Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Thursday, 19 Dec 1996

Vol. 149 No. 16

Freedom of Information Bill, 1996: Second Stage (Resumed).

Question again proposed "That the Bill be now read a Second Time."

I stated that I welcome the balance of the provisions in section 7. They are, however, the type of procedures I would like to see included in an administrative procedures Bill. I do not doubt that such a Bill will be introduced, either by way of Private Members' motion or by the Government, early in the new year.

I made reference to a number of specific points of concern in Part II. For example, section 10(1)(c) makes reference to "the opinion of the head, granting the request would, by reason of the number or nature of the information...." which represents an exclusion on the basis of the extent of the records. This is a broad provision and it is difficult to tie down. We do not want to create a situation where people will request that 40 foot long containers full of documents be provided. At the same time, however, we must be careful. I am aware the commissioner will oversee these provisions but I am concerned about bolt holes which might be used by public servants who are not necessarily as passionately interested as Members in freedom of information. Section 10 could be used or abused in limiting access.

Section 12 deals extensively with access to records. I am worried that there would be a temptation to subject this section to perverse interpretation. However, I acknowledge that section 12 is not merely concerned with providing copies of records or the information public servants believe people are seeking; it provides for reasonable opportunities for members of the public to inspect the records in person. The fundamental issue obtaining in a Freedom of Information Bill should be access to hard records. I believe the Minister of State is also of this opinion because interpretations of the records will involve a certain amount of editing and sanitising. Essentially, this would mean there would be two records. I am concerned that perhaps section 12 could be subjected to a narrower interpretation.

I will now to deal with a more important aspect of the exclusions involving the manner in which the Bill is being introduced. There is no need for a 12 month delay in respect of all Departments complying with the provisions of the legislation. The Bill requires that books of precedent should be written down and made accessible to the public. This is an interesting step in terms of public administration because it comes close to creating a body of administrative law, which did not exist heretofore. It will move us away from the old British tradition and closer to the Napoleonic code which operates throughout continental Europe. That is an interesting measure. I am not sure whether it should be introduced in the context of this Bill, but I welcome it. The Minister of State has managed to piggyback one positive measure onto another and I celebrate her success in that regard.

One of the problems that has arisen, however, is the fear the legislation will be so complex there will be a need for a 12 month delay, after it becomes law, before it comes into operation. I accept that in Departments and Offices with major administrative decision making processes, such as Social Welfare, the Revenue Commissioners and Agriculture, Food and Forestry, time will be required to put the necessary systems in place. However, the public service has had in excess of two years to work on the concept of freedom of information. It is aware of the commitment of the present Government, its predecessor and the Houses of the Oireachtas to this issue. It strikes me that public administrators have had ample time to make preparations but I accept there is a special need to draw up books of precedent which will be accessible to the public.

Many Departments do not fall into the category of being required to give decisions on a daily basis. For example, there is no major volume of executive decision making in the Departments of Health, Finance and the Taoiseach which requires the construction of overly elaborate books of precedent. The staff Departments and several of the line Departments do not have a large volume of executive day to day decision making. By their nature, they are the policy drivers and should make information pertinent to their operations accessible from the outset. It could be argued that the Department of Social Welfare, for example, requires time to adjust to the new procedures. However, a period of 12 months for all Departments is not necessary. The Minister of State should accept an amendment to introduce immediate application of the legislation in those Departments where there is no overwhelming argument against the taking of such action.

The Bill will not be implemented immediately in respect of local authorities and health boards which is a fundamental error. Part of the tremendous contribution made by those who drafted legislation in the 18th century, particularly for local government which is the basis of our law, was that they introduced requirements of openness. These have been eroded by the intervening legislation. The Minister of State is aware of the bizarre situation that occurred recently in County Wicklow where her party colleague, Councillor Cullen, had to take the manager of the council to the High Court in order to gain access to information. Councillors and citizens have a right of access to information from local government. There is no compelling argument for not applying the full rigour of this legislation to local authorities, county councils, urban councils, corporations, town commissions and vocational education committees from the outset.

The Minister of State has as much experience as I have of local government. I put it to her that in recent years there has been an unacceptable propensity within the managerial and executive ranks of the councils to deny access to information to the public and councillors. The latter cannot fulfil their democratic responsibilities if they do not have access to information they require. A number of years ago I was obliged to use the powers provided under sections 2 and 3 of the Local Government Act, 1955, which covered managerial matters, to try to discover the actions of my council regarding the purchase of land for a super dump. That is wrong and cannot be defended. When I discovered the truth as opposed to the spin being put on it, the argument was that it would not have been a good idea if councillors knew the management was negotiating for particular land. It took a year or two before it admitted negotiations were taking place. That is not the type of openness we want in public administration. We must ensure access to information at least where public representatives are concerned.

I will table an amendment on Committee Stage proposing that the Bill be extended immediately to all local authorities. Given that the original legislation, the Local Government (Ireland) Act, and other 19th century legislation provide a right of access to information in local government, there is no compelling reason we should deny access in this legislation from day one. The moment this Act comes into effect each local authority should be subject to its full rigours. Our councillor colleagues would welcome that.

A few years ago a bizarre situation arose when the Comptroller and Auditor General had to take a health board to the High Court to get access to information on interviews. It was even more bizarre when it was appealed to the Supreme Court. That is not the culture on which local government was based. It was based on the concept of government by the people. Since the 1940s we have allowed the openness of local government to be eroded and our councillors to be put in the ha'penny place and to be continuously kept in the dark and treated, as some have said in their elegant way, like mushrooms when trying to get information from public management. A great deal of good could be done for the democratic process and the public if the Minister included local authorities from day one.

The full rigours of the Bill should apply to health boards immediately. I commend the Minister of State, who indicated she had problems with State-sponsored bodies to which I will return, for accepting that the BTSB should automatically come under this Bill. There is far too much secrecy about the way we administer health. We have done irreparable damage to the good health services by allowing everything to be shrouded in secrecy. Like myself, I am sure the Minister receives representations from people who are unhappy about the way they or a relative was treated within the medical system. There is supposed to be a charter of patients rights in the health board system but the Minister of State knows, as I do, that it does not work because there is no culture of openness in medical administration. From the day a person goes to medical college, he or she is imbued with a degree of arrogance. There is no tradition of openness in the medical profession or the medical administration system.

When we introduced the Ombudsman legislation we excluded the health authorities. When we finally included them within the Ombudsman's remit, we excluded clinical judgment. If I or the Minister go into hospital with an injury to our right leg but our left leg is cut off, we can only look at whether a clerk filled in the form correctly and not at the area of clinical judgment. I am not suggesting professionals in the medical field should be second-guessed. Clinical judgment is frequently based on guess work —in fact, it is a fancy word for guess work because often medical professionals do not know what is wrong with a person. If we exclude the entirety of medical administration from this Bill, the Ombudsman Act and other reforming legislation, we are doing an injustice. I would like health boards to be included from day one. I do not believe the sky will fall if we do so. In fact, I am certain it will not.

I again refer to the concerns which existed in political life when we first discussed the Ombudsman legislation. The Minister will know I was very interested in it and fell foul of a number of senior people in my party because I regarded the approach taken as ridiculously conservative. I pointed out in an article in IBAR that if we included the prison service, health boards and local authorities, nothing would happen. We began to include them incrementally and things have not ground to a halt. However, the damage was done because people went to the Ombudsman's office and were told it did not have jurisdiction, so they did not have much faith in it. The Ombudsman and his predecessor have had to fight to establish themselves in the public consciousness.

There is no reason State-sponsored bodies should be excluded from day one. State-sponsored bodies, particularly non-commercial ones, are in a privileged position. They are budget driven and, to a large extent, set their own targets. They are not subject to the scrutiny of ministerial responsibility, to questioning on daily executive activities by the Houses of the Oireachtas or to Adjournment debates. We have created — I accept the analysis of the 1969 Devlin report — a huge number of non-commercial State-sponsored bodies because we want to break areas of public administration away from the constraints of ministerial responsibility, which I accept. However, we have not put in place a public overseeing on the activities of these bodies. For example, we excluded such bodies from the overseeing activities of the Oireachtas Joint Committee on Commercial State-sponsored Bodies, a crazy thing for both Houses to do, and from the operations of the Ombudsman. We are effectively excluding them from the operations of this Bill for three years. We cannot argue in favour of that.

I do not know what briefing the Minister received or what conservatives on the political side of the Administration insisted on this. I cannot believe any member of the Cabinet or the second rank of Ministers would argue strongly for the exclusion of State-sponsored bodies. The argument has been that it would interfere with the commercial freedoms we sought to give them. That argument does not hold. State-sponsored bodies would gain greatly by being included and there should be no delay in this regard.

I am concerned about other areas. I refer specifically to the exclusion of the courts. Our courts are in an almighty mess. I do not believe the conventional view that Ministers for Justice are responsible for the mess is entirely true or an accurate explanation. I am familiar with a case, which was tied up in the High Court and now the Supreme Court, concerning a young couple, Mr. and Mrs. Doran, who live in Greystones. They have been seeking justice for seven years and have been frustrated at each turn by what I call the legal Mafia — solicitors and, most recently, the Bar Council. They have been driven to distraction by delays and inexcusable behaviour by the highest legal officers in the land. I sought to highlight their plight on the Adjournment. As the gentlemen in the Law Library and the senior wigs on the benches do not pay too much attention to us, there is no way we can inquire as to how the administration of justice——

An Leas-Chathaoirleach

Senator Roche should be a little more restrained in his comments.

The exclusion in section 46(1) does not apply to a record relating to the courts. I am not referring to the quality of the judicial interpretation——

The administration is included.

I want to make a specific point.

An Leas-Chathaoirleach

The Senator is referring to a specific case. I would prefer if he did not do so.

I will not refer to a specific case. However, we should imagine a case in which this situation could conceivably arise where the Chief Justice — I am not saying this happens — must listen to a case at one level and do so again at another level and where it takes him seven years to reach a conclusion. We would not be able to inquire into the administrative procedures. The people would not have access to the material surrounding the case. Perhaps it would be more appropriate to return to this on Committee Stage.

Section 46(1)(a) provides that the Bill does not apply to the courts. I might be interpreting it incorrectly and if I am I would welcome such news. However, my interpretation of section 46(1)(a), which states: "the courts (other than a record concerning the general administration of the courts or the offices of the courts)", is that we do not have power over how the courts administer themselves. The Minister of State knows we are impotent in this area. It is one of the last areas of secrecy.

Section 47 refers to fees. The Minister of State does not intend that the fees should become a problem and I am sure she and her staff wish to ensure that the public interest is also protected. We do not want people endlessly copying documents for administrative research. Section 47(2)(a) refers to "the estimated cost of the search". This issue should be confined to direct costs; people should not be expected to bear the cost of administrative overheads. I will propose an amendment to that effect on Committee Stage. I am trying to be helpful in outlining the amendments I will propose because I do not want to spring them on the Minister of State.

My party's aim is to have a Freedom of Information Bill passed as soon as possible. We are not interested in who sponsors the Bill. If some minor points that recommend themselves in my Bill can be incorporated into this Bill we will be pleased to do so. We are not interested in securing political kudos on this issue because freedom of information is long overdue in this country and will do a huge amount of good.

I regret if I sounded critical of some aspects of the Bill but the criticism arises from a sincere interest in having an administration which will operate in the interests of the people and not in the interests of bureaucrats and vested interests. It is self evident that a public administration that is open and accessible is an administration that serves the people. A public administration that is not open or accessible does not serve the people. Nobody in political life, from the local authorities to the Oireachtas, is interested in that type of administration.

I commend the Bill and welcome its introduction. It is a pity it took so long to bring it before the House but that was not the fault of the Minister of State. I wish her and the Bill well and I hope she will listen to our arguments in favour of amendments.

I welcome the introduction of this Bill. It is appropriate that it is initiated in the Seanad in view of the debates that have been held here on this subject in the past.

The Ombudsman, Kevin Murphy, said in his 1995 annual report: "Information is at the centre of the citizen's dealings with public bodies and, in its absence, he or she cannot even begin to ask how and why decisions are made. The fundamental cause of many complaints which I receive is a failure to provide appropriate information or reasons". Many of the complaints documented in the report result from a lack of openness by public bodies. If citizens had greater knowledge of the basis on which decisions were made, many of the complaints would not have arisen.

Access to how official decisions are made is a civil right in an open democracy. To date we have had a culture of secrecy and of avoiding giving full information. It was as if the system felt exposed if information was available. On reading the Official Report of proceedings in the Dáil and Seanad, one is struck by the culture of secrecy surrounding our approach to public life. In the past 50 years Ministers from all parties went out of their way to give as little information as possible, especially in response to questions. Negative answers were frequently given and no supplementary questions were allowed. Phrases such as "the matter is being dealt with in due course" or "as soon as possible" litter the replies to parliamentary questions.

The culture of secrecy permeated all aspects of Irish society, including education, the churches, health, hospitals, the Garda Síochána, the Army and so forth. Even the Government Information Services prevented information being given. It was not until 1973, when Muiris MacConghail became head of the service, that a real attempt was made to put the dessemination of information to the media and the public on a professional basis.

It is difficult to introduce legislation before society is ready for it. If this Bill had been introduced ten or 20 years ago it probably would have been too soon because society was not ready for it. This Bill provides citizens with access to official information which is of direct personal relevance to them. The presumption of secrecy is removed and replaced with a presumption of openness. People who have received blood transfusions or blood products, for example, will be entitled to know where the blood came from and what tests were carried out on it. It will give the public the right to have personal files amended if the information in them is incorrect, incomplete or misleading. It will establish a principle that all official information should be available unless the body withholding it can establish that it is in the public interest not to release it.

The main feature of successful freedom of information legislation in other countries is a purpose clause which establishes a legal presumption of openness. This Bill establishes that presumption. It legislates in favour of releasing information and enunciates a policy of access to information. This is a powerful reference point for the private citizen in a dispute with the Government or with a local authority or body as to whether information should be released. It puts the onus on the bureaucracy to justify, through an open appeals system or even the courts, why official information should not be released.

This Bill is not unique in the European context. Freedom of information legislation is well established in Denmark, Holland, France, Belgium, Italy, Luxembourg, Sweden and Finland. It also operates in Canada, the USA, Australia, Norway and New Zealand. The right to information can be exercised by directly requesting particular information from a Department or agency. To enable citizens to exercise this right in a focused way, freedom of information legislation requires that each year public bodies publish guidelines their structure, functions and the categories of information they hold. Freedom of information legislation is based on a number of key principles: to progressively increase the availability of official information to the public and enhance the accountability of Ministers and officials, to provide the right of access by each person to official information relating to himself or herself and a right to seek to have it amended where he or she misleading, and to provide and independent appeals system to review matters in dispute.

The key to the successful operation of freedom of information legislation lies with the appropriation operation of effective review mechanisms. Experience abroad shows that inteernal review by Departments proves effective in resolving many appeals by individuals whose requests for access to information have not been met or who dispute charges. About 30 percent of appeals are resolved through this process. The most effective independent appeals system from the point of view of cost, efficiency and informality is that of an independent Information Commissioner. The functions of this commissioner would include investigating complaints where information has been refused, or where the amount of charges imposed is diputed.

Freedom of information bring considerable benefits to the Irish public. It will make administration more responsive and accountable to individual citizens, offer new opportunities for democratic participation and will help protect against arbitrary decision making. It is important to get this right. Freedom of information legislation has not been fully successful in a number of jurisdication because it gave Government agencies extensive opportunities to avoid releasing information. We must avoid this. I compliment the Minister on getting it right in this Bill.

I welcome the provision in the Bill of an independent review procedure to examine cases where people are refused information by the Government or a semi-State body. Citizens can appeal to the Ombudsman, acting as an information commissioner. If the Ombudsman, acting as commissioner, supports the application but access is still refused, it can be appealsed to the courts. I commend the Ombudsman and his staff on their excellent work.

Public bodies must publish a list of their main functions and the classes of information they hold. A new statutory duty is being created to give reasonable assistance to those requesting information to pinpoint what they are looking for. When a request is made for information, it must be answered as quickly as possible, but within 20 working days at the outset. Only in exceptional cases is a longer timescale allowed.

The records which will become publicly available not only include documents but also maps, film, recordings, computer data and computer files. People will normally be given access to information in the form they request, for example, a photocopy of a document, but information may also be sent electronically or given on computer disk where it is appropriate. In the case of personal information, people will have a legal right to see their files, which will not generally be open to third parties. Regulations will provide for parents to see records relating to their children and for certain information to be available to the next of kin when someone has died.

Concerns were widely expressed in other countries when freedom of information was introduced in the early 1980s at to its adverse effects on public administration. It was feared it would fundamentally change the way in which Government business was conducted, with the danger that it might grind to a halt. It was also feared it would seriously discourage officials putting their views on paper and that the frankness and candour of advice from officials would suffer. These deeply help views were publicly aired by civil servants and politicians. Despite the fears expressed, Governments in other countries implemented freedom of information legislation with the purpose of improving the quality of public decision making and of increasing public awareness of the decision making process. Their approach was vindicated by subsequent reviews of the impact of the legislation in Canada and Australia, undertaken by parliamentary committees. Each found that the openness of freedom of information had delivered significant benefits in their respective jurisdications. Following from the success of freedom of information at federal level, it was rapidly extended to states within each of these Commonwealths.

The benefits included the improvement of the quality of decision making throughout Government — this stems from the possibility of access under freedom of information — to the associated requirement to provide facts and reasons to support decisions. There was a deepening awareness of the need of objectivity and accountability in dealing with the public. Improved information systems and record management and administration practices were revised and updated, ad hoc policies and procedures were formalised and there is now greater public confidence in Government agencies, arising from better communication. There has also been an improvement in the quality of written advice, with greater accuracy and less subjectivity.

In an article in The Irish Times on 15 December Fintan O'Toole wrote:

If it does nothing else except pass a Freedom of Information Act on the lines approved by the Cabinet last week, the Government will have effected perhaps the most profound change in Irish democracy since the foundation of the State...for all the air of secrecy about Government business, and for all that the Official Secrets Act remains in place, it looks as if something genuinely radical is about to happen.

With luck, by this time next year, citizens will have access, as a matter of right, to huge amounts of information about the way the country is run. The pane of glass behind which John Bruton promised to run the country may remain somewhat misty, but at least the steel shutters in front of it seem to be coming up.

He also refers to the second principle in the Act:

But the second critical principle in the Act is that even within these areas of exemption, it will be possible to appeal a refusal to an independent body — the office of the Ombudsman — on the grounds that the public interest in disclosure outweighs the public interest in maintaining confidentality. This, too, is welcome. Even the most passionate libertarian will accept that there are times when secrecy is a good thing. Purely personal information that could be used maliciously against a private individual should not be available. Details of negotiating positions or sensitive discussions in the Northern Ireland peace process should be protected. Somebody acting for, say, Ryanair, should not have access to Aer Lingus's commercial strategy.

The Minister said the Bill will mark profound and lasting change in the way public business is done. It ushers in a new relationship between citizens and the State and the public and the services they use. Information is power and the Bill will transfer power from those behind closed doors to ordinary people. It will herald a quiet revolution in the way in which public organisations conduct their business and will create a new climate of openness. I, like the Minister am confident the Bill will end the culture of secrecy forever. I commend the Minister on introducing the Bill and I look forward to its speedy passage.

I congratulate the Minister on introducing this Bill. I also pay tribute to my colleague, Senator Roche, who published his Bill in March 1995, which the Minister has taken on board in this Bill. It has been redrafted but the thrust, intent and spirit of Senator Roche's Bill is incorporated in it.

The Minister said that the Bill recognises in law that public bodies should be directly accountable to the public they are there to serve. When I was first elected to Dublin County Council in 1985, of which the Minister had long been a member, public servants were not amenable to the public they served. They also decided they would not be amenable to members elected, due to a trade union dispute, which I understand and accept. I did not understand the attitude of a particular member of staff who has left Dublin County Council. I was frustrated by the type of answers I received and the blank wall I came up against as a newly elected public representative. I came to the council with great enthusiasm expecting to change the world only to discover I was making little or no difference to what went before. Eventually this public servant took me aside and said their job was not to help but to tell us exactly why something cannot be done.

This Bill will have achieved something if it forces public servants to change this view. It is not the view of the majority of public servants today but it was in 1985. It was perceived by some public servants that they were there to interpret the law in the most negative way and to frustrate the public and public representatives. It is intended that it will now do much more than that. As the Minister and Senator Roche said, information is power. It is also truth and everybody is entitled to know the truth about decisions or information relating to them.

The Minister said the Bill gives the legal right to people to see files on them held by public bodies. As Senator Roche said, this provision should be brought into operation as soon as possible in relation to local authorities and health boards. I am not sure what the Minister's definition of public bodies includes but I will deal with this aspect later.

The Bill will ensure that taxpayers can see their tax records. A couple of years ago an insistent constituent came to see me with a huge bundle of papers, a copy of the Data Protection Act and other relevant explanatory memoranda. He told me he had done the rounds to gain access to his tax and social welfare documentation. He cited the Data Protection Act and said he was entitled to this information. I read the correspondence he received from the Data Protection Commissioner and the Revenue Commissioners; I am not sure whether he received any correspondence from the Department of Social Welfare.

The correspondence stated that the information he sought — the PRSI and tax contributions paid by his employer on his behalf from 1983-87 — would not be made available to him. He stayed with me for at least 30 minutes and explained why he should have that information. I told him I would write to the relevant authorities, but I could still be writing to them because he does not have that information. He still has not been told whether his employer paid tax and PRSI on his behalf, although he is sure he paid his tax. I presume the Bill will allow this man to receive the information. I can then call to his house and tell him he can get the details. As a public representative I had a misguided belief that this type of information was available but it appears that is not the case.

The Minister said parents will be able to see their children's school assessments. This is important but another area of secrecy surrounding the way schools operate involves pupils who are suspended or ultimately expelled. Children have a legal right to education up to a certain age but the placing of such pupils in another school depends on a telephone call from one principal to another. In my experience the principal who is considering taking the child asks the other principal about the behaviour of the pupil in school rather than their academic ability. A principal can decide not to accept the child into the school on the basis of the telephone call but the parents do not know why he or she was not accepted by that school or others. The child's behaviour may have been extremely bad, but there could be other reasons. I welcome the Bill if it opens up this area about which I am very concerned.

The Minister said that community groups will be able to look at policies and plans which affect their community. This is welcome. There have been many changes specifically in relation to local authorities where they must publish plans and reports and are statutorily obliged to perform certain functions. Local authorities, health boards and various other institutions will do this but the Minister and I know from the experience of adopting local authority estimates that this can be done in such a way that it means nothing. It is unintelligible and of little or no use.

The process is expensive and the glossy documents are usually well prepared and researched. However, they are unintelligible to ordinary people such as me. I do not know if they mean a dump will be built in Wicklow or land will be acquired for a regional park. The way such information is made available to communities must be simplified. I am not sure if it is necessary to incorporate this suggestion in the legislation but local authorities must be made to do their work in a way which is consumer user friendly. This is happening to a certain extent but further progress is necessary.

Senator Roche referred to the section which requires members of the public to specify that they want information in accordance with the legislation. It was pointed out that, in tandem with simplifying reports, there is also a need for members of public bodies to help those seeking information. The Minister said this aspect is covered and, if that is the case, I welcome it. However, there could be a huge chasm in terms of knowing what one wants and being able to express it and receive the assistance one needs. It could be the difference between having information, truth and knowledge or being unable to secure it. We must ensure the process is simple.

The role of community welfare officers was discussed in the past when my party was in Government and I was the spokesperson on social welfare. I defended them then and I continue to do so because they have a very difficult job. The type of criticism levelled against them is often unfounded; I do not know if I could do their job as well. However, community welfare officers will welcome the Bill because constituents tell me that if one knows how to play the system, one can get everything but if one tells the truth, one gets nothing. If there is a way it can be shown that the decisions of community welfare officers are based on the information people gave them and are sound — although they can be appealed — it will stand to the community and to the officers who do an extremely difficult job well.

The Minister mentioned the right to access to the reasons for decisions. I did not go through the Bill and having heard Senator Roche's contribution, I thought perhaps that I should not speak. I do not have his, or the Minister's, depth of knowledge of the legislation but as I learned from the comments earlier, the courts and the Office of the Director of Public Prosecutions are excluded. I do not know if it is possible but the public needs to know how the Director of Public Prosecutions reaches decisions.

I am aware of a local case in which a child was hurt. The person who allegedly hit the child was summonsed and the child's parents attended the court. However, the man who allegedly committed the assault did not turn up because of a strike involving the summons server. When the matter arose again, the parents were told there was no case. No matter what one tells them, they are convinced that somebody inside the system was on the side of the man alleged to have assaulted the child. They believe that because he did not turn up the first time the case was called, the Garda must be on his side.

It appears the Office of the Director of Public Prosecutions said it was a civil case because the person who allegedly committed the assault did not conceal it. However, it does not matter how many times this is said to the parents because they are convinced the man had more clout with the Director of Public Prosecutions. If the Bill is to achieve its aims, the decisions of the courts and the DPP should not be excluded. The problem of a deficit of information from and accountability by the Department of Social Welfare, health boards and community welfare officers has existed for years and we are approaching crisis point in relation to decisions of the courts and accountability in that regard. If this area is excluded, worse problems will be stored up and there will be an even bigger crisis in the future.

The move to establish an Information Commissioner is excellent. The Minister pointed out that the powers of the Information Commissioner will be stronger than those of the Ombudsman, who would be the first to admit that he would prefer stronger powers. His original job became more detailed and he was given slightly greater powers, but the Information Commissioner will need the powers it is proposed to give him and which are in line with the legislation. As the Minister said, unfavourable decisions can be reviewed by the commissioner.

Because of my background I cannot speak in the House without mentioning a group who lobby me daily. Those who are adopted and seeking information about their birth records feel they are excluded from getting the information on their birth circumstances. That is why I ask about public bodies. The Adoption Board is a public body but I am unsure as to whether adoption societies are included in this definition. There are good adoption societies but some abuse their power disgracefully regarding information on birth files and will continue to do so. Some adoption societies will still refuse access to records even in cases where adoptees have made contact with their birth parents. If contact is established with a birth parent, presumably one has their consent and it is hard to understand the excessive control the adoption societies have of their records. As they were undertaking a function of the State I would regard them as public bodies.

When the Tánaiste discovered the batch of files in the archives of the National Library, he announced the information would be made available on a central database. That suggested an opening of the door which people with files in other agencies copy. Obviously there are some details that cannot be given out without consent but some, such as health records, can.

During my first pregnancy, I was asked for my health records. My history of blood pressure, etc., was sought and I had to say I had no health record. The obsession with information which later develops in adoptees comes about because they are refused information on ordinary matters such as health records, details of where one's parents came from, etc. Not all information can be given and those who gave children up for adoption were guaranteed confidentiality but I am told that is not enshrined in the Adoption Act, 1953. It was arranged between the adoption society and the person giving up the child and while it may have some legal status it does not have the status these societies apply to it.

I have spoken on every matter in the House which had some relevance to adoption. The Minister of State at the Department of Health has not been helpful in this respect. Yesterday I received a most unhelpful reply on the matter of a contact register which would probably get around the problems mentioned. I will use my friendship with the Minister for State to see if we can do something with this Bill to get information for this group of people who seem to regard me as their personal Senator. With the Minister of State's help, something might be done to recognise that these people are entitled to the information just like everyone else. I welcome the Bill.

I welcome the Bill and the fact that it is being initiated in the Seanad. It will change our society tremendously. It is a cultural change as much as a change in the operation of Government and public bodies. The experience of other countries is that there was a change in the way the citizen approaches the State. It has benefited the operations of the State, public bodies, public representatives and particularly the relationship between the citizen and the State. It allows citizens to actively participate in a way they had not been able to do because of the presumption of secrecy. Now there will be a presumption of openness.

People will not feel alienated from the process of decision making. At present they feel they do not have access to the information they need from local authorities, health boards, public bodies or Departments. The legislation covers all these bodies. The exclusions have been carefully thought out. There was an interesting article in The Irish Times yesterday stating that the specific nature of the exemptions and the way they had been considered strengthens the legislation. It ensures other bodies cannot hide behind the possibility of exemption. The fact that the balance of public interest is the overriding consideration in relation to exemptions is very important.

The front cover of Democracy Blindfolded: The Case for a Freedom of Information Act in Ireland by Patrick Smyth and Ronan Brady states: “We need a new sense from our political establishment that the citizens of this State can be trusted, that they are mature enough to take the right decisions for themselves and that they no longer need the protective mollycoddling of one of the most protective States in Europe.” That sums up the importance to our democracy of bringing in such legislation.

I particularly commend the Minister of State on her dedication to this legislation. She has been committed to this for many years and it has been difficult to get it right. A great deal of work has been put into learning from other countries. Senators have cited countries which have implemented such legislation, particularly Canada, New Zealand and Australia. The balance is right in this legislation. Senator Roche was correct to say it is a move from the old British system we inherited to the more European, Napoleonic code, with its commitment to informing citizens more than protecting official secrets. I welcome the examination of the Official Secrets Act because it goes hand in hand with this legislation.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Before the sos, I concentrated on the importance of enacting this legislation because of its potential to transform public participation. I will now speak about how the legislation will be implemented and how it will contribute to change.

While the legislation itself is most important, it is nearly as important to ensure that, when it is enacted, the rules and regulations introduced are clearly spelled out and are effective. As other Senators have said and I concur with them, there are many areas where we are poorly informed. This means we cannot fully or adequately respond to decisions which affect us as individuals, as members of the community or pressure groups or as people who want an issue resolved with a local authority, health board, Department or other public body.

There are many examples one could cite. Local authority housing is one area where people often feel they are not adequately equipped with the information they need. They do not know where they are on the housing priority list nor where to get that information. There are many other areas one could cite where people feel inadequately informed and do not know how to get the information.

Information is power but it is necessary to know how to get it. I welcome the obligation on public bodies to publicise how information may be obtained. Public bodies, including local authorities, must publish what information they have and specify what is available to the public. Senator Roche raised the issue of sections 6 and 7 in that regard. He was right about section 7 but I hope section 6, which places a duty on public bodies to give reasonable assistance to the public, would ensure the availability of information. It is sometimes difficult for the public to relate to the information available; it does not know how to access it and some of it is available under current legislation. This Bill will assist greatly with public access.

There will be resistance in local authorities to providing information. I hope local authorities, health boards and other public bodies will be as prepared as Departments. Perhaps the Minister could give information on that. I understand that Departments will prepare for this legislation so that they can adequately respond when it is enacted. Is there a similar intention for local authorities? Will officials in local authorities be trained to be fully au fait with their obligations under this legislation? For it to work, all the people who use and hold information must be ready and willing to impart it.

How is the information to be transmitted? Will it be published in newspapers, in a document or available on disk? How will the public find the information? Will it approach relevant officials and, if so, will they have that information to hand? These are important practical issues in implementing the legislation.

I note that in other countries which have brought in similar legislation the transformation in public attitudes took place slowly. That is probably inevitable because it takes people a while to realise the power they have under this type of legislation. It is essential that every effort is made to ensure public officers have a positive attitude towards assisting the public to obtain information.

I welcome the inclusion of the Blood Transfusion Service Board. One article I read suggested that we would probably not have needed the hepatitis C tribunal or the beef tribunal if we had had freedom of information legislation earlier. The right to information under this legislation should greatly improve the access to information in these areas where legitimate questions are asked about how public bodies do their business.

I also support Senator McGennis's comments on adoption although I understand this legislation does not exclude information on adoption and, in that sense, it is not denying any right to information. The case she makes is one which must be addressed, if not in this Bill, then in later legislation.

I also support her point about the Director of Public Prosecutions. While there is a need for safeguards in this area, a strong case has been made by the Rape Crisis Centre about cases which go to the DPP where it is difficult for people to understand why some are proceeded with and others are not. I do not know to what extent the legislation applies to this area.

The application of the legislation to An Bord Pleanála and similar bodies should be as wide as possible. There are many issues under the heading of local authorities: planning, environment, housing and information on the funding and expenditure of local authorities at the time of estimates, to which Senator McGennis referred. In my local authority we removed service charges the city manager had proposed but in order to do so we had to cut expenditure. There was great difficulty getting details of expenditure from the local authority. This poses problems both for public representatives and the public. I hope that this will change as a result of this Bill.

It is important that information is available to the general public and its representatives. If the public is to participate in our democracy it must have equal access to information. Public representatives should not always be seen as intermediaries and I hope this Bill will promote a feeling among the public that it can access information without the assistance of public representatives.

I welcome the establishment of the commission and the powers this Bill confers on it. It is appropriate that the Ombudsman has been appointed to this position but I believe there is considerable overlap between his two roles as many cases referred to him arise from a lack of information. Will the Minister clarify this point? The commission has strong powers and it will be possible for it to ensure that the spirit of the legislation is adhered to. It will have power to report to the Oireachtas on how the legislation is working and that is welcome.

The way in which this legislation is being enacted means that there will be no loopholes or hiding places for public bodies and officials. The intention is to make available whatever information is required. Concerns that some information will not be released are not justified because information can only be refused to protect the public good.

My party has had a strong commitment to this legislation for many years. The programme for Government agreed with Fianna Fáil contained a commitment to consider this legislation. The present programme for Government also includes a commitment to its enactment. That Bill is being initiated today. I have no doubt that it will transform the way in which the public relate to information. I hope the Bill will be implemented as soon as possible. It cannot be introduced overnight because preparations must made in the various bodies. The manner in which the legislation is implemented is as important as the legislation itself because there is no point in having it if it does not permeate through all levels of administration. The legislation will provide for this and I welcome it.

I welcome the Minister and this legislation. I believe that rumour is always worse than reality, as I am sure we will find out in the other House today. The culture of openness in this Bill is a step forward. I commend Senator Roche on his efforts in bringing this legislation before the House. I also remember Senator Ryan's Bill which was introduced in 1985 and 1988. It is interesting when reading through the debates which took place then to see how much attitudes have changed. There is now a warm welcome for this legislation from all quarters.

We have come a long way and some of the changes sought have been introduced. I commend the Department of Social Welfare which has improved enormously and the citizens' advice bureaux which constantly produce leaflets so that people are aware of the benefits available to them. It was interesting to discover that the Department advertises these benefits on the radio. This is a total change in attitude. Ten years ago people could not find out how to get a fuel allowance because the circular was not available.

However, a culture of secrecy remains in some areas. A number of years ago I telephoned a Department to ask for information and was asked why I wanted it. I replied that if that was its answer, then I would not ask the question because the reply would vary depending on the reason for my asking it.

There is less of a culture of secrecy in some Departments than in others but I have particular trouble with the Department of Justice. I was not in favour of the bail referendum but I could not find out how many individuals had committed crimes when on bail rather than the number of crimes committed. Did one person commit 5,000 crimes or did 5,000 people commit one crime? Not being able to get this kind of relevant information can be very irritating.

This Bill will not just affect Departments. I am very interested in the progress being made in the food industry, particularly regarding genetic engineering. People will want more than simple labelling giving the contents of food. They will also want to know the source of the products, whether they were genetically engineered and so on. This information is not top secret and it is important that it be made available.

I am a member of the medical profession which is one of the most secretive of professions. However, since doctors began giving more information to patients our lives have become much easier. In one hospital to which I am attached the patients hold their charts and the charts have never been better kept. It is convenient to be able to ask patients how their haemoglobin levels have changed, for example.

This legislation ties in with the data protection laws because there is a great deal of information which is relevant only to the person it concerns. We in the medical profession must be careful about insurance companies' and employers' interest in personal data about patients. I am glad to see provisions in the Bill dealing with such circumstances.

There may be problems with privacy on the Internet; perhaps all we can do is look for best practice. I am often amazed at what some people put on fax messages which are sent to public offices. We should always remember that modern means of communication are not always as private as we think and information which we wish to keep private should be sent in a private way.

It is a pity the Bill was not ready for debate during the EU Presidency; I am aware the delay was not the fault of the Minister of State. The Bill brings us up to best international practice. Our nearest neighbour, the UK, has traditionally had a culture of secrecy and perhaps that hindered us bringing forward this legislation earlier.

Many dignitaries from applicant states to the EU visited Dublin recently. It is important to impress upon them that we expect the same freedom of information practices in their countries as in the EU. We have a tendency to consider the economic aspects of the EU but the social aspects are also very important. I had the privilege of being asked to speak in Bratislava at the commemoration of the 75th anniversary of the birth of Alexander Dubcek. To my dismay I discovered that a considerable body of legislation in Slovakia diminishes the freedoms so recently gained. For example, legislation has recently been passed whereby any group which objects to what it considers the infringement of the state upon the person can be considered to be acting against the state and might be imprisoned.

Slovakia has a unicameral parliamentary system, which I think unfortunate. For all their splendid universities they do not have university senators.

They would have no Labour Party university senators or activists.

The legislation has been sent to the Slovakian President who has delayed it. He appears to have powers similar to the Seanad.

I thought the Senator was going to tell us she is an Independent Senator and not a member of the Labour Party.

Such countries need us to object to such measures. I compliment a former Senator, Gemma Hussey, who has done great work in eastern Europe stressing the importance of freedom of information and of the press. One often gets the impression that more changes have been made in the eastern European countries than have been made.

The President of Romania, Mr. Constansescu, and the Romanian Foreign and Culture Ministers visited Dublin last week. They came within two days of being elected because they wanted to be here in the lead up to the EU Summit to stress how important it is for them that we should know what is happening in Romania. It would be a mistake to think there has been freedom there since the fall of the Ceaucescu regime. It is only since the last election that Romanians have achieved a freedom on which I hope they can build. We should give them what support we can. They have sent a very good ambassador to Ireland. Romania puts great emphasis on the way small European countries should act towards others. It is important for us to keep an eye on what is happening in the countries on the far side of the continent.

I found to my astonishment that in Slovakia the directors of the opera and the national theatre were being replaced. In many of the former Eastern bloc countries the members of the artistic professions were often the most outspoken and courageous. Had we been in the same position many of us would probably have stayed quiet and kept a low profile. At the celebration for Alexander Dubcek I met some of those people who for decades put themselves in great danger trying to encourage freedom in their country. That illustrated to me how fortunate we have been since the foundation of the State to have the freedoms we had and this Bill extends them even further. I remember once asking about the menu for a dinner I was attending in Northern Ireland and I was told it was secret. Thankfully, we have never gone that far.

I welcome the Bill and I hope its provisions will extend to all citizens. People in prison often have difficulty getting access to information and can have problems preparing for trials. There may soon be an increase in the numbers on remand in the prisons and those people may have more difficulty preparing for their trials than if they were outside prison. While we can give freedom with one hand it can be easy to take it away with the other. I hope the Minister of State will keep a close on watch on the implementation of the Bill.

One might say that with the enactment of this freedom of information legislation the old order changeth. It has been awaited for a long time. Appalling cases have arisen over the past few years concerning the failure of local communities and individuals to obtain information to which they were rightly entitled. I recall fighting a battle some years ago with others in the county council for the right of people to have access to planning files. At the time were told we could not have access to such files but changes were made when sufficient pressure was applied and now one has the right to consult planning files. If an individual or group has an interest in something, that is as it should be.

I welcome the Minister of State's reference to "county councils, health boards and other public boards, and semi-State organisations and organisations which are substantially publicly funded such as secondary schools". However, urban district councils should also be included.

I referred to local authorities.

The Minister of State specifically mentioned county councils but I accept that the urban district council is a statutory body under the local authority.

The right to see one's own files and to refer to the housing list was referred to earlier. Many local authority managers have failed in recent years to provide housing lists. I have been a member of a local authority for nearly 30 years and for 27 of those years we had a housing list. However, because of the reduction in funding for local authorities such lists are no longer provided. The reason was the most urgent cases would be provided for when houses were being built and consequently the county managers' association decided there would be no lists. That should be specifically provided for. People who apply for rehousing should be entitled to have their circumstances assessed and be placed in order of priority. They should not have to wait six or seven years which often happens. Such a system would eliminate that.

The Minister of State said that community groups will be able to get information on policies and plans that affect their community. We have plenty of evidence of cases where local authorities planned and developed landfill sites which have become a major problem. People are concerned and they are at least entitled to the right to know about such matters so that they can assess their situation. That will relieve many of the problems that currently exist where people have blocked roads to stop hauliers bringing effluent into their areas. It would be helpful if people knew which hauliers were licensed by the local authority to access such sites.

Health boards behave appallingly as far as making decisions without giving any explanation for them is concerned. The Bill will improve that and many people will now have the right to see their own files. I do not know whether representatives of such people will have the same right but that should be considered. Some people may be well able to present their case while others may be too timid to do so. The office of the Information Commissioner will act as an independent watchdog and that is built solidly into the Bill.

According to the explanatory memorandum, section 47 "provides that fees may be charged in respect of the location and copying of records, based on a standard hourly rate...". In what circumstances can records be copied? I understand that if one looks at a planning file in a local authority one cannot copy it. There is provision to charge a fee for copying records but will the right to copy records be built into the legislation?

Information is vital to the proper functioning of a democracy. Our democracy will be strengthened by the provisions of the Bill. Over the years we have become accustomed to under the counter Government. In our Constitution there is no vindication of the right to know and successive Governments have used provisions ranging from Cabinet confidentiality via the Official Secrets Act to specific legislative changes as pretexts for denying the public access to the most innocuous information.

The Freedom of Information Bill will tear apart some of the veil of secrecy which has shrouded Government and public administration in the past. I hope that in future, progress will be made on related matters.

While I am concerned about the exemptions in Part III, I will not deal with them now. I am also concerned, however, about the Department of Justice, which was mentioned earlier by Senator Henry. That Department's attitude is absolutely appalling.

I did not go as far as that.

No, but Senator Henry referred to the Department of Justice.

Senator Henry was right to say that, even as a member of the Labour Party.

From my experience in that regard I would have felt strongly about that question. I am not implying that Senator Henry said that, but I am saying it. That is the kind of change we want to bring about. The implementation of this Bill will require a change in attitude by civil servants to make the system work.

This Bill is long overdue. As an Independent Member, it has to be said that Senator Henry is a card carrying member of the Labour Party.

I hope the Senator will deal with the Bill.

I suggest that Senator Henry should not be described in the House as an Independent Senator because she is a card carrying member of the Labour Party. I have no objection to that.

What bearing does that have?

I ask the Senator to address the Bill before the House.

It has no bearing in the world except that, as the Minister of State is introducing a Freedom of Information Bill, I agree that there has to be a change from what has happened in the past where members of the public, Members of the Oireachtas and members of county councils could not even find out who they were talking to when they raised queries. Freedom of information is not about the major things in life, it is about somebody walking into a county council to inquire where they are on the housing list. People could not get that information up to now but the Freedom of Information Bill will allow someone who has no house to find out when they will get one. People want to be able to find out if they can get a house within the next couple of weeks. As a public representative I want to know who will give me the information. I want to know the name of the person to whom I am speaking and where a person about whom I am inquiring is on the priority list. I have been a member of a local authority and a Member of the Oireachtas since 1969 and I must say freedom of information is a two-way process. I want to be able to talk to civil servants or county council officials on the basis that they know I will not shaft them if I ask where a person is on the list. I do not want to be quoted afterwards saying that the person is not fit to do this or that. Does this mean that, every time I make a telephone call on behalf of a client to a county council official, that official must tell me the exact situation? Must I then be responsible for that information or is the official responsible for it?

I know people who are towards the top or bottom of a housing list and they have been in contact with every Deputy and Senator. Under this Bill, does the responsibility lie with the first person who telephones a county council official and is that official responsible immediately for the statement he or she makes? That is very important. If Senator Sherlock and I are in the same constituency, for example, and a person goes to him first and he telephones the county council official tells him "There is no hope" and the same official tells me "We will look into it", where lies the official's responsibility?

Under the Data Protection Act, 1988, I can ask about the data an organisation holds which affects me. Can the Minister give me protection? If she, as a Minister, telephones a county council or Government body, will she be told that under the Data Protection Act, 1988, she cannot be given any of my details but that she can be given them under the Freedom of Information Bill when it is enacted? How can she equate the Data Protection Act, 1988, with the Freedom of Information Bill? That is my major difficulty with the Bill. I would agree with many of its provisions but the two pieces of legislation are absolutely different. If one examines sections of the Bill, one will find that it negates the Data Protection Act. The Minister keeps shaking her head. Where, in law, can I have protection under the Data Protection Act, 1988, and where can I have it under the Freedom of Information Bill?

I will deal with that in my reply.

I am sure the Minister will welcome the opportunity to explain to Senator Lanigan, but it will wait until her reply.

In general, I welcome the Bill. It is long overdue and I welcome the intention behind it. However, the Bill is not as liberal as has been suggested. Indeed, the number exemptions is significant. There are a large number of exemptions throughout the Bill——

There are 62.

——and that is my difficulty with it.

Many people have talked about the culture of secrecy which has permeated all public institutions for many years. I have mentioned before that I find disquieting the attitude that county council officials know best and that State officials should decree to what the public should or should not be allowed access. That is a characteristic of colonialism at its worst. The colonial attitude was always that the natives could not be trusted, that they could not be let run their affairs because they would make an absolute shambles of it, and that rule by the great benevolent power overseas was best. The attitude was that there was something faintly distasteful about the natives, they were not as well educated as the colonists and they did not know as much about life as the colonists. That is an appalling attitude. Incidentally, I am not suggesting that the Minister would adopt that attitude and everything in her history would suggest she would not, but that is a very widespread attitude within not only the State but also institutional life. There is a belief that people who are outside the establishment are not to be trusted and that must be stamped out, and I hope this Bill has that effect.

I accept there must be exemptions—I am not suggesting otherwise—as specified in the Bill in respect of the security of the State, military matters, Northern Ireland and sensitive information which might be available only to the Government and which, if widely known, could lead to instability. However, as always in these cases, the question is one of balance, and the balance has not been weighted far enough in favour of the liberal side of the argument.

There have been two beneficial effects of Nordic countries' membership of the EU and the first has to do with freedom of information. Things which would have been, and are, tolerated in Ireland as matters of secrecy would not be tolerated in Nordic countries where there is a more open attitude. The second beneficial effect relates to the environment, and it is unrelated to this Bill. Nordic countries have brought these perspectives to bear on the EU and they have made a welcome positive impact.

One serious flaw in the Bill is time it will take to introduce provisions in respect of a range of bodies. It will be three years before the Bill comes into effect with regard to local authorities and health boards, and that is before one considers the year after the commencement. That is an appalling length of time. I can not understand why it will take so long. The question which then arises is when is the commencement date?

When people are seeking information which, of its nature, is needed immediately, speedy access is essential. There can be a four week lead in period, followed by another four week extension if that is deemed necessary by the head of the organisation providing the information. There is an extended period before the person seeking the information can acquire the information and it then has to be kept on the books for another four week period to allow that person time if he or she so desires before acquiring the information. That period will have to be looked at on Committee Stage. The other question that will have to be looked at on Committee Stage is whether this three year lead in period for local authorities and health boards is too long.

There may be difficulties in certain areas when it comes to the exemption aspect of the Bill. Those of us who are members of local authorities know that, for instance, very sensitive individual and personal information is available to people in the health board and in the local authority which is very beneficial when making decisions as to who should qualify for local authority houses. Kildare County Council has had quite a debate about opening some of these meetings to the press. I can understand the difficulties caused by discussing information of that nature in a public place. However, each individual should have access to whatever information is on file about them and should be able to correct it if necessary. That would be the case under the Bill.

There are so many caveats in the Bill that if the head, as specified in the Bill, wants to be obstructionist he or she can make life extremely difficult for the requester to the point where the requester might be inclined to give up looking for the information. This could be the case to the extent of specifying the type of written form that would have to be presented when applying for the information. It is inevitable that there are specific rules and regulations under the legislation but everything is biased in the direction of the person who witholds the information. If the culture of secrecy continues and if the individual who is responsible for the dissemination of the information contained in the files subscribes to that culture of secrecy, it will be very difficult for the Bill to operate.

I am concentrating on some of the negative aspects of the Bill but in its general thrust and tone it is a significant advance on what we have had to date. A related issue is defamation and freedom of the press. The bias has been against freedom and publication of information and weighted heavily in favour of the protection of individual rights. At the moment it is extremely difficult for the press to publish information which is freely discussed in the public domain. The defamation laws are such that newspapers expose themselves on a daily basis to people who trawl the newspapers for statements which may be defamatory so that they can sue those newspapers. That is wrong because at the foundation of our democratic system is freedom of the press. There has to be a healthy tension between Government, political establishments and the press and that tension is good for democracy.

I mentioned the one year period and the three year period which is granted to local authorities. There is a reference to the Chairman of Dáil Éireann in section 2 (1) (j) of the Bill—"in relation to the Office of the Houses of the Oireachtas, the Chairman of Dáil Éireann". I am sure, Sir, you wish to have your name added to the distinguished list of people mentioned in the Bill. I know you would exercise your functions in an exemplary manner. We will have to look at that on Committee Stage.

On a point of information——

It is Christmas. Let us hear from Senator Lanigan.

On a point of order, Senator Lanigan.

It is a point of information.

There is no such thing as a point of information.

I ask that every time a Minister comes into the House, he or she tells us the names and status of his or her advisers. This is also freedom of information.

This point is not appropriate to Second Stage. I am sure the Minister will be glad to answer any queries the Senator may have on Committee Stage. The officials are not part of this debate. Would the Senator please resume his seat?

The Minister should name his or her advisers at each debate.

I should have deferred to the Minister when, in the spirit of the season, she wanted to explain the situation to Senator Lanigan.

The Minister will be replying to the debate.

I realise that. Section 2(b) (v) puzzles me, although I am sure the Minister has a sound legal explanation for it. This section covers information relating to the criminal history of an individual. Why is there is a restriction on the criminal history of an individual?

Information relating to the property of an individual is included under that section. I know some people find the publication of the estates under wills in newspapers very distasteful. I do not think the Bill can deal with it because it deals with a deceased person, but people draw all sorts of conclusions and there is a vicarious fascination with finding out how much money people left in their wills. It is not desirable to have that type of information in the public newspapers but I imagine others might take a different attitude.

One of the main features of the Bill is in section 6(1), which states:

Subject to the provisions of this Act, every person has a right and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right to access.

That is very positive; it is the foundation of the Bill. However, that right of access is very restricted and on Committee Stage we will look at the degree to which we want it restricted or liberalised by way of amendment.

The Bill is very difficult to follow in that in many sections there are references to other sections and it is necessary to move back and forth and it becomes extremely complicated to understand what exemptions are and are not in force. I do not know what can be done about that. Although this Bill is trying to liberalise information, one would almost need to be a professional lawyer to be able to find one's way through it.

Section 6(2) deals with "reasonable assistance" and broad latitude is given to the public body to decide the nature of such assistance. The Minister of State might comment on what she regards as "reasonable assistance" and what the law regards as "reasonable assistance"?

Section 6(4) states:

The records referred to in subsection (1) are records created after the commencement of this Act and records created during such period (if any), or after such time (if any), before such commencement as may be prescribed, after consultation with the other members of the Government, and references in this Act to a record shall be construed accordingly.

I am led to believe that a person wishing to inspect a record which was in place before the commencement of the Act could be denied access on these grounds. That would be a serious limitation. I accept it can be prescribed otherwise, but I wonder if that will be the case. I have reservations about this matter and the Minister of State might provide clarification. There is also the issue of making requests in writing, the two week period in respect of records not held by a body and the necessity of completing forms.

Section 8 provides power to grant or refuse to grant a request. This section is very complicated and makes provision for extending the period for a further four weeks. Section 15 is one of the desirable and positive features of the Bill which stipulates that public bodies must prepare documents and books containing information about the way they conduct their business. I welcome this development.

The most legitimate area for exclusion of public access involves defence, security and Northern Ireland. However, distinctions must be made in this regard. One area of concern to members of the Defence Forces who live in my constituency involves records kept in respect of their service. The promotion prospects of those serving in the Defence Forces can be determined by information contained in their personnel files. There is a view among members of certain sections of the Defence Forces that they have not always been informed about what held them back when it came to promotion. That is a different situation to the one which obtains in respect of the overall aspect of security. The question arises regarding the extent to which it would be open to an individual to gain access to their personnel files, particularly where this has a bearing on future promotion. I welcome the appointment of an Independent Commissioner.

There is an important aspect I wish to raise in connection with section 19(1) which states:

A head may refuse to grant a request under section 7 if the record concerned—

. . . . .

(c) contains information (including advice), for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.

I suspect that, had this been law when the beef tribunal was in place, someone would have taken a case in the High Court to prove that some of the transactions which took place in respect of export credit guarantees should have been excluded from the ambit of the tribunal. The Minister of State is shaking her head and she will have an opportunity to clarify the position in a moment because I am about to conclude. I do not believe anyone else wishes to contribute on Second Stage now that Senator Lanigan has departed.

I return to my main point concerning the culture of secrecy. The Bill is a reasonable attempt to erode that culture but, if they are determined, public officials, Departments or local authorities will be able to ensure that people seeking information are thwarted. I hope the legislation will ensure that those who do not want to release information will be compelled to do so. I know that is the Minister of State's intention and on Committee Stage we will be able to deal with these matters in greater detail so that her intention can be put into law.

I thank Senators for a good and constructive debate which, at times, strayed into matters more relevant to Committee Stage by virtue of the detail and depth of contributions. I hope that, as a result of this debate and on Committee Stage, we can improve what is a good Bill, which has at its core the principle of maximising openness.

Senator Lanigan repeated an allegation made by a Member of the Lower House that there are 62 exemptions under the Bill. This comes from a misreading of the First Schedule which involves bodies that are included not those that are excluded. I hope I can nail that misconception for the benefit of Members of the other House and readers of The Irish Times, which repeated the mistake in its editorial. The aim of the Bill is to include as much as possible, subject to basic, common sense exemptions.

Senator Dardis queried some of the exemptions and I do not believe he was present to hear my opening contribution. The exemptions are basically common sense. The Bill is not a charter for drug barons or crime bosses and it will not interfere with the process of law enforcement or criminal detection. We are not going to distribute examination papers at Easter which are pertinent to examinations to be held the following June. We are not going to reveal the negotiating processes used by the State or interfere with the privacy of individuals. Senator Dardis expressed concerns about the list of provisions in this regard. If a person gains a criminal record in connection for parking their car on a double yellow line which is private and personal, others will not be able to access that record if they have no business doing so or if it is not of concern to the public interest.

Commercial secrecy and privacy are also protected under the Bill. The fact that someone applied for a grant to the IDA should not provide a way for their competitors to obtain their trade secrets via the backdoor. These are common sense exemptions and they take up so much of the printed text because they were carefully and tightly drawn up. If the Bill merely referred to commercial secrecy, many things could be hidden behind it. However, because we specify what is involved and due to the inclusion of balancing public interest, we minimise what is protected, which is only that required to be protected in the public interest. This concerns something which would harm or prejudice security, defence, international relations or law enforcement. It also involves situations where the public interest would be more damaged by breaching personal privacy than by releasing the information.

I do not accept that the Bill is not liberal enough. If it is scrutinised alongside similar legislation in other countries, the Bill is probably one of the most liberal pieces of freedom of information legislation in the world. The reason for this is that, by coming to it late in the day, we were able to consider legislation adopted in other countries, discuss their experience, discover whether it had worked and what different approaches they would take if they had to reintroduce the legislation. The advice we received from foreign jurisdictions has informed and shaped this Bill.

Senators Roche and Dardis were concerned about naming the detail of the procedures. Those procedures are in place precisely to avoid the situation about which Senator Dardis is concerned, namely, that the thrust and spirit of the Bill will not be obeyed in practice. It is for this reason that an independent Information Commissioner will be appointed; people will be given the right appeal to him or her and he or she will have mandatory powers. We considered the issue of appeals to the courts but these do not work in countries where they were introduced. We met with representatives of the Australian Administrative Appeals Tribunal and discovered that the process is slow and does not work effectively. We chose the route of appointing an independent Information Commissioner with mandatory powers because we want to ensure that the legislation works.

Senator Dardis referred to the possible delay of four weeks after an initial application for information has been made and another four weeks if there is a deferral. These provisions have been tightly drawn up. There is legal obligation on public bodies to give the information as soon as they can with an outside limit of four weeks. The deferral only comes in to play in specified circumstances referred to in the legislation, for example, where somebody is looking for truck loads of information which cannot be physically got within four weeks or information which is difficult to find because of its nature. When a decision is refused under section 22(2) (c) one must say why access to information is being refused. The information commissioner must justify why he cannot give that information. Checks and balance exist which are based on solid experience and advice to ensure this legislation works from day one.

Senator Dardis was concerned about the form in which information will be given and if it will be a reason for delay. That matter has been informed by problems experienced in trying to gain access to environmental information, for example. Environmental groups have looked for information which would require somebody to stand at a photocopier for weeks. Such information can be electronically transmitted so that they can do the photocopying. It easier to analyse material in computer form. This is about making the transmission of information more user friendly and not about inhibiting how a person gets it. Normally, one will get the information in the form in which it is requested, that is, if one looks for a photocopy or a disc, that is what one will get it. If it is more convenient to give the information on disc, it will be sent in that way. If there is a problem with that, one has the right to appeal to the information commissioner. We have built in caveats which may look cumbersome but which are based on solid experience. They will ensure this works in practice because that is our prime concern.

Senator Dardis and Senator Roche raised the issue of access to local authority information and expressed the wish that it should be available as quickly as possible—a wish I share. Like other Senators, I have put in more than 13 years as a member of a local authority. One of the most damaging allegations made today was how difficult it is for elected members to get information, let alone the public. That is disgraceful. What is contained in the Bill represents the outer limit, that is, that health boards and local authorities will come under its remit by a certain date so there can be no delay beyond that. If it is possible to bring the date forward, we will do so. When drawing up the legislation we did not go to the 78 local authorities, eight health boards and the 96 urban district councils to see if it would cause them problems. We would never have come up with a Bill by the time that consultation process was complete. If it is possible, I will explore bringing forward the date because I agree with the Senators that the sooner we get the information the better. We have an outer limit in mind in terms of time.

Senator Sherlock raised the right of a public representative to see a personal file. Individuals have the right to see their files. There is a provision to make regulations so that parents, for example, will be able to see their young children's health or school records. However, these regulations will have to be carefully drawn up to protect the privacy of someone with AIDS, for example, so that their parents will not see their records. When making those regulations we will look at the right of a public representative, duly authorised, to get information somebody's behalf.

Senator Henry and Senator Lanigan asked about the relationship with the Data Protection Act. That Act allows individuals access to their files held on computer by public or private bodies. It forbids the use of that information for purposes other than those for which it was collected. This Bill has related, but different, provisions, It concerns access by individuals to their own files held by public bodies. It does not deal with private bodies except in cases where they are publicly funded. Individuals will have access to their own files, whether on computer or manual record.

We have safeguarded the privacy of those records. Third parties, in the normal course, cannot see a person's tax, social welfare or personal files except in circumstances where the overriding public interest is concerned — for example, in matter of major public importance in which it is necessary to give private information. An individual must be consulted about that and their comments must be taken into account when a decision is being taken, but that does not give them a veto. This has been carefully drawn up to protect personal privacy.

A number of Senators asked what would happen if they wrote on behalf of a constituent. Under Article 15.10 of the Constitution, the personal papers of Members are constitutionally protected and are private. That provision is repeated in the Bill. We are extending that protection to the private papers of county councillors and members of health boards in carrying out an analogous function representing their constituents.

Senator McGennis asked about adoption information. I appreciate her concern in this area. As everyone will know, this is a highly sensitive and personal area. Mothers who gave birth 40 or 50 years ago were guaranteed confidentiality. They may now be married and their families may not know the situation. However, people may want to know their origins and to have their records. To some extent, the Freedom of Information Bill would be a blunderbuss to deal with such personal issues. The Department of Health is preparing legislation on access to files but it cannot finalise it at present because of a Supreme Court action which deals with balancing the right of the natural mother to confidentially versus the right of the child to know. It will set up a voluntary based contact register. As soon as the Supreme Court makes a decision, it will proceed with legislation which will address the concerns raised by Senator McGennis.

Senator Roche in a most thoughtful contribution raised the issue of the scope of the bodies to be included. He made some practical suggestions which we will consider as well as a point about bodies with quasi-statutory functions. Senator O'Sullivan asked about the overlap between the Ombudsman and the Information Commissioner. We asked the Ombudsman to be the first Information Commissioner but the two roles will be distinctly separate in law. The second Information Commissioner may be somebody else. If an appeal is made under this Bill, it will be dealt with as such. People may challenge administrative malpractice under the Ombudsman Act. The Ombudsman will have two separate offices dealing with both functions.

Senator Roche spoke about the administrative procedures Bill. He thought we had borrowed from that. I am pleased there is an overlap between administrative procedures and the right to information. Once a person has the right to information, he has the right to see secret rules, regulations, criteria circulars which is also part of good administrative procedures. My colleague, the Minister of State at the Department of Finance, Deputy Doyle, is working on the administrative procedures Bill and I hope she introduces it as speedily as possible because it dovetails into this process of reforming our administrative system.

Senator Roche also raised the issue of medical privilege which is excludes from the Ombudsman Act but not this one. People will be able to read medical comments on their files. He asked if the complexities would frustrate access. This has been carefully designed to do the opposite. Section 7(1) (b) and the need to specify what one is looking for will help a person to find the information. The converse of that is that civil servants and public servants will have an obligation to help a person not only by publishing the guides to and lists of what information is available, which will be available in every public office, library and so forth, but they also have a statutory duty to help a person find their way through the maze. That duty is provided for in section 6(2)(a). I looked at the point the Senator raised with regard to section 7(1)(a) but I am legally advised that the rights under this Bill, in terms of access to information and so on, come into effect with its release under the Act. That is why the provision is phrased in that way. However, we will look again at the wording.

Will the form of the record be sanitised? Legally it cannot be sanitised except by the exclusion of personal identifying information. If a person asks for something he or she must get it. The Information Commissioner can examine the records. Non-co-operation with the Information Commissioner is a criminal offence for which an offender can be sentenced to six months in prison.

Senator Roche referred to the administration of the courts and delays in sheduling cases. Our intention was that the legislation would cover general administration and, if it does not achieve that, we will look at it again. We are precluded under the Constitution from involvement in certain aspects of the administration of the courts, such as the process whereby judges reach decisions. We are also constitutionally precluded, and there is case law precedent, from getting involved in aspects of the work of the Director of Public Prosecutions. The administration of that office is covered but there is Supreme Court case law with regard to getting involved in the choices made by the Director of Public Prosecutions and in other areas in which some Members would like Government to be involved.

With regard to charges, it is reasonable that if somebody is seeking information they should pay the usual photocopying costs. That is normal practice and I doubt that it will cause a problem. There is provision for not charging fees, for example, from a pensioner who has no money and is seeking his or her records. The retrieval costs will come into effect if somebody is looking for a great deal of information and if it would involve a staff member devoting, for example, half a day to finding the information. Rather cunningly, however, we have provided that if retrieval takes a lot of time because the public body does not have its affairs in order, the applicant cannot be charged for its inefficiencies.

The Bill explicitly provides that if the cost of collecting this money would outweigh the cost of administration, it will not be charged. This and the voluminous requests and deferral provisions are included to deal with certain situations. We were told in Australia about a man who looked for 18,000 documents. There was no way in which the individual concerned could process them and retrieving the documents meant the public body would have to stop its work. If a body is obliged to stop issuing housing grants, headage payments and so forth in order to gather 18,000 documents there will be a problem, as Departments and agencies must carry on their usual work. This provision is included to cover that.

The legislation also provides that people must try to focus on what they are seeking. In one case in Australia a man sought information on every road maintenance project in the relevant territory. He wanted to know why the potholes outside his house were not filled and once people realised what he was seeking they were able to give him the file. It saved everyone going to much trouble to dig out information the man could not handle, while giving him the information he sought on the reason for delays in repairing the road.

The Bill provides that a person need not say why they are looking for information. It is a citizen's right to look for information. Non-nationals who, for example, might have to deal with the Department of Justice under the aliens legislation will also have a right to information. Some Senators commented on the traditional secrecy of the Department of Justice. Only issues that will involve harming the administration of justice, law enforcement and criminal prosecutions are not covered by the legislation. Issues regarding administration are explicitly covered. If the authorities break the law in criminal investigations, information in that regard is made available. There are safeguards to ensure there will not be abuse of this legislation in the Department of Justice.

Senator Dardis asked about Cabinet papers and what would have happened in the beef tribunal. Under the Tribunals of Evidence Act, Cabinet papers are available to the public. They are also available under the Ambiorix judgment by way of discovery in the courts if one is a litigant with an interest in a particular set of papers. The papers are, in theory, available to a small number of people. This Bill confers a right on the ordinary person to seek information. Cabinet papers are subject to time dated protection. After a decision of the Cabinet has been made and published a person can get all factual information relating to it immediately. That would include the information used to make the case and expert reports. Within five years the full Cabinet papers automatically become available. This is not a mandatory but a promissory exemption and some of the papers might become available sooner. There is also provision for consulting with the leaders of the parties who were in Government at the time the decision was made. This is to inform them rather than give them a veto. This provision opens the Cabinet papers to ordinary members of the public.

Senator Dardis asked about the personnel records of serving officers in the Defence Forces. They are entitled to see their records and information that might interfere with their promotion prospects. The only case in which these would be private would be where there was a security problem in letting an officer have such information, for example, if the officer was suspected of being in the IRA.

Senator Roche and Senator Dardis asked why it will take a year to implement the legislation. My concern is to make it work. Senator Roche acknowledged the work involved in gathering the circulars and the internal rules and guidelines which will have the force of administrative law as soon as they are published. That process will take time. We are also concerned that when people go looking for information they will get it. Public bodies must get their filing systems in order and they need time to do that.

We consulted widely on this matter and with Robert Hazel of the Nuffield Foundation about the introduction phase of freedom of information legislation in Commonwealth countries. We asked about the teething difficulties and we were advised that it would take more than a year to get it right. We have reduced that timeframe as much as possible. The worst possible outcome would be that if somebody sought information under this legislation and could not get it, the legislation would be discredited and there might be moves in the public service to abandon it. I do not want that to happen. I want the system to be well prepared and user friendly for both sides.

I am anxious to keep delays in implementing this legislation to a minimum. If I am satisfied we can reduce the delays further we will do so. However, our advice is that a year is required. Like the Senators, I am committed to maximising the amount of information available to the public. This Bill is framed with that in mind. Its mandate in the Title, which has legal effect in interpreting the discretions, is to maximise the amount of information to become publicly available consistent with public security, public interest and respect for personal privacy.

I agree with Senator Roche that information is truth as well as power. The conduct of public business and the delivery of public services is enhanced when they are delivered in truth and openness. This Bill sets out to do this. I welcome the constructive debate in this House and hope it will help us to further improve the Bill.

Will the Minister comment on section 6 (4) which is about records created after the commencement of the Act?

An Leas-Chathaoirleach

Senator Dardis had his opportunity to speak on Second Stage. The Minister has concluded and the Senator will have an opportunity to raise that matter on Committee Stage.

Question put and agreed to.
Committee Stage ordered for the first sitting day after the recess.

As regards public officials, if I was a public official I would be proud to be mentioned in the context of this Bill. Having met the public officials it would be remiss of me not to compliment them.

An Leas-Chathaoirleach

The Chair has already dealt with that matter.

Sitting suspended at 3.30 p.m. and resumed at 4 p.m.