I move amendment No. 22:
In page 29, subsection (1), to delete lines 26 to 29.
I am proposing to delete paragraph (b) in page 29 subsection (1). This paragraph is a vague, subjective catch all phrase. It is similar to subsection 10(1)(c). A public body could rely on it if it could not bring itself within one of the more clearly defined exemptions.
The proof of this legislation will be how the exemptions are used by the various bodies. It is laudable legislation in that it provides for a right of access to information. However, we must look at the menu of exemptions which could drive a coach and four through the ethos of the Bill.
This paragraph allows a public body to refuse access to a record if disclosure "would have a significant adverse effect on the performance by the body of any of its functions relating to management". That is a very wide exemption and this is in addition to exemptions for the deliberation of public bodies in section 20, the preparation for negotiations by those bodies in section 21, commercially sensitive information in section 27 and information obtained in confidence in section 26. This paragraph could be used to justify a refusal to disclose information which would shake public confidence in the management of a public body thereby causing a significant adverse effect on the performance of the body of any of its functions relating to management.
Let us bring reality into these deliberations and consider, for example, the disclosure by the BTSB that plasma obtained from patient X was used to manufacture anti-D after she had been diagnosed with infective hepatitis. If a request was made for that information by a Minister or anyone else the BTSB could refuse on the basis that its disclosure would "have a significant adverse effect on the performance by the body of any of its functions relating to management". There are enough other exemptions. It is an unjustifiable position for a body to take. As I said in relation to previous catch all phrases, to say that it is too much trouble or that it would involve a disproportionate amount of work for the public body is an excuse. We can deal with that and the Minister indicated she would do so.
However, here is another exemption. The organisation can claim that the disclosure would have a significant adverse effect on the performance by the body of any of its functions relating to management. This is a classic opening for any body which did not want to release a public record of importance.
The Minister should remember that we are not talking about inconsequential information. All these matters where disputes will arise will relate to controversial information. Public bodies will not go into a tailspin trying to use these exemptions in relation to innocuous information. Where information is controversial and where it has the capacity to bring down Governments or cause trouble in any of the bodies covered in this Bill, that is where these exemptions will be used to avoid giving the information. We must be very careful.
I can see the hand of the Department of Justice all over this Bill. It has got this far no thanks to the Department of Justice. The Minister said the Official Secrets Act, 1963, is owned by the Department of Justice. This Bill has been diminished substantially even before it got to the drafting stage by the impact of the Department of Justice and the culture of retaining rather than giving information which has grown up in the public service.
Paragraph (b), which allows a public body to refuse to disclose information if it would have a significant adverse effect on the performance of the body's function, is a convenient excuse. We should limit the exemptions as much as possible. The purpose of my amendment is to draw attention to the danger of all these exemptions which drive a coach and four through the ethos of the Bill.