I move: "That the Bill be now read a Second Time."
I have great pleasure in speaking to the Government's Freedom of Information Bill. It arrives in this House following a most constructive debate in the Seanad where the Bill received the support of all sides. I was happy to accept positive suggestions from all sides to strengthen the Bill's commitment to openness. We all want to adopt the most effective mechanisms for ensuring the culture and practice of secrecy in public bodies are set aside for good. Information is power and access to information is fundamental to the reform of our democratic institutions to create genuine openness and to empower the ordinary citizen.
The Bill has drawn on best practice abroad and, in coming late in the day to this legislation, we have been able to draw on a wealth of legislative models and practical experience in other countries. I welcome the work of the Select Committee on Legislation and Security in enhancing openness and, in particular, their recent report on the review of the Official Secrets Act. I will return to this issue later.
What is freedom of information? Freedom of information is a legal right for every person to ask for and get access to records held by public bodies. It creates a new legal right for citizens to see public files. It recognises in law that public bodies should be directly accountable to the ordinary public they are there to serve. Freedom of information overturns the presumption of official secrecy set out in the Official Secrets Act and replaces it with the legal presumption that the public has a right to know.
The Bill carries a mandate to the public service to provide the public with access to information to the greatest extent possible consistent with the public interest and the right to privacy. That mandate is contained in the Long Title to the Bill. This Bill will mark a permanent change in the way public business is done. Giving people a legal right to know what public bodies do and what information they hold is extremely important because public services touch every aspect of our lives — as parents, as patients, as residents, when we pay tax or draw a pension.
The public bodies to be covered under the Bill include central Government Departments and their subsidiary agencies, including the Blood Transfusion Service Board, county councils and health boards, other public boards and semi-State organisations and organisations which are substantially publicly funded, such as secondary schools, voluntary hospitals or organisations contracted to provide services for people with disabilities. In case there is any confusion, the list in the First Schedule to the Bill is of bodies to be included, not those to be excluded.
When this Bill is in force, every person will have a legal right to see what is on his or her files held by public bodies and to correct that information if it is wrong. The Bill carefully protects personal privacy and personal information will not be available in the normal course to third parties. Community groups will be able to look at policies and plans which affect their community. This will include information on road repairs, waste disposal and recycling and information on issues which are important for the quality of daily life. People will be able to look at their tax and pension files. They will be able to see what happened to their application for a grant or how their dealings with any public body are being handled. People will be able to see how public bodies spend their money, how priorities are set and reasons for delays. Freedom of information will give the public the right to know how and why decisions are taken. Public bodies will be legally obliged to give answers to the public they serve.
Governments and Government bodies will become more accountable when information is out in the open. Freedom of information, everywhere it has been introduced, has brought about more open government and better administration of public services. Doing business in the open is the best guarantee of efficiency.
What is in the Freedom of Information Bill? At the very heart of freedom of information is the creation of a new legal right for every person to access any information held by a public body. This right will place an obligation on public bodies to provide the public with information when they look for it. Complementing this, a powerful mandate for openness and access to official information is set out in the Long Title. This establishes that the purpose of the Bill is "to enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy."
Since the foundation of the State, public bodies have worked in a culture where secrecy was the norm. Overturning the practice and philosophy of three quarters of a century involves a radical change. For this reason, the Bill sets out a range of key measures to enable, support and enforce this fundamental change.
Recognising that the public need information to get information, the Bill requires that each public body must publish information on its structures, functions and the categories of information it holds. This is so that members of the public can find out which public body has the information they are looking for and can learn what kinds of information are available.
The Bill places a legal duty on public bodies to help members of the public in making requests, so the public can pinpoint the information they want to see. It also requires that the public be encouraged to make requests for information under the Bill where they would otherwise not be able to access the information they seek.
When this Bill is in force, every person will have a legal right to correct any personal information on them on public files where it is incorrect, incomplete or misleading. In addition the Bill provides that each public body publish its internal rules and guidelines which it uses in decision making. In this way the public can be informed in advance as to the ground rules and basis on which their application for any grant or benefit will be judged. The Bill provides that, where a public body fails to publish such guidelines in full, nobody can be placed at a disadvantage where they might have been able to qualify for something if they had known the full rules.
The Bill requires public bodies to give reasons for the decisions they make to the individuals concerned. So, for example, when a public body turns down a grant those affected will have a legal right to the reason for that decision. The Bill also requires that people are told what the appeals mechanism is for challenging any such decision.
Taken together, these changes confer important and powerful new rights on individuals in their day to day dealings with public bodies. These provisions of the Bill set out important guarantees that public bodies are fair and seen to be fair in their dealings with the public.
The public's right to know will be backed up by a powerful and independent appeals system which is the cornerstone of the Bill. Experience abroad has shown that an effective appeals system is the best guarantee that the public actually get the information they look for and that public officials carry out to the full their legal duty to provide information.
The Bill establishes the Office of Information Commissioner which will act as an independent watchdog to ensure the public's right to know is upheld and not blocked. The commissioner will have power to issue binding rulings and to overturn decisions to withhold information. He or she will have power to examine all the documents in any case and to send for and examine witnesses. In the normal course, an unfavourable decision on a request for information will be reviewed, in the first instance, by a higher official in that organisation. If the decision is still not satisfactory, there is a right of appeal to the Information Commissioner. The onus of proof is on the public body to show why the information should not be released. As a result of the fine track record he and his office have as the people's champion, the Government have asked the Ombudsman, Kevin Murphy, to be the first Information Commissioner.
The commissioner will develop, protect and enforce the legal right of the public to get information. He will enforce the legal duty of public bodies to supply information. The Office of Information Commissioner will be a separate and independent office with its own staff.
The commissioner will have power to report to the Oireachtas on how the legislation is working and its operation in any case to which he wants to draw attention. He will have a role in promoting a more open attitude to release of information generally by public bodies, whether or not it has been requested. He will be able to investigate how any individual public body is meeting its legal obligation to provide information to the public.
Like freedom of information the world over, there are certain exceptions to the automatic right to see information. These exceptions are similar to those in comparable legislation elsewhere — Sweden, the US, Australia, Canada, New Zealand, and consist of those areas which commonsense requires should remain as confidential — information which could jeopardise security or law enforcement, breach legitimate personal privacy of individuals, or where, for operational reasons, release of the information at a particular time would be premature. These exemptions are sensible and balanced. The Bill will not be a charter for crime bosses or drug barons and will protect the criminal investigation process. Companies doing business with Government bodies can be assured that commercially sensitive information they provide will be protected.
Generally speaking, the exemptions are discretionary, not mandatory. They are "Yield" rather than "Stop" signs. They permit information to be withheld, but do not oblige or require it to be withheld. They are subject to two vital tests whose purpose is to ensure that exemptions are not abused. First, release of the material must be assessed as harmful to the interest concerned. In other words, it is not something about security but something which would damage security. Second, most exemptions can be set aside where the balance of the public interest favours disclosure.
The purpose of the exemptions is not to inhibit disclosure but to protect information in circumstances where its disclosure could be contrary to the public interest. Subject to that public interest concern, any discretions under the Bill are intended to be used to the greatest extent possible to provide access to information in line with the mandate given in the Long Title. The provisions in relation to exempt information are set out in detail. The practical experience of freedom of information elsewhere suggests that openness is better served where exemptions are clear and specific.
A broad brush exemption allows more information to remain hidden rather than something which would harm law enforcement or security. Tightly drawn exemptions ensure the release of information is at a maximum. In the event of a public body using an exemption to refuse to grant access to a record, the matter does not end there. It will ultimately be for the Information Commissioner to decide on appeal whether access should be granted.
In exceptional cases, where the release of information would prejudice law enforcement, defence, security, or international relations and the matter is sufficiently sensitive and serious to warrant it, a Minister may issue a certificate. This effectively removes the avenue of appeal to the Information Commissioner. Instead, a certificate will be reviewed by Cabinet colleagues and must be withdrawn where a review finds insufficient grounds for its use. An appeal can also be made to the High Court.
A number of requirements must be met before a certificate can be issued. First, the matter must be likely to prejudice a key matter under either of the exemptions mentioned. Second, the matter must be of sufficient seriousness or sensitivity to justify the issue of a certificate. If not, the courts will so find.
Experience in common law jurisdictions abroad has been that certificates have rarely been used and only in the early days of freedom of information. I emphasise that the intention of the Bill is that a certificate should be issued only on a most exceptional occasion where the nature of exempt information is such as to justify excluding the Information Commissioner from access to the records concerned.
This Bill effectively turns the Official Secrets Act on its head replacing the presumption under that Act that all information is secret unless expressly authorised for release with the presumption that all information can be made public unless its release would give rise to specific harm. The Bill amends the Official Secrets Act accordingly.
As I mentioned, the Select Committee on Legislation and Security has also recently issued a very good report on the Official Secrets Act. A key recommendation of that report is the repeal of the Official Secrets Act and its replacement by criminal sanctions in relation to espionage and the unauthorised disclosure of specific categories of information and civil sanctions in relation to other breaches. The committee's report suggests in paragraph 5.10 that this be done by either new legislation providing for such matters or as part of criminal justice legislation. These recommendations anticipate and complement this Bill.
I wish to put on record my strong support for the committee's report. In line with the Government's commitments to act in this area, I look forward to early action on the matter by the Department of Justice in whose remit the Official Secrets Act lies.
We are concerned to ensure that, when people look for information, it will be readily available, that teething troubles will not derail the principle and purpose of the legislation and that foreseeable steps are taken to have a user friendly system which works. Within the public service, a special group is overseeing the practical steps Departments must take to make access to information a reality when the Bill is enacted. These include reorganising the filing and file retrieval systems and the training of staff. The Bill creates a statutory duty on the Department of Finance to ensure these practical steps are taken to make access to information work. There will be a special unit in that Department to drive the working of the Bill when passed.
There is a lead-in time of one year from the passing of the Bill to ensure everything is prepared and can run smoothly from day one. Because all internal rules and guidelines will be published from day one and will be equivalent to the force of law, Departments must ensure these are complied, scrutinised and rationalised in time for the Bill's starting date. Other important public bodies are automatically included in this first phase — they are listed in the First Schedule — and county councils and health boards are automatically included six months later at the most.
The Long Title sets out the purpose of the Bill as, among other things, enabling the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy. It is the purpose clause which guides interpretation of the discretions offered under the Bill for the release of information. It is the mandate given to Government Departments, to the Information Commissioner and to the courts in deciding on queries under the Bill.
Part I contains standard provisions on Short Title, commencement and interpretation of various terms used. Part II is concerned with access to records and establishes a legal right for the public to access records held by public bodies. It sets out arrangements for making requests and determines times within which public bodies must respond and the ways in which access may be granted. In general, people must be given the information as soon as possible and within 20 working days. Public bodies must publish information about themselves, the information they hold and the internal rules and guidelines used in decision-making. This Part also deals with deferral and refusal of access to records. It sets out procedures for internal review, establishes rights for each member of the public to access reasons for decisions directly affecting them and to have personal information held by a public body amended where such information is incorrect, incomplete or misleading.
Part III sets out a series of related measures to protect information relating to key areas of Government activity. Information may be protected where its disclosure could damage the security or defence of the State, international relations or law enforcement. Matters before Government or information likely to prejudice the operations of Government may also be protected for a period. In addition, information relating to third parties may be protected where disclosure may constitute a breach of confidence, invasion of privacy or damage to commercial interests. Many of the protections outlined can be set aside where the public interest would on balance be better served by the disclosure rather than the withholding of the records in question.
Part IV establishes the Office of Information Commissioner and sets out the functions and powers of the Commissioner and the procedures for review of decisions under the Bill. In addition, the Commissioner is required to keep the operation of the Bill under review and may carry out investigations into procedures adopted by public bodies for the purpose of compliance with its provisions.
Part V presumes a decision to have been made in the event of failure by a public body to reply to a request. This is to allow for immediate access to the appeal system. It provides for appeals to the High Court, legal protections for the release of information under freedom of information, exclusions from the Bill, charges and the amendment of the Official Secrets Act. It provides qualified privilege to authors of documents and those who release them under freedom of information.
Freedom of information commands support across party lines. This was most apparent in the recent debate on the Bill in the Seanad. In this regard I acknowledge the contributions of Senators Roche, Lee and Dardis. I also acknowledge the contributions of Senators Howard, Sherlock, and O'Sullivan. Arising from that debate, the Bill has been amended to take account of these contributions. I look forward to a similarly constructive and informed debate in this House.
Every country which has introduced freedom of information has seen significant improvement in the quality of public administration and in the accountability of public services. I have no doubt that this Bill will quietly enhance democracy by making Government bodies more accountable to the public they serve. It will create a new climate of openness. Because information is power, it will transfer power to ordinary people from those behind closed doors. Freedom of information will mark a profound and lasting change in the way public business is done.
I commend the Bill to the House.
