The Freedom of Information Bill, 1995, is intended, by me and my party group, to address a real need which has long been recognised by all political parties. Ireland's system of public administration ranks among the most secretive and centralised to be found anywhere in the developed world. With secrecy and bureaucracy comes a loss of confidence on the part of individual citizens who lose faith in the system that serves them.
The Bill I am presenting is an attempt to restore the confidence of citizens through measures which would improve a fundamental civil right. The term "fundamental civil right" is not exaggerated in this context. As it stands, people's access to information which is held in public institutions is seen very much as a privilege, and it is that perception which breeds public suspicion and which is probably responsible for a good deal of the cynicism that exists in this State.
The central tenet of the Bill is to make access to all information in public administration a right. When the light of public scrutiny is shone into the darkest recesses of public administration it is my belief that it will show up much that is good. The citizen will be able to view those parts of the system which function capably and which would serve him or her well.
Equally, it is my belief that it will illuminate many practices which are occasionally slipshod and sometimes ineffective. In this case it will give us all the chance, for the first time, to take effective remedial action so that the rights of individual citizens can be vindicated and their entitlements always assured.
It has been said that Ireland's public administration system protects its most commonplace file as if it contained the secret of eternal youth, a formula which must at all times be protected from vulgar public gaze. Less fancifully, as far back as 1969, the report of the Public Service Organisation Review Group, the Devlin report, made the serious point that Ireland's public administration — and in particular the central administration — is secretive, operating behind a veil of anonymity and, accordingly, is far removed from the very public that it is meant to serve.
There is a gulf between public administration and the citizen. This Bill will effectively bridge the gap between the administrator and those whom the administrator is intended to serve. The modern bureaucratic state, by its very nature, generates a mountain of information on individual citizens, public projects, operations, schemes and future policies, yet the vast bulk of this information is denied to the citizen.
There cannot be a single public representative in this House or in this country who has not received daily requests in their clinics and advice centres for more and better information on any one of a host of issues that affects the lives of the citizen daily. There cannot be a public representative who has failed to come to the conclusion that the inability to access this information is leading to a real credibility gap between ordinary men and women and their administrators.
In a democratic state, where the citizen is seen as sovereign, the free access of every citizen to information is, in my view, a fundamental issue.
A free society has nothing whatsoever to fear from freedom of information but a society which allows its public administration to be conducted with an air of suspicion, where concealment is the first order of the day, cannot escape the inevitable cynicism of its citizens. Over all the years in the history of State, cynicism has grown up because there is a gulf between the citizen and the State. It is an axiomatic truth that the more information the citizen has, the better she or he will make an informed decision. Our public administration has functioned for too long on the presumption that our citizens are not capable of making those informed decisions and I, like, I am sure all Members of this House, feel that this is not acceptable. This Bill aims at changing all of that. Ireland is not some socialist Orwellian state where information is the prerogative of some elite: this is a democracy, where freedom and information must be the right of all. In any developed country, information is power.
Only by allowing access to information to all will power begin to be equally distributed in our society and only by giving a distribution of information can we empower the citizens to more adequately look after their individual affairs. Two broad approaches can be adopted in this matter. One approach is to establish an information bureaucracy within the State machine — and this has been done in many countries — to handle the citizens's requests for information. The second approach is less complex. It simply provides that all information is made available on demand, on a statutory basis, to the citizen, with the minimum of exceptions; exceptions only required for the security of State or to protect the rights of a named individual.
The second approach of simply liberalising access to all information is the one which is adopted in this Bill. It is, in a sense, a far more radical approach than putting in place a structured bureaucracy. It avoids the propensity to censorship which would exist within any bureaucratic structure. No matter how one structures an information bureaucracy, the reality and the experience is that it becomes secretive in itself. The approach, as proposed in this Bill, does not require any costly staffing structures. It also ensures that information is provided to the citizen on a value-free basis and not subject to any spin to protect the political powers that be at a particular time. It is important that any information system that is put in place interposes the minimum of regulation and the minimum of structure between the citizen and the information that the citizen is seeking to establish.
I want to turn to the Bill itself and to explain some of the elements of the Bill. Section 1 of the Bill is self-explanatory. It outlines the central feature of the Bill: the creation of an automatic and statutory right of each and every citizen to information in the public domain. It is wide in its concept and universal in its application because, as will be seen in a few moments, the Bill is drafted in a way that will cover the bulk of the public administration.
Section 2 deals with definitions. Documents are defined in this section in the widest possible way. It is interesting to try and establish a meaning for the word "document" because information comes in so many different guises. I have tried to establish the widest possible definition; and if Members had a view to extending that definition further, I would listen. All State agencies are also included in the definitions part of this Bill and I have tied the Bill, particularly on the issue of State bodies, to a number of other pieces of legislation which provide us with the necessary scope and cover.
Section 3 of the Bill provides that all documents, including those drawn up by an institution and those submitted to an institution, are to be made available to the citizen. It is important that two way traffic in information be available to the citizen. Section 4 recognises that in certain exceptional cases access must be either denied or limited. It provides for the making of ministerial orders which, naturally, would be the subject of scrutiny by the Houses of the Oireachtas and of public debate. Again, I have taken a somewhat conservative approach here because it is important that ministerial orders can be made so that the Bill itself does not have a detrimental impact. That would never be my wish. Incidentally, the Minister to make the orders would be the Minister for Finance.
Section 5 deals with general exceptions. The second general exception in the list is the minutes of Cabinet. Again, given recent legislation and court actions, I wondered about this; but there is, within our Cabinet system of Government, an arguable case for such an exclusion and many other pieces of legislation have a similar exclusion. The first of the three general exceptions is proposals, drafts or unfinished documents. An unfinished or partially completed document, which is prepared purely for internal use, would give a misleading view if it were made accessible. The intention is that a document would be available when it is completed. Finally, I have excluded, as a general exemption, documents which are graded from time to time by the Oireachtas on a statutory basis as being confidential. We can all think of many cases of statute law where specific types of documents are excluded, either completely or partially.
I followed this section with a number of specific exceptions in section 6. The first of these is that documents which contain information on matters of significance for the security of the State, for relations with foreign powers or international organisations or for the country's defence should be excluded on a specific basis. Again, this is a commonplace practice in information legislation and is one which will probably follow in this country. There are a number of documents which are also regarded as exceptions under section 6 (1) (b) (i):
out of consideration for the proper execution of the state and local governments' financial, pay and personnel administration,
Clearly, documents on issues relating to internal negotiations, such as on a wage settlement, are something which the State would have to hold until discussions were completed. Under section 6 (1) (b) (ii), I have also made provision for exclusion of documents where public accessibility would thwart public regulation and control. One can foresee circumstances where people involved in criminal activity or activity which would be against the interests of the State or of the body of citizens would be given an unfair advantage or could thwart the State and the regulatory bodies if they were given access to information. That should be a specific exclusion.
The next exclusion is for documents which affect an individual's personal affairs. This is, of course, unless the document on the person is released with the consent of the individual. Documents provided to various State agencies, such as the Revenue Commissioners, would not generally be made available under freedom of information legislation because they could be damaging to the individual or they could be used where people wanted to pursue a prurient interest in some other person's affairs. I have excluded those, but I have inserted a provision which would allow for the exclusion to be overcome or subvented if the person involved was prepared to give the necessary permission. I have also provided for the exclusion of documents which contain information about technical devices and procedures. What is intended here is to protect patented papers and documents to avoid damaging the commercial interests of an individual.
Documents on appointments or promotions in the public service are another general body of documentation which Members will find excluded in freedom of information legislation. I have excluded it here, although there is a cogent case to be made for such documents to be made available, at least on a more limited basis, and I will be interested in the views of Senators in this regard. Examination papers and reports clearly fall into the category, given that we are in the examination season, as do documents relating to long term budgets or internal financial planning.
I have provided under section 7 of the Bill that documents which fall under section 6 shall be publicly accessible when, because of the lapse of time or for other reasons, it is obvious that the considerations which justified their exemption in the first place no longer apply. Any of the exempted documents under section 6, which because of the lapse of time are no longer sensitive, should be within the public domain.
Section 8 states:
The public institution shall decide, out of consideration for the proper conduct of public business, how a document shall be made known to the person who asked for it, and so far as possible [should] provide upon request a copy or transcript of the document.
There are practical considerations and sometimes it is not possible to lay one's hand on a file immediately. However, section 8 is basically providing that rationality and reasonableness should apply in that case.
An appeals procedure is provided for in section 9. A refusal to make a document available must be given in writing and an appeal would then lie with the Ombudsman. This is an entirely reasonable provision and it would not be an onerous extension of the remit of the Ombudsman's Office. I believe, incidentally, that, as the provision of information is part of proper administration, the Ombudsman would be the appropriate body to oversee that.
I have also provided in section 10 for permission for an individual to grant access to certain documents. Under section 11, the Minister for Finance is empowered to make detailed provisions for the implementation of the Act. The balance of the Bill is simply the normal citations.
I have kept the provisions of the Bill to a minimum as I believe that legislation should be minimal rather than copious. A Bill governing the rights which a citizen should have to information should be easily accessible, in the sense that any citizen, untutored in the fine black arts of parliamentary draftsmanship, should be able to pick up the Bill and understand such rights as she or he enjoys. I believe that this Bill has much to commend it.
I understand that the Minister of State has been working for the past two years on a freedom of information Bill and I know that she shares my enthusiasm and energy for this matter. However, it is regrettable that it has taken so long to bring forward the Government Bill. I recommend the Bill which is before the House as an honest effort to move this debate forward. If this House adopted this Bill, with amendments — we will be open to amendments from all sides — we would make history in that we would be making a piece of administrative law — which, I hope, would be endorsed by the other House — extending the rights of the citizens of this State into an area where their rights should never have been withheld.
