Dáil Éireann Debate, Thursday - 19 June 2014
72. Deputy Terence Flanagan asked the Minister for Public Expenditure and Reform the changes his Department has made since 2011 to the freedom of information legislation, including the changes made to publicly funded semi-State companies; and if he will make a statement on the matter. [26509/14]
View answerThe Freedom of Information Bill 2013 which passed Committee Stage in the Dáil last November and is scheduled for Report Stage on 16 and 17 July reflects the outcome of a detailed and comprehensive review of Ireland's FOI legislation. In overall terms the Bill comprises a substantial updating and modernisation of FOI legislation based on international best practice, it extends FOI to all public bodies, consolidates FOI law into a single Bill as well as restoring the main amendments to FOI introduced in 2003 which in significant respects restricted and curtailed the scope of Ireland's FOI regime.
In terms of publicly funded semi-Sate companies, a key feature of the new FOI legislation is that FOI will now apply to all non-commercial state bodies. As a result, FOI will apply to at least another 70 public bodies. As far as commercial state bodies are concerned, as I have highlighted on a number of occasions in the course of the passage to date of the FOI Bill through the Oireachtas, I believe that there are other important considerations that should inform and guide the approach taken in finalising the FOI legislation. The Government's assessment is that, in general, and consistent with the approach adopted since FOI first came into effect in 1998 commercial state bodies should not be subject to FOI requirements. The rationale for this approach is the risk of the uneven competitive market environment that would be created in circumstances that commercial state bodies operating in a competitive market were subject to FOI but their privately-owned market competitors were not. This would be expected to have an adverse impact on the commercial position of the state body in question, which would not be in the public interest or consistent with the need to safeguard the State's economic and financial interests. Moreover, as I have indicated previously, very significant information is available on the activities of these commercial companies reflecting their obligations under company law, the information they provide to Government Departments and relevant sectoral regulators which is available for release under FOI or otherwise.
Notwithstanding the above, the Government has decided that, as a State company operating in a monopoly market, Irish Rail should be subject to FOI. I made provision for that change by way of a Committee Stage amendment to the Bill in the Dáil in November. The Deputy will also recall that Irish Water has been made subject to FOI with effect from March 2014 under the Freedom of Information Act 1997 (by way of S.I. No. 140 Freedom of Information Act, 1997 (Prescribed Bodies) Regulations 2014). Irish Water will continue to be subject to FOI under the new legislation. Records dating back to July 2013, the date of the establishment of Irish Water, are available under FOI. Furthermore where a commercial state body provides a service under a contract to a public body subject to FOI, the records relating to that service will now be subject to FOI, following enactment of the new FOI legislation. The case for extending the application of this principle to other commercial state bodies in a monopoly position will be considered in the context of Report Stage for the Bill.
The Deputy may also wish to note the following features of the new legislation:
- Extension of FOI to all public bodies as a default with limited exceptions as set out in the Bill bringing long-established high profile exclusions from FOI within remit; and to significantly funded bodies to enhance accountability of such bodies;
- Reversal of restrictions to Government records including the very wide definition of Government introduced in 2003, restoration of the strict definition of what constitutes a Cabinet record, communications between members of Government will no longer be exempt from FOI and restoration to the original five years of the ten-year prohibition on the release of Cabinet records;
- provision for some liberalisation of the mandatory 'class' exemption put in place in 2003 in relation to diplomatic communications and defence matters;
- Requirement by public bodies to prepare and furnish publication schemes to promote the proactive publication of information outside of FOI with the publication schemes encompassing at a minimum the requirements of the current sections 15 and 16 of the 1997 Act;
- Provision of a number of key principles to guide public bodies in the performance of their functions under the Act to achieve greater openness and strengthen accountability;
- Extensions of the functions/powers of the Information Commissioner, provisions to ensure that FOI requests relating to information held electronically are dealt with effectively;
- Confirmation that there is a general right of access to records held by public bodies and in applying exemptions, the right of access should only be set aside where the exemptions very clearly support a refusal of access.
The FOI Bill will, therefore, once it is enacted by the Oireachtas very significantly strengthen the legal framework for FOI in Ireland.
