I agree with the ethos and spirit of this legislation. The key to the legislation in terms of its effect in providing open government will be the manner in which the exemptions, which are plentiful, are interpreted by the appeals commissioner or the body that retains the information sought. I was drawing a comparison with earlier cases in which it was deemed to be in the public interest to retain information when it was sought in the House. The beef tribunal would not have been necessary if legitimate parliamentary questions had been answered here. If the authorities at the time had been challenged with the definition of the public interest, I am sure they would have made a cogent argument for retaining the information sought. In their view it would not have been in the public interest to release the information because it would have exposed massive malpractice in the beef processing industry and have had implications for the Department of Agriculture, Food and Forestry.
The instinct to self-preservation exists in all bodies, including the human. It certainly exists in the body politic. Governments tend to preserve their interests and have gone to enormous lengths to retain information, the release of which would have prejudiced their being in Government. The collapse of a Government must be avoided at all costs and that applies to all Governments. Therein lies the real difficulty with this legislation.
A tribunal has reported on negligence in the BTSB which led to the infection of many people. From my first reading of the report it is clear the Department of Health, the BTSB and the individuals concerned were mindful of protecting their interests and withholding information that would have represented an appalling panorama of doom if released into the public domain. There was an instinct to cover up and that had to be sustained over many years by retaining information and failing to give Ministers sufficient information before coming into the House to reply to parliamentary questions. That was complemented by the instinct of Ministers to preserve themselves and their Governments from trouble. The report states that "there was a sort of vague irresponsible hope that the problem might go away".
In the hepatitis C crisis the authorities' interest in self-preservation was far stronger than the public interest. If they had been challenged by the exceptions in this Bill relating to the public interest, they would have argued it was in the public interest not to admit that the blood supply was contaminated. They would have said it was in the public interest to protect the State from widespread claims of negligence by the persons so infected. They would have argued to the commissioner or to their Cabinet colleagues that it was in the public interest that this information remained secret because public confidence in the blood supply was at stake.
Those are examples of cases in which Ministers, a State body and individuals would have argued the public interest was best served by the retention of information. Public bodies, authorities and Governments have no problem releasing information that is non-controversial. This legislation will be tested only in cases involving damning information which could cause the collapse of a public body or involve a large suit against the State. We must examine carefully the list of exemptions and the procedures in place for their use.
In the event of a public body using the exemption to refuse to grant access to information, there is provision for an appeal to the commissioner to decide whether its use of the exemption is proper. The Minister stated that in exceptional cases — these are the cases that cause problems — a Minister may issue a certificate which will remove the right of referral on appeal to the commissioner. When that right of appeal has been removed from the commissioner it will be reviewed by other members of the Cabinet. That is an interesting scenario because under the rule on Cabinet confidentiality one would never find out what happened in a particular case. The Cabinet operates collectively and decisions on retaining or releasing information would not be made public. The Bill provides for an appeal to the High Court, but major obstacles undermine its fundamental principle, the public's right to information. From my experience as an Opposition spokesperson trying to extract sensitive information by way of parliamentary question, I am not confident that this or future Governments will be forthcoming with sensitive or explosive information when their skins are at stake.
It has been stated that section 6 reverses the existing principle under the Official Secrets Act that everything is assumed to be confidential. I will attend a briefing meeting with the officials on this matter because I am not sure that this is the case. Section 4 of the Official Secrets Act effectively makes it a crime to communicate official information unless such communication is permitted. Section 6 of this Bill extends considerably the circumstances in which some communications are permitted. In so far as it goes, that is a move in the right direction, but it does not abolish the mindset that treats official information as secret unless there is an exception. To do that we would have to get rid of the Official Secrets Act.
The Select Committee on Legislation and Security recently published a detailed report on a review of the Official Secrets Act. The extent of the committee's concerns are reflected in its recommendation that the Act should be repealed at the earliest possible date. Time is of the essence if we are not to put this legislation on the Statute Book in a half-baked manner. It is important that real work continues on the repeal of the Official Secrets Act. The committee noted a number of flaws in that Act. Under its provisions a document acquires confidential status simply by being stamped as such. A document can acquire unchallengeable confidential status by being certified as such by a Minister and even the courts cannot challenge that certification. There are serious doubts about the constitutional validity of this. The Act uses criminal sanctions where civil or disciplinary ones might be more appropriate and fails to distinguish between information the release of which would damage the national interest, and information which would not. It is not clear whether the Official Secrets Act allows a public interest defence.
I accept that in enacting the Bill the Government did not hide behind the Officials Secrets Act. Under section 32(1)(a) it is irrelevant whether a Minister has certified a document as secret if a person requests access to it. It is time to repeal the Official Secrets Act which should be done by amending this legislation or by introducing another Bill. This Bill is not due to come into force until a year after it is passed, so it should be possible to place a new Bill on the Statute Book by then to replace the Official Secrets Act.
I hope that access to records will not be treated in the same way as parliamentary questions to Ministers are dealt with in this House — in other words, by giving as little information as possible. It is important for this House to observe the right of access to information. Under section 15(5), the Minister for Finance must ensure that appropriate measures are taken by public bodies to train staff and to put organisational arrangements in place to breathe life into the spirit of this Bill. It is important that the House is kept informed of these developments.
No section requires public bodies to preserve documents. In the absence of such a provision, there could be a temptation to destroy records or documents which would be of interest to someone who subsequently requested access to them.
Section 6(4), which defines the types of records to which the public may have access, threatens to destroy many of the good aspects of this Bill. Subject to certain limited exceptions, people will not be entitled to access to records created before the commencement of the Act. Amendments were made to this section during Committee Stage in the Seanad. The Minister said it was the Government's intention to provide access to past records on a rolling basis — first, two years, then four years, six years, etc. While the Minister was willing to respond to the concerns expressed in the Seanad, further consideration of this issue is required.
It is important to instil public confidence in the new measures. We are a few years behind other democracies in providing access to information. If the Bill is passed in its present form, almost every request for access to information will be turned down, not on the grounds that the information sought was prepared in confidence or that it is commercially sensitive — such exemptions are provided for elsewhere in the Bill — but because the Bill does not cover records created before the Bill came into force. This could have a serious negative impact on public confidence in the new measures.
I do not understand the reason for the blanket approach adopted in section 6(4). The Minister's rolling back approach should start at the same time as the Bill comes into force — in other words, people should be allowed access to documents not less than two years old. In the Seanad debate, the Minister said it was a question of putting filing systems and access in order. Given that Departments will have a year and local authorities 18 months from the passing of this Bill until it comes into force, not to mention all the time they had since this legislation was mooted, there is room for progress on the issue of the right of access to documents created before the commencement of the Act.
I am also concerned about the 18 month implementation period for local authorities. The Bill, as originally drafted, allowed for three years but this was amended in the Seanad. It is important that changes are made at local level to allow access to information. Local authorities are run by county or city managers and his or her officials. We had an extraordinary situation recently where a councillor had to sue a county manager to get access to records. Many managers are willing to co-operate with elected representatives. Local authorities are playing an increasingly important role in the day to day lives of our citizens. There is no reason a culture of secrecy should prevail, so it is vital to replace it with openness.
Many people would like to know the extent to which "section fours" are still being passed by local authorities. Section fours cause political alarm bells in many local authorities because they override a planner's decision on a particular planning application. I am concerned that some local authorities have an appetite for section four motions. Many citizens look forward to the reform of local authorities, particularly in relation to the planning process. There is widespread concern about undue influence being placed on elected representatives in relation to planning decisions. It will be good for democracy if our citizens feel the planning process is divorced from political interference.
Section 19 does not deal with the issue of Cabinet confidentiality. Subsection (2) states that access cannot be granted if the record relates to statements made at a meeting of the Government. I do not expect the Minister to mention the Supreme Court decision in the Attorney General v. Hamilton case. Members of this Government and of the Minister of State's party were among the most vociferous critics of that decision and the most vigorous proponents for a referendum to change it. It is ironic that this Bill proposes to further consolidate the confidentiality of Cabinet discussions. Unless we deal with this issue and repeal the Official Secrets Act, we will have some way to go before we achieve open government to which this Bill aspires.
If the spirit of this legislation was translated into the replies to parliamentary questions, we would have a reformed democracy. The classic reply to parliamentary questions is that "the information sought is not readily available and could only be obtained by the expenditure of a disproportionate amount of staff time and resources". Such a reply hides a multitude, is crooked in its intent and is used to mislead this House when Deputies legitimately seek information on behalf of the people. This Government has a long way to go to match its stated commitment to openness with the ethos of this Bill and parliamentary procedures.