new developing practice of Government and Cabinet over the past ten years is now being enshrined in the Freedom of Information Act. There is a real danger that custom and practice that may have evolved up to now may not be the subject of any regulation, but just be down to politics and Article 28 of the Constitution. The Minister is now proposing to enshrine this in law under the Freedom of Information Act, under which we will not be entitled to know anything except what the Government chooses to tell us and the only thing publicly reported will be the number of certificates issued to committees.

We will not know the subject matter, title or membership of the committee even though the Minister has explained that for the purposes of the Act, the definition of Government is very widely extended. This is precisely the area that Senator Mansergh of the Minister's party discussed so intelligently at the Joint Committee on Finance and the Public Service. That is where we are at and what the Minister is now suggesting is entirely unsatisfactory and a matter of concern.

If the Chairman does not want to adjourn the committee for the evening, the Minister needs to telephone the Attorney General to get advice because there may be unintended effects in this amendment which have not been thought through and which the Minister has not been able to address or answer. We should be entitled to seek some legal, parliamentary and constitutional advice on it.

A short time ago the Minister responded stating there was no need to make the kind of additional amendment suggested because it was not provided for in the original Act. Yet, the Minister's proposal to give special recognition to these committees is not contained in the original Act either. There is a need for the Opposition amendments, having regard to the Minister's statement that: "I am satisfied of the need for special recognition to be given to committees of officials, etc. significantly limit the protection contained in section 12 for the records of such committees." The Minister's speaking notes are quite specific in terms of the records. His earlier utterances introduced a whole new area of focus. It is within the Minister's gift to meet the reasonable demands of Opposition spokespersons in this regard. It leaves a serious and fundamental flaw in the Minister's presentation if this is now to be railroaded through by weight of numbers, as you are suggesting, Chairman, without taking into account the genuine concerns of members of the committee or properly responding to them. The Minister should accede to the Opposition proposals and thereby break this logjam which is, after all, of his own creation.

It is time this matter was decided by the committee.

That is exactly what I am asking.

The matter has been debated sufficiently over the past few hours. The committee should make a decision and move on.

There is only one way to resolve what Deputy Ó Caoláin has described as a logjam.

(Interruptions).

In terms of the committee's deliberations, we cannot take the matter any further. We have discussed it fully and there are clear differences.

With respect, Chairman, the committee could——

There will be further opportunities on Report Stage.

The Minister has the option of acceding to the reasonable demands of members of the committee.

The Bill can be debated further on Report Stage, when people will have had time to obtain legal advice to which they have referred. I see no useful purpose in further repetitive debate on this issue at this stage.

With all due respect, as a Whip, I do not see that as being the case. The Government Whip will use a guillotine on Report Stage.

We have only reached amendment No. 43 on Committee Stage. The Minister is planning a two-day debate on Report Stage and we will probably be lucky to get as far as amendment No. 25.

Deputy Burton's comments suggest that we have spent too long on this debate. It is time we moved on.

Amendment put.
The Committee divided: Tá, 7; Níl, 5.

  • Finneran, Michael.
  • Fleming, Sean.
  • Lenihan, Conor.
  • McCreevy, Charlie.
  • Nolan, M.J.
  • O’Keeffe, Batt.
  • Ryan, Eoin.

Níl

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Snodaigh, Aengus.
Amendment declared carried.
Amendment Nos. 44 and 45 not moved.

I move amendment No. 46:

In page 9, to delete lines 41 to 46 and in page 10, to delete lines 1 to 10 and substitute the following:

"(e) in subsection (1), by inserting the following paragraph after paragraph (c):

'(d) contains information (including advice) for the Government for use by them solely for the purpose of the transaction of business of the Government at a meeting of the Government which has been provided by a committee of officials-’ ”.

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Snodaigh, Aengus.

Níl

  • Finneran, Michael.
  • Fleming, Sean.
  • Lenihan, Conor.
  • McCreevy, Charlie.
  • Nolan, M.J.
  • O’Keeffe, Batt.
  • Ryan, Eoin.

On a point of order, Chairman, what are the rules in regard to taking a vote in committee? Could you read out the requirements?

The rule is that when fewer than 12 members are present, under Standing Orders, we are obliged to wait eight minutes or until a full membership is present before proceeding to take a division. Once the full membership is present, we can proceed immediately.

Is the sounding of the bells required if there are not 12 members present?

So, was it a valid vote?

The bells sounded for a short period because the gentlemen were outside the door. The Deputy would have been inside the door.

They had left.

The bells were not rung.

Only two Members were outside the door. We were waiting for those two and they would have heard the bells. The bells rang for a short time because we reached our full membership quickly.

Did you, Chairman, ask for the bells to be turned off?

Did you ask for them to be turned off before the members had come back in?

No, I do not give those instructions.

I question that.

There was a full membership present for the taking of the vote. That is what is required.

On the previous vote, Deputy Burton came in after the door had been locked.

The vote had started.

The usher opened the door.

The vote had started. We could all get pernickety about this but no one made a point on that vote.

I was standing at the door.

I know, and I said nothing about it. However, Deputy McGrath wanted to get detailed about this.

Amendment No. 47 was already discussed with amendment No. 43.

I move amendment No. 47:

In page 9, to delete lines 41 to 46 and in page 10, to delete lines 1 to 37.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 48:

In page 9, paragraph (e)(i), line 44, after “Government” to insert “(except in paragraphs (a) and (b))”.

Amendment agreed to.

I move amendment No. 49:

In page 10, to delete lines 26 to 37.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 50:

In page 10, paragraph (e)(ii), line 28, after “following” to insert “persons”.

Amendment agreed to.

I move amendment No. 51:

In page 10, paragraph (e)(ii), line 35, after “of” to insert “any of”.

I would like the Minister to explain again the purpose of this amendment. In my view, it is not a technical amendment but is casting far wider the remit of Part II, subsection (c) of the Bill - it is so wide that it could be cast to the dog on the road. I reiterate our objections and the strenuous and cautious words of advice that Senator Mansergh gave——

This amendment was discussed.

It was not. The Minister is treating us with contempt.

It was discussed ad nauseam.

The Minister is treating us with contempt.

The Chair is in possession. Amendments Nos. 43 to 51, inclusive, were grouped together for the purposes of discussion, which has been exhausted. Amendment No. 51 was debated as part of that discussion.

No, it was not.

I have put the amendment and there can be no further debate.

I would like to raise a point of information, which the Chair can check with the officials who have been taking notes. The Minister's notes are in front of me. I have heard no reference to the argument for amendment No. 51. While this is still a democracy and while we are not operating in secret as Fianna Fáil would like to do, I would like to be given an explanation of why this section will be cast far more widely than was the case even last week.

I am making a ruling.

It was discussed.

I will not allow the Minister to answer that question.

It was not discussed.

The Minister said that amendments Nos. 48, 50 and 51 were technical drafting amendments.

Sorry——

I am speaking. If members of the committee did not raise any specific issues when the amendments were being discussed together, it is too late to decide to do so now. The discussion on amendments Nos. 43 to 51, inclusive, has concluded. The amendment has been moved and I am asking the committee to make its decision.

The Chairman is now trying to guillotine the committee's deliberations, as well as everything else. It will not be good enough to guillotine Report Stage next week, so the Chair is also trying to guillotine the discussion by the committee.

Not alone was the amendment discussed, but the Minister's speaking note on it was circulated to the Deputy.

I raised my objections in detail at various times today, as well as the reservations that have been expressed by a member of the Minister's party, Senator Mansergh, in relation to "other such persons" in this section. The Minister's amendment was only received the day before yesterday. I would like to know why the Minister is casting it wider. It is a perfectly reasonable parliamentary question and I am entitled to an answer.

Under Standing——

Is the document in my possession not the Minister's speaking note for amendments Nos. 43 to 51, inclusive? Have they not been delivered to Deputy Burton? The note was read out by the Minister 30 minutes ago.

Where does the speaking note refer to amendment No. 51?

It is referred to in the second sentence.

The amendment is mentioned in the first line of the second sentence.

I am making a ruling. When a question on a motion or an amendment has been put from the Chair, no further debate thereon shall be permitted. The amendment, which was discussed, has been put. Members may not have discussed the specifics of the amendment, but they had the opportunity to do so.

I would like to object.

The amendment is being put.

I want to object.

Amendment put.
The Committee divided: Tá, 7; Níl, 5.

  • Finneran, Michael.
  • Fleming, Seán.
  • Lenihan, Conor.
  • McCreevy, Charlie.
  • Nolan, M. J.
  • O’Keeffe, Batt.
  • Ryan, Eoin.

Níl

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Snodaigh, Aengus.
Amendment declared carried.
Question proposed: "That section 12, as amended, stand part of the Bill."
Chairman: Is the section agreed?
Question put.
The Committee divided: Tá, 7; Níl, 5.

  • Finneran, Michael.
  • Fleming, Seán.
  • Lenihan, Conor.
  • McCreevy, Charlie.
  • Nolan, M.J.
  • O’Keeffe, Batt.
  • Ryan, Eoin.

Níl

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Snodaigh, Aengus.
Question declared carried.
SECTION 13.

I move amendment No. 52:

In page 11, line 2, after "(1)" to insert "(a)”.

This section amends section 20 of the 1997 Act, which relates to the deliberation of public bodies. The Minister proposes substantial changes to the principal Act in this section. Amendment No. 52 is trying to leave intact the harm test in relation to the release of a record that refers to the deliberative process of a public body. Under the existing Act, a head of a public body may refuse to release a record if he believes that it would cause substantive harm - if "the granting of the request would, in the opinion of the head, be contrary to the public interest". It is clear, therefore, that the 1997 Act envisages that the records will be released unless that release is contrary to the public interest, but the Minister is proposing to change that in a significant way. This Bill provides that the existing test will be replaced by a new test - the head must believe that, on balance, the public interest will be better served by granting the request than by refusing it.

A much higher hurdle is being set than in the 1997 Act, which contained a presumption of openness in its provision that a release would be made unless harm could be proven. The new terminology being proposed by the Minister means that information will be withheld if the benefit of the release cannot be proven. The committee should resist such a change, which represents a significant shifting of the goalposts in relation to the Freedom of Information Act.

On a point of order, can the Chair indicate what will happen to the amendments in the rest of this Committee Stage debate, given that we have reached section 13? We have not been given any guidance in terms of groupings.

The grouping list was circulated earlier.

The list we were given goes up to section 12 only.

It only goes to section 12.

A second schedule was circulated.

Are amendments being grouped in section 13?

Yes. The Deputy will receive a copy of the grouping list in a moment.

I support Deputy Bruton's amendment. The harm test is a far better criterion than the class criteria the Minister seeks to introduce. Through the early Stages of this Bill, we were told of the different standards of freedom of information laws in other common law jurisdictions. However, the Irish Council for Civil Liberties told us that Cabinet papers in New Zealand, which also has a common law system, are released according to harm-based criteria. As our legal systems are the same, there is no reason we cannot maintain such a policy.

In the interests of clarification, amendments Nos. 53, 56, 57, 59, 60 and 64 will be discussed together. Amendments Nos. 54 and 55 will be discussed together as will amendments Nos. 61 and 62. There is quite a bit of grouping under section 13.

I apologise for having to leave briefly. Are we discussing amendment No. 52 on its own?

My amendment seeks to reinstate the provision whereby harm would have to be proven when the head of a Department decides not to release records. The presumption would be that a record would be released unless harm was caused, whereas the Minister proposes to change the system to one in which matters are the other way around. Under his system, it would have to be proven that release of the record was beneficial.

Does section 13 deal with the deliberative process?

Yes. Would the Deputy like to hear the Minister's response?

If I may. I can then catch my breath. I have just run back from the Dáil.

I will not be accepting this amendment. Paragraph (a) of section 13 of the Bill has the effect of replacing paragraphs (a) and (b) of subsection (1) of section 20 of the principal Act which means it would be technically incorrect to refer only to paragraph (a).

The purpose of the new subsection 1A in section 13 is to provide certainty that records relating to ongoing deliberations of Departments of State will be protected. The provision affects only Departments of State. While such deliberations are ongoing, but only to that extent, the Government is satisfied that the public interest favours protection. Once deliberations have concluded, the records relating to those deliberations will fall to be released. Section 13 provides also for a rebalancing of the public interest test in line with public interest tests elsewhere in the Act. The rebalanced public interest test provides for release of records where the public interest would be better served by disclosure rather than by refusal of a request.

The decision as to when a deliberative process has concluded is complex. The Government has decided that more certainty is needed in this area to ensure records which relate to ongoing deliberations of Departments are not released into the public domain prematurely in such a way as to undermine the process of Government. The new subsection 1A assures this certainty by providing that where a Secretary General certifies that a deliberative process is ongoing, his or her decision is final and the records shall not be released. This certificate must be revoked by a Secretary General once the deliberative processes concerned have ended. In issuing certificates, Secretaries General will need to be fully satisfied that a deliberative process is clearly ongoing. Secretaries General are responsible people in charge of complex organisations and they alone are in a position to be fully aware of the extent of a deliberative process in their organisation. I am fully confident that we can rely on them to discharge this certification function responsibly.

As I said, this provision applies only to Government Departments, which comprise a very small number of the 370 bodies covered by the Freedom of Information Act. I am introducing an amendment whereby Secretaries General will report annually to the Information Commissioner on the number of certificates issued and the number of certificates revoked. As regards the operation of this provision, the freedom of information central policy unit of my Department will be giving detailed, practical advice to Departments on what procedures should be put in place. Section 13 is drafted to provide the maximum degree of certainty. This is why a Secretary General may certify in relation to the deliberative processes of another Department of State where his or her Department holds such records. This is needed because of the high volume of exchange of records between Departments and the possibility of a freedom of information requester seeking records from a Department other than the Department which was the author of such records. There will be no question of a Secretary General certifying material against the wishes of the Secretary General of the Department concerned. This is a matter on which my Department will be issuing guidelines in the context of the high level group's recommendation that a more formal consultation system between Departments on material to be released should be put in place.

The other changes in Section 20 relate to bodies other than Departments of State. The new subsection (1) clarifies that the protection for the deliberative processes applies to the deliberative processes of any public body. This is in keeping with the approach I have already outlined in relation to Departments of State and reflects the reality and consequent need to protect records originating in one body and held by another public body. Paragraph (b) of section 13 is consequential on the inclusion in section 2 of the Bill of the definition of “factual information”. Paragraph (c) provides for a rebalanced public interest test to ensure that records are released if this is deemed to be in the public interest rather than unless harm to the public interest can be shown. This provision is in line with the public interest tests in the rest of the Act and was recommended by the high level group which emphasised the importance of adequately protecting——

I do not want to interrupt, but there is not much point to grouping amendments if the Minister discusses all the subsections of the grouping.

Deputy Ó Caoláin asked for the speaking note, which is why I am reading it out.

That is fair enough.

I intended to deal with one part of the matter, but Deputy Ó Caoláin wanted to refresh himself as to where we were. You cannot understand the amendment unless you know what the context is which is why he asked me to do this. Is that all right?

Caoimhghín Ó Caoláin