Skip to main content
Normal View

SELECT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE debate -
Thursday, 3 Apr 2003

Vol. 1 No. 13

Freedom of Information (Amendment) Bill, 2003: Committee Stage (Resumed).

SECTION 13.

Amendment No. 62 is related to amendment No. 61 and both may be discussed together, by agreement.

I move amendment No. 61:

In page 11, line 29, to delete "lie." and substitute the following:

"lie.

(d) A Secretary General of a Department of State 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 (a) and the number of certificates so issued under paragraph (b).”.

This amendment will require each Secretary General to furnish the Information Commissioner with a report showing the number of certificates issued and revoked by him or her in the preceding year under subsection (1A) of section 13 of the Bill. Such details will then be included in the annual report of the Information Commissioner. I will not accept amendment No. 62.

This brings us back to the strange extension of the notion of "Government", which has profound constitutional implications. The definition of "Government" is being extended to include advisers and anyone else. Advisers such as Senator Mansergh are top of the range but others are constituency advisers. Section 13 relates to the question of Government deliberations which can continue for an unspecified period. The Minister is extremely reasonable and forthcoming and not secretive. When the Bill is enacted, there will be a new definition of what constitutes Government.

Yesterday, the Minister refused to accept the idea of or listen to the reasonable points put forward on amendment No. 43. He has extended the notion of Government in this Bill to include advisers, consultants or anyone the Minister or the Secretary General of a Department deems to be part of Government for the purposes of the legislation. This is an enormous extension of Government, but we do not necessarily know who these people are or what will be the subject matter.

Amendment No. 62 in my name provides that what is done under the Bill should be laid before the Houses of the Oireachtas, in some form, by way of regulation and information in relation to committees, certificates and ongoing deliberations. We must know when certificates are released and deliberations completed, otherwise the Opposition will be playing a game of blind man's buff because the certification process will be in the hands of Secretaries General. The Secretary General of one Department may certify ongoing matters in relation to other Departments. It will be like the appalling vista to which Mr. Justice Hamilton referred at the end of the beef tribunal when he said that if there had only been a capacity to ask questions and get answers, most of the tribunal could have been avoided.

The purpose of amendment No. 62 is to put the certification process in the public domain. If the Minister reasonably offered to do this by regulation, by informing the Dáil or by laying the process before the Dáil, I would be perfectly willing to listen. The Minister was willing to listen to debate and accept appropriate amendments in relation to personal records and the parents of dead children, for which we congratulated him. However, the extension of the notion of Government, which we have never had before, has profound constitutional implications in the way the certification process is applied because, in the wrong hands, it might provide a framework for secret Government.

We do not suggest that the Minister would become involved in such behaviour, but he will not occupy his current position forever. The day will come when someone else will be the Minister for Finance and the current Minister will have introduced the notion of secret Government with this Bill. We will not know the subject of the sub-committees - which will be an extension of Government - the names of the members or the process of certification for ongoing Government deliberations. It will be a case of catch me if you can, ask the right question and blind man's buff through which, by process of elimination, we may find out that deliberations are ongoing.

If this is the road the Minister intends to follow, I reasonably request that he inform the Dáil of ongoing deliberations by way of regulation or publish details of them in Iris Oifigiúil. When I was Minister of State for Foreign Affairs and when he was working for the former Taoiseach, Albert Reynolds, I worked with Senator Mansergh, for whom I have the height of respect. During the sittings of the joint committee, he specifically warned about the dangerous road down which this extension of the notion of Government would lead. Was this idea put forward by the Minister for Justice, Equality and Law Reform because it seems more in line with his ideology than that of the Minister’s party and the latter’s personal inclinations to be up-front with information? This is dangerous territory the Minister is heading for and we are giving him an opportunity to pull back and reconsider. I sincerely ask him, as an honourable Minister, to give due consideration to what was said, not only by the Opposition but also by the eminent Senator Mansergh.

The listing of numbers of certificates issued has no value in relation to the certifying of the existence of committees. It tells us nothing of what one might require to seek specific information. While having the Secretary General of a particular Department list the number of certificates issued might help in the quality of the detective work necessary on the part of an individual citizen, it will not indicate when such certificates were issued, whether there is a particular time base on them, the circumstances in which they were issued and whether they are being issued to have effect not only on the Department concerned but on other Government Departments and State bodies. On all those grounds, it is a useless addition to the Bill. It merely glosses over the fact that the Government is pretending to take account of what the Opposition is saying on these matters.

For an individual to gain access to information that is pertinent to him or her, he or she would have to go through a convoluted process. I do not accept the Minister's argument in respect of judicial review. If a citizen was to go down that road, there are three areas, outside of the cost implications, that he or she would have to take into account: first, whether the information pertaining to them is worth seeking out; second, whether they can be successful in taking a court action; and, third, whether they would have access to adequate evidence to allow them to attack the defence offered by the State agency, which would have all the cards.

On those grounds, if the original Act is amended, as proposed, there is a strong case for people, who have to avail of judicial review as a result of not being able to access information, having this Bill struck down as unconstitutional. The decision-making process of public servants must be open and if the Government is putting unnecessary restrictions on that process, it is restricting the rights of citizens to interact with public servants. Will the Minister provide any legal information he has received in respect of this matter and the previous amendment or will he accede to Deputy Burton's request that we, as a committee, be given legal advice by the parliamentary legal adviser because we are on rocky constitutional ground?

I wish to support my colleagues on this issue. The Minister quite honestly said to us that he felt this information would be routinely available and there would be no problem obtaining it. I would like to think that is true and, in the normal course of events, the Minister would be correct. However, we are creating legislation which is shifting the balance in relation to access for the public. If we are doing that, we must take due care that we at least put in some protections around the power of certification. The Minister has powers to certify, but they are constrained and subject to reviews on a six-monthly basis, not only by the Minister, but also by a group of the Cabinet comprising the Taoiseach and others.

It is clearly established in the spirit of the legislation that certification is unusual and that the public deserves certain protection to accompany this certification power. The Minister has gone part of the way by saying that he will list the number of certificates provided. An outside observer would, however, adopt the Opposition's view that if we are going to list the number, we should also list the topics so that people will know that certain deliberative processes have been protected by certification. This would place a far less onerous obligation on senior officials than applies to Ministers who certify issues. That must be borne in mind.

While a small concession would not alter the direction or thrust of what the Minister is trying to do - with which he knows we do not agree - it would at least put a minor check and balance mechanism into the new legislative framework. I hope he will accede to this request in a constructive spirit as we enter the third day of our deliberations on the Bill.

We spent many hours last night talking about this general area and I will not go back over it. Amendment No. 61 in my name was tabled at the request of the committee. The definition of Government records in section 12 does not relate to section 13. It says that where the requester seeks the information which has been certified under section 13, the requester will be notified of this fact in the response of the decision-maker. Thus, information about what is certified will be available. The Secretary General's certificates will be in the public domain: first, by virtue of my amendment, which will require a Secretary General to notify the Information Commissioner of certificates issues and revoked; and, second, when an FOI request is received and a certificate has been issued, the requester will be informed in the notification refusal. It is not appropriate that certificates should appear in Iris Oifigiúil. We dealt with Iris Oifigiúil in an earlier amendment.

Deputy Boyle, with respect, has gone off on at a total tangent as regards this area. This is about a certification process by a Secretary General regarding the deliberative process. I suppose there could be instances where the deliberative process of Government would relate to an individual and personal information. I will spend tomorrow in Greece trying to stretch my mind to think of some situation where it could arise.

(Interruptions).

It can happen, but Deputy Boyle was referring to personal information and the deliberative process.

I was not. The Minister——

He mentioned it.

Members should speak through the Chair. The Minister is in possession.

Deputy Boyle mentioned how personal information would be affected by this. This is about the deliberative process of a body, for example, a Government Department. I am sure there could be some manner in which the deliberative process concerning an issue before the Government could relate to an individual. Perhaps it could, but I cannot figure it out and it is very unlikely ever to arise. The section and the amendment relate to the certification of the deliberative process.

A reasonable example of a personal interest in this area, which would also be of enormous importance to the State, was the situation affecting a former officer in the Defence Forces, Mr. de Roiste, who is Ms Adi Roche's brother. I understand that he was dismissed by the President in the 1960s or early 1970s.

The Minister should listen. Clearly, in the history of the Irish Defence Forces, the dismissal of an officer by the President is a major item that occurs very rarely. That gentleman was seeking information about the circumstances that gave rise to his dismissal. Such an issue might also be a matter for discussion by the Government because anything which clearly impacts upon the general behaviour of Army officers is of the utmost national importance. At the same time, however, particular instances would be of extreme significance to the individuals involved. I have dealt personally with a number of cases. Many of my relatives have served in the Army and cases arise from time to time concerning incidents and, unfortunately, the deaths of serving members of the Defence Forces on overseas duty. The information can be categorised as international affairs when soldiers are serving under the UN flag, as well as personal information, which is very important to the relatives concerned, particularly in the case of a death. Therefore, such cases are not that far fetched, as the Minister seems to assume. I could provide him with other examples. I am not saying that the Minister would not be personally less than sympathetic.

I can visualise a situation where a deliberative process on these issues could be going on forever.

May I continue with this example?

He was dismissed and the deliberative process was over.

May I continue this argument? Anything to do with our Army is, obviously, always a matter of very serious consideration by the Minister for Defence and, ultimately, by the Chief Whip and the Taoiseach of the day. That has to be the case. Anything which impacts in a serious way upon the Defence Forces would give rise to direct consideration - in rare circumstances, I would imagine - by the Government. More importantly, the note provided yesterday by the Minster states that "The Government has in the past considered it necessary to establish specialist committees of officials to assist in resolving issues related——

On a point of order——

No, I am sorry, the purpose——

We have completed section 12.

What has this got to do with section 12?

It has everything to do with it.

This debate on issues which are not really before us has continued since yesterday evening.

I am treating the committee with absolute seriousness.

The Deputy is making a Second Stage speech.

No, I am reading from the Minister's note to us of yesterday.

On section 12, which is completed.

However, this refers to it as well. I ask the Chairman to please listen.

I will not, unless it deals with section 12.

It is two sentences long. The Minister's note 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 [and the de Roiste case is definitely 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.

That would perhaps be an appropriate way of dealing with difficult issues relating to members of the Defence Forces, from time to time. To back up what Deputy Boyle was saying, under this process there are people who have a personal interest because under section 13 all of this is no longer capable of being appealed to the Information Commissioner. The only recourse for the individual or family concerned in that instance is the High Court. As we discussed yesterday, however, a trip to the High Court is exceptionally expensive and onerous and there is no certainty of outcome. I appeal to the Minister to draw back from this extension to the definition of ways and means of Government that he is putting in the Bill. It is both dangerous and unfair.

The section has been completed. We have finished our discussion on that.

What the Minister is doing in amendment No. 61 involves the same principle.

The same principle is being applied, namely, that we will only get information published in arrears by the Secretary General of the number of certificates issued in relation to the deliberative process. We will not know the subject matter and we will not know, for example, whether they were the subject of direct discussion or - as would seem to be more likely in the way Government is evolving - the subject of one of these committees, as extensions of Government. That is a perfectly reasonable request. I am not a lawyer, so I may not be explaining myself very well. However, I have spoken about this matter to a number of serving and former senior civil servants. Everyone is deeply concerned about what this means in terms of the Constitution and our democracy. I just want the Minister to listen.

We have concluded section 12 and are not revisiting it.

Amendment No. 62 seeks to undo some of the harm that will be done by the creation of a secretive extension and layer of government. The Minister could offer an alternative, which the Opposition would accept, to lay the procedure before the House by way of regulation, or some other method, if the use of Iris Oifigiúil does not appeal to him.

I do not consider that it would be uncommon or rare if personal information was to be denied through the certification process of deliberation, which will not be irrelevant but pertinent to most of the workings of government. My original remarks had little to do with those seeking personal information. I do not recall making reference to that aspect. I was concerned with the citizen's right to access any information that would be blocked through the certification process. Today, for example, a High Court action is under way regarding the Government's position on the use of Shannon Airport by the United States military. While this strays into the section dealing with international affairs, a certification process could arise in the future in connection with a similar situation where information on over-flights and refuelling would be denied, even in cases where citizens, as is their right, take a High Court action.

By denying the quality and type of information that citizens should have regarding what is being blocked and why, the certification process as outlined will compromise a citizen's individual rights and might be ruled unconstitutional. That was my central point. In line with his practice throughout this debate, the Minister has chosen to mishear me and misrepresent my views. He might be tired with the Opposition's argument, but I am tired of that kind of misrepresentation.

The Minister failed to respond to a point I raised earlier. The Act makes provision for certification by Ministers. The Minister is correct to point out that the provision allows for a list of the number of certificates to be provided for the Information Commissioner, including the grounds on which they are issued. However, where a Minister issues a certification under section 25, it is subject to scrutiny in respect of the grounds on which it was offered. For example, a Minister cannot issue a certificate to head off a freedom of information request, unless there is a specific request in writing from the head of the body concerned to do so. Ministers are, therefore, constrained in when they can issue certificates. The Minister has overlooked this aspect.

The Act also requires that where a review of a refusal has occurred, a certificate must be issued immediately if it is to be protected. This imposes a time restriction. The Minister is exempted from participating in a review of a certificate but he is obliged to consult his peers, at which point the original issue of the certificate will be withdrawn if his colleagues are not satisfied that there was sufficient sensitivity and grounds for issuing it.

It is clear from the Act that the process of issuing a certificate that gives blanket coverage is regarded as an unusual and exceptional power. The Minister may be more comfortable with the suggestion that Secretaries General should seek justification for the issuing of certificates from another court of appeal. Perhaps a review body of other Secretaries General could be established to deal with this aspect. However, the amendment is not concerned with that, rather it seeks to ensure a list of the issues in respect of which a certificate is issued would be made available. This does not raise profound issues of principle. To proceed on that basis would not expose the Government to any risk, it would not contravene any principle underpinning the Act or expose Secretaries General to abuse or such like. I see no problem with it. However, from the point of view of the citizen, it would at least establish that the certification process was being used on good grounds to deal with matters of substantial public importance.

The Minister continues to cite the Chairman as if he was only interested in numbers of certificates. The spirit of our debate is concerned with ensuring the issuing of certificates is confined to serious matters of substance and would not become a trivial matter. In view of this, the Minister may feel frustrated that he offered a concession whereby information in this area would be issued that was of no real benefit to the public. I expected that such information would be automatically listed, by the Department, Iris Oifigiúil or some other process and that there would be no question of a certificate being maintained in secret without revealing its identity or the topic dealt with. In my naivety I did not envisage that there would be any interest or effort to conceal that kind of information.

In proposing a wholly unsatisfactory amendment, the Minister has blown the lid off this issue. It is now clear that it is proposed that the certification procedure and the topic will be kept secret. I am sure even the Minister would consider this to be unsatisfactory. We should be constructive in this debate. The Minister should at least meet the Opposition half way on the issue. It does not affect the spirit of what he is seeking to do, even if we object to it.

Certificates issued under section 25 of the Act, some details of which were considered yesterday, are not the same as those referred to under section 13(a)(1A) of the Bill. Section 13 of the Bill provides certainty in respect of limited periods for the deliberative process. Under section 25 of the Act, certificates are reviewed or renewed because they relate to the most highly sensitive security and law enforcement matters. I am satisfied it is not necessary to replicate the provisions of section 25 of the Act in section 13 of the Bill.

Surely the opposite is the case. If a matter is highly sensitive, a more limited certification and review could be perhaps justified. Under section 13, a blanket power could be used indiscriminately. In that situation there must be an obligation to provide information. The matters of concern here are not of the utmost secrecy that may threaten the security of the State. Therefore, for the Minister to grant what we seek could not undermine any of those much higher concerns. He has made an argument in favour of a concession on this aspect.

I am disappointed the Minister did not address the genuine example I offered. I am entitled to have it addressed. Let me give another example. Abortion is probably one of the most difficult issues the country must address from time to time, including the questions of referenda and legislation. These are very sensitive matters which in the past have been addressed by Cabinet sub-committees.

On a point of order, we are concerned here with two amendments, yet the debate appears to digress to matters arising from the section. Some of the speeches are Second Stage in their scope. This is Deputy Burton's third input on the amendments and she will probably make a further input on the section. Is this appropriate when we are currently focused on two amendments? A debate on the section has yet to commence.

On a point of order——

Deputy Finneran's point of order seeks to ensure the debate is confined to the amendments under consideration.

What is the point of order?

The point of order is what reason is there regarding input on amendments.

The point of order is to keep to the debate on the specific amendment under discussion.

I wish to make a point to Deputy Finneran.

Through the Chair.

I look to the Chairman for protection, given that he has worked very hard on this issue. Deputy Finneran is attempting to create a noisy sideshow to disrupt what the Opposition is trying to do in terms of presenting a series of serious and reasoned arguments. The Chairman should not entertain the type of "rubbishy" points of order such as those put forward by Deputy Finneran, he should exert his authority as Chair.

A great deal of rubbish has come from the Deputy's end in recent days.

I want to continue——

If we look back over the record, it will be seen that the Deputy said the same thing 40 times in recent days.

Deputy Burton should address her remarks to the amendment.

I want to continue my example, if free speech is still allowed.

On the amendment.

On the amendment. I said that abortion is a difficult issue for the country and for any Government to handle, either by referendum or legislation. If it is dealt with by way of expert committees, sub-committees or other mechanisms, under this legislation the Secretary General will be empowered to issue a certificate that it is an ongoing deliberation. The Minister has failed in his amendment to indicate when, if ever, the deliberative process will end. In addition, we will not know in future whether it is being dealt with directly by the Cabinet, by way of sub-committee or by way of an extension committee of officials.

The amendment the Minister wishes to insert in section 13 is unsatisfactory and makes a bad situation worse. Through amendment No. 61, and the earlier amendment No. 43, we are bringing into law a much more powerful role for certification. Many heads of Departments will use this process to close off areas and it will be certification without end. The Minister said that all deliberations end. There is no requirement in the Bill to show due cause and no reporting mechanism to the Dáil as to when a certification process began other than to know the number of such certificates issued. That is unsatisfactory.

It will allow a new veil of secrecy to be drawn over the operation of Government and imports new legal ideas into how Government is dealt with. This is dangerous and we want a considered response and examples from the Minister about how these sensitive issues will be dealt with in future in this new construct of Government and powers of Secretaries General that he has introduced in section 13. My amendment is a small attempt to allow some information to be laid in a public body relating to these extraordinary new powers that are being introduced.

The Minister has concluded and——

Is the Minister refusing to comment?

He has stated his position.

He has not.

He has stated his position.

It is most unfair to Opposition members of the committee. Difficult as it is to believe - although I am beginning to believe it - it seems at times that the Minister has not read the Bill. It seems no consideration was given to the implications of how this measure will impact on the workings of Government. As a committee and as Opposition Members, we are entitled to reasonable replies to the considered scenarios we have put forward to the Minister.

The Minister has replied on a few occasions on this amendment and has stated his position.

He has not addressed any of the positions we put forward.

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

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

Níl

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

I move amendment No. 62:

In page 11, between lines 29 and 30, to insert the following:

"(d) A Secretary General of a Department of State who issues a certificate under this subsection shall cause the certificate to be published in Iris Oifigiúil as soon as practicable after the issue thereof.”.

Amendment put and declared lost.

I move amendment No. 63:

In page 11, between lines 29 and 30, to insert the following:

"(d) Nothing in this section shall prevent the Comptroller and Auditor General or the Ombudsman from releasing information in accordance with their own legislative remit.’.”.

The Information Commissioner expressed concern about the effect of the certification process on the rights of independent office holders, such as the Comptroller and Auditor General and the Ombudsman, who might be in communication with Departments. He pointed out that section 6(8) of the FOI Act provides that nothing in that Act prohibits or restricts a public body from giving access to a record - including an exempt record - otherwise than under the Act, unless it is prohibited by law to do so.

The commissioner expressed concern that we should protect these important offices. The amendment seeks to achieve this by ensuring that the Comptroller and Auditor General and the Ombudsman could continue to operate in a normal fashion, that they would not be restricted by the certification process and that, in the normal course of events, they could release information as they saw fit within their own legislative remit as they progress with their work. It would be wrong if this system of certification became a means of interfering with the proper accountability of the Government and public services to officers who are independent under the Constitution and are appointed not by the Government but by the Oireachtas. Perhaps the language in the amendment needs to be improved, but I hope the Minister will accept the spirit of what it seeks to do and, if necessary, introduce an appropriate amendment on Report Stage to ensure the necessary protection is afforded.

I will not accept this amendment. The relevant section provides that the head of a public body shall refuse a request for a record if a Secretary General of a Department has certified that the record relates to the deliberative processes of the Department. I am satisfied this has no implications for the freedom of the Comptroller and Auditor General and the Ombudsman to access or release information in accordance with their legislative remit. These office holders do not access information necessary to the performance of their statutory functions via the Freedom of Information Act.

Furthermore, section 6(8) of the Act provides that nothing in the Act "shall be construed as prohibiting or restricting a public body from publishing or giving access to a record (including an exempt record) otherwise than under this Act, where such publication or giving of access is not prohibited by law." My Department has consulted the Office of the Attorney General and has been advised that the protection which the amendment seeks to effect is already provided for in the Act and that nothing in the Bill changes that.

In view of the Minster's assurances, I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 64:

In page 11, lines 34 to 38, to delete paragraph (c).

Amendment put and declared lost.
Question proposed: "That section 13, as amended, stand part of the Bill."

I oppose the proposal.

We have debated at length the issues raised by this section. I am disappointed that even accepting the nature of the restriction the Minister is seeking to put on information about deliberative processes, he has failed to concede any of the amendments which seek to narrow certification to issues within Departments and provide for tests of reasonableness and processes of appeal or, at the very least, the listing of the topics on which certification is to be issued. He has so stubbornly refused to consider any such changes that I could not countenance this section being part of the legislation.

I oppose this section. Nothing in what the Minister has offered in response to the questions raised by Opposition Deputies has alleviated my concern. The powers to be bestowed on Secretaries General in terms of the deliberative process exceed those which the Minister holds or is prepared to exercise. He will not be obliged to satisfy himself or justify, openly and publicly, the sensitivity or seriousness of a Secretary General's decision that a request for information gives rise to a prescriptive position that determines the issuing of a certificate. Most worryingly, such decisions by Secretaries General cover not only their own but other Departments.

The Information Commissioner has outlined his concerns that these provision are to be extended beyond Departments to the other component parts of the FOI process, including local government. It will create serious opportunities for abuse of the system and practices. If we are to amend the 1997 Act, we should seek to further empower the individual and the rights of citizens, rather than trying to curtail and further control their access. These are restrictive measures that run contrary to the ethos of the 1997 Act. Accordingly, I oppose all aspects of the section.

I also oppose the section, which goes to the heart of what freedom of information is about. The Minster is seeking to impose restrictions. When the original freedom of information legislation was introduced, the Minister's colleagues had some interesting things to say about it. For example, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, speaking in the Dáil on 11 March 1997, criticised the original legislation when he stated "This Bill is excessively restrictive. Surely documents which contain analysis, interpretation or evaluation of purely factual material should also be accessible." He went on to state "In addition, there is no valid reason that projections based on factual information should not be accessible." It was the considered view of Fianna Fáil Deputies that they wanted total openness in relation to the dealings of the Government. For example, Deputy O'Dea wanted factual information and analysis to be made available.

The Minister is seeking to further restrict legislation his party in 1997 considered to be too limited. The Minister's party wanted the Official Secrets Act to be reformed. Deputy Woods, who subsequently became a Minister - probably one of the longest serving Ministers in the State - was critical of the Freedom of Information Bill 1997. He said on 11 March——

The Deputy should address his comments to section 13.

This is about section 13.

It is about what was said five or six years ago.

It is about the concept of what is involved in the restrictions the Minister is imposing. Surely that is relevant to this section. At the time in question, Deputy Woods stated that "Its provisions remain deeply flawed and thoroughly inadequate. On careful examination, which I strongly to citizens and the media alike, it turns out to be little more than a window dressing exercise in freedom of information." This is the same window dressing exercise. The Government of which he is now part is anxious to restrict and curtail further access to information. Deputy Woods went on to say that "Despite all the bluster and hype which surrounds its introduction, it is little more than a damp squib. Another fine example of the mountain being in labour and bringing forth a mouse." That was the flowery language used by Deputy Woods to describe what became the Freedom of Information Act. He will trek through the lobbies next week to impose restrictions on a Bill to amend legislation he thought was not sufficiently open.

Does the Minister have no concept of the thinking of his party at the time? The strange thing was, as he said yesterday, that he did not contribute to that debate. Perhaps he will tell us why that was the case. Was he a conscientious objector? He did not vote against the original legislation. The fact that the Minister, Deputy McCreevy, did not contribute and take his party's line implies that he was in favour of the original legislation. However, here he is, five years later, making it more restrictive, tying down the hatches so that we will not be able to see the decisions he took over the last five years and the information he received in regard to the decisions, despite the fact that he is extremely well paid to make these decisions, as he has said on several occasions. We must oppose the section on the basis that it restricts access to information citizens should have.

The Freedom of Information Act contains a very stringent set of safeguards to ensure that the proceedings and deliberations of Cabinet, while in train, are fully protected, secured and exempt from the Act's provisions. That is the reality in relation to section 20 of the principal Act. The Minister, Fianna Fáil and the Progressive Democrats are attempting, in section 12, first, to introduce by the back door a revolutionary change in our concept of what constitutes Government, which is now extended to committees, and, second, to introduce an astonishing change in what constitutes the deliberations of Government and to probably fundamentally alter certain sections of article 28 of the Constitution - which provides for collective Government, Cabinet confidentiality and responsibility and accountability to the Parliament. As already stated, these changes to our concept of Government, introduced to convenience senior officials and Ministers who are afraid of public accountability and public disclosure, will do long and lasting damage to our democracy. It will not be just the media and journalists who will be seriously inconvenienced by the legislation before us, but also each citizen who is entitled to know about the operations of the Government.

I want to reiterate - the Information Commissioner confirmed this - that section 20 is one of the most used sections for refusing FOI requests. What the Minister is doing in section 13 is giving the Secretary General absolute power to issue certificates to keep all or any deliberations of Government exempt from the freedom of information legislation. The Secretary General is not just given power of certification, but there is no reasonable mechanism involved in the new Bill as to when the deliberative process ends.

The Minister may throw his hands in the air and laugh because he knows deliberations come to an end. The ongoing dispute between him and the Minister for Health and Children in regard to funding and chaos in the health services is in its sixth year. It will be open to either the Secretary General of his Department or the Secretary General of the Department of Health and Children to pick any part of the argument, discussion, examination or deliberation in respect of the health services and, under the new section 13, deem it exempt, sine die, from the freedom of information legislation.

This is a considerable rowing back in relation to the power and rights of the media. We should remember that most members of the public rely for their information on journalists and the media and, therefore, this is a considerable withdrawal of the rights of the media to investigate the deliberations of Government. If my party is ever in Government again, we may not like this provision and we may find it embarrassing. While it is the fundamental job of the media to investigate decisions of Government, under section 13, the Minister is placing severe restrictions on the rights of the media and, thereby, on the rights of citizens who rely on information from the media to obtain information about the workings of Government.

I put it to the Minister that, as in the case of amendment No. 43, we have had no opportunity to obtain legal advice on amendment No. 61. I have spoken informally with a number of people with experience in the public service seeking their views on amendments Nos. 43 and 61. Their advice was that it makes a bad situation worse because in future a Secretary General will be able to issue certificates declaring the deliberative process ongoing and, therefore, information on certain topics will be deemed exempt from the freedom of information legislation. All we will get from Secretaries General is the number of certificates issued by a secretary general.

We will not be able to find out whether discussions are ongoing in relation to, for example, abortion, which is very important. We will not know what are the topics. Under section 12, we will not know who are the members of Government, the Cabinet, civil servants, advisers and so on. We will not have a right to know who they are. If this Bill is passed, we will be adding a new and unheard of level of secrecy into law. The Information Commissioner specifically said in regard to this matter that this new format of government was constitutionally unrecognisable. The fact that under this section the Secretary General of one Department will have the power to certify matters in relation to another Department - another new extension of the powers of Secretaries General - effectively puts that Secretary General, in terms of power, above the Minister elected by the people and the Dáil. The Information Commissioner specifically stated this on page 4 of his report. He also said that, in his view, this section would in the future create serious legal and other problems which would have the potential to result in costly litigation.

The Minister has refused us leave to obtain legal advice on amendments Nos. 43 and 61 in his name. All he said on amendment No. 61 was that the Attorney General had given him an assurance it was legitimate. That is not good enough. Bodies of distinguished lawyers have told us that this is not so. I can predict this will be properly subject to constitutional challenge in the future. This section gives excessive power to Secretaries General. In some instances, it puts them above Ministers of State. Like section 12, it is a dangerous section. The Labour Party is opposed to it and will seek to have it revoked.

Section 20 of the primary legislation clearly provides the utmost protection from the Freedom of Information Act for the ongoing deliberations of Government. Fianna Fáil and the Progressive Democrats are seeking to destroy the whole concept of freedom of information and, by extension, introduce secret Government heretofore unheard of in this country. They are creating powers for Secretaries General which put them above elected Ministers of State. This is repugnant to Article 28 of the Constitution. I hope the Minister will have second thoughts and recall not only what the Information Commissioner had to say but what Senator Mansergh, a member of his party, also had to say about this.

I find it distressing, Chairman, that the Minister and his officials are convulsed with laughter when this legislation seeks to introduce a profound and new departure in our constitutional democracy. It is not a joke but a serious matter.

We are not saying anything to the Deputy because she is repeating what we have already heard 20 times over. We have heard it many times.

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

  • Finneran, Michael.
  • Fleming, Seán.
  • Glennon, Jim.
  • Lenihan, Conor.
  • McCreevy, Charlie.
  • McGuinness, John.
  • Nolan, M. J.

Níl

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Caoláin, Caomhghín.
Question declared carried.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

Will the Minister explain the table at the end of section 14? We oppose this because——

The table is a new innovation in Bills in recent times. It shows how the section will appear after the amendment is made, as I understand it. This is a new drafting procedure used by the parliamentary counsel in recent Bills from various Departments. It seems to be done in some but not all sections. I do not know the reason.

Why are the new powers drawn so widely? There are similar powers in the principal Act but this has now been extended without limit to the head refusing to grant access to a record in a much wider set of circumstances whereas previously it was confined to the public bodies subject to a FOI request. Why was it deemed necessary to widen it so much?

The purpose of this section is to clarify that the protection available under section 21(1)(a) of the principal Act extends to a record that could prejudice the effectiveness of a test, examination, investigation, inquiry or audit conducted by or on behalf of any public body rather than those conducted solely by or on behalf of the public body in receipt of the request. Similarly, section 21(1)(b) is being amended to clarify that management functions generally in public bodies may be protected under this section rather than being confined to management functions in the body in receipt of the request.

These are reasonable provisions which recognise the reality that records held by one public body may relate to the operations or processes of another public body and that the release of information under the Freedom of Information Act must not prejudice the effective workings or management functions of any public body. There has been some doubt as to whether the original Act provides sufficient protection in this regard and section 14 addresses this gap.

There were no complaints about the operation of this section.

Will I give an example?

The reference to certain exemptions in sections 20 and 21 of the principal Act has caused some doubt as to whether the protection available for a record under these exemptions can travel if a freedom of information request is made for a copy of that record held by some other public body. In relation to case 98078, for example, the Information Commissioner stated:

Section 20 refers to "deliberative processes of the public body concerned". I am of the opinion that the records must relate to the deliberative processes of the Department in order to fall within the first requirement of section 20 referred to above.

The implication appeared to be that while a record that would prejudice the deliberative processes or functions and negotiations of, for example, the Department of Finance would be exempt if a request for that record was received by the Department, any other body which holds the record may not be able to exempt it. This is clearly anomalous. If a record is prejudicial to the Department's functions, the option of exempting that record should be open to any other Department or public body which holds it. As I said in response to amendments Nos. 54 and 55, there should be no question of a body exempting a record against the wishes of another body. In such an event, and in the event of the matter being of sufficient concern to the head of the Department or public body, the records could simply be released outside the terms of the Freedom of Information Act.

The extension of this provision is potentially wrong in the light of my experience of making two freedom of information requests in relation to educational matters. One of the requests, which related to whether the Government was to proceed with the Blanchardstown Institute of Technology, involved the Department of Finance. The second case related to concerns in relation to the acquisition of a site for a primary school because the Department was not involved in the process. As the negotiations for the purchase of the site and the deliberations in relation to the construction of the institute of technology were under way, it is understandable that they were deemed to be part of the deliberative process. In both cases, however, it was quite difficult to acquire the information after the deliberative process had finished. Five years later, I have not been informed, for various reasons which I do not understand, whether the Department has acquired the land in the case of the school, even though it has been given a licence to do so.

While the Departments gave me some information in both cases, it seems that it will now be possible to delay the process, in effect, as a consequence of this new power. This seems particularly true if an inquiry or an audit is ongoing. The Minister knows that many inquiries are ongoing in relation to land transfers in west and County Dublin. The developer who owned the site in the second case I mentioned - that of the school - was the subject of a counter-action by a former member of this House, who claimed a finder's fee in relation to the discovery of the lands. That is another cause of the ongoing delay. Departmental officials have been very helpful in dealing with these matters but I have to say I am concerned about the effect of the new provisions in such cases. While I received some information, it has been almost impossible to get more detailed information. It seems that this measure will extend such problems.

There has been a great deal of controversy in my constituency and certain matters are potential subjects of examinations, audits and even tribunals. This section of the Bill will facilitate the extension of blanket refusals. It is of substantial concern to me that one does not have to show just cause and one does not have to act within a reasonable timeframe.

Question put and declared carried.
SECTION 15.

I move amendment No. 65:

In page 12, to delete lines 10 and 11 and substitute the following:

"15.-Section 22 of the Principal Act is amended-

(a) in subsection (1), by substituting the following paragraph for paragraph (b):

'(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court, or’,

and

(b) by inserting the following subsection after subsection (1):”.

This amendment inserts a "reasonable awareness" test into the exemption for contempt of court in section 22(1)(b) of the principal Act. This has been recommended by the Attorney General on foot of a High Court judgment concerning records released under an order of discovery. The requester in that case had already obtained an order of discovery of the records concerned against the Eastern Health Board in previous court proceedings but on the basis of a very specific undertaking in relation to their confidentiality. He wished, however, to obtain access to the same records under the Freedom of Information Act because it appeared that his use of such records would not be so restricted by that Act.

The High Court found that releasing a record that had already been released under an order of discovery would constitute contempt of court because it would be a breach of the undertaking given to the court when the records were obtained in the course of the litigation. This judgment presented an obvious difficulty for FOI decision-makers: how could they know if a record had been released in the past under an order of discovery? The Attorney General has advised that contempt of court could only arise if the release of the record under the Freedom of Information Act was done wilfully - in other words, in the knowledge that there was a likelihood of contempt of court. The purpose of this amendment, therefore, is to clarify this position by stating, in effect, that contempt could not arise if a decision-maker could not reasonably have been expected to be aware that contempt was being committed.

I am not sure if the Minister is referring to the case we discussed a few days ago in relation to the overturning of the Information Commissioner's decision but it sounds quite similar. The Minister's proposal to apply the reasonable awareness test seems reasonable, on the face of it. I would have thought that the court would have adopted such a test in any event, in the light of the existing paragraph (b). This measure may useful in making doubly sure. I am not clear what is intended by the second change to the principal Act caused by this amendment, “by inserting the following subsection after subsection (1)”. The text of the “following subsection” is not given. Perhaps I am confused but I cannot understand the last part of this amendment.

The Deputy asked if the case I mentioned is the tribunal case referred to some days ago. We are not certain but an official thinks it probably is the same case. The funny thing about the case is that the information was acquired by the requester under an order of discovery on the basis that it would be used confidentially but he then made another application under the Freedom of Information Act in order that he would be able to give the information to anyone he liked.

He was granted some of the information but not all.

I accept that. What is intended in paragraph (b)? Am I missing something?

That part of the amendment refers to "inserting the following subsection after subsection (1)".

Yes. Does it have any meaning?

It simply replaces what is there already. The words in section 15 of this Bill that will be deleted are "Section 22 of the Principal Act is amended by inserting the following subsection after subsection (1)". These lines have been deleted but what is already on page 12 needs to be repeated. I am sorry; I do not understand it.

I thought all it was doing was removing the existing paragraph (b) and substituting it with a new paragraph. The existing paragraph (b) refers to “such that . . . . . its disclosure would constitute contempt of court” and the new paragraph (b) refers to the reasonable test. I wonder if the final part of the amendment is redundant. It is not an important matter.

It is really a drafting matter. I assume that the office of the chief parliamentary counsel has drafted this section correctly but I will have it checked for the Deputy.

In effect, this widens what was already in the Act - to make the matters before a tribunal confidential to it.

I understand Deputy Richard Bruton's amendment. The proposal is to delete lines 10 and 11 of page 12 and to amend section 15(1A)(b) to read, “by inserting the following subsection after subsection (1)”, which refers to (1A). In the original Bill it came after subsection (1) which is now replaced.

I understand.

This will exempt everything from the Act.

That is the next bit.

Sorry, I thought we were taking——

We are taking amendment No. 65 on its own.

I am sorry.

Amendment agreed to.

Amendments Nos. 66 to 70, inclusive, are related and amendment No. 68 is an alternative to amendment No. 67. Amendments Nos. 66 to 70, inclusive, will be discussed together, by agreement.

I move amendment No. 66:

In page 12, line 12, to delete "shall" and substitute "may".

The section under discussion exempts from discovery all records before a tribunal and I have put forward a number of amendments to it. One seeks simply to prevent making obligatory the protection of all such records. There should be some discretion or provision for a test of harm. Amendment No. 68 seeks to provide that the test of harm applied would refer to cases in which the release of records would prejudice the working of the inquiry concerned. There should not be a presumption of a blanket refusal to disclose regarding every issue referred to an inquiry. The danger of a blanket close down on information once an inquiry has been established is that it prevents a mature debate on the issues concerned. Everything is telescoped into the inquiry and no information is available to inform debate outside, which is unhealthy. We should provide protection only where the release of records would prejudice the workings of an inquiry.

Amendment No. 69 seeks to provide that a personal record should not be protected from the individual it concerns. If an inquiry were looking into the abuse of children, it is clear that parents should have access to the personal records of their children. They should be able to examine the related records and issues relevant to their case independently of whether the case is being brought before an inquiry or not. We have seen cases recently where people felt an inquiry was not to their liking or was inadequate and decided not to go that route. The appointment of an inquiry should not close down all access to personal records which people would otherwise have. Such information might refer to damage done to them at the hands of the State or other issues. We should provide that personal records are not interfered with by this Bill. The Information Commissioner drew our attention in his presentation to the possibility that the powers in section 15 could actually cut off access to the kinds of personal records I refer to by parents, next of kin, guardians and the individuals themselves.

Amendment No. 70 is my last amendment to the section and it seeks to provide that a record relating to the general administration of the inquiry would not be encompassed by the section. There is a genuine and legitimate public interest in the costs of inquiries and I do not see why general administrative details should be protected. We have seen regarding the DPP that while he is absolutely privileged in regard to material he is dealing with, he is still obliged to present his accounts to a committee of the Oireachtas and to vouch for the efficient administration of his office. Tribunals and inquiries should equally be subject to that sort of investigation and public interest.

While there is considerable benefit in the section's protection of tribunals where release of records would interfere with their workings, the Minister's drafting seems to throw the blanket of secrecy too wide. The section as it stands may even be prejudicial to the individuals for whom an inquiry is ostensibly established.

I am concerned about this. The existing Act prevents the release of the records of tribunals, but, according to the explanatory memorandum, the new Bill seeks to provide a mandatory exemption for records held by public bodies which relate to the work of a tribunal or inquiry, including preparatory work related to their establishment. That is repeated. A head shall refuse to grant a request if the record concerned relates to the appointment, proposed appointment, business or proceedings of tribunals. The exemption does not apply only to records of the tribunal relating to matters being inquired into. They are already exempt from release under the Freedom of Information Act.

This has everything to do with the preparation or work done on a tribunal, including administrative matters. Information regarding tribunal costs, which is of significant public interest, will be automatically ruled out as will information about barristers' fees, the work the tribunal is undertaking and information regarding its supervision and preparatory arrangements. Any records held by a public body which relate to a tribunal will also be exempt. If a Department or public body is involved in a tribunal and represented there, we will not be able to discover what that representation costs or what number of barristers are employed. Perhaps people who attend a tribunal will be able to count the barristers and hear what they have to say. While I can understand the reason the records of the tribunal are privileged during its investigations, why should records held by public bodies regarding their participation in a tribunal or its establishment costs be disbarred? I would have thought the Government was anxious to let us know how much tribunals cost. Whoever drafted the section cast its net very wide. I suspect the Minister will answer that the daily rates of barristers are known and that an educated guess as to costs can be made. He will also say that a Minister or head of a public body will be willing to provide the information, but why would they when the exemptions under the principal Act are being extended?

I support Deputy Richard Bruton's point. The general public and I know little about the Laffoy commission except that people have told me of their experiences before it. It seems it will be working for between five and ten years to conduct its difficult business. Apparently much of the material coming before that tribunal is being heavily contested by parties to the tribunal, such as religious orders. Even the costs of the tribunal will be off limits as regards inquiries in future, unless, as the Minister will say, they are voluntarily disclosed in any event. Why go this far? It does not appear to serve any purpose to disbar us from information about the costs and proceedings of tribunals.

Section 15 suggests that not only will there be cost factors, but that potentially a much wider net will be cast to take into account preparatory work, which can include references to a raft of material the public body would have under its control. This is a wide and free power to curtail access. I do not see any checks or balances to the potential use of section 15 which, as the explanatory memorandum states, "provides a mandatory exemption for records held by a public body relating to the work of a tribunal or inquiry, as defined in section 15 of the Bill, including preparatory work related to their establishment." How wide does this section reach? It has the potential to include a wide raft of material which must be a cause of concern.

We spent hours insisting that the words "relate to" be left in the legislation. Now Deputies are concerned that the same words present a problem in this section as applied in the case of documents which "relate to" an inquiry.

It is to do with——

These words have been left in all other sections.

The words "relate to" can be employed and applied in a range of areas. In this instance, the wording is being used to curtail access. The Minister may dispute it, but I contend that these are all delaying mechanisms which will be applied once a tribunal has concluded. The Bill is a delaying mechanism and cannot be described as anything else. It is staving off the day when the Government will be subject to real public scrutiny. That day may not be 21 April 2003, but it will be 2008, unless the Minister decides to revisit the legislation in the event that we are unfortunate enough to have the Government returned at the next election.

As regards amendment No. 66, the current Act already exempts records held by tribunals established under the Tribunals of Inquiry Act 1921. The purpose of the new section 15 is to provide the same level of protection for non-statutory inquiries and the preparatory phase of inquiries. This is required to provide confidence to those people participating in such inquiries that the information they are seeking or providing is fully protected, within the context of freedom of information legislation, on the same basis as records of tribunals. Any suggestion that this process is less confidential than a tribunal can undermine the effectiveness of these alternatives to a tribunal. It is in the public interest that this should not happen.

In light of the changes I made with regard to matters relating to personal information, I will accept amendment No. 66 which proposes to delete the word "shall" and substitute the word "may". The possibility could arise that a tribunal could sit for many years and to leave the wording as it stands would mean personal information the tribunal holds could be held up mandatorily for a number of years. In line with a change I made regarding personal information on an earlier amendment, I will accept the proposal in Deputy Richard Bruton's amendment to provide for discretion regarding personal information. Given the earlier change I made, it would be somewhat contradictory to have a mandatory blanket refusal with regard to personal information arising during tribunals.

Amendment No. 67, which I have tabled, will clarify that the protection under section 15 for records relating to certain tribunals and inquiries shall cease to apply once the tribunal or inquiry concerned has completed its work. Although one could assume this would apply automatically, the amendment is deemed to be necessary.

I will not accept amendment No. 68. As I have stated, the purpose of section 15 is to provide certainty regarding records concerning the establishment and work of tribunals. The current Act already exempts records held by tribunals established under the Tribunals of Inquiry Act 1921. These are entirely independent bodies established to investigate matters of serious national concern and must be able to conduct their work in an independent manner.

The question of what documents before a tribunal can be released into the public domain should be a matter at the discretion of the tribunal or inquiry and not a matter for decision makers under the Freedom of Information Act. Any suggestion that the work of such tribunals is less than confidential would undermine their effectiveness and lead to a loss of public confidence which would not be in the public interest. For these reasons, I cannot agree to the inclusion of a harm test as suggested by Deputy Richard Bruton's amendment as it would remove the certainty which is required.

I will not accept amendment No. 69 in the Deputy's name as I do not favour the approach suggested which would appear to make the release of personal information mandatory, despite the fact that this could be prejudicial to the effective operation of the tribunal. The requirement to inform the head of the inquiry, while helpful, is a far from sufficient safeguard.

I will accept the spirit of amendment No. 70 as it relates to the general administration of tribunals of inquiry. It would be inappropriate to have a blanket exemption regarding the costs of administration, etc. If the Deputy will withdraw the amendment, I will introduce an appropriate amendment on Report Stage which would encompass the spirit of his amendment.

To sum up, I will accept amendment No. 66 as it is in line with my decision on personal information. Amendment No. 67 is in my name. I reject amendments Nos. 68 and 69. If Deputy Richard Bruton withdraws amendment No. 70, I will introduce on Report Stage an amendment reflecting the spirit of his amendment. It may even contain the same wording. However, I need to give the matter further consideration.

I thank the Minister for accepting two of my amendments and accept his position on amendment No. 68. He is correct that certainty in respect of tribunals is probably better. I ask him to reconsider his position on amendment No. 69. I am aware, for example, that there are groups which have decided not to appear before certain inquiries. For example, SOCA, the survivors group, has decided that the Laffoy inquiry is not adequately constituted to meet its needs. It would seem unfair that persons would have no access to their personal records because a tribunal, which they regarded as defective, was still in operation.

We need to balance the interests of the State in ensuring that inquiries it establishes are able to do their work, with the right of an individual to demand access to personal records and to have an opportunity to pursue certain issues in different ways. We cannot simply abolish that right.

The word "may" in amendment No. 66 obviates the need to achieve the aim set out in amendment No. 69.

While this is the case, it depends on the interpretation made by either the tribunal or the head - I am not sure which - on whether to release the requested information.

It will be the head. The amending legislation provides for discretion in this regard. If we had retained the previous position and kept the word "shall", there would be no discretion.

Will a requester be able to appeal such a decision to the Information Commissioner?

Yes, because the word "may" is used.

In the event that a person does not want to appear before an inquiry, such as the Laffoy commission, will he or she be able to apply for his or her records under freedom of information legislation?

They will also be able to appeal a decision by an inquiry to refuse such an application.

The Information Commissioner will have to see that some reasonable protection of the tribunal is needed.

Yes, that is correct.

I am opposed to this. I am not sure if the Minister appreciates how difficult it is to get access to personal records or for a person to be sure that the records given by the public body are all of the records relating to him or her.

A significant number of individuals are experiencing difficulties with the Department of Education and Science and other public bodies such as health boards in regard to accessing the information on their personal files yet the Minister is giving a new discretionary power to the head of any public body to refuse to give information. Given that the attitude that is taken in many instances, particularly in the Department of Education and Science, to the release of personal information has been highly unsatisfactory, why is he giving those officials a new and additional power?

There is great confusion on the part of many people attending the Laffoy commission. In spite of the Taoiseach's apology and guarantee on many occasions that people were entitled to their records, their experience has not been good. They are seeking information under FOI, which they are legally entitled to do, and in many cases this is through solicitors who are charging handsomely for the service. The head of the section or Department is now being given additional powers by the Minister who will say those powers are discretionary but this is unfair to the people involved in these inquiries. From my information of what is happening at the Laffoy commission - and I am glad the Minister has acknowledged this point - it appears that it will continue for at least five years and perhaps it will be ten years because so much of the information is being contested by a number of the religious orders on a line by line basis.

I wish to return to the other example which I gave on previous occasions, one with which Deputy Ó Caoláin is familiar, the death of baby Bronagh Livingstone. If this matter is subject to an inquiry - and the Minister for Justice, Equality and Law Reform has spoken about a new and cheaper form of inquiry - the health board, the Department of Health and Children and the various parties to it will be given discretionary powers to refuse information to the family. Why is the Minister giving this extra power? The existing Act already has power to debar the records of tribunals but he is extending that power to the records of public bodies that concern the tribunal. There is no necessity for this and I beseech him not to do it. He was most generous in regard to personal records and I appreciate that he is being helpful in accepting the amendments put forward by my colleague, Deputy Richard Bruton, but this measure is wholly unnecessary. I have dealt with many people seeking records for as long as I have been a public representative and whether the case related to foster care, institutional care or some other matter I have been dismayed by the attitude of significant numbers of public officials not co-operating with people in this regard. I find it difficult to believe the Minister is actually giving them extra powers. This is a bureaucrat's dream. If an official wishes to be unco-operative or secretive, he or she can say to the individual concerned that in his or her view the records cannot be released because they form part of the investigations of a tribunal.

The appeal to the Information Commissioner where people are involved in traumatic discovery of information relating to their past or due to a death, is not much help as there is a three-year waiting list. I appeal to the Minister to reconsider. He was generous the other day. This does not concern the working of Government, it relates to personal information and I appeal to him to withdraw it. It only gives people in bureaucratic positions permission to be more secretive or awkward if that is what they wish. Some individuals are almost driven to distraction at times because of the barriers erected by officialdom. Why not leave it as it stands? The current regulations are perfectly adequate.

Amendment agreed to.

Amendment No. 67 was already discussed with No. 66.

I move amendment No. 67:

In page 12, to delete lines 23 to 25 and substitute the following:

"(c) any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to inquire into specified matters,

and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual, has or have not been completed.'.".

Amendment agreed to.
Amendment No. 68 not moved.

Amendment No. 69 was already discussed with amendment No. 66. Is the amendment being pressed?

I will give further consideration to this on Report Stage. I can see some merit in the Minister's position in that there is a right of appeal. He has made a modification through amendment No. 66 and I wish to take legal advice in regard to how satisfactory that provision is.

Amendment No. 69 not moved.

The Minister has agreed to accept amendment No. 70 on Report Stage.

Amendment No. 70 not moved.
Question: "That section 15, as amended, stand part of the Bill", put and declared carried.
NEW SECTIONS.

Amendment No. 71 relates to a new section. Amendments Nos. 72 and 73 are related and will be discussed together, by agreement.

I move amendment No. 71:

In page 12, before section 16, to insert the following new section:

16.-Section 23 of the Principal Act is amended-

(a) in subsection (1), by inserting the following paragraph before paragraph (b):

'(aa) endanger the life or safety of any person,’,

and

(b) in subsection (2), by inserting ’(aa),’ before ’(a), (b) or (c)’, and the said subsection (2), as so amended, is set out in the Table to this section.

TABLE

(2) Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (aa), (a), (b) or (c) of that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.”.

This amendment is a necessary consequential amendment to section 16 of the Bill. Section 16 amends the exemption in the principal Act for law enforcement and public safety records by inserting a new provision which permits a head to refuse a record if it could reasonably be expected to endanger the life or safety of a person.

The absence of explicit protection for such records in the principal Act had been noted by the Information Commissioner. His recent report contains a useful and detailed account of the issues involved. Protection for records that could risk personal safety is a feature of FOI legislation in other jurisdictions. Section 16 of the Bill addresses this concern.

However, there is a related issue concerning the ability of a head to withhold details of the existence or non-existence of a record in circumstances where revealing such information could endanger a person. The effect of the amendment is to permit a head to refuse to confirm or deny the existence of a record that could endanger life or safety if, by confirming or denying the existence of the record, it could actually have the effect which the exemption seeks to avoid.

Another effect of this amendment is that the section of the Act used to withhold the information need not be quoted to the requester. This is important in view of the fact that circumstances may arise where it is the requester's propensity to violence that is at issue.

For example, if a requester makes a request and the public body concerned has reasonable cause to believe he or she may react to a refusal of the request in a way that endangers life or safety, the head would not have to quote the section of the Act to the requester.

By making this change, the effect will be positive in terms of providing the maximum degree of protection for records which could be reasonably expected to place persons in danger.

This is an amendment that the Information Commissioner suggested in respect of personal safety and I do not have an objection to its principle. Does the Minister propose that the public body should keep any record of the facts of the request and the refusal? Is there any way for us to know how often this has happened?

Before I call the Minister, I apologise to Deputy Boyle. Amendment No. 72 was in his name and I should have called him first.

Is there any provision in the Bill regarding the recording of information about requests and their refusal?

I do not know if organisations will keep a record themselves but the purpose is not to have the matters released on grounds of safety. Therefore, it would not make sense, in a subsequent request by somebody else, to release such information.

My amendment is a simple one based on the recommendations of the Information Commissioner in his commentary. I am of two minds whether the simpler approach or the replacement of the section by the Minister is correct. I hope to be convinced. I would have thought that the minimal amount of change, where possible, was the most effective. If the Minister is of the opinion that his amendment is more effective, I am happy to accept it.

One should note the seriousness with which the Information Commissioner regarded the fact that FOI could potentially be used to put a person's personal safety at risk. There is a need to accept an amendment such as mine to make sure that that risk does not exist and to correct any anomaly that exists in the principal Act.

I am not accepting amendment No. 72. I understand a similar amendment was suggested by the Information Commissioner and that the concern of the Office of the Information Commissioner on this issue concerned the fact that explicit protection is not contained in the principal Act for records which, if released, could endanger the life or safety of an individual. I understand that where such concerns have arisen up to now, public bodies were invoking the provision which allowed for a record to be refused if its release could "facilitate" an offence. The Information Commissioner was concerned that this may not be adequate.

While our advice differs from the Information Commissioner's view of the meaning of "facilitate", which we are advised includes in its meaning making something more likely, the fact that section 23 of the Bill contains a provision to address the concern about threats to the life or safety of individuals means this concern is diminished.

It seems there is a disagreement between the Minister and his officials and the Information Commissioner. I do not think it is major but my inclination is to stick with——

I understand that the Information Commissioner agreed orally with our interpretation of the word "facilitate" subsequently.

Amendment agreed to.
Amendment No. 72 not moved.
SECTION 16.

Amendment No. 73 in the name of Deputy Burton cannot be moved. It was already discussed with amendment No. 71, which replaced the original section 16, and we cannot make an amendment to a section that we have deleted.

Amendment No. 73 not moved.
Question, "That section 16 stand part of the Bill", put and declared lost.
Section 16 deleted.
NEW SECTION.

Amendments Nos. 75 to 77, inclusive, are related to amendment No. 74 and may be discussed together, by agreement. Amendment No. 77 is an alternative to amendment No. 76.

I move amendment No. 74:

In page 12, before section 17, to insert the following new section:

"17.-Section 24 of the Principal Act is amended by deleting subsection (2)(a)(ii)(II).”.

I tabled amendment No. 74 in the first instance to draw attention to the fact that the subsection of the Act that I seek to delete relies on the discredited and oppressive Offences against the State Act of 1939 and its subsequent amending legislation. That legislation was to have been reviewed under the terms of the Good Friday Agreement and the review that took place hardly deserves a description. There was minimal public consultation and no serious effort to address the issues of victims of a series of acts under the Offences against the State Act.

Section (2)(a)(ii)(II) of the principal Act refers to the, “detection, prevention, or suppression of activities calculated or tending to undermine the public order or the authority of the State (which expression has the same meaning as in section 2 of the Offences against the State Act, 1939)”. There has been no attempt to look at the serious legacy of bad law that the Offences against the State Act represents, yet there are responsibilities on the Government to review and repeal all repressive legislation in the advent of the important new political dispensation that obtains on this island and between these islands.

Let us examine how this provision is relevant to the Freedom of Information Act, why it is incorporated in the principal Act and how that affects ordinary people in practice. Consider, for example, the position of many people in State employment, from teaching to the health profession to the Civil Service. They were either dismissed from employment because of charges they faced under the Offences against the State Act or, in many cases to which I can point, denied employment because of that Act and all its rigors.

One has to recall that the section of the Offences against the State Act that had been used from its inception to deny people access to employment was declared unconstitutional in the Supreme Court in a famous case in 1991. I knew the appellant, Mr. Cox. Twelve years later, none of those in respect of whom the Supreme Court had affirmed that the exercise of the Offences against the State Act was unconstitutional, including the appellant, has been compensated for the denial of the very important civil liberty of the right to work. I refer to people who were denied access to employment in all the arms of State and public bodies, those who were already in the employ of those arms of State and public bodies who lost their jobs and all that this entailed for them and their dependent families. There is quite a substantial body of people in this category. If people wish to pursue a case - and a number of people have indicated as much to me - I would encourage them to do so. In the new political climate there is greater encouragement to people to examine the opportunities for obtaining redress for that injustice. It is an injustice if people went through the courts and faced specific charges, and sentencing was part of that although not in every case, and had the rigours of this applied to them in situations where charges were not proven. I encourage people to explore their right to take a case to establish their entitlement to compensation. In none of the cases in question was it ever a decision of the court, whatever penalty was applied, be it imprisonment or whatever, that people should lose their entitlement to work. That was a further imposition that they and their families had to suffer. It continues for many, even though the Supreme Court case of 1991 won some redress. I note that change is being effected only in recent times, and certainly after the Good Friday Agreement.

I hope many of these people, if not all of them, will pursue their right to compensation for the jobs they lost or the employment opportunities that were denied them. There are files, records, information in the hands of the State, its Departments and its public bodies that will affirm that these people were victims of the Offences against the State Act. If they now seek access under the freedom of information legislation to documentation that would support their efforts to secure justice for themselves and their families, whose opportunities to better themselves, to better educate themselves and everything else was curtailed as a result of the denial of the oxygen of work and the reward of labour, this section will deny them their right as citizens to access to critical information that would help them to sustain their cases. There can be nobody in this room or, one would hope, in these Houses who does not believe we are looking at the life-sentencing of people, given the added penalty, over and above all they have suffered, of a lifetime of denial of their rights in terms of access to work and of holding their jobs and employment. The Supreme Court has stated that that is unconstitutional. I argue that this section is an obstacle to the exercise of those people's democratic right to secure relevant information in order to aid and abet their right to pursue compensation for the loss of years and other losses they incurred.

I ask in justice and in the light of the new political situation, if not in the historic light of the Supreme Court decision of 1991, that the Minister agree to delete this subsection (2)(a)(ii)(II) of section 24 of the initial Act and recognise - as anyone reading the section will - that there are adequate safeguards within that section and that subsection (2)(a)(ii)(II) is unnecessary and is unquestionably a barrier to the rights of individual citizens to secure justice at this stage of their lives. I appeal not only to the Minister but to my colleagues on the committee to support this amendment.

My amendments deal with the substance of the section being sponsored by the Minister whereby he seeks to make mandatory the close-down of records regarding security, defence, international relations and matters relating to Northern Ireland. Previously subsection (2) provided a number of examples of records which could be refused, but against a public interest test, which meant that the head of a body had to form an opinion that the release of the record would adversely affect the security of the State, the defence of the State, international relations and so on. The Minister is removing that discretion from the head of a public body so that simply falling into the categories listed in subsection (2) will now mean a complete blanket close-down on access to information.

This is unnecessary because Ministers already have the power to issue a certificate where they feel there is an important issue of the security of the State. This is not about heading off the possibility of a serious release occurring that could prejudice the public interest. It is about moving from a position where the head of a body must decide whether a release could damage or benefit the public interest. That is not a good move. We should continue to have the presumption of openness unless the possibility of harm is established. That is the fundamental principle that the Opposition has been trying to defend regarding a number of events.

Unfortunately there is a history here. The Information Commissioner cited a case where routine communications between an Irish Embassy and the Department of Foreign Affairs, which contained information already in the public domain, were being blocked from release, which was not tenable. He cited other examples where information that could reasonably be released without in any way endangering international relations was being wrongly withheld, and that was in a case where the head of a body had to form an opinion. If such an opinion does not have to be formed by the head of a body, that means effectively closing down all of this list to any form of release. No case has been made for this sort of mandatory exemption. The existing balance in the Act was the correct balance. I know of no case where the security of the State or the defence of the State or international relations have been damaged by an FOI release. What is not broken should not be fixed and we should leave well enough alone. The purpose of my amendment is to protect the existing provisions rather than go ahead with the proposed amendments.

I want to move my own amendment. Is that in order now?

We are discussing them together. They can be moved and pressed separately.

Deputy Ó Caoláin's amendment No. 74 seems reasonable. If the relevant area was deemed unconstitutional by the Supreme Court in 1991, it hardly seems fair to carry it into legislation in 2003. Perhaps by Report Stage the Minister will have obtained an opinion as to why, if the rest of the Bill is being dismantled, the references in this section are being retained. I say that seriously because we have put a lot of work into this. The Minister and the Attorney General's office have had large numbers of civil servants working on this. As a courtesy to Deputy ÓCaoláin and to the members of this committee, we should at least be able to obtain for Report Stage detailed arguments as to why Deputy Ó Caoláin's reasonable request cannot be acceded to.

What is involved in amendment No. 77 is very serious. At present under the Act, information relating to international and EU matters is liable to be kept secret only if it would impair the international relations of the State. The Bill as proposed, would make secrecy mandatory, regardless of the circumstance. About five pages of the commissioner's report deal with section 24 cases which came before the commissioner. We have already discussed the question of the Department of Foreign Affairs having records regarding scientology which, although they were merely culled from a newspaper and sent by the Irish ambassador in Bonn to Iveagh House, were deemed to be part of international relations and likely to impair the international relations of the State if released. There is another interesting case where a member of the public, a Mr. McAleer, looked for reasonable information about matters held on the Department's files regarding matrimonial proceedings in EU states. People will remember that before the advent of divorce in Ireland difficult circumstances arose for many people from either foreign marriages or foreign divorces. Presumably there would be nothing wrong with releasing that kind of information once these matters had been proceeded with and concluded, yet the Department refused it because they were records of the Council of the European Union.

The Department of Foreign Affairs has a system of describing files as confidential, secret and so on, depending on the importance of the file. The purpose of the Labour Party amendment is to limit mandatory secrecy to confidential international matters only. Why should information about matters that have been dealt with and are now in the public domain through the EU or through foreign news or other media, be kept by the Department? The Act, as drafted, prohibits disclosure of international information which was held to impair the international relations of the State. I have no difficulty with that. That is right and proper. However, it includes a harm test in that the person refusing the information must act reasonably and refuse it only if there is a possibility of harm to the international interests of the State. The Minister is removing the harm test from section 24(2), although it is being retained in subsection (1). The net effect of this is that all international communications will be exempt whether they are confidential or not. This makes no sense as a matter of principle. Consequently, I am arguing that the section should be limited to confidential communications which would be more sensitive.

The Information Commissioner gave us five or six examples of cases in which the Department decided not to release certain documents because their release could be considered harmful to the international relations of the State. In at least half of them he sided with the Department regarding the harm test. However, the Minister is now removing the harm test and making secrecy mandatory concerning international relations, security and so on. This measure entails the removal of all discretion, even if the information is entirely harmless and may be of specific interest to only particular individuals at certain times like, for instance, the case of the individual pursuing information on matrimonial proceedings in EU states.

I am at a loss to understand why the Minister wants to introduce mandatory secrecy. What concerns me is the possibility that people in the Civil Service who are bureaucratic will take this as a green light to refuse all information. When Ministers are appointed and sitting behind the big desk on the first day - the Minister will remember that and I am sure Deputy Fleming will also have the experience - the Secretary General of the Department comes to meet them and, having congratulated and welcomed them and having told them what they might or might not be doing, he or she then goes on, correctly, to warn them to be cautious or careful regarding the interests of the Government, the Department and so on. That is all reasonable. However, this is a green light to people who have a secrecy mania to say that all information is barred even if there is no need to do so.

The Minister is not noted for being particularly unforthcoming, so why should he be the person giving the green light to blanket secrecy and blanket exemption under the FOI. I simply do not understand where this is coming from. It is wrong and the Labour Party amendment goes some way to restrict an over-zealous bureaucracy imposing complete secrecy in all of these matters.

I wish to comment on the amendments in a general sense and on the section. It is clear from the discussion that there is a clear belief among the Opposition that the replacement of a harm-based restriction by a class-based restriction is inimical to the principle of freedom of information and questions have to be raised as to why it is being suggested. As regards a class-based restriction on security, defence and international affairs, many of us go further to suspect that it is not because of any bad experiences that have affected the quality of Government that it is being introduced but that it has more to do with political embarrassment about how particular policy decisions have been made and how they have been subsequently perceived. If this is the principle that informs the change of legislation, we have every reason to be worried. It cannot be argued that we are living in an unstable world at the moment. The coming years will see many debates about the nature of security, defence and relations between countries. The type of world we are living in means that individual citizens, particularly in a democratic society like Ireland, want to be informed about the policy being made by their parliaments and be actively involved in informing such debates. There is currently an advantage in this unstable world in that information has been available under the existing Act which is helping to informing public opinion. Such informing of public opinion will not now be available under what is proposed in the amendment Bill. On those grounds the section should be rejected, but I would be supportive of the amelioration attempted by the amendments before us.

On amendment No. 74, like Deputy Burton, I would like some background. If the principle is that a Supreme Court or High Court decision has been made and put into legislation and become the law of the land, that is not a principle we should follow. I would not be unhappy with the passage of amendment No. 74, which involves the deletion of section 17, but it is something on which we need more information from a legal point of view and explained in more detail on Report Stage, if that is possible.

In general, I support the amendments before us, but I continue to be negatively disposed towards the section in its own right. I appeal to the Minister's better sense not to make us vote on this section and to recognise that its motivation might not be for the best reasons. Perhaps I am hoping against hope.

I will not be accepting amendment No. 74. Subsection (1) of section 24 of the Act provides that the head may refuse to release information if, in the opinion of the head, this could be reasonably expected to adversely affect, inter alia, the security of the State. Subsection (2) provides that the protection of subsection (1) applies to records, including records containing information which relates to detection, prevention, etc., of activities calculated to undermine the public order or authority of the State.

The effect of this amendment would be to remove the protection for such records, that is, highly sensitive records relating to activities, "calculated to subvert public order and the security of the State." I could not possibly agree to such an amendment which, in my opinion, is, first, inconsistent with the overall approach of section 24 of the principal Act and, second, would open up a serious gap in the protection of the most sensitive information relating directly to the security of the State. The Act, as framed, provides important and necessary protection for such information which, if disclosed, would be likely to affect the security and defence of the State.

I cannot accept amendments Nos. 75 or 76 which would have the effect of deleting the provisions of section 17 of the Bill. I will not be accepting amendment No. 77 either. There is a requirement for a higher degree of protection for communications and negotiations of a diplomatic nature involving Ministers and the Government. This was recognised in the original Act when ministerial and Government communications were not qualified in the manner proposed by this amendment.

On the section, section 24 of the principal Act contains three subsections. The first of these subsections states:

A head may refuse to grant a request . . . (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head, access to it could reasonably be expected to affect adversely-

(a) the security of the State,

(b) the defence of the State,

(c) the international relations of the State, or

(d) matters relating to Northern Ireland.

Subsection (2) provides that the subsection applies to a list of records related to security, defence and international relations. The way in which this subsection is drafted presupposes almost that the records referred to in subsection (2) are inherently sensitive and there was certainly an expectation when the Act was introduced that such records would attract significant protection. However, the phrase, "what could reasonably be expected to cause harm," is open to interpretation. The views of the Department of Foreign Affairs and those best placed to identify the sensitivities involved are potentially open to being substituted. To those who believe this is okay, I would say that the types of records they are referring to include: reports of conversations conducted between representatives of the State abroad with political and official representatives of other States in which confidential information is exchanged on issues relating to the foreign or domestic policy of other states; reports of meetings between representatives of foreign states accredited to Ireland with Irish politicians and officials or information with regard to the development of the policies of both states, or other information which is given in confidence regarding bilateral issues, under discussion; reports of negotiations conducted with the EU and international organisations such as the United Nations, OSCE and PfP where foreign and domestic policy issues are under discussion; reports of the positions taken by other countries on issues under consideration in the EU and international organisations; reports from Irish representatives abroad providing assessments of post-government representatives and their policies and actions; confidential instructions to Irish representatives abroad regarding negotiations in which Ireland is involved in a bilateral or multilateral context; and reports on the negotiating stance of interlocutors——

No one is arguing for——

——and confidential reports to and from Irish representatives abroad conveying sensitive information of use to Irish business and economic interests.

In discharge of their functions, officials in the diplomatic service are required to build up over a range of time contacts with people within the government, in the civil service, in civil society and in the media in order to convey information and views on particular topics. These exchanges are based on the understanding that the information conveyed or views expressed are confidential. If it were otherwise, political and official figures in other states, with whom our representatives are in constant contact on a range of issues, would not feel free to provide the type of information which is essential to allow us to conduct our foreign policy on the basis of knowledge and detailed assessment of the stance of other countries on issues of interest to our foreign and domestic policies.

It is essential that we are in a position to guarantee security to our interlocutors on information passed to us in confidence. Otherwise, we will not be granted privilege to access sensitive material. This is an issue of serious importance particularly regarding our dealings with our partners in the European Union where the conduct of business relies on information sharing among member states in every area of EU affairs. Other major partners of this country such as the United States require absolute confidence that the information given to us in the context of diplomatic business will not be disclosed. This is particularly the case in the post-11 September situation.

The process of exchanging sensitive information on these issues relies on integrity, trust and predictability. What could reasonably be expected to cause harm is subject to interpretation and leads to uncertainty. The Government is aware that failure to address this uncertainty will result in a loss of confidence in dealings with the Government and important and sensitive information may not be made available. Such a situation would have serious consequences for the security and well-being of the State.

In order to ensure there is no loss of confidence in our ability to handle sensitive data, both in a national and international context, it is necessary to provide certainty in this regard. This is why the Government decided to introduce a mandatory exemption for records covered by subsection (2) of section 24 of the main Act.

I regret the Minister's response. He is maintaining a category of citizens for whom fair and equal access to information that affects their daily life condition is denied. They are being denied, set aside and marginalised to maintain and perpetuate a system of further punishment. I refer to people who have gone through the whole process of legal address of the charges put, who have gone through a period of sentence or whatever the case might be. In normal and natural law, that should be the end of the matter, but many of the people for whom I am trying to seek fair and equal access under the FOI Act, find themselves in the category of persons who are denied access to critical material that will allow them to process cases to secure their rightful entitlement to compensation for the denial of the right to work to provide for their own needs and those of their families. Given that the Offences against the State Act is one of the issues this Government signed up to address in the Good Friday Agreement in terms of the raft of repressive legislation on the Statute Book, there should be a different type of thinking in place in all Departments. The Minister should be reflecting that in this amending legislation. To include a crutch in this legislation, dependent on the same meaning as in section 2 of the Offences against the State Act 1939 and each subsequent amending Act, is abhorrent to the ethos of freedom of information. The cases I have mentioned are real, not imaginary. These are real people. I dare say there is nobody in this committee who does not know families in their communities to whom this may apply.

I understand the initial reticence of other colleagues to proceed in the absence of other information and I have no difficulty with their awaiting other information being provided. However, I thank my colleagues for accepting the argument in principle. The situation is that people are faced with life sentences that were never intended by the courts. That is the reality. I know many people who fall into that category. Other people, less gracious than those present, might say that this is no surprise.

We will perpetuate a significant and fundamental flaw if we do not address this now. When can it next be addressed? When will the next opportunity arise to address the substantive Act? This is the opportunity to remove this subsection. We should be saying to people that they have the right to seek redress and compensation. That is not to compromise the security of the State, as the Minister would suggest. That is a spurious argument which is well catered for in section 24 and the other key sections. Nobody is proposing to compromise the security of the State.

I am trying to achieve justice for people who have gone through the State's judicial system and for whom it was never intended, and should never have been intended, that they continue to serve life sentences in respect of their entitlement to seek fair employment opportunities and secure employment. These have been taken from them. We will fail to protect these fundamental rights if we allow this section to stand. I appeal to the Minister to use the brief window of opportunity that remains between now and Report Stage to look at this again. The fears he outlined are without standing.

The case I have put is real and recognisable and the arguments are sustainable. I hope that in the new and welcome dispensation that pertains on this island, these horrors from the past will be removed from the Statute Book and we will see a day emerge where equality of opportunity and equality of access to information would be the right of all citizens.

The Deputy might be drawing his amendment too wide to deal with the types of miscarriage of justice or excessive application of justice he has described. If we remove all reference to protecting records regarding the detection, prevention and suppression of activities tending to undermine public order and the authority of the State, that would go well beyond what the Deputy is seeking to achieve. I am not sure that the Freedom of Information Act is the normal route one would choose to address an issue of this nature. The most offensive provision even on those grounds is that making all these records mandatorily inaccessible is a problem. I am not persuaded that one can remove such an important protection to the security of the State. The amendment does far more than address the cases the Deputy described and which, no doubt, have merit.

With regard to the wider issue, the Minister has not offered any persuasive arguments that the existing provision has actually damaged our foreign relations. These provisions have been in place for five years and I have never heard a suggestion that our representatives overseas cannot engage in discussions because those to whom they are talking fear that the head of the Department of Foreign Affairs or the freedom of information officer in that Department will ride roughshod over these confidential discussions and release them here, there and yon, thus undermining our conduct of foreign affairs. It is a rather bizarre concept of the way heads of Departments or freedom of information officers would behave. The Minister has had a field day laughing at some of the things the Opposition has suggested heads of Departments might do but now he seems to be taking the opposite view. He envisages them releasing all sorts of sensitive information because they form the opinion that access to it is in the public interest.

I am not persuaded by the Minister's arguments. This is an instance where he could offer, in general terms, some examples of where he believes these provisions have got the State into hot water. Perhaps with more forensic amendments than the blanket change that is proposed, we could try to provide protection in such cases. At present, however, he is throwing the protection too far by making all these records mandatorily exempt from release.

The Minister's commentary, which was presumably drafted by the Department of Foreign Affairs, indicates a high level of paranoid secrecy. Even the high level group, in its comments regarding international relations, acknowledged that it was difficult to balance the requirements for the proper conduct of international relations with the needs of the public interest, as it were. The group suggested that this issue be examined. That could be done through the suggestion we have put forward. The group did not suggest a blanket ban. The Bill in this respect goes further than the high level group suggested in its report.

The Information Commissioner was obviously aware of the desire on the part of some people in the Department of Foreign Affairs to have total secrecy in case we might know the type of chocolate served at a banquet. This is ridiculous. Where is the harm if somebody asks for the records of public functions attended by our ambassadors to Germany, Slovenia or elsewhere? The Minister himself is popping off to Greece tomorrow and I presume that our ambassador there will be at his elbow. The Minister may end up attending a function run by the Greek Presidency in honour of the visiting Ministers but what conceivable harm could it do to our international relations if we hear that everyone went off to dinner in a taverna? Is the Minister going to Corfu tomorrow?

Supposing the Minister goes to some tavern in Omonia Square as part of the normal courtesy that is extended, what harm would there be in that? If the Greek Minister invites his EU counterparts to a social reception we will read about it in the Greek newspapers anyhow. It will be all over Greek television also, because the Greek Prime Minister will be door-stepped on the way in and out of the function for his comments on the war.

Mandatory exemption is a secret bureaucrat's dream but it is foolish. There was a time when the Minister took office that he was going to be the boss but, in fact, he has just thrown in the towel to the Civil Service. People within the Civil Service, who place a high value on secrecy, are clearly having a field day with regard to this legislation.

The Information Commissioner gave examples of four or five cases in his report. As the Minister's civil servants will know in a significant number of cases - half of them, I think - the Information Commissioner upheld the right of the Department of Foreign Affairs to withhold information on the grounds that it was pertinent to the conduct of our international relations and that the harm test did apply. So what is the problem? The examples that were given, including the Church of Scientology and the ambassador writing home, are absurd, as is the list of ambassadors' engagements and who they met.

There is one area which will have further implications for the thrust of the Bill. Until now, it has been common practice to give information about military overflights and landings at Shannon, when such requests are made, but this may not happen once this mandatory secrecy clause is introduced. On four or five occasions, the Taoiseach told the Dáil that the decision to allow the US military to land and refuel at Shannon, and also to overfly the country, is a critical part of our foreign relations policy, even when the United States is waging a war that has not been sanctioned by the United Nations. Once this Bill is enacted, it will be open to the Secretary General of the Department of Foreign Affairs to state that all such subject matter is part of our international relations, which it undoubtedly is. He could also say that it is damaging to our international relations for such subject matter to be disclosed, although I am not arguing that the Taoiseach will agree with that.

This is a bureaucrat's dream come true, however, because the head of the Department will be able to tell a Minister - particularly an inexperienced, incoming Minister who has not been around the tracks as much as the Minister for Finance or the Taoiseach - "You do realise that everything relating to international affairs is covered by a mandatory ban of secrecy. This is the way it is." Such a situation would be highly undesirable. Inevitably, the information will be leaked and, thus, will be infinitely more damaging to the conduct of our international affairs.

The Minister will recall that in the early 1990s, during the Hume-Adams talks and the sensitive run up to the Downing Street Declaration, there was a series of damaging leaks. However, the introduction of mandatory secrecy, where no harm test is operated, would mean that somebody who feels that information ought to be released will end up leaking it. That is more damaging to the morale of fair-minded public servants who wish to defend the reasonable right to information where there is no harm to the public interest. It will bring about an unhealthy and rigid atmosphere of secrecy which, in turn, will damage the best interests of good public service. The Minister has gone overboard in tabling this amendment to the section. His refusal even to address in a reasonable way amendment No. 77, which has been tabled by the Labour Party, is regrettable.

Section 74 is obviously a matter of some importance to Deputy Ó Caoláin, his party, its supporters and those who are personally affected by this element of the legislation. Perhaps the Minister could arrange a private briefing for Deputy Ó Caoláin, or give us a more considered statement on Report Stage as to how the legitimate concerns that have been raised might be addressed. It may well be that the amendment tabled by Deputy Ó Caoláin is in the Minister's view too sweeping but, nonetheless, he has brought up an important issue. We are in a period of post-conflict resolution on this island and we have all accepted that it has been difficult for people at various times, both in my party and other political parties, to accept that. For ten years, however, we have gone down the road of conflict resolution and post-conflict resolution. If Deputy Ó Caoláin says this is part of post-conflict resolution, and I accept that, in all seriousness he is entitled to a considered reply, including an explanation and commentary, by the Minister in the interests of moving conflict resolution forward on this island.

When listening to the Minister disclose the list of areas that would be compromised in international relations if we did not proceed with this change, I was beginning to think that we may be approaching the end of life as we know it, with too many circumstances open to chance. In saying that the harm-based classification is open to misinterpretation, the Minister is indicating he does not want to see a situation where the heads of Departments, the Secretaries General, are being second-guessed by the Information Commissioner. It means that a Secretary General who has a problem releasing information can justify his or her decision on the basis of harm-based criteria. It is then for the Information Commissioner to decide whether it is harmful.

Under the terms of the Act, an Irish Embassy official in Bonn sent cuttings from Stern magazine explaining how the German Government was dealing with the Church of Scientology. The Department of Foreign Affairs was inclined not to release this information, although it was in the public domain and could be obtained from a magazine, albeit in Germany. The Information Commissioner took the obvious decision that because the information was in the public domain, there was no reason for the Department to detain it.

By providing for the imposition of a class-based restriction, the Minister is compromising the Information Commissioner. At present, the commissioner has a degree of discretion in terms of deciding, after the release of information has been refused by a Secretary General, whether it is harmful. However, under the terms of the Bill, he will be confined to indicating if the information fits the class ascribed to it. More often that not, this will be apparent. It means the Minister is proposing a restrictive measure to stop people from accessing information. I do not understand the Minister's justification for the introduction of this measure and why he will not confirm that section 17 indicates a distrust of what the Information Commissioner could do if confronted with an appeal for information which a Department, especially the Department of Foreign Affairs, deems should not be released.

The main difficulty relates to the uncertainty of what might be released and the inability to provide a guarantee to the interlocutors that the information given in confidence can be secured. Without it such information will be withheld. This has already been made clear to us by representatives of other states. The Government must, therefore, take account of the fact that this uncertainty regarding the interpretation will result in a loss of confidence in dealings with it. It is important, therefore, that sensitive information should not be made available. Such a situation would have serious consequences for the security and well being of the State. The Government has a responsibility to ensure that this does not arise.

Would the Minister be prepared to agree to Deputy Burton's suggestion that we consider this matter further before Report Stage?

We will then have to find another recourse to having the matter addressed by the Minister's colleagues because it fits with post-conflict resolution. It is imperative that this is recognised by all members of the Cabinet. It is not just the responsibility of the Taoiseach, but is supposed to have been embraced by all Ministers. I am disappointed with the blunt but traditional ministerial "no".

Amendment put and declared lost.

I move amendment No. 75:

In page 12, lines 30 to 32, to delete paragraph (a).

Amendment put and declared lost.

I move amendment No. 76:

In page 12, lines 33 to 35, to delete paragraph (b).

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

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

Níl

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

I move amendment No. 77:

In page 12, line 35, after "that", to insert the following:

"and

(c) in subsection (2), by the insertion of ’confidential’ before ’communication’ in both places where that term occurs in paragraph (b), and by the insertion of ’confidential’ before ’negotiations’ in paragraph (e),”.

Amendment put and declared lost.
Question put: "That section 17 stand part of the Bill."
The Committee divided: Tá, 7; Níl, 5.

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

Níl

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • McGrath, Paul.
  • Ó Caoláin, Caoimhghín.
Question declared carried.
Question proposed: "That section 18 stand part of the Bill."

The Minister needs to explain why he is seeking this extension of time.

While my officials look for that note, I am obliged to signal my intention of bringing forward a number of technical amendments on Report Stage. These concern regulations introduced in the first year of operation of the FOI Act which had the effect of modifying the provisions of the Act.

Section 3 of the FOI Act provided for such regulations to be made between the first three years of the Act once the modification was in conformity with the purposes, principles and spirit of the Freedom of Information Act. I have been advised by the Parliamentary Counsel to take the opportunity to make the relevant modifications to the Act and to revoke the relevant statutory instruments.

Could the Minister give us some indication of the meaning of the amendments which he intends to introduce on Report Stage?

The statutory instruments are SI 516 of 1998, SI 517 of 1998 and SI 521 of 1998. SI 516 of 1998 provided that the date of the commencement of the Act for health boards and local authorities was 21 October 1998. SI 517 of 1998 was introduced to remove a potential overlap between section 6(9) of the Act and the First Schedule. SI 521 of 1998 concerned requests for records containing joint personal information, in other words, personal information not only about the requester but also about a third party. The regulation confirmed that in such circumstances third party information would, subject to public interest and other consideration specified in section 28 of the Act, remain protected. The purpose was to protect the privacy rights of third parties in the case of joint personal information, while ensuring that there was no restriction in any way on the provision of personal information that related solely to the requester.

Is the purpose of the amendment to delete all of those regulations?

No. These statutory instruments were made in 1998 and we are advised to incorporate them into the Act. The Parliamentary Counsel has advised to take the opportunity to make the relevant modifications to the Act and thereby revoke the relevant statutory instruments, in other words, to put the statutory instruments into the Act.

Does the Minister have the note on section 18?

These relate to certificates under section 25, only three of which have ever been issued. They were reviewed every six months by the Taoiseach, the Tánaiste and me. The Information Commissioner made a recommendation but we do not see the need to have them reviewed as often. Instead of reviewing them every six months, we will review them once a year. Only three have ever been issued.

Ministers can obviously release them without the review, which is a fallback.

No, section 25 allows the Minister for Justice, Equality and Law Reform to so do in certain circumstances which relate to security matters, but they have to be reviewed every six months by peers, in this case the Taoiseach, the Tánaiste and the Minister for Finance. Every six months the three of us sign a certificate stating we have reviewed them. I deem that it is not necessary to do it every six months and will do it annually instead. That is all that is involved in this section.

Given what the Minister said about signing the certificate, I can imagine that the review is a casual matter.

I assure Deputy Ó Caoláin that it is not.

I would hope it is not but that was the picture the Minister painted. There should be no reduction in the frequency of reviews and that is why I oppose the section. It is not something we should facilitate. The existing arrangements should be maintained. This provision of up to 12 months and not beyond 24 is an extension of the six months and not beyond 12 in the principal Act. We should not support this.

Question put and declared carried.
NEW SECTION.

Amendments Nos. 78, 79 and 80 are related and may be discussed together by agreement.

I move amendment No. 78:

In page 13, before section 19, to insert the following new section:

"19.-Section 26 of the Principal Act is amended by deleting subsection (3) and substituting the following:

'(3) Subject to section 29, subsection (1)(a) and (b) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.’.”.

This arises again from the recommendations of the Information Commissioner who said it was to deal with, amongst other things, instances in which public bodies have used confidentiality clauses in contracts or settlements and where this might have been done to avoid release under the Freedom of Information Act. The amendment I have tabled extends the public interest test to section 26(1)(b) as recommended by the commissioner. I hope the Minister will respond positively to this reasonable and important change.

The intention in my amendment No. 79 is to give effect to an important amendment suggested by the Information Commissioner. At present, confidentiality clauses in section 26(1)(b) are not covered by public interest override. The commissioner wants them covered and our view is that this is correct. It is sometimes clearly in the public interest that documents should be disclosed even though they might originally have been received in confidence.

We are talking about the public service which is well educated and has a great deal of training. There are responsible people in key roles in the public service. The amendment gives the opportunity of a public interest test which would be in spirit with the notion of freedom of information where it could be decided that it is strongly in the public interest to release something even though it may originally have been acquired in confidence. It is part of a more joined-up, grown-up approach to administration. I recommend amendment No. 79 in that context.

My amendment No. 80 is an identical amendment. The points have been adequately made by Deputies Ó Caoláin and Burton.

I will not accept amendments Nos. 78, 79 or 80 which I understand relate to a suggestion on page 77 of the Information Commissioner's recent report that such an amendment would serve to prevent agreements being entered into for the purpose of the avoidance of the release of information under freedom of information. I am not aware of any such instances. I also understand that confidentiality agreements are invoked rarely in the context of the Freedom of Information Act.

In framing the original Act, the Oireachtas recognised the importance of protecting to the maximum extent legally binding duties of confidence arising from agreements or enactments not specified in the Third Schedule to the Act. Such agreements and enactments are not subject to an explicit public interest test. I am satisfied that this should continue to be the case. The insertion of an explicit public interest test in the Act could create uncertainty in respect of the protection of information subject to a legally binding duty of confidence.

However, while international case law supports a high degree of protection for a duty of confidence arising from a confidentiality agreement, the courts have tended to apply this protection only to agreements that are considered to have been validly made. Agreements found to have been entered into for the purpose of the avoidance of the release of information under the Freedom of Information Act are not likely to be considered valid. This is the clear advice of the Attorney General which has, in turn, been conveyed to public bodies by the freedom of information central policy unit. This would also be stressed in the context of training and development on the Act. Therefore, I would not share the concerns expressed by the Information Commissioner that public bodies may use such agreements for the purpose of avoiding the release of information. If they are, such agreements run the risk of being struck down.

Section 19 provides for two amendments to section 26 of the principal Act. The first clarifies that the protection available for information obtained in confidence applies across all public bodies and not just the public body dealing with the freedom of information request. This is in line with similar amendments in other sections of the Bill designed to ensure the protection of the processes, management functions and operations of all public bodies. In dealing with a freedom of information request, it is right and fitting that a decision maker takes into account the possible implications for other public bodies. This will arise specifically where one public body holds records relating to or generated by another public body and where these records contain information given to the second public body in confidence. I am satisfied that this is a necessary amendment to improve the application of the Act.

The second amendment will permit a head to refuse to confirm or deny the existence of a record if it contains information obtained in confidence, its release would be harmful and the mere acknowledgement of the existence or non-existence of the record could determine or reveal the sensitive information contained in it. This is in line with similar provisions in the existing Act which allow public bodies to avoid revealing the existence or non-existence of a record where this could disclose sensitive information. I consider it essential that this prudence be extended to cover information obtained in confidence.

The Minister says he is not aware of any instances of the type highlighted by the Information Commissioner, yet the commissioner clearly states instances in which public bodies have used confidentiality clauses. He goes on to say that they might have been done to avoid release of information under the Freedom of Information Act. He must be speaking of specific cases. If the Minister is not aware, clearly the commissioner is aware.

Surely this is about closing off areas of abuse and misuse and closing off the erring on the side of confidence and secrecy where we have the facility to do so. The thrust of this is to ensure that public interest is given predominance in any evaluation by a head of a Department. That is a binding duty. Surely we have the right to insist on a public interest test in this instance. The Minister's response is injudicious. It does not represent what is required in this case. I strongly recommend amendment No. 78.

Is the amendment being pressed?

Amendment put and declared lost.

I move amendment No. 79:

In page 13, between lines 21 and 22, to insert the following:

"(b) in subsection (3) by the deletion of ’subsection (1)(a)’ and the substitution therefor of ’subsection (1)’,”.

Amendment No. 79 has already been discussed with amendment No. 78. Is the amendment being pressed?

Amendment put and declared lost.
Amendment No. 80 not moved.

Amendments Nos. 81 to 83, inclusive, are related. Amendment No. 83 is an alternative to amendment No. 82, so all may be discussed together by agreement.

I move amendment No. 81:

In page 13, line 26, to delete "subsection (1)(a)” and substitute “subsection (1)”.

Amendments Nos. 81 and 82 concern the exemption of information obtained in confidence in the principal Act. Their effect would be to permit a head to refuse to confirm or deny the existence of a record, if by doing so the head would be revealing information which would breach the duty of confidence provided by an agreement or an enactment. Such information is exempt under section 26(1)(b) of the main Act. This amendment is relevant to the system whereby the Department of Finance is available to cost proposals for a political party in the run up to an election.

By agreement with the political parties such records are treated as confidential and will be refused under section 26 which exempts information obtained in confidence. However, there is no explicit power to refuse to confirm or deny the existence both of the information received by political parties and the records generated by the Department. These amendments will address that and will provide for the long-standing arrangements whereby political parties can be assured of a high level of confidentiality relating to the costing arrangements carried out on their behalf.

To which amendments is the Minister referring?

We are on section 19, amendments Nos. 81 to 83, inclusive.

Maybe I moved to section 21. We are on section 19.

Section 19, amendments Nos. 81 to 83, inclusive.

I am in the right area.

While the Minister is sorting out his papers, may I make a comment on this? I have a strenuous objection to amendments Nos. 81 and 82. It is extremely unfair to the committee that we should receive these amendments in committee. We are getting these amendments on Committee Stage but we are getting no explanation. Even the Minister is understandably confused by what they mean. I have had advice concerning these amendments that they are particularly obnoxious.

I am in the right area, Deputy Burton.

I have a particular objection to both amendments.

Fine. I will call on the Deputy in a moment when the Minister has completed his comments.

I am not accepting amendment No. 83. As I have explained, the Bill already provides for a requirement that a head considers the public interest prior to invoking a refusal to confirm or deny the existence of a record under the provisions of paragraph (b) in section 19. Such consideration would not, of course, apply to a record which is the subject of paragraph (b) of subsection (1) of section 26 of the main Act because a head is not required at present to consider a public interest test prior to withholding information which could breach a duty of confidence.

Can the Minister give his arguments on amendments Nos. 81 and 82?

I have already done that.

I read them out a few seconds ago.

That is what you contested, Deputy Burton.

That is what I was reading out when I was interrupted.

Did you refer to the political parties?

There is something about political parties in a subsequent section.

Does the Minister have a copy of that note?

Yes. There is a section on political parties but this particular matter overlaps it.

Section 25 deals with political parties so that is where I would have expected to hear what the Minister was offering.

That section also relates to the costs to political parties but this section also refers to the duty of confidence, which is particularly relevant.

I did not realise that and that is why we got stuck.

It is relevant because the records are received in confidence. Section 25 is specifically about political parties, but this is also about receiving information in confidence.

My understanding is that the Minister is giving power to refuse to disclose the existence or non-existence of evidence where information might have been obtained in confidence. It seems, however, that a harm test ought still be applied here.

I am sorry to interrupt the Deputy, but earlier in dealing with amendments Nos. 78 to 80, inclusive, I provided some of the reasons where, if people think they are entering into confidential agreements, such provisions can be invoked to nullify the effects of the Freedom of Information Act. International experience shows that they can be struck down if they are done solely to nullify the effects of the Act.

The new power of withholding the disclosure of the existence or non-existence of a record where it is obtained in confidence should be subject to a public interest test. This is going further, however. It was admitted earlier that the record itself will not be released because it was obtained in confidence but here we are saying that its existence will not even be admitted. I suggest there should be——

Because there could be a breach of that confidentiality by so doing. That can arise - we discussed it in other sections as well - by recognising the existence of it. If we got a specific targeted request and the person knew there was something there and framed the requests in such a way, the fact that one would quote the existence of the record would give the game away.

This is one of the difficulties.

The public interest test still applies under section 26(3).

Yes. On the broader thrust of this section we are extending the confidentiality application, not only to the Minister's own information but also to the information of another body. We now expect that the head of one body will draw a conclusion about what it takes to protect the sources of another body. He will have to be satisfied that if he releases a record it could not possibly compromise the information sources of another body. This sort of onion-layer effect, whereby one public body will need to know what layers are needed to protect it, will be an in-built prejudice towards conservatism and the non-release of information. This will happen if the head of a body is expected to know about the requirements of all these other bodies. It will not only apply to information obtained in confidence because the same change is being introduced by the Minister in respect of other sections, regarding commercial sensitivity and other aspects.

I would like to know where this thinking occurred. It appears to be imposing upon public bodies an expectation that they can evaluate the needs of many other bodies before making a decision to release information. The head of a public body who wishes to avoid any trouble will not release anything. If pushed, he can always say that he did not want to undermine another public body's sources of information. The tests that are being required of a head of a body before releasing a record are now becoming very cumbersome. Not only do they have to be satisfied that its release is in the public interest but they will also need to be satisfied that it is in the public interest for a whole range of other bodies, although the FOI request may not have been directly referred to them. I have a sense of "the kingdom striking back" to create this.

The question of confidential information was recognised when the principal Act was being drafted in 1997. Of the two amendments to section 19, the first is to clarify that the protection available for information obtained in confidence applies across public bodies and not just the public bodies dealing with the FOI request. It is built into section 26 and applies to these particular tests. Subsection (3) relates to the public interest test. The amendments to section 19 seek to clarify that matter. If it is given to one body, and for some reason it must be dealt with by another public body, information which was given in confidence——

If the head of a body is asked to release a record, will he or she not err on the side of not releasing the information——

Perhaps they will but they must do so in conjunction with the test under section 26 of the Act. They must satisfy themselves in this regard under section 26 of the original Act, particularly under subsection (3). However, the matter can be appealed to the Information Commissioner.

The Minister is creating all these layers.

The layers exist already.

A head of a body who has confidential sources of information would need to protect these sources, therefore, he or she would make a decision on the basis of his or her confidential resources. The Minister now expects the head of the body to be not just aware of their confidential resources but to read into the mind of any of 370 other public bodies who might have sources of information, whose sources might possibly be compromised. A head of a Department might instinctively shut down camp and decide not to release the information because he or she has not the time to consult with 370 bodies.

It would not apply across all public bodies. They will have to be satisfied that the tests exist under section 26.

One might prejudice their information sources. That is a subjective matter.

I do not agree.

I am concerned that the section will open up a new area of freedom from information, particularly in regard to personal information. At the moment when people make an asylum application, they are interviewed, they go to the refugee applications commissioner and before the refugee appeals board, neither of which are statutory bodies. When the appeals process is finished, the records go back to the Department of Justice, Equality and Law Reform, which is currently routinely and oppressively refusing people access to their own records which were originally given in confidence for the purpose of the application. This is causing much distress because it means people's original documents are not capable of being recovered, regardless of whether their application is successful.

I do not know if it was the Minister's intention to be so oppressive. He has already heard the concerns of members of the committee in regard to personal information. What he is doing is wrong. He is giving a green light to sectors of the public service who wish to be difficult in regard to providing personal information. Why should someone who has gone through the processes and stages of an asylum application be refused the right to access his or her own records, which is what the Department of Justice, Equality and Law Reform is doing? What purpose does this serve? Amendments Nos. 81 and 82 will copperfasten this provision and make it easier for the Department. Obviously, information supplied in an asylum application is given in confidence. As the Minister will be aware, the whole process of an asylum application is confidential. People have many other dealings with the public service which are also confidential. At the end of the process the Department of Justice, Equality and Law Reform is refusing people access to their own records.

The Information Commissioner will make the decision in that regard. There is nothing stronger in my amendment. I understand that is a current problem prior to the enactment of this legislation.

With respect, amendments Nos. 81 and 82 will make the situation much worse.

That problem relates to the current Act and the way it is being interpreted by a particular Department. I understand the matter is under appeal to the Information Commissioner.

The Minister's amendments seek to make the whole section dealing with information given in confidence much broader and stronger.

Tests must be done under section 26. A head of a body can make any decision he or she wishes but he or she must take into account the test under section 26 of the principal Act.

The Minister is making it more difficult for such individuals. We know the Department of Justice, Equality and Law Reform suffers occasionally from what might be called administrative paranoia in regard to the release of any type of information. However, why should somebody who has gone through this process be refused the right to his or her own documents because the documents have gone back to the Department?

To take up Deputy Bruton's point, under the new Bill the Secretary General of one Department can certify material in another Department and heads of bodies must have regard to heads of other bodies and so on. We now have the freedom from information Act. The effect of what the Minister is doing will be to close down the possibilities of accessing information.

There is another scenario closer to home which will be difficult. What about the situation of parents whose children are in care? Very often information is given in confidence in complex cases which may involve parents and grandparents. For instance, after a couple of years a parent whose circumstances have changed may wish to look after that child. Parents in most working class areas are terrified of social workers, particularly where there are multiple problems in a family. Parents may be dysfunctional or involved in drug abuse, but they are helped by other agencies of the State to address these problems. A film has been made about Mr. Doyle and what happened in the 1970s. What people do not sometimes realise is that families are in ongoing difficult situations, particularly where parents face severe parenting difficulties because they have an abuse problem. It can be impossible to help such a parent to have his or her records returned. Such a person may not know why the child was taken into care. Attitudes vary among social workers in health boards. I am not saying there is an easy answer to this because such cases are very complicated.

The Minister is giving blanket rights to refuse information because it was, and properly so, originally given in confidence. This is a charter for those who wish to be obscurantist and difficult. I will recall for the Minister his and my experience in the Department of Social and Family Affairs over a number of years. That Department operated behind closed walls. The Minister will remember it was so when he was appointed to that Department. The attitude of people on hatches and counters was one of "why should you know anything?" The Department then decided it would become consumer, user and information friendly. When one rings that Department nowadays one can get practically any information it has. Instead of damaging the Department of Social and Family Affairs, it is the best thing that ever happened.

That system had commenced before I became Minister.

We both experienced it. That Department has been transformed. The Minister, through what he is now doing, is turning the clock back on that culture which has assisted different parts of the public service enormously.

I come back to the position of refugees. It is shameful to refuse people the right of access to information they gave in confidence. It is their personal information and documents. Equally, it is not helpful in complex family situations that, again, health boards, heads of Departments and so on could refuse that information because the original information was given in confidence. Who knows what will be the attitude to this Bill when it becomes an Act. It will become the freedom from information Act and the Minister will have been its author.

I thank the Minister for circulating his speaking notes on amendments Nos. 81 and 82. I made the point at the outset of our deliberations that we have had little time to examine the Minister's amendments. I only had sight of them on the eve of the commencement of our business.

By way of clarification, the Minister only had sight of Opposition amendments at the same time. That is the rules of the House and not the committee.

The Minister's resources are greater than mine and the Chair should not draw an analogy there. I do not mind being told I am boxing above my weight in taking on the Minister and all the resources at his disposal.

I was alarmed by the Minister's reference to political parties. His speaking note contains an error in stating that it is under section 26 that such information would be refused - it should read section 25. I was waiting to address this matter when we came to deal with section 25. I was taken aback that amendments Nos. 81 and 82 have a supportive affect. What the Minister is proposing in that regard is to allow for an explicit power to refuse to confirm or deny the existence not only of the information received from the political parties but the records generated by the Department. He is making the assumption that the political parties wish whatever arrangement is currently in place with the Department of Finance in terms of accessing assessments of policy proposals and the net cost effect and so on to be held in confidence.

It will be noted from the amendment sheet that the Labour Party, the Green Party and Sinn Féin are opposing section 25.

Despite what the Deputy thinks, we are not trying to get his agreement with the Department of Finance on this matter.

The practice heretofore should change. Whatever propositions are put forward by the political parties should be openly accessible and available. That is something which should apply right across the board.

Is that before or after they publish it?

After the response.

Costings should be available after the party publishes its manifesto. I do not think they should be available where a party is considering three or four different options.

I differ with Deputy Bruton in that regard. It should apply even in the consideration of options. It is only a consideration process. It is not necessarily the party's political platform on any given issue. The options should be equally open and accessible. I do not have a difficulty with that. I would bring it to its full application. That is the reason I have indicated my opposition to section 25.

The Minister, in introducing amendments Nos. 81 and 82, is bolting the door.

I have gone beyond surprise.

I am delighted to hear that because these are changing times.

Amendments Nos. 81 and 82 are serious proposals in so far as they close down the arguments regarding section 25. I record my opposition to them because the Minister is bolting the door. What is it that we are trying to hide? If we are making proposals in terms of change and of the administration of the public purse, why should we have to hide that from the sight of each other or from the wider public? It is nonsense. It is only a perpetuation of the traditional nonsense we have inherited as a system that secret Government is good Government. That is ballyhoo. Open Government is good Government and is fully accountable. That is something for which the wider public will appreciate and applaud it all the more. These amendments must be vigorously opposed.

The Information Commissioner in his report on this section said about the FOI manual produced by the central policy unit of the Department that the "neither confirm nor deny" provisions will be justified only in rare situations. It is an abuse of Opposition political parties to pretend to be concerned about them and to offer this amendment as somehow or other being for their benefit. The FOI manual of the Department of Finance says that use of the "neither confirm nor deny" provisions will be justified only in rare situations and that such a provision is necessary because in some instances merely confirming the existence of information will directly or implicitly disclose sensitive information. I recognise there may be circumstances where records contain material of such a sensitive nature that I should be in a position to uphold the decision of a public body under one of the "neither confirm nor deny" provisions but such a decision must be supported by reasonable argument. There speaks the voice and reason of the Information Commissioner.

The Minister is now telling us that the purpose of this is to avoid potential embarrassment to political parties. I do not wish to be used as a mechanism to abuse the more serious example I gave of the Department of Justice, Equality and Law Reform's treatment of people who have made refugee applications but who cannot get their own information. I also referred to some family cases - talk about mixing apples and oranges. For the Department to say it is doing this for us is an abuse of the Opposition. Speaking for the Labour Party, I say that we reject it. The Department has failed to give any reasonable answer in regard to the points I put forward to the Minister concerning the family law cases and care situations of which I gave an example. I would like the Minister, or his officials, to comment specifically in regard to those cases before we have a vote on this section.

Does the Deputy want a comment on family law cases?

I have given the example of care records. Information in regard to a child taken into care is given in confidence. Under this section, it may be impossible for a parent to ever know why his or her child was taken into care because of this legislation. This is not helpful when there are serious social problems in certain families leading to entire——

Issues of children in care are to be dealt with under the Health Act and not under the freedom of information legislation.

No, they are dealt with under the——

Amendment put.
The Committee divided: Tá, 7; Níl, 3.

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

Níl

  • Bruton, Richard.
  • Burton, Joan.
  • Ó Caoláin, Caoimhghín.
Amendment declared carried.

I move amendment No. 82:

In page 13, lines 31 and 32, to delete "the effects specified in subsection (1)(a)” and substitute “an effect specified in subsection (1)”.

Amendment put.
The Committee divided: Tá, 7; Níl, 4.

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

Níl

  • Boyle, Dan.
  • Bruton, Richard.
  • Burton, Joan.
  • Ó Caoláin, Caoimhghín.
Amendment declared carried.
Amendment No. 83 not moved.
Question, "That section 19, as amended, stand part of the Bill" put and declared carried.
Progress reported; committee to sit again.
The select committee adjourned at 5.40 p.m. until 10.30 a.m. on Friday, 4 April 2003.
Top
Share