Amendment No. 1 is consequential on amendment No. 2. The suggestion is that we discuss amendments Nos. 1 and 2 together by agreement. Is that agreed? Agreed.
Freedom of Information Bill, 1996 [Seanad]: Report and Final Stages.
An Leas-Cheann Comhairle
I move amendment No. 1:
In page 5, line 27, to delete "AMEND" and substitute "REPEAL".
We discussed this matter at the Select Committee on Legislation and Security. It deals with the long title of the Bill in which the Minister provides that the Bill will amend the Official Secrets Act, 1963. As the Minister will be aware, the committee which reviewed the Official Secrets Act recommended the repeal of that Act and the Select Committee on Legislation and Security accepted that recommendation. Therefore, I cannot understand why "AMEND" rather than "REPEAL" appears in the long title. The Minister discussed this previously but we must be clear that the intention is to repeal that Act.
I asked the Taoiseach on the Order of Business when this House would debate the report of the Select Committee on Legislation and Security on the Official Secrets Act, 1963. We are now on the eve of a general election and it appears that the Government has not taken on board the recommendations of that committee or sought to have that report debated in this House. If there is to be freedom of information, transparency and accountability, one must deal with the Official Secrets Act.
Fianna Fáil has already stated in this House that it does not intend to delay the Freedom of Information Bill but legislation is required to deal with the Official Secrets Act and it must first be debated in this House. The Taoiseach stated in a reply to Deputy Kitt that there were no plans to change the Official Secrets Act but he was contradicted by Deputy Flanagan, the Chairman of the Select Committee on Legislation and Security. The report of that committee which was based on consultation with law lecturer, Mr. Mel Cousins, recommended the outright repeal of the Official Secrets Act which it describes as having contributed significantly to a culture of secrecy in the Civil Service and as being inconsistent with rights to freedom of expression and the principles of good government.
The Official Secrets Act, 1963, which was modelled on the best British practice of the time, protects just about every document connected with the running of the country. In case there would be any doubt, it allows a Minister to make a document secret or confidential simply by certifying it so. We will refer to that section later.
The Official Secrets Act also gives the prosecution, rather than the court, sweeping in camera powers and it has been used to intimidate and, on occasion, prosecute journalists, such as Ms Susan O'Keeffe and Ms Liz Allen. In the more recent case, Ms Allen was prosecuted for publishing a Garda document where the Garda Síochána claimed that disclosure of a mistake by gardaí in the Brink's-Allied robbery investigation prejudiced its officers, even though the information published by the journalist was already widely known. That is the type of information to which we seek access.
It is appropriate to examine this Bill because it could, with the appropriate amendments, repeal and replace the Official Secrets Act, 1963.
I will be brief because we debated this matter at length on Committee Stage. It is a pity that we are not repealing the Official Secrets Act, 1963, at the same time as enacting this radical Bill. The creation of the right of access to records is the most important single provision of this Bill but, as I said on Committee Stage, this is subject to a wide and dangerous range of exceptions. The proof of this legislation will be how those exemptions are enforced and used by the person who is withholding the information.
There is little point in announcing a principle of openness and access to information if everything sensitive to the authorities can be excluded by way of exemption. Section 4 of the Official Secrets Act, 1963, makes it a crime to communicate official information unless such communication is permitted. Section 6 of this Bill extends considerably the circumstances in which such communication is permitted. In so far as it goes, that is a good development and an improvement on the status quo. However, this Bill does not obliterate the mindset which treats official information as being secret unless there is an exception. To do that we would have to repeal and replace the Official Secrets Act in its entirety.
The Select Committee on Legislation and Security recommended that the Official Secrets Act, 1963, be repealed as soon as possible. Given that this Bill will not come into force for a year after it is enacted, it should be possible to introduce a Bill to repeal the Official Secrets Act. It would be better, in terms of clarity and commitment to the creation of a brave new world in terms of access to information and open Government within a modern democracy, if the Government simultaneously repealed the Official Secrets Act. It is totally illogical to enact a Freedom of Information Bill while retaining the Official Secrets Act on the Statute Book.
The Opposition advocate the repeal of the Official Secrets Act and is backed up by the excellent work and report of the Select Committee on Legislation and Security in teasing out the relevant issues.
I support Deputy McDaid's amendments which are fundamental to the overall consideration of freedom of information.
While the Bill has been described as an improvement, it represents no great step forward or leap into the future, contains no bold initiative and, by definition, will maintain the culture of secrecy within the public service. We have reached the stage where we should be prepared to repeal the Official Secrets Act 1963 and replace it with more appropriate legislative measures which have been proposed by Members on this side of the House and discussed in great detail before being endorsed by the report of the Select Committee on Legislation and Security.
The outcome of the deliberations and examination of this Bill by the Select Committee on Legislation and Security, chaired by a Member of the Fine Gael Party, Deputy Flanagan, who has a deep interest in this area backed up by considerable experience, was its recommendation the Official Secrets Act be repealed without which, it said, very little progress will be made. In paragraph 4 of its recommendations the committee stated that the Official Secrets Act, 1963 should be repealed at the earliest possible date and should be replaced by criminal sanctions in relation to espionage and the unauthorised disclosure of specific categories of information, which does or may cause serious harm to the national interest.
The fundamental question arises: who determines what is the national interest? Is it necessary to protect the national interest? Of course it is. That issue has been thrown in as a red herring from time to time merely to maintain the culture of secrecy which should be abolished, in the public service. The select committee is correct in saying that the Official Secrets Act 1963 should be repealed and replaced.
In paragraph 5 of its report the Select Committee on Legislation and Security recommends that Circular 15/79 should be withdrawn and that the circular issued in its place, following enactment of this Bill, should clarify the position in relation to disciplinary proceedings arising from unauthorised disclosure of information which would be no longer a criminal offence on repeal of the Official Secrets Act.
People wonder why they do not receive information from the public service, specifically the Civil Service. The reason is every civil servant, on recruitment, must sign Circular 15/79 which says, in effect, everything is secret unless otherwise stipulated by some higher officer. While some people may contend that a civil servant may provide a great deal of information without being questioned, that is fine as long as nothing goes wrong but, whenever it does, that junior, middle or high ranking civil servant will be subjected, in retrospect, to the decision of a senior officer or the Minister. That type of secretive system stultifies imagination, initiative and development within the Civil Service.
Why the Minister strayed from the broader approach to freedom of information I do not know but it appears that something frightened off the Government and Minister; somebody got to them between the time the initial proposals were advanced and the greater examination began. What Members want is an open Civil Service, backed up by the necessary controls clearly identified by the Select Committee on Legislation and Security which engaged in an excellent analysis of this issue. It was one of the most incisive, valuable exercises ever undertaken by a committee of the House and has been particularly helpful to Members.
However, what we propose to enact is a half measure. I do not know why the Tánaiste, who is so enthusiastic about freedom of information, has backed down. There is no doubt that as long as the Official Secrets Act, 1963 remains on the Statute Book, accompanied by Circular 15/79, all talk about strategic management amounts to mere psycho-babble. Let us address it in the full realisation of what is being proposed. If we do not break down the culture of secrecy binding civil servants, their potential will remain untapped and development will be stymied within the Civil Service. That begs the question: in whose interest is it to stifle that potential? One does not need to be a genius to answer that, for two different reasons: first at Government level where there is a fear of information being too readily available and, second, at management level where power and control is vested in the head of the Department.
The Minister of State is telling us separately that what she wants to do is hive off much of that activity, vesting even greater power in the heads of Departments. That cannot be done without repealing the Official Secrets Act. Tackling the culture of secrecy is fundamental to the principle of this Bill. It appears there is an acceptance of the half measure. I do not agree with that. If we accept it we will be perpetuating the culture of secrecy which adversely affects the management of the Civil Service, the flow of information and the readiness with which it is provided. As long as civil servants can be criminalised by releasing information, a serious problem remains, because they will have to continue to keep their heads down.
That is not the type of development we want to see; it is not that of an outward-looking, vibrant, young country prepared to take on anybody worldwide and compete in international markets with the support of the Civil Service. For many years I have noticed the Dutch, who are well known as international merchants trading worldwide, seeking and developing business, and the manner in which its civil service operates in co-operation with industry, agriculture, horticulture and production, as though all were working for the same country albeit with slightly different controls and disciplines. Their civil servants are free to participate and work with industry. There is greater mobility between industry and their civil service. We, too, can have such a system if we only free up our civil servants and afford them greater autonomy.
In support of what we on this side of the House have advocated, the Select Committee on Legislation and Security has now formally reported — the Ombudsman and Data Protection Commissioner participated in the committee's deliberations — that no progress will be made until such time as the Official Secrets Act, 1963 is repealed.
They would be happy to see the improvements the Minister is making but they came to the meeting and said we would not go anywhere until we did away with the Official Secrets Act and made other provisions. That is the reason I strongly support the proposals by Deputy McDaid. We should repeal the Official Secrets Act and introduce a more far reaching Freedom of Information Act. We should provide for a confidentiality list, establish an independent information commission and an information commissioner.
This is an important occasion, an opportunity for which the House has waited for some time. Work on this Bill began while Fianna Fáil was in office with the Labour Party but today we are about to pass this legislation without taking into account the Official Secrets Act and its effect. That worries me. We are in the run-up to an election which will pull the curtain on this work. The opportunity to take a bold and imaginative step is being lost and half measures are being taken by the Government.
I regret that we are setting aside the strong recommendation of the Select Committee on Legislation and Security produced after lengthy consideration of all views on the whole matter, taking into account external reports and the views of people directly involved, including the data commissioner, the Ombudsman, and an independent consultant. Deputy McDaid is right to propose the repeal of the Officials Secrets Act and I support the amendments.
I support the amendments put forward by Deputy McDaid. This is the final stage of a Bill that purports to facilitate access to information in the public arena.
I draw the Minister's attention to a serious matter which I raised also on Committee Stage. The Minister has failed to grasp the fact that there are Government Departments presided over by Ministers who deliberately and blatantly refuse access to information. Students for example are treated in a derisory way by Government Departments when they seek freedom of access to information. The Minister should suggest to the Minister for Education before the Bill is passed what should be done with the State examinations appeal system in the Department of Education. The manner in which the Minister and the mandarins in the State examinations branch of the Department of Education treat students is nothing short of disgraceful. They are denied access to information on the body of evidence presented at the appeals board and they do not know whether their examination papers are fully available. I am not casting aspersions on the mandarins in the Department of Education, who are professional, fair, honest and decent, but I am casting aspersions on the manner in which successive Governments and successive Ministers have allowed themselves preside over a system where students who appeal examinations are blatantly and deliberately denied access to information and denied representation by their subject teacher. I have made frequent unsuccessful attempts here, including by way of Dáil questions recently, to right this terrible wrong and I have been virtually ignored. In our so called democratic world students who appeal the examination results are entitled to all the evidence.
An Leas-Cheann Comhairle
I ask the Deputy to address the amendment before the House.
The amendment is about repealing the Official Secrets Act. The Official Secrets Act is invoked every year without fail by the Department of Education and the mandarins in the State examinations branch. That is what I am getting at and I am appealing to the Minister who purports to be the facilitator of access to public information, to go to her sister Minister and say enough is enough. Let us put into the public arena information for our students who appeal their examination results and let us stop this cynical, unfair, unjust, and blatantly undemocratic wall of silence, secrecy and concealment that is manifest in the examinations branch.
The Minister purports to promote freedom of information. I believe she is genuinely seeking to do that. If she allows Government Ministers to continue to deliberately withhold information that should be available in the public arena, then this Freedom of Information Bill is a shambles. If an example is to be given with regard to freedom of information and access to information in the public arena, it must start at the top with the Taoiseach and Government Ministers. For recent examples of where information has been withheld we do not have to go any further than this Chamber but I will not dwell on that. My message to the Minister of State is to go to the Minister of Education and demand that the appeals system in the examinations branch be made totally open, transparent, accountable, fair and free in terms of availability and full access to information.
A Freedom of Information Bill or a Bill revoking an Official Secrets Act becomes meaningless if people believe they are being denied a fundamental and probably a constitutional right to access to information. There is a serious job to be done at Government level before going to the semi-State companies and other companies in the private sector to seek to implement the Bill. With respect, implementation of this Bill must start in Government Departments.
While I realise there is a time limit on the debate I speak in support of the spirit of the amendment that the Official Secrets Act be repealed. As the matter has been referred to by a number of speakers I will not repeat the comments made except to lend my voice in agreement. This amendment, if accepted, would present us with a technical difficulty in the House. The Minister stated on a previous occasion it is the Department of Justice that will ultimately repeal the Official Secrets Act and not the Minister's Department. For that reason, I will not support the amendment if it is put to a vote.
On behalf of the Select Committee on Legislation and Security I record my appreciation of the welcome given to its report on the Official Secrets Act which was published earlier in the year. I particularly refer to comments made by the Minister of State at the Department of Enterprise and Employment, Deputy Fitzgerald, who acknowledged the fact that a key feature of the committee's report is a recommendation to repeal the Official Secrets Act and replace it with appropriate criminal sanctions. Unfortunately, such sanctions are not included in this Bill and, therefore, a repeal of the Official Secrets Act at this juncture would not be the best way to proceed.
I call on the Minister for Justice to state her intentions regarding the future of the Official Secrets Act. As stated in the report, it appears that the protection of the right of freedom of expression advocated in the Constitution and international conventions on human rights, combined with the requirements of good government, means that we should have the maximum possible freedom of access to public information. For the first time, the Bill acknowledges and accepts that in statutory form but it is inconsistent with the terms of the Official Secrets Act, 1963. As a result, the Government should repeal the Official Secrets Act at the earliest opportunity. I am aware there is a difficulty with regard to the time-scale involved. However, before the end of this Dáil, it would be apt if the outgoing Minister for Justice committed herself to such a repeal at the earliest opportunity during the lifetime of the next Dáil.
Appropriate criminal sanctions to deal with espionage and the unauthorised disclosure of specific categories of information are needed. If the amendment was carried, it would make the current situation worse and give rise to grave uncertainty. The repeal of the Official Secrets Act should be proceeded with as a matter of urgency.
I reassure Deputy Liam Fitzgerald that the examination appeals system will be fully open and available under the terms of the Bill. Therefore, any difficulties will be removed when the legislation is enacted.
I appreciate the strong personal commitments to the abolition of the Official Secrets Act expressed by Deputies McDaid, O'Donnell and Flanagan. I commend the work of the Select Committee on Legislation and Security on its excellent report which I am anxious to see implemented in full. Last evening, I spoke to the Minister for Justice about work on developing the appropriate criminal sanctions legislation in respect of espionage and the unauthorised release of information which could damage the security of the State or the criminal process. We must also consider appropriate civil sanctions in cases where a gross violation of the personal privacy of individuals may occur. Deputy Woods, whose brief includes the protection of personal privacy about which he harbours strong beliefs, referred to the Data Protection Commissioner and we must provide the appropriate machinery to deal with both the criminal and civil considerations.
I am as anxious as other Members to see the total repeal of the Official Secrets Act. When the Freedom of Information Bill is enacted and the Official Secrets Act abolished, we can stand proud with regard to the openness of our democracy. I am pleased to reassure Deputies that section 4 of the Official Secrets Act, which causes most grief and sets out the presumption that all information is secret — when I joined the Civil Service 27 years ago I was obliged to sign the Official Secrets Act and give an undertaking not to park my bicycle at Government Buildings — will be made redundant by section 48 of the Freedom of Information Bill in respect of information made available under terms of the new legislation. We are effectively turning the presumption of secrecy on its head and replacing it with one of openness.
If I were to adopt the amendment tabled by Deputy McDaid, with which I have great sympathy, a vacuum would remain with regard to unauthorised disclosures which could put the security of the State at risk at a time when there is armed conflict on one part of this island. It would be prudent to wait until the legislative framework, the preparation work for which I have asked the Minister for Justice to expedite as quickly as possible within her Department, is in place.
Deputy O'Donnell made the point that we have a year's grace within which the preparatory work for the commencement date of this legislation will be carried out. There is a window of opportunity and I hope that, by the time the Freedom of Information legislation comes fully into force, the Official Secrets Act will have been repealed. When Deputy McDaid raised the question of a debate on the Select Committee's report on the Order of Business, the Taoiseach indicated his willingness to make time available for such a debate. A good and comprehensive debate on that report in the House would set the stage for the work to be carried out by the Department of Justice.
I welcome the all-party support for this legislation. In the 75-year history of the State, successive Governments have done nothing to repeal the Official Secrets Act or put in place Freedom of Information legislation. I hope that, if it has not already been disposed of, the parties which assume power after the coming election will conclude the work on the Official Secrets Act. It is important that there is all-party consensus in this regard. For that technical reason, although I sympathise with it, I cannot accept the amendment. However, I am doing everything in my power to accelerate the total repeal of the Official Secrets Act. The guts of that legislation are torn out in section 48, which overturns section 4 of the Official Secrets Act and makes provision to make information available under the Freedom of Information Bill.
An Leas-Cheann Comhairle
Before calling on Deputy McDaid to conclude the debate on the amendments, do any Members wish to avail of the newly established two-minute speaking slot?
While I accept the point made by the Minister of State and Deputy Flanagan regarding criminal and civil sanctions legislation, it still appears there would have been little difficulty in garnering the proper staff to put such legislation in place.
The Select Committee reported that espionage is more clearly defined as giving information to a foreign country or an unlawful organisation with intent to prejudice the security of the State. It more or less tied down the definition of espionage and made a clearer definition between "wrongful disclosure" and "unauthorised disclosure". The committee recommended that "wrongful disclosure" would be criminal where it interfered with national security whereas "unauthorised disclosure" involves what are commonly referred to as "leaks" to newspapers, which can be dealt with through normal disciplinary channels in each Department.
The case has been made that, because of the convoluted process involved, it would be extremely difficult to replace the Official Secrets Act with the Freedom of Information Bill but I do not agree that is the case. There is a large gap developing between those in the front line in the public service and the public. This is evidenced by recent events in the Department of Education with regard to the leaving certificate, the Department of Justice with regard to the Judge Lynch affair and the BTSB affair. Civil servants are at a point where they do not know their rights. The public is also in a dilemma as to its rights. The civil servants in the front line are in a dilemma about where they stand legally and whether they can be sued. I hope to launch a policy document in the next two weeks on the public service as a result of what happened in recent times to try to clarify the relationships involved.
In the past the Civil Service was well regarded as trying to give and providing information to the public. However, nowadays the public service is afraid of giving information in case there is litigation. This is a subject which the Bill should cover. I am disappointed because I do not believe there would be a great difficulty in overcoming the points made by Deputy Flanagan and the Minister of State on the matter of criminal and civil sanctions with amendments to the Bill. I accept that she and Deputy Flanagan agree with the principle involved but an opportunity is being lost to repeal the Official Secrets Act, 1963, with this Bill.
Amendment put and declared lost.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 6, line 13, after "requesters" to insert, "and cognate words shall be construed accordingly".
This is a technical amendment relating to the meaning of the word "determined".
Amendment agreed to.
Carlow-Kilkenny): Amendments Nos. 4, 5, 7, 9, 10 and 11 form a composite proposal and may be taken together. Is that agreed? Agreed.
I move amendment No. 4:
In page 12, line 13, to delete "after" and substitute "not more than two years before".
This amendment relates to section 6 (4) which defines the types of records to which the public may have access. Subject to certain limited exceptions, people will not be entitled under the Bill to have access to records created before the commencement of the Bill. In the Seanad some amendments were made to this provision and the Minister of State indicated that it was the intention that access to past records would be provided on a rolling basis — first, two years, then four years, then six years, etc. Progress has been made on this issue and the Minister of State has gone some way toward meeting concerns on it.
It is important that public confidence in the Bill is established at the outset. We are far behind other parliamentary democracies in putting in place legislation such as this to provide a legal right to access to information for our citizens. If the Bill becomes law with the current exclusion on past records for the first year or two of its operation almost every request will be turned down, not on the grounds that the information sought was prepared in confidence or that it is commercially sensitive because all such exemptions, among others, are provided for in the Bill, but on the grounds that the Bill does not cover requests for records created before the Bill became law.
I do not know if progress can be made on this point. It is hard to see how given the blanket approach adopted in section 6 (4). On Committee Stage I argued that at the very least the rolling back approach should begin when the Bill comes into force. People should be entitled to access documents not more than two years old. In the debate in the Seanad the Minister of State explained her stance on the issue indicating that it is a matter of putting filing and access systems in place.
Departments will have a year after the coming into force of the Bill to organise themselves administratively before the provisions take effect. Local authorities will have 18 months to do so. This legislation has been the subject of a wide process of consultation and scrutiny by Departments over the last five years. The Minister of State has been working on this Bill since she became a Member of the House. There has been a long period during which the public service could have organised itself to allow for the rolling back period so that during the first couple of years of the Act being in force people would be entitled to information at least for the last two years. Perhaps the Minister of State may explain why, after almost five years of preparation and another year after the Bill becomes law, citizens will not have access to records created before the enactment of the legislation.
I sympathise with what the Deputy is trying to achieve. I want to see the "roll-back" completed as soon as possible to go back 30 years so that this legislation will meet the National Archives Act, 1986. While it is true that I have been working on this Bill since taking office on 14 January 1993, the public service is a leviathan which is hard to move. It has taken some time for it to accept that freedom of information was really happening. It is only since the publication of the heads of the Bill and the productive debate we had last year at Select Committee that the system has really accepted it. The public service has not been beavering away for the last four years on getting its systems ready. It is only now beginning to realise that this is happening.
It is not fair to say that on commencement information will not be available to people who seek it. All personal information, whenever created, will become available on the first day of commencement. Experience abroad shows that such information is the subject of 90 per cent of all requests. If a request is made for a current file it will be available with the relevant past information which forms part of it and such files will be available from the first day of commencement. Where a public body is not legally obliged to provide information, there is no prohibition which would prevent it making information available in keeping with the concept of freedom of information, if there would be no problem in doing so.
It is difficult to move administrative systems. As a former civil servant, I am concerned that administrative assistants might take a two-year roll-back as being the end of the story. Perhaps it would be better to tell them that this figure will be extended continually and that they will have to get ready for this. If the system operates smoothly from day one, it is less likely to kick back. As a consequence, the roll-back provisions will, ironically, work more effectively and quickly. In drawing up the administrative arrangements I had discussions with groups such as the Cork Environmental Alliance and the one based in Bantry which has had a dreadful experience in gaining access to environmental information. From day one the system kicked back.
As a result of the discussion in the Seanad, not alone can one have a roll-back of two years, four years, six years or eight years or three years, six years or nine years until one hits the 30-year rule provided for in the archives Act but specific categories of information can be provided for. I am aware of the Deputy's strong interest in what happened at the BTSB. If there is a particular subject in which there is sufficient public interest, a regulation can be made quickly to allow access to the full files, provided it is old information not linked to a current file and caught by the rules. While I have enormous sympathy for the Deputy in what she is trying to achieve, the way we are going about it will deliver a quicker roll-back. As someone who is married to a historian, the sooner we merge the Freedom of Information Bill and the archives Act the better for everybody.
I accept the Minister of State's explanation and I am reassured that all personal records will be available immediately. Experience in other democracies shows that requests for personal information account for 90 per cent of the total. I am reassured also that a special regulation can be made quickly to allow access to information on a matter of public importance. That alleviates some of my concerns in this area. I withdraw the amendments on the basis of the Minister of State's reassurance.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
Acting Chairman
We now come to amendment No. 6. Amendment No. 8 is related. It is proposed that they be taken together. Is that agreed? Agreed.
I move amendment No. 6:
In page 12, line 16, to delete "other".
These amendments provide for the deletion of the word "other" from paragraphs (b) and (c) of section 6 (4) as the existing text could be misleading.
Amendment agreed to.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 12, line 18, to delete "other".
Amendment agreed to.
Amendments Nos. 9 to 12, inclusive, not moved.
Acting Chairman
We now come to amendment No. 13. Amendment No. 15 is related. It is proposed that they be taken together. Is that agreed? Agreed.
I move amendment No. 13:
In page 15, line 21, to delete "10(1)(c),".
This amendment reflects a sensible proposal made by Deputy O'Donnell on Committee Stage which I am happy to accept. The effect of the amendment is to ensure that, where a request is rejected on the grounds that it is a "voluminous request", the public body must give details of any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration.
I appreciate that, in amendment No. 15, Deputy O'Donnell is seeking to strengthen the test provided for in section 10(1)(c) to guard against misuse of the provision. Our legal advice indicates that the use of the word "unjustified" may place an onus on the requester to justify the processing of the request. I am keen to ensure that we do not inadvertently cut across the rights of the requester in this way. As Deputies are aware, there is no obligation on a requester to justify why he or she is looking for information.
The provision in the Bill is broadly based on the Australian Freedom of Information Act. Since Committee Stage I have researched further the Australian experience with this provision. In its recent review of the Act, the Australian Law Reform Commission considered whether any amendment should be made to the term "substantial and unreasonable". It concluded that the statutory duty to consult with the requester coupled with training of agencies in its use would be more effective than any amendment to the wording. In addition, it recommended an overseeing role by an information commissioner on compliance with freedom of information legislation.
Both the statutory duty and overseeing role are provided for in this Bill in sections 10 and 36, respectively. In the circumstances, I am satisfied that the checks and balances in the Bill are sufficient to meet what the Deputy is looking for.
I thank the Minister of State for dealing with this issue. It was a possibility that a public body would attempt to refuse to comply with a request on the basis that it would cause a substantial and unreasonable interference or disruption of its other work. Section 10 (1) (c) is being deleted. This is a good development. Public bodies are entitled to defer a decision on a request for up to eight weeks instead of four. They can also refuse a request on the grounds that it is frivolous or vexatious. There was a danger that section 10 (1) (c) would be relied upon by an unco-operative body to unjustifiably refuse requests. It would be a first, perhaps not unique in law, to provide a way out for a public body to refuse a request on the grounds that it is a voluminous request or it is too busy to deal with it. That would be a tempting prospect for an unco-operative public body.
I am glad the Minister of State accepts the principle and recognises the dangers inherent in the section. I understand the reasons she has advanced for rejecting the other part of my amendment.
Amendment agreed to.
I move amendment No. 14:
In page 16, line 44, after "writing" to insert "or in such other form as may be determined,".
This minor technical amendment aligns the wording of section 9 with the wording of other sections.
Amendment agreed to.
Amendment No. 15 not moved.
Acting Chairman
We now come to amendment No. 16. Amendment No. 37 is related. Is it agreed that we take amendments Nos. 16 and 37 together? Agreed.
I move amendment No. 16:
In page 23, line 34, to delete "regulations under that paragraph may" and substitute "may, by regulations made under that paragraph after consultation with the Commissioner and the Director of the National Archives (within the meaning of the National Archives Act, 1986),".
I tabled this amendment in response to the points made by Deputy O'Donnell on Committee Stage about the preservation of records. It proposes that when making regulations on the preservation of records the Minister for Finance will consult with the Information Commissioner and the Director of the National Archives. Deputy O'Donnell's amendment proposes an alternative procedure, but I believe my amendment meets her points.
Deputy O'Donnell's amendment which only permits the destruction of records which are more than ten years old is flawed in that it cuts across the objectives of this Bill and the National Archives Act. It also requires the retention of records for ten years regardless of whether they are of value. I understand that accounts, invoices, receipts for cups of coffee, taxis, etc., which build up in large numbers are routinely destroyed after they have been audited and accounted for. Jurisdictions abroad advise that e-mails can be deleted unless they have permanent or continuing value in which case they must be put on file. If an e-mail between two people about meeting for a cup of coffee was regarded as a record it could not, under Deputy O'Donnell's amendment, be destroyed for ten years, which could mess up computer systems.
Having examined the matter further since Committee Stage, I believe my amendment meets the Deputy's concerns. By providing that the matter should be dealt with by way of regulation we will get it right. If we were to deal with it by way of legislation which was subsequently found to be flawed we would be stuck with it. If we get it wrong under the regulation we can amend it. What we regard as records and record keeping is changing at the speed of light as a result of the advances in computer technology. Like me, many people now use the computer instead of writing. I believe my amendment meets the underlying concerns expressed by Deputy O'Donnell on Committee Stage in a practical way.
On the issue of sanctions, the advice I received is that disciplinary procedures are more appropriate than criminal sanctions. It is very difficult to make a charge stick. I dealt with this matter under the Ethics in Government Act and the Department of Finance, which has responsibility for discipline, advised me that it is much easier to deal with the matter through the disciplinary process rather than try to prove a case beyond reasonable doubt under criminal law or get the Director of Public Prosecutions to prosecute. Deputy O'Donnell has expressed concern about the operation of the DPP's office over the years. I propose to follow up on the disciplinary route so that genuine sanctions which ensure that people respect the intentions of the legislation are in place and that documents which should be preserved are preserved.
I am glad the Minister accepts that public bodies should be required to preserve documents as in the absence of such a provision there is a danger that documents of public interest might be destroyed. I thank her for taking on board in her amendment my points about national archives.
My amendment No. 37 deals with the destruction of records or documents and the failure of a person working in a public body to co-operate with a request for information. I raise the issue of sanctions because of the recent case involving the blood service where it was found that certain public officials did not co-operate with the expert group set up by the Minister. This matter came to light in the judicial investigation. It is a matter of regret that instead of imposing disciplinary sanctions on people for wilfully deciding not to impart information to the Minister, Department or expert group the solution was to offer them golden handshakes. This undermines the normal sense of justice in this matter, given the harm caused by the wilful retention of this information which was of public interest over many years.
I tried on Committee Stage to introduce the notion that it should be a criminal offence for a public servant to deliberately conceal information or refuse to comply with a request by a Minister to co-operate with an expert group. The Minister of State said that it would be more appropriate to deal with this matter by way of disciplinary procedure rather than criminal sanction. Will she clarify if the Bill deals with sanctions which may be imposed on public servants who do not comply with their obligations under it? Even though it is intended to amend the Official Secrets Act, a criminal sanction will still be applicable to those persons who reveal information which is against the national interest.
It is appropriate that criminality should attach to this wrongdoing by a public servant. However, it is also important that severe criminal sanctions be imposed on those public servants who deliberately and with mens rea fail to comply with the provisions of the Bill, wilfully withhold or destroy information or corrupt the process by refusing to comply with a request for information. It is not sufficient to leave the matter hanging in the air. Any disciplinary action must have teeth and act as a deterrent to public servants who decide to pervert the very good intentions of the Bill by destroying documents or refusing to comply with requests for information by a Minister or citizen.
I thank the Minister for taking on board my point in regard to the preservation of documents, but ask her to look further at the question of disciplinary procedures. There has to be a sanction if the Act is to have any teeth and be effective.
Under the Civil Service Regulation Act, the Minister for Finance, who will draw up the regulations on the non-destruction and preservation of records, can issue regulations which are binding disciplinary rules. As the Deputy knows, the new ministers and secretaries legislation provision will provide that secretaries of Government Departments will be able to dismiss staff up to principal officer level. There will be a tighter regime that is much more performance based. Human error can happen in any case — the wrong document can be put in the shredder — but if somebody deliberately destroys a record, those disciplinary sanctions will be in place. The regulations under the Civil Service Regulation Act or the ministers and secretaries legislation, as appropriate, will be drawn up in conjunction with the regulations on the preservation of records.
Amendment agreed to.
Acting Chairman
We now come to amendment No. 17. Is it agreed to take amendments Nos. 17 and 18 together? Agreed.
I move amendment No. 17:
In page 23, between lines 35 and 36, to insert the following:
"(6) (a) As soon as may be after the end of a period specified in paragraph (d), the Minister shall prepare a report in writing of the measures taken by public bodies pursuant to subsection (5) during that period.
(b) A report under this subsection shall include a report of any measures taken by a public body during the period to which the report relates consequent upon a report under section 36(4).
(c) The Minister shall cause a copy of a report under this subsection to be furnished as soon as may be to the committee (within the meaning of section 32).
(d) The periods referred to in paragraph (a) are:
(i) the period of 3 months beginning on the commencement of this Act, and
(ii) the period of 12 months beginning on the expiration of the period aforesaid and each subsequent period of 12 months beginning on the expiration of the period of 12 months immediately preceding.".
This amendment is in response to a Committee Stage amendment from Deputy O'Donnell. The Deputy's amendment seeks to require the Minister for Finance to report annually to the Dáil on the organisational arrangements being put in place by public bodies to facilitate compliance with the Act. I indicated on Committee Stage that I would be happy to take on board the Deputy's proposal, subject to possibly strengthening it further. This amendment goes beyond Deputy O'Donnell's amendment in two key respects. First, it requires that in addition the report should address issues raised by the Information Commissioner arising from an investigation under section 36. Under that section, the commissioner can inspect and report on practices and procedures used by any public body in complying with the Act. Second, it directs the report of the Minister for Finance to the Oireachtas committee to be established under section 32, which will have a particular mandate under the Bill and, no doubt, expertise on the issues arising. That committee will examine the secrecy provisions of individual enactments and report on whether they should be retained, amended or repealed.
I thank the Minister.
Amendment agreed to.
Amendment No. 18 not moved.
Acting Chairman
Amendment No. 19 is in the name of the Tánaiste. No. 20 is an alternative, and Nos. 21 and 22 are related. Is it agreed that we discuss Nos. 19 to 22, inclusive, together? Agreed.
I move amendment No. 19:
In page 25, to delete lines 10 to 13 and substitute "body is incomplete, incorrect or misleading,".
This amendment was proposed on Committee Stage by Deputy O'Donnell. I saw merit in the argument put forward by the Deputy in relation to the section and I am happy to table this amendment. The effect of the amendment is to remove the requirement that the information must be available for an administrative purpose before a request for correction is made. Amendment No. 21 is a technical consequential amendment. It also tidies up the wording of this subsection which duplicated a provision in subsection (1).
Amendment agreed to.
Amendment No. 20 not moved.
I move amendment No. 21:
In page 25, to delete lines 30 to 40 and substitute the following:
"(3) The head concerned shall, as soon as may be, but not later than 4 weeks, after the receipt by him or her of an application under subsection (1), decide whether to grant or refuse to grant the application and shall cause notice, in writing or in such other form as may be determined, of his or her decision and, if the decision is to grant it, of the manner of such grant to be given to the person concerned.".
Amendment agreed to.
Amendment No. 22 not moved.
I move amendment No. 23:
In page 27, line 44, to delete ", for" and substitute "for".
I do not know where the draftspersons get the energy to find commas to add in or remove, but this is one of them.
Amendment agreed to.
Acting Chairman
Amendment No. 24 is in the name of the Tánaiste. Amendments Nos. 25 and 26 are related. Is it agreed that we discuss Nos. 24, 25 and 26 together? Agreed.
I move amendment No. 24:
In page 28, to delete lines 2 and 3 and substitute the following:
"record concerned—
(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and
(b) is not a record—
(i) referred to in paragraph (a) or (c) of subsection (1), or
(ii) by which a decision of the Government is published to the general public by or on behalf of the Government.".
Deputy O'Donnell raised points on Committee Stage in relation to the consistency of this provision with the Supreme Court judgment on Cabinet confidentiality. I listened carefully to those points and I indicated on Committee Stage that we would take legal advice on what was required to ensure the two were fully in line with each other and that the exceptions were sufficiently narrow to be consistent with that particular judgment. Following our Committee Stage discussions I sought further legal advice and I propose an amendment to explicitly protect only records containing statements made at Cabinet or records from which such statements may be inferred. The amendment also seeks to ensure that memoranda to Government and briefing material may not be captured by this provision. It was clear from the Supreme Court judgment on Cabinet confidentiality that it literally only referred to talk around the table. It does not protect memoranda to Government or the decisions. The factual information in a memorandum to Government will become available immediately the decision to which it relates is published, provided it is not caught by a security exemption. The full memorandum will become available within five years. This is a very open regime in terms of Cabinet papers.
I thank the Minister for taking on board my concern that the Bill as drafted went considerably beyond what was required by the decision of the Supreme Court. The judgment referred to the claim for confidentiality of the contents and details of discussions at meetings of the Government. It also stated that in relation to the beef tribunal inquiry it was a valid claim. It was clearly the contents and details of Government discussions that the Supreme Court found to be confidential. The Bill, as drafted, had gone further than that and included anything which relates to statements made at a meeting of the Government. I am glad the Minister has ensured the Bill will comply with the limitations of the Hamilton decision. The only matter the Supreme Court deliberately protected was discussions at Cabinet.
Amendment agreed to.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 28, lines 18 and 19, to delete "the relevant decision referred to in that subsection" and substitute "any decision to which the record relates".
Amendment agreed to.
Acting Chairman
Amendment No. 27 in the name of Deputy O'Donnell arises out of committee proceedings.
I move amendment No. 27:
In page 29, to delete lines 34 to 37.
As I said on Committee Stage, this is the sort of paragraph which sets off alarm bells in my head when I read it. It is one of those catch all-vague phrases like section 10(1)(c) that we have now deleted. It 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". There are clearly defined exceptions elsewhere in the Bill, notably the deliberations of public bodies, in other words, the request for information would adversely affect the deliberations of public bodies. Section 20 refers to the preparation for negotiations by the public body. Section 21 (1)(c) refers to commercially sensitive information.
Section 27 refers to information obtained in confidence. There is a menu of exemptions available under the Bill, even as it now passes through Report Stage, which allow room for a public body to extract itself from the provisions by way of exemption. Paragraph (b) could be used to justify a refusal to disclose material which would shake public confidence in the management of that public body, thereby causing "a significant adverse affect on the performance by the body of any of its functions relating to management".
I referred on Committee Stage to the controversial example of the BTSB, a public body of great importance. Having regard to the fact that plasma obtained from patient X was used to manufacture anti-D after she had been diagnosed with infective hepatitis, the BTSB could have relied on this exemption and in terms of the persons who were trying to protect their notion of the public interest, it would have had a disastrous effect on the management of the public body concerned. This exemption leaves a dangerous loophole which could be used by a public body that did not want to co-operate or was seeking to hide a particular matter. That is why I tabled this amendment. There are sufficient exemptions in the Bill. Paragraph (b) is too vague. It would be too easy for unco-operative bodies or persons who are just trying to preserve the status quo and who are not anxious to comply with a requirement to disclose sensitive or controversial information to rely on this. I do not know the Minister's justification for keeping this particularly dangerous paragraph, given that we have removed section 10(1)(c). The Bill would certainly be better without this paragraph. I look forward to the Minister's response.
I have listened to the points raised by the Deputy. I would like to reassure her that there are two hurdles that must be crossed by any public body before it can avail of this exemption. First, the public body must be able to show that there has been damage to the management of a particular function. Second, and this is particularly important in relation to the BTSB, the public body must be able to show, even where damage might arise, that the greater public interest would not be served by release.
A provision on the lines of section 21(b) is a feature of freedom of information legislation abroad, for example, the Australian Freedom of Information Act, which has been working without problems and which was reviewed in great depth by a commission which looked at it two years ago. There is a similar feature in Senator Dick Roche's Bill which is modelled closely on the Norwegian legislation. This is the kind of provision that works well. The double safeguards are there against abuse. Ultimately it is not up to the public bodies concerned to decide whether the information comes into the public domain, what is the public interest or what would damage its functions. That decision is for the Information Commissioner or an appeal in court on a point of law. That is a very important public safeguard. The onus is on the public body to show why the information should not be released. The presumption in the Bill and the Long Title is that information should be available unless there is a very good reason for holding it back.
I appreciate the sincerity of the Deputy's concern and the strength of the example she gave. There could be some possibility of a particular example passing the first hurdle, but it would fall at the second hurdle in relation to the greater public interest being served. I am satisfied that the Information Commissioner will exercise great independence of judgment. It has been the experience abroad that as the culture of the leviathan shifts there is a presumption among people that there is openness. Places such as Sweden have much looser legislation; because there is an atmosphere of openness, information is given automatically. I believe that is what will happen here.
I accept what the Minister says, that there is a second hurdle which has to be overcome, that is, the Information Commissioner, and that there is a presumption which will underlie all future transactions in relation to the disclosure of information. However, it was useful to visit the area, given recent experience. It should be a matter of public record that we have considered the dangers inherent in the section and that the Minister has taken cognisance of my reservations.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 28 in the name of the Tánaiste. Amendments Nos. 29 to 32, inclusive, are related. We will take amendments Nos. 28 to 32, inclusive, together. Is that agreed? Agreed.
I move amendment No. 28:
In page 36, to delete lines 5 to 37 and substitute the following:
"(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if—
(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.".
Amendment No. 28 is substantive. Amendments Nos. 29 and 32 are purely technical adjustments. Amendments Nos. 30 and 31 are technical amendments to ensure that a director is included as well as a head or member of public staff.
Amendment No. 28 serves a number of purposes. It involves the deletion of the word "may" and its replacement by "shall" in the first line. The purpose of this change is to require the head of a public body to invoke public interest when he or she proposes to release information given in confidence to that public body. In this way the legitimate expectations of someone who supplies that information in confidence cannot be ignored by the head, without regard to where the public interest lies. Following from this amendment, subsections (1) and (2) have been merged.
The second part of the amendment relates to subsection (3) of the Bill. As matters stand, the subsection requires that a public body must obtain the consent of the Information Commissioner prior to entering into any agreement not to disclose information of a particular class. However, I have been strongly advised by outside sources that this provision is not consistent with the independent function of the Commissioner. I have been advised that the provision could be seen as drawing the Commissioner into confidentiality agreements at an early stage which he might be asked to overturn at a later stage. The independence of the Commissioner, and ultimately protection against abuse of confidentiality agreements, is better served by the way we are setting it up now.
The effect of the deletion now proposed would be to leave the Commissioner free of obligations previously envisaged. Nevertheless, he or she can independently review the operation of this section under section 36. Following from this he or she can comment critically and publicly on any misuse of section 26 by a public body. That public body then has to come back and report to the House and any adverse comments by the Information Commissioner must be discussed by a committee of this House. None of this can be done in secret or behind closed doors. It is very much in the open. In addition, he or she can exercise the usual review functions under section 34 and the findings would, subject to review by the courts, be binding on the parties concerned. We are throwing much light on this without compromising the independence of the Commissioner. I am satisfied that this will achieve our objective, which is the shared objective of us all. The revised administrative arrangements contain enough safeguards to do the job better.
Amendment agreed to.
I move amendment No. 29:
In page 36, line 38, to delete "Subsections (1) and (2) do" and substitute "Subsection (1) shall".
Amendment agreed to.
I move amendment No. 30:
In page 36, line 39, to delete "member of the staff of" and substitute "director, or member of the staff of,".
Amendment agreed to.
I move amendment No. 31:
In page 36, line 45, to delete "head or a member of the staff of" and substitute "public body or head or a director, or member of the staff of,".
Amendment agreed to.
I move amendment No. 32:
In page 36, line 48, to delete "subsection (1)" and substitute "subsection (1) (a)".
Amendment agreed to.
I move amendment No. 33:
In page 44, line 27, after "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".
We discussed this previously. It is an amendment about which I feel quite strongly because the appeals system in this Bill is based on appeals by the citizen against a failure to disclose, based on one of the innumerable exceptions that the Minister has devised. This flatly contradicts the claims made for this Bill that it will shift the balance towards disclosure. If the presumption were in favour of the disclosure, the appeal would have to be made by the public authority to the information officer. It is ludicrous in practical and legal terms that the onus to appeal non-disclosure is on the citizen rather than the local authority. Fianna Fáil believes the presumption should be in favour of disclosure, which means that the onus should be on the local authority to appeal to the information officer to determine what should be secret. If the onus is on the citizen — I discussed this matter with the Minister previously — since the cost of specialities and so on are enormous, it would be very expensive on the citizen to get certain information under the relevant headings as outlined in the Bill. We stand by the principle that the onus should be on the local authority to obtain the information to deem that a matter be kept secret.
I know Deputy McDaid is as anxious as I am to ensure this measure works for citizens and that is the purpose behind his amendment, but there are practical arguments against his proposal. First, it would result in the commissioner being involved in every refusal, which would swamp the role of commissioner. Experience abroad shows that between 30 and 40 per cent of cases are decided by internal review, by a senior official overturning the decision of a junior official. That would enable the commissioner to focus on serious problems and ensure a backlog does not build up in the office.
Second, the active involvement of the commissioner at the outset in confirming applications for refusal by public bodies could compromise his or her independent role. The appeals system is modelled on the system in other countries. That system has worked very effectively here for years in social welfare appeals. When we give a social welfare payment we do not expect the Department to take it back in cases where people are not entitled to it. Equally, we do not wish to hand out information to people which, when appealed, is taken back by the Department. That is not the way appeals systems work. The appeals model set out in the Bill reflects that which works best abroad. The provision that the citizen should make the appeal is similar to Senator Roche's proposal in section 9.
There are many mechanisms in the Bill to ensure the appeals system is citizen friendly. The long title sets out the purpose of the Bill, to enable members of the public to obtain information held by public bodies to the greatest extent possible consistent with the public right to privacy. The mandate to the information commissioner as set out explicitly in section 34 (12) is to assume that a refusal is unjustified. As proposed by the Deputy in his amendment, the onus is on the public body to make its case to the information commissioner.
Under section 35 the commissioner may ask that better reasons be given for decisions. If people believe they are given a nonsense reason or a broad reason by a Department, they may ask how the decision to refuse relates to the relevant section of the Bill. If the decision is nonsense it will be disregarded. Most exemptions carry this public interest override where, in spite of information being open to exemption under a section, the balance of public interest is in favour of disclosure. The commissioner may say that although information is commercially sensitive, in the greater public interest it must be made available.
Deputy McDaid is concerned about placing a burden on citizens. As with the Ombudsman's office, people will have access to the information commissioner who will deal with the matter. In many cases appeals against administrative decisions are made by people who do not understand the system or who have problems with literacy and so on. The office of information commissioner, which is the citizens' champion and guardian of the public interest, sympathetically handles appeals by people. The fears underlying the amendment put forward by Deputy McDaid are well addressed in the Bill. I share his concerns, but the mechanism he proposes would be unworkable and I therefore oppose the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 34:
In page 51, between lines 30 and 31, to insert the following:
"(9) `point of law' includes a determination as to the public interest.".
Under section 42 an appeal may be made to the High Court in various circumstances but only on a point of law. On Committee Stage I pointed out that many decisions to refuse access may be justified on grounds of public interest, as outlined in sections 19(5) and 20(1)(b). While it is legitimate to seek to protect the public interest, it is not desirable that determination of the public interest should be entirely subjective. On Committee Stage the Minister indicated that this issue will be covered by a point of law. Has she sought legal advice on this matter? My concern is that there may be an appeal if a body pleads in the public interest. Could an appeal be made to the High Court on determination of what is the public interest? This is an important point and perhaps it is covered by a point of law, but there is no reason it should not be made explicit. I look forward to the Minister's comments on this matter.
I took legal advice on this matter because I was sympathetic to the points raised by the Deputy on Committee Stage. Legal advice is that a point of law is anything other than a point of fact. It refers to the interpretation of the law and since determination of the public interest may often be a mixture of law and fact the point is covered.
Amendment, by leave, withdrawn.
I move amendment No. 35:
In page 53, lines 12 and 13, to delete ", in good faith,".
Amendment agreed to.
I move amendment No. 36:
In page 53, to delete lines 43 to 45 and in page 54, to delete lines 1 to 42 and substitute the following:
"(1) This Act does not apply to—
(a) a record held by—
(i) the courts,
(ii) a tribunal to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied, or
(iii) a service tribunal within the meaning of section 161 of the Defence Act, 1954,
and relating to, or to proceedings in, a court or such a tribunal other than—
(I) a record that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal, or
(II) a record relating to the general administration of the courts or the offices of the courts or such a tribunal or any offices of such a tribunal,
(b) a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices),
(c) a record relating to—
(i) a review under section 34 or an investigation under section 36,
(ii) an audit, inspection or examination carried out by the Comptroller and Auditor General under the Comptroller and Auditor General Acts, 1923 and 1993, the Exchequer and Audit Department Acts, 1866 and 1921, or any other enactment, or
(iii) an investigation or examination carried out by the Ombudsman under the Ombudsman Act, 1980,
other than—
(I) such a record that was created before the commencement of the review, investigation, audit, inspection or examination aforesaid, or
(II) a record relating to the general administration of the Office of the Commissioner, the Office of the Comptroller and Auditor General or the Office of the Ombudsman,
(d) a record relating to the President,
(e) a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a Member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential, or
(f) a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of—
(i) the identity of a person who has provided information to a public body in confidence in relation to the enforcement of the criminal law, or
(ii) any other source of such information provided in confidence to a public body.".
I indicated on Committee Stage that I would bring forward an amendment to this section to tighten up on the drafting and ensure the minimum information is excluded from the Bill. This follows from points made by Senator Roche in the Seanad relating to the courts. As a result of his concerns and of advice from the parliamentary draftsman, the revised text addresses this issue. We are tightening up on what is excluded from the courts and ensuring that documents relating to the courts which may be held by other offices will not be excluded by virtue of section 46 — for example, documents in the Department of Finance about financing of the courts will become available.
Amendment agreed to.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 57, after line 25, to insert the following:
"50.—(1) A head may by order direct that no records held by a public body which relate to a matter specified in the order shall be withheld.
(2) No person shall wilfully withhold any record held by a public body which—
(a) to the knowledge or belief of the person may be required to assist in the answer of a parliamentary question,
(b) relates to a matter specified in an order made under subsection (1).
(3) A person who contravenes subsection (2) shall be guilty of an offence under this section.
(4) A person who is convicted of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £1,000 or to a maximum of 9 months imprisonment or both;
(b) on conviction on indictment, to a fine not exceeding £7,500 or to five years imprisonment or both.".
Under this amendment I propose that a head may by order direct that no records held by a public body which relate to matters specified in the order shall be withheld. I also propose a criminal sanction for a person who perverts the process with a view to withholding information for the purposes of a reply to a parliamentary question or information specified in an order made under subsection (1) by the head. We recently discovered there was no effective sanction for widespread deliberate lapses and dereliction of duty in the case of the BTSB.
My intention on Committee Stage was to deliberate on the possibility of introducing sanctions for the retention of information against an instruction or a requirement to reply to a parliamentary question. In regard to malpractices and irregularities in the beef processing industry, the Department of Agriculture, Food and Forestry failed to give information sought legitimately by Members of the House by way of parliamentary question. Legislation to put in place a brave new world in which people can access information sits uneasily with the current parliamentary democracy in the House whereby on a regular basis Deputies who request information in the public interest are misdirected and thrown off the scent. The legislation should also cover replies to parliamentary questions.
I hope the strategic management initiative and the provisions of the Bill will bring about an impressive change in the way civil servants operate. There is certainly room for improvement in the manner in which replies to parliamentary questions are drafted for Ministers. The information given in most replies to parliamentary questions is minimal and confusing, with the blatant objective of misleading or throwing the questioner off the scent. While I do not know if the Minister of State can give a comprehensive response to this matter, I am not unreasonable in making the point because it impacts on the way in which our democracy operates. It is a legitimate point in the context of this legislation.
Experience from abroad indicates that replies to parliamentary questions will be transformed by the implementation of freedom of information legislation. If Members cannot get the information required in reply to a parliamentary question, they can get it by way of a freedom of information request. Any temptation by civil servants to be economical with the facts in a reply to a parliamentary question can be overcome by this legislation. It is generally the practice to supply a note for the information of the Minister with the three line replies the Minister reads out in the House. The file on which that note is kept can be accessed under this legislation.
The Deputy's blanket proposal that all types of information should be made available could mean giving out information that should be constitutionally protected or that would undermine security, law enforcement or an individual's right to personal privacy. That Liz O'Donnell, as a citizen as distinct from her position as a Member of this House, can get information under this legislation will have a radical effect on replies to her parliamentary questions.
I am pleased the Minister anticipates the role of the inquiring Deputy will not be necessary in the brave new world of freedom of information. I believe Members of this House will still have to ask supplementary questions. Information will not automatically flow freely from the authorities of the State following the enactment of the legislation. I hope it will not put me out of a job. There will always be a need for Deputies to hold Ministers to account, which is our job on this side of the House, at least for another while.
Amendment, by leave, withdrawn.
An Leas-Cheann Comhairle
Amendment No. 39 has been tabled in the names of the Tánaiste and Deputy McDaid. Amendments Nos. 40 to 42, inclusive, are related. Therefore, I suggest that we deal with amendments 39 to 42, inclusive, together.
I move amendment No. 39:
In page 58, between lines 27 and 28, to insert An Bord Pleanála,".
On Second and Committee Stages Deputy McDaid made a strong plea for access to environmental information under the Bill. Such access is already available under the regulations on environment information. This legislation provides a supplementary right of access to such information. I am pleased to include An Board Pleanála and the Environmental Protection Agency under the legislation.
Deputy McDaid proposes that we should also include the Garda and the harbour authorities. As Deputy O'Donnell will be aware from her role as Justice spokesperson for the Progressive Democrats, a review of the Garda is currently taking place and it would be appropriate to await-the outcome of that as there will be a major shake up in the information function of the Garda following that review. The Garda will be included shortly after the review is completed. It can be included by way of order at any stage after the commencement of the legislation.
Under the legislation on harbours, harbour authorities have a commercial mandate. A discussion will take place between the Minister for Finance, who takes over responsibility for the Bill when it is passed, and the sponsoring Department, the Department of the Marine, on questions that may arise as a result of including commercial companies. It is proposed to start with non-commercial semi-State and regulatory bodies. It is not the intention to put commercial bodies at a disadvantage. The nuts and bolts of this will have to be discussed with the relevant Departments. We are not disposed to accepting the last two amendments, but I am happy to accept the first two. Two out of four is not bad.
I thank the Minister of State for accepting the first two amendments, but I am concerned about the omission of the Garda Síochána from the legislation. The Minister of State is positively anticipating the result of Garda review in that she tells us we can rely on the review body to propose what we are including in the Bill. While I accept the Minister of State's remarks about harbour authorities, is it not possible to include the Garda Síochána at this stage? By excluding that body the Minister of State is sending out a signal that the Garda Síochána is in charge of more sensitive information than the offices of the Taoiseach or the Tánaiste. Now that those offices and Departments are more open, we have excluded the Garda from this legislation. Does that not send out a signal that they are more sensitive than the Departments of the Taoiseach and the Tánaiste, the office of the Director of Public Prosecutions, the Army and so on? The Minister of State is sending out the wrong signal and is anticipating the findings of the review of the Garda. Perhaps the Minister of State has information I do not have.
The public are entitled to information on how Garda policy is formulated. I am surprised the Minister of State has excluded the Garda from the legislation but there is very little I can do about that at this stage. The public have a right to know how Garda policy is formulated, particularly in view of their involvement in housing estate committees through which they have taken it upon themselves to ensure there is law and order in their estates. They have a right to know how the Garda formulate policy that affects their lives. By excluding the Garda from the legislation we are leaving it up to the Garda review body to give the Minister for Justice power to accept its findings without debate. Had the Garda been included in this section, the findings of the review would be open for debate among the public. If the matter is being left to the Garda review body and for us to accept its findings without the Garda being included in the Bill, another time limit will apply. Is there a time limit within which this Bill can be reviewed? Does this section provide that it can be reviewed in one or two years and that the Garda could be included in it at that stage? I would like to hear the Minister of State's reply. I accept her view on the harbour authorities, but she is leaving it up to the Garda review body to come up with solutions and it is important that they should be open, transparent and accountable.
I accept the thrust of what Deputy McDaid said about the Garda. I would like them to be included in the Bill at an early stage. They have asked that we await the outcome of the review body. They are included under the Bill, but they are not automatically included in the day one list of groupings. I hope we will have an early report from the Garda review body and that the Garda can be included in the legislation from an early date.
Amendment agreed to.
I move amendment No. 40:
In page 58, between lines 40 and 41, to insert "the Environmental Protection Agency,".
Amendment agreed to.
Amendments Nos. 41 and 42 not moved.
An Leas-Cheann Comhairle
Amendment No. 44 is related to amendment No. 43 and I suggest that they be taken together.
I move amendment No. 43:
In page 59, between line 16 and 17, to insert the following:
"(5) any board, agency or other body established or to be established by or under statute.".
This amendment is intended to provide blanket cover of any other bodies that may be set up in the future.
Paragraph 1(5)(b) of the First Schedule adequately covers the Deputy's point.
Amendment, by leave withdrawn.
I move amendment No. 44:
In page 59, line 30, after "partly" to insert", whether directly or indirectly,".
This is a drafting amendment.
Amendment agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I express thanks to the House for the mature and open debate we have had on the Bill and the commitment shown by all sides to greater openness in our democracy. Today is an historic day with the passing of this Bill. It has passed through the Seanad and later this afternoon I hope to obtain its approval for the changes we have made to it here.
I thank Deputy McDaid, the new spokesperson for his party on this subject, who has been open on this and has done a good job. Deputy Woods was involved at an earlier stage when we discussed the heads of the Bill. He made a worthwhile contribution as he did on Committee Stage and today. I also thank Deputy O'Donnell and her party for embracing the terms of the Bill and their many constructive suggestions. I was happy to be able to accept some of the suggestions made by Deputies McDaid and O'Donnell and as a result of them a good Bill has been made even better.
We had a good and detailed debate in the Seanad. Senator Dick Roche sponsored his Bill modelled on Norwegian legislation and Senators Dardis, Lee, McGennis and O'Sullivan all made important contributions which resulted in the tabling of amendments I was able to accept.
I also thank, in particular, the staff of the Office of the Tánaiste. This is a proud day not only for me but for that office with the bringing of this major legislation to conclusion. I thank Gerry Kearney, Aine Stapleton, Noreen Egan and a number of members of staff who worked on this Bill in the early stages and have now moved on, including Pattie Conneely and Therese Conlon, Julie O'Neill and our legal adviser, Finbarr O'Malley. Good teamwork went into the preparation of this legislation.
I also thank people in other jurisdictions who helped in drawing up the legislation. I single out Madeleine Campbell of the Australian Attorney General's office, Robert Hazel of the Nuffield Foundation and Maurice Frankel of the Freedom of Information campaign in the UK. The Bill is very much shaped by the input of all those people.
Any legislation that passes through this House is important. This Bill is particularly so as it involves our citizens and entitles them to more freedom of information on what happens in Departments which heretofore appeared to some degree to be kept secret. While I have some reservations about this Bill in that it could have gone further, as I outlined in my argument on the repeal of the Official Secrets Act, I accept the work the Minister of State has put into it and congratulate her on bringing this legislation through the House. I thank her for the help she has given me in offering the services of her Department to clarify any information that I considered questionable. I congratulate her Department and officials on bringing this Bill before the House. I thank my predecessor Deputy Woods who spoke on this Bill in the early stages. I am sure our citizens will benefit from this legislation.
I concur with what has been said and I congratulate the Minister of State and her staff for bring the legislation forward. It is a much improved Bill having gone through rigorous examination in the Seanad and here in the Lower House. It is part of an evolutionary process in improving our democracy. As we now know, democracy is not just about having an elected Government, but having an open and accountable one. This Bill goes a long way towards achieving that.
Question put and agreed to.