JOINT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE díospóireacht -
Wednesday, 14 May 2003

Vol. 1 No. 8

Freedom of Information Act 1997 (Miscellaneous Revocations) Regulations 2003.

Chairman

We are here to discuss the draft form of the Freedom of Information Act 1997 (Miscellaneous Revocations) Regulations 2003 from the Department of Finance. These were referred to the committee for consideration by order of the Dáil and Seanad on 7 May. Members have been circulated with a background information note from the Department of Finance regarding these draft regulations.

I wish to have agreed in advance that we will allocate a maximum of 30 minutes, if that amount of time is even necessary, to this item as the Minister of State has another engagement, but also and more importantly because there is nothing new in the draft regulations.

We are to discuss only the draft regulations. Three statutory instruments listed under the Freedom of Information Act 1997 have been subsumed in their entirety into the 2003 Act. There is therefore no necessity to retain the old regulations as it is obvious duplication. We are meeting to consider their revocation.

On behalf of the committee, I welcome the Minister of State at the Department of Finance, Deputy Parlon, and his officials. I suggest that we invite the Minister of State to make his opening statement to be followed by a brief question and answer session. Is that agreed? Agreed.

Minister of State at the Department of Finance (Mr. Parlon)

This is a tidying up measure. The regulations arise because the provisions of certain statutory instruments were incorporated into the recently enacted Freedom of Information (Amendment) Act, thereby rendering the statutory instruments concerned superfluous and requiring their revocation.

The first of the statutory instruments concerned is SI 516 of 1998 which confirmed that the date for which the Freedom of Information Act commenced for health boards and local authorities was 21 October 1998. This provision is incorporated in section 6 of the Act.

The second is SI 517 of 1998 which was introduced to remove a potential overlap between section 6(9) of the Freedom of Information Act, which brings certain records of persons performing contracts for services for public bodies within the scope of the Act and the First Schedule which contains a list of public bodies to which the Act applies. This provision is also incorporated in section 6 of the Act.

The third is SI 521 of 1998 which relates to requests for records containing joint personal information, namely, personal information not only about the requester but also about a third party. These regulations confirm that, in such circumstances, third party information would, subject to public interest or other considerations specified in section 28 of the Act, remain protected. The purpose was to protect the privacy rights of third parties in cases of joint personal information while ensuring that there was no restriction on the provision of personal information that related solely to the requester. This provision is now incorporated in section 28 of the Act.

These statutory instruments are no longer required as they have been superseded by provisions in the Freedom of Information (Amendment) Act.

Chairman

Are there any questions?

Deputy R. Bruton

The points are technical and not of major concern. There was some public controversy about the fact that the Government appeared to have restricted the time available for the President to consider the Freedom of Information (Amendment) Act which we passed recently. Perhaps the Minister of State would comment on the circumstances behind that apparent shortening of the period the President had to consider this Act which changes significantly the basis of citizens' rights in terms of freedom of information.

In the context of regulations being laid before the House, we obtained an undertaking in the course of the debate on the Freedom of Information (Amendment) Act that, where the Secretaries General were to certify bodies as having the same protection as Cabinet, information would be laid before the House about that certification process. Will the Minister of State indicate in what format when we will begin to see these certifications and regulations laid before the House? Each time one is certified, will that fact be laid before the House so that we will know it is happening?

Chairman

I rule both questions out of order as they are not relevant to the matter being discussed. The issue of referral of the legislation to the President and the time for signing are not relevant to the discussion on these regulations. If the Deputy wants to raise the issues in the House, he is free to do so or we will include them in and discuss them as part of our work programme. They do not form part of the revocation of these statutory instruments.

Deputy R. Bruton

I contest the Chairman's view. The Minister of State is responsible for the implementation of an Act we have passed recently. Since it left the Oireachtas, he has been involved in a process that shortened the period of consultation, and he promised regulations on certain new parts of the Act. It is relevant to ask the questions I have asked. Just because the Minister of State has certain miscellaneous regulations on his mind does not mean we cannot have other regulations on ours which he ought in any accountable parliament to be in a position to answer. I contest the Chairman's ruling.

Chairman

I accept what the Deputy says that they are relevant, but they are not covered by the item on today's agenda. I am happy as Chairman to——

Deputy R. Bruton

Will the Minister of State wait and I will raise them under "any other business"?

Chairman

I will not facilitate that.

Deputy R. Bruton

On what grounds?

Chairman

On the grounds that we are discussing the motion of the revocation of these miscellaneous regulations and the answers the Deputy seeks are not part of the discussion on them.

Deputy R. Bruton

You are making a nonsense of this procedure. In future, my party will not agree to any of these referrals. These regulations were referred without debate. We believed that there ought to have been an opportunity for debate in the House. We facilitated the ordering of this without debate. If the Chairman is going to use Standing Orders in an officious manner to prevent members asking legitimate questions, we will suspend our co-operation with these procedures which are to facilitate the Government, not the Opposition.

Chairman

I am happy to facilitate fully every issue the Deputy has raised but not in the context of the specific item under discussion.

Deputy R. Bruton

I put the Chair on notice that we will be withdrawing co-operation in relation to referral of such matters without debate in the House. This is to facilitate the Government in running matters smoothly and putting matters into committee where they can be discussed in a more leisurely fashion. If the Chair is going to rule to prevent members doing so, then we will not co-operate with that procedure. The Chairman may notify his Whip of our intention to withdraw our co-operation in light of his ruling.

Chairman

The issue is the revocation of the regulation and nothing I have heard so far relates to that.

Senator Higgins

We have accommodated——

Chairman

I am happy to discuss what the member has raised as a separate item for as long as necessary, but it is not the issue on today's agenda.

Senator Higgins

To get back to the point——

Chairman

I have ruled on the matter. I will not be allowing the Minister of State to answer the question——

Senator Higgins

The Chair will not allow him answer the question.

Chairman

——other than questions relevant to the three statutory instruments.

Senator Higgins

The Chair will pay a dear price for co-operation from this side. That is a restrictive and totally unreasonable ruling. The Minister of State may be anxious to answer yet the Chair is coming in with a guillotine and adopting a restrictive view of what we can discuss. The Chair is being put on notice regarding our co-operation from now on. He should remember that co-operation and consensus is how these committees should operate. If he wants to rupture that by way of his ruling on his own head be it.

Chairman

Regarding the issues raised, No. 4 on our agenda today is the discussion of our work programme. I am happy to have the matters raised on our work programme.

Senator Higgins

We will have to have the Minister in a second time to answer these questions though he could do so today.

Chairman

He is only here today to discuss the revocation of the regulations.

Senator Higgins

It is absolutely ridiculous.

Chairman

The Dáil and Seanad gave an order to the committee to consider the revocation of the regulations. That is the only instruction we have and I cannot go outside that instruction given to me by the Dáil and Seanad on the matter.

Senator Higgins

I have only been here since last July, so I have not been at many committee meetings on this but on other occasions the Chair has allowed free-ranging discussions. Here we have legislation that has just been passed and Deputy Bruton asked a pertinent question about certification which the Minister is probably prepared to answer. The Chair has decided for some reason best known to himself not to allow it.

Chairman

I agree with the Senator that I have allowed ample latitude and will do so in the future, but not in relation to the revocation of the regulations.

Deputy Finneran

The Opposition is being unreasonable. The Chairman is being very fair. Those of us on this committee for the last five years did not have a problem and it is unreasonable to threaten to withdraw co-operation. The Chair has given an explanation.

Deputy R. Bruton

He has given an explanation which I regard as inadequate. The Deputy knows we use the committee in a flexible way to deal with issues of public importance. If the Chair is going to come in and act officiously, ruling some things out of order and some things in order which he puts arbitrarily on the agenda at his own discretion, then we are circumscribed in our rights. It undermines the spirit in which the committee operates but if the Chair wants to use his powers in that way he is entitled to do so. However, this is relevant information of public interest. Here the Minister is dealing with freedom of information and discussing revocation with the committee so these are relevant questions. The idea of the Chair that we will ask the Minister of State, who is busy dealing with issues such as flooding in my constituency, to come back on another occasion to deal with this defies belief. The Minister of State is perfectly happy to answer these questions, which are not matters of national security or undermining the Government. They are issues we would have out on the floor in the normal cut and thrust of debate and we would finish with them in two minutes. We are seeing what appears to be a sensitivity on the part of Government Deputies to have any discussion of an issue has which caused them acute embarrassment in recent months. They want no discussion of it. It has nothing to do with the proper——

Chairman

As Chairman I take issue with what has been said. There is nothing on the agenda at my discretion. This item is on the agenda by order of the Dáil and Seanad, directing us as a committee to consider and report on it by next week. This is our only scheduled meeting before then and I do not have discretion. This is on the agenda by order of the Dáil and Seanad and not at my discretion. We were given a job to do on these regulations and a timetable within which to do it. I am happy to devote all the time necessary on another occasion to this.

Deputy R. Bruton

On a point of order, it is quite clear that there is no time limit on this whatsoever.

Chairman

For the record, the order of the Dáil has a date by which we are to report back, 21 May, which is next week, and this is our only scheduled meeting before then.

Deputy R. Bruton

That was passed without debate in the House and our leader stated at the time that it was an unusual circumstance to be asked to pass something like this without debate. It went through and in view of the Opposition facilitating the Government the Chair should provide some flexibility for the Minister to answer relative questions on the Freedom of Information Act. If the Chair had taken a more open approach we would have dealt with this very quickly rather than getting bogged down in procedure and having to ask the Minister to come back here next week.

Deputy P. McGrath

I am somewhat perplexed by the Chairman's intervention and ruling. Deputy Bruton asked a reasonable question pertaining to what we are doing. From the body language of the Minister of State I thought he was going to respond and he seemed to be getting a briefing on the matter. It seems strange that the Chairman intervened before the Minister of State ever responded, to say he was not going to allow the question. Did he anticipate this? Was it discussed beforehand? What is he trying to hide or cover up? Maybe the Chair should ask the Minister of State if he is prepared to respond to Deputy Bruton's question. If so, let us hear it. The Chair should not try to muzzle him or anyone else. It is very relevant - we are talking about restricting freedom of information yet the Chair is going further down that road, preventing information from being released into the public domain. What is happening to the Chair? Is he losing the run of himself? Is it not reasonable that information should come into the public domain or is the Chair trying to be nice to his constituency colleague? He should let the Minister of State answer a reasonable question.

Chairman

For future reference, when the agenda goes out if someone has a problem with it or wants something else on it I will be happy to facilitate them. However, this is not on the agenda and it is not a matter for discussion today; this was referred to us by the Dáil and Seanad. My hands are tied as Chairman. We have specific regulations before us for discussion.

Deputy R. Bruton

Rubbish. The Chairman should reflect on what he has said. This is a chance for the committee to debate these regulations, like a Second Stage debate followed by a Committee Stage discussion of the specific issues. It is quite normal for general statements to be made and questions to be answered by the Minister on issues germane to the subject. It would be considered bizarre, for example, to say that while discussing the Finance Act we could not stray beyond a specific amendment on a very narrow topic. The Chairman should reflect that he is taking a narrow view, as this discussion should have been allowed to flow freely. The Minister of State could have gone home now if that had been permitted.

Deputy Twomey

Assuming the Chair's role is correct and that he is operating within the procedures, can he give the question to the Minister of State to decide whether he wants to answer this now or to come back and answer questions later on behalf of the Government?

Chairman

I am happy the issues raised today can be discussed under any other business.

Deputy Twomey

That is right. We agreed that but the Chairman has made his point.

Chairman

We must dispose of the business in front of us first. That is the business——

Deputy Twomey

The Chair has made his point. In order not to let this get out of hand can he pass the question on to the Minister of State to decide whether he wants to answer the question now?

Chairman

No, because I was concerned that the discussion was starting to stray outside the regulations, which it did as soon as the meeting started and it will continue to stray.

Deputy Twomey

We have half an hour.

Chairman

Some 20 minutes of that has gone. We have almost concluded our time on this issue. If members have questions relevant to the regulations, which have been referred to us by the Dáil and Seanad, we will take them.

Deputy R. Bruton

I seek clarification of the order. Is he saying that under item 6 we will be able to raise these issues on the agenda but we cannot do so under No. 2, which deals with freedom of information? Is that it?

Chairman

There are no guarantees that the Minister——

Deputy R. Bruton

Why is the Chair seeking to introduce an order to the committee that would allow us discuss something without the Minister given that the Minister is willing and able to discuss the issues with us?

Chairman

We must agree to do that. I will be happy to consider a proposal on item 6 when we reach it.

Deputy R. Bruton

It is quite likely the Minister of State will no longer be with us at that stage.

Chairman

The regulations set out a specific task and the other broader issues can be raised at length on any other occasion.

Deputy P. McGrath

Will the Chairman request the Minister to wait for any other business so that he can answer the questions?

Chairman

No.

Deputy P. McGrath

The Chairman is very helpful.

Chairman

I am being honest. As Chairman of the committee, I have made arrangements. We brought forward the meeting because of other scheduled activities this afternoon. We are meeting at this time to facilitate that.

Deputy P. McGrath

The Minister of State would have answered the question by now. He is dying to answer it.

Chairman

Are there any questions relating to the regulation?

Deputy R. Bruton

I wish to raise some issues on contracts open to public scrutiny under the Freedom of Information Act. We are now told it might conflict with the list of bodies in the First Schedule. Will the Minister of State outline the list of public bodies that will now have records of persons performing and contracts of services made available under the Freedom of Information Act? Will he indicate also the further bodies to which he intends to extend the provision? We are awaiting further orders for the extension of the Freedom of Information Act to additional bodies. It will be interesting to see whether the provisions under SI 517, which is being revoked, will be extended to further bodies. Perhaps the Minister of State will provide us with such a list. While he is answering that, perhaps he will refer to the questions I raised earlier.

Minister of State at the Department of Finance (Mr. Parlon)

I am intrigued by the ability of members to either read the body language or be clairvoyant about what might have been said beforehand or afterwards. I will be directed by the Chair in regard to what is a relevant question.

Senator O’Toole

The Minister of State is an honest politician.

Deputy Parlon

I would not dream of going against the Chair's ruling.

Chairman

The Minister of State is the only one in the room——

Deputy Parlon

Friendliness between constituency colleagues is very common in Loais-Offaly.

Deputy R. Bruton

I remind the Minister that the Chairman has indicated we will be able to ask about this matter under item 6. If he will not be present in an hour's time he might take the opportunity to answer the question.

Chairman

The Deputy——

Deputy Parlon

I was invited to be here at2 p.m., which I was.

Chairman

That is correct and I apologise for the late start.

Deputy R. Bruton

The Order of Business in the Dáil clashed with that time and many of us had responsibilities there.

Deputy Parlon

I am not blaming anyone in particular. In response to the specific question, section 6(9) of the Freedom of Information Act provides that a record in the possession of a person who is or was performing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body. The intention behind the provision was to ensure full accountability for public money by providing a right of access to records of private groups and individuals performing services under contract to public bodies. Although it was never the intention that public bodies should be subject to section 6(9) after the original FOI Act was introduced, some uncertainty arose regarding the application of the section to public bodies, organisations and groups already within the ambit of the FOI, by virtue of being included in the First Schedule of the Act. To remove any ambiguity, SI 517/1998 was introduced in order to clarify that section 6(9) does not apply to the First Schedule.

We were advised during the passage of the Freedom of Information (Amendment) Bill by the Attorney General to use the opportunity afforded by the Bill to make this modification in the Act, rather than leaving it to regulations. This was achieved by inserting a provision in section 6 of the FOI Act. The relevant statutory instrument, SI 517/1998, is now superfluous and needs to be revoked.

Deputy R. Bruton

Will the Minister of State list the contractors who are discoverable? How will the public get access to ask reasonable questions, for example, if the Department of Health and Children is contracting out work and the public have a right to information about the contract? Will he require the Freedom of Information Officer in these public bodies to make available lists of contractors who are operating and about whom the information can be sought? Otherwise the public will find it very difficult to exercise their right of freedom of information.

Deputy Parlon

We are talking here about private contractors. Any private contractor is entitled to tender for contracts. Obviously private contractors who have tendered and are working for bodies under the FOI will be included. In advance of that, each private company is open. Obviously they will be aware in advance if they tender for a particular job that they will come under FOI legislation. I do not have a list because it applies to all private contractors. It will be relevant to a private contractor who is involved in a job.

Deputy R. Bruton

It will go into the public domain only if the contract is over a certain value.

Deputy Parlon

There is no provision in regard to the contract. Clearly if someone has a specific query about which they are concerned sufficiently to apply under FOI, they will be aware the private contractor is in the employable public body. I am not aware there is a limit in relation to the size of the contract.

Deputy P. McGrath

In regard to FOI and the bodies to which it applies, the Second Stage speech referred to the fact that when the Bill was first introduced there were approximately 50 bodies covered and this has now increased to 300. Why is it that the vocational education committees throughout the country, which are a very important body delivering a very important service at local level and through which huge volumes of taxpayers' money is being expended - there are local committees - are still not covered under FOI? One cannot yet get access to information held by vocational education committees. Is it the Minister of State's intention that vocational education committees will be included as soon as possible, or is there a difficulty about including vocational education committees as listed bodies under the Freedom of Information Act?

Deputy Parlon

The Government is committed and has been actively involved in bringing new bodies on board, which is now well in excess of 300 bodies. It is committed to the extension of the Act to other appropriate bodies. Up to now direct Government bodies have been brought on board but there is no reason not to include vocational education committees in due course.

Deputy P. McGrath

Health boards, which are similar bodies, have been included for a long time.

Deputy Parlon

Universities have been included recently.

Deputy P. McGrath

It seems strange that vocational education committees are excluded. I have not received a real commitment from the Minister of State in regard to their inclusion. Many of us would like to have vocational education committees included as soon as possible because there is a lot of information which will make very interesting reading. It should be brought forward fairly quickly.

Chairman

In an effort to be helpful to the Deputy, I suggest we include that issue on the agenda of a future meeting. It is up to the line Minister to include the relevant agencies within the line Department. However, the Oireachtas Committee on Finance and the Public Service, dealing with freedom of information, can request the line Department to bring forward proposals, as this committee did in the previous Dáil in respect of the National Roads Authority and other bodies which were not covered.

Deputy P. McGrath

Direct contact here is not very forthcoming.

Chairman

In an effort to be helpful, I suggest that we as a committee formally pass a motion at the next meeting requesting the Minister for Education and Science to bring the vocational education committees under the Act as soon as possible.

Deputy Parlon

It is the responsibility of the Minister for Finance in liaison with the line Minister. If someone wants to make a proposal here, I am sure it can be expedited. I see no difficulty with bringing it forward.

Deputy Finneran

When the Information Commissioner was retiring he indicated that he would consider it appropriate that the Garda Síochána be included under the freedom of information legislation. Does the Government propose to do that?

Deputy Parlon

The commissioner clarified at a later stage that it was the administrative functions of the Garda he was talking about. The Government is committed to the extension of the Act to all appropriate bodies. This issue is open for consideration now. If it is mooted by the Minister for Finance, the Minister for Justice, Equality and Law Reform, or if it is proposed by somebody else, I see no reason it should not be taken on board.

Deputy R. Bruton

There was a court case recently in relation to SI 521, where a person sought to obtain, under freedom of information, an agreement that he had entered into with a public body. Will this revocation interfere in any way with that court ruling where the person in question succeeded in getting into the public domain an issue that otherwise would not have been in it?

Deputy Parlon

What was originally in the statutory instrument is now incorporated into the Act. Nothing has really changed. I am not immediately familiar with the court case but the statutory instrument does not change anything in the Act. The Act incorporates what was originally in the statutory instrument. The Government was entitled to make modifications to freedom of information legislation and to introduce them by statutory instrument until an opportunity arose in terms of a further Bill when they would be consolidated. That is what is being done. There is absolutely no change in the Act.

Chairman

There being no further questions this concludes the joint committee's consideration of the draft regulations. On behalf of the joint committee I thank the Minister of State and his officials for attending today's meeting.