Amendments Nos. 23 and 25 are related and may be discussed together by agreement. Agreed.
SECTION 34.
I move amendment No. 23:
In page 44, subsection (1), to delete lines 5 to 9 and substitute the following:
"(i) a decision aforesaid made by the Commissioner in respect of a record held by the Commissioner or (in a case where the same person holds the office of Ombudsman and the office of Commissioner) made by the Ombudsman in respect of a record held by the Ombudsman, and".
Amendments Nos. 23 and 25 are technical and relate to a situation where there is an appeal to the information commissioner on a decision made by him or in his capacity as Ombudsman. It aligns the wording of sections 34 and 42 with other provisions in the Bill relating to the information commissioner.
Amendment agreed to.
I move amendment No. 24:
In page 44, subsection (2), line 15, after "application to him or her" to insert "from a head to seek permission to avail of a reason provided for under this Act not to agree to a request for information".
The appeals system in the Bill is focused on the citizen. This amendment reverses the appeals system. At present it is up to the citizen to make an appeal where a certificate of secrecy is placed by the Minister or others on information. I am surprised that it is a Labour Party Minister who is putting the onus on the citizen. Appeals can be complicated and technical and may involve professional, legal or scientific advice. The amendment would allow the Minister or authority to put the appeal to the Ombudsman or information commissioner in the case of a secrecy order being placed on information. We should reverse the onus to accommodate the citizen.
I wish to correct any impression that Ministers can issue certificates of secrecy at will. They can only be applied in highly restricted circumstances. In New Zealand only one such certificate has been issued. The occasions when one can be issued are when security, defence or international relations are in danger of being harmed. The matter has to be of sufficient sensitivity and seriousness to warrant bringing the appeal before the Cabinet and the High Court rather than the information commissioner and the High Court. A secrecy certificate can only be applied in very limited circumstances; it cannot be applied willy nilly.
I appreciate the point being made by Deputy McDaid. He is as anxious as I to have an open, user friendly system. The long title outlines the purpose of the legislation. The presumption is in favour of the citizen getting the information sought. Section 34(12) outlines the mandate of the information commissioner to presume that any refusal by a public body to grant access is not justified. What the Deputy is proposing would be administratively very cumbersome as it would mean that every refusal would go for adjudication to the information commissioner. The 30 per cent of refusals that can be disposed of by internal appeal to a more senior person in the organisation would go before the information commissioner. If this happened, he would be confirming these refusals where valid. This would reverse his role as citizens' champion. It would be similar to a situation where social welfare payments were made automatically, irrespective of entitlement with the Department having the duty of appealing payment to the social welfare appeals board. The normal procedure that has worked in every other country and in appeals systems here is that the public body makes an initial decision and the citizen can then appeal.
Section 9 of Senator Roche's Bill provides a similar appeals mechanism to that proposed here where the citizen makes the appeal. We have closely examined appeals systems in other countries. We found the Canadian system did not work. We met the Australian Minister and felt the system there was very legalistic, slow and expensive. Individual state jurisdictions in Australia such as Queensland and Western Australia have introduced an ombudsman system. We met the Ombudsman in New Zealand and discovered the system there works very well. We have, therefore, opted for an ombudsman type appeal system which will be open, accessible and user friendly.
Irish citizens are accustomed to going to the Ombudsman and it would be equally easy for them to go to him in his role as appeals commissioner. The appeal can be lodged at 52 St. Stephen's Green by phone call or in writing. The system will be simple and straightforward and will not place any great burden on citizens. I do not envisage any problems. If we were to do what the Deputy suggests, we could end up with something very cumbersome which would clog the appeals mechanism with matters that could be much more simply disposed of. The presumption built into section 34 (12) favours the citizen; the presumption is that a refusal is unjustified.
I have listened to the Minister and it is ludicrous that she is able to turn the argument around so eloquently. What will happen if an appeal is very expensive and technical involving professional legal advice and which will necessitate research?
Appeals to the Ombudsman would be free.
A citizen can appeal to the Ombudsman and within a reasonable timeframe——
A citizen would receive a decision within a reasonable timeframe. The only people who will have to legally justify what they are doing are public bodies. They will have to provide this justification by reference to a specific section of the Bill and to whatever overriding public interest they have to show, and not merely that the refusal relates to one of the exemptions. The exemptions are framed in terms of causing harm to security, for example, or that they damage or are contrary to the public interest. Overriding public interest does not in itself override the exemptions. The burden of proof lies with the public body as to why they should not provide the information. The citizen merely lodges the appeal, sits back and allows the Ombudsman to act in their interest. The mandate of the Ombudsman is that the presumption is in favour of the citizen. That is what is written into the long title.
I realise it is dangerous to draw parallels with other Departments but I have recently been trying, very unsuccessfully, to establish the rights of appellants in the area of education and state examinations. Can the Minister tell me what rights appellants have in terms of access to evidence? Perhaps it is in the Bill and I have overlooked it. The Minister is very emphatic that the rights of the appellant take precedence over the rights of the public body. From my experience in the area of social welfare, there is no great difference between it and the education area in terms of the rights of the appellant. The appellant goes before an appeals officer and invariably is deemed to be ineligible without having had access to the evidence. If we are to deal with democratic, fundamental, constitutional rights, then in any reasonable democracy the appellant would have a right of access to the available evidence. They do not have this under the Department of Education. I hope the Minister for Education will change her mind on that before the election, otherwise I intend to change it for her. I hope that, in this Bill, an appellant will have full right of access to the evidence against them held by the public body. It is fine to say that the rights of the individual have primacy over the rights of the public body but at the end of the day, the public body can come back with a lot of Civil Service gobbledygook and say that for reasons A to Z, the appellant is deemed to be ineligible to gain access to the information sought. The appellant has no right to the information which deemed them to be ineligible. That is totally undemocratic. Can the Minister clarify what is the right of access of the appellant to the full body of evidence and whether such a right is contained in this Bill?
The information commissioner acts on the citizen's behalf and is obliged to ensure that the mandate set out by the Oireachtas in this Bill is implemented. The commissioner has full power to send for persons, papers, records and so on to seek justification where the onus of proof is on the public body, to show why the information should not be provided. This is a model of appeal which has proved to be extremely effective in every jurisdiction in which it is operated and I have no doubt it will be extremely effective and customer friendly here. The Irish Ombudsman system has proved to be very citizen friendly even though the Ombudsman has not the power to make binding decisions. Citizens will always have the right to appeal to the High Court on a point of law.
Is the Minister telling me the appellant will not have a right to full access to the body of evidence against them in the case of a refusal? Can that body of evidence only be seen by the information commissioner?
We have made provision for an appeals system which is working extremely well in every jurisdiction in which it operates. The system will have informal powers to sort out problems and, failing that, the commissioner has powers akin to a High Court Judge to summon the necessary information. If the evidence of the case was the information being sought, lodging an appeal is not a way to gain access to the information which has been denied. The fact of lodging an appeal under the Freedom Of Information Bill does not give a person an automatic right to see disputed material as part of the evidence but the information commissioner will be able to see all the papers, will issue rulings and will be bound by the provisions of this Bill. If the refusal is not upheld by the harm test, by relating it to an exemption or by the public interest override, the information commissioner will rule in favour of the citizen's right to access.
I have some serious problems with that. The appellant has no access to the available body of documentary evidence. It is possible, as has been proven to be the case in a number of areas of appeal, that the appellant does not know whether the full body of documentary evidence is available. In some instances the full body of documentary evidence was not available. We all heard about the boxes of examination material which were lost in the bogs and there is no reason to believe that the same could not apply here. If the appellant's rights are to take primacy, as the Minister vociferously says they will, the body of evidence must be available to the appellant from the earliest possible stage. The Minister has said nothing to convince me that there is any section or subsection in this Bill which provides that primacy for the appellant. I see a serious shortcoming in the Bill from that point of view. The appellant's right of access to information is the fundamental principle guiding this Bill. If that is absent, the Bill is seriously flawed.
Should we invoke the wholly unjustifiable clause to bring this argument to an end?
That is an unreasonable comment.
The Minister has assured me that there would be no undue cost involved on the citizen in any disclosure of information to any authority or to any body regarding this section.
Amendment, by leave, withdrawn.
Section 34, as amended, agreed to.
Sections 35 to 41, inclusive, agreed to.