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——